text:
    (No. 4527
    Steve A. Sypniewski, a minor, by Celia Sypniewski, his mother and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 23, 1954.

    Elliodor M. Libonati, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves a claim for recovery under Article XVI, Section 11 of the Military, and Naval Code of Illinois, Ill. Rev. Stat., 1949, (State Bar Association Edition), Chap. 129, Par. 143.

On July 31, 1949, the claimant, Steve A. Sypniewski, was a member of the 33rd Ordnance Company, 33rd Infantry Division of the Illinois National Guard, and held the rank of Private First Class. The National Guard Division and its members were on regular maneuvers, engaged in actual field training at Camp McCoy, Wisconsin; and were at that time federally recognized, and engaged in such training under the provisions of the National Defense Act.

On the morning of the day in question, claimant, who had been assigned to kitchen police duty, had finished a part of that duty, and was not scheduled to report back until the evening meal. He and two companions decided to go for a hike in the woods on the military reservation, and, while so engaged, saw a hand grenade partly embedded in the dirt. He touched it, and the grenade exploded, causing serious injuries to claimant. The complaint filed herein prays damages in the amount of $10,000.00 against the State of Illinois, based upon the alleged loss of the thumb and index finger of claimant’s right hand, loss of practically all of the sight of claimant’s left eye, and other injuries enumerated in a general manner; and allegagations of medical expenses, incurred in the past, and to be incurred in the future.

The record of the Adjutant General of Illinois, contained in respondent’s exhibit No. 1, and all of the facts in the record establish that claimant was in the line of duty at the time of the accident in question, which fact was conceded by respondent at the hearing. Such records, and the testimony offered in the case further establish that claimant was not injured by reason of any willful neglect or misconduct on his part. There are no facts shown in the record of this case, which establish any unlawful act on the part of claimant. Whether or not he was in the complete exercise of due care in touching the hand grenade is not an issue in determining whether recovery can be had under the statute in question.

It is likewise immaterial that claimant, due to his being in the service of the United States at the time of the injury in question, has a remedy under the provisions of Public Law 108, 32 U.S.C.A., Sec. 160 (a) through (c). The question has been previously resolved in favor of claimant by the Court’s decision in this cause, which was filed on March 20, 1953.

One serious question raised by respondent deals with the meaning that should be given to the provision of the Military and Naval Code, wherein, as a condition to recovery under Section 11 of said Code, it is required that the injury to claimant must have occurred “while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief”.

Respondent urges, and, in our judgment, rightly so, that the Legislature had in mind a more strict requirement for recovery under this Section than a mere line of duty status. If such had been the intention of the Legislature, it is reasonable to assume they would have used that language, rather than those terms contained in the statute set forth above.

It is conceivable that a person may occupy a line of duty status, while not performing “his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief”, for instance, while on leave of absence or furlough for personal reasons. On the other hand, a line of duty status is a necessary condition to a finding that he was so performing his duty in pursuance of such orders.

Respondent argues that, at the time claimant received his injuries, he was participating in a “frolic of his own”, and was not performing his duty under orders, since he had not been assigned to accompany the other guardsmen to the place where the accident occurred, and had the right to refuse to accompany them, if he so desired.

Claimant, however, contends that the facts involved not only show claimant to have been injured while in the line of duty, but, also, while performing his duty in pursuance of orders from the Commander-in-Chief.

We find no previous decisions in point. This presents a close question. It is one that calls for a determination of policy, which will reasonably give effect to what we consider the intent of the Legislature in enacting the Military and Naval Code. It is one that, in determining the result on the particular facts, requires a consideration of the degree of meaning, which should be given to the terms involved.

The term “performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief” could be held to mean simply being on active duty. This, in our judgment, is a broader construction of the term than the Legislature intended.

On the other hand, the term could be held to mean that the guardsman must be actually engaged in performing precisely the physical acts ordered done, and only those acts, necessary in complying with each particular order given. For example, in the case at bar, claimant, under such a meaning of the term, would only be covered by the law while actually engaged in preparing the food, washing the kitchen utensils, carrying out the garbage, cleaning the floor, etc., and would not be covered while engaged in a five minute “break” to smoke a cigarette. Obviously, the Legislature intended no such narrow construction of the term.

Somewhere between these two extremes lies the answer to the problem, and the test that should be applied.

The admitted facts consign this case to a position on the border line of the question, but we have concluded, after much consideration, that claimant was performing his duty as an enlisted man in pursuance of orders from the Commander-in-Chief at the time of his injuries, and should be allowed to recover under Section 11 of the Military and Naval Code.

The facts, which we consider to justify this result, are these: (1) It is conceded by both parties to this action that claimant was in the line of duty when he sustained the injuries; the records of the Adjutant General of the State of Illinois reflect such a finding by the military authorities; and, the facts contained in the record of this case are not of such a nature to require our overruling such findings. (2) Claimant had not completed his kitchen police assignment, was still assigned under orders to that particular duty, and was expected to report for further work in the kitchen at the evening meal. (3) Claimant was upon the military post when he received his injuries, and was subject at all times to being recalled for further work. (4) By the nature of the duty to which claimant was assigned, it was contemplated by the authorities that claimant would not be continuously engaged throughout his assignment to said duty in performing actual work in the kitchen, but would, of necessity, have a certain amount of free time during his assignment to kitchen police duty, and while still subject to call for further work.

Respondent also contends that, by virtue of the interpretation given Sections 10 and 11 of the Military and Naval Code by the Court in the case of Insalata vs. State of Illinois, 12 C.C.R. 27, this Court can take no jurisdiction of the case, for the reason that claimant has failed to exhaust his remedies under Section 10 of the Code, and that Section 11 of the Code can only be applied after the remedies afforded by Section 10 have been exhausted.

These two Sections, as constituted at the time of the occurrence of the accident, read as follows:

“¶10. Any officer or enlisted man of the National Guard or Naval Reserve, who may be wounded or disabled in any war, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in Sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.
. ¶11. In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.”

The ease of Insalata vs. State of Illinois, supra, involved an injury to a guardsman, who, the Court found, showed an unwillingness to avail himself of the medical and dental services provided for members of the Illinois National Guard. A claim was filed in the Court of Claims under the provisions of Section 11 of the Code. No action was taken under Section 10 of the Code. The Court, in denying the claim, stated at pages 30 and 31:

“If both Sections 10 and 11 automatically become applicable to claims of this kind, then two separate tribunals might at the same time be called upon to adjust the same claim. This Court has held that such was not the intent of the Legislature. (Echols vs. State of Illinois, supra.) It appears rather, that the Legislature intended that Section 11 should provide for additional financial help or assistance in cases where such is justified. In other words, Section 10 is first to be applied so that the injured claimant may have one-half of his active service pay and medical services. If his disability is serious enough, Section 10 provides for a continuance of one-half pay and medical services for a period not to exceed six months unless approved by this Court. If the disability exceeds six months, claimant may invoke the jurisdiction of this Court, and show his need for financial help and assistance in addition to that provided for by Section 10. To say that Section 11 gives this Court unlimited jurisdiction, regardless of the provisions of Section 10, is contrary to the general rules of statutory construction. Section 11 supplements, and provides for further possible help and assistance, but it does not supersede Section 10. Furthermore, the financial need of the claimant can only properly be determined by this Court when it has knowledge of the proceedings had under Section 10, and the payments made in accordance therewith.”

And, at page 32:

“Legislative provisions for a preliminary inquiry, such as is provided for in Section 10, are fully within the legislative province. Bangs vs. State of Illinois, 10 C.C.R. 127; Blue vs. State of Illinois, 10 C.C.R. 200. It is our opinion, from a consideration of Sections 10 and 11 of the Military and Naval Code, that a claimant, before invoking the jurisdiction of this Court, must show:
(1) What payment has been made to him on the certificate of the attending medical officer of one-half active service pay.
(2) What payment has been made to him by order of the board of medical officers of one-half active service pay.
(3) What medical services have been furnished to him.
(4) What need exists for financial help or assistance, in addition to the one-half active service pay and medical services already furnished.
There being no proof in this case of a compliance with the provisions of Sec tion 10 of the Military and Naval Code, this Court is without jurisdiction. Echols vs. State of Illinois, supra.”

We have considered these two sections of the Code, and also the above decision, and can see no reason to follow that decision in the instant case.

In the first place, claimant has received all of the necessary medical treatment from the State and Federal Governments, and is making no claim or request for further medical treatment. Although both past and future medical expenses are claimed as damages in the complaint, no evidence of such appears in the record, nor is there any mention or claim for same made by claimant in his brief and argument. Claimant, likewise. has made no claim for one-half of his active ' 4 service pay, which he would have been allowed by the provisions of Section 10 of the Code. He .claims only damages for permanent personal injuries, which have handicapped his advancement in an occupation that he entered subsequent to the injury. Financial help and assistance for these items of damage, in our judgment, should be awarded under Section 11, rather than Section 10.

It appears to us that to deny claimant the right to a recovery under Section 11, merely because action was not formally taken by the military authorities under Section 10, would be to place more regard on following a certain line of procedure, than in accomplishing a just result, and would be in discord with what we consider the Legislative intent to have been.

Furthermore, it is noted from the record (respondent’s exhibit No. 1) that on October 25, 1949, shortly after his release from the hospital, claimant forwarded a letter to the Adjutant General of the State of Illinois, through military channels, requesting information regarding the procedure to be followed in making a claim for disability compensation, stating that he was unable to find suitable employment. There is nothing anywhere in the record, which indicates any lack of cooperation on the part of claimant, or a lack of interest in pursuing the matter. What else claimant could have done, we do not know. There is no procedure prescribed by Section 10 of the statute for claimant to have followed in forcing action thereunder. The initiative, it seems to us, for obtaining action under Section 10 of the Code rests upon the military authorities. We do not intend to penalize claimant for inaction on the part of any other person. We do not, however, mean to imply that the military authorities should or should not have taken action, since that question is not now before the Court.

We now direct our attention to a consideration of the amount claimant should receive under the provisions of Section 11 of the Military and Naval Code.

In arriving at the amount, we note from the evidence that claimant, prior to his injuries, had last been employed at a tea room in Chicago, earning $25.00 a week. After the accident, and subsequent to treatment for his injuries at the Great Lakes Naval Hospital, he was next employed the latter part of December, 1949 as a mail clerk baggage handler for the Illinois Central Railroad at $60.00 per week, where he worked for approximately one and one-half months. He again worked for approximately six months at the tea room at $25.00 a week, and, thereafter, for Master Specialties Company in Chicago, where he earned $1.25 an hour. Shortly thereafter, claimant went to California to continue his employment with this Company, and, while in California, was also employed by North American Aviation Company at $1.50 per hour. While in California, his work consisted of machine work on jigs and small dies, riveting, and general finishing work. He then returned to Chicago, and obtained employment as a machinist with the Pullman Standard Company at $1.65 per hour, where he is still employed at the present time, now earning $1.91 per hour. In 1950 and 1951 he attended Chicago Vocational School, studying the precision machinist trade. He contends that, although he is able to perform the duties of a machinist, he cannot become a precision machinist, because of the defective sight in his left eye, and loss of the right thumb and forefinger.

The evidence shows that claimant had worn glasses three or four years prior to the accident in question for reading and close work. Respondent’s exhibit No. 1 contains a report of the physical examination at the place of enlistment on April 15, 1948, which shows claimant to have a 20/20 vision without correction. Claimant testified that, since the accident, he is unable to see through his left eye without glasses; and, that with glasses he can “almost make people out” at a distance of approximately five or six feet.

After the hearing in the case, claimant was examined by Dr. Thadd F. Bush, and, by agreement of the parties, the report of Dr. Bush was filed, and made a part of the record in this case. The report of Dr. Bush reads as follows:

“Mr. Steve A. Sypniewski presented himself at this office on June 20, 1953 stating that, while in the military service at Camp McCoy, Wisconsin on July 31, 1949, a dud hand grenade was detonated in his hand by accident, burning Ms face, injuring Ms right hand and left eye, and otherwise incurring bodily injury.
Following this episode he had been cared for by the military medical personnel in the vicimty of Camp McCoy, and to date he yet experiences considerable visual disturbances in his left eye.
Upon examination, the right eye was determined to be essentially normal with the following refractive finding: the visual acuity without correction was 20/70, and was correctible to 20/30 + 3 by a minus 1.50 sphere plus 0.75 cylinder at axis 90. The left eye showed evidence of superior medial ophthalmic venous engorgement with signs of an old healed mild peridiscoid proliferative retinitis with some evidence of vitreous clouding and an occasional molluscae. There was a slight peripheral visual constriction within 5 to 10 degrees, and some pallor of the disc. Other findings were absent with the exception of the following refractive error. Visual acuity without correction was 20/200 correctible to 20/70 plus 1 by a minus 8.25 sphere plus 0.50 cylinder axis 80.
The visual acuity in both eyes is decidedly substandard, and that in the left eye is strictly poorer than that of the right eye.”

Included in respondent’s exhibit No. 1 is a report of William F. Kuhn, II, Lt. Col. M.C., Chief of Surgical Service, which states that claimant by virtue of the explosion, suffered 100% loss of the terminal phalanx of his right thumb, and 100% loss of the terminal and middle phalanges of his right index finger.

Claimant testified that the other incidental injuries received at the time of the explosion no longer bothered or affected him. Claimant, at the time of the hearing, was a married man.

The Court has many times used the Workmen’s Compensation Act as a guide in arriving at an award in a case of this type. Although we are not bound by the Act, we believe that in this case it should form the basis for an award. It seems especially appropriate, inasmuch as the accident was due to no fault on the part of respondent, and, in our judgment, a lack of due care on the part of claimant. The facts indicate that claimant has been steadily employed ever since returning to work after his wounds had healed. However, there is no question but what his earning capacity has. been affected by the injuries he received, which injuries are permanent.

Applying the 1949 Illinois Workmen’s Compensation Act, we find that claimant has suffered 100% disability of his right thumb, which would entitle him to an award of $1,575.00 under the Compensation Act for such loss. We further find that under the Compensation Act he has suffered a 100% disability of his index finger, for which, under the Act, he would be entitled to receive the sum of $900.00.

The examination of Dr. Bush reflected the visual acuity of claimant’s left eye, without correction, as being 20/200, which is generally regarded by the Industrial Commission as constituting industrial blindness. The examination further reflects that said eye was correctible to 20/70. We will, however, follow the most general rule applied by the Industrial Commission in Workmen’s Compensation cases, namely, that the test for defective vision is made on an uncorrected basis. Considering a complete loss of the left eye, under the 1949 Illinois Workmen’s Compensation Act claimant would be entitled to receive $2,700.00 for the loss of said eye.

It is, therefore, our order that claimant be, and he is hereby awarded the sum of Five Thousand One Hundred Seventy-Five Dollars ($5,175.00).


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4545
    Ervin Williams and Inez Williams, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 23, 1954.

    Albert Saikley, Attorney for Claimants.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Fearer, J.

• Ervin Williams and Inez Williams, husband and wife, filed their complaint on March 18, 1953 for personal injuries and property damage to an automobile, owned and driven by Ervin Williams, as an outgrowth of an accident on September 30, 1952, at or about the hour of 7:30 P.M., on Illinois State Route No. 1, approximately two miles north of the City of Hoopeston, Vermilion County, Illinois.

Respondent’s amended answer was filed on August 19, 1953 denying each and every allegation of the complaint of Ervin Williams, and, as an additional defense, alleged that the injuries or damages, which were allegedly caused in whole or in part, or were contributed to by reason of the negligence on the part of claimant, were not caused by any negligence of respondent; or, in the alternative, if there was any negligence, it was that of some third person, firm, or corporation, over whom respondent had no control, or for whom respondent would not be responsible. As to the claim of Inez Williams, no written answer was filed. Therefore, under the rules of this Court, heretofore adopted, and specifically Rule 11, a general traverse or denial of the facts set forth in the complaint shall be considered.

The claimants, in their verified complaint, allege that, at the time and place aforesaid, Ervin Williams was driving his 1950 Studebaker Sedan in a northerly direction upon Illinois State Route No. 1, and that Inez Williams, his wife, was riding as a passenger in said automobile. The highway upon which they were traveling, approximately two miles north of the City of Hoopeston, Vermilion County, Illinois, was a paved highway of a width of approximately sixteen feet. Claimant’s automobile was being operated in a northerly direction on the easterly half of said highway at a speed of approximately thirty-five miles per hour, and both of the claimants were in the exercise of due care and caution for their own safety and the safety of others. It is further alleged that the said highway was under the control of respondent, and that it was the duty of respondent to keep and maintain said highway in a reasonably safe condition for the use of motorists traveling upon it.

The particular acts of negligence of respondent charged in the complaint were the cutting out of a portion of said highway, approximately five to eight feet in length, and two feet deep; and failure to barricade said excavation, and place lighted flares to warn persons traveling upon said highway of the repairs being made thereon. It is further alleged that respondent did not place any signs warning persons traveling upon said highway of the defective condition. The complaint also contains a general allegation of the negligence of respondent in failing to warn persons using said highway of its dangerous condition. As a direct and proximate result thereof, both claimants sustained severe personal injuries, and property damage to the automobile, and each pray for damages in the amount of $7,500.00.

A Departmental Report was offered in evidence, made an exhibit, and, under the rules of this Court, the pertinent portions thereof are considered as evidence offered by respondent. The Departmental Report makes reference to the fact that Illinois Route No. 1 is also designated and known as Federal Aid Route No. 1, and, having this designation, is a part of the system of State Highways, particularly that part of said Route No. 1 between points near the cities of Hoopeston, Vermilion County, and Milford, Iroquois County. It, therefore, is under the jurisdiction of the Department of Public Works and Buildings, Division of Highways, for all purposes of construction, reconstruction, repairs, maintenance and operation.

On May 16, 1952, the respondent, through the Department of Public Works and Buildings, let a contract for repaving that part of Route No. 1 between points one and one-half miles north and two and three-fourths miles south of the Wellington Road connection in Iroquois County. A letting was also held at the same time for the widening of two slab bridges on said section of* Route No. 1. The southern-most bridge is approximately two and one-quarter miles south of the Wellington Road connection. The contracts were awarded to the Orr Construction Company.

As of September 30, 1952, the pavement on Section 17R, referred to in the Departmental Report, had been completed with the exception of the twenty foot approach slabs at the north and south ends of the south bridge on Section 17RB. The openings referred to were 24 feet in length (full width of pavement), 20 feet wide, and approximately 20 inches in depth. The bridge approach slabs had not been poured, and the highway shoulders were not finished. The entire section of the highway referred to from Route U.S. No. 24 to the Vermilion-Iroquois County Line was closed to through or regular traffic. Local property owners were permitted ingress and egress by way of the finished pavement, and regular or through traffic was detoured around the construction projects.

Northbound traffic on Route No. 1 was detoured west on State Route No. 9 to State Route No. 49; thence north on State Route No. 49 to Route U.S. No. 24; thence east on Route U.S. No. 24 to its junction with Route No. 1. Route No. 9 is two miles south of the Vermilion-Iroquois County Line road; two and three-fourths miles south of the south end of the pavement project, and three and one-quarter miles south of the bridge where the accident occurred.

The reflectorized signs referred to, notifying northbound motorists that Route No. 1 was closed between the Yermilion-Iroquois County line and Route U.S. No. 24 were as follows:

A 42" by 42" sign located on the east highway shoulder of Route No. 1, and bearing the message “DETOUR”. This sign was 1000 feet south of Route No. 9. •

A 15" by 30" sign located on the east highway shoulder of Route No. 1, and bearing the symbol of an arrow pointing to the left (west). This sign was 500 feet south of Route No. 9.

A 36" by 36" sign located on the east highway shoulder of Route No. 1, and 500 feet south of Route No. 9, bearing the message “ILL. 1 CLOSED NORTH TO U.S. 24 — DETOUR.” Also, on this sign was an arrow pointing west.

A sign 18" by 48" located at the junction of the east highway shoulder of Route No. 1 and the north shoulder of Route No. 9, and bearing the symbol of an arrow pointing west.

A 36" by 36" sign located on the east highway shoulder of Route No. 1 with the message “BARRICADE AHEAD”. This sign was 600 feet south of the Yermilion-Iroquois County Line Road, and was illuminated by two kerosene torches, which were on the ground immediately in front of the sign.

The Departmental Report shows that in addition to the signs referred to, a barricade was fixed across the entire width of the pavement on Route No. 1 in line with the north right-of-way line of the YermilionIroquois County Line Road. This barricade was 36" high, and at its center was attached a 24" by 30" sign with the message “ROAD CLOSED”. The barricade and sign were illuminated by four kerosene torches, which were placed on the pavement immediately in front of the barricade.

Another barricade was placed across the entire width of pavement on Route No. 1 at a point three-fourths of a mile north of the Vermilion-Iroquois County Line Road. This barricade was 36" high, and at its center was attached a 24" by 30" sign with the message “ROAD CLOSED”. The location of this barricade could also be described as being one-half mile south of the bridge where the accident in question occurred.

Similar signs to those described above were in place to direct east and west bound traffic on Route No. 9.

In view of the fact that the testimony offered on behalf of claimants is diametrically opposed to the testimony offered on behalf of respondent, we believe that it is advisable to set forth in some detail the pertinent and competent evidence incorporated in the Departmental Report made by Earl McK. Guy, Engineer of Claims for the Division of Highways.

We are cognizant of the fact that the signs, barricades, and the illumination of signs and barricades as to re-routing and warning traffic is only material in considering the conditions just prior thereto, and at the time of the accident in question. However, it is of a corroborating nature, when the testimony of certain witnesses for respondent is considered. It should also be pointed out at this time that the Departmental Report of Mr. Guy has not been contradicted by any testimony, other than that offered by claimants’ witnesses in describing what they observed in and around the location where the accident occurred.

The witnesses to whom we refer are Ervin Williams and Inez Williams, his wife, claimants, neither of whom saw any signs, barricades, or other devices whatsoever warning motorists of the repairs being made to said highway and the approach to said bridge. They did describe the hole in the pavement in which their automobile was driven, which caused the injuries and property damage, for which they are seeking to recover. The other witness, testifying to practically the same thing on behalf of claimants, was George Hanover, who was driving some distance behind, following claimants’ car. He testified that he saw them drive into the hole, and come to rest on the west side of the pavement, north of the place where there was a break in the pavement. Another witness, testifying to practically the same thing, was George Williams, the garage operator, who went to the scene of the accident the same evening for the purpose of returning the wrecked automobile to Earl Park, Indiana. Also, Roger Paul Williams, brother of Ervin Williams, testified that he went to the scene of the accident on the same evening, arriving there after the garageman, and corroborated the testimony of other witnesses for claimants.

There appears to be no conflict as to authorities cited, and the law applicable in this case. The burden of proof is upon the claimants to prove by a preponderance or greater weight of the evidence, first, that the claimants were not guilty of negligence, which in any way contributed to their own injuries; second, that the respondent was guilty of negligence, and that it was the negligence of the respondent, which was the proximate cause of claimants’ injuries; and, third, the question of damages. Failure to prove any one of the above propositions would defeat claimants’ right to recover.

We have not commented on the medical testimony, as there is no question but what both of the claimants received personal injuries and property damage, which are quite extensive, and which are not questioned by the respondent.

We do believe it is necessary to go into some detail as to the testimony of respondent’s witnesses in view of the Departmental Report, which was received in evidence in this case. This testimony was also very ably referred to in the Commissioner’s Report filed herein; and, furthermore, for the reason that not one of claimants’ witnesses observed the barricades, signs, lights, or any warning whatsoever, which seems very strange to us, where construction work was being done as extensively as at the location in question.

We must also bear in mind that the road in question was newly constructed, and had been closed completely to traffic moving in a northerly and southerly direction where the new highway was being constructed, and was open only as a means of ingress and egress to farmers living along said highway; and the only means they had of reaching the roads marked “DETOUR”, which were not under construction, was by driving along the newly made shoulders adjacent to said highway.

Arthur McIntyre appears to be a completely disinterested witness. He testified that he was traveling on Route No. 1 about 8:00 P.M. on the night in question; that he lived north of the place where the accident occurred; that he was accompanied by his wife and three sons, and had driven south to Hoopeston. He testified that there was a barricade south of the bridge; that one end of the barricade was standing, and a flare was lighted some distance from it; that, as he continued in a southerly direction, he saw another barricade extending completely across the road where the new project started, and there were three or four flares illuminating it. He further testified that there was a reflectorized sign about 600 feet south on the east side of the road at the County Line Road. He also saw several flares lying near the bridge, one of which appeared to be damaged.

George R. Willett, another witness on behalf of respondent, testified that the barricade just south of the bridge was broken, and appeared to have been hit. He further testified that there was glass on the pavement about fifty to sixty feet south of the opening near the broken barricade.

The other witnesses, who testified, were employees of the Division of Highways, Department of Public Works and Buildings, and the Orr Construction Company. These witnesses corroborate the Departmental Report, in that; (1) Reflectorized signs were in place to warn northbound motorists that Route No. 1 was closed between the Vermilion-Iroquois County Line Road and Route U.S. No. 24; (2) All signs faced to the south; (3) A 42" by 42" sign was located on the east highway shoulder of Route No. 1, approximately 1000 feet south of Route No. 9, which bore the message “DETOUR”; (4) A 15" by 30" sign was located on the east highway shoulder of Route No. 1, approximately 500 feet south of Route No. 9, bearing the symbol of an arrow pointing to the west; (5) A 36" by 36" sign was located on the east highway shoulder of Route No. 1, approximately 500 feet south of Route No. 9, bearing a sign “ILL. 1 CLOSED NORTH TO U.S. No. 24 — DETOUR”, and an arrow pointing to the west; (6) An 18" by 48" sign was located at the junction of the east highway shoulder of Route No. 1, 600 feet south of the Vermilion-Iroquois County Line Road, bearing the sign “BARRICADE AHEAD”, and illuminated with two kerosene torches placed immediately in front of it. Their testimony further corroborated the Departmental Report, in that: (1) A barricade which was 36" high, and to which in the center was attached a 24" by 30" sign, marked “ROAD CLOSED”, was across the entire width of the pavement on Route No. 1, in line with the north right-of-way line of the Vermilion-Iroquois County Line Road, and was illuminated by four kerosene torches placed on the pavement immediately in front of the barricade; (2) A similar barricade was erected about three-quarters of a mile north of the Vermilion-Iroquois County Line Road.

The witnesses for the Orr Construction Company testified as to the placing and lighting of the flares in the late afternoon. Other witnesses testified that they saw flares, barricades and signs on the evening of the accident in question.

Claimants and their witnesses testified, in addition to the failure of respondent to place barricades and signs of warning, that their automobile was being driven at a reasonable rate of speed; the mechanical condition of their car was-good; there were no obstructions upon said highway; that it was dusk; that they were driving with the car lights on; that the road was dry, and visibility was good; and that they noticed nothing unusual, which would have warned them of the hole in the pavement where the accident occurred.

It is difficult for us to understand why they did not see any signs of the construction work being done in and around the approach to the bridge for a reasonable distance, which should have been visible to them in time to bring their car under control, and thus enabled them to avoid striking the hole in the pavement. Furthermore, in deciding the question of contributory negligence, whether one of law or fact, we cannot ignore the Departmental Report as to the extensiveness of the construction of said highway and approaches to the bridges; the testimony of the employees of respondent and the Orr Construction Company; and, also, the testimony of the farmer, who lived north of where the accident occurred, and who testified that he drove past the scene of the accident on the night in question, and saw claimants’ automobile.

Witnesses for both claimants and respondent testified as to a broken barricade in and near the place where claimants’ car went into the broken pavement, and to glass lying near and in said hole. The witness, George R. Willett, who testified on behalf of respondent, stated that the barricade just south of the bridge was broken, and appeared to have been hit; and, that there was glass upon the pavement about fifty to sixty feet south of the opening near the broken barricade.

From the record, as it now stands, we are satisfied that the portion of the pavement referred to was new pavement; that the detour and warning signs, as set forth in this opinion, were still standing; that driving on the pavement, and on the shoulders, in making the detour where construction work was still in progress, was restricted to farmers living in the vicinity of said project, giving them the right of ingress and egress; and, that through traffic was properly warned to stay off of said newly constructed pavement.

It is, therefore, our opinion that if claimants ignored the signs of warning, did not follow the detour as posted, and drove on the pavement, which had not cured, and in the vicinity where the approach to the bridge was being repaired, they did so at their peril, and assumed all the risks and hazards incident thereto. The record is silent as to anything being said, or any warning or protest being offered by Inez Williams, who was riding as a passenger with her husband. Furthermore, we are of the opinion that, as to her injuries, and the injuries and property damage suffered by her husband, Ervin Williams, it was his negligence, which was the proximate cause of their personal injuries and property damage.

As previously stated, the burden of proof is upon claimants to prove by a preponderance or greater weight of the evidence that it was the negligence of respondent, which was the proximate cause of their injuries, and that they were free from any negligence whatsoever, and did not in any way contribute to their own injuries and damage. It is our opinion that claimants failed in this respect.

The award for personal injuries and property damage of Ervin Williams and Inez Williams is, therefore, denied.


text:
    (No. 4566
    Wayne Eccles, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 23, 1954.

    John R. Sprague, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On September 11, 1953, claimant filed his claim herein.

On March 26, 1954, respondent filed a motion to dismiss, supported by an affidavit of R. R. Bartelsmeyer, Chief Highway Engineer, Division of Highways of the Department of Public Works and Buildings, wherein affiant stated that the records of the State of Illinois, Department of Public Works and Buildings, Division of Highways, disclosed that it did not have jurisdiction over State Aid Route No. 34 in St. Clair County, Illinois for any purpose of construction, reconstruction, maintenance, repair, or operation; and did not have such jurisdiction prior to, on, or after January 14, 1953, being the date of the alleged injury sustained by claimant on said highway. Affiant further stated that an investigation was made in the field, and it was disclosed that the State of Illinois did not have jurisdiction over State Aid Route No. 34 in St. Clair County, Illinois, for any purpose whatsoever.

There is also attached to said motion the affidavit of C. Arthur Nebel, Assistant Attorney General of the State of Illinois, wherein reference is made to the statutes of the State of Illinois, particularly Chap. 121, Par. 37, Ill. Rev. Stat., 1953 edition.

Affiant, Nebel, stated that the State of Illinois did not maintain State Aid Route No. 34 east of State Aid Route No. 19 in St. Clair County, Illinois. Affiant further stated that State Aid Route No. 34, east of State Aid Route No. 19 in St. Clair County, Illinois at the place alleged in said complaint, was maintained by the County of St. Clair.

There was also filed in this cause on March 26, 1954 a proof of service of the motion filed herein. There have been no objections to the motion and suggestions in support thereof filed by claimant.

Claimant does not allege in his complaint that the respondent, Department of Public Works and Buildings, Division of Highways, had under its jurisdiction the road in question, and, as the record now stands, said highway was under the jurisdiction of the County of St. Clair, and not the State of Illinois.

The motion of respondent to dismiss is, therefore, sustained, and the case accordingly dismissed.


author: Tolson, C. J.

text:
    (No. 4573
    Lila M. Daly, Administrator of the Estate of Jessie Bernard Daly, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 23, 1954.

    Albert Scott and Walter J. Sebo, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Lila M. Daly filed this claim on September 18, 1953 as the widow of Jessie Bernard Daly, and as the mother and next friend of his three minor children. The complaint was later amended by joining Lila M. Daly as administrator of the estate of Jessie Bernard Daly.

The record consists of a verified complaint, transcript of evidence, amended complaint, abstract of evidence, statement, brief and argument of claimant, statement, brief and argument of respondent, and reply brief of claimant:

The claim is predicated upon the alleged wrongful death of Jessie Bernard Daly on March 21, 1953. On the said date, at about 15 minutes before 2:00 P.M., Mr. Daly left his home, where he resided with his wife, Lila M. Daly, and their three minor children. He told his wife that he was going for a ride on a motorcycle, which he owned, and that he would return shortly. At about 2:00 P.M., the witness, Raymond Thurman, was driving south on Route No. 78 toward Canton, Illinois. As he came over a grade in the road, he saw a motorcycle in his lane of the road, and lying between his car and the motorcycle was the body of Jessie Bernard Daly. He was lying with his feet and legs on the pavement, and the rest of the body was off of the pavement on the west side of the road to the north of the entrance to the Canton Country Club. Thurman did not see the accident happen. He stopped as soon as he could, and covered the body with a blanket. Mr. Daly was not moving, and was not able to talk. He died from the injuries received, and it was subsequently discovered that he had suffered a rupture of the aorta. There apparently was no eye witness to the accident.

Route No. 78, north from the city of Canton, Illinois, was originally constructed by the County of Fulton, but in 1928 the Department of Public Works and Buildings took over this section of highway, and made it a part of Route No. 78. Since that time the highway has been maintained by the Division of Highways. In 1945 the brick and concrete pavement was covered with a bituminous mixture, which is a so-called “black top”. The pavement is bordered on the east side by an earth shoulder seven feet in width. On March 21, 1953, a tree was located on the east border of the highway, at a point just south of the entrance to the Canton Country Club. It was from 12 to 20 inches from the edge of the pavement, and the roots extended under the pavement. The motorcycle was between 20 and 30 feet north of the entrance to the Canton Country Club, and Mr. Daly’s body was about 5 feet beyond it. The north edge of the entrance to the Country Club is approximately 55 feet north of the tree in question. The bark of the tree was marked, as though it had been struck, and there appeared to be bits of flesh on the tree. Immediately to the south of the tree was a concrete culvert headwall, 29 feet long, standing 12 inches above the ground, and 28 inches from the edge of the pavement. The witness, David Settles, a State Highway Policeman,, testified that to the south of the tree he saw no skid marks, but he did see tire marks, which started just south of the south edge of the headwall of the culvert, and ended at the tree. He assumed that the tire marks were made by the motorcycle of Mr. Daly. The handlebars and right side of the motorcycle were damaged. The shoulder, where the marks were located, was a mixture of dirt, sand and rock, .with a little grass. It was dry, but neither hard nor soft. There was no indication in the marks of any sliding or skidding, or any indication that the motorcycle had turned back onto the pavement after leaving it south of the headwall. There were no skid marks between the tree and the motorcycle, but there was a scuffed mark where the motorcycle may have hit the pavement.

The accident apparently occurred about 2:00 P.M. It was daylight, the pavement was dry, the day was windy, and the wind was blowing in gusts. The tree in question was a big tree, which had been growing there for many years. Mr. Daly had been riding a motorcycle for at least ten years, and was considered a good driver. The motorcycle, which he was riding, had been owned by claimant for approximately two years. Mr. Daly had lived in Canton most of his life, and had been upon this road many times. He had travelled this road as recently as two or three days before the accident.

Claimant has advanced the theory that the decedent was forced off of the road by a tremendous gust of wind, and that the State was negligent in permitting a tree to remain adjacent to the right-of-way, thereby creating a hazard and a nuisance; and, concludes that the rule of law in Illinois, as disclosed in the case of City of Joliet vs. B. S. Shufelt, 144 Ill. 403, applies in this case, and that claimant is entitled to recover. A portion of said case reads as follows:

“In Joliet vs. Verley, 35 Ill. 58, we held that if a plaintiff while observing due care for his personal safety was injured by the combined result of an accident and the negligence of the City or Village, and without such negligence his injury would not have occurred, the City or Village will be liable, although the accident may have been the primary cause of the injury, if the consequences could, with common prudence and sagacity, have been foreseen and provided against.”

Since there were no eye witnesses to the accident, claimant was permitted to offer evidence as to the reputation of the decedent for being a careful driver, and when such evidence is admitted, the law presumes that persons so testifying have also observed in claimant instincts of self-preservation. Hills vs. Richardson, 281 Ill. App. 75.

Respondent contends that: (1) The State is not an insurer against all accidents upon its highways, but is required only to keep the highways in a reasonably safe condition. Terracino vs. State, No. 4420, filed on January 8, 1952; (2) The user of a highway .is under a duty to exercise care, commensurate with the conditions known to exist. Duffle, Et Al, vs. State, 19 C.C.R. 40; and, finally, that claimant must prove the exercise of due care and caution, and that the burden of proof is upon claimant to establish her claim by a preponderance of the evidence.

Counsel for claimant has developed an ingenious theory, and has supported it by a scholarly brief. However, this Court, in order to accept the theory, must conclude that the motorcycle was forced off of the road by a gust of wind to the exclusion of any other cause.

It is generally conceded that motorcycle travel is • a hazardous undertaking, and, beyond all dispute, more hazardous than driving a conventional automobile.

Mr. David Settle, a State Highway Policeman and a witness for the claimant, testified that he had driven a motorcycle for many years as a State Police Officer, and that a wind of such velocity, as was that on March 21, 1953, could appreciably affect the path of a motorcycle, and that such a wind could alter the course of a motorcycle for half the width of the highway in question. He also stated that you cannot turn • the front wheel of a motorcycle when it is being ridden, but that you can control it by shifting your weight, and that, if you shift your weight too far, you might fall off, or cause the motorcycle to skid.

It is pure conjecture on the part of the claimant to conclude that the motorcycle was forced off of the road by a gust of wind to the exclusion of any other cause. This hypothesis is reasonable, and it may in truth be the fact, but it is still a hypothesis. If it is possible to turn a motorcycle by the mere shifting of the weight of the body of the driver, it is just as reasonable to assume that the decedent shifted his weight, and caused the motorcycle to leave the pavement.

If the burden of proof, which the complainant must assume, is based on a hypothesis, coupled with a presumption of due care, it becomes quite obvious that the claimant’s case is not grounded on direct and conclusive evidence, but is a mere possibility, and, therefore, falls short of the requirements of proving a case by a preponderance of the evidence.

Taking the complainant’s theory in its most favorable light, i.e., that a gust of wind forced the motorcycle off of the pavement, the Court is then presented with the problem as to whether or not the decedent drove the motorcycle commensurate with the conditions, which were known to exist, and, since driving a motorcycle under such conditions presents extraordinary risks, this Court cannot say that a general reputation for being a good driver will satisfy this requirement of the law.

There is no dispute with the law, as is presented in the case of Joliet vs. Shufelt, supra, but the distinction between the two cases is quite evident. In the Shufelt case, the cause of the initial accident was a broken driving rein. In the instant case, the Court does not know by a preponderance of the evidence what caused the initial accident, and must, therefore, conclude that the line of eases presented by the claimant are not controlling.

The presence of the elm tree, located adjacent to the highway, undoubtedly presented a needless hazard to the driving public, but this Court cannot say that its location was negligence per se. If the evidence in this case disclosed that the decedent struck the head-wall of the culvert instead of the tree, there would be no question but what the Court would be obliged to deny liability. The fact that the tree was closer to the highway than the culvert is not such a distinction in fact, which would enable the Court to arrive at any different conclusion, for the fact remains that the travelled portion of the highway was in good repair, and provided adequate and safe use under normal conditions.

For the reason that claimant has failed to prove her case by a preponderance of the evidence) the claim must be denied.


text:
    (No. 4346
    Corinne W. Arnold, Widow of Clarence C. W. Arnold, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1954.

    Tilley, Humphrey, Tiedemann and Hilgendorf, and John P. Derning, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 9, 1951, an award in favor of claimant, Corinne W. Arnold, widow of Clarence C. W. Arnold, deceased, was entered in the sum of $6,675.00. Arnold vs. State, 20 C.C.R. 229.

At the time of said award, there was one child of decedent, Barbara C. Arnold, who became 18 years of age on December 4, 1952. The widow of the decedent was alone entitled to $6,000.00, but, by reason of the existence of the one child under the age of 18 years, the av/ard was fixed at $6,675.00.

On March 2, 1953, respondent filed a motion to modify the award, because of the fact that the one child had reached the age of 18 years.

Following our opinion in Corcoran vs. State, 19 C.C.R. 159, we computed the modification of the award as follows:

At the time Barbara C. Arnold became 18 years of age' $2,613.21 had already been paid on said award. These payments amounted to .39149% of the total award of $6,675.00; .39149% of the $675.00 attributable to the one child amounts to $264.26; $264.26 subtracted from $675.00 equals $410.74. The balance of the award remaining unpaid, subsequent to December 12, 1952, amounts to $4,061.79, from which should he subtracted the sum of $410.74, leaving a balance of the award to be paid in the sum of $3,651.05.

The award heretofore entered in this case was, therefore, modified, and said sum of $3,651.05 was ordered paid to Corinne W. Arnold at the rate of $22.50 per week for a period of 162 weeks, plus one final payment of $6.05.

The modification of award, filed on March 20, 1953, contained the following statement:

“All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Barbara . C. Arnold forever from a possibility of participation in the award. In the event of the death or remarriage of her mother, Barbara C. Arnold would be entitled to the unpaid balance of the award. Waechter vs. Ind. Com., 367 Ill. 256; Swift & Co. vs. Ind. Com., 288 Ill. 132; Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Swift & Co. vs. Ind. Com., 309 Ill. 11. The rights of Barbara C. Arnold were fixed prior to her reaching the age of 18, and her rights can never be extinguished as long as any amount remains unpaid under this award as modified.”

On August 1, 1953, Mrs. Arnold, remarried, and, upon receipt of this information, the Department of Finance discontinued payments to her. As of September 11, 1953, there remained unexpended the sum of $2, 773.55, from the said award. On January 26, 1954, a petition was filed in this Court requesting that the balance of the fund, due and unpaid under the terms of the original order, he paid to Barbara C. Arnold, the minor child at the original proceedings, and, who now is more than 18 years of age.

There do not appear to be any cases under the Workmen’s Compensation Act, which have answered this precise question.

In the case of Swift & Co. vs. Ind. Com., 309 Ill. 140, the balance of the award was ordered paid to the child of the decedent where the widow died prior to the exhaustion of the fund. The only distinction between the cases is the fact of the death of the widow in the Swift Case, and the remarriage of the widow in the instant case.

In Illinois Workmen’s Compensation, by Thomas C. Angerstein, under Section 1294, at page 154, the writer, in construing the case of Swift & Co. vs. Ind. Com., stated the following:

“A similar situation would exist in case of a widow who remarried and there was such a child or children left surviving. Where there is an award or right to compensation in case of a widow as the sole beneficiary and she remarries, then such award or right to compensation terminates with the remarriage. Where, however, there is also a child or children surviving whom the deceased was under legal obligation to support at the time of the accidental injury which resulted in his death, and following an award to the widow for the support of herself and such child or children the widow remarried, then any remainder of such award, at the time of such remarriage, and which would have been payable but for such remarriage, would upon petition and order of the Commission be made payable to such surviving child or children.”

In view of the specific reservation contained in the modification of award heretofore entered in this cause, the Court finds that Barbara C. Arnold is entitled to the unpaid balance.

An award is, therefore, made to Barbara C. Arnold in the amount of $2,773.55, payable at the rate of $22.50 per week for 123 weeks, with a final payment of $6.05.


author: Wham, J.

text:
    (No. 4558
    Village of Lake Villa, A Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1954.

    Bernard J. Juron, Attorney for Claimant.
    Latham Castle, Attorney General; Lawrence W. Ryan, Assistant Attorney General, for Respondent.
   Wham, J.

The claim in this case by the Village of Lake Villa is for damages in the amount of $520.65. It is alleged that respondent’s agents and servants negligently operated a bulldozer into and against a fire water hydrant, owned by the Village of Lake Villa, while engaged in clearing snow from the state highway within the Village limits.

The evidence reflects that on December 21, 1951, a severe snow storm occurred in the vicinity of Lake Villa, resulting in all highways being closed and necessitating snow removal operations. Cedar Avenue in the Village of Lake Villa is on Illinois Route No. 132, and is a part of the system of state highways; and, as such, is under the jurisdiction of the Department of Public Works and Buildings of the State of Illinois for maintenance. Snow and ice removal are a part of the maintenance operations.

Because of the heavy snow fall, it became necessary for the Division of Highways to procure privately owned trucks, bulldozers and tractors to supplement its own snow removal equipment in clearing the highways. A bulldozer and operator were procured to perform snow clearing operations from Richard Jenkins and Ray Boiler, doing business as Jenkins and Boiler, under an oral agreement," wherein the Division of Highways reserved the right to choose the location and manner of operations.

The operations of this particular bulldozer during the afternoon of December 24, 1951 consisted of pushing drifted snow from the main traveled way onto the street shoulder of Cedar Avenue in the Village of Lake Villa. The snow upon the shoulders at the time of the snow clearing operations was, according to the evidence, from one to two feet in depth. The Departmental Report stated that the snow was of sufficient depth to completely cover the fire hydrants on the shoulder.

The evidence established that the Village fire hydrants in the area were approximately 26 to 30 inches in height above the ground, and were located 12 to 15 feet from the edge of the pavement.

"While engaged in pushing the snow from the highway, the bulldozer e struck a fire hydrant, breaking the same, and necessitating the installation of a new hydrant. This installation and necessary repairs were performed by the Inland Lakes Sewer and Water Company, who submitted their bill for such services in the amount of $536.40, which amount Mr. Michael W. Reimers, operator of the Inland Lakes Sewer and Water Company, testified was paid by the Village Board.

There were no eye witnesses offered by either claimant or respondent to the happening of the accident. The respondent, however, in its Departmental Report filed herein, admitted that the hydrant was struck and broken by the Jenkins and Boiler bulldozer, while it was engaged in pushing snow from the highway.

The evidence, presented in this case, leaves much to be desired from the standpoint of presenting either a claim or a defense.

It seems to us, however, that the reasonable in-Terence to be drawn from all the facts and circumstances in evidence is that the bulldozer operator was negligent. His negligence consisted of either failing to observe the fire hydrant, or, if such was not visible by reason of snow, failing to make a proper investigation to ascertain whether there were fire hydrants or other hidden installations in the path of the snow clearing operations. Obviously, if such investigation had been made, the location of the fire hydrant would have been discovered, and the damage avoided.

From the evidence, it appears that the operator of the bulldozer was acting as an agent of respondent, and was in the course of his employment, when the damage occurred. Therefore, respondent is, under the doctrine of respondeat superior, bound by the negligence of the operator.

It is noted that there is a variance between the repair bill set forth in the verified complaint, and the repair bill offered in evidence. It is noted that the bill offered in evidence contains a duplication, undoubtedly unintentional, of $15.75, an item for the wages of a laborer at $2.25 for seven hours. Inasmuch as the amount claimed in the complaint is $520.65, being $15.75 less than the bill offered in evidence, and, since the complaint has never been amended to correspond with the proof, we will allow the claim in the amount of $520.65.


text:
    (No. 4559
    Bankers and Shippers Insurance Company of New York, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1954.
    Saul A. Epton, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Fearer, J.

On July 16, 1953, a complaint was filed in this cause for the recovery of $924.26, representing an overpayment, through a clerical error by the claimant, of tax made to the Department of Insurance in accordance with the Illinois State Fire Marshal Tax Act. Ill. Rev. Stats., Chap. 127½, Sec. 16.

On November 30, 1953, a stipulation was entered into, which sets forth the facts relative to the overpayment made voluntarily by the claimant.

There is no statute covering overpayments voluntarily made to respondent, and no authorities have been cited, nor can we find any authority authorizing this Court to refund taxes voluntarily paid.

For the reasons assigned, an award to claimant must be, and is hereby denied.


text:
    (No. 4617
    Bradley Supply Co., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1954.
    Blum, Jacobson and Shkoler, Attorneys for Claimant.

      Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case is before us on respondent’s motion to strike and dismiss claimant’s complaint, which was filed on March 31, 1954.

Claimant seeks in this case to recover the amount of $131.28 for various plumbing and heating supplies furnished to the Illinois Coal Products Commission of the State of Illinois on the 17th and 18th day of March, 1952. It is alleged in the complaint that invoices were submitted to respondent, but no payment was made.

Respondent contends that pursuant to Chap. 37, Sec. 439.22, Ill. Rev. Stats., claimant’s cause of action here involved is barred, inasmuch as the complaint was filed more than two years after the supplies were furnished respondent. Claimant has filed no objection to respondent’s motion.

Claimant’s cause of action for payment first accrued upon the dates such supplies were furnished to respondent, said dates being March 17 and 18, 1952. The complaint was not filed until March 31, 1954, being more than two years after the cause of action first accrued. This Court is limited in its jurisdiction, in considering claims, to those that are filed within two years after thmf first accrue. Therefore, the claims asserted herein by claimant are barred, and the motion of respondent to strike and dismiss the complaint is allowed.


text:
    (No. 4368
    Flossie V. Henson, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 27, 1954.

    Flossie V. Henson, Widow, Et Al, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On March 9, 1951, an award in favor of Flossie V. Henson, widow, and Franklin Dean Henson, a minor, was entered in the sum of $6,675.00. The opinion in this case appears on page 256 of Volume Ho. 20 of the Court of Claims Reports. Jurisdiction was specifically reserved by the Court for the entry of such further orders as might be necessary.

The award, among other matters, found that Franklin Dean Henson was a minor child of the decedent, Robert Walter Henson, being born on June 10, 1933. The widow, Flossie V. Henson, was found to be entitled to the sum of $6,000.00, and, by reason of the existence of a minor child, the award was increased to the amount of $6,675.00.

On April 12, 1954, respondent filed a motion to modify the award, because of the fact that Franklin Dean Henson had attained the age of eighteen on June 10, 1951, and in its motion also alleged that the said child was physically and mentally competent.

In compliance with our opinion in Corcoran vs. State, 19 C.C.R. 159, we, therefore, compute the modification of the award as follows:

As of June 9, 1951, $880.71 of the original award had become due and payable to claimant. These payments amount to 13.194% of the total award of $6,675.00. Since the minor child has now become eighteen years of age, the balance of the original award must be reduced by the remaining percentage of the award made for the benefit of the child. 86.806% of the minor’s award amounts to $585.94. The balance of the original award at the present time is $2,602.50, which must now be reduced by $585.94, leaving a new balance of $2,016.56.

The award, heretofore entered, is, therefore, modified, and the sum of $2,016.56 shall be paid to claimant at the rate of $22.50 per week for 89 weeks, with one final payment of $14.06.

All future payments being subject to the terms and conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. This opinion is not to be construed as eliminating Franklin Dean Henson forever from a possibility of participating in the award. In the event of the death or remarriage of his mother, Franklin Dean Henson would be entitled to the unpaid balance of the award. Waechter vs. Ind. Com., 387 Ill. 256; Swift & Co. vs. Ind. Com., 288 Ill. 132; Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Swift & Co. vs. Ind. Com., 309 Ill. 11. The rights of Franklin Dean Henson were fixed prior to his reaching the age of eighteen, and his rights can never be extinguished as long as any amount remains unpaid under this award, as modified.


text:
    (No. 4537
    Adah Davis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 23, 1954.

      Petition of Claimant for rehearing denied June 25, 1954.
    Kenneth J. Peel and Joseph A. Londrigan, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Adah Davis filed her claim on December 29, 1952 seeking damages for injuries, which she sustained while attending the Illinois State Fair.

The record consists of the complaint, Departmental Report, transcript of evidence, statement, brief and argument of claimant, statement, brief and argument of respondent, and reply brief of claimant.

The facts of the case are as follows:

On Sunday evening, August 19, 1951, Mrs. Adah Davis attended a show at the Illinois State Fairgrounds, and purchased a seat therefor, which was located in Row 17, Section F of the grandstand. The grandstand is a steel and concrete structure, which was built in 1928, and, in reaching her reserved seat, Mrs. Davis climbed a certain concrete stairway to Row 17.

At the conclusion of the show, Mrs. Davis started down the concrete stairway, and was separated from her companions by the crowd using such exit. She had proceeded down the stairway several steps, when her foot slipped, and she fell to the left on the concrete floor, and suffered a broken leg. As a result of the injury, she required hospitalization, and the attendant expenses amounted to $3,851.30.

The exact cause of the fall is in dispute. Claimant’s theory of the case is that her foot struck an irregularity in the concrete step, while respondent contends that the fall could have been occasioned by any number of reasons.

Claimant also alleges that the state was negligent in not providing hand rails and lighting at the floor level, which contention this Court at the outset does not accept as reasonable. Outdoor grandstands and stadia, built for the accommodation of thousands, are constructed for utilitarian purposes. Patrons should expect no more than that they be reasonably safe and reasonably lighted.

Claimant, in her brief, has predicated her case on two propositions of law, namely, that it was the duty of the state to provide safe entrances and exits to the grandstand, and that she was not required to anticipate a dangerous condition, such as a defective step; and, secondly, when plaintiff presents a prima facie case, and the defendant fails to offer any contrary evidence, the Court should direct a verdict for plaintiff.

The respondent hás submitted that claimant must allege and prove due care; that the burden of proof is upon claimant to establish her case by a preponderance of the evidence; and, finally, that the state is not an insurer against all forms of accidents, which may happen to anyone attending the State Pair.

There is no question but what claimant was seriously injured by her fall, and that she has been put to great expense in an effort to cure the disability. However, the most serious question presented to this Court is whether or not claimant has established her case by a preponderance of the evidence. The witness, Harriet Spencer, did little more than establish that Adah Davis was in the grandstand at the time of the accident, as she was in no position to see precisely what caused the fall.

The testimony of Adah Davis is not clear and conclusive, which fact is best demonstrated by the following extracts from her testimony:

“Q. As you left the grandstand that evening, will you describe your course of travel?
A. Well, I was in front of Mrs. Spencer. We started out together, but the crowd got in between us — I don’t know how many, and as I was walking down the step my foot seemed to slip and I guess it was a kind of depression.
Q. Did you look where you were stepping?
A. Yes. I glanced — I kept my eyes down all the time, though.
Q. There was a crowd?
A. Yes. They were rushing out, because it was the close of the performance at that time.
O. You didn't observe that situation?
A. No. I didn’t.
Q. You slipped and fell?
A. This right foot seemed to go like that.
Q. Were you on the edge of the step at that time?
A. Yes. I was just going down, making this step. I had been going down all right until I got to that place.
Q. And then you fell and that is all you remember?
A. I don’t remember anything else except that they picked me up. I was suffering quite a deal. It had cut a place in my knee, and it was bleeding.
Q. Did you notice this particular step?
A. No, I didn't notice it until I put my foot down.
Q. What did you notice then?
A. I noticed there was something that jarred my foot.
Q. Which foot are you talking about?
A. My left foot.
Q. Tell us what you mean by “jarred” your foot. Did you stub your toe or did your foot slip?
A. My foot seemed to slip. It is hard to describe it.”

The photographs, offered in evidence as claimant’s exhibits Nos. 4 and 5, do tend to show a certain irregularity in the step between Rows 13 and 14. The evidence in the record does- establish that a depression existed on one of the stairs about one-half inch deep and four to five inches wide, and it is entirely conceivable that a person could fall, if the weight of the body was placed in the particular depression, while descending the stairs.

The testimony above set forth does not conclusively establish that the depression was the cause of the accident. The testimony indicates that claimant was caught in a crowd hurrying out of the grandstand. It is just as reasonable to assume that some person pushed claimant, in the press of the crowd, causing her to lose her footing; or, to conclude that claimant slipped, while descending the stairs, as it is to charge that the fall was due to negligence of the state. Because of the inadequacy of proof, this Court cannot say that claimant has established her case by a preponderance of the evidence.

Counsel relies heavily on the proposition that, when plaintiff makes a prima facie case, which is not controverted, the Court should direct a verdict for plaintiff, and cites six Illinois cases in support of such proposition. A reading of these cases discloses that five of the six cases were matters of contract, and the sixth was a suit to recover on a judgment.

Davidson vs. Zorger, 181 Ill. App. 113, was a case involving a suit for the recovery of a real estate commission by a broker, wherein defendant did not offer any evidence to dispute the claim.
Malleable Iron Co. vs. Brennan, 174 Ill. App. 38, was a case involving a suit for plumbing and heating material furnished an owner of property with no defense offered.
Marshall vs. Grosse Clothing Co., 184 Ill. App. 38, was a case involving a claim for rent, where no defense was interposed.
Dodson vs. E. St. Louis Lumber Co., 161 Ill. App. 88, was a case involving a claim for rent, and the directed verdict was reversed.
Evans vs. Evans, 163 Ill. App. 203, was a forceable detainer suit, wherein defendant failed to offer any evidence, and a peremptory instmction for plaintiff was given.
McDonald vs. The Village of Lockport, 28 Ill. App. 157, was a case involving a suit by the city to recover a judgment paid to a pedestrian by reason of a defective sidewalk built by defendant. The defendant appeared in the first proceeding, and assisted in the defense. The defendant was not permitted to introduce matters, which were in litigation in the initial suit, and, offering no other evidence, the Court instructed a verdict for plaintiff. It is to be noted in this case that the city alleged and proved the acts of negligence contained in its complaint.

There can be no dispute with this proposition of law as it relates to matters of contract, for, in fact, it is now possible to obtain such relief by motion for summary judgment. In matters of tort, it is elementary that facts must be alleged and proven by a preponderance of the evidence before a court or jury can say that negligence was present.

Counsel for claimant cites the case of Pollard vs. Broadway Central Hotel Corporation, 353 Ill. App. 312, as authority for the proposition that the claimant was not required to anticipate a dangerous condition, such as a defective step. In that case, plaintiff was the guest of the hotel for the first time. In leaving the building, she walked down the corridor, which contained an offset across the passageway, which was not easily discernible, and illuminated by artificial light, but at the time the lights had not been turned on. She fell at the offset, and was seriously injured.

To indicate how close the evidence was in this case, it is to be noted that on the first trial the jury could not agree. On the second trial a verdict of $9,000.00 was rendered for plaintiff, and was reduced to $7,500.00 by remitter. On appeal, the Appellate Court reversed the case for the reason that it did not appear that plaintiff was in the exercise of ordinary care. The case was brought before the Supreme Court upon certiorari, and the Supreme Court reversed the Appellate Court, and stated, upon a review of the evidence, that the verdict of the jury on the question of due care would not be disturbed.

The distinction between the above case and .the one now before this Court is quite apparent, for in the former case plaintiff walked down a corridor, which she had never traversed before. The offset in the passageway was recognized as a hazard by the hotel, and lights were in place for the safety of its patrons; but, due to the negligence of some employee, the lights had not been turned on, and the patron was thereby placed in a position of peril through no fault of her own. In the instant case, claimant climbed the particular stairway earlier in the evening, and, at the conclusion of the performance, had descended several steps before the accident occurred, so it cannot be said that claimant was unaware of the nature of the stairway; and, the irregularity in the stairway was so slight that it cannot be compared to the offset in the hotel corridor.

For the reasons above stated, the Court is of the opinion that claimant has failed to establish her case by a preponderance of the evidence, and, therefore, the claim must be denied.


text:
    (No. 4593
    Raymond W. Klasen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 25, 1954.
    Capelle H. Damrell, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Oil December 16, 1953, claimant filed his petition asking for an order directing the Treasurer of the State of Illinois to pay him the sum of $678.16 for compensation due him by reason of his services in the armed forces during World War II.

The record consists of the complaint with attached exhibits; certified copy of Court-Martial proceedings, recharacterization orders; claimant’s domestic and foreign service records, and stipulation in lieu of evidence. The Court, for good cause shown, allowed the motion of claimant and respondent to waive the filing of brief and argument.

The facts in the case are as follows:

On March 5, 1941, claimant was a resident of the State of Illinois, and on said date was inducted in the United States Army at Elgin, Illinois.

On December 20, 1945, claimant was tried and found guilty by a General Court-Martial (CM 284007) of rape and murder in violation of Article of War 92; and was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for the term of his natural life (General Court-Martial Order No. 24, Headquarters Army Air Forces Western Flying Training Command, Randolph Field, 20 December, 1945). On March 27, 1951, claimant filed an application for a new trial, and, on July 19, 1951, the findings and sentence of said Court-Martial having been vacated, a new trial was granted. By order of the Secretary of the Air Force, dated January 9, 1952, all rights, privileges and property of which accused had been deprived, by virtue of the aforesaid findings and sentence so vacated, were restored to him, and an honorable discharge was substituted for the dishonorable discharge previously executed.

This petition is before the Court of Claims by virtue of Chap. 126½, Sec. 65, Ill. Rev. Stats., which reads as follows:

“Consideration of claims where claimant was ineligible during period for filing claims. Any person who had a claim which would have been compensable by the Service Recognition Board, except that during the period for filing claims such person was ineligible by reason of a dishonorable discharge from service, who, prior to July 1, 1953, has or shall have such discharge reviewed and has obtained or shall obtain an honorable discharge, shall be entitled to have such claim considered by the Court of Claims and to have an award on the same basis as if his claim had been considered by the Service Recognition Board."

There is no dispute in the record but what complainant served 26 months and 5 days in domestic service, and 27 months and 23 days in foreign service. According to the provisions of Ill. Rev. Stats., Chap. 126½ Sec. 27, claimant would have been entitled to the sum of $678.16, had he been able to perfect his claim with the Service Recognition Board.

On May 20, 1953, the Legislature enacted Sec. 65 of Chap. 126½, heretofore set out in full, authorizing the Court of Claims to consider and make awards in the same manner as the Service Recognition Board.

This Court, therefore, finds that claimant has in all respects qualified himself, and is entitled to an award in the amount of $678.16.

An award is, therefore, made to claimant, Raymond W. Klasen, in the sum of $678.16.


text:
    (No. 4601
    The Texas Company, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 25, 1954.

    James W. Campbell, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Fearer, J.

The complaint in this cause was filed on January 25, 1954, and attached to it was a purchase order, which was identified as claimant’s exhibit A. A bill of particulars and an order of the Court waiving the filing of brief and argument in said cause have also been filed.

On March 12, 1954, a Report of the Division of Highways made by Earl McK. Guy, Engineer of Claims, verifying claimant’s exhibit A as a true and correct copy of purchase order No. F-98331 issued to The Texas Company by the State of Illinois, Department of Finance, Division of Purchases and Supplies, was filed.

It is, therefore, the order of this Court that the claim in the amount of $172.42 be, and is hereby allowed.


author: Delaney, J. Fearer, J.

text:
    (No. 4456
    Patrick Butler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

      Opinion on rehearing filed July 23, 1954.

    D. F. Rumsey, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Patrick Butler, was employed by the Department of Public Works and Buildings, Division of Highways. On July 6, 1950, Mr. Butler was one of a group of maintenance employees engaged in rebuilding shoulders on the right-of-way of Illinois Route No. 142 in Saline County, north of Eldorado. The work was being done at a point approximately four miles north of the junction of Illinois Route No. 142 and Saline County SA Route No. 10. At approximately 2:45 P.M., Mr. Butler was backing a truck loaded with dirt into an area washed out of the highway shoulder. As the truck was backed up to the eroded area, the edge of the shoulder gave way. This caused the back of the truck to fall into the depression. Mr. Butler, thinking the truck would turn over backwards, jumped from the truck cab, and fell to the ground near the edge of the depression. The truck did not turn over, but the front end was raised into the air, and swung around in such a manner that when the front wheels came down, they pinned Mr. Butler’s legs to the ground.

The Division had Mr. Butler taken to the Ferrell Hospital Clinic at Eldorado, where Dr. N. A. Thompson treated him.

July 7, 1950, Dr. Thompson reported as follows:

"Patient states that while hauling dirt to dump and fill in a low place on highway No. 142, the earth gave way beneath the truck. Nature of injury— Sprain of left ankle, abrasions. Treatment — Hospitalized. X-Rays — Revealed no fracture. Estimated date of discharge — September 1, 1950. Estimated date patient able to work — September 1, 1950. What permanent disability do yon expect? — Apparently none.”

On August 21, Dr. Thompson sent the following letter to the Division of Highways:

“The above named patient has complained of pain and swelling of the left ankle since he was hospitalized on July 6, 1950. X-Ray films taken today reveal partial fracture of the left medial malleolus, and also a partial fracture of the left fibula in the lower third. These fractures were identified by the callus formation thrown out from them.
The old X-Ray pictures were re-checked, and we were still unable to identify any fracture in them.
A firm adhesive brace was put on the ankle, and he was advised to use it as little as possible. He should have complete recovery within six weeks.”

On October 21, Dr. Thompson submitted his final report:

“X-Rays — Taken August 21, 1950, revealed partial fracture of the left medial malleolus, and also a partial fracture of the left fibula in the lower third.”

On May 10, 1952, Dr. John Elder Choisser reported as follows:

“Physical examination on this date reveals that there is definite limitation of plantar flexion of tire left foot and the ankle joint of about 40%. There is limitation of dorsi flexion of the left foot at the ankle joint of about 30%. There is approximately 40% limitation of lateral abduction and medial inversion of the left foot at the ankle joint.
It is my professional opinion that the marked limitation of motion of the left ankle joint is due to the old healed fracture of the distal ends of the left fibula and left tibia bones and the accompanying teno-synovitis of the ligaments of the left ankle.
This man has a definite permanent disability of the left leg due to the injury to his left ankle joint area.”

The record consists of the complaint, Departmental Report, answer of claimant to Departmental Report, stipulation waiving briefs of both parties, transcript of evidence, and stipulation of medical report of Dr. John E. Choisser between the parties herein.

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

On July 6, 1950, claimant, a widower, was 63 years of age. There were no children under 18 years of age dependent upon him for support. He earned a total of $2,688.00 in the year preceding his injury.

The compensation rate is the maximum of $15.00 per week. Since the accident occurred subsequent to July 1, 1949, this amount must be increased 50 per cent, or a weekly rate of $22.50.

Mr. Butler, was totally disabled because of his injury from July 7 to September 30, 1950, inclusive, a period of 12 2/7 weeks. He was paid full salary in lieu of compensation July 7 through July 31, inclusive, in the amount of $180.64. He was paid compensation at the rate of $22.50 a week from August 1 to September 30, inclusive, in the amount of $196.07. Claimant should have received his compensation rate during the period from July 7 to July 31, which would amount to $80.36. As claimant received $180.64, it is necessary for us to deduct the sum of $100.28 from the award to be granted herein.

Prom the record before the Court, we are of the opinion that, as a result of the accident on July 6, 1950, claimant has suffered the permanent loss of use of his left leg. Under Section 8 (e-15) claimant will receive 190 weeks at the compensation rate of $22.50 per week, or the sum of $4,275.00, less the overpayment of $100.28, making a total sum of $4,174.78.

An award is, therefore, entered in favor of claimant, Patrick Butler, in the amount of $4,174.78, payable as follows:

$2,076.43, which has accrued, less overpayment of $100.28, or $1,976.15, which is payable forthwith;
$2,198.63, which is payable in weekly installments of $22.50, beginning on July 15, 1952, for a period of 97 weeks, with an additional final payment of $16.13.

The testimony at the hearing before Commissioner Summers was taken and transcribed by Nina Lee Patton of Harrisburg, Illinois, who made charges therefor in the amount of $20.55. These charges appear reasonable and proper.

An award is, therefore, entered in favor of Nina Lee Patton in the amount of $20.55, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act Concerning the Payment of Compensation Awards to State Em- ’ ’.

Opinion on Rehearing.

Fearer, J.

This cause is before the Court on the petition of respondent for rehearing filed on July 29, 1952, and the order of the Court granting the prayer of the petition for rehearing filed on October 10, 1952. An opinion of this Court was rendered and filed with the Clerk on July 8, 1952.

On June 21, 1954, there was filed in this Court a stipulation wherein claimant by his attorney, and respondent by the Attorney General, Latham Castle, agreed that the medical reports of Gilbert T. Hyatt, M.D., of 1106 West Franklin Street, Evansville, Indiana, who examined claimant on May 16, 1953 and June 2, 1954, should be considered as additional medical evidence in this case, in accordance with the order of the Court entered on October 10, 1952 granting respondent’s petition for rehearing, and further giving leave for the submission of such additional medical evidence as either side might desire.

As stated, claimant was examined by Dr. Gilbert T. Hyatt, and medical reports, dated May 16, 1953 and June 2, 1954, were sent to Mr. Earl McK. Guy, Department of Public Works and Buildings, Springfield, Illinois, and subsequently filed in this cause.

The Court, in its opinion handed down on July 8, 1952, made an award to claimant for the loss of use of his left leg, which, under the Workmen’s Compensation Act at that time, was fixed at 190 weeks at his compensation rate of $22.50 per week. From this award was deducted the sum of $100.28, representing an overpayment to claimant, as shown by the record in the case.

In considering this matter, we are confronted with the medical testimony of Dr. John E. Choisser, who testified on behalf of claimant, and also his medical report, which was filed in tins cause as a Supplemental Report, dated May 10, 1952.

At the hearing before Commissioner Frank M. Summers on November 1, 1951, Dr. Choisser testified that he examined claimant on September 14, 1951 and August 1, 1951, and took some X-Rays. At that time he learned that Mr. Butler had received injuries to his back and left leg on July 6, 1950, while working for respondent. When examined, claimant complained of stiffness and weakness in his left ankle. Dr. Choisser stated he found there was a limitation of the plantar flexion and dorsi flexion, and lateral abduction of the left ankle. He testified that the limitation of the left ankle was between 25 and 30%, and his examination revealed that the left ankle at the level of the malleoli revealed the left ankle at the distal end to be larger than the right ankle. Anterior-posterior and lateral X-Rays of the left ankle and leg revealed old healed fractures of the distal end of the left tibia and fibula, as well as arthritic changes, which, in his opinion, were due to trauma. It was further his opinion that Mr. Butler’s injury was permanent in its - nature.

He testified that both tibia and fibula were fractured, and that there were arthritic changes in both of them. He further testified that claimant had lost the partial use of the left ankle. He was further asked by counsel for claimant:

“Do you have an opinion from the examination and the X-Ray what percentage he has lost because of his injury?”

The doctor testified that it was his professional opinion that Mr. Butler had a 30 to 35% loss of the use of the ankle'.

There was no further medical testimony offered by claimant. However, by stipulation, the Supplemental Report, dated May 10, 1952, hereinabove referred to, and signed by Dr. Choisser, was filed with the Court. It revealed that by further physical examination there was a definite limitation of plantar flexion of the left foot and the ankle joint of about 40%. There was a limitation of dorsi flexion of the left foot at the ankle joint of about 30%, and approximately 40% limitation of lateral abduction and medial inversion of the left foot at the ankle joint. He gave as his professional opinion that the marked limitation of motion of the left ankle joint was due to the old healed fracture of the distal ends of the left fibula and left tibia bones, and the accompanying teno-synovitis of the ligaments of the left anide. He concluded by saying that claimant had a definite permanent disability of the left leg dne to the injury in his left ankle joint area.

Dr. Gilbert T. Hyatt’s written report, dated May 16, 1953, and based upon his examination of claimant, revealed subjective findings, as follows: Left lower extremity quite weak; midback region weak and painful, cannot do much bending or lifting; unable to walk on uneven ground; difficulty in' walking up or down stairs, and in getting into and out of cars; not able to put much weight on left foot; pain in the left ankle and leg; swelling of left ankle and leg after use; and, interference with rest at night because of pain.

Objective findings were that he walked with a left sided limp, some atrophy of the left thigh and leg. Motions of the left ankle and left tarsal regions were restricted to about half normal. The left knee jerk and ankle jerk were slightly diminished. Sensation was normal. Motions of the spine were a little restricted in all directions. X-Rays of the left ankle showed old healed fractures of the tibia and fibula; a little irregularity of the joint surface of the tibia, and osteoarthritic changes beginning about the ankle joint.

In concluding his report, Dr. Hyatt stated that claimant, Patrick Butler, sustained fractures of the left tibia and fibula at the ankle, and a strain of his back on July 6, 1950, and since that time has had pain and weakness in the left lower extremity and midback region. The fractures have healed, but there is some residual atrophy of the left lower extremity, some restriction of motion of the left ankle, foot, and back, and some traumatic arthritis of the left ankle due to the joint injury. Although his complaints may be somewhat exaggerated, Dr. Hyatt believes that claimant has a true traumatic neurosis superimposed upon his real physical disability. In his opinion, claimant has a permanent partial disability, approximating the. loss of three-fourths of his left lower extremity.

He wrote a second report on June 2, 1954, which was based upon his examination of claimant at the Harrisburg Hospital on May 17, 1954. Subjective findings were that claimant continued to have pain in the left ankle, and up the inner side of the left leg; could not go up or down stairs normally, because the left ankle would not hold him, and he had to hold on to something; the medial aspect of the left ankle tended to give way; and, the left ankle continued to swell when he is on it very much. Findings also revealed that claimant was well developed and nourished; limps on the left lower extremity; and, has no localized tenderness. Dr. Hyatt further stated that from claimant’s history he has made no notable improvement since the previous examination on April 10, 1953, and no appreciable changes in the physical examination were noted. Both physically and mentally his condition seemed unchanged from the previous examination.

The measurements of the lower extremities are noted by the chart filed with the Report, dated June 2, 1954. First, we will consider the ankle. There is no variance in the Report between the left ankle and the right ankle, except under eversion, where the right ankle is 10° and the left ankle 5°. Under the heading Great Toe” have been listed the metatarsophalangeal joint, interphalangeal joint, no - difference between the left and right. Measurements of motion between the left and right leg, abduction, right 35°, left 30°; adduction, right 30°, left 25°. Internal rotation, right 15°, left 10°; circumferential measurements (thigh) right 16", left 15%". As to all other measurements, they are the same. In the knee the only variance between the left and right is in the measurements of the calf, right 11%", left 11".

The evidence reveals that claimant returned to work as a truck driver in October of 1950, and worked until approximately May 10, 1951.

Mr. Butler was disabled because of Ms injury from July 7 to September 30, 1950, inclusive, a period of 12 2/7 weeks. He was paid full salary in lieu of compensation' from July 7 through July 31, inclusive, in the amount of $180.64. He was paid compensation at the rate of $22.50 a week from August 1 to September 30, inclusive, in the amount of $196.07. Claimant should have received Ms compensation rate of $22.50 per week during the period from July 7 to July 31, which would have amounted to $80.36. As claimant received $180.64, it is necessary to deduct the sum of $100.28 from any award granted herein.

From the record before the Court, and additional supplemental medical reports, we are of the opinion that, as a result of the accident on July 6, 1950, claimant has suffered a partial loss of the use of his left leg. However, in tMs respect, it is difficult for us to determine from the medical evidence submitted, either by the written reports filed in this cause, or by testimony offered, the percentage of loss of use of the left leg claimant hás sustained.

It appears to us that, in referring to the lower extremity of the left leg, the doctors are referring to a line above the ankle joint, and, therefore, we cannot consider that claimant has lost the use of the entire left leg, but "will have to endeavor to arrive at a percentage based upon medical findings of the two doctors.

At the time of the injury and the original hearing in this case, Section 8 (e-15) of the Workmen’s Compensation Act provided for the payment of compensation for a period of 190 weeks for the permanent loss of use of a leg. Claimant’s compensation rate at said time was $22.50 per week.

We are hereby modifying the award previously made, and are entering an award in favor of claimant, Patrick Butler, in the amount of $2,137.50, less the overpayment of $100.28, or a total award of $2,037.22, all of which has accrued, and is payable forthwith.

The former opinion allowed $20.55 to Nina Lee Patton of ¡Harrisburg, Illinois, for transcribing the testimony before the Commissioner. These charges appear reasonable and proper, and, since they have never been satisfied, the sum of $20.55 is herewith ordered paid to Nina Lee Patton.

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”.