text:
    (No. 3988
    William Beard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    J. Clinton Searle, Attorney for claimant.
    George F. Barrett, Attorney General and William L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

This claim was filed on September 9,1946; testimony on behalf of claimant was taken and claimant observed by Commissioner Blumenthal on December 3,1946. The transcript was filed on December 31, 1946.

On May 18, 1946 claimant, William Beard, was employed as a foreman at the Blackhawk State Park in Bock Island County. During the forenoon of that day, he was working upon a motor-driven ventilating suction fan in the kitchen of the Inn. While standing on a bench, in reaching for some tools, he slipped and his left hand was crushed in the belt on the fan. The injury occurred in the presence of the Park Custodian who took claimant to a doctor. Later, upon being taken to the hospital, it was found necesary to amputate the thumb at the first joint.

Claimant was employed at the rate of seventy-five cents an hour, receiving an average weekly wage in excess of $30.00. He returned to work on June 5, 1946 and at the time of the hearing, was receiving the same wages as he did prior to the accident. His compensation rate ($15.00 per week increased by 20%) would be $18.00 per week.

No jurisdictional question is presented. It is stipulated that respondent and claimant were operating under the provisions of the Workmen’s Compensation Act and that this accident arose out of and in the course of the employment.

The respondent paid claimant’s medical, surgical, and hospital expenses.

Claimant seeks compensation for the loss of' the first . phalange of his left thumb and the evidence establishes that he sustained such loss.

Under Section 8 (e) of the Workmen’s Compensation Act, as amended, claimant is entitled to an award of Six Hundred Thirty ($630.00) Dollars computed at the rate of $18.00 per week for 35 weeks, all of which has accrued and is payable forthwith in a lump sum.

A. M. Bothbart, Court Beporting Service, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill for such service in the amount of $17.40. The Court finds that the amount charged is fair, reasonable, and customary in the community where it was rendered and said claim is allowed.

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.”


source: Caselaw Access Project

author: Damron, J.

license: Public Domain

text:
    (No. 3990
    Merrill Clayton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Roy A. Ptacin, Attorney, for claimant.
    George F. Barrett, Attorney General, and Wm. L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

Complaint was filed September 27, 1946 to recover an award for injuries sustained by claimant on May 31, 1946. Evidence on behalf of claimant was heard before the Commissioner on December 5,1946 and the transcript filed December 31, 1946.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act and the accident in question arose out of and in the course of the employment.

Respondent furnished complete surgical, medical and hospital treatment. The only question to be determined is the extent of the permanent and partial loss of the use of claimant’s hand and leg.

Claimant testified that on May 31, 1946 while employed as an attendant at the Chicago State Hospital, he was assigned by his supervisor to assist in unloading a carload of cabbages. As he attempted to leave the car, he slipped and fell thereby injuring his left knee and right arm. He experienced intense pain and was taken to the hospital. He was x-rayed, given treatment, and the following day sent to the Illinois Research Hospital where his arm received attention. Two days later surgery was performed on his knee. He remained at Illinois Research for about 25 days, after which he was confined to the employee’s Chicago State Hospital for about three months. He was discharged and resumed work oh September 4,1946.

Since the accident he has difficulty in moving his arm; has considerable pain and his hand is tired and weak. Before the injury he experienced no such disability or discomfort. He also suffers pain in his knee especially in climbing np or going down stairways or on street cars, and cannot straighten it out as he could before the accident. A crescent shape scar, 7% inches long, appears across the knee cap.

Dr. Albert C. Field, a witness for claimant, examined him on two occasions before the hearing. He testified there is an enlargement of the left knee, some atrophy of the left thigh and that flexion was limited about 45 degrees of normal and extension about 20 degrees. Crepitation may be heard when the knee is flexed.

The right forearm is held in silver forked deformity. There is a limitation of about 45 degrees of normal inflexion and of about half in pronation and supination of the right, hand. He interpreted the x-rays of the forearm as Showing an injury to the scaphoid bone of the right wrist with some osteoporosis of the styloid process of the radius. The x-rays of claimant’s left knee as read by Dr. Field revealed a fracture of the patella partially reduced and held in apposition by wire sutures with some irregularity of the articulating surface. The fracture discloses a fibrous union without complete healing with bony tissue.

Dr. Louis Cisman, a resident surgeon at the Chicago State Hospital since 1938, testified on behalf of respondent. The x-rays revealed fractures of claimant’s left knee and the vavicular bone of the right forearm. Although the patient showed improvement he was of the opinion that claimant, by reason of residual pain and limitation of movement, has 30% permanent disability of the left knee and about 25% permanent disability of the right wrist. ■

Claimant’s annual earnings were $1,740.00 which, represents $33.46 per week. He had no children under 16 years of age and therefore his weekly rate of compensation would be $15.00 increased by 20% as required by statute, namely, $18.00 per week.

The record shows claimant was totally incapacitated from May 31 to September 4, 1946, a period of 13 weeks 4 days. During this period he was entitled to receive $244.28 but was actually paid $145.00 for June; $135.65 for July; $112.26 for August and $14.34 for three days in September, or a total of $407.25, being $162.97 in excess of the amount to which he was entitled.

The evidence and particularly respondent’s medical witness clearly establishes that claimant has sustained a permanent and partial loss of use of the right hand to the extent of 25% and a permanent and partial loss of use of his left leg to the extent of 30%.

On the basis of this record, we make the following-award : For the disability to the right hand, claimant is entitled under Section 8 (e) of the Workmen’s Compensation Act to an award of $765.00 computed at the rate of $18.00 for 42% weeks or 25% of 170 weeks. For the permanent, partial specific loss of use of the left leg-claimant is entitled to an award of $1,026.00 being the Weekly rate for a period of 57 weeks or 30% of 190 weeks, making a total award of $1,791.00 from which must be deducted the sum of $162.97 representing- an overpayment of money paid by respondent to claimant for temporary total compensation leaving a balance of One Thousand Six Hundred Twenty-eight Dollars ($1,628.03) Three Cents for which an award is hereby entered in favor of claimant. Of this amount, the sum of $738,00 has accrued as of March 21,1947 and is payable in a lump sum forthwith. The unaccrued balance of said award amounting to $890.03 is to be paid in weekly installments of $18.00 for a period of 49 weeks with one final payment of $8.03.

A. M. Rothbart, Court Reporting Service, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $45.60. The Court finds that the amount charged is fair, reasonable and customary and said claim is allowed.

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.”


author: Eckert, C. J.

text:
    (No. 3991
    Lilla M. Miller, Widow of Henry G. Miller, Deceased, for Herself and as Next Friend and Mother of Carolyn Jane Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Giffin, Winning, Lindner, Newkirk and Jones, for claimant.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

This suit is brought by Lilla M. Miller, the widow of Henry Gr. Miller, in her own behalf, and on behalf of her minor' daughter, Carolyn Jane Miller, against the State of Illinois, under Section 7a of the Workmen’s Compensation Act.

The decedent, Henry Gr. Miller, was employed by the respondent at the time of his death, and had been so employed for several years prior thereto, in the Department of Revenue, as supervisor of the Rules and Regulations Division of the department. Mr. Miller’s employment occasionally required him to travel, and to be away from his main office, which was in the Illinois Building, at Springfield, Illinois.

Mr. Miller supervised the rules and regulations made under the various tax acts of the State of Illinois administered by the Department of Revenue. From June 3rd to June 6th, 1946, the National Tax Association held its annual convention in the City of Chicago, Illinois. Mr. Miller went to Chicago on June 2, 1946, at the direction of his superior, for the purpose of attending this convention, and conferring with the director of his department and other officers. On June 4th Mr. Miller attended the meeting of the National Tax Association, and was in conference with his directqr and other members of the Department of Revenue. With the knowledge and approval of the department, he was staying at the LaSalle Hotel. On June 5th he was again to attend meetings of the National Tax Association, and have further official conferences. Early in the morning of June 5th, a disastrous fire occurred at the LaSalle Hotel, in which Mr. Miller lost his life. He left the claimant, Lilla H. Miller, his widow surviving, and one child, Carolyn Jane Miller, age eleven years.

The Director of Revenue had immediate notice of Mr. Miller’s death, and demand for compensation was made by the claimant within six months thereafter.

There is no dispute as to the facts. The respondent, however, 'raises two questions of law:

1. Is the injury to or death of an employee of the State of Illinois, traveling as required by his employment, compensable under the Workmen’s Compensation Act if the injury is sustained in a fire occurring while the employee is in his place of lodging and not during his ordinary working hours, and
2. Is the injury to or death of an employee of the Department of Revenue, arising out of and in the course of the employment, not in itself an extra-hazardous undertaking, compensable under the terms of the Workmen’s Compensation Act.

The respondent has filed a very able and exhaustive brief, from which it appears, that the compensability of an employee, injured by a fire in the nighttime, while in his place of lodging, and while traveling as required by his employment, is a question of first impression in the State of Illinois. Although there are numerous Illinois cases in which employees, required to travel, have been held entitled to compensation for injuries arising out of and in the course of the employment, (Illinois Publishing Company v. Industrial Commission, 299 Ill. 189; Solar Sturges Manf. Co. v. Industrial Commission, 315 Ill. 352; Porter v. Industrial Commission, 352 Ill. 392; City of Chicago v. Industrial Commission, 389 Ill. 592), none is concerned with an injury or death occurring in a hotel, in the nighttime, when the employee was no longer literally at work.

In other jurisdictions, however, many courts have held that such an employee is entitled to compensation, in Souza’s Case, (316 Mass. 332, 55 NE (2nd) (611), it was held that an employee’s death, in a fire, occurring while he was asleep in a rooming house, arose out of and in the course of his employment. The court there pointed out that the question was whether the employment brought the employee in contact with the risk that in fact caused his death. And the court refused to differentiate between cases in which the employee selected the place of lodging, from cases in which the selection was made by the employer. On page 613, the court said:

"But it seems to us that the connection between the employment and the risk is substantially the same whether the employer or the employee selects the particular place, as long as lodging away from the employee’s home or regular place of abode is provided by the employer as an incident of the work, and is required by the terms of the employment, and as long as the employee selects a place that fulfills the requirements of the employment and that is otherwise proper in the sense that it involves no unnecessary risk.”

In the case of Thiede vs. Searle & Co., 278 Mich. 108, 270 NW 234, an employee, injured by fire in the place of his lodging, was held entitled to compensation, and the court based its decision on the analogous case of an employee injured while using a public conveyance. The Supreme Court of Michigan said:

“Counsel for both parties cite us many cases of other courts, relating to similar accidental injuries, with their respective pro and con decisions. But we do not find it necessary to seek further than our own decisions for controlling precedent. We think our holding in Widman v. Murray Corp. of America, 245 Mich. 332, 222 NW 711, 712 by analogy, applies with equal force to the case at bar. There the plaintiff had been sent by his employer on a business trip, and while sitting on the observation platform of a passenger train, was hit in the eye by a cinder. The defendant there claimed that the injury did not arise out of the employment. We said:
“‘It was a condition of his employment that he (plaintiff) should be on this train, which turned out to be a place of danger. The risks to which he was exposed from riding on trains from place to place as he was directed were incidental to his employment. He was required to' ride on trains in the performance of his master’s business. This condition of the employment was the proximate cause of his injury. These undisputed facts fix the responsibility of the defendant.’
“In the instant case, it was a condition of decedent’s employment that he should stay at the hotel, which turned out to be a place of danger. The risks to which he was exposed in staying at hotels as required by his position were incidental to his employment. He was required to stay at a hotel in Lansing in the performance of his master’s business. This condition of the employment was the proximate cause of his injury. These undisputed facts fix the responsibility of the defendants * *

In the case of Texas Emp. Ins. Ass ’n vs. Harbuck, 73 SW (2d) 113, the Court of Civil Appeals of Texas held squarely that fatal injuries to a traveling salesman, sustained when he attempted to escape from a burning hotel at which he was staying for the night, arose out of and in the course of his employment even though he was not at the time actually engaged in the pursuit of his employer’s business. The court pointed out that at the time of the injury the employee was doing the very thing which in the performance of his duties, he should have done, and was expected by his employer to do, occupying a place of rest, his room in the hotel. The employee’s stopping at a hotel was a necessary element in the performance of his duty. See also Stansberry vs. Monitor Stove Co., 150 Minn. 1, 183 NW 977, and Harinel vs. Hall-Thompson Co., 98 Conn. 753, 120 A. 603.

This court is of the opinion that employees, required to travel by their employment, are entitled to the benefits of the Workmen’s Compensation Act for injuries resulting from a fire in their place of lodging, (unless the employee is injured while doing some act outside the scope of the provisions of the Act), and that the rule, as established by these various decisions, is within the meaning and intent of the Workmen’s Compensation Act of this State. As was pointed out by the Supreme Court of Illinois in Porter vs. Industrial Commission, supra, the controlling factor in determining whether an accidental injury arose out of and in the course of the employment is whether the employee was in the sphere of his duty when the accident occurred. If an injury occurs within the period of the employment, at a place where the employee might reasonably be, and while he was reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it, he is entitled to compensation.

Best is certainly incidental to ah employment that takes an employee away from home overnight. Here, as in the Porter case, the employee had gone to another city in the service of his employer; he had performed the duties assigned to him. The injury occurred, in the Porter case, while the employee was riding on an interurban train, a proper means of transportation. ..The injury occurred in this case while the employee was seeking necessary rest in a suitable and proper place. The lurching of the car in the Porter case was held to be one of the risks incidental to the employment. The burning of the La Salle Hotel was a like risk in this case.

As the court said in the Thiede case, supra, it was a condition of decedent’s employment that he should stay at a hotel; he was required to stay at a hotel in Chicago in the performance of the respondent’s business. The condition of his employment was the proximate cause of his death. The court therefore finds that the death of" Henry Gr. Miller, arose out of and in the course of his employment.

Whether the injury to or death of an employee of the Department of. Be venue, arising out of and in the course of his employment, not in itself an extra-hazardous undertaking, is compensable under the terms of the Workmen’s Compensation Act, necessitates a consideration of a case recently decided by the Supreme Court of Illinois: County of Christian vs. Industrial Commission, 391 Ill. 475. The respondent contends that the court in that case held that a county employee was not within the provisions of the Workmen’s Compensation Act, and not entitled to its benefits, where the county had not elected.to come under the act, and where the employee was not herself engaged in an extra-hazardous business or enterprise; that therefore an employee of the State, not himself engaged in an extra-hazardous enterprise^ is not within the Act.

An analysis of the opinion filed in the case, however, indicates that it is not so far reaching. Christian county had not elected to come within the provisions of the Workmen’s Compensation Act, and the court, at page ' 477, pojpts out that liability of the county, if any, under the act, must arise by reason of the automatic application of the statutory provisions, and that the claimant relied upon the provisions, of sub paragraph 8 of Section 3 to bring the case within the act. Under this sub-paragraph, an employer automatically comes within the act if his enterprise is one on which statutory or municipal ordinance regulations are imposed for the regulating, guarding, use or placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein. From the opinion, it is obvious that •claimant based her entire case upon the theory that the County of Christian came within the provisions of the Workmen’s Compensation Act because the court house in which she maintained her office was subject to statutory and municipal ordinance regulations.

The statutory and municipal ordinance regulations upon which the claimant relied, however, were not such regulations as were for the protection and safeguarding ■ of employees or the public against accidental injuries or death; they were not regulations imposed upon the enterprise of the employer. The actual holding of the court is found in the next to the last paragraph of the opinion, (p. 486);

“We are of the opinion that this record does, not disclose that the enterprise in which defendant in error was employed, at the time she sustained the accidental injuries for which she is claiming compensation, was subject to statutory or municipal ordinance regulations within the meaning of sub-paragraph 8 of section 3 of the Workmen’s Compensation Act, and therefore the award in this case must set aside for want of jurisdiction in the commission to make it.”

In other words, the case was presented to the court, by the claimant, on the theory that the county came within the Act because of certain statutory or municipal ordinance regulations, and the court found specifically that these statutory or municipal ordinance regulations were not such regulations as were contemplated by the Act. The case was not presented to the court, nor decided by the court, on any other theory. The court did not decide whether, under the provisions of Section 3 of the Workmen’s Compensation Act, the county, as a governmental unit, is, or is not, automatically subjected to the provisions of the Act; the court did not decide whether, under the provisions of the Workmen’s Compensation Act, the county, as an employer engaged in extra-hazardous enterprises, is, or is not, automatically subjected to the provisions of the Act. It is true that there is dictum in the opinion indicating that the act does not apply to a county unless the county is an employer engaged in an extra-hazardous enterprise, and unless the employee in question is engaged in such an extra-hazardous enterprise. The actual decision in a case, and dicta included in an opinion, are separate and distinct. A decision is controlling and should be followed. Dicta may and should be disregarded. In the history of English and American law, the easy quotation of dicta, rather than the analysis of a decision, has only served to confuse and not clarify precedents.

Furthermore, a long line of decisions by the Illinois Supreme Court, prior to the Christian County case, held the act applicable to employees regardless of the character of the work being performed. In the case of Illinois Publishing Company vs. Industrial Commission, supra, an advertising solicitor for a publishing company was killed in an automobile accident while calling on prospects for the company. The company operated printing presses and other machinery regulated by municipal ordinances, admittingly an extra-hazardous activity. The court there held that since the company was engaged in an extra-hazardous enterprise, the act applied to an employee of the company regardless of whether or not he was employed in the department of the company which was extra-hazardous. The court stated, at page 488:

“This compulsory compensation Act is general in its application and embraces all employers and their employees engaged in businesses or enterprises declared by the statute to be extra-hazardous. The language of the Act is clear and is not open to construction. It means just what it says — the provisions of this Act shall apply automatically and without election to all employers and their employees engaged in enterprises or businesses declared tq be extra-hazardous — and the court has no right to read into the statute words that are not found therein, either by express inclusion or by fair implication.”

In the case of McNaught vs. Hines, 300 Ill. 167, the court rejected the contention that the Workmen’s Compensation Act was not intended to include employees as within the Act unless they were actually engaged in extra-hazardous«employment at the time of the injury. In Porter vs. Industrial Commission, supra, it was held that no distinction existed between an employee doing extra-hazardous work and one whose work is not extra-hazardous. In the case of Marshall Field and Co. vs. Industrial Commission, 305 Ill. 134, it was admitted that the employer used power-driven machinery, dynamos, and elevators in operating its mercantile establishment which were subject to statutory regulation as to their use and location. The court stated:

“The act therefore applied automatically to the employer by virtue of paragraph 8 of Section 3, and the act applies to all employees in the various kinds of hazardous business included in that section, regardless of the kind of work in which the employee is engaged.”

To the same effect is the case of Ascher Brothers Amusement Enterprises vs. Industrial Commission, 311 Ill. 258, and Figgins, Commissioner of Highway, vs. Industrial Commission, 379 Ill. 75.

In view of this long line of decisions, in which the Supreme Court refused to distinguish between employees engaged in extra-hazardous enterprises, and employees not so engaged, the decision in thé Christian County case certainly should be confined to its specific holding. Dictum in that opinion, or in any opinion, cannot over rule previous decisions of the same court. This court believes that the Christian County case is properly limited to the holding that the regulations relied upon by the claimant were not such as were contemplated by sub-section 8 of Section 3. Had the claimant relied, either upon the theory that the Act applied automatically to the county as a governmental unit, or applied automatically to the county because it was engaged, as any other employer, in an enterprise or business declared to be extra-hazardous, a contrary result might well have been reached.

Section 3 of the Illinois Workmen’s Compensation Act provides that the Act should apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the businesses or enterprises therein declared to be extra-hazardous. This court has interpreted that section to mean that the act applies automatically and without election to the state, on the theory that there are two classes of employers: the act applies automatically to the one class, governmental units, and applies automatically and without election to all other employers and employees, a second class, when engaged in businesses declared to be extra-hazardous. This interpretation is in accord with legislative history. The automatic provisions of the Act were added by amendment in 1917, but at that time contained no reference to the State or other governmental units, providing only that the Act should apply automatically to all employers and their employees engaged in any of the enterprises or businesses declared to be extra-hazardous. The State and other governmental units were specifically named in Section 4 of the Act as employers, and employees of these governmental units were named in Section 5 of the Act as employees. By the amendment of 1919, the governmental units were added to Section 3. The only purpose of this addition would have been to create two classes, for the Act already applied to these governmental units and their employees as it applied to any other employer; the only purpose could have been to create a class of governmental units to which the Workmen’s Compensation Act applied automatically, regardless of the character of work carried on by the employees. Any other interpretation makes the amendment of 1919 to Section 3 of no effect.

The court, therefore, is still of the opinion that the provisions' of the Illinois Workmen’s Compensation Act apply automatically and without election to the State as a governmental unit, and that the provisions of the Act are applicable to state employees, regardless of whether or not they are engaged in an extra-hazardous enterprise or business. Henry G. Miller, as an employee of the Department of Revenue, comes within, and was entitled to the benefits of that Act. Claimant is entitled to an award on account of the death of Henry G. Miller, whose death arose out of and in the course of his employment by the respondent.

Mr. Miller’s earnings during the year immediately preceding his death were in excess of $6,200.00, so that claimant is entitled to award in the sum of $4,450.00. Since the death occurred subsequent to July 1, 1945, this must be increased 20%, making a total award of $5,340.00. The weekly compensation rate is the maximum of $15.00, increased 20%, or $18.00 per week.

Award is therefore entered in favor of the claimant, Lilla M. Miller, in the amount of $5,340.00 to be paid to her as follows:

$ 756.00, accrued, is payable forthwith;
$4,584.00, is payable in weekly installments of $18.00 beginning on the 25th day of March, 1947, for a period of 254 weeks, with an additional final payment of $12.00.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

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.”


text:
    (No. 3994
    Lena F. Hoppock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Claimant, pro se.
    George F. Barrett, Attorney General, and William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

The claimant, Lena F. Hoppock, seeks an award under the provisions of the Workmen’s Compensation Act in the amount of One Hundred and Eight Dollars ($108.00) for medical expenses which she incurred as the result of a fall, while she was employed by the Illinois Public Aid Commission.

Claimant’s duties required her to interview, and investigate the eligibility of applicants seeking various types of public assistance. On February 8, 1946, while in the performance of her duties, she visited the home of an Old Age Pénsion recipient in Kewanee, Illinois. As she left the premises, she slipped on the top step, and fell to the pavement, injuring her leg.

Immediately following the accident she was taken to her home, and Dr. H. R. Varney was called. He ordered the application of ice packs, and the following morning had claimant taken to the hospital for x-rays. She then returned to her home, but owing to the severity of the injury, it was necessary for her to enter the hospital on February 12, 1946, where she remained for a two week period.

Dr. Varney treated claimant continuously from February 8, 1946 to March 13, 1946. While she was in the hospital it was necessary for him to incise and drain coagulated blood from the injured tissues. Dr. Varney’s charges for his services amounted to Fifty-eight. Dollars ($58.00). On discharging claimant, on March 15, 1946, he referred her to Dr. L. L. Spanabel for. diathermy and other special treatment to restore circulation in her leg. Dr. Spanabel gave claimant twenty of these treatments, for which his charges were Fifty Dollars ($50.00).

The respondent did not provide the necessary medical services, but permitted claimant to secure such services with its full approval. The services were reasonably required, and the excellent results achieved, obviated any additional claim for disability. The reasonableness of the charges is not questioned, and claimant is entitled to an award.

An award is therefore entered in favor of Dr. H. R. Varney in the amount of Fifty-eight Dollars ($58.00), and an award is entered in favor of Dr. L. L. Spanabel in the amount of Fifty Dollars ($50.00), both of which are payable forthwith.

Inasmuch as the Illinois Public Aid Commission has funds available for payment of compensation awards, the court specifically directs the payment of the above awards by the State Treasurer, as Trustee Ex-Officio, from the funds heretofore deposited with the State Treasurer pursuant to Section 181a, Chapter 127, Revised Statutes of Illinois. Payment of these awards from this fund is requested by the Illinois Public Aid Commission, and such request constitutes the necessary statutory direction.

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.”


text:
    (No. 3995
    Marzella Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Rosenbaum and Rosenbaum, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

The claimant, Marzella Smith, on October 21, 1946, filed her complaint in this cause alleging that on March 29, 1946 she used a parkway sidewalk, in the Chicago Park District, known as South Parkway, at 48th Street, Chicago, Illinois, to enter a drug store; that in the darkness, she stumbled and fell over an unilluminated concrete post, or jagged edge projecting from the sidewalk on the parkway, injuring her left knee and leg. Claimant further alleges that she is a house wife in care of children, earning an average of $2,000.00 per year; that she has spent $500.00 for "hospital, medical treatment, care, and attendance, and will be required to spend further moneys in attempting to be cured of the injury; that she still suffers great pain; and that the injury is the result of the negligence of the Chicago Park District. She alleges that the Chicago Park District is a departmental function of the State of Illinois. She seeks damages in the amount of $2,500.00.

The respondent has filed a motion to dismiss the complaint on the ground that this court is without jurisdiction since the complaint sets forth a claim against the Chicago Park District, and not against the State of Illinois.

The Chicago Park District is a municipal corporation with power to sue and to be sued. The cause of action in this case is based upon its alleged negligence. The State of Illinois is precluded from assuming liability for a claim against such a municipal corporation. Article IV, Section 20 of the Constitution of 1870, provides:

“The State shall never pay, assume ..or become responsible for the debts or liabilities of, or in any manner, give, loan or extend its credit to or in aid of any public or other corporation, association or individual.”

Claimant’s theory, that municipal corporations and other governmental entities, are such agencies and arms of the State, that the State is responsible for claims against them, has been presented to this Court upon many occasions. The Court, however, has consistently held that it has no jurisdiction to hear and determine such claims, and that the State has no responsibility for the debts or liabilities of such bodies. Monaco et al. vs. State of Illinois. 9 C.C.R. 90; Jones vs. State, 10 C.C.R. 104.

In the case of Price vs. State, 8 C.C.R. 85, this court refused to take jurisdiction of a claim based upon the negligence of the Board of Park Commissioners of Lincoln Park, one of the predecessors of'the Chicago Park District. “At page 86 of the opinion the court stated:

“It has; frequently been held by the courts of this State that the Board of Park Commissioners is not liable for injuries occurring in parks. (Stein vs. West Park Commissioners, 247 Ill. App. 479; Hendricks, Admx. vs. Urbana Park District, 265 Ill. App. 102; Love vs. Glencoe Park District, 270 Ill. App. 117.)
“Claimant apparently takes the position that if the Board of Park Commissioners is not liable, the State must be liable, but such is not the law.
“The same position was taken by the claimant in the case of Raffaele Trombello, et al., Admrs., etc. vs. State, No. 2237, decided at the January Term, A. D. 1934 of this court, in which the authorities cited by the claimant in this case were considered, and the conclusion reached that the declaration there did not allege any liability on the part of the State. The court must necessarily arrive at the same conclusion in this case and inasmuch as there is no legal liability on the part of the State under the facts as set forth in the complaint, the court has no jurisdiction to make an award.
“The plea to the jurisdiction is therefore sustained and the case dismissed.”

In 'the case of Monaco vs. State, 9 C.C.R. 90, the Court of Claims sustained a motion to dismiss because it had no jurisdiction of a claim of an individual against a municipal corporation and made the following statements :

“We are further compelled to take judicial notice of the fact that the Commissioners are officers of a municipal corporation, capable of suing and being sued. This court has repeatedly held that it has no jurisdiction under ‘An Act to create the Court of Claims and prescribe its powers and duties,’ to entertain suits filed by individuals against municipal corporations as such individuals must seek their legal remedy in courts of record in this State. Further, that such municipal corporations as the Board of Park Commissioners of Lincoln Park, the West Chicago Park Commissioners, and the South Park Board of the City of Chicago, and Boards of Education of cities of school. districts, are not arms or agencies of the State government so as to bring them within the jurisdiction of the Court of Claims.”

The Court of Claims Act of 1945 (Chap. 37, Par. 439.8, Illinois Revised Statutes, 1945) does not extend the jurisdiction of this court to include suits against municipal corporations. The jurisdiction of the Court, by that act, is limited to claims against the State. Claims against a municipal corporation, or other governmental entity, which can sue or be sued in courts of general jurisdiction, are not claims against the State of which this Court can take cognizance. Claimant’s argument should be directed to the legislature rather than to the Court of Claims.

Motion of Respondent is granted. Case dismissed.


text:
    (No. 3996
    Margaret L. Taylor, Widow of G. G. Taylor, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1947.

    Clifford M. Blunk, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

This suit is brought by Margaret L. Taylor, the widow of G. G. Taylor, deceased, against the State of Illinois, under Section 7a of the Workmen’s Compensation Act.

The decedent, G. G. Taylor, was employed by the respondent at the time of his death, and had been so employed for several years prior thereto, as Chief of the Division of Venereal Disease Control in the Department of Public Health. His employment occasionally required him to travel, and to be away from his main office, which was at Springfield, Illinois.

The United States Public Health Service scheduled a meeting for discussion of methods of venereal disease control for June 4,1946, at the LaSalle Hotel, in the City of Chicago, Illinois. Mr. Taylor was authorized and directed by his department to attend this meeting, and to confer with Dr. T. J. Bauer, the Venereal Disease Control . Officer of the Chicago Board of Health.

On June 3, 1946, Mr. Taylor went to Chicago and registered at the LaSalle Hotel with the knowledge and approval of his department. He attended the meeting on June 4th, and remained at the hotel that night for the conference with Dr. Bauer on the following day. Early in the morning of June 5th, a disastrous fire occurred at the hotel, in which Mr. Taylor lost his life. He left the claimant, Margaret L. Taylor, his widow, surviving.

The Director of Public Health had immediate notice of Mr. Taylor’s death, and demand for compensation was made by the claimant within six months thereafter.

There is no dispute as to the facts. The respondent, however, raises two questions of law:

1. Is the injury to or death of an employee of the State of Illinois, traveling as required by his employment, compensable under the Workmen’s Compensation Act if the injury is sustained in a Are occurring while the employee is in his place of lodging and not during his ordinary working hours, and
2. Is the injury to or death of an employee of the Department of Public Health, arising out of and in the course of the employment, not in itself an extra-hazardous undertaking, compensable under the terms of the Workmen’s Compensation Act.

Both of these questions have been answered in the affirmative in the opinion rendered by this court in the case of Lilla M. Miller vs. State of Illinois, No. 3991, 16 C.C.R. The decision in that case is controlling here, and permits of no distinction between an employee of the Department of Revenue, and an employee of the Department of Public Health.

The court, therefore, finds, that the death of G. G. Taylor arose out of and in the course of his employment, and that, as an employee of the Department of Public Health, he was entitled to the benefits of the Workmen’s Compensation Act of this State.

Mr. Taylor’s earnings during the year immediately preceding his death were in excess of $7,000.00, so that claimant is entitled to an award in the sum of $4,000.00. Since the death occurred subsequent to July 1, 1945, this must be increased 20%, making a total award of $4,800.00. The weekly compensation rate is the maximum of $15.00, increased 20%, or $18.00 per week.

Award is therefore entered in favor of the claimant, Margaret L. Taylor, in the amount of $4,800.00, to be paid to her as follows:

$ 756.00, accrued, is payable forthwith;
$4,044.00, is payable in weekly installments: of $18.00 beginning on the 25th day of March, 1947, for a period of 224 weeks, with an additional final payment of $12.00.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

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.”


text:
    (No. 4004
    Ben Weiss and Helen Weiss, etc., vs. State of Illinois.

      Opinion filed March 25, 1947.

    Edwin M. Katz, for claimants.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

Claimants seek an award of $500.98 as a refund of an overpayment in the remittance of motor fuel tax. By stipulation of the parties, the report of the Department of Revenue, filed herein, constitutes the record. It shows ' that claimants were doing business- as co-partners under the name of Dixie Q-as Company and were licensed as distributors under the Motor Fuel Tax Law on November 15, 1945 under license No. 2509, all operations being conducted in Chicago, Illinois.

Under date of December 18, 1945, claimants made a report to the Department of Revenue for the month of November 1945 which showed no transactions. Under date of January 14, 1946, the distributor reported for the month of December 1945. The report showed an opening inventory as of December 1, 1945 of 17,040 gallons of motor fuel. The report computed tax on motor fuel on hand as of December 1, 1945, and on all received in December 1945 except 19, 686 gallons on hand the 31st of December which was forwarded to January 1946 accounting.

The beginning inventory of 17,040 gallons, reported on the distributor’s December 1945 report, was marked for investigation by the Department for the reason the distributor’s reports for December 1945 and January 1946. accounted for all motor fuel on hand as of December 1,1945, as above stated, and all received in December 1945 and January 1946. The report further divulges that the motor fuel tax was paid by claimants to the Department on all sales in these two months. As of January 31,1946, a new license certificate was' issued to claimants doing business as the North Side Petroleum Company, this license was numbered 2539 and the old license numbered 2509 was cancelled.

The report shows that the investigation of the distributor’s records and cross checking of receipts from November 15,1945 to January 31, 1946 disclosed that the November report above referred to was in error. It was amended, according to the departmental investigation, so as to report the inventory as of November 15, 1945,. and the receipts from that date to November 30,1945 all being tax paid. The amended November report also showed that as of November 30, 1945, the distributor had on hand, tax paid, 17,040 gallons.

An amended report was also made for the month of December 1945 showing that the said 17,040 gallons was deductible from the accounting thus correcting the amount of tax due for December 1945 from $2,626.22 to $2,124.24 which shows an overpayment to the Department by the claimants in the amount of $500.98.

The purpose of the Motor Fuel Tax Law as set forth in the Act, is “to impose a tax upon the privilege of operating each motor vehicle upon the public highways of this State such tax to be based on the consumption of motor fuel in such motor vehicle,” etc.

It is based upon the amount of motor fuel consumed in each motor vehicle. The tax is paid in the last analysis by the ultimate purchaser but is collected in the first instance by the dealer who is required to pay over to the State all moneys so collected by it.

The money which is collected by the dealer and paid by it to the State is not the proceeds of a tax assessed against such dealer. The collection of the tax is made through the instrumentality of the dealer, who acts as an agent of the State in that behalf.

This case, therefore, is essentially different on the facts from the cases which involve the voluntary payment of an illegal or excessive tax.

Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payer that the fact was otherwise, it may be recovered. Mitchell and Hills vs. State, 12 C.C.R. 317.

The record discloses that the payment made by this claimant in this case clearly was made under a mistake of fact and therefore claimant is entitled to the return of the amount of money overpaid by it. An award is therefore entered in favor of claimant in the sum of Five Hundred Dollars and Ninety-Eight Cents ($500.98).


author: Bergstrom, J.

text:
    (No. 3713
    Genevieve Sauerhage, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Hugh J. Dobbs, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

By the complaint, which was filed on May 1, 1942, claimant alleges, in substance, that she is the owner of the property described as Lot 14, in Block 25, The Consolidated Coal Company of St. Louis First Subdivision of lands in Sections 9 and 10, in Township 9 South, Range 2 West of the Third Principal Meridian, in Jackson County, Illinois. That in the construction of F.A. Route 144, the elevation of the land used for said highway was changed and altered and the natural surface drainage of said land was changed and the sub-surface drainage was stopped and blocked or changed and altered. That a ditch was dug along said highway and along the front of cliamant’s property into which water from said highway and other land drained and accumulated without adequate draining facilities being provided in the construction of said highway. That on the night of October 16, 1941 rain water accumulated in said ditch from said highway and other land and backed up and remained in said ditch until the pressure or natural seepage thereof established a new channel underneath the surface of claimant ’s' property, by which said channel water flowed and seeped back to and against the foundation of claimant’s home located on said property to a height of three feet in the basement thereof, covering canned goods and personal property stored therein, and the house became out of plumb and line and otherwise damaged.

Claimant seeks an award for $1,075.00 for damages sustained.

The record shows that claimant did, on April 25, 1940, execute a Deed of Dedication to the People of the State of Illinois of a part of the property herein claimed to be damaged, for the purpose of a public highway, and which Deed of Dedication was recorded in the office of the Clerk and Ex-officio Recorder for Jackson County, Illinois on April 25, 1940 as document No. 16644. The land described in said Deed of Dedication and shown on the plat attached thereto is an integral part of the land described in claimant’s complaint.

Where an owner conveys property for public use, the consideration received for such conveyance covers all damages for property taken and also damages for injury to adjacent property not taken, the same as an assessment of damages for property taken through, a condemnation proceeding would cover.
Lepski v. State of Illinois, 10 C. C. R. 170;
Lampp v. State of Illinois, 6 C. C. R. 349;
Baker v. State of Illinois, 9 C. C. R. 115;
Chicago, Rock Island & Pacific;
Railway Co., v. Smith, 111 Ill. 363;
Siekmann v. State of Illinois, 10 C. C. R. 286.

Claimant signed and delivered the Deed of Dedication and was paid the consideration given therefor. She was at that time, and is now, the owner of the adjacent property claimed to be damaged. From the record in this case the general proposition of law above stated, in onr opinion, applies to this claim. Accordingly, it should be denied.

The, claim is therefore denied.


text:
    (No. 3908
    Archie Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Clarence B. Davis, Attorney for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This is a claim for benefits under the Workmen’s Compensation Act.

The record consists of the following: complaint, departmental report, rule to show cause, transcript of evidence, amended complaint, statement, brief and argument of claimant, transcript of additional evidence taken on December 27, 1946, claimant’s exhibits 1, 2, and 3, commissioner’s report, and reporter’s bill for taking evidence.

The evidence discloses that the above named claimant, Archie Brown, on the 11th day of April 1944 was employed by the Secretary of State as a janitor, that on the last mentioned date, the claimant was a resident of Springfield, Illinois.

The record further discloses that this claimant while engaged in carrying boxes weighing approximately 75 lbs. each from a State garage on 2nd Street to another building located on 3d Street in Springfield, stepped into a hole thereby causing him to fall to the ground. That following said accident, the claimant immediately notified his superior and engaged Dr. I. B. English, a physician and surgeon with offices in Springfield, who treated the claimant from April 12 to April 15,1944 for a hernia and recommended that claimant purchase and wear a truss. Claimant paid Dr. English, for. medical attention, the sum of $6.00 and expended the sum of $12.50 for a truss.

The claimant testified that immediately after he slipped, as aforesaid,‘he suffered pains in the region of his stomach; that prior to said accident he had never suffered pains in that region; that he had never suffered a rupture prior thereto.

The evidence further discloses -that claimant submitted to a physical examination by Dr. Percy C. May, physician and surgeon, Centraba, Illinois, who diagnosed his condition as a bilateral direct inguinal hernia and recommended surgery estimated as follows: surgeon fees, $150.00; anesthetist’s fee, $10.00; laboratory fee, $5.00; hospital bill, $100.00, making a total of $265.00. He also estimated that the operation would require claimant to be hospitalized for a period of about three weeks.

Claimant seeks an award for money expended by him for medical services to Dr. English and the amount expended for a truss, and the sum of $265.00 representing the estimated costs of surgeon fees, etc., in order to repair said bilateral hernia.

On the basis of this record we make the following findings: that the claimant and respondent were on the 11th day of April 1944 operating under the provisions of the Workmen’s Compensation Act, that on the date last above mentioned, said claimant sustained accidental injuries, which did arise out of and in the course of the employment and that notice of said accident was given said respondent and claim for compensation on account thereof was made on said respondent within the time required under the provisions of said Act. That the earnings of the claimant during the year next preceding the injury are unascertainable for the reason that this record fails to disclose said earnings. That petitioner at the time of his injury was 75 years of age, a widower, and had no children under 16 years of age dependent upon him for support. That the necessary first aid and medical services were not furnished by respondent.

The Court further finds that said claimant sustained a bilateral inguinal hernia as a result of said accidental injury and that the respondent shall provide said claimant with the necessary medical and surgical and hospital services reasonably required to repair said hernia and to cure or relieve from the effects of the injury as provided in Paragraphs (a) and (d-1) of Section 8 of said Act, as amended. The Court further finds that said respondent shall pay to said claimant compensation based upon his annual earnings at the time of said injury during any period of incapacity from work as a result of such operation as herein above ordered.

An award is hereby entered in favor of Archie Brown, the claimant herein, in the sum of Eighteen Dollars Fifty Cents ($18.50) representing an expenditure by him of $6.00 for medical services rendered to him and $12.50 expended by him for a truss.

The record discloses that Eileen Jones, a court reporter with offices in the First National Bank Building, Springfield, Illinois was employed to report and transcribe the evidence in support of this claim, making a charge therefor in the sum of $7.80. The Court finds these charges to be fair, reasonable, and customary in the community where the services were rendered.

An award is therefore hereby entered in the sum of Seven Dollars Eighty Cents ($7.80) for the use of Eileen Jones.

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.”


text:
    (No. 3943
    Arthur D. Brunk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    L. G. Pefferle, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This is a claim filed by the above claimant for benefits under the Workmen’s Compensation Act. The record consists, of the complaint, departmental report, transcript of evidence, commissioner’s report, claimant and respondent’s waiver of brief, statement, and argument, and court reporter’s bill.

The record discloses that claimant on February 1, 1945 was employed by the Division for Delinquency Prevention in the Department of Public Welfare of the State of Illinois. He was head of the Regional Office at Urbana and had supervision over the work of the various field workers in that office. In addition, he was doing some work for the Delinquency Prevention Division by helping edit a manual regarding the work. This manual had previously been started by Mr. Arley G-illett, a former employee of the Division for Delinquency Prevention, who on the last mentioned date was a coach of the Normal High School and resided at 402 Virginia Avenue, Normal, Illinois.

Arrangements had been made for claimant and Mr. Gfillett to do further work on the manual at the latter’s home on February 1, 1945. As the claimant approached the place of meeting, he slipped and fell on the icy pavement adjacent thereto. He was immediately taken to the Brokaw Hospital where it was found he had suffered a fracture of the right ankle. He was attended by physicians who reduced the fracture. He was absent from his duties throughout the month of February 1945 and incurred and paid medical bills in the sum of $244.00 and hospital bills in the sum of $80.59, for which he has not been reimbursed by the respondent.

The departmental report filed herein shows that claimant was paid full salary during his convalescing period amounting to $350.00 per month for unproductive time.

From the record we make the following findings: that the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act and that his accident did arise out of and in the course of his employment by respondent. Inasmuch as claimant received full salary during the time he was incapacitated, his claim for temporary compensation under the Act must be denied.

An award is therefore hereby entered in favor of claimant, Arthur D. Brunk, in the sum of Three Hundred Twenty-Four Dollars Fifty-Nine Cents ($324.59) to reimburse him for hospital bills amounting to $80.59, and doctor bills amounting to $244.00, as provided in Section 8(a) of the Workmen’s- Compensation Act, as amended.

Eileen Jones, court reporter with offices in the First National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $14.00. The Court finds that the amount charged is fair, reasonable and customary and said claim is allowed.

An award is therefore hereby entered in the amount of Fourteen ($14.00) Dollars for the use of Eileen Jones.

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 employes.”


text:
    (No. 3947
    Jennie Noonan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Perry D. Wells and George D. Carbary, for claimant.

      George F. Barrett, Attorney General, and William L. Morgan, Assistant Attorney General, for respondent.
   Bergstrom, J.

Claimant, Jennie Noonan, filed her claim on January 10, 1946, alleging that she was injured on February 3,‘ 1945 while employed by respondent at the Elgin State Hospital and remains totally disabled and incapable of performing any work.

The record consists of the Complaint, Departmental Report, Respondent’s Waiver of Brief, and Transcript of Evidence.

The jurisdictional requirements of the Workmen’s Compensation Act have been met, and we find from the record that claimant was injured by an accident arising out of and in the course of her employment.

Claimant was an attendant at the Elgin State Hospital, and while walking toward the Administration Building to make her daily duty report she slipped on an icy sidewalk, fell and fractured her hip. She was immediately hospitalized at the Elgin State Hospital where she remained for a period of ten days, and then was taken by ambulance to St. Luke’s Hospital, Chicago, Illinois, where she remained six weeks under the care of Dr. William R. Cubbins. Afterwards she was® taken back to the Elgin State Hospital where she received medical and hospital treatment until January 8, 1946. After said date she continued under the care of her own doctors, but the record does not contain their names or the amount of money which was paid for her subsequent medical treatments.

Claimant was 68 years old at the time of the accident and had no children under 16 years of age. At the time of the hearing before the Commissioner on December 19, 1946 it was still necessary for the claimant to use a crutch. The record is very inconclusive as to the degree and extent of claimant’s permanent disability, but Commissioner East who observed the claimant while she testified at the hearing before him recommends an award based on 25% total disability for loss of use of the leg.

Claimant’s wages at the time of said accident were at the monthly rate of $125.00, or an average weekly wage of $28.85; her compensation rate, therefore, would be $14.42 per week to which must be added 17%%, the accident having occurred after July 1, 1943, or a compensation rate of $16.94 weekly. Claimant was hospitalized until January 8,1946, a period of 48 weeks from the date of her injury. After her discharge from the hospital she remained at home, and was unable to work and had not been able to work up to the time of the hearing held on December 19, 1946. She would, therefore, be entitled to the maximum of 64 weeks, where an award is given for specific injury, for total temporary incapacity, or the sum of $1,084.16, from which must be deducted the sum of $716.31 which was paid claimant for unproductive time, leaving a balance due her of $367.85 for total temporary incapacity. From the record, we must conclude that she incurred permanent disability to the extent of 25% loss of the use of her leg, and is, therefore, entitled to compensation for 47% weeks at the rate of $16.94 per week, or a total of $804.65.

The record also shows that claimant paid Dr. Wm. R Cubbins the sum of $200.00 for medical service, and also expended the sum of $34.50 for ambulance service to and from St. Luke’s Hospital, which expense was incurred with the knowledge and consent of the respondent, and claimant is entitled to reimbursement for these expenditures in the total amount of $234.50.

Lura Kingsley was employed to take and transcribe the evidence at the hearing before Commissioner Bast, and a charge of $10.00 was incurred for this service, which is reasonable and customary.

An award is therefore entered in favor of .claimant, Jennie Noonan, in the sum of One Thousand Four Hundred Seven Dollars ($1,407.00), all of which has accrued and is payable forthwith.

An award is also entered in favor of Lura Kingsley in the sum of Ten Dollars ($10.00).

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.”


text:
    (No. 3958
    Sarah Jessup, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    John M. Karns, James F. Wheatley, for claimant.
    George F. Barrett, Attorney General, C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

About midnight on the 11th day of November 1945, the claimant, Sarah Jessup, while walking on the sidewalk along St. Clair Avenue, East St. Louis, Illinois, on the south side thereof at a point approximately 50 feet west of First Avenue, fell into an excavation adjacent to a lot or parcel of land owned ’ and controlled by respondent.

The lot is described as 48 feet in width and having a frontage on the south side of St. Clair Avenue 52 feet westerly from First Avenue.

The State of Illinois acquired title to this parcel of land by filing a petition of eminent domain in the County Court of St. Clair County at Belleville; a jury trial was had on June 14 and 15, 1945. The jury rendered its verdict on June 15, 1945 and the decree was entered on July 6,1945 and an amended decree was entered in said Court on August 23, 1945.

Prior to the filing of said petition of eminent domain by the Department of Public Works and Buildings, said lot was owned by Eva Cohen, Isaac Cohen, et al, and prior to the time of the filing of said petition by respondent, had started the erection of a building on said lot. In the course of the construction approximately two feet of sidewalk had been excavated adjacent to said lot leaving an opening approximately two feet wide and about forty feet long running east and west. From the evidence it appears the opening was about 3 feet deep.

The evidence discloses that at the time of the accident, no flares were lit, nor guard rails erected of any kind to warn pedestrians who were travelling upon said sidewalk, except a small railing on the ends of the excavation, the north edge was unprotected and the sidewalk at that point was dark. As a result of the negligence of respondent in leaving said excavation unguarded, the claimant fell into it receiving severe injuries. Claimant was lifted from the excavation and placed in an automobile and taken to her home in St. Louis. On the following day she was removed to the Deaconess Hospital in said City on orders of her physician where a series of x-rays were made which disclosed that she had suffered a compressed fracture of the 8th thoracic vertebra, contusions, abrasions, and other injuries to her body. She remained in the hospital several days receiving treatment, was later removed to her home where she remained in bed under the care of her physician. On the 18th day of October 1946, the testimony in support of this claim was taken and at that time the testimony shows that she had, from the date of the accident to the taking of said testimony, suffered severe pain and on orders of her physician was wearing a brace on her back.- The medical testimony shows that the compressed fracture of the 8th thoracic vertebra was a permanent condition and it was the opinion of the physician who treated her that she would likely have to wear a brace throughout her lifetime.

At the time of the accident, claimant was 40 years of age, unmarried, and was employed at the St. Louis Post Dispatch Newspaper, St. Louis, Missouri, at a salary of $48.50 per week and that as a result of her injuries, lost considerable time at her employment. She has now resumed her employment. In an effort to become relieved and cured from her injuries she expended or became liable to pay $375.25 on account of physicians, hospital and incidentals incurred in connection with her said injuries. Under Section 7 Paragraph (C) of the Court of Claims Law, claimant is entitled to an award for damages.

An award is therefore hereby entered in favor of claimant, Sarah Jessup, in the sum of Two Thousand Three Hundred Seventy-Five ($2,375.25) Twenty-Five Cents.


text:
    (No. 3959-3960 Consolidated
    Joseph Pomprowitz, Doing Business as L. C. L. Transit Company, and Insurance Company of North America, Claimants, vs. State of Illinois, Respondent. AND Hartford Fire Insurance Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Myers and Snerley, for claimant.
    George F. Barrett, Attorney General and Wm. L. Morgan, Assistant Attorney General, for respondent.
   Eckert, C. J.

On August 21, 1946, in the afternoon, employees of the respondent excavated a hole in the paved highway known as Skokie Road, (U.S. Highway 41), at a point about 600 feet south of the Lake-Cook County line. The hole was made in the outside, southbound lane of the four lane highway, running north and south, at the extreme westerly side of the pavement. The hole was ten feet by ten feet, and approximately fifteen inches deep.

Early the following morning, between 4:30 and 5:30, while it was still dark, an employee of Joseph Pomprowitz, driving a tractor and trailer from Waukegan to Chicago, driving south on U. S. Highway 41, struck this hole. The right front wheel of the truck went into the hole; the tractor and trailer followed through, blowing out five tires on the right side, and overturned.

The claimants allege that the respondent failed in its obligation to maintain the highway in a reasonably proper and safe condition, and while making repairs, failed to exercise reasonable care and caution in keeping the highway safe for travel. Claimants allege that the respondent was negligent in failing to fill in the excavation, or in failing to maintain adequate and proper warning to the public of the existence of the excavation, or in failing to keep and maintain proper barricades around the excavation, or in failing to keep and maintain lighted flares around the excavation at night and during the early morning hours.

The claimant, Joseph Pomprowitz, claims damages to his tractor in the sum of $1,463.35, claims damages to his trailer in the amount of $938.34, and claims damages in the amount of $350.00 for the loss of use of the tractor and trailer while being repaired. At the time of the accident, he was insured by the claimant, Insurance Company of North America, against loss or damage to the tractor by collision in excess of $250.00 deductible, and against loss or damage to the trailer by colisión in excess of $250.00 deductible. The claimant, Insurance Company of North America, on September 10, 1945 paid to the claimant, Joseph Pomprowitz, d/b/a L.C.L. Transit Company, the amount of its liability on account of such insurance in the amount of $1,901.69, and thereupon became subrogated to that extent to the rights and cause of action of the claimant, Joseph Pomprowitz, d/b/a L.C.L. Transit Company, against the respondent.

The claimant, .Hartford Fire Insurance Company, alleges that at the time of the accident the refrigerator trailer was transporting goods and merchandise of the Kraft Foods Company, consisting of 11,880 pounds of Philadelphia Cream Cheese Curd of the value of $2,-959.12; that as a result of the negligence of the respondent, 3,093 pounds of this cheese curd, of the value of $770.16 was totally destroyed; that the Kraft Foods Company was forced to expend $121.32 in salvaging and reprocessing the balance of the cheese curd; and that the Kraft Foods Company suffered a total loss of $891.48 which the Hartford Fire Insurance Company has paid under an insurance policy issued by it to the Kraft Foods Company, insuring the company against loss or damage to the cheese curd while being transported. The Hartford Fire Insurance Company is therefore subrogated to- the rights and cause of action of the Kraft Foods Company against the respondent.

Claimant, Joseph Pomprowitz, d/b/a L.C.L. Transit Company, seeks an award for damages in the total sum of $850.00 as follows:

$250.00 damage to tractor for which he was not insured;
$250.00 damage to trailer for which he was not insured;
$350.00 damage for loss of use of tractor and trailer while being repaired.

Claimant, Insurance Company of North America, seeks an award for damages in the amount of $1,901.69, being the total loss and damage sustained to the tractor and trailer for which the claimant was liable under its policy of insurance. °

Claimant, Hartford Fire Insurance Company seeks an award for damages in the amount of $891.48, being the total loss and damage sustained to the cheese cargo for which claimant was liable under its policy of insurance.

Keith Walker Flynn, a witness for claimants, stated that on August 21 and 22, 1945, he was employed by Joseph Pamprowitz, d/b/a L.C.L.-Transit Company, as a transport driver; that on the early morning of August 22, he was driving a tractor and trailer, belonging to Pomprowitz, south on Skokie" Highway, U. S. Route No. 41, toward Chicago; that he was hauling a cargo of cream cheese curd from Beaver Dam, Wisconsin, the shipment being consigned by the Kraft Foods Company from Beaver Dam, Wisconsin, to the Kraft Foods Company in Chicago. The witness further testified that about 600 feet south of the Cook County line, while driving in the extreme right or extreme west lane of the four lane highway, while it was still dark, between 4:30 and 5:30 in the morning, he noticed a black spot in the highway about thirty-five or forty feet ahead of him. He testified that his lights were burning and his brakes were in good order; that when he was within five to ten feet of the black spot,.he saw that it was a hole; that he swerved to the left, but that he was unable to cut the truck short enough to miss it, and caught the right front wheel in the hole. The tractor and trailer followed through, blowing out five tires on the right side, and overturned. The witness stated that there was no barricade in front of the hole, and that there were no flares or lights of any kind around the hole.

The witness further testified that immediately after the accident he went back to the hole and found two flare pots on the grass at the side of the road, unlighted, filled with oil, and cold. He also found a piece of a barricade on the grass, five or six feet from the hole, at the side of the highway.

Edward W. Stapp, a witness testifying for claimant, stated that he was a soldier in the U. S. Army on August 22, 1945; that in his spare time he drove a cab for the Yellow Cab Company of Glencoe, Illinois that on the early morning of August 22, 1945, between four and five o’clock, while he was standing outside of the tavern, Skokie Gardens, on U. S. Route 41, he saw a truck pass the tavern, heard a noise, and saw the truck overturned. He testified that about one-half hour before he had driven south on U. S. Route 41 in his cab, and barely missed hitting the hole in the pavement; that at that time there was no barricade, nor light near this hole; that there were some barricades off the road to the right, but there were no barricades in front of the hole, and no flare pots.

Frank Glazic, a witness for the claimant, stated that on August 22, 1945 he was employed as driver for the Chair City Motor Express, driving one of its trucks from Wisconsin to Chicago; that about two o ’clock in the morning of August 22nd he was driving on the outside lane of U. S. Highway 41 going south; that he. saw the hole in the pavement when he was about ten or fifteen feet from it; that before he saw the hole he noticed a piece of broken barricade lying on the highway; That to avoid the barricade, he swung to the inner lane, and barely missed the hole. He testified that if it had not been for the piece of broken barricade he would not have swung to the inner lane; and that there were no flare pots and no barricade on the highway in front of the hole.

John L. Thomas, a witness testifying on behalf of the respondent, stated that he is a field engineer employed by the Division of Highways; that on August 21st, 1945, after the hole in U. S. Highway 41 had been cut, about 4:30 o’clock in the afternoon, the helper on the highway patrol filled all the flare pots and put up the barricades, ready for inspection, which took place between 5:00 and 5:30 in the evening. He testified that before he left the highway, the flare pots were lighted, and the barricades were in place, one barricade and three lights; that the flare pots burned kerosene; that there was no wind or rain that night; and that the hole which the truck hit was the farthest north of a series of excavations, the next excavation being between 500 and 600 feet south of the excavation in question. He testified that the flare pots burn a minimum of thirty hours.

Herbert Richardson, testifying on behalf of respondent, stated that at the time of the accident he was employed by the Division of Highways as a helper on' a truck; that on August 21, 1945, about 4:30 in the afternoon, he filled three flare pots with kerosene, lighted them, and placed them, with a barricade, before the hole; that after lighting the pots, he went away and did not return, but that the flare pots were all lighted the next morning except the flares at the place of the accident. He also testified that the flare pots hold about a gallon of kerosene.

There can be no question that the respondent in the construction, maintenance,- and repair of its highways has a duty to exercise reasonable care and caution to prevent injury to or destruction of life and property. Where the respondent, in the course of road repairs, leaves a deep excavation in the highway it is incumbent upon it to take reasonable measures to guard against 'injury to the public. Minimum safe-guards would be adequate barriers and suitable lights, warning of the hazardous arid dangerous situation.

Here there was neither barricade nor light at the hole in the pavement when the Pomprowitz truck approached. There had been neither barrier nor light for nearly three hours before this accident. Although the respondent’s employee testified that he filled the flares, and lighted them, the evidence is undisputed that they were full of kerosene when examined after the accident, and were lying in the grass, cold, some distance off the highway. If the respondent’s employee filled the flares, and if they were still full of kerosene at the time of the accident, they either had not been lighted at all, or had been lighted and almost immediately went out. It is exceedingly improbable that another motor vehicle broke the barrier and put out the flares prior to darkness. At that time of year it is not dark until 8:30 in the evening. If flares had been lighted, they would have burned at least four hours before darkness. Since they hold a gallon of oil, and burn thirty hours, they would have consumed almost a pint of kerosene.

It also seems quite improbable, if the barricade and flares had been properly placed on the pavement in front of the hole, that both of the flares would have been knocked off the pavement by another motor vehicle and set up nicely in the grass a considerable distance from the edge of the pavement. At least one of them, after such an accident, would have been found on the pavement, or in the large hole.

The highway in question is one of the heaviest travelled highways in the State of Illinois, both day and night, a fact well known to the respondent. After having made an extremely hazardous and dangerous excavation, the respondent put up a single barrier. It may or may not have lighted flares. No further attention was given to either barrier or flares after 5:30 in the afternoon. Neither was in place at 2 o’clock the following morning.

The Court is of the opinion that the respondent was negligent in the performance of its duty to the traveling public by failing to maintain, during the night of August 21st and the morning of August 22,1945, proper warning of the existence of this dangerous excavation. Respondent cannot meet its obligation to motorists traveling on a busy, four lane highway, in these days of almost continuous commercial and personal motor travel, by putting up a single barrier, lighting two or three flares in late afternoon, and returning the following morning with a hope and a prayer that all is well.

The record clearly shows that the respondent failed to perform its duty as imposed by law; and that claimants are without contributory negligence. All the allegations as to damages, and as to the insurance of the tractor, the trailer, and the cargo, are supported by competent evidence, and are not denied by the respondent.

Section 8, C, of the Court of Claims Act, however provides that an award for damages in a case sounding in tort shall not exceed the sum of $2,500.00 to or for the benefit of any claimant. An award to the Insurance Company of North America is for the benefit of Joseph Pomprowitz, d/b/a L.C.L. Transit Company; therefore awards to the Insurance Company of North America and to Joseph Pomprowitz, d/b/a, L.C.L. Transit Company may not exceed $2,500.00.

Awards are therefore entered as follows:

Joseph Pomprowitz, d/b/a L.C.L. Transit Company, Five Hundred Ninety-Eight and 31/100 Dollars ($598.31).
Insurance Company of North America, One Thousand Nine Hundred and One and 69/100 Dollars ($1 - 901.69).
Hartford Fire Insurance Company, Eight Hundred Ninety-One and 48/100 Dollars ($891.48).


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    (No. 3961
    Elmer Emory, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Robert H. Davis, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On June 22,1945 the claimant, Elmer Emory, an employee of the Department of Public Works and Buildings, Division of Highways, while mowing weeds and cleaning the back slopes of Illinois Route No. 1, west of Ridgway, in Gallatin County, Illinois, was struck by a car travelling south on the highway. He was thrown to the pavement and suffered a fracture of the left tibia.

Immediately following the accident, claimant was taken to Lightner Hospital, at Harrisburg, Illinois, and placed under the care of Dr. Joseph Lightner, who reported a diagonal fracture of the left tibia about the junction of the middle and upper third. X-rays were taken, the fracture was reduced, and put in a plaster cast. Claimant remained under the care of Dr. Lightner until January 19, 1946, when the doctor reported to the respondent that he had discharged claimant as of that date, and that claimant would be able to work on February 15,1946. Dr. Lightner also reported that there would be some permanent disability because of claimant’s fear to use his left leg and because “his age will probably hold him back some.”

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 decedent’s employment.

During the year immediately preceding the accident claimant’s earnings aggregated $1,426.75. He had no children under sixteen years of age dependent upon him for support. His compensation rate is therefore $13.72 per week. The injury having occurred subsequent to July 1,1943, this must be increased 17%%, making a compensation rate of $16.12. Respondent has paid to claimant, on account of temporary total disability, $16.12 per week from June 23,1945 to February 14,1946, or the total sum. of $545.77, and $149.00 on account of medical and hospital services.

Inasmuch as claimant’s temporary total disability terminated on February 14, 1946, he is not entitled to additional payments on account of temporary total disability. No claim is made for further medical or hospital services, so that the only question remaining is the nature and extent of claimant’s permanent disability.

At the hearing before Commissioner Jenkins, claimant' testified that his left leg was not strong; that he could not stand on it very long; that it swells each day; that he can not walk without the use of a cane; that he lives a quarter of a mile from town, and can walk that distance only with his cane; that it takes him 15 or 20 minutes for the walk; and that when he arrives in town he is so tired that he is required to rest for 30 or 40 minutes before he can walk again. Claimant also testified that he has not worked since the injury.

Dr. Joe Bryant, testifying on behalf of claimant, stated that a recent examination of claimant’s left leg disclosed swelling, pain, and limitation of motion. Dr. Bryant testified that the condition was permanent, and that the only work which claimant could do would be something sitting down. The doctor stated that he found an overriding of the fracture with a noticeable calcium deposit, and that there was a shortening of about one inch.

From the departmental report, which forms a part of the record in the case, from the testimony, and from the opinion of the commissioner who observed the claimant, the court is of the opinion that claimant has suffered a 50% permanent loss of use of his left leg. He is therefore entitled to an award for 50%., of his average weekly wage for 95 weeks, increased 17%%.

Doris Leavell of Shawneetown, Illinois, was employed to take and transcribe the evidence at the hearing before Commissioner Jenkins. Charges in the amount of $20.00 were incurred for these services, which charges are fair, reasonable, and customary.

An award is therefore entered in favor of Doris Leavell in the amount of $20.00, and an award is entered in favor of Elmer Emory, in the amount of $1,531.40, payable as follows:

$999.44, which has accrued, is payable forthwith;
$531.96, is payable in weekly installments of $16.12 per week, beginning April 24, 1947, for a period of 33 weeks.

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. 3963
    The Liquid Carbonic Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Claimant, pro se.
    George F. Barrett, Attorney General, for respondent.
   Eckert, C. J.

Respondent, through its Department of Public Health made duly authorized purchases of dry ice from the claimant during the months of May and June 1945, totalling Eighty-two and 68/100 Dollars ($82.68). The appropriations for the payment of these items lapsed before the invoices could be cleared for payment by the department. The invoices, however,. had been submitted within a reasonable time, and non-payment is without fault on the part of the claimant. Sufficient funds remained unexpended in the appropriations to pay for the same.

An award is therefore entered in favor of the claimant in the amount of Eighty-two and 68/100 Dollars ($82.68).


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    (No. 3973
    Anna Jenkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Meyer and Meyer, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

Claimant, Anna Jenkins, filed her claim on July 15, 1946 alleging that while in the performance of her duties as ward attendant at the Alton State Hospital she was attacked by an inmate on April 15, 1945 and, as a result thereof, she suffered serious and permanent injuries.

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 claimant’s employment.

On April 15, 1945, while claimant was attempting to ■ direct. a new patient to her chair, the patient became ■ violent and severely and repeatedly struck claimant upon her face, throat, chest and body. The patient was a powerful woman, weighing about 250 pounds. After completing her day’s work, claimant testified she felt weak and ill, and unsuccessfully tried to locate one of the hospital doctors. She then went home and placed herself in the care of Dr. Baker and stayed in bed for three weeks. After that, for a period of almost a year, it was necessary for her to stay in bed part of each day. During this time she was also treated by other doctors. Dr. James F. McFadden, who qualified as a specialist in nervous and mental diseases, testified that he examined claimant on August 5, 1946 and again on December 13, 1946; that claimant was suffering from a functional nervous disease known as neurosis; that in his opinion it was caused by the trauma she sustained at the time of the accident; that his prognosis as to her eventual cure was not favorable, and that sho would not be able to do any physical work. On cross examination he admitted that claimant’s menopause might have been a contributing factor to her present condition. In a lengthy medical report regarding claimant’s condition made by Dr. Dan Tucker Miller, which was submitted into evidence by stipulation, he states in his conclusion—

“In addition to the physical impairments above described, this woman gives every evidence of having a very serious neurosis. If it can be reasonably established that she did not suffer from this neurosis prior to the injury, it is my opinion that it has been caused by the accident. If she did have a functional nerve impairment prior to the accident of April 15, 1945 then, of course, the extent of same has been very greatly increased by the accident. Inasmuch as the neurosis has persisted for approximately twenty months, it is also quite well established that this patient will continue to suffer from this type of nerve ailment for months or years to come. Whether or not good treatment will eventually lead to recovery of this functional nerve ailment' is uncertain. As to the organic injuries involving the osseous system, these impairments are, of course, permanent.”

From the evidence, it would appear that claimant is suffering from a functional nervous disease aggravated by the accident, with the possibility that her menopause was a contributing factor.

The record shows that she was employed by the Bellefontaine Farms as cottage supervisor on June 6, 1946 at a monthly salary of $100.00. Whatever physical incapacity claimant now has, it apparently is partial, and payment of compensation, if any, would be under Sec. 8, Par. D of the Workmen’s Compensation Act. As there is no difference between the average amount which she earned before the accident and the average amount which she is now earning, an award cannot be made under the said Sec. 8, Par. D. u

Medical bills, were submitted as follows:
Dr. L. L. Baker................................................$10.00
Dr. James F. McFadden......................................... 53.00
Dr. George Ives, Clinical Laboratory........................... 5.00

The record does not disclose that these bills or any other medical charges were authorized by respondent, but to the contrary the Department of Public Welfare in their report say “Since Mrs. Jenkins did not report to a physician following her injury, we had no opportunity to examine her and determine the extent of her injury or recommend treatment or administer treatment following the injury, and cannot give additional evidence as to what injury she may have sustained.” Apparently claimant elected to employ her own doctors and this being the case, under paragraph (a) Section 8 of the Workmen’s Compensation Act, it necessarily must be at her own expense.

The earnings of persons- employed in a similar capacity as claimant earned $1,200.00 per year. Her average weekly wage would be $23.08 which would make her compensation rate $11.54 weekly, to which must be added 17%%, her accident having occurred after July 1943, making her total weekly compensation rate $13.56. Claimant is entitled to receive compensation for total temporary disability of $13.56 from April 16, 1945 to June 6, 1946 — 59 2/7 weeks — or $803.92, from which must be deducted the sum of $460.29 paid claimant for unproductive time, leaving a balance due her for total temporary disability of $343.63.

Floriene Strieker of Alton, Illinois, was employed to take and transcribe the evidence at the hearing before Commissioner Jenkins, and a charge for $15.60 was incurred for this service, which is reasonable and customary.

An award is therefore allowed to the claimant, Anna Jenkins, in the sum of $343.63, all of which has accrued and is payable forthwith.

An award is also made to Floriene Strieker for the sum of $15.60.

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. 3974
    Florence Howard, Widow of Carl B. Howard, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    A. Wadsworth Appleby, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On May 26, 1946, Carl B. Howard, an employee of the respondent in the Department of Public Welfare, while passing through the kitchen of the Illinois School for the Deaf at Jacksonville, Illinois, to inspect and service refrigeration equipment, slipped and fell upon the floor. The fall resulted in a fracture of his left femur.

Mr. Howard was immediately hospitalized at Passavant Memorial Hospital, Jacksonville, under the care of Dr. F. A.. Norris, Dr. Reginald Norris, and Dr. George L. Drennan. Mr. Howard died on June 10, 1946, as a result of a pulmonary embolus.

At the time of the accident, which resulted in the death of Carl B. Howard, the employer and employee 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 decedent’s employment.

Dr. F. A. Norris, a witness testifying for claimant, stated that immediately following the accident X-rays were taken which showed an entra-capsular fracture of the left hip. The hip was then pinned, and three days later four additional pins were inserted. One of these subsequently slipped out of place and Dr. Norris felt it should be removed to prevent its interfering with the desired result. Two days later the offending pin was taken out and replaced; on June 10th the decedent had “a typical pulmonary embolus,” which was massive and fatal. Dr. Norris testified that the injury was the direct cause of the death, an embolus being' one of the great hazards of surgery.

Mr. Howard’s earnings during the year immediately preceding his death were $2,670.00; claimant therefore is entitled to an award in the sum of $4,000.00. Since the death occurred subsequent to July 1, 1945 this must be increased 20%, making a total of $4,800.00. The compensation rate is the maximum of $15.00 per week, increased 20%, or $18.00.

An award is therefore entered in favor of the claimant, Florence Howard, in the amount of $4,800.00 to be paid to her as follows:

• $ 828.00, accrued, is payable forthwith;
$3,972.00, payable in weekly installments of $18.00 per week, beginning on the 29th day of April, 1947, for a period of 220 weeks, with an additional final payment of $12.00.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

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.”