text:
    (No. 3618
    Helen Conwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

      Rehearing denied January 12, 1943.

    A. B. Lager, for claimant.
    George P. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Helen Conwell, is a daughter of Marshall Con-well, deceased, a former flagman employed by the Division of Highways of the State of Illinois. On July 30, 1940, while flagging traffic on U. S. Route 50 about one mile east of Carlyle, Illinois, Conwell was struck by an automobile and instantly killed. At the time of the accident, the employer and employee were operating under the provisions of the Workmen ’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment. Claimant alleges that at the time of his death, she was partially dependent upon the deceased for support.

Conwell was first employed by the Division of Highways on July 29, 1940, at the rate of fifty cents per hour for an eight-hour day; the death having occurred on July 30, 1940, his period of employment by respondent was less than one year. Employees of the Division engaged in a similar capacity work less than two hundred days a year. At the time of his death, decedent was sixty-eight years of age and had no children under sixteen years of age and no wife dependent upon him for support.

Claimant seeks an award under Section 7 (c) of the Workmen’s Compensation Act, which provides that a child partially dependent, at the time of the injury, upon the earnings of the employee, shall be paid compensation in such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less than one thousand dollars and not more than three thousand seven hundred and fifty dollars. The only question presented is whether or not dependency existed, and if so, to what extent.

From 1933 to August, 1936, Conwell worked at a shoe factory, earning $55.00 every two weeks. From August, 1936, until July 29, 1940, he was a constable and did odd jobs in and about Carlyle, Illinois; his yearly average earnings during this period were from $250.00 to $300.00; he purchased his own clothing and incidentals, and paid some money for board furnished him by another daughter at her home.

From 1935, to October, 1937, Conwell, his wife, his son and wife, and claimant resided in a house on Fairfax Street in Carlyle. Claimant’s mother died in April, 1936. During October, 1937,' claimant and her father moved from the house on Fairfax Street to rooms in the house of one Mrs. Gullick, where Conwell was living at the time of his death. These consisted of two bedrooms and a kitchen; the rental was $10.00 per month, which Conwell paid. It is undisputed that while claimant lived with her father on Fairfax Street, and prior to the move to the Gullick home in October, 1937, she was wholly dependent upon him for support. Hone of her brothers or sisters contributed to her support, and none of them was dependent upon the father for support.

In November, 1937, claimant, who was then thirty-five years of age, went to St. Louis to care for an aunt, and continued in this employment “off and on, through fourteen months, till she died. ’ ’ Claimant received room and board and about $20.00 in cash during this period. She visited her father in Carlyle, “once every two weeks, sometimes once a month.” Her father gave her money for “clothes and little expenses . . . when he had it.” After the death of her aunt, claimant spent her time in various employments: from March, 1939, to July, 1939, she* worked for board and room caring for an invalid; from July, 1939, until March, 1941, after the death of her father, she kept house for two girls in St. Louis, Missouri, for board and room and $4.00 per week; since that time, she has continued to do house work whenever she has been able to obtain such employment. After the death of her father, she abandoned the rooms in Carlyle.

Dependency is a question of fact. As the term is used in the Workmen’s Compensation Act, it has been defined to be a present, existing relation between two persons, where the one is sustained by the other or relies on the aid of the other for his means of livin. France Stone Company vs. Industrial Commission, 369 Ill. 238. Partial dependency may exist even though the claimant could have subsisted without the decedent’s contribution. The decisive test is whether the contributions were relied upon by the dependent for his means of living, as determined by his position in life, and whether he was to a substantial degree supported by the decedent at the time of the latter’s death. General Construction Company vs. Industrial Commission, 314 Ill. 58; Weil-Kalter Mfg. Co. vs. Industrial Commission, 376 Ill. 48.

The court is of the opinion that at the time of her father’s death, claimant was not dependent upon him. She did not look to or rely upon Ms aid for her support or for reasonaMe necessaries consistent with her position in life for at least a year prior to his death. Bather she received from her father, according to her own testimony, “just small incidentals.” Her claim does not meet the decisive test. It does not appear that she relied upon the contributions from her father for her means of living, or that she was to any substantial degree supported by her father at the time of his death. He was living in rooms at Carlyle, where she visited him occasionally; while there she performed small services for Mm, such as cooking his meals; occasionally he gave her small amounts of spending money. The record shows an affectionate family relationship, but it does not show any contribution by the father to the claimant of moneys which were relied upon as means of support. The claim is therefore denied.


source: Caselaw Access Project

author: FlSHEB, J. Eckert, J.,

license: Public Domain

text:
    (No. 3602
    Thomas Cryder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Louis Beasley and Joseph A. Troy, Jr., for claimant.
    George F. Barrett, Attorney General; Bobert V. Ostrom, Assistant Attorney General, for respondent.
   FlSHEB, J.

This claim was filed April 5,1941. It is for benefits under the Workmen’s Compensation Act, claimed by claimant for temporary total disability, and for total and permanent disability and for medical bills contracted as a result of an accident. This claim is based on injuries received by claimant, alleged to have arisen out of and in the course of claimant’s employment. This claim was filed for benefits under the Workmen’s Compensation Act as the same is applicable to State employees.

The complaint alleges that claimant was an employee of the Division of Highways, employed as a laborer. The complaint further alleges that on the 13th day of September, 1940, while engaged in his employment, claimant was riding in an automobile owned and maintained by the State, and being driven by a fellow employee. That claimant was seated in the front seat of said automobile and, while they were traveling in a southerly direction on a highway known as Bangs Highway within the corporate limits of East St. Louis, their said automobile was struck by another motor vehicle operated by Michael Sinn. That, as a result of said accident, claimant was totally and' permanently disabled, and has been since the date of said accident.

Claimant alleges that compensation payments were made for temporary total disability in the sum of $260.58. That -payments have been made for medical and hospital bills in the sum of $509.80. The report of the Division of Highways shows bills were paid in the sum of $590.80. That claimant has contracted additional hospital and medical bills as a result of the accident in the sum of $698.95.

Claimant alleges that respondent had notice of the accident on the date thereof. That claimant was 70 years of age and had no children under the age of 16 at the date of said accident. That no third party or corporation has any interest in this claim.

The record in this case consists of the complaint, report of the Division of Highways signed by M. K. Lingle, Engineer of Claims, the transcript of evidence, and statement, brief and argument on behalf of claimant and respondent.

As the Division of Highways had knowledge dent on the date on which it occurred, and the complaint was filed on April 5, 1941, the provisions 'of Section 24 of the Workmen’s Compensation Act have been complied with. This court, therefore, has jurisdiction of this claim. It also appears from the evidence, that claimant was injured during the course of and out of his employment, and the court so finds.

The difficulty presented by this case however, is the extent and permanency of claimant’s injuries — what resulted from the accident — what resulted from a coronary thrombosis ■ — and whether the coronary thrombosis was a result of the accident. Claimant was a man 69 years of age at the time the accident occurred and the evidence shows that for a man of his age he was in general good health and was able to perform the duties of his employment which consisted of taking care of the lawn, shrubbery, trees, cutting lawn, watering and general landscape work, including handling wheelbarrows of dirt as occasionally his duties required. He was seriously injured and, on September 25, 1940, a few days after the accident, Dr. Cannady, physician in charge, reported as follows:

“Fracture of left 6th to 10th ribs, inclusive. Internal abdominal injuries. Treatment — absolute rest; immobilization of chest; continuous suction to small bowel.”

On September 30, 1940, Dr. V. P. Siegel, who also attended claimant, reported—

“Fracture of 6th to 10th ribs, inclusive, left side. Pleural effusion. Internal injuries (contusion and slight hemorrhage). Paralytic ileus. Treatment — Mueller Abbott tube; strapped ribs; intravenous therapy.”

Dr. Cannady testified on September 23, 1941, in describing the physical condition of claimant at that time—

“At this time Mr. Cryder has a stiffness and loss of use of his right shoulder,y his right wrist, and some impairment of use of his left wrist; has stiffness of his back; he has a great deal of difficulty in getting about; he becomes short of breath when he moves around; and I can imagine he is very weak.”

In answer to a question as to what effect it would have, considering his age and the fact that he sustained fractures and broken ribs of the number and locality described, the Doctor replied—

“Well, if there- are no complications from it and no displacement, it might have no effect. However, in his case, he developed a pleurisy with it at the time he was in the hospital and a chest film later showed that adhesions had formed in the region of the left diaphragm, which later developed and gave him shortness of breath.”

The Doctor was also asked the following questions, and gave the answers as noted.

Q. What do you say, Doctor, as to whether he is able to do any manual labor of any kind, such as attending garden, shrubbery, trees, being the kind of work that he did prior to the date of his injury, prior to September IS, 1940?
A. It would be impossible for him to do such work.
Q. Do you know of any kind of work that Mr. Cryder can do in his present physical condition?
A. I do not.

The testimony further shows that claimant was confined to the hospital about four weeks after the injury; then was confined to his home, and his condition was gradually showing improvement until February 21, 1941, when he was again taken to the hospital because he had suffered an attack of myocardial infarct, which is a loss of function of part of the myocardium, or heart muscle, due to its loss of blood supply. This usually follows a coronary thrombosis, which is a closing off of one of the arteries of the heart muscle. He was then confined to the' hospital about five weeks and stayed in bed another eight weeks after he returned home, and it was some weeks after that before he was able to walk without assistance. It also appears that on the date of the"hearing, September 23, 1941, he was still in a very weakened condition and was only able to get about by walking very slowly. During the time claimant was confined to the hospital immediately after the accident, for a period of from seven to fourteen days it was necessary to feed him intravenously as they had to insert a Mueller Abbott tube down through his mouth or nose, through his stomach into the intestinal tract. It also appears from the evidence that because of the condition of claimant’s shoulder, arm, wrist, fingers and back, that he is permanently incapacitated from doing any further work, part of which condition was caused by his long confinement in bed. Before the heart attack, claimant complained about the condition of his shoulder and hand, and still showed weakness. From the medical testimony, these conditions would be aggravated in a man of claimant’s age by his long confinement in bed. With reference to claimant’s condition when he went back to the hospital on February 21, 1941, Dr. Cannady was asked—

Q. During that time, Doctor, do you have an opinion as to whether he was still suffering from the alleged injuries that he claims to have sustained on September 13, 1940?
A. Yes, he was complaining of shortness of breath, abdominal discomfort, increasing, continuing pain of his right wrist and increasing disability of his right shoulder.
Q. Has there ever been a time when those conditions cleared up or disappeared, Doctor, that you know of, since his injuries?
A. No, there never has been.

With reference to the coronary thrombosis, Dr. Cannady was asked—

Q. Now, Doctor, can you associate, or do you associate, the condition that he had in February, called coronary thrombosis, with the accident that he sustained and the injuries consequent from that accident that he sustained September 13, 1940?
A. I think it is impossible to state that the coronary thrombosis was or was not the — or, rather, let’s put it this way — I think it is impossible to state that the accident was or was not the direct cause of the coronary thrombosis. There is no way of proving either, whether it was or was not — impossible to prove either way.
Q. Taking into consideration the fact that Mr. Cryder’s previous condition of health, his ability to work, and the fact that he sustained these injuries — taking into consideration all of those facts and then the fact that some time afterwards he suffered coronary occlusion, would you say that you might associate the coronary occlusion with the injuries and the after effects following the injuries, would that he possible, Doctor?
A. I think the only way that question can be answered is to state at the time he had the attack of coronary thrombosis he had not, however recovered from the effects of his injuries and anything which might weaken him and cause a poor general condition could increase a tendency towards such an occurrence.
Q. And taking all these elements into consideration your answer would be that that might have a tendency to bring about the coronary occlusion; in saying that — that is conclusive — but it might have a tendency to do that?
A. It might have, but you can’t prove it either way.

There was also the testimony of Dr. Drew Luten, which is based on the history and observation of the patient and, as Dr. Luten was not the treating physician and merely made an examination for the purpose of testifying and filing a report, it, under the circumstances cannot be taken into consideration, considering the rule laid down in the case of National Malleable & Steel Castings Co. vs. Industrial Com., 377 Ill. 169, wherein the Supreme Court said, on page 176—

“It is competent to have experts read the x-rays films. However, in this connection it should he noted that in so far as the introduction of such matters is related to the rules of evidence, the opinion of a medical expert who has not treated the employee but has examined him for the purpose of testifying as to the cause of his physical condition, is not admissable where it is based wholly upon the physician’s observations of outward manifestations within the employee’s control, or where it rests partly upon the statement of the case made by the employee. Sanitary District vs. Ind. Com., 343 Ill. 236; Lehigh Stone Company vs. Ind. Com., 315 Ill. 431; Wells Bros. Co. vs. Ind. Com., 306 Ill. 191.”

Respondent advances the argument that—

“Liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence but such liability must arise out of the facts established by a preponderance of the evidence,”

and cities as authority—

Inland Rubber Co. vs. Ind. Com., 309 Ill. 43;
Selz-Schwab & Co. vs. Ind. Com., 362 Ill. 120;
Berry vs. Ind. Com., 335 Ill. 374;
Standard Oil Co. vs. Ind Com., 339 Ill. 252.

This court has also followed this law in numerous cases heretofore decided by it.

Whereas the above is true, it is also true that the Supreme Court has held in many cases, as has this court, that awards must be based in accordance with the manifest weight of the evidence. Accordingly, the whole record must be considered before it can be determined what is a reasonable and fair decision, taking all the evidence into consideration. The record shows that prior to claimant’s injury he enjoyed good health and, as stated in Weil-Kalter Mfg. Co. vs. Ind Com., 376 Ill. 48, the Supreme Court said, on page 55—

“Proof of a decedent’s perfect health prior to an injury, and of a change occurring immediately afterwards and continuing until death, is competent to establish that the subsequent condition resulted from the injury.”
Macon County Coal Co. vs. Ind. Com., 374 Ill. 219;
Plano Foundry Co. vs. Ind. Com., 356 Ill. 186;
Consolidated Coal Co. vs. Ind. Com., 320 Ill. 171.

The Supreme Court also said, in Heyman Distributing Co. vs. Ind Com., 376 Ill. 90, where the court in discussing the rule relative to proof of controverted facts, uses the following language on page 92—

“The facts may be established by circumstantial as well as direct evidence, and the greater or less probability, leading on the whole to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts.”

It is, of course, impossible for this court to say that the coronary thrombosis was, or was not, a result of the accident, as the doctors who testified would not commit themselves in this regard. It is apparent that the history of cases of coronary thrombosis is such that it is difficult to make a positive statement as to the cause, and in this regard Dr. Cannady tried to be very fair in his conclusions. Claimant was, however, very seriously injured, and while still in a weakened condition he suffered this complication, of an attack of coronary thrombosis. At the time this attack occurred, on February 21, 1941, he was complaining about his shoulder and fingers, he had only partial action in his wrist, his back bothered him, and he was complaining about tenderness in the abdominal region and, with the additional complication and confinement fór a long period of time in bed, his general condition was such as to make him permanently disabled. This court is of the opinion, in view of all the evidence and the reasonable inferences arising therefrom, and so finds, that claimant is permanently disabled as a result of the accident.

There is an unpaid medical bill of One Hundred Thirty-three Dollars ($133.00) due Dr. Cannady for services rendered to claimant which should be paid by respondent.

The record also discloses that claimant obtained a judgment for Three Thousand Dollars ($3,000.00) against the driver of the other automobile involved in the collision, which judgment was paid in full, which must be taken into consideration when making this award, the respondent already having been reimbursed in the sum of Eight Hundred Fifty-one and 38/100 Dollars ($851.38) covering the item of Two Hundred Sixty and 58/100 Dollars ($260.58) paid to claimant for total temporary disability and the sum of Five Hundred Ninety and 80/100 Dollars ($590.80) for moneys expended by respondent for doctor, hospital, nurse and treatment expenses.

According to the record, the amount of wages received by claimant for the year next preceding the accident was One Thousand Ninety-eight and 50/100 Dollars ($1,098.50), or an average weekly wage of Twenty-one and 12/100 Dollars ($21.12). He had a wife, but no children under 16 years of age. He was paid compensation for temporary total disability for the period September 14, 1940 to February 20, 1941 in the total amount of Two Hundred Sixty and 58/100 Dollars ($260.58).

As claimant suffered complete disability,' he is entitled to compensation as provided in Subsection (f) of Section (8), limited by paragraph (a) of Section (7). This amount would be Four Thousand Dollars ($4,000.00), increased 10% by Subsection (L) of Section (8), or Four Hundred Dollars ($400.00), making the total Four Thousand Four Hundred Dollars ($4,400.00). From this would be deducted the compensation paid of $260.58, which would reduce the amount to $4,139.42. The record shows that claimant collected a judgment of $3,000.00 from a third person whose negligence caused the accident. From this amount claimant reimbursed respondent with the sum of $590.80 for medical and hospital bills paid by the State and the sum of $260.58 claimant received for temporary total disability, or a total of $851.38, leaving the balance retained by claimant, the sum of $2,148.62. Under Section (29) of the Act, this amount must be-deducted from the amount of compensation due him of $4,139.42. This would reduce the compensation due claimant to $1,990.80. The weekly compensation rate would be $10.56, increased by 10%, or $11.61. The sum of $2,148.62, being the. sum retained by claimant from the judgment, must be considered as compensation already paid claimant. He has, therefore, been paid from September 14, 1940, the day after his injury, for a period of 185 weeks, or until April 1, 1944 plus • 77 cents.

Claimant is entitled to recover as follows :

(a) For complete disability, the sum of $1,990.80 payable $10.84 on April 8, 1944; $11.61 on April 15, 1944 and $11.61 weekly there after until said sum of $1,990.80 has been paid;
(b) A pension during life annually in the sum of $352.00. payable in monthly installments, the first payment to commence one month after the present sum of $1,990.80 has been fully paid.

Award is, therefore, entered in favor of Dr. Edward W. Cannady in the sum of $133.00, payable forthwith; and an award is also entered in favor of claimant in the sum of $1,990.80 payable $10.84 on April 8, 1944, $11.61 on April 15, 1944 and $11.61 weekly thereafter until paid; and thereafter a pension during life annually in the sum of $352.00 payable in monthly installments, the first payment to commence one month after the aforesaid sum of $1,990.80 has been fully paid.

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

Eckert, J.,

dissenting:

The record in this case fails to prove that the coronary thrombosis was a result of the accident, and that the original injury totally and permanently disabled the claimant. The record fails to prove whether claimant was still temporarily totally disabled when the coronary thrombosis occurred, or whether claimant’s condition had reached a partial permanent stage. The Supreme Court of Illinois, and this court, have repeatedly held that the burden of proof is upon the claimant and that the employer’s liability can not rest upon imagination, speculation, or conjecture, or upon a choice between two views equally compatible with the evidence.

Claimant here has failed to sustain his burden of proof. Evidence of claimant’s prior good health, under the decisions of the Supreme Court, is competent and persuasive, but it remains one element of proof. The record in this case is not sufficient to sustain an award.


author: Eckert, J.

text:
    (No. 2893
    Walter Donovan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

On January 18, 1936, the claimant, Walter Donovan, was employed as a guard on the joint payroll of the Secretary of State and the State Treasurer. While working on the night shift, he slipped on the steps of the Capitol Building, fell, and broke his right arm at the wrist. X-rays were taken at St. John’s Hospital in Springfield, and the arm was set by Dr. John J. Donovan. Claimant paid the hospital $8.50, and owes Dr. Donovan $85.00 for his services.

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

Award is therefore made in favor of the claimant in the total sum of $93.50, payable as follows:

1. The sum of $85.00 for the use of Dr. John J. Donovan.

2. The sum of $8.50 to claimant.

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


author: Fisher, J.

text:
    (No. 3733
    Clifford Frane, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

This claim was filed July 22, 1942. It is- for benefits under the Workmen’s Compensation Act claimed by claimant for the loss of the first phalange of the third finger and the loss of the first phalange on the fourth or little finger of the left hand. The claim is based on injuries alleged to have arisen out of and in the course of claimant’s employment as a mechanic’s helper for the Division of Highways, Department of Public Works and Buildings.

The complaint alleges that claimant, while engaged in removing a snow plow frame from under a truck, was injured when the frame accidently dropped from the truck frame, amputating the first phalange of the third and fourth fingers of his left hand.

It is further alleged that claimant was given first aid treatment at St. Joseph’s Hospital, Joliet, Illinois, and was returned to the Sherman Hospital, Elgin, Illinois, for additional hospitalization.

It is further alleged that claimant was employed for forty-one (41) consecutive weeks by the State of Illinois prior to the date of the injury, and that during said time he received the total of One Thousand One Hundred Ten and 48/100 Dollars ($1,110.48) as wages from the State of Illinois. That the claimant has been paid compensation for one and three-sevenths weeks, amounting to Twenty-one and 17/100 Dollars ($21.17).

Complaint further alleges that claimant is entitled to compensation in the sum of Three Hundred Thirty-five and 12/100 Dollars ($335.12).

The record of the case consists of the complaint, report of the Division of Highways of the State of Illinois, and brief and argument filed on behalf of respondent.

The accident for which this claim is filed occurred on March 19, 1942. Notice of the same was given to respondent on the date it occurred and claim was filed on July 22, 1942. The provisions of Section 24 of the Workmen’s Compensation Act having been complied with, this court has jurisdiction thereof.

It appears from the report of the Division of Highways that the claimant was engaged in routine duty when the frame which he was removing from the bottom of the truck fell, crushing the fingers on his left hand, and that the injury arose during his normal working hours and while he was on duty. From the record, it thus appears that claimant’s accident arose out of and in the course of his employment. It also appears from the record and, in accordance with the report of Dr. Partridge of the Sherman Hospital, that claimant suffered permanent disability, namely, loss of terminal phalanx of fourth finger of left hand and two-thirds (2/3) of terminal phalanx of little finger. The record also shows that the medical and hospital bills, incurred because of the injury to claimant, have been paid for by respondent, and that claimant has also received payment for his temporary total disability. "

This court is of the opinion that claimant has suffered fifty (50) per cent loss of the use of his third finger, also fifty (50) per cent loss of the use of his fourth finger. In accordance with the record, his average weekly wage would be computed at Twenty-five and 38/100 Dollars ($25.38). Under Section 8, Subsection E, paragraphs 4, 5 and 17, claimant would be entitled to fifty (50) per cent of $25.38, or $12.69 weekly for 12% weeks for partial permanent injury to his third finger, or a total of $158.63, and would be entitled to $12.69 for 10 weeks or $126.90 for partial permanent injury to his fourth finger, making a total of $285.53, which said amount is increased ten (10) per cent by Subsection L of Section 8, making total award to which he is entitled $314.08.

Award is, therefore, entered in favor of claimant for the said sum of Three Hundred Fourteen and 08/100 Dollars ($314.08), all of which is accrued and is payable forthwith.

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


text:
    (No. 3640
    Robert H. Gault, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Claimant, pro se.

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

On August 31, 1940, claimant, Robert H. Gault, was appointed Administrative Assistant to A. L. Bowen then Director of the Department of Public Welfare, for the purpose of ‘‘selling the State to the people.” The appointment was for the period of September 1st to December 31st, 1940 at a salary of $250.00 per month with clerical and traveling expenses not to exceed $125.00 per month. At the expiration of this period, claimant continued to work without further express authorization until February 26th, 1941, when the Director of the Department of Public Welfare refused to approve his expense accounts and refused to continue the project upon which he was working.

Subsequent to February 26, 1941, claimant continued to work until June 30th, 1941, apparently on the theory that his project was unfinished and was of such importance as to necessitate its continuance. This portion of the claim however, has now been abandoned, so that claimant seeks an award only for salary and expenses from January 1, 1941 to February 26, 1941.

The record contains copy of a letter from A. L. Bowen to W. F. Meyer, Chief Clerk in the Department of Public Welfare, of date April 1, 1942, in regard to claimant’s employment. It states in part as follows:

“Governor Homer and I arranged for his employment for the last six months of 1940. I made it plain to him that, since he was being paid from our contingent fund, I could not, nor could the Governor, commit our successors to this arrangement beyond December 31, 1940. I believe that he was paid for this period. It seems now that he worked and incurred expenses during January and February, 1941.”

Claimant’s testimony was to like effect. He also testified that upon change of administration, in January, 1941, he sought reappointment, but without success.

Claimant’s employment was for a definite period. This, he clearly understood. Under the terms of his contract, such employment ended on December 31st, 1940. Thereafter he was not lawfully appointed or employed by the State. There is therefore no basis for an award. Klimczak, et al. vs. State, 11 C. C. R. 110; Moore vs. State, 11 C. C. R. 491.

Claim is therefore denied.


author: Chief Justice Damron

text:
    (No. 3724
    Ethel Hatcher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Werner' H. Somers and Frank . E. Eagleton, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record in this case consists of the complaint, stipulation, report of the Managing Officer of the Elgin State Hospital and statement brief and argument on behalf of respondent.

The facts in the case as found by the record show that on the 15th day of June, 1941, the claimant was an employee of the Elgin State Hospital as a cook, and had been so employed for sometime past. ■ That on said day while preparing food in the kitchen of said hospital she injured the little finger on her right hand with a meat chopper, which she was operating. That said finger was amputated at the Pelton Clinic, 102 North Spring Street, Elgin, Illinois, thereby incurring a medical expense in the sum of $40.50.

The report of the Managing Officer of the Elgin State Hospital, filed in this case, and made a part thereof shows that the claimant was paid temporary compensation for thirty days following the date of her injury.

From this .record the court finds as follows: That at the time of the accident on June 15, 1941, the claimant and the respondent were operating under the Workmen’s Compensation Act, and that the claimant is entitled to the benefits arising therein. That the respondent had actual notice of the accident as required by Section (24) of said Act. That the claimant’s injury arose out of, and in,the course of her employment, and that the little finger of the right hand was amputated as averred in said complaint. That claimant’s annual salary was $1,044.00, her weekly salary was $20.08, and her compensation rate was $10.04.

An award is therefore entered in favor of claimant, Ethel Hatcher, in the sum of $200.80, that being for 20 weeks at $10.04 per week for the total loss of the little finger of the right hand. This award must be increased by virtue of Subsection L" of Section (8), amount to $20.08 making a total award in the sum of $220.88, for the loss of the little finger of the right hand.

The court further finds that claimant has expended the sum of $40.50 for necessary medical and surgical attention for which she should be reimbursed.

An award is therefore entered in favor of claimant in the sum of $261.38.

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


author: Fishes, J.

text:
    (No. 2872
    E. Huwald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Paul D. Perón a, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fishes, J.

In the complaint which was filed on March 30,1936, claimant alleges that he was a duly qualified civil service employee of respondent; that he was laid off, or discharged, on March 9, 1934; that he did not receive a discharge or lay-off notice in accordance with the statute of the State of Illinois as in such case made and provided; that after complaint was filed with the Illinois Civil Service Commission, he was sustained. That, thereafter on May 16, 1934, he received a formal discharge and lay-off notice signed by A. L: Bowen, Director of Public Welfare, a copy of which was filed with the State Civil Service Commission oii May 18, 1934. That he, thereafter, filed objections with respect to his discharge with the Illinois Civil Service Commission, which Commission heard the evidence, and claimant received an order on August 4, 1934, which found that “no sufficient evidence was submitted to the Commission to indicate in any way the action of the Department of Public Welfare in laying off petitioner from the position of senior department clerk was taken for political, racial or religious causes.”

The record consists of the complaint, amended complaint, transcript of the evidence, brief and argument filed on behalf of claimant and respondent, and respondent’s motion to dismiss.

Claimant seeks an award of Seven Hundred Thirty-five Dollars ($735.00) for salary at the rate of Thirty-five Dollars ($35.00) per week for the period March 9, 1934, to and including August 4, 1934.

For the purpose of this opinion, this court will divide the claim into two parts, namely, from March 9, 1934, to and in-eluding May 16,1934, and from May 18,1934, to and including August 4, 1934.

With respect to the latter period, it is the opinion of this court that unless a discharge of an employee is set aside by the Civil Service Commission it “stands,” not from the date of the final hearing but from the date it is made and served upon the employee. In such event, the final outcome is exactly the same as though no complaint had been filed with the Commission. The discharge was effective when made. Any other conclusion would lead to absurd results. In the instant case the claim is for salary for twenty-one (21) weeks, the time from the discharge to the time of the final action by the Commission. Instead of twenty-one (21) weeks, the time the final order of the Commission was entered might have been delayed for many months instead of weeks. To grant a discharged employee, during such period, a salary, would be against public policy and would encourage every discharged employee, no matter for what cause he might have been discharged, to file a complaint that his discharge was for a political, racial or religious cause, and then cause delay and postpone final action by the Commission as long as possible, knowing that the longer the matter could be delayed, the more money he would receive for which no service was rendered. Pending the hearing before the Commission the claimant was not on any payroll and was not performing any service for the State. To pay him a salary during such time would not only be against public policy but would be in direct conflict with Sections 20 and 30 of the Civil Service Law.

With respect to the period from March 9, 1934, to May 16, 1934, inclusive — inasmuch as he had tendered his services to the State, and was not discharged in conformity with the law, and the Illinois Civil Service Commission so held, there is merit to claimant’s demand for salary during this period. The evidence shows that he tendered his services but was prevented from discharging his duties by respondent; that he was a duly qualified civil service employee of the State of Illinois; that he was illegally discharged; that he was not otherwise employed during the period for which he seeks payment, and that he was diligent in the protection of his own rights. The evidence, however, does not make entirely clear whether his salary was, or was not, paid to a de facto officer. At the hearing of this case the claimant was asked—

Q. Do you know if any one else was occupying the position of Senior Department Clerk at the State Penitentiary at Joliet, during that period of time?
A. Well, I do, but I have no way of proving it. In my judgment and belief there was On March 14, when I got back, the plumbing inspector, one Walter Krowalski told me that Mr. Kine, the Superintendent, told him to stay in the stock room and take inventory; that the turn-over of the stock to the Chief Engineer of the Institution was only verbal, and probably done so, just to balance the account.

It would appear that Walter Krowalski was already in the employ of respondent as a plumbing inspector and it would be a fair inference from the answer given that he was temporarily performing some of claimant’s duties in addition to the duties for which he was employed. We cannot conclude from this evidence, however, that he was being paid for performing claimant’s work as a de facto officer. The burden of proving this fact is on respondent. From the record before us, this, respondent has failed to do, and the inference from the record is to the contrary. It is, therefore, the opinion of this court that claimant is entitled to recover his salary from March 9, 1934 to May 16, 1934, a period of 9% weeks at $35.00 per week, or a total sum of $332.50.

Respondent’s motion to dismiss is hereby overruled and an award is hereby entered in favor of claimant for the sum of $332.50.


text:
    (No. 3750
    Illinois Iowa Power Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

On June 16, 1939, at the request of the Department of Conservation of the State of Illinois, the claimant increased the transformer capacity for electric service at the Illinois State Game Farm, near Mt. Vernon, Illinois, and to measure the additional electricity supplied, set its electric meter No. 3903 having a dial constant of 40. From June 16, 1939, to May 16, 1941, there passed through this meter, for the use of the State Garm Farm, a total of 90,400 kilowatt hours of electricity, át a cost of $3,020.50. Although claimant correctly read the meter, it failed to apply the meter constant of 40 in calculating the charges for the electricity used, with the result that the Department of Conservation.paid claimant $147.21 instead of $3,020.50. Before the error could be corrected, the appropriation for payment of such charges had lapsed. When the charge occurred, the unexpended balance in the appropriation from which payment could have been made was in the amount of $2,634.00. No showing is made that this claim falls within the exception under which an obligation incurred in excess of the amount appropriated for the purpose may be valid. Fergus vs. Brady, 277 Ill. 272.

Award is therefore entered in favor of the claimant in the sum of $2,634.00.


text:
    (No. 3729
    M. W. Kiely Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

Claimant seeks an award for $258.28, for 109,900 pounds of Southern Illinois Nut coal, at $4.70 per ton, furnished to the 122nd Field Artillery on March 22, 1941, under contract with the State of Illinois, No. C-80289. Monthly statements rendered by claimant did not come to the attention of the Adjutant General until October 2, 1941, after the appropriation for payment of such charges had lapsed. The State received the coal on order from an official authorized to contract for the same; claimant submitted a bill therefor within a reasonable time and has not received payment; such nonpayment is due to no fault on the part of the claimant; when the charge was incurred, there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is therefore entitled to an award. Rock Island Sand and Gravel Company vs. State of Illinois, 8 C. C. R. 165; Elgin, Joliet and Eastern Railway Company vs. State of Illinois, 10 C. C. R. 243.

An award is therefore entered in favor of claimant in the sum of $258.28.


text:
    (No. 3679
    Martin Kling, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Albert S. O ’Sullivan, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award for forty per cent loss of use of his left hand due to an injury he suffered on January 17, 1941, while employed by the Division of Highways, State of Illinois, at or neár Belvidere, Illinois.

This claimant on the last mentioned date was standing on a truck belonging to the respondent shoveling cinders on the pavement of U. S. Eoute No. 20, when said truck suddenly started and threw claimant to the pavement causing him to receive injuries as aforesaid.

He was treated by Dr. David E. James, immediately after the injury, at the St. Joseph’s Hospital in Belvidere. On January 22, he was transferred by the respondent, to Chicago where he was placed under the care of Dr. H. B. Thomas, Orthopedic Surgeon and Professor of Orthopedics at the Hniversity of Illinois. Dr. Thomas treated this claimant intermittently until March 24, 1941, when he released him from further medical attention and suggested that he be given light work by the respondent. The following day claimant reported to the State Garage at Marengo where he was employed as a painter on the Division’s equipment.

Dr. James at the time of the hearing was unable to testify inasmuch as he was in the U. S. armed forces.

The claimant employed Dr. John F. West for the purpose of testifying who examined him for the first time the night before the hearing. He testified that, in his opinion, this claimant had suffered a forty-five per cent total permanent disability of his left hand.

The evidence.contains the report of the Division of Highways which under the rules of this court is taken as evidence. In this report is included a report of the said Dr. H. B. Thomas, dated March 24,1941, which follows:

“This morning we have examined Mr. Martin Kling. We find that the left wrist has adduction of 16°, abduction of 18°, and extension of 36°. After physiotherapy, adduction was increased to 22°, abduction to 25°. Extension remained the same. The right dorsiflexed 35°, abducted 25°, adducted 10°. - The ranges of motion should improve and the weakness diminish. We are making out the final report with 15% disability in the left wrist, which will decrease with time. I hope he can have light work.”

The Attorney General objects to this court considering the testimony of the said Dr. West and cites therefore the case of National Steel Casting Co. vs. Industrial Commission, 377 in. 169.

We have carefully considered all the testimony in the case and are in full accord with the findings of Dr. Thomas. An award is therefore entered in favor of claimant for fifteen per cent for permanent total loss of use of his left hand.

The evidence shows that this man was employed by the Department as a laborer at fifty cents an hour. It also shows that at the time of the injury he was thirty-eight years of age, and had two children dependent upon him under sixteen years of age. Under Section 8, paragraph (2) of the Workmen’s Compensation Act claimant’s temporary compensation rate is $7.50 per week, which is increased to $12.00 due to the fact that he has two dependent children.

If claimant had lost the entire use of his left hand he would have been entitled to fifty per cent of his annual earnings for one hundred seventy weeks. He having suffered but fifteen per cent permanent total disability is therefore entitled to fifteen per cent of one hundred seventy weeks or twenty six weeks times $12.00 which equals the sum of $312.00.

This injury having occurred subsequent to July 1, 1939 this award must be increased ten per cent making a total award of $343.20.

The evidence shows that the Department paid this claimant for ten weeks temporary total disability in the sum of $190.34. This was an overpayment. He actually was entitled to $120.00, and the difference of $70.34 must therefore be deducted leaving a total due this claimant of $272.86, all of which has accrued and is' now payable in a lump sum.

An award is therefore entered in favor of claimant, Martin Kling, for fifteen per cent permanent total loss of use of his left hand in the sum of $272.86.

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


text:
    (No. 3702
    Elbert Clark Lemley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

This claim was filed April 4, 1942. It is for benefits under the Workmen’s Compensation Act claimed by claimant for total temporary disability and for permanent partial loss of the use of the index finger of his left hand, and for medical and doctor bills as a result thereof. The claim is based on injuries alleged to have arisen out of and during the course of claimant’s employment as a guard at the State penal institution near Vandalia.

The record of the case consists of the complaint, stipulation of the facts, and brief and argument filed on behalf of respondent.

As the accident for which this claim is filed occurred on February 4,1942 and notice of the same was given to respondent on the date it occurred and claim was filed on April 4, 1942, the provisions of Section 24 of the Workmen’s Compensation Act have been complied with, and this court has jurisdiction thereof.

The claimant’s injury arose during his normal working hours and while he was on duty. It further appears from the record that the accident occurred while claimant was performing said duties, and the injury occurred when the heavy wooden studded door of dormitory “E” of the said institution closed on claimant’s left hand, crushing, breaking and lacerating the index finger of his left hand. From the record, this court is of the opinion that claimant’s accident arose' out of and in the course of his employment.

The report of Dr. D. M. Littlejohn who examined claimant, which report is made part of the record of this case, shows that claimant has lost 25% of the flexion and 50% of the extension in the index finger of his left hand as a result of the accident, from which report it would appear to be a reasonable conclusion that claimant has lost 75% of the use of said index finger.

Under Subsection (e) of Section (8) of the Workmen’s Compensation Act claimant would be entitled to receive 50% of his average weekly wage for 40 weeks for the total loss of an index finger, and, as claimant has lost 75% of the use of his index finger, under Subsection (E 17) of Section (8) he is entitled to receive' 75% of the amount he would receive for the total loss thereof. Claimant’s salary for the year prior to the accident was $1,425.00 annually, or a weekly wage of $27.40. Fifty per cent of $27.40 equals $13.70, times 40 equals $548.00. Claimant would be entitled to 75% of this amount, or $411.00, to which sum under Subsection (1) of Section (8) must be added 10%, or a total of $452.10.

Claimant was temporarily totally disabled for a period of 8 weeks. Under Subsection (b) of Section (8) he would be entitled to $13.70 per week for this period, or $109.60, which amount is increased 10% under Subsection- (1) of Section (8), making a total of $120.56 for temporary total disability.

It also appears that claimant has expended the sum of $51.00 for medical attention necessitated by the accident, for which sum he should be reimbursed.

Claimant is, therefore, entitled to the following sums :

For partial permanent loss of the use of the index finger of his left
hand ...................................... $452.10
For temporary total disability..................................... 120.56
For medical expenses............................................. 51.00
Or a total of.................................................. $623.66

Award is therefore entered in' favor of claimant for the said sum of $623.66, all of which is accrued and is payable forthwith.

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


text:
    (No. 3083
    Joseph Martingiglio, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    L. C. Miller) for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint which was filed on April 9, 1937, alleges that claimant was regularly employed by the State of Illinois on the 28th day of August 1936, at Camp Grant, in the county of Winnebago; that his duties in such employment were the moving and replacing of National Guard equipment in the warehouses in Camp Grant; that on said date he cut the fingers of his right hand on a crate he was handling, and thereafter blood poisoning set in, disabling him from any employment until the 19th day of December, 1936.

Claimant further alleges that he is entitled to compensation for fifteen (15) weeks at Eleven Dollars ($11.00) per week for temporary total incapacity; that he has permanently lost the use of the second, third and fourth fingers of his right hand and is entitled to compensation therefor for a period of eighty (80) weeks at Eleven Dollars ($11.00) per week, or Eight Hundred Eighty Dollars ($880.00).

Claimant also alleges that there is an unpaid hill for Forty-six Dollars ($46.00) covering medical attention; also one for Thirty-six and 85/100 Dollars ($36.85) for hospitalization.

The record in this case consists of the complaint and transcript of the evidence.

As it appears from the evidence that respondent received notice of the injury within thirty (30) days from the day of its occurrence and demand was made for compensation within six (6) months from the date thereof, and claim was filed in this court on April 9, 1937, which is less than one (1) year after the date of the accident, this court has jurisdiction of the matter.

Inasmuch as claimant was not an officer or an enlisted man of the National Guard he would not be covered by the Military Code, but, being- a civilian employee, any benefits to which he would be entitled would be under the Workmen’s Compensation Act. Frcjm the evidence it appears that claimant’s employment was of such a nature that he is entitled to the benefits of the Act.

The evidence also shows that the medical and hospital bills were not paid, and this court is of the opinion that these expenses should be paid by respondent.

Claimant suffered total temporary disability from September 1, 1936 to December 15, 1936, a period of fifteen (15) weeks, and, under Subsection (b), Section (8) of the Workmen’s .Compensation Act he would be entitled to receive fifty (50) per cent of his average weekly wage which would be computed under Subsection (e), paragraph (10). Claimant worked eight (8) hours a day and received Fifty Cents (50c) an hour, which would make his average weekly wage Fifteen and' 38/100 Dollars ($15.38). He would be entitled to fifty (50) per cent of this amount, or Seven and 69/100 Dollars ($7.69) for fifteen (15) weeks, or One Hundred Fifteen and 35/100 Dollars ($115.35) for total temporary disability. From the evidence, it also appears that claimant has lost ten (10) per cent permanent use of his second finger, also ten (10) percent loss of the use of his third finger. Under Subsection (e), Section (8), paragraphs (3) and (17), he would be entitled to Twenty-six and 92/100 Dollars ($26.92) for ten (10) per cent permanent partial disability to his second finger and, under paragraphs (4) and (17) of the same subsection, he would be entitled to Nineteen and 23/100 Dollars ($19.23) for ten (10) per cent permanent partial disability to this third finger.

Dr. J. Harry Bendes is entitled to the sum of Forty-six Dollars ($46.00) for professional services rendered to claimant, and St. Anthony’s Hospital of Rockford to the sum of Thirty-six and 85/100 Dollars ($36.85) for hospital services rendered to claimant, and claimant is entitled to recover the' sum of One Hundred Sixty-one and 50/100 Dollars ($161.50), computed as follows:

(a) For temporary total disability from September 1, 1936 to De-
cember 15, 1936 — 15 weeks @ $7.69........................... $115.35
(b) For 10% permanent partial loss of use of second finger....... 26.92
(c) For 10% permanent partial loss of use. of third finger......... 19.23
$161.50

Award is, therefore, entered in favor of claimant for the said sum of $161.50; in favor of Dr. J. Harry Bendes for the sum of $46.00, and in favor of St. Anthony’s Hospital of Rockford for the sum of $36.85; all of which has accrued and is payable forthwith.

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


text:
    (No. 3649
    Marion Mitchell and D. H. Hills, Doing Business Under the Partnership Name of Mitchell & Hills, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Harry C. Partlow and C. A. Williams, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court :

Claimants seek an award of $271.95 as a refund of an over-payment in the remittance of Motor Fuel Taxes. A detail statement of the pertinent facts involved in this claim is set forth in the report of the Department of Finance and made a part of this record. It shows “that claimants were doing business as a partnership under the name of Mitchell & Hills, and was licensed as a distributor under the Motor Fuel Tax law on July 29,1933; that they engaged in business as a licensed distributor under license number 1168, from that date to and including September 20, 1941, all operations being conducted at and near Casey, Illinois.”'

“On September 20, 1941 the Motor Fuel Tax Division, received a return on forms furnished by the Department of Finance showing inventories, sales, uses, and distribution of taxable motor fuel for the month of August 1941; remittance accompanying the return being in the amount of $1,196.99, such return indicating that claimants had ceased to engage in business after August 31, 1941. Following which the Department canceled said license same becoming effective September 20, 1941.”

‘ ‘ That the Department upon making an audit established the fact that claimants over-paid the Department of Finance, Motor Fuel Tax Division, in the amount of $271.95 taxes in relation to their August 1941 operations, only. ’ ’

“That the said error and overpayment of tax resulted from the claimants inserting the wrong figure for the .actual inventory at the beginning of the month of August 1941; such error resulting from carrying forward to August, 1941 the amount sold, used, and distributed during July 1941, in place of the actual inventory as of the close of business July 31, 1941.”

“That the correct actual inventory reported at the close of business July 31, 1941 was 16,884 gallons which inventory should have been entered as the opening inventory for August 1941. The claimant reported in error the opening inventory for August 1941 as 26,134 gallons.”

“On October 8, 1941, an amended return was filed by the claimants showing the correct amount of tax due for August 1941. Such amount being $271.95 less than the amount of tax actually remitted by the claimants to said Department of Finance.”

“That the books and records of said Department of Finance, Motor Fuel Tax Division, reflect an amount of $265.89, being the net amount representing an overpayment of $271.95 for August 1941, less $6.06 which amount represents an excess shortage of 202 gallons for the period from September 1, 1941 to and including September 20, 1941; the excess shortage in the amount of $6.06 being determined by final audit made by said Department of Finance, Motor Fuel Tax Division, on October 18, 1941. That the books and records of the respondent now show the claimants to have an unsatisfied credit of $265.89, and that said Department of Finance would have granted a credit for overpayment had the claimants retained their Motor Fuel Tax license, and continued to operate in the business of selling taxable motor fuel.”

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

It is based upon the amount of motor fuel consumed in each motor vehicle. The tax is paid, in the last analysis, by the ultimate purchaser, but is collected in the first instance by the dealer, who is required to pay over to the State all moneys so collected by it. (Par. 423, Sec. 7.)

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

As between the claimant and the respondent, the payment made by the claimant pursuant to its August report, was not the payment of a tax, but was a payment made by an agent to its principal, in fulfillment of certain duties imposed upon it by law.

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

The law with reference to payments made under a mistake of fact is set forth in 21 E. C. L. 164, Sec. 191, as follows:

“Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payer that the fact was otherwise, it may be recovered. The ground on which the rule rests is that money, paid through misapprehension of facts, in equity and good conscience belongs to the person who paid it. Municipal corporations as well as individuals are subject to this rule. An error of fact is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.”

To the same effect see 48 Corpus Juris 759, Sec. 318, and annotation in 87 A. L. R. 649; also Stempel vs. Thomas, 89 Ill. 146; Wolf vs. Beaird, 123 Ill. 585; Blomstrom vs. Dux, 175 Ill. 435-439; Jenson vs. Muting, 256 Ill. App. 514.

The payment made by the claimant in this case clearly was made under a mistake of fact and therefore under the law as above set forth, claimant is entitled to the return of the amount of money overpaid by it.

An award is therefore entered in favor of claimant in the sum of $265.89.


text:
    (No. 3566
    Fred A. Preisel, Treasurer of Kankakee County, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Joseph J. T olson, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Fred A. Preisel, Treasurer of Kankakee County, claimant herein seeks an award for a refund in the sum of $58.80.

On July 10, 1939 one Sylvester SanFrantillo entered a plea of guilty in the city of Kankakee before Edward J. Hoennicke, police magistrate, on a charge of disorderly conduct and assault and battery; upon said plea he was fined $60.00 and costs which he paid. This money was in turn paid to the county treasurer and by him remitted to the State Treasurer by virtue of Chapter 53, Section 19 of the Illinois Revised Statutes. This section provides in substance that all fees, fines, forfeitures and penalties collected by the State’s Attorneys for violations on State highways within the several counties must be remitted to the State Treasurer.

The stipulation in this case entered into by the claimant and respondent agrees that the report made by the Treasurer of the State of Illinois under date of January 3, 1941 and the various exhibits attached thereto shall constitute the record in this case. The report of the State Treasurer shows conclusively that the remittance was made to respondent by mistake.

It further shows that the county treasurer of Kankakee County requested a refund on August 18, 1939, but was advised by the State Treasurer that he was unable to comply with his request and suggested that a claim be filed in this court.

From the record it is evident that respondent was not entitled to this money and it was an error on the part of the treasurer of Kankakee County to remit same to respondent.

The law with reference to payments made under a mistake of fact is set forth in 21 R. C. L. 164, Sec. 191.

To the same effect see 48 Corpus Juris 759, Sec. 318, and annotation in 87 A. L. R. 649; also Stempel vs. Thomas, 89 Ill. 146; Wolf vs. Beaird, 123 Ill. 585; Blomstrom vs. Dux, 175 Ill. 435-439; Jenson vs. Muting, 256 Ill. App. 514.

An award is therefore entered in favor of claimant, Fred A. Preisel, as county treasurer of Kankakee County, Illinois, or his successor in office for the use of the county of Kankakee, Illinois, in the sum of $58.80 which represents the amount of fine remitted to the respondent, less collection fees retained by said claimant.


author: Chief Justice Dambón

text:
    (No. 3727
    Shapleigh Hardware Company, a Corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Kirk Jeffrey, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court:

The complaint in this case was filed July 1, 1941 seeking an award in the sum of $11.81 for two hundred fifty bolts claimed to have been sold and delivered by claimant to the respondent on January 8, 1941, and also for an award in the sum of $14.50 for one dozen concrete hand tampers claimed to have been sold and delivered by the claimant to the respondent on or about June 25, 1941.

The record consists of the complaint, exhibits number one, two and three, stipulation, report of the Division of Highways and waivers of claimant and respondent to the right to file their statement, brief and argument. It is stipulated that the report of the Division of Highways shall constitute the record. No evidence was offered.

This report dated August 7, 1942 contains the following:

“The 250 bolts referred to on claimant’s invoice, No. C108280, dated January 8, 1941, in amount of $11.81, (claimant’s exhibit 2) were never received by the respondent. A careful investigation at the designated destinations and all offices concerned with receipt and payment of invoices has confirmed all the foregoing.”
“The materials, one dozen concrete hand tampers, referred to on claimant’s invoice dated June 25, 1941, order No. C604240 in amount of $14.50 (claimant’s exhibit 3), were.received by respondent at its Division of Highways office, Peoria, Illinois, on June 19, 1941. Neither the Division’s district office nor its central bureau of audits has any record of an invoice having been received or payment made for these materials. The materials and number were as represented and the price was that previously agreed upon.”
“An appropriation was in existence and money available in it to pay for the materials had claimant sent its invoice in apt time, prior to September 30, 1941.”

The burden is on the claimant to prove by a preponderance of the evidence that the merchandise was as ordered and that the quantity, quality, and prices thereof were in accordance with order and that the goods were received by the respondent. The respondent denies the receipt of the merchandise described in claimant’s exhibit (2), and the claimant has offered no evidence of its delivery to respondent.

From the record in this case the claim for. two hundred fifty bolts on claimant’s invoice No. C108280 (claimant’s exhibit 2) must be denied.

The claim in the sum of $14.50 for one dozen concrete hand tampers (claimant’s exhibit 3) is allowed.

The complaint shows the claim was not presented to the respondent until May 5, 1942, but materials were, delivered to and received by the respondent June 19, 1941.o There is no denial that the merchandise was furnished by the claimant and received by the respondent; that an appropriation was in existence and money was available to pay at the time of the delivery of the materials, and that said merchandise was as ordered, etc.

An award therefore is hereby entered in the sum of $14.50 on claimant’s exhibit 3.


text:
    (No. 3424
    Shippers Fuel Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    L. M. Bowden, for claimant.
    George F. Barrett, Attorney GeneralEgbert V. Ostrom, Assistant Attorney General, for respondent. -
   Eckert, J.

Claimant seeks an award for $175.77 for 62.775 tons of Central Illinois 3" x 6" egg or furnace coal at $2.80 per ton furnished to the 130th Infantry Armory at Danville, Illinois, from January 19, 1938, to February 4, 1938, under contract with the State of Illinois No. B-117626. The State received the coal on order from an official authorized to contract for the same; claimant submitted a bill therefor within a reasonable time and has not received payment; such non-payment is due to no fault on the part of the claimant; when the charge was incurred, there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is therefore entitled to an award. Rock Island Sand and Gravel Company vs. State of Illinois, 8 C. C. R. 165; Elgin, Joliet and Eastern Railway Company vs. State of Illinois, 10 C. C. R. 243.

An award is therefore entered in favor of claimant in the sum of $175.77.


text:
    (No. 3751
    John Teefey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On April 21,1942, the claimant, John Teefey, a dexigraph operator in the office of the Secretary of State, while removing a card caught in the machine, injured the index and middle fingers of his right hand. The accident resulted in the loss of the first two phalanges of the index finger. He was attended by Dr. J. E. Beisch at the Springfield Memorial Hospital, Springfield, Illinois. Claim is made for medical and hospital services and for loss of use of claimant’s index finger.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment. Claimant had Been in the employ of the Secretary of State less than one month. Annual earnings of persons of the same class, in the same employment, and same location, are $1,200.00 per year. The basis for determining compensa,-' tion is therefore a weekly wage of $23.08.

Claimant was temporarily disabled for a period of three weeks following the injury, during which time he was paid his regular wages in the amount of $69.24. During this period he was entitled to compensation in the amount of $25.39, so that there was an over-payment of $43.85.

Claimant is therefore entitled to have and receive from the respondent the following, to-wit:

1. The sum of $11.54 per week for two weeks, or $23.08, for temporary total disability, and the further sum of $11.54 per week for forty weeks, or $461.60, for the permanent loss of use of his index finger. Since this injury occurred subsequent to July 1, 1941, this portion of the award must be increased 10% or $48.47, making a total of $533.15, from which should be deducted $69.24 for non-productive time, leaving a balance of $463.91.

2. The sum of $23.10 for the use of the Springfield Memorial Hospital, Springfield, Illinois, and the sum of $57.00 for the use of Dr. J. E. Beisch, 713% East North Grand Avenue, Springfield, Illinois.

Award is therefore entered in favor of the claimant for the total sum of $544.01 to be paid to him as follows:

1. $23.10, for the use of the Springfield Memorial Hospital, Springfield, Illinois, payable forthwith.

2. $57.00 for the use of Dr. J. E. Beisch, 713% East North Grand Avenue, Springfield, Illinois, payable forthwith.

3. $298.77 accrued and payable forthwith.

4. $166.14 payable in weekly installments of $12.69 per week, beginning November 10, 1942, for a period of thirteen weeks with a final payment of $.17.

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


text:
    (No. 3736
    U. S. Industrial Alcohol Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Slottow, Levitón, Palsy & Shane, for claimant.
    George F. Barrett, Attorney ' General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The claimant, The U. S. Industrial Alcohol Company, a West Virginia corporation, duly licensed as an importing distributor under the Liquor Control Act, has been engaged since 1934 in the manufacture, transportation, importation and sale of non-beverage alcohol to non-beverage users. On or about June 27,1938, the claimant paid to the Department of Finance of the State of Illinois, a tax in the sum of $6,752.74, involuntarily, and under protest and notice of same.

On the same day the Department of Finance in compliance with Section (2A) of an Act approved June 9, 1911, entitled: “An Act in Relation to the Payment and Disposition of Monies Received for or on behalf of the State,” notified the State Treasurer that the sum of $6,752.74, was paid by this claimant under protest. The State Treasurer placed said sum of money in the special fund known as the “protest fund.”

On July 21, 1938 claimant filed its complaint in chancery in the Circuit Court of Sangamon County against S. L. Nudelman, the then acting Director of Finance of the State of Illinois, and John C. Martin the then acting State Treasurer of the State of Illinois, and others, praying for a temporary injunction restraining the said Nudelman, as Director of Finance and the said Martin, as State Treasurer from transferring the said sum of $6,752.74 from the “protest fund” in the State Treasurer’s office to the appropriate fund or funds to which it would have been placed if the same had not been paid under protest and further prayed that said injunction be made permanent upon a hearing of said cause and that the said Nudelman and Martin be required to- account to the claimant for the said sum of money and be required to return or pay over to claimant said sum so paid as aforesaid.

On July 25, 1938 the Circuit Court of Sangamon County, entered an order that the Writ of Temporary Injunction be issued against the defendants, Nudelman and Martin as in said complaint prayed.

On June 3, 1940, the said Circuit Court of Sangamon County entered a final decree in said cause making the temporary injunction permanent, a part of said decree being in words and figures as follows:

“The alcohol sold by the plaintiff for which the Department of Finance claimed that a tax was due, and which tax was paid by the plaintiff was what is known as absolute alcohol, 190 proof or 95% alcohol, and 188 proof or 94% alcohol, and was incapable of being used for beverage purposes. Said alcohol was sold by the plaintiff to non-beverage users purely for industrial or mechanical purposes, and therefore was not within the provisions of the Liquor Control Act, as originally enacted, and is not now subject to the imposition of a tax on the sale thereof, as claimed by the Department of Finance of the State of Illinois. . . .”
“The defendants, Nudelman, as Director of Finance for the State of Illinois and Louie E. Lewis as State Treasurer of the State of Illinois do account to and pay over to the plaintiff forthwith the said sum of $6,752.74, so received by the Department of Finance from the plaintiff and deposited with the State Treasurer in the special ‘protest fund.’ ”

On June 6, 1940 the defendants S. L. Nudelman as Director of Finance, and Louie E. Lewis, as State Treasurer of the State of Illinois (who by appropriate amendment had been substituted as a party defendant) appealed from the decree of the Circuit Court of Sangamon County to the Supreme Court ■ of Illinois.

On December 16, 1940, the Supreme Court filed its opinion in said cause, (said opinion being reported in Volume 375 of the Illinois Supreme Court Reports at page 342 thereof) affirming said decree. The Supreme Court in this opinion construed Section (1) of Article (8) of the Liquor Control Act as follows:

“The intention of the legislature, apparent in the language of the Act and from surrounding circumstances, precludes from application of the tax any transactions concerning alcohol incapable of use as a beverage. The expressed objects of the enactment are the fostering of temperance in the consumption of alcoholic liquors, and the protection of the health, safety and welfare of the people. Although alcohol, not expressly restricted in meaning, is included in its definition, alcoholic liquor is clearly limited to beverages. The specific exceptions from the entire act, as well as from the tax, are non-beverages, and a license is required only of those handling alcoholic liquor for purposes of consumption. While alcohol is not in its definition limited to beverage use, yet if admittedly not potable, and to be used solely for industrial of mechanical purposes, it is not within the expressed objects of the Act . . . the alcohol sold by plaintiff being incapable of any beverage use was not subject to taxation under Section (1) of Article (8) of the Act . as it obtained prior to July 1, 1934. . . . The decree of the Circuit Court of Sangamon County is affirmed.”

On February 24, 1942, the claimant served a written demand for the return of $6,752.74, on George B. McKibbin, Director of Finance of the State of Illinois and Warren Wright, Treasurer of the State of Illinois, reciting the terms of the decree of the Circuit Court of Sangamon County as affirmed by the Supreme Court of Illinois, a copy of said demand being made a part of this record, but the said George B. McKibbin, and Warren Wright were unable to, and are still unable, to comply with said demand. On August 17, 1942 the said Warren Wright filed a statement in this court in which he reported:

“According to the records of this office the Director of the Department of Finance did, on July 20, 1938, deposit with the State Treasurer the sum of $6,752.74, said sum to be held in the Protested Fees Fund for the account of The Ü. S. Industrial Alcohol Company. Further the records of this office show that on August 31, 1938, this sum was transferred to the General Revenue Fund.”

It is to be seen from the above report of Treasurer Wright that the. said Nudelman and the said Martin, in utter disregard and in violation of the terms of said Writ of Injunction issued out of the Circuit Court of Sangamon County restraining said Nudelman and Martin from transferring said sum of money out of the “protest fund,” did within a few days after the issuance of said writ transfer said sum of money from the “protest fund” to the General Revenue Fund without proper authority and in violation of the legal rights of this claimant. For this reason the said McKibbin and Wright were unable to refund to claimant the sum of money demanded. This unlawful action on the part of the aforesaid Nudelman and Martin has compelled the claimant to file its claim in this court.

Where money is paid under protest, and proceedings are instituted in a court of general jurisdiction to restrain officers of the State from paying the same into the State treasury, upon which injunction so restraining payment is issued, an award for refund will be made where said State officer, having notice of such injunction pays the amount into the State treasury.

Southern Kraft Corp. vs. State, 9 C. C. R. 306.

This claimant not only seeks an award for the tax paid to said Department of Finance, but seeks a further award at the legal rate of interest on said sum of money from the 3rd day of June 1940, to the date of this award.

The State is not liable for the payment of costs or interest in the absence of a statute subjecting it to such liability and in this State there is no such statute.

Southern Kraft Corp. vs. State, Supra.
Phillipps Petroleum Corp. vs. State, 10 C. C. R. 319.
Phillipps Petroleum Co. vs. State, 8 C. C. R. 198.

This court regrets its inability to award interest to the claimant, •

An award is therefore entered in favor of claimant, The U. S. Industrial Alcohol Company, a Corporation, in the sum of $6,752.74.


author: Chibe Justice Damron

text:
    (Nos. 3442, 3454, 3648, 3654 and 3655—Consolidated;
    Western Union Telegraph Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Claimant, pro se.

      George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chibe Justice Damron

delivered the opinion of the court:

Claimant has filed five complaints which are consolidated by agreement of the parties.

Claim No. 3442 seeks an award in the sum of $24.00 for furnishing time services at the request of the House of Representatives at Springfield on January 1, 1938, to December 31, 1938, as per attached statement; claim No. 3454 seeks an award in the sum of $28.67 for telegraph services rendered by claimant on July 15, 1938, at the request of James P. Boyle who was chairman of the appropriations committee at that time; claim No. 3648 seeks an award in the sum of $44.48 for telegraph services rendered by claimant for a series of telegrams signed by the then Speaker of the House, the Hon. Hugh W. Cross, notifying the members of the House of Representatives to attend the funeral of the late Governor Horner. These telegrams were sent from Chicago; claim No. 3654 seeks an award in the sum of $24.00 for time services furnished the offices of the Speaker of the House of Representatives and was contracted for by the late David Shanahan; and claim No. 3655 seeks an award in the sum of $7.57 for telegraph services furnished by claimant as authorized by the House of Representatives through the month of May and June, 1940, and July, 1941.

Claimant in addition to seeking an award for the actual services rendered by them to the various departments of the respondent also seek interest thereon at the legal rate from the date of the services to the rendition of this opinion.

It is evident from the verified complaints, the acknowledgements by letters from the various officers of the respondent and the lack of defense on the part of the Attorney General that the services were actually rendered as per invoices attached to each complaint thereof. And it is further evident from the record that had claimant billed the various departments of respondent in apt time they would have been paid in due course for the reason there existed appropriations sufficient to pay each claim at the time the services were rendered.

Where it clearly appears that claimant rendered services to the State at the request of its duly authorized officers and for which an appropriation existed out of which payment could be made therefor, an award may be made for compensation for such services, in an amount not in excess of that agreed upon, where such appropriation lapsed before payment was made for same, on claim filed within a reasonable time.

Riefler, et al., vs. State, 11 C. C. R., 381.

The State is not liable for payment of costs or interest in the absence of a statute subjecting it to such liability and in this State there is no such statute.

Southern, Kraft Corp. vs. State, 9 C. C. R., 306.
Phillips Petroleum Corp. vs. State, 10 C. C. R, 319.
U. S. Industrial Alcohol Co. vs. State, Opinion No. 3736, Opinion rendered Nov. 10, 1942.

From the record the court enters the following awards in favor of claimant, viz. No. 3442, $24.00; No. 3454, $28.67; No. 3648, $44.48; No. 3654, $24.00; and No. 3655, $7.57, making a total due claimant on the five above complaints in the sum of $128.72.


text:
    (No. 3735
    Charles Wilcox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

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

Claimant filed his complaint on July 28, 1942, claiming Forty-two Dollars ($42.00) additional compensation for temporary total disability. The record consists of the complaint and a report by the Division of Highways of the State of Illinois.

Claimant was injured on November 3, 1941, while employed by the State of Illinois as a truck helper on State Eoute No. 150, and, from the record, this court is of the opinion that he was injured during the course of and out of his employment and that this court has jurisdiction of the matter.

The only point in controversy is the amount due claimant for temporary total disability. The attending physician certified that he was able to resume work on January 10, 1942, so that claimant is entitled to compensation for the period commencing November 4, 1941, and expiring January 9, 1942, a period of nine and four-sevenths (9 4/7) weeks. The report of the Division of Highways states that claimant was paid at the rate of $.85 an hour, and that employees engaged in the same capacity in which claimant was engaged worked- eight (8) hours a day and worked less than two hundred (200) days a year. Claimant would, therefore, come under Subsection (e) of Section (10) of the Workmen’s Compensation Act, which would give him an average weekly wage of Twenty-six and 15/100 Dollars ($26.15). This would entitle him to Thirteen and 08/100 Dollars ($13.08) weekly, to which must be added ten per cent (10%) under Paragraph (1) of Subsection (j) of Section (8) for the reason that claimant-had two (2) children under the age of sixteen (16) years. This makes a weekly compensation due him of Fourteen and 39/100 Dollars ($14.39), to which must be added another ten per cent (10%) under Subsection (1) of Section (8), so that claimant would be entitled to a weekly compensation of Fifteen and 83/100 Dollars ($15.83) for a period of nine and four-seventh weeks. He would, accordingly, be entitled to the sum of One Hundred Fifty-one and 51/100 Dollars ($151.51). As he has already been paid the sum of One Hundred Eighteen and 11/100 Dollars ($118.11), there would still be due to claimant the sum of Thirty-three and 40/100 Dollars ($33.40) for temporary total disability. The medical and hospital bills have been paid for by respondent.

Award is, therefore, entered in favor of claimant for the said sum of Thirty-three and 40/100 Dollars ($33.40), all of which is accrued and is payable forthwith.

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


text:
    (No. 3755
    Dominic Giuliani, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1942.

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

On June 16, 1942, the claimant, Dominic Guiliani, was an employee of the Department of Public Works and Buildings of the State of Illinois, Division of Highways. While operating a power driven mixer adjacent to U. S. Route 41, at Park Avenue, in Highland Park, Illinois, he caught his left thumb in the moving parts of. the mixer. The accident resulted in the amputation of the distal phalange of the left thumb. Respondent furnished the necessary medical, surgical, and hospital services.

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

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

No claim is made for medical, hospital, or surgical services, but claim is made for temporary total disability and for partial loss of claimant’s left thumb. Claimant was temporarily totally disabled from June 16, 1942, the date of the accident, until July 27,1942, a period of five and five-sevenths weeks, and was paid compensation in the total amount of $50.23. During this period, however, he was entitled to compensation in the amount of $53.17, so that there remains due to him on account of temporary total disability the sum of $2.94.

Claimant has also suffered a fifty per cent loss of his left thumb, and is therefore entitled to the further sum of $8.46 per week for thirty-five weeks,, or the sum of $296.10. Since the injury occurred subsequent to July ,1, 1941, the award must be increased ten per cent, or $29.61, making a total of $325.71.

Award is therefore entered in favor of the claimant for the total sum of $328.65 to be paid to him as follows:

1. $189.14 accrued and payable forthwith.

2. $139.51 payable in weekly installments of $9.31 beginning December 21st, 1942, for a period of fourteen weeks with a final payment of $9.17.

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