text:
    (No. 3055
    George B. Richardson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Weilepp & Wilson, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and C. Arthur Rebel, Assistant Attorneys General, for respondent.
   Eckert, J.

On October 29, 1932, claimant and respondent entered into a contract for the construction of State Bond Issue Route No. 177, Federal Aid Project No. E-223, Section 109-B, Washington County, Illinois, at a cost of $17,325.50. The improvement included the construction of one reinforced concrete deck girder bridge and the widening of a second bridge. On February 24, 1933, )vhile the claimant was engaged in the performance of his contract, he was notified by the respondent to- suspend immediately all operations under the contract. On September 7, 1933, the respondent requested claimant to submit all bills for work which had been completed, including extras. In accordance with this request, claimant submitted fifteen bills, totalling $6,234.12. Claimant now seeks an award in that amount for damages allegedly sustained by respondent’s failure to allow claimant to complete his contract.

On June 18, 1935, claimant was notified by the Department of Public Works and Buildings, Division of Highways, to proceed with the completion of the contract. Following receipt of this notice, on June 25, 1935, claimant wrote to the Chief Highway Engineer of the Division of Highways stating':

“. . . In view of the fact that the .cost of doing business is considerably greater now, than when the work was ordered discontinued, I wish to request a release from this contract, and also respectfully request permission to bring suit before the Court of Claims for any items of extra bills arising from the stoppage of work, which you may not see fit to allow or are not authorized to allow in this connection.”

Under date of July 16, 1935, the Engineer of Construction replied to the above letter as follows:

“This acknowledges your letter of June 25th addressed to Mr. Lieberman. I have discussed this matter with Mr. Lieberman, and we are arranging for a formal annullment of this contract, bearing in mind, of course, the last paragraph of your letter which refers to your request to bring suit before the Court of Claims for certain extras which were incurred on account of shutting down of this job.”

Under date of August 20, 1935, after submitting to claimant a supplemental agreement, C. M. Hathaway, Engineer of Construction, in a letter to claimant stated:

“We understand that the signing of this supplementary agreement does not in any way prejudice your application to file a claim for alleged losses due to the closing down of the contract in the manner as ordered, and we likewise understand that the signing of this supplementary agreement should not in any way prejudice the claim itself.”

Oil August 26, 1935, claimant and respondent executed the supplementary agreement, which, in substance, relieved claimant from the completion of the work remaining undone under the terms of the original contract, and which provided in part as follows:

“For and in consideration of the mutual interest of the interested parties, it is hereby mutually agreed that the above mentioned contract be modified by striking from said contract certain portions of the work hereinafter described.”

The Standard Specifications for Eoad and Bridge Construction; adopted by the Department of Public Works and Buildings of the State of Illinois on January 2, 1932, and forming a part of the original contract, provide in part as follows:

“Whenever the improvement provided for by the contract shall have been completely performed on the part of the Contractor, and all parts of the work have been approved by the Engineer and accepted by the Department, a final estimate showing the value of the work will be prepared by the Engineer as soon as the necessary measurements and computations can be made, all prior estimates upon which payments have been made being approximate only and subject to the correction in the final payment. The amount of this estimate, less any sums that have been deducted or retained under the provisions of the contract, will be paid to the Contractor as soon as practicable after the final acceptance, provided the Contractor has furnished to the Department satisfactory evidence that all sums of money due for any labor, materials, apparatus, fixtures, or machinery furnished for the purpose of such improvement have been paid or that the person or persons to whom, the same may respectively be due have consented to such final payment.
“The acceptance by the Contractor of the last payment as aforesaid shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act or neglect of said Department relating to or connected with this contract.”

A final estimate was prepared by the Department of Public Works and Buildings pursuant to this provision; such final payment estimate for $681.54 was scheduled for payment to claimant; on September 23,1935, the Auditor issued State Warrant No. 154620, in the amount of $681.54 payable to claimant; this warrant was sent to claimant, was received, accepted, and deposited for payment by claimant, and was paid by the Auditor of Public Accounts as of September 29, 1935.

It is the claimant’s contention that such payment is not a defense to this claim; that the release provisions of the original contract are not applicable because of the execution of the supplemental contract, and because of the correspondence between the claimant and respondent which preceded its execution. There is nothing in the correspondence, however, to indicate an agreement upon the part of the respondent to waive any provision of the original contract. The correspondence merely stated that the signing of the supplemental agreement would not in any way prejudice the claim. It has not done so, and therefore it is not necessary to consider the question of the authority of C. M. Hathaway, Engineer of Construction, or of Ernest Lieberman, Chief Highway Engineer, to make such an agreement. It is to be noted, however, that neither Hathaway nor. Lieberman was the Director of the Department of Public Works and Buildings, and that neither can exercise the power of the Director of the Department to contract on behalf of the State of Illinois. (L. B. Strandberg & Son Co. vs. State, opinion filed September 14, 1943.)

The supplementary agreement also fails to sustain claimant’s contention. That agreement modified the original contract only by striking the items of work which claimant had not completed. Otherwise the original contract remained in full force and effect. It contains no waiver of the respondent’s defense of final payment. The execution of the supplemental contract was for the benefit and relief of the claimant, and was a modification, limited and specific.

Claimant relies upon the case of Moore Brothers Construction Company vs. State, 10 C. C. R. 625, a suit arising out of the same construction in which claimant was engaged. There, however, no question of final payment was raised or considered by the court in the determination of the case.

From the record here it appears that final payment was tendered and accepted by claimant. The specifications forming a part of the contract provided that acceptance of final payment should be a release of all claims and liability. Claimant’s acceptance of final payment thus constituted a full release to the respondent. (Henkel Construction Co. vs. State, 10 C. C. R. 538; L. B. Strandberg & Son Co. vs. State, supra.)

Claim dismissed.


source: Caselaw Access Project

author: Fisher, J.

license: Public Domain

text:
    (No. 3204
    Catherine Voitik, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

      Rehearing denied November 14, 1944-

    Bat F. Faulkner, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and Robert V..Ostrom, Assistant Attorneys General, for respondent.
   Fisher, J.

We considered this claim at the September, 1943, term of this Court. We found at that time that the proof of claimant’s ownership of the land in question was insufficient, and claimant was granted additional time to make proper proof.

The claim was filed February 14,1938, and the record completed July 26, 1944. The claim is for damages to real estate, alleged to be owned by claimant, caused by the construction of the East approach to the McDonough Street bridge across the DesPlaines River and the Illinois Michigan Canal at McDonough Street, Joliet, Illinois. Claimant seeks damages in the sum of $3,000.00.

The record now consists of the complaint, transcript of testimony, supplemental proofs by claimant filed November 3, 1943, statement, brief and argument on behalf of respondent, motion of respondent for leave to present further evidence, and waiver by respondent of the right to present further evidence.

The complaint alleges that the damages were sustained as a result of a change in the street grade, raising the grade about seven feet at one point of the property and sloping eastward to about the old grade at the easterly point of the property. The material allegations of the complaint are sustained by the evidence.

Article 2, Section 13 of the Constitution of Illinois provides: “Private property shall not be taken or damaged for public use without just compensation.”

Any change in the grade of a street, by which ingress and egress from the private property of an owner is obstructed amounts to damaging property for public use within the meaning of Article 2, Section 13 of the Constitution of Illinois. This has been held in a great number of cases, among the most recent of which is People vs. Kelly, 361 Illinois 54.

In order to determine the fair and reasonable amount of damages sustained by claimant, this Court found it desirable to view the property involved and make an investigation of the value thereof, and from such view and investigation, and from all the evidence before us, we are of the opinion that claimant has sustained damages in the sum of Seven Hundred Fifty Dollars ($750.00) and is entitled to an award for such sum.

An award is entered in favor of claimant, Catherine Voitik, in the sum of Seven Hundred Fifty Dollars ($750.00).


author: Fisher, J. Chief Justice Damron. FlSHER, J.

text:
    (No. 3539
    Cecile N. Mullinax, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

      Dissenting opinion filed by Chief Jtistice Damron.

      Modified opinion filed September 12, 1944.

    it. E. Boley and Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant, Cecile N. Mullinax, is the widow of Rollie E. Mullinax, deceased, who was formerly employed by the Department of Public Welfare of the State of Illinois as an attendant at the Manteno State Hospital. During the month of August, 1939, in the course of his employment, the deceased was required to attend patients who had contracted typhoid fever. On or about August 10, 1939, the deceased became ill with typhoid fever and died on September 10, 1939, as a result of such illness. The earnings of the deceased during the year preceding his death were Nine Hundred Eighteen Dollars ($918.00). He left no children under sixteen (16) years of age at the time of his death. Claimant seeks an award in the sum of Ten Thousand Dollars ($10,000.00).

The record consists of the Complaint, Amended Complaint, Stipulation, Waiver of Statement, Brief and Argument by both Claimant and the Attorney General, Hospital Records and the Testimony of Cecile N. Mullinax and Daniel K. Hur, treating physician.

At the time of his illness, the deceased and Respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the law.

There is some divergence between the allegations of the complaint and the evidence herein, and many allegations of the complaint are not sustained by the evidence. However, the material and pertinent allegations — that the deceased was an employee of the respondent at the Manteno State Hospital as an attendant; that an epidemic of typhoid fever existed at the said hospital; that during the time of said epidemic and during the time of his employment the deceased contracted typhoid fever and died as a result thereof; are all fully sustained by the evidence.

It is stipulated, among other things, by claimant and respondent, that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939.

The facts herein are similar to the ease of Mary Ade, Claimant, vs. State, No. 3429, determined at the September, 1943, term of. this Court, in which case we discussed the law at length, which controls in this case. We concluded that under such facts, a claimant is entitled to the benefits of the Workmen’s Compensation Act.

We conclude from the facts herein that Rollie-E. Mullinax, during the course of and out of his employment at the Manteno State Hospital, contracted typhoid fever and died as a result thereof, and that his widow, Ceeile N., Mullinax, is entitled to compensation therefor in accordance with the provisions of Section 7 (a) of the Workmen’s Compensation Act.

An award is therefore entered in favor of Ceeile N. Mullinax, in the sum of Three Thousand Six Hundred Seventy-two Dollars ($3,672.00), payable Two Thousand Seventy Dollars and Ninety Cents ($2,070.90) which is accrued and payable forthwith, and the balance of One Thousand Six Hundred One Dollars and Ten Cents ($1,601.10) payable in weekly installments of Bight Dollars and Eighty-five Cents ($8.85) each beginning March 17, 1944.

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.”

Dissenting Opinion by

Chief Justice Damron.

I cannot agree with the majority opinion allowing an award for the death of Rollie E. Mullinax.

The claimant in this case avers that Rollie E. Mullinax died as a result of drinking polluted water which contained typhoid bacteria, furnished by the Manteno State Institution to him while an employee of the State at said institution, and that his death thereby was caused by the carelessness of the Director of the Department of Welfare and the superintendent of the institution. That both the director and the superintendent had been advised and informed that the drinking water, furnished the inmates and the employees of the institution contained typhoid bacteria and contained dangerous elements prior to the beginning of the illness of the deceased. That their failure to take such steps or precautions to guard the health and safety of the employees and inmates of the institution was negligence, carelessness and dereliction.of duty.

There is no evidence whatever supporting these allegations. No reference is made to the water being polluted in the evidence.

The question of whether or not the water at the institution was contaminated by typhoid bacilli has been litigated considerably in the case of the People of the State of Illinois vs. Bowen, 376 Ill. 317. There was no proof that typhoid bacilli was found in the drinking water of the Manteno State Hospital. There was no report of the Department of Health within seven or eight months of the outbreak of this epidemic showing that the water was polluted. There was a total failure to prove in the Bowen case that the water was polluted with typhoid bacilli; also there was a total failure to prove that there existed any defect or leak in the sewage system of the institution.

The evidence in this case shows that this claimant worked at said institution but resided in the Village of Manteno. The typhoid epidemic was not wholly confined to the Manteno State Hospital but had spread to other towns and villages in that section of the State, and this Court cannot assume that he was injured by reason of drinking polluted water furnished by the respondent when the record is devoid of such proof.

I agree with what was said in Schwartz, et al., vs. Ind. Com., 379 Ill. 139:

“It is not sufficient that an accidental injury was received by an employee in the course of his employment, but it must arise while he is acting within the duties of his employment or doing some act incidental thereto, and both elements must be present at the time of the injury in order to justify compensation, the burden of proof being on the claimant to establish both elements by clear and convincing evidence.”

In the case of Anna A. Esker, Admx., et al vs. State, 12 C. C. R. 344, which this Court had under consideration in the January Term, 1943, the claimant, Anna A. Esker, alleged that Lawrence Esker, deceased, contracted typhoid fever on the 16th day of October, 1940, in connection with his duties, by drinking water which was contaminated. The evidence showed that the crew with whom Esker worked had been away from home during the week and returned home on weekends; that during the week they would stay at hotels or rooming houses in cities near their work; that they would have their meals in restaurants; that they would take water out with them when they went out on the job; also that most of their water was obtained from wells, cisterns or some farms or residences near their work. The evidence did not show that any tests were made of any of the sources of the water supply to determine if any of them were contaminated with typhoid germs. An award was denied in this case and we said:

“The applicant has the burden of proof upon every essential element of a right to compensation, and the proof required is that he established" every disputed question of fact as to such right, by a preponderance or greater weight of the competent evidence, and no award can be based upon speculation, surmise, conjecture or upon a choice between two views equally compatible with the evidence.”

And we cited Bauer & Blach vs. Ind. Com., 322 Ill. 165; Madison Coal Companies vs. Ind. Com., 320 Ill. 298.

We further said:

“It is a generally accepted view that typhoid fever is contracted by food or liquids taken through the mouth. The deceased may have contracted his disease by the food, milk or water which he consumed at home * * *. For this Court to conclude that the typhoid fever contracted by the deceased was a result of drinking water obtained from sources of supply through the project on which he was working, would be to indulge in speculation, surmise and conjecture, and would not be based upon competent evidence before it.”

In the case now before the court, the deceased worked at the Manteno State Hospital in the daytime, had one meal a day at the institution and lived at his home in the Village of Manteno. There seems to be no question that he died with typhoid fever, but it is just as reasonable to suppose that he contracted this disease at his home as it would be to conclude that he contracted it at the institution of the respondent.

An award of compensation, to be sustained, must be founded upon facts and inferences reasonably drawn from facts proved by the evidence and cannot be based upon guess or conjecture. Likewise, the burden is on the claimant for compensation to prove that the death of the employee was the result of an accident arising out of and in the course of his employment. This she has failed to do. Fittro vs. Ind. Com., 377 Ill. 532.

The evidence in this case does not support an award.

(Award Modified.)

Workmen's compensation act — when remarriage of widow of employer extinguishes right to further compensation. Under the provisions of Section 7, par. (a) of the Workmen’s Compensation Act, upon the remarriage of a widow of a deceased employee, her right to receive compensation awarded for his death is extinguished. The decedent having left no children under the ages of sixteen years at the time of his death.

Same — Attorney’s lien for services — awards not subject to. Under Section 21 of the Workmen’s Compensation Act no payment, claim, award or decision made under the Act shall be subject to any lien.

FlSHER, J.

In an Opinipn heretofore filed in this cause at the March, 1944, term of this Court, claimant was allowed an award of Three Thousand Six Hundred Seventy-two Dollars ($3,672.00).

The matter now comes before the Court on motion of claimant, by B. E. Boley, her attorney, together with affidavit signed by claimant stating that claimant, Cecile N. Mullinax, was married on May 19, 1943, to William McComb and requesting that payments be made to Cecile N. McComb, claimant’s present name.

The Court is further advised that the warrants which were issued in this case, amounting to Two Thousand One Hundred Six Dollars and Thirty Cents ($2,106.30), have never been delivered to claimant and are in possession of the State Auditor of Public Accounts.

Under Section 7, par. (a) of the Workmen’s Compensation Act, claimant’s right to compensation ceases on the day of her marriage, to-wit: May 19, 1943, the decedent having left no children under the age of 16 years at the time of his death.

Notice of lien for attorney fees was filed by B. E. Boley, First National Bank Building, Olney, Illinois, who represented claimant in this case.

Section 21 of the Workmen’s Compensation Act states that * * * “No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages” * * * and, as stated in Woodruff vs. Mutual Life Insurance Company of New York, 223 Ill. App. 462, on page 464, “The words ‘any lien’ in Section 21 referred to obviously include the liens provided for by the act creating attorney’s liens.” Accordingly, the said claim for lien for attorney’s fees must be denied.

Claimant would, therefore, be entitled to an award of One Thousand Six Hundred Ninety-nine Dollars and Twenty Cents ($1,699.20) instead of Three Thousand Six Hundred Seventy-two Dollars ($3,672.00), being compensation for the period from September 10, 1939, to May 19, 1943, 192 weeks at $8.85 per week. The award heretofore made to the claimant at the March, 1944, term of this Court in the sum of $3,672.00 is hereby reduced to the sum of $1,699.20, all of which sum having accrued, is payable forthwith.

It is ordered that the said sum of $1,699.20 be, and is, hereby payable to Cecile N. McComb.

It is further ordered that the lien filed for attorney’s fees by E. E. Boley be, and is, hereby denied.

It is further ordered that the State Auditor of Public Accounts cancel and extinguish warrants which have heretofore been issued in this cause to Cecile N. Mullinax in the sum of $2,106.30, and that the State Auditor of Public Accounts issue in lieu thereof warrants in the sum of $1,699.20 to Cecile N. McComb.


text:
    (No. 3637
    Marilyn Sue Newman, Minor Daughter of Ralph Newman, Deceased, by and Through Her Next Friend, Natural Guardian and Mother, Mary Catherine Caulk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    M. J. Hanagan, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

In an Opinion heretofore filed in this cause at the January, 1942, term of this Court, entitled Mary Catherine Newman, Claimant, vs. State of Illinois, Respondent, No. 3637, an award was made of $4,832.90.

The matter now comes before the Court for a modification of our previous award, on the grounds that Mary Catherine Newman, widow of Ralph Newman, deceased, married Wade L. Caulk on May 1, 1943. Under the provisions of Section 7, par. (a) of the Workmen’s Compensation Act, she is not entitled to any future benefits, and all payments due under our previous award subsequent to May 1, 1943, are due and payable to Marilyn Sue Newman, the minor daughter of Ralph Newman, deceased. Payments were made to claimant up to April 12, 1943, when they were discontinued, and amounted to the sum of $1,356.90, leaving the unpaid balance of the award $3,476.00.

The award heretofore entered in this cause is hereby modified to the effect that the unpaid balance of $3,476.00 is payable as follows:

(1) The sum of $44.79 is payable to Mary Catherine Caulk, as compensation from April 12, 1943, to May 1, 1943, a period of 2-5/7 weeks;

(2) The balance of said award, to-wit: $3,431.21 is payable to Marilyn Sue Newman, the minor daughter of Ralph Newman, deceased, by and through her next friend, natural guardian and mother, ’ Mary Catherine Caulk; and the said sum of $3,431.21 is payable as follows:

(a) The sum of $1,171.50, compensation for a period of 71 weeks for the period May 1, 1943, to September 11, 1944, is payable forthwith;

(b) The balance of $2,259.71 is payable in 136 weekly installments of $16.50, commencing September 18, 1944, and one final payment of $15.71.


author: Eckert, J.

text:
    (No. 3617
    Edward Coughlin, Sr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

      Rehearing denied November 14, 1944-

    William J. Aplington, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and Robert Y. Ostrom, Assistant Attorneys General, for respondent.
   Eckert, J.

Claimant, Edward Coughlin, Sr., is the father of Edward Coughlin, Jr., deceased, a former air compressor operator employed by the Department of Public Works and Buildings of the State of Illinois. About nine-thirty o’clock on the morning of December 31, 1940, while the deceased was driving a truck of the respondent, the truck was struck by a train on the tracks of the Chicago and Alton Railroad Company. Edward Coughlin, Jr., was instantly killed.

The deceased was first employed by the Department for continuous service as a skilled laborer on March 6, 1935. On July 19,1937, he was assigned to duty as an air compressor operator, his duties including the driving of the motor-driven truck containing an air compressor. His wages during the year next preceding his death were $1,276.80.

Coughlin was unmarried, and left surviving him his father, Edward Coughlin, Sr., the claimant, sixty-five years of age at the time of the accident, three surviving sisters and four nieces and nephews, children of a deceased sister. Two of his sisters were married and living away from home. His four nieces and nephews made their home with the deceased, and with Ms father and unmarried sister, but the four nieces and nephews were supported by one of them who worked and by their father who did not live in the same house. The claimant was not employed, owned no property whatsoever, and was supported by his single daughter, Charlotte and the deceased, in the proportions 12/22 by the deceased, and 10/22 by the daughter. During the year preceding the death of the deceased, Charlotte earned $1,051.54. Claimant seeks an award under the provisions of the Workmen’s Compensation Act.

At the time of the accident, 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 witMn the time provided by the Act. The respondent contends, however, that the accident did not arise out of and in the course of the employment.

At the time of the accident, Coughlin, with the consent of his superior, was staying at the Stewart House Hotel, located at Van Burén and Water Streets, in the City of Wilmington, Illinois. He was instructed by his superior to use the respondent’s truck only while doing respondent’s work, and to take the shortest available route to and from his work. He was also required to report for work at seven thirty o’clock in the morning. The hotel is two blocks north of Alternate U. S. Route No. 66. Claimant’s work was at the intersection of Regular U. S. Route No. 66 and U. S. Route No. 6. The intersection of these two highways was a mile and a half west of and ten miles north of the hotel.

On the morning of the accident, Coughlin left the hotel, proceeded two blocks southeasterly on Water street, then northeasterly on Alternate H. S. No. 66 through the City of Wilmington, and then directly north on Alternate U. S. No. 66 until he turned east at a point a few miles north of the intersection of Kankakee River Drive and Alternate U. S. No. 66, to stop at the Elwood Ordnance Plant. At the Ordnance Plant he talked to two foremen about securing a job. He then drove back to Alternate U. S. No. 66, drove south until he reached the Kankakee River Drive, which extends in a westerly and northwesterly direction between Alternate U. S. No. 66, and Regular U. S. No. 66, and then drove west on Kankakee River Drive. For a distance of about four thousand feet extending immediately west of U. S. Alternate No. 66, Kankakee River Drive was then a gravel road in fair condition. Beginning at a point four thousand feet west of Alternate U. S. No. 66, extending from such point to Regular U. S. No. 66, Kankakee River Drive had an improved surface. The Chicago and Alton Railroad crosses Kankakee River Drive at a point two thousand six hundred feet west of Alternate U. S.'No. 66. Coughlin, driving West on Kankakee River Drive, was killed at this intersection.

The claimant contends that the deceased at the time of the accident was at a place where he reasonably had a right to be in the course of his employment, that he was then and there on duty, and that therefore his death is compensable. He contends that when Coughlin left the intersection of Alternate U. S. No. 66, and Kankakee River Drive, and went North to the Elwood Ordnance Plant, he was temporarily on an errand of his own and outside of the course of his employment; that after he returned from the Ordnance Plant, again reached the intersection, and started west along Kankakee River Road, he was back in the course of his employment; that from the moment that he turned west on Kankakee River Drive, he was in such a reasonable and proper place as he would have been had he left the hotel for his place of duty and not gone to the Ordnance Plant.

A person leaving the Stewart Hotel to go to the intersection of Regular U. S. No. 66 and U. S. No. 6, where the deceased was employed, has a choice of three routes. (1) He might go southwesterly from Wilmington on Alternate U. S. No. 66 to Regular U. S. No. 66, and then straight north on Regular U. S. No. 66 to the intersection. . This route would be the longest, but also the only route entirely of concrete. (2) Or he might go northeast by Alternate U. S. No. 66 to its intersection with the Kankakee River Drive, then west and north along Kankakee River Drive, thus passing the scene of the accident. (3) Or he might go north from the Stewart Hotel by what is known as the “stub” road along State Aid Route No. 44 to the Kankakee River Road, and then ón to Regular U. S. No. 66. This is the shortest route and is approximately one and one-fourth miles less than by way of Alternate 66 and Kankakee River Drive. From an inspection of the maps offered in evidence, this third route is obviously the direct route from the hotel to Coughlin’s place of, employment.

The respondent contends that the deceased was not killed in the course of his employment because he was using the respondent’s truck for an unauthorized purpose, and was not performing any duties of his employment when the accident occurred; that even if Coughlin had intended to report at the junction of U. S. 6 and 66 to perform his work, he had chosen a circuitous way for his own benefit, and incurred risks which did not arise out of and in the course of his employment; that not having returned to the regular course of his employment at the time he was killed, his death did not arise out of his employment. Respondent contends that had the claimant not met with the fatal accident, he could have continued in a westerly direction until he reached State Aid Route No. 44, at which time he could have gone south, and returned to the City of Wilmington, or he could have followed the River Road to the junction of Routes 6 and 66, or he could have proceeded to his home in LaSalle.

It is clear from the testimony and the exhibits, that the shortest route available to the deceased from his hotel to his work was over the “stub,” State Aid Route No. 44, and the Kankakee River Road, which deceased would have reached in a short time if he had not been struck by the train. Since the deceased was using the respond-ent’s truck in an unauthorized manner, since he had not reported for work at the required hour, the fatal accident occurring some two hours thereafter, and since he had not yet reached any part of what is clearly the direct route to his employment, it is speculative at best to assume that he was on his way to work when the accident occurred. He had unquestionably been on a mission of his own from which he had not returned when he was killed. Claimant’s contention that State Aid Route No. 44 was not a fully paved way and went partly through a congested portion of Wilmington, that others often used Alternate U. S. Route No. 66 to reach the point where the deceased turned west to the River Road, does not change the fact that the obviously direct route to Coughlin’s place of employment was by State Aid Route No. 44.

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 orbit, area, or sphere of duty. It is a question of fact. (Schafer vs. Industrial Commission, 343 Ill. 573.) Where an employee goes upon a personal mission, and while on such mission an accident occurs, the accident clearly does not arise out of and in the course of the employment. Although the personal mission may have been accomplished, unless the employee is once more engaged in the duties of his employment when the injury occurs, it is still not compensable. The Workmen’s Compensation Act should receive a liberal construction, so that its beneficent intent and purpose may be reasonably accomplished, but its benefits cannot be extended to cover injuries which do not occur in the course of and arise out of the employment. The words “arise out of” have reference to the cause or origin of the accident; the accident must happen out of the transaction of the business in which the workman is engaged. (United Disposal Company vs. Industrial Commission, 291 Ill. 480.) When Coughlin chose to go on a mission of his own, he was clearly transacting his own business. The fact that- the mission had been completed, that he was on his way to an unknown destination, and had readied a point which he might have reached by taking an indirect route to reach his employment, had he gone to his employment rather than upon a mission of his own, is insufficient to justify a holding that the fatal accident happened out of the transaction of the respondent’s employment.

The court is of the opinion that the accident did not arise out of and in the course of the employment of Edward Coughlin, Jr.

An award is therefore denied.


author: Chiee Justice Damron

text:
    (No. 3665
    Leo J. Hahn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Lisle W. Menzimer, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chiee Justice Damron

delivered the opinion of the court:

This complaint was filed on November 28, 1941, for benefits under the Workmen’s Compensation Act; claimant seeks an award for total disability.

The record discloses that this claimant was first employed by the respondent in the Division of Highways in February, 1933, as a maintenance patrolman. On July 2, 1940, claimant was injured while engaged in cutting-grass and weeds with a mower on U. S. Route 20, about one mile east of Pecatonica Corners, Winnebago County. The injury occurred when claimant stepped into a concealed hole, causing an injury to his hack.

Claimant continued work until the 15th day of July, 1940, at which time he placed himself under the care of a physician. Later the respondent had him transferred to Chicago, there to be under the care and observation of Dr. H. B. Thomas, orthopedic surgeon.

From the 15th day of July, 1940, to the 25th day of November, 1940, claimant was under the care of Dr. Thomas. He recommended that claimant return to light work. On the last mentioned date, claimant returned to his work on orders of this doctor and continued in his employment until the 7th day of December, at which time he ceased his employment and again was under the care of physicians until the 10th day of February, 1941. On that date he found other employment, selling feed to dealers, which he continued to follow until June 10,-1941. While employed as a salesman, as aforesaid, he testified he was only able to work part time, and that as a result of his condition he earned approximately $50.00 per month. On June 10,1941, he found he was able to devote full time to his employment and has been employed regularly since then.

The report of the Division of Highways filed herein shows that-all medical, surgical and hospital bills were paid by the respondent and that claimant was paid compensation by the Division of Highways for temporary total disability for periods from July 16 to November 24, inclusive, and from December 8 to December 11,1940, inclusive, a total of 19 weeks, amounting to the sum of $447.70.

From a consideration of the record herein, the Court finds:

That the claimant and the respondent were, on the 2nd day of July, 1940, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned said claimant sustained accidental injuries which arose out of and in the course of the employment; 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 óf the claimant, during the year next preceding the injury, were $1,620.00, and that the average weekly wage was $31.15;

That claimant, at the time of the injury, was 41 years of age, and had three children under sixteen years of age;

That necessary first aid, medical, surgical and hosr pital services had been provided by the respondent herein;

That as a result of said accidental injury, and commencing on the 15th day of July, 1940, until the 25th day of November, 1940, and from the 7th day of December to the 10th day of February, the claimant was totally incapacitated for work and is entitled to have and receive an award for twenty-eight weeks, at $19.80 per week, totalling $554.40;

That from February 10 to June 10, 1941, claimant was employed and earned approximately $50.00 per month. This amounts to the sum of $19.61 less per week than he was able to earn before the accident. Under Section 8, paragraphs (d) and (h) of the Act, claimant is entitled to 50% of the difference between the average amount he earned before the accident and the average amount he earned after the' accident. His earnings lessened to that extent for a period of 18 weeks, amounting to the total sum of $352.98. This makes a total award due this claimant of $907.38. Of that amount the sum of $447.70 has been paid to claimant by the respondent for unproductive work, which must be deducted.

An award is hereby entered in favor of claimant, Leo J. Hahn, in the sum of $459.68, all of which has accrued and is now payable in a lump sum.


author: Chief Justice Damron

text:
    (No. 3721
    William F. Lynch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Charles V. Falkenberg, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claimant is a doctor of dental surgery, and as such was employed by the respondent under; Civil Service Regulations as a junior dentist at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois, which is operated under the Department of Public Welfare of this State.

Having been suspended by the managing officer of said institution on the 6th day of October, 1941, he seeks an award for time lost due to said suspension from that date until his reinstatement on January 2, 1942.

This record consists of the complaint, statement, brief and argument of claimant, report of the Department of Public Welfare, and statément, brief and argument of respondent.

It appears from the record that on and prior to the 6th day of October, 1941, he Was employed by the Department of Public Welfare as Attending Junior Dentist and assigned to the above named institution. That he had so been employed since the 10th day of January, 1938. That on the 6th day of October he received a notice of suspension from the managing officer of said institution and following this, formal charges of inefficiency, etc., were preferred against him by Rodney H. Brandon, Director of the Department of Public Welfare, Dr. William 0. Daniels and William E. Hogan, before the Illinois Civil Service Commission. As a result of said suspension order, the claimant was idle from October 6, 1941, until January 2, 1942,' and seeks an award for his salary and maintenance for October, November and December, 1941, totalling the sum of $600.37.

Prom an examination of this record, we find that following the formal charges preferred against this claimant before the Civil Service Commission, that a hearing on these charges,was set for the 1st day of November, 1941, but was continued at the request of Dr. Lynch to the 22nd day of November, 1941, and was again continued on that date at his request until the 6th day of December, 1941. On that day a full and complete hearing was had before said Commission and on the 10th day of December, 1941, the following order was issued by the Civil Service Commission:

“And the said Commission having regularly met and considered the finding of the said board, same is hereby approved, ratified and confirmed. '
“And by reason whereof it is the decision of the Illinois State Civil Service Commission that the said Dr. William F. Lynch be re-' turned to the certified position of Junior Dentist effective January 2, 1942, suspension being approved to that date. Further, that Dr. Lynch be assigned to another State Institution by the Director of Public Welfare.”

The receipt of this order by the Department of Public Welfare, and in compliance with said order, the Department directed the claimant to report to the Dixon State Hospital on January 2, 1942, as attending Junior Dentist, which was the date set by the Civil Service Commission for his reinstatement. It is not clear from the record whether Dr. Lynch accepted this employment, but it does show that he requested a leave of absence almost immediately after his reassignment to Dixon State Hospital.

The claimant takes the position that the order of suspension by the Civil Service Commission was not justified or sustained by the evidence. Further, that the order was erroneous and void, was contrary to public policy and should be disregarded by this court in passing upon the merits of this claim.

The respondent files a motion to dismiss on the ground that claimant was suspended according to law and is not entitled to any salary or maintenance from the date of his discharge or suspension to the date of his reinstatement on January 2, 1942.

But one question appears to be involved in the within claim. That question is, shall the claimant, who was a qualified and acting Junior Dentist at Normal, Illinois, be paid by the respondent for the period of his suspension, namely, from October 6, 1941, to January 2, 1942?

Both the claimant and respondent in their brief make many references to the charges which were filed against this claimant, and make references to the hearing of claimant before the Civil Service Commission. The formal charges and the evidence taken by the Commission have not been filed in this court. Therefore, we are unable to determine whether the charges were proven by competent evidence and it would not be the province of this court to determine that question. Appeals from the Civil Service Commission rulings do not lie to the Court of Claims. However, both the claimant and the respondent agree on the Commission order and it becomes a part of this record. From it we find that the order of suspension of claimant by the managing officer on October 6, 1941, was sustained to January 2,1942, and on that date he was to be reinstated and re-employed by the respondent at another institution.

The record further discloses that the claimant was assigned to the Dixon State Hospital by the respondent, in. compliance with the Commission order, at his Civil Service rating as a Junior Dentist and ordered to report -for work as of January 2, 1942. It is not clear from the record whether the claimant accepted this employment but it does show that he requested a leave of absence almost immediately after his reinstatement and assignment to the Dixon State Hospital. The record' further discloses that on October 9, 1941, Dr. Everett Upton was assigned as Junior Dentist to the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois, to replace the vacancy caused by the suspension of the claimant, who took up his duties on that day.

The burden is on the claimant to prove by a preponderance of the evidence that he is entitled to an award as alleged in his complaint. This he has failed to do. The record discloses that his suspension by the Civil Service .Commission was according to law and binding on him and he cannot now urge the continuances granted by the Civil Service Commission at his request as a basis for his claim.

As was said by this court in Huwald vs. State, 12 C. C. R., 305, “to grant a discharged employee, during such period, a salary, would be against public policy and would encourage every discharged employee, no matter for what cause he might have been discharged, to file a complaint * * * and then cause a delay and postpone final action by the Commission as long as possible, knowing that the longer the matter could be delayed, the more money he would receive for which no service was rendered.”

This claimant has failed, under the law, to establish his right to an award. Complaint dismissed.


text:
    (No. 3730
    Paul R. Bolger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    James F, Hennesy and William E. Perce, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On October 8, 1941, the claimant, Paul E. Bolger, was an employee of the Department of Public Welfare of the State of Illinois, at the Elgin State Hospital. While sharpening his carpenter’s hatchet on an emery wheel, a foreign body entered his left eye in the center of the cornea, resulting in a permanent partial loss of vision.

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

Claimant’s wages for the year immediately preceding the injury were $2,520.00; he had two children under sixteen years of age dependent upon him for support. No claim is made for medical, hospital, or surgical services, or for temporary total or temporary partial disability, but claim is made for eighty per cent loss of sight in claimant’s left eye.

From the record it appears that prior to the injury claimant had normal vision in both eyes; that as a result of the accident, claimant has suffered a forty per cent loss of vision in his left eye without glasses; that he has suffered a twenty per cent loss of vision with glasses. Claimant contends that under the Workmen’s Compensation Act his loss is to be determined without correction rather than with correction by glasses.

There is nothing in the Workmen’s Compensation Act to indicate a contrary construction. To base disability in an eye case on the condition of the eye after correction is as illogical as to hold that compensation in a leg or arm case should be determined on the extent of the disability after the attachment of a brace or other appliance. Although courts in several States determine eye losses after correction, the sound rule, followed by a majority of the courts, is that compensation for eye injuries is properly determined on actual loss of vision rather than loss of vision as corrected by lenses. Under the Illinois statute, the purpose of which was to provide compensation for accidental injuries or death suffered in the course of employment, such loss should be determined without reference to the correction.

The court finds that claimant has suffered a forty per cent loss of vision of his left eye. On the basis of claimant’s earnings and his dependents, he is.entitled to an award of $16.00 per week for 48 weeks,, or the sum of $768.00. Since the injury occurred subsequent to July 1, 1941, the award must be increased ten per cent, or $76.80, making a total of $844.80.

Award is therefore entered in favor of the claimant for the total sum of $844.80, all of which has accrued and is payable forthwith.


text:
    (No. 3773
    John W. Gerhardt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    DeWitt S. Cbow, for claimant.
    Geoege F. Baebett, Attorney General; C. Abthub Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint charges that claimant was, in the years 1940 and 1941, operating a farm near New Berlin, Illinois. It is further alleged that he purchased 4,613 gallons of gas during those years which were used by him for farming purposes, and the fuel tax of three cents per gallon was paid by him on that amount of gas, and that he had not received a tax refund from the Department of Finance at the time of the filing of said complaint.

The complaint further alleges that all sales slips issued to him for periodic purchases were left with one Ben Boesch, a distributor of the Standard Oil Company in that locality, to be filed with the proper department of the respondent for the purpose of securing a refund, but that the said Ben Boesch negligently failed to file the sales slips as was directed of him by claimant to secure a refund of said tax.

The record consists of the complaint, a stipulation and the instruments referred to therein, including a report of the Motor Fuel Tax Division of the Department of Finance, which substantially verifies the allegations in said complaint.

Paragraph 3 of said stipulation reads as follows: 11 That the claimant did not file- any claim, for motor fuel gas refund with the Department of Bevenue of the State of Illinois, within six months after the date on which the-said motor fuel was used by the claimant.”

Paragraph 5 of said stipulation is as follows: 1 ‘ That the foregoing paragraphs 1, 2, 3 and 4 of this stipulation and the report of the Department of Finance, dated February 3, 1943, which has heretofore been filed, shall constitute the record in this case.”

The Attorney General has made a motion to dismiss this complaint.

Chapter 120, Section 429 of the Ill. Rev. Stat., 1943, provides as follows:

“Any person who loses motor fuel through any cause or uses motor fuel (upon which he has paid the amount required to be collected under this act) for any purpose other than operating a motor vehicle upon the public highways of this State, shall be reimbursed and repaid the amount so paid.
“Claims for such reimbursement shall be made to the Department of Finance, duly certified by the affidavit of the claimant,' or one of the principal officers if the claimant is a corporation, upon forms prescribed by the department. The claims shall state such facts relating to the purchase, importation, manufacture or production of the motor fuel by the claimant as the department may deem necessary, and the time when, and the circumstances of its loss or the specific purpose for which it was used (as the case may be). Claims for reimbursement must be filed not later than six months after the date on which the motor fuel was lost or used by the claimant.”

In Silver-Burdette Company vs. State, 8 C. C. R., 539, this court held that where a statute provides a remedy and fixes the time within which the same may be availed of, the Court of Claims has no jurisdiction to extend such time.

Claimant did not present a proper claim within a six months period fixed by the Statute, and it is stipulated in this record that the person upon whom claimant relied to file, negligently failed to file for him.

Claimant contends that a fraud was perpetrated on him by the agent of the Standard Oil Company at New Berlin, Illinois, and that the fraud was not discovered by claimant until the statutory period of time had elapsed for filing of claim with the Department of Revenue.

The claimant, having appointed the said Ben Boesch as his agent, is not now in a position to excuse his failure to comply with the terms of the Statute because of the negligence of his own agent.

The claimant, not having justified his delay in seeking a refund, the motion of the Attorney General must be sustained and the cause dismissed.


text:
    (No. 3807
    Louis E. Mitchell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Charles B. Myers, for claimant.
    George F. Barrett, Attorney General; Bobert Y. Ostrom and C. Arthur Nebel, Assistant Attorneys General, for respondent.
   Eckert, J.

On June 3, 1942, claimant, Louis E. Mitchell, was an employee of the Department of Public Works and Buildings of the State of Illinois, Division of Highways. While pushing a wheelbarrow loaded with stone chips to be used in a bituminous mixture for asphalt shoulders along U. S. Boute No. 40, he sustained a bruise in the palm of his left hand. Because of subsequent infection, he was under the care of various doctors from June 11, 1942, to January 8, 1943. During the course of treatment, it became necessary to amputate the second finger of his left hand; the remaining' fingers having become stiff and strophied.

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

Claimant had been in the employ of the Division approximately two weeks preceding the date of the injury, at a wage rate of 55 cents per hour. Bight hours constituted a normal working day, and employees of the Division engaged in the same capacity and at the same rate as claimant are employed less than two hundred days a year. At the time of the accident claimant had no children under sixteen years of age dependent upon him for support. The basis for determining compensation is therefore a weekly wage of $16.92.

Claimant was temporarily totally disabled from June 3,1942, to January 8,1943, a period of 31-2/7 weeks, and was paid compensation in the total amount of $270.48. During this period, however, he was entitled to compensation in the amount of $291.27, so there remains due to him on account of temporary total disability the sum of $20.79.

No claim is made for medical, hospital, or surgical services, but claim is made for total loss of use of claimant’s left hand. It is undisputed that he has. lost the second finger by amputation, and has suffered serious injury to the first, third, and fourth fingers, and to the tissues of the palm of the hand. Although the original injury appeared slight, the resulting infection was very . serious, due partly to the fact that claimant at the time suffered from diabetes. On August 7,1942, Dr. J. Albert Key, Professor of Orthopedies at Washington University, St. Louis, reported to the respondent as follows:

. * _ * Physical examination — the left hand is considerably swollen; the stump of the middle finger is covered by a granulating wound which is infected; there are two small granulating wounds on the dorsal surface of the hand, apparently old drainage incisions; and there are also sinuses in the palm of the hand at the base of the middle finger. The palm of the hand is distended and when pressure is made on the palm, thick yellow pus exudes from the sinus at the base of the middle finger. There is an infected wound on the tip of the thumb; the index, ring and little fingers are contracted, hyper-extended at the base and flexed at the terminal joints. * * *”

On December 3,1942, Dr. Key again reported:

“I examined Mr. Louis E. Mitchell on November 17. He still has marked disability of his hand, the flexor tendons of the index and ring fingers having been completely destroyed by the infection and all of the soft tissues of the hand having been severely damaged. * * *”

From the medical reports and from personal observation of the claimant, the court is of the opinion that claimant has suffered a ninety per cent loss of use of his left hand. He is therefore entitled to the sum of $8.46 per week for a period of 153 weeks, or the total sum of $1,294.38. Since the injury occurred subsequent to July 1, 1941, the award must be increased ten per cent or $129.44, making a total of $1,423.82.

Award is therefore entered in favor of the claimant for the total sum of $1,444.61 to be paid to him as follows:

(1) The sum of $859.18 which has accrued and is payable forthwith.

(2) The sum of $585.43 payable in 62 weekly installments of $9.31 each, beginning September 12th, 1944, with a final payment of $8.21.


text:
    (No. 3831
    Arthur Hollender, William D. Fowler, John W. Oswald, E. L. Soper, and Anna Louise Kline, Administratrix of the Estate of Clarence R. Wilson, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Warner and Warner, for claimants.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on February 5, 1944, and alleges that the above named claimants were employed by the respondent at the Dixon State Hospital, Dixon, Illinois, as plumbers and steam fitters. Anna Louise Kline appears as claimant as administratrix of the estate of Clarence R. Wilson, deceased.

The claim of each is based on services rendered to the respondent as plumbers and steam fitters, all being members of Local Union No. 411 of the United Association of Journeymen Plumbers and Steam Fitters of the United States and Canada, said local union being located in Dixon, Illinois.

Claimants Arthur Hollender, William D. Fowler, and John W. Oswald seek an award of $400.40 each; E. L. Soper, claimant, seeks an award of $110.50; and Anna Lonise Kline, administratrix of the estate of Clarence R. Wilson, deceased, seeks an award of $223.60.

The complaint alleges that the claimants were for a number of years members in good standing of said local union, and that said union, on May 30, 1942, made an agreement with the contractors of Lee County, Illinois, increasing their members’ wages from $1.37% per hour to $1.70 per hour. The complaint further alleges that a notice was mailed to Rodney H. Brandon, Director of the Department of Public Welfare, a copy of which is attached to said complaint, notifying the said Director of the action of the union in increasing the then prevailing rate. Considerable correspondence was had between the union and various departments of the respondent from the 30th day of May, 1942, to the 1st day of November, 1943, in an effort to have their new wage rate recognized by the respondent. This correspondence is attached to said complaint and identified as Exhibits A to K, inclusive.

The complaint further alleges that all of the claimants from May 30, 1942, to January 1, 1943, received vouchers from the respondent for work performed by each of them at a rate of $1.37% per hour for that period. Vouchers for work ■ performed were accepted by each claimant and cashed.

The complaint further alleges that on and after January 1,1943, the respondent recognized the increased rate of $1.70 per hour, and subsequent to that date has paid the members of said local union at that hourly rate.

The respondent files a motion to dismiss the complaint for the reason the complaint shows on its face that claimants accepted and cashed warrants for the services rendered and that no legal recovery for further or additional salary can be had under the law, and cites Section 19, Article 4 of the Constitution, 1870; Par. 145, subsection 3, Chapter 127, Ill. Rev. Stat., in support of said motion.

The claimants in their statement, brief and argument opposing the respondent’s motion to dismiss, contend that the claimants are not seeking extra compensation for work already performed, but the balance of the wages which they were entitled to at the time the services were rendered and for which they believed they were working at all times subsequent to May 30, 1942. They further contend that the union wage scale of $1.70 per hour fixed on May 30", 1942, and recognized by the Contractors of Lee and "Whiteside County and of the City of Oregon, was recognized as the general prevailing rate per diem in the locality of the Dixon State Hospital, where claimants were employed, and consequently the rate which public policy, as expressly stated by the legislature, required the State of Illinois to pay, and cite Townsend vs. Gash, 267 Ill. 578; and Section 1 of an Act relating to wages of laborers, mechanics and other workmen employed under contracts for public work, Chapter 48, par. 39s p. Ill. Rev. Stat.

Upon a full consideration of the record we must conclude that these claimants are attempting to collect additional wages for work already performed under the action of their local union of May 30, 1942, increasing their rate of pay, and which they attempt to show is binding on the respondent. We cannot agree with this contention. This increase in hourly wage rate did not arise from a negotiated contract with the respondent but was an action taken solely on the behalf of the local union for the benefit of its members and while it is .probably true, as alleged in the complaint, the contractors in Lee County, Illinois recognized the $1.70 per hour as the prevailing rate, and no doubt recognized it under any contracts negotiated between the union and contractors after the rate was raised, yet the complaint does not allege that the State of Illinois entered into any binding contract through any of its officers until the 1st day of January, 1943.

This court, under the law as it now exists, is precluded from making an award to these claimants under this record. Section 9, subsection 3 of “An Act in relation to State Finance” (Chap. 127, Ill. Rev. Stat., Sec. 145), provides:

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

Under this provision of the Statute, it was held in Mills vs. State, 9 C. C. R. 69, that a claimant cannot accept warrants purported to cover the full amount due him for services during stated periods, and thereafter, when his active service has ended, obtain an award from the State for an additional amount for those periods for which he had apparently been paid for services in full.

In Broderic, et al, vs. State, 9 C. C. R. 461, the Court held:

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

The court held in that case that claimants, having accepted the monthly warrants, were barred by the Statute from obtaining any further payments of salary. The claims were denied. Klapman, et al, vs State, No. 3210; Goldsen vs. State, 12 C. C. R. 26.

It appearing from the complaint that the claimants accepted payment for the services performed, it is clear that they are now barred from recovering additional compensation for these services.

We hold that the decisions of this court as cited are controlling in the instant claim and that the claimants are, and each of them is barred from securing an award.

The motion of the Attorney General is allowed and the complaint is dismissed.


text:
    (No. 3837
    Phillips Petroleum Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Raeburn L. Foster and Cecil L. Hunt, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

During the period from April 27, 1943, to June 26, 1943, the Department of Public Works and Buildings of the State of Illinois, Division of Highways, purchased and received gasoline, kerosene and lubricating oil in the value of $48.57 from the claimant, Phillips Petroleum Company. Invoice No. 8702 in the amount of $2.16, for gasoline, was presented on October 13, 1943, to R. T. Cash, District Engineer; invoice No. 4035 in the amount of $6.76, for kerosene, was presented on October 5, 1943, to O. F. Gloeke, District Engineer; the remaining invoices upon which the claim is based, in the total amount of $39.65, for gasoline and lubricating oil, were presented on November 22, 1943, to C. I. Burggraph, District Engineer. The quantities, qualities, prices and points of delivery of these supplies were in accordance with" a previous agreement between the claimant and the Division of Highways. The invoices were presented for payment in the usual course of business, but were not paid because the appropriation therefor had lapsed on September 30, 1943.

Claimant has furnished supplies for the respondent, the purchase of which was properly and duly authorized; claimant submitted its invoices to the respondent within a reasonable time and has not received payment; such non-payment is due to no fault on the part of the claimant; when the charges were incurred there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is, therefore, entitled to an award. (Koppein vs. State, 12 C. C. R 395.)

An award is therefore made in favor of the claimant in the sum of $48.57.


text:
    (No. 3852
    Leah M. Willms, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

    Harry B. Hoffman, for claimant.
    George F. Barrett, Attorney General; G. Arthur Nee-el, Assistant Attorney General, for respondent.
   Eckert, J.

On August 1, 1942, the claimant, Leah M. Willms, was employed as a stenographer and secretary to the Director for Peoria County of the Governor’s Committee on' Re-employment, at a salary of Eighty-five Dollars ($85.00) per month. This Committee was organized in 1941, and an appropriation of $150,000 was made to it by the 62nd General Assembly. The Committee’s existence terminated on June 30, 1943.

Claimant alleges that she continued in her employment until September 1, 1943, when she resigned because of non-payment of salary for the months of July and August, 1943. Claim is made for One Hundred Seventy Dollars ($170.00).

The respondent has filed its motion to dismiss the complaint on the ground that it fails to state a cause of action because the alleged services upon which the claim is based are not alleged to have been performed at a time during which services were authorized and at a time during which an appropriation was available for payment. Section 25 of “An Act in relation to the State Finance” provides that:

“When an appropriation shall be made without restriction as to the time of its use, it shall be available for expenditure for the purposes and to the amount therein stated, from the date that the Act becomes effective to and including the thirtieth day of June of the year in which the next General Assembly shall convene.” (Chap. 127, par. 161, Illinois Revised Statutes, 1943.)

The appropriation for the payment of claimant’s salary was thus available from June 30, 1941, the date that the Act making the appropriation became effective, to and including the 30th day of June, 1943. Claimant’s services were rendered during July and August, 1943. The General Assembly made no appropriation to the Committee from which a salary for services rendered after June 30, 1943, could be paid.

The question presented to the court is not one of payment for services properly and duly authorized, for which payment was not made until after the lapse of the appropriation. It is, therefore, immaterial whether or not there remained a sufficient unexpended balance in the appropriation from which payment could have been made. The cases cited by claimant are cases involving claims for services rendered during a time when such services were authorized.

(French vs. State, 9 C. C. R, 463; City of Shelbyville vs. State, 9 C. C. R, 518.)

Under Section 25 of “An Act in relation to the State Finance,” (supra) the employment of the claimant after June 30, 1943, was unauthorized. Respondent’s motion to dismiss is therefore granted.

Case dismissed.


author: Eckebt, J.

text:
    (No. 3857
    Illinois Bell Telephone Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944-

    Ben B. Boynton, for claimant.
    Geobge F. Babbett, Attorney General; 0. Abthub Nebel, Assistant Attorney General, for respondent.
   Eckebt, J.

During the months of May and June, 1943, claimant furnished telephone service at its Blue Island Exchange to the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, pursuant to a contract with the Department. Exchange service furnished by the claimant from June 21, 1943, to June 30, 1943, was in the amount of $6.80 and toll service furnished by the claimant from May 21, 1943, to June 30, 1943, was in the amount of $156.05, or a total of $162.85.

Invoices for these services were presented for payment in the usual course of business. Due to shortage of clerks and turn over of personnel in the district office of the Division of Highways, the invoices did not reach the central office until after September 30, 1943, after the lapse of the appropriation.

Claimant has furnished properly and duly authorized services for the respondent; claimant submitted its invoices to the respondent within a reasonable time, and has not received payment; such non-payment is due to no fault on the part of the claimant; when the charges were incurred there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is, therefore, entitled to an award. (Koppein vs. State, 12 C. C. R., 395.)

An award is therefore made in favor of the claimant in the sum of $162.85.


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    (No. 3560
    Frances Cure, Claimant, vs. State of Illinois, Respondent.

      Order filed November 14, 1944.

   In an opinion heretofore filed in this cause at the February, 1941, Term of this Court, claimant was allowed an award of Four Thousand ($4,000.00) Dollars for the death of her husband during the course of his employment for the respondent.

The matter now comes before the Court on the suggestion of the marriage of claimant, Frances Cure, who reports to this Court that she was remarried on the 10th day of August, 1944.

Payments have been made on this award up to August 12, 1944, leaving an unpaid balance of this award in the sum of $1,862.84.

Under Section 7, paragraph a of the Workmen’s Compensation Act, claimant’s right to compensation ceases on the day of her marriage, to-wit, August 10, 1944, the decedent having left no children under the age of sixteen years at the time of his death.

It is therefore ordered that the award heretofore entered in this cause be extinguished and held for naught.


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    (No. 3813
    Rose K. Zimmer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1944.

    Edgar 0. Zimmer, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Bose K. Zimmer, is the widow of Otto F. Zimmer, deceased, formerly employed by the Department of Public Safety, as an attendant, at the Illinois Security Hospital, Menard, Illinois. About eleven-thirty o’clock on the evening of June 20th, 1943, while acting as relief turnkey, the deceased was struck on the head by an escaping inmate of the institution. Death occurred six hours later. Zimmer was married, and left him surviving his widow, the claimant, and his son, Carlisle A. Zimmer, a minor, twelve years of age. Claimant seeks an award in the amount of $4,895.00.

The deceased having been first employed by the respondent on December 12th, 1942, less than one year prior to the injury, compensation under Section 10(c) of the Workmen’s Compensation Act must be computed according to the annual earnings of employees of the same class in the same employment and location during the year immediately preceding the injury. The annual earnings of such employees were $1,800.00.

At the time of the accident, 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 the decedent’s employment.

Claimant is entitled to an award under Section 7(a) of the Workmen’s Compensation Act in the amount of $4,450.00. The death having occurred as a result of an injury sustained after July 1, 1941, and before July 1, 1943, this amount must be increased ten per cent, or $445.00.

Award is therefore made in favor of the claimant, Bose K. Zimmer, in the amount of $4,895.00 to be paid to her as follows:

$1,204.50 which has accrued and is payable forthwith.

Balance of $3,690.50 is payable in weekly installments of $16.50 per week beginning November 14, 1944, for a period of 223 weeks with an additional final payment of $11.00.

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.


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    (No. 3833
    The People's Gas Light and Coke Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1944.

    Dailey, Dines, White & Fiedler, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant seeks an award for $119.34 for one Servel Electrolux Refrigerator, No. 46604, with pressure regulator, sold February 10, 1942, to the Department of Public Health of the State of Illinois, and delivered to the Cook County Public Health Unit. The purchase was properly authorized by Edward Davis, State Purchasing Agent for the Division of Purchases and Supplies of the State of Illinois; claimant has not received payment; such non-payment is due to no fault on the part of the claimant; when the charge was incurred, there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is therefore entitled to an award. Shippers Fuel Corporation vs. State, 12 C. C. R. 323.

Claimant also seeks interest on $119.34 at five per cent per annum from February 10,1942. The State, however, is not liable for the payment of costs or interest, there being no statute in this State authorizing such payment. Phillips Petroleum Company vs. State, 10 C. C. R. 319; Southern Kraft Corporation vs. State, 9 C. C. R. 306.

An award is therefore entered in favor of the claimant in the sum of $119.34.


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    (No. 3863
    The Borden Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1944.

    Lathrop W. Hull, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The claimant seeks an award in the sum of One Hundred Eighty-four Dollars and Eight Cents ($184.08), for a refund which it inadvertently paid to the Division of Foods and Dairies, Department of Agriculture, of the State of Illinois.

The record consists of the complaint, filed on June 30, 1944, which is duly verified; bill of particulars on behalf of claimant; report of the Division of Foods and Dairies, Department of Agriculture; waiver of right to present evidence; testimony and oral argument on behalf of claimant; and waiver of its right to file brief.

The record shows that claimant is a New Jersey corporation and is duly licensed to do, and is doing business, in the State of Illinois, engaged in the business of manufacturing, selling and distributing dairy food products and various articles of food for human and animal consumption in various states of the Union, including this State.

The complaint further alleges that during the six months period, commencing January 1, 1943, and ending June 30, 1943, claimant sold in the State of Illinois, among other food products, some concentrated commercial feeding products known as ‘ Flay dry, ’ ’ “Flay-dry 400-D,” and “Hopro,” in the amounts as follows: “Flaydry” — 1414% tons; “Flaydry 400-D” — 85% tons; “Hopro” — 341-3/20 tons..

It further alleges that pursuant to the requirements and provisions of Section 53.168, subsection 8 of the Statute of the State of Illinois, relating to food (Jones Ill. Stats. Ann., Yol. 10), claimant paid to the treasurer of the State of Illinois a license fee of $25.00 for the year 1943 for each of said trade named products, and was duly issued and received licenses or certificates from the Department of Agriculture of the State of Illinois. That on or about the 15th day of July, 1943, claimant procured from the Department of Agriculture, Division of Foods and Dairies of the State of Illinois, a license to sell the above named commercial food stuffs and submitted to said Department a report in the form of an affidavit and statement, together with claimant’s check for $198.92, in payment of a license fee of $1.00 for each and every brand of such feed stuffs, and inadvertently included “Flaydry,” “Flaydry 400-D” and “Hopro,” and a further license fee of ten cents per ton on 1988 plus tons of such feeding stuff sold by claimant in this State during the period of January 1,1943, to June 30,1943, inclusive, and thereafter claimant was issued and received such license in the form of a receipted duplicate report, affidavit and statement, as more specifically appears from the photostatic copy of said report, marked Exhibit B and made a part of the complaint, which was an overpayment inasmuch as claimant had previously paid a license fee amounting to $25.00 each on said products.

The report of the Division of Foods and Dairies, Department of Agriculture, above referred to, in paragraph 3 states:

“It further appears from the records of the Division of Foods and Dairies, Department of Agriculture, that during the month of July, 1943, the claimant included the tonnage of the above described concentrated commercial feeding stuffs in a feed tonnage report made to said Division of Foods and Dairies, Department of Agriculture, and paid thereon in error a tonnage tax in the amount of $184.08. The check received in payment of this tonnage tax was deposited to the credit of the Treasurer of the State of Illinois by said Division of Foods and Dairies, and said over-payment was not discovered until the check had cleared and been paid.”

Paragraph 7 of said report is as follows:

“It would appear that the facts submitted by the claimant are substantiated by the records of the Division of Foods and Dairies, Department of Agriculture and, further, that the claimant is entitled to refund of the sum of $184.08 which has been paid to the Treasurer of the State of Illinois in error.”

It clearly appears from the record in this case that the money for which claim is made was paid to a Division of the State as the result of a mistake of fact and is the property of claimant.

This court has repeatedly held that where a claimant makes a payment to the respondent in excess of that lawfully due, made under mistake of fact, may be recovered. Eureka-Maryland Assurance Corporation vs. State, 12 C. C. R., 418. Preisel vs. State, 12 C. C. R. 320.

An award is therefore entered in favor of claimant the Borden Company, a corporation, as a refund, in the sum of, One Hundred Eighty-four Dollars and Eight Cents ($184.08).


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    (No. 3694
    James Ralph Kopp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

    Emerson G. Whitney and Joseph D. Teitelbaum, for claimant.
    George P. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On August 13, 1941, the claimant, James Ralph Kopp, employed by the State of Illinois, Division of Highways, as a laborer, sustained, an injury to his left shoulder while cranking the motor of an air compressor which backfired. At the time of the accident he had two children under the age of sixteen years, and had been employed by the respondent since July 13, 1941, at the rate of sixty cents an hour. Employees of the Division engaged in the same capacity and at the same rate as claimant are employed less than two hundred days a year; eight hours constitute a normal 'working day.

Immediately following the 'accident, claimant reported his injury to William E. Johnson, foreman of the crew to which Kopp belonged, but Johnson failed to report the accident to the District Office until September 3, 1941. Johnson, two days after the accident, sent claimant to Dr. Louis River of Oak Park, Illinois, who in turn engaged the services of Dr. Arthur H. Conley of Chicago as a consultant and assistant. The Division received reports of the injury from both Dr. River and Dr. Conley on November 18, 1941. From these reports, it appeared that treatment, consisting of sling, massage, heat, and short-wave physiotherapy, produced only a slight improvement, and that on September 10th a cast was applied for a period of one month. The report of Dr. River also stated that claimant had done most of his work since the injury, and that the only permanent disability expected was a moderate weakness of abduction of the arm.

On November 10, 1941, the Division ordered the claimant to report to Dr. H. B. Thomas, Professor of Orthopedics, University of Illinois Medical College, for treatment. From the report of Dr. Thomas, made to the Division on December 17th, it appears that Dr. Thomas saw claimant only once; that subsequently claimant received physiotherapy treatments, the last of which was on December 5, 1941; that claimant was quite nervous, and several times telephoned he was unable to come to Dr. Thomas’ office. He was dismissed by Dr. Thomas without final examination. The report questions claimant’s disability at the time of the report and states:

“Our history is that he worked after he thought his shoulder was dislocated. This usually does not happen. Since he has not kept up his treatment we are dismissing him. Kopp’s excuse for being absent is that he has to work all the day. He works ten hours a day and has not time to come in. Last time he was treated he complained of some pain in the shoulder but had full range of motion.”

William E. Johnson, the foreman, turned in straight time for the claimant to the District Office almost daily from the date of the accident through the months of September, October, and up to November 20th. From August 14th to November 19th, 1941, inclusive, the Division paid the claimant wages in the total amount of $340.80, and the records of the Division indicate that claimant lost no time as a result of the accident. His employment with the Division terminated on November 20th, 1941.

The Division has also made the following payments for services rendered claimant in connection with the injury:

Dr. Louis River, Oak Park...................................$ 25.00
Dr. Robert L. French and Dr. Charles E. Franklin, Oak Park.. 38.00
Dr. Arthur H. Conley, Chicago............................... 57.00
Dr. H. B. Thomas, Chicago................................... 31.00 '
Oak Park Hospital, Oak Park................................ 10.00
Total ...................................................$161.00

A bill for $28.00 covering fourteen treatments rendered claimant by the physiotherapy Department of the Oak Park Hospital under direction of Dr. French and Dr. Franklin from August 20th to September 9th, 1941, inclusive, has not been paid.

Claim was filed in this court on March 10, 1942. Respondent thereafter filed a motion to dismiss on the ground that no claim for compensation was made within six months after the date of the accident as required by the terms and provisions of Section 24 of the Workmen’s Compensation Act of this State. This motion, however, was denied. At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment.

Claimant contends that as a result of the accident he ‘can not do heavy work; that his arm and shoulder are still painful; that he is not able to do any work that requires motion above the shoulder or puts a strain on the arm; that he can not lift with his left arm; that he is a laborer with no skilled trade and has been unable to obtain work because of the injury. He claims no temporary disability, but claims a twenty-five per cent permanent loss of use of his left arm and shoulder. He contends that because he earned $26.40 per week and at the time of the accident had two children under the age of sixteen years, his compensation should be calculated at sixty per cent of $26.40, or $15.84 per week; that complete loss of use of an arm is compensated on the basis of 225 weeks; that 25% of 225 weeks is 56.25 weeks; that 56.25 weeks at $15.84, aggregate $891.00, due claimant. Claim is also made for a fee of $75.00 to Dr. Justin Fleischmann and for $15.00 to the American Hospital for x-rays.

Upon direct examination, Dr. River testified that he first examined claimant on August 15, 1941; that claimant was sent to him by foreman, William Johnson; that claimant complained of pain in his shoulder, of an inability to carry his arm away from the body, and of an inability to abduct his arm without severe pain and tenderness ; that the only positive physical finding was some swelling and considerable tenderness underneath the left acromion. The tests made for tear of the supraspinatus tendon were negative, so that the diagnosis was an injury to the superior capsule of claimant’s left shoulder joint but without a disruption of the supraspinatus tendon. On cross-examination, Dr. River testified that the ligamentous capsule, that binds the arm to the socket on the shoulder blade, had been tom across the upper part.

Dr. Justin Fleischmann was called as an expert witness on behalf of the claimant. Dr. Fleischmann testified that he first examined claimant on March 1, 1942, six months after the injury; that claimant then had a decreased muscular power of arm muscles and muscle grooves of the left upper extremity, especially so the muscles which control abduction.. Claimant was also subjected to neurological examination by Dr. Fleischmann, and the resulting diagnosis was laceration of the articular capsule of the left shoulder, a partial evulsion of the brachial plexus with consecutive neuritis of the radial and ulnar nerve, and a slight neuritis of the lumbosacral plexus at left.

From the medical testimony and from personal observation of claimant, it appears that claimant has suffered a twenty-five per cent permanent partial loss of use of his left arm. Claimant having been employed by the respondent only one month prior to the accident, and employees of the Division engaged in the same capacity and at the same rate as claimant having been employed less than two hundred days a year, claimant’s compensation must be determined in accordance with the provisions of Section 10 of the Workmen’s Compensation Act. Sixty cents per hour, eight hours per day, for two hundred days at $4.80 per day, is an annual wage of $960.00, and an average weekly wage of $18.46. Claimant having two children under the age of sixteen years fit the time of the accident, he is entitled to an award of the minimum of $12.00 per week for 25% of 225 weeks, or $12.00 per week for 56.25 weeks, being the sum of $675.00. Since the accident occurred after July 1, 1939, the amount of compensation must be increased ten per cent, making a total sum of $742.50.

Claimant is also entitled to an award in the amount of $28.00 for physiotherapy treatments which he received at the Oak Park Hospital. No award, however, can be made for the services of Dr. Justin Fleischmann or the services of the American Hospital inasmuch as these were entirely unauthorized by the respondent.

An award is therefore made to the claimant in the sum of $770.50, payable as follows:

a. $28.00 for the use of the Oak Park Hospital.

b. $742.50 to claimant, all of which is accrued and is payable forthwith.


text:
    (No. 3734
    Eugene N. Mueller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1945.

    William C. Connor, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Eugene N. Mueller, the above named claimant, was employed as an investigator by the Department of Conservation of this State, at a salary of $125.00 per month. That he was a duly certified Civil Service employee in the classified service of the State of Illinois, as an investigator as aforesaid.

The complaint further avers that this claimant, among others not having been assigned for duty in said Department of Conservation, filed a petition in the Circuit Court of Cook County entitled People ex rel Goldsmith, et al, vs. Osborne, et al, #4101309, and on August 6, 1941, a writ of mandamus was issued out of said court compelling the Director of Conservation to reinstate the claimant to the position of investigator in the Department of Conservation and to pay him the salary lawfully appropriated therefor.

The complaint further alleges that thereafter from August 6, 1941, to January 19, 1942, claimant was employed in said Department as an investigator and on the last mentioned date tendered his resignation to the Depatrment of Conservation, which resignation was accepted. It further alleges that this claimant received salary from said Department from August 6 to August 31 and for the months of September and December, 1941, at the rate of $125.00 per month.

This claimant claims a salary for the months of October and November, 1941, and for the period of January 1 to January 19, Í942, at the rate of $125.00 per month, amounting to the sum of $326.00.

The record consists of the sworn complaint, copy of judgment order of the Circuit Court of Cook County, reports of the Department, of Conservation by Livingston E. Osborne, its director, stipulation of the parties hereto that the reports of the Director of the Department of Conservation, dated November 2,1942, December 2,1942, and November 1, 1943, constitute a part of the record of this claim, and that the judgment order for the writ of mandamus in the Circuit Court above referred to also constitutes a part of the record of this claim. This stipulation further provides that the record of the Auditor of the State of Illinois shows that there was a lapsed balance in the appropriation for salary and wages out of the Department of Conservation in the sum of $40,289.80 as of the 30th day of September, 1943.

Neither the claimant nor the respondent file a brief, statement and argument in this case but each waives the filing of same. The above documents constitute the full and complete record.

Upon an examination of the record as we find it, it indicates that this claimant is entitled to the salary which he demands of the State inasmuch as he was a duly certified Civil Service employee on the eligible list, and should have been employed when a vacancy was created. And the only reason that claimant was not employed according to the record of the Director of Conservation as an investigator for the months for which he demands salary, was for the reason that the payroll was completely filled for each of these months. The report of Livingston E. Osborne, Director, dated November 2, 1942, acknowledges that the amount due to the claimant is $326.00.

An award, therefore, is entered in favor of claimant as follows: For the month of October and November, 1941, and for the period of January 1 to January 19, 1942, at $125.00 per month, totalling the sum of $326.00.