text:
    (No. 3859
    Faye French, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

    Frank W. Purvis and Frank Eagleton, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

This claim was denied by an Opinion filed at the January 1946 term of this Court. Upon oral motion on January 9, 1946 a rehearing was allowed. Additional testimony was taken on June 18, 1946 and September 20, 1946.

We found, in the opinion heretofore filed at the January 1946 term of this Court, that no jurisdictional questions were involved, and stated therein with considerable detail the circumstances of decedent’s injury and subsequent death. The evidence shows that decedent was injured during the course of and out of his employment by respondent. The only question for determination is whether there was a causal connection between decedent’s injury and his subsquent death, and whether his injury had a causative effect in aggravating his pre-existing disease and thereby hastened his death. This claim was denied in our previous opinion for the reason that claimant had failed to show this by a preponderance of the evidence.

At the hearing two witnesses testified that prior to the injury decedent was apparently in the best of health, and that he had no occasion to see or need a doctor for many years previous to the date of the injury. They further testified that after the injury decedent complained of pains in the abdominal region and thereafter his health began to fail rapidly. Dr. Robert Flentje testified that he had practiced medicine for 35 years, and that a blow such as decedent received would aggravate an existing cancerous condition. Commissioner Jenkins asked Dr. Flentje some questions, which were answered as follows:

Q. In your opinion, Doctor, would such a blow aggravate a cancerous condition and contribute to or hasten the progress of such cancerous condition?
A. It could.
Q. And in your judgment would it contribute to and hasten the death of a person suffering from such condition?
A. It would. I might simplify that by saying that a cancerous condition is one of the eating away of the flesh and the deeper it goes the more nearly it comes to the larger vessels.
Q. It is a progressive condition?
A. It is a progressive condition.
Q. And its progress would be hastened by such a blow?
A. It would be.

Counsel for claimant asked the Doctor:

Q. Dr. Flentje, in your opinion is it also true that a blow such as Mr. French is described to have received would considerably hasten his death?
A. Yes, it would.

Dr. J. F. Lawson of Sullivan, Illinois, signed a statement on July 9, 1946, which was filed in the record and reads as follows:

“This is to certify that I am a regular licensed physician in the State of Illinois and have been for the past forty years; that I was personally acquainted with Seth French, during his lifetime, and 'that I treated him on March 24th, 25th, 26th, 28th and 30th of 1938 for gunshot wounds he received in apprehending some postofflce robbers at Allenville, Illinois, and that the said Seth French received wounds in the chest, arms and face, but that there was no buckshot in the abdomen.
That at the time I treated the said Seth French, he had no indication of cancer; that he was healthy and although I did not treat him for a number of years after- that, I did see him at different times, and from general appearance, he showed no indication of cancer.
I further certify that a blow such as Seth French received in the abdomen at that time would at least aggravate an existing cancer if he had such at that time.”

Commissioner Jenkins, after hearing the evidence, made a finding that decedent’s cancerous condition was aggravated by the injury received while in the course of his employment; that there was a causal connection between such injury and the death of decedent and recommended an award to decedent’s widow, Faye French. After a careful review of all the evidence this Court concurs with his views. In a similar case, Simpson vs. Industrial Commission, 337 Ill. 454, the Supreme Court said on page 459

“The evidence shows that prior to the day of the accident Carr was a strong, vigorous and activé man. ■ He had never been sick and had never required the services of a physician. The evidence of Hammond shows what happened at the time Carr pulled on the rope. He was never well after that time but grew steadily worse until his death. There is no question, under the evidence, but that he died from a lymphatic carcoma. There is medical evidence which shows that the sarcoma was the result of the- strain or sprain of the muscles of the back. If the death is fairly chargeable to an accident suffered in the course of his employment as an efficient cause, compensation may be awarded although the sarcoma existed prior- to the accident, provided the sarcoma was aggravated or accelerated by the injury, but there must be a direct relation between the accident and the subsequent death. (Springfield Coal Co. v. Industrial Com., 303 Ill. 455; Jones Foundry. Co. v. Industrial Com., 303 id. 410; Keller v. Industrial Com., 302 id. 610; Centralia Coal Co. v. Industrial Com., 301 id. 418.) If the act of Carr in pulling on the rope either caused a sarcoma or aggravated or accelerated a sarcoma which already existed, and his death resulted therefrom, his widow was entitled to compensation.”

There were no children under 16 years of age dependent upon the deceased for support at the time of his death. His widow, Faye French, survives him. His earnings from respondent were $1,787.09 for the year next preceding his death; and the compensation rate would be $15.00 per week, increased by 17%%, the injury having occurred after July 1, 1943, or $17.63. Under Section 7, paragraphs a and 1 of the Workmen’s Compensation Act, the widow, Faye French, would be entitled to an award of $4,700.00, less $248.21 being the amount of compensation paid, or $4,451,79.

Eileen Jones, First National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence in this case, and has' rendered a bill in the amount of $28.20. The Court finds that the amount charged is fair, reasonable and customary.

An award is entered in favor of Eileen Jones in the amount of $28.20, payable forthwith.

An award is also entered in favor of the claimant, Faye French, in the amount of $4,451.79, to be paid to her as follows:

$2,820.80, which has accrued and is payable forthwith;
$1,630.99, payable, in weekly installments of $17.63 beginning on the 16th day of June, 1947 for a period. of 92 weeks, with an additional final payment of $9.03.

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

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


source: Caselaw Access Project

author: Bergstrom, J.

license: Public Domain

text:
    (No. 4005
    William G. Van Gilder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

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

Claimant, William G. Van Gilder, filed his claim on January 27, 1947 for compensation under the provisions of the Workmen’s Compensation Act for the loss of his left middle or second finger.

On November 13, 1946 claimant and his assistants were assigned to take a truck load of cement from Paris to Champaign, Illinois. About 7:30 A. M. and approximately two miles west of Paris on S.B.I. Route No. 133, claimant stopped his truck to determine what was causing the truck motor to heat. Lifting the truck hood he noticed that the fan belt was not moving. He touched the belt to see if the tension was sufficient. At the moment he touched the belt, it began to move and crushed his left middle finger between the belt and the generator pulley.

Claimant was taken to the Paris Hospital where Dr. H. D. Junkin rendered first aid and amputated the left middle finger through the distal end of the middle phalanx. He was released from the Paris Hospital on November 15,1946 and returned to work on November 28, 1946. He was paid full salary for the two weeks lost time, and the hospital and medical bills were paid by respondent.

At the time of the accident, claimant and respondent kere 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 employment.

Claimant was married and had two children under the age of 16 years dependent upon him for support. His earnings for the year preceding his injury totaled $2,-040.00. The accident having occurred after July 1945, the compensation rate would be $19.20 per week. He is entitled to receive compensation for the loss of his left second finger, which would be computed on the basis of 35 weeks at $19.20 per week, or $672.00.

An award is therefore entered in favor of claimant, William G. Van Gilder, in the amount of $672.00, payable as follows:

$556.80, which has accrued and is payable forthwith;
$115.20, payable in weekly installments of $19.20, beginning on the 11th day of June, 1947, for a period of six weeks.

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


author: Damron, J.

text:
    (No. 4010
    Fred W. Bane, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

    Claimant, pro se.
    George F. Barrett, Attorney General, C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

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

The record consists of the complaint, filed on February 27, 1947; Exhibits 1; 2, and 3; Departmental report; Stipulation; Waivers of both claimant and respondent to file brief, statement and argument.

The stipulation provides that the departmental report and the report of Dr. G-. W. Staben attached thereto, shall constitute the record in this case.

The departmental report, filed May 7, 1947, signed by Secretary of State, Edward J. Barrett, is as follows:

“Fred W. Bane resides at 1409 North 9th Street, Springfield, Illinois. The place of accident was the Engine Room of the State Power Plant directly north of the State Capitol Building. Mr. Fred W. Bane was working on No. 3 engine in the engine room of the power plant about 9:30 a. m. on the morning of September 30, 1946. He, along with four other employees was engaged in repairing and tightening the piston on stem inside the cylinder of the engine. The piston of No. 3 engine came loose on piston rod which then required removal of cylinder head. In order to reset piston it is necessary to turn engine over by hand power to get dead centers on both ends to get proper setting. The large fly wheel is revolved by means of rachet with a long lever for power has a. dog which engages in sockets on fly wheel. This is the way the fly wheel is revolved. The dog failed to catch in socket at one point of operation. Mr. Bane reached down to place dog in socket at this point. His thumb was caught between the dog and socket, causing it to be crushed before it could be released.
The Department of Public Health was called and they immediately sent a doctor to the Power Plant, who gave first aid treatment and advised that Mr. Bane be sent to the hospital. Mr. Johnson, Chief Operator of the Power Plant took him to the hospital, where Dr. Staben was called and an X-Ray was taken and the finger was found to be crushed, the bone being chipped. Dr. Staben set the finger, putting it in a splint and released Mr. Bane from the hospital, advising him to come to his office for further treatment, which covered a period of about three months. When Dr. Staben released Mr. Bane the thumb was still very painful and is still giving him pain. At the time the doctor released Mr. Bane he advised him that this thumb would always be partially disabled due to the fact that the second joint of the thumb is stiff. Mr. Bane has no feeling in his thumb.
Mr. Bane received his salary only during his period of disability which was very short. Mr. Bane is claiming a doctor bill of $26.60 and hospital bill of $9.50 making a total of $36.00 for care of thumb. In addition he is claiming 25% permanent disability to the thumb, as "advised by his doctor for the reason that it hinders him in the performance of certain work.
Due to the fact that Mr. Bane was hurt at the power plant, the office was notified immediately, Mr. Johnson, Chief Operator, being at the scene of the .accident. Mr. Johnson reported this immediately to Peter F. Rossiter, Superintendent of Buildings on September 30, 1946. Our records show Mr. Bane was 59 years of age at the time of injury.”

Exhibit 1 introduced in this record is a bill for services rendered claimant by* Dr. Staben amounting to $26.50; Exhibit 2 is a bill of St. Johns Hospital for services rendered to claimant amounting to $9.50.

The report of Dr. Gr. W. Staben, referred to in the stipulation and marked “Exhibit 3” is as follows:

“Mr. Fred Bane has been under my care from Sept. 30, 1946 to December 11, 1946 due to an injury to his right thumb. He has approximately 25% permanent disability in right thumb due to loss of motion in the distal joint of the thumb.”

From this record we find that no jurisdictional questions are involved and the only question to be determined is the nature and extent of claimant’s injury. Dr. Staben, the treating physician estimates claimant sustained 25% functional loss of use of his right thumb and that it is permanent. We accept this as a basis of the award.

Claimant’s annual earnings for the year preceding the injury were $3,850.00, his compensation rate therefore is $18.00. Claimant is entitled to the sum'of $315.00 representing 25% permanent loss of his right thumb; the sum of $36.00 expended by him for medical and hospital services making a total of $351.00.

An award is therefore ■ hereby entered in favor of Fred W. Bane in the sum of Three Hundred Fifty-One ($351.00) Dollars all of which has accrued and is payable forthwith in a lump sum.

This award is subject to the approval of the Grover-nor as provided in Section 3 of, “An Act concerning the payment 'of compensation awards to State employees.”


text:
    (No. 4016
    Charles Toler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

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

Claimant filed his claim on March 26,1947 to recpver the sum of $88.76 for damages to his 1946 Ford sedan caused by an open excavation on Highway 37 on October 25, 1946.

The record consists of the Complaint, Respondent’s Answer, Claimant’s Waiver of Brief, and Respondent’s Waiver of Brief. The claimant alleges, that the evidence shows, that on or about October 25, 1946 claimant was driving along a portion of Highway 37 at about 7:30 in the evening at a point approximately about 4 miles south of the City of Marion, and while so driving drove into an excavation in the road where a portion of the pavement had been removed.

The evidence further shows that this excavation measured about 6' x 9' to the full depth of the pavement approximately 8"; that it was a dark, rainy evening, and the excavation was filled with water; that there was no light, barricade, or anything else to warn the claimant of this dangerous condition; that as a direct and proximate result of the negligence of the respondent, claimant’s 1946 Ford Sedan'was damaged to the extent of, $88.76; that there was paid to claimant by the American States Insurance Company the sum of $38.76 because of a collision insurance policy they carried on his car, and to which amount the company is entitled to reimbursement by reason of its right to subrogation tinder the policy; and that the claimant has not received reimbursement of the $50.00 damage sustained by him.

The evidence further shows that the claimant was the sole owner of the car which was damaged as aforesaid.

Claimant is entitled to an award in the amount of $50.00 covering the unreimbursed amount of his damage, and also an award of $38.75 for the use of American States Insurance Company.

An award is therefore entered in favor of claimant, Charles Toler, for the sum of $50.00, and an award is also entered to Charles Toler for the use of American States Insurance Company for the sum of $38.76.


text:
    (No. 4018
    Marion G. Robertson, Widow of Harold Robertson, Deceased, for Herself and as Next Friend and Mother of Harold G. Robertson, a Minor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

    Marion G. Robertson, pro se.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

This claim is brought by Marion Gr. Robertson, widow of Harold Robertson, in her own behalf, and behalf of her minor son, Harold Gr. Robertson, against the State of Illinois, under Section 7(a) of the Workmen’s Compensation Act.

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

The decedent was employed on July 7, 1946 by the State Department of Registration and Education as a Rehabilitation Counselor. By a memorandum sent to all Rehabilitation Counselors from the Office of the State Supervisor, Division of Rehabilitation, decedent was requested to attend a training conference for the blind at Blooming-ton, Illinois, to be held October 14, 1946 through October 19, 1946. Hotel reservations had been made by respondent for decedent at the Illinois Hotel, Bloomington, for the night of October 13, 1946 through October 18, 1946. That in pursuance of said orders and instructions, decedent, the said Harold Robertson, left his office in Harrisburg on October 13, 1946 and drove his automobile northward toward his destination of Bloomington, with the intention of attending said conference the following morning. At about 9:00 P. M. October 13, 1946 at a point approximately two miles south of Bloomington, Illinois, on IT. S. Route 66, decedent’s automobile collided with a tractor-trailer which was parked and standing facing in a northerly direction on the east side of the pavement. The tractor-trailer was standing on said pavement in total darkness, the driver having failed and omitted to place lights, flares or other warning signals. As a result \ of said collision, decedent, Harold Robertson, sustained injuries which caused his death on the following day, October 14, 1946.

The record further discloses that the Department of Registration and Education had immediate notice of decedent’s death as a result of this accident, and as complaint herein was filed within six months of the date of death the'provisions of Section 24 of the Compensation Act have been fully met.

The only question to be decided, is whether an employee of the respondent who is traveling as required by his employment is entitled to compensation under the Workmen’s Compensation Act. This question has been decided affirmatively by this court in the cases of Lilla M. Miller vs. State of Illinois, No. 3991, 16 C.C.R., and Margaret L. Taylor vs. State of Illinois, No. 3996, 16 C.C.R.

Respondent paid decedent a salary of $225.00 per month, which is the salary paid to persons of the same class in the same employment. Claimant is entitled to an award in the sum of $4,450.00. Since the death occurred subsequent to July 1, 1945 this must be increased 20%, making a total award of $5,340.00. The weekly compensation rate is the maximum of $15.00, increased 20%, or $18.00 per week.'

An award is therefore entered in favor of claimant, Marion G. Robertson, in the amount of $5,340.00, to be paid to her as follows:

$ 612.00 accrued, is payable forthwith;
$4,728.00 is payable in weekly installments of $18.00, beginning on the 16th day of June, 1947 for a period of 262 weeks, with an additional final payment of $12.00.

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

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


author: Mb. Justice Yantis

text:
    (No. 2654
    John Mulder, Receiver of the records, books, and assets of the J. B. French Co., a former Illinois Corporation ; the First National Bank of Chicago, assignee creditor, and Melvin B. Ericson, Receiver of the First National Bank of Wilmette, creditor assignee, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 13, 1939.

    Poppenhusen, Johnston, Thompson and Raymond, Floyd E. Thompson, Albert E. Jenner, Jr., and Thomas F. Donovan of counsel, for claimant.
    John E. Cassidy, Attorney General and Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

The three claimants of record herein each predicate their claim upon alleged damages originally accruing in favor of J. B. French Company through construction contracts held by the latter with the State of Illinois. The claim was filed April .16, 1935 for Two Hundred Eighty-four Thousand Four Hundred Forty-one and 93/100 ($284,441.93) Dollars purported damages.

It appears from the claim herein filed that J. B. French Company was formerly an Illinois corporation engaged in the building contracting business; that on October 22, 1929 it entered into a contract with the State of Illinois through the latter’s Department of Purchases and Construction, for the erection of certain buildings at the three state hospitals at Lincoln, Elgin, and Dunning, Illinois. The buildings were to be substantially completed by April 22, 1930, and after certain installment payments, final payment was to be made within thirty (30) days after completion, upon written certificate by the supervising architect.

The claim alleges that J. B. French Company began the performance of its work under the contract on October 25, 1929; that certain delays were caused by respondent and its agents; that respondent failed to keep the sub-contracting work up to schedule, whereby expensive winter work became necessary; tha.t J. B. French Company performed all the terms of the contract required on its part except as it was prevented from doing by the wrongful acts and omissions of respondent and its agents; that claimant tendered the buildings specified in its contract complete as follows: At Dunning in November, 1930; at Elgin in November, 1930 and at Lincoln in February, 1931; that the State of Illinois accepted said buildings and has paid to the J. B. French Company the contract price except for certain agreed deductions and additions thereto, but that it has failed to pay any additional sums due and owing said company for extras and for damages arising out of the acts and omissions of respondent and its agents as described in the claim. On July 16, 1930 J. B. French Company again executed mi assignment in and by which, according to the complaint, they assigned to Foreman-State National Bank, all sums of money due or to become due J. B. French Company in the State of Illinois under the terms of the latter’s contract with the State; also a further assignment dated July 25,1930 to the Foreman-State National Bank, of all sums of money due or to become due J. B. French Company in the State of Illinois for extra work, labor or materials performed or furnished by said company under its contract with the State. On September 30, 1931 copies of these assignments were sent by registered mail to the Department of Purchases and Construction of the State of Illinois, receipt whereof was duly acknowledged. The First National Bank of Chicago is by assignment successor to the Foreman-State Bank and is the holder and owner of said assignments. On December 7, 1933 said First National Bank of Chicago recovered a judgment in the Municipal Court of Chicago against said J. B. French Company for Seventeen Thousand Five Hundred Twenty and 01/100 ($17,520.01) Dollars and costs, said judgment being recovered on a promissory note dated July 25, 1932, made by J. B. French Company and secured by the above described assignments.

On the first day of November, 1930 J. B. French Company executed its promissory note in the sum of Ten Thousand ($10,000.00) Dollars, payable to the order of the First National Bank of Wilmette. This note was secured by an assignment of all sums due and to become due 'the J. B. French Company from the State of Illinois under the terms of the contract hereinabove described, but subject to the assignments heretofore described in favor of the Foreman-State National Bank. Melvin B. Ericson is the receiver, of the First National Bank of Wilmette under appointment made July 25, 1922. The complaint recites that approximately Thirteen Thousand Forty-one and 08/100 ($13,041.08) Dollars was due on said note April 16, 1935.

The J. B. French Company was dissolved as a corporation on June 20, 1932 by decree of the Superior Court of Cook County, and John Mulder was thereafter on April 12,1935 appointed by the Circuit Court of Cook County, receiver of the books, assets and records of said company.

The order appointing him as receiver of J. B. French Company directed him as such to have this claim prepared and filed in this court and to pursue and collect any further claims or assets for and on behalf of the creditors and stockholders of J. B. French Company.

Respondent has filed a motion to dismiss the claim on the following grounds:

1. That the alleged appointment of John Mulder as receiver for the J. B. French Company was void, as having been made more than two years after said corporation was dissolved.

2. That the assignees of a corporation have no better or greater rights than such corporation or any receiver appointed for it.

3. That a corporation after being legally dissolved has no power or authority to execute a promissory note or to make a valid assignment securing same.

4. That no rights could accrue against the State by virtue of the judgment held by the First National Bank of Chicago against J. B. French Company, because the State had contracted with the corporation and had paid the money due under said contract.

5. That from the allegations in the complaint J. B. French Company had breached the contract in not having substantially completed same April 22, 1930.

6. That it does not appear respondent ever had notice of the assignment to the First National Bank of Wilmette until the filing of this claim, and that copies of the assignments to the Foreman-State National Bank were not sent to respondent until September 30, 1931, which was six months after the “date respondent had paid the money due under the contract”, and that respondent therefore is not bound by such assignments.

7. That since the assignment to the First National Bank of Wilmette is only for sums due “under the terms of the Contract”, said bank and its receiver could not maintain a claim for extra work, labor or materials for the alleged reason that such items would not form a part of the contract.

Comprehensive briefs of ninety-four pages by claimant and one hundred two pages by respondent have been filed. The greater part of the Attorney General’s brief, is devoted to his contention that the appointment of John Mulder as receiver of the records, books and assets of the J. B. French Company was void, and that such receiver therefore has no legal authority to prosecute a claim in this court. This contention is made by virtue of Par. 94, Ch. 32, Illinois Revised Statutes, 1933, which provides that—

.“The dissolution, of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by the decree of a court of equity when the court has not liquidated the assets and business of the corporation, or (3) by expiration of its period of duration, shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit is brought and service of process had within two years after the date of such dissolution. Such suits may be prosecuted against and defended by the corporation in its corporate name.”

In the absence of this statute, the existence of the corporation would terminate for all purposes upon the entering of the order of dissolution. Under the terms of the foregoing Act a dissolved corporation has a continued existence for certain purposes for a definite period of two years after its dissolution.

The Attorney General contends that the J. B. French Company was a necessary party to any proceedings for the appointment of a receiver, and that under the statutory limitation of two years neither the corporation, its officers or stockholders could be made a party-defendant except within two years after the dissolution, and that the Circuit Court of Cook County had no authority to appoint a receiver for said company. This court is faced with the fact however that John Mulder was appointed receiver of the books, assets and records of the' J. B. French Company on April 12, 1935 by the Circuit Court of Cook County, and we do not consider the Court of Claims of Illinois to be a proper tribunal to sit in review upon the validity of the appointment nor to pass upon the validity of such appointment in a collateral attack made thereon.

Richards v. People, 81 Ill. 551.

Commercial Nat. Bank v. Burch, 141 Ill. 519-527.

Vandalia v. St. L. etc. Ry. Co., 209 Ill. 73-82.

These questions are then presented:

1. Could J. B. French Company validly file a claim in the Court of Claims more than two years after a decree of dissolution had been entered against it?

2. Further, if the J. B. French Company itself could not file a claim under such conditions, could a receiver appointed for such company have any better standing or right, and could such receiver file a claim herein more than two years after the decree of dissolution had' been entered as to said company?

3. Whatever the rights of John. Mulder, receiver, etc. may be, the question still arises as to the status of the other two creditors who appear here as assignees of the J. B. French Company, under assignments made prior to the time of the latter’s dissolution.

No attempt will here be made to review the many decisions cited by counsel on each side upon the first of these questions. We are of the opinion from a careful study thereof that the two-year limitation was. only intended to aid in expediting the closing up of the corporate affairs after the dissolution of such corporation; that the J. B. French Company, having been dissolved as a corporation on June 20,1932 could not file a valid claim against the State at the ,time the instant claim was filed, i. e. on April 16, 1935. Further, that the stockholders or creditors of said corporation ought not to be permitted to extend the time of settlement of the corporation’s affairs beyond the statutory period by delaying the filing of a claim in behalf of the corporation after the limitation of such two-year period, and thus, through the medium of receivership, gain rights which could not otherwise be had by the extinct corporation. The claim, insofar as it is filed by John Mulder, receiver, etc. herein, recites under Paragraph (e) of the complaint that, “The claim presented on behalf of J. B. French Company by the foregoing claimant, is a claim against the State of Illinois in the sum of Two Hundred Eighty-four Thousand Four Hundred Forty-one and 93/100 ($284,441.93) Dollars, which sum is ‘justly due and payable to the said J. B. French Company and these claimants, etc., etc.” No averment as to who constitutes these creditors, other than the First National Bank of Chicago, assignee, and Melvin B. Ericson, receiver of the First National Bank of Wilmette, assignee, appears in the complaint; the only reference thereto being (p. 13 of the complaint), “Determination of validity and amount of any creditor’s claim is to be by the Circuit Court of Cook County.”

In determining the status of receivers, the court in the case of Republic Life Insurance Company v. Swigert, et al, 135 Ill. 150 (167) said:

“We understand the rule to be, that where a receiver is appointed for the purpose of taking charge of the property and assets of a corporation, he is, for the purpose of determining the nature and eostenf. of his title, regarded as representing only the corporate body itself, and not its creditors or shareholders, being vested by law with the estate of the corporation, and deriving his own title under and through it, and that, for purposes of litigation, he takes only'the rights of the corporation such as could be asserted in its own name, .and that upon that basis, only, can he litigate for. the benefit of ‘either shareholders os' creditors.”

In the case of Young v. Stevenson, 180 Ill. 608 (614),. the Supreme Court said:

“The powers of the appellant receiver are not defined by statute. They are, therefore, such, only as are conferred by courts of equity, under their equitable jurisdiction, upon receivers appointed by such courts. As receiver he represents the corporate body, and not its shareholders. He succeeds to all rights of action which had accrued to the corporation, but not to rights of action which rested in the shareholders.”

We believe the weight of authority sustains the rule-in respect to the powers of receivers, that “Where there has been no enlargement of their powers by legislative-enactment, they have such rights of action only, as were possessed by the corporation upon whose estate .they administer. ’ ’

As to the claim of John Mulder, receiver of the records, books and assets of the J. B. French Company, a former Illinois corporation, herein filed, the motion of the Attorney General to dismiss will be and the same is hereby allowed.

The rights of the First National Bank of Chicago, assignee, and of Melvin B. Erieson, receiver of the First National Bank of Wilmette, assignee, were acquired by them by assignment in the apparent regular course of business, prior to the dissolution of J. B. French Company. We are not advised of any valid reason why such assignees should not have a right to present against the State -within the statutory period of five years from the time the right of action thereon accrued, any claim which they may have acquired by such assignment. The validity of such claim is not being determined at this time. While we agree with the Attorney General that the State cannot be subjected to a garnishee proceeding, we are of the opinion that the assignee of a valid claim, made by a corporation at a time when it is duly existing under its charter, can prosecute such claim, after the dissolution of such corporation.

The motion of the Attorney General to dismiss the claim in-so-far as same is filed by the First National Bank of Chicago, assignee, and Melvin B. Erieson, receiver of the First National Bank of Wilmette, assignee, is hereby denied.


author:
Chief Justice Damron
      DAMRON, J.

text:
    (No. 3677
    Richard M. Reinertson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1944.

      Opinion on Rehearing filed November 12, 1947.

    William E. McNamara, for claimant.
    George F. Barrett, Attorney General and William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court.

This claimant seeks an award for certain medical expenses, compensation for temporary total disability, compensation for the loss of use of. his left eye and the right leg, under the Workmen’s Compensation Act, and compensation for partial permanent disability.

The record consists of the complaint, filed January 6,1942, rule to show cause why said complaint should not be dismissed for want of prosecution, entered by this court on the 14th day of February, 1943, petition of claimant for reinstatement of said cause, filed December 8, 1943, order reinstating said cause, dated January 12, 1944, original transcript of the testimony and abstract of same, filed March 11, 1944, the report of the Division of Highways, filed April 14,1944, statement, brief and argument on behalf of claimant and respondent.

The facts are not in dispute. Richard Reinerts on was first employed by the respondent on April 6, 1940 at a rate of $175.00 per month in the Department of Public Works and Buildings, Division of Highways, Bureau of Police. July 1,1941 the police organization was transferred from the Division of Highways to the Department of Public Safety and reorganized as the Division of Police. The claimant continued in the capacity of police officer at the same salary rate until the time of the accident on which this claim is based.

July 5, 1941, the claimant was riding a motorcycle furnished him by the Division of Police southward on TJ. S. Route No. 45 in DesPlaines, Illinois. He was on patrol at the time to which he had been assigned by his commanding officer. Immediately south of Everett Street, at about 1:30 P. M., an automobile operated by one Lyle Martin, of DesPlaines, drove out of the service drive of a gasoline service station across the path on which the claimant was approaching. The automobile collided with the motorcycle which claimant was operating and claimant was thereby injured. He was immediately taken to the Northwestern Hospital in DesPlaines and placed under the care of Dr. H. F. Heller.

On July 7, the claimant was transferred to St. Luke’s Hospital in Chicago on orders of the.division and there was placed under the care of Dr. H.- B. Thomas, Professor of Orthopedic Surgery, University of Illinois Medical College. The record discloses that claimant remained under the care and observation of Dr. Thomas and his staff of specialists until April 23, 1942.

The Division of Police paid claimant’s full salary of $175.00 per month during the temporary total disability period, amounting to $402.49. This period was from July 6, 1941 to September 13, 1941, inclusive. The respondent also paid the following creditors for services rendered the claimant in connection with his injury:

Dr. H. F. Heller, DesPIaines.:.........................$ 5.00

Dr. H. B. Thomas, Chicago............................ 213.00.

Dr. Abraham Ettleson, Chicago........................ 10.00

Dr. C. C. Element, Chicago............................ 10.00

Northwestern Hospital, DesPIaines..................... 13.00

These facts above stated are found in the report of M. K. Lingle, of the Division of Highways.

The claimant was confined to his bed at his home on orders of Dr. Thomas for about two months, at which time he was advised to attempt to work. He returned to his work on September 14. On October 8, he was again examined; on November 7 he was examined and during that time ivas complaining of dizziness and head pains. On December 1, 1941, the claimant was reduced in rating from police officer to mechanic, and the salary rate was reduced from $175.00 per month to $125.00 per month. He continued under the care and observation of respondent’s doctors who examined claimant at intervals and made reports to respondent. These reports are dated December 15, 1941, January 13, January 22, February 19 and April 23, 1942. On April 30, 1942, the claimant was released from service. On May 11, 1942 the claimant obtained other employment which paid him $104.00 per month, and at the time the testimony was taken he was earning $135.00 per month.

The only contested issue in the case is the nature and extent of-claimant’s injury.

It is the contention of claimant that he was permanently disabled at the time of the accident; that he had concussion of the brain; that his right leg was permanently injured; that his left eye was permanently injured and his vision impaired thereby, and that these conditions exist to the present time and have persisted since July 5,1941 He claims there is need for further medical services.

Evidence shows that claimant, on his own behalf, visited and employed three doctors in attempting to find out why his alleged conditions persisted, and paid $30.00 to these doctors. He seeks the sum of $500.00 to cover the cost of additional medical attention.

The claimant testified that this injury left him in a condition where he was unable to return to the type of work he was doing before the accident, and has so affected his general condition as to make it impossible for him to do the work necessary to equal his former earnings. He testified that he gets flashes in his eye — ■ has sensation of a light being turned on and off — that he is unable to concentrate — that he cannot read or do close work or work involving detail. That he still has head pains beginning in' the back and extending to the. right eye and right ear, and there is a sensation of numbness. That there is a dull pain in his head almost constantly. That he has dizzy spells that come frequently when working or walking on the street, and this condition interferes with his ability to work. That he is unable to stand noise, or listen to the radio, if loud, and is obliged to have much more rest than before.

Dr. Robert E. Dyer .was called as a witness on behalf of claimant who testified that he examined claimant for the purpose of testifying in his behalf on June 7, 1943. He testified he made a complete physical examination of claimant with special reference to his head, where he complained of symptoms of dizziness, pain and numbness. He also made an examination of the eyes with the ophthalmoscope, testing all reflexes and the nervous system, which was to cover the symptoms of which he complained.

He testified that claimant had told him he had pain in the right side of his head, dizziness and disturbance of his eye.- Claimant’s attorney asked the following question:

“Q. At that time, other than the subjective symptoms he complained of, were you able to find any objective symptoms that could cause these difficulties he complained of?
“A. No, I did not. I could elicit tenderness as I forcibly pressed on the side of his head; not beyond the findings of a normal individual.”

A hypothetical question was propounded to this witness based solely on the subjective symptoms' of claimant which required the witness to use his imagination and assume that the subjective symptoms existed. The question was not proper and the answer was not helpful to the court.

The rule is well settled that an award, to be sustained, mustl be founded upon facts and inferences reasonably drawn from facts-proved by the evidence* and cannot be based upon guess or conjecture. Mt. Olive Coal Co. v. Ind. Com., 374 Ill. 461.

Dr. Fred W. Hark, Chicago, was called on behalf of respondent, who testified that he examined and treated claimant on July 7,1941, two days after the accident, and that at the time "the claimant had bruises and that claimant’s shoulder was his greatest physical disability, ‘1 which was probably due mostly to bruises more than any muscle tears, or anything. ’ ’ That he complained of dizzy attacks and symptoms of being drunk. That he found no broken bones in the body, just bruises. The witness testified that claimant also complained of a swelling in the back of his head and he was never able to feel it as claimant described it. That thereafter he saw claimant frequently. That he kept in touch with him. That at times he was present when Dr. Thomas examined claimant. He further testified that the persisting complications claimant had were from the effects of a concussion of the brain. He believed that claimant had headaches and spots before his eyes because that is usually the chief complaint of one who is suffering a concussion. He admitted that the symptoms complained of could have been caused by the injury.

On cross-examination, Dr. Hark testified that claimant was examined by an eye specialist who could not coordinate the subjective symptoms with the accident. That they found no organic basis for those symptoms. This witness would not positively connect the subjective complaints of claimant with the accident.

In the report of the Division of Highways, which is a part of this record, excerpts of reports of Dr. Thomas are set out:

On December 15, Dr. Thomas reported he “examined and talked to officer Richard Reinertson again this morning. He complains a good deal of a sensation of flashes of his left eye. As I told you we had him examined the other day and there was no- pathology found in the left eye. He has normal vision in each' eye without glasses in spite of a moderate degree of far sightedness. He has an old choroidal scar in the right eye which appears to antedate his injury”.
On April 23, 1942, Dr. Thomas reported, "We examined Mr. Reinertson today. Orthopedically he is finished. Neurologically we find nothing. We are dismissing the case”.

Giving due consideration and weight to all the evidence in the record, we cannot say that claimant is suffering from any disability as the result of the aforesaid accident. All the testimony of claimant must be judged to be subjective. The medical witnesses find nothing-objective. The record shows the case was tried on the subjective claims of the claimant. Further, the medical witnesses were led into a field of speculation based upon subjective complaints.

This court denied a claim for compensation in White vs. State, 12 C. C. R, 249. This case was tried on subjective symptoms only. We held, after citing Section 8, paragraph (i) (3) of the Workmen’s Compensation Act: “Neither claimant’s own testimony, nor the medical testimony, shows any objective conditions or symptoms. The evidence fails to satisfy the requirements of this section of the Act”.

It fully appears from this record that claimant has failed to prove his case by a clear preponderance of the evidence, as required by law. Liability cannot rest upon imagination, speculation or conjecture, it must be based upon facts established on objective findings. We cannot go outside the record to find a basis for an award.

This claimant also seeks an award in the sum of $30.00 for money expended by him for examination by three physicians of his own choosing. Section 8 (a) of the Act provides that the necessary medical and hospital services shall be furnished by the respondent but that the employee may at his own expense employ physicians of his own choosing. All medical, hospital and other necessary services were furnished by respondent to this employee. We also-must deny this claim.

Award denied.

DAMRON, J.

At the September term, 1944, we delivered an opinion in the above entitled cause denying compensation to the above named claimant for the reason the claimant had failed to prove by competent evidence, objective conditions or symptoms in reference to his claimed injuries as provided in Section 8, paragraph (i) sub paragraph (3) of the Workmen’s Compensation Act.

A petition for rehearing was filed by this claimant on October 11, 1944 and thereafter this court granted a rehearing.

On May 29, 1947 additional testimony was taken in support of the complaint at which time Dr. Henry F. Heller was called to testify on behalf of claimant. He testified that he was connected with the Northwestern Hospital at DesPlaines, Illinois and that on the afternoon of July 5, 1941 the claimant was received at said hospital in the first aid room thereof and that he examined the claimant at that time. He stated the claimant had many bruises and abrasions around the body and some on his face and head. The bruises on the head he believed were on the forehead. He further testified that the patient was placed in bed and that further hospital treatment was advised at his hospital or some suitable place; that two hours thereafter claimant was turned over to doctors for the State and went home.

In response to a question by claimant’s attorney this doctor testified that at the time he examined claimant he was suffering from shock and rather dazed, that he talked to him and told him that he had been thrown from a motorcycle. That in his opinion the claimant at that time was suffering from cerebral injury and that was what was causing his dazed and shocked condition.

On cross examination the doctor testified that he had not examined the claimant since July 5, 1941 and that he did not know whether or not claimant is now suffering from dizzy spells except what claimant told him and further that he had made no organic examination since July 5, 1941. On redirect examination counsel for claimant read a portion of the testimony claimant had given on the 8th day of October 1943. The doctor was then asked to assume that this testimony of claimant was true and to. give an opinion as to whether or not the subjective symptoms testified to by claimant at that time could be the result of the accident. He answered that he believed they could come from that accident.

As we said in our original opinion we cannot grant an award on subjective symptoms. No testimony was offered at the rehearing by medical witnesses in reference to objective symptoms.

We had fully considered the testimony of the claimant which was repeated to Doctor Heller and had denied an award. There being no testimony offered as required under' the Compensation Act this claim is again denied.

Award denied.


text:
    (No. 3929
    Ada McNutt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1941

      Petition of Claimant for Rehearing denied September 18, 1941.

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

The complaint, which was filed on September 4,1945, alleges that claimant was employed by the Department of Public Welfare of the State of Illinois in the capacity of attendant at the "Jacksonville State Hospital, Jacksonville, Illinois, for the period from February 5, 1935 through the month of April 1944; that in April 1944 claimant ivas forced to discontinue her employment by reason of the disease of tuberculosis which claimant alleges arose out of, during the course of, and by reason of her employment by respondent. Claimant claims compensation under the Occupational Disease Act of the State of Illinois.

The record shows that claimant was given a physical examination at the time she was employed in 1935, which she satisfactorily passed; that during her employment as an attendant she worked alternately in and out of those wards handling tuberculosis patients, and that during the period of her employment she spent about two years in tuberculosis wards. Her duties consisted of supervision of wards and meals, making beds, giving medieine, taking temperatures, giving baths, and serving food.

Her tubercular condition was first discovered in November, 1941. She was examined again in 1942 and in April, 1944. Claimant continued with her work until her April, 1944 examination, when she was told by Dr. Nady, who was employed by respondent, that the old cavity had reopened again. She was put to bed and remained there in her home for a period of seven months, until November, 1944. She then went to a hospital in Ottawa, Illinois where they collapsed, a lung. She was given a number of X-ray examinations and received treatment by doctors on the hospital staff of Jacksonville State Hospital. By stipulation, the following report made by Dr. R. H. Rundy, Dr. Q-. H. Vernon and Dr. Andrew Nady, the Advisory Committee on Tuberculosis Control to the Department of Public Welfare, with respect to the case of claimant, was admitted into evidence:

“Based upon the facts that this employee "entered the employment of the Jacksonville State Hospital on February 5, 1935, and though there is no report of a medical examination made at the time of her entrance into the service, it is presumed that she was medically qualified for employment. The x-ray taken on 9/16/41 reveals in the right lung, in the region of the fourth interspace, anterior, a cavity about 2 c.m. in diameter. This appears to be recent and probably has not been present as long as a year. It is our opinion that the x-ray findings are due to moderately advanced, pulmonary tuberculosis which is active.
“The report from the Institution refers to the fact that this employee was assigned to wards where it is likely patients with tuberculosis were hospitalized.
“It is the judgment of this committee that the presumption is strong that this illness grew out of the patient’s employment.”

With respect to claimant’s present condition, there is a report which was received on October 23, 1946 from the State Laboratory in Springfield, which reads as follows:

“Dr. J. L. Smith
1201 South Main Street
Jacksonville, Illinois 0
“On August 30th we received a specimen of sputum submitted by you from your patient, Mrs. Ada McNutt. This specimen was injected into a guinea pig at that time. To date this pig has remained well and healthy, and the autopsy on organs was normal. The result of the guinea pig inoculation is^ therefore, negative for tuberculosis.
“Culture — No acid fast bacilli were found.
Very truly yours,
/s/ H. J. Shacghnessy.
Chief, Division of Laboratories.”

and Dr. Witten testified that from the said report claimant is now able to be gainfully employed.

From the record, the Court is of the opinion that claimant contracted tuberculosis as a result of her employment and had an “occupational disease” within the meaning of Section 6 of the Workmen’s Occupational Diseases Act. The sole question remaining for determination is whether claimant is entitled to receive compensation under the provisions of this Act.

Liability would be determined either under Section 4 of the Workmen’s Occupational Diseases Act, which provides for an election to come under the Act, or under Section 3. of the said Act. This court has decided that the State is liable under the provisions of Section 3 of the Workmen’s Occupational Diseases Act (Marjorie Wheeler v. State, 12 C. C. R. 254), but that a claim to be compensable must be based on negligence by the State as defined in said Section 3. To establish negligence within the meaning of this section claimant must show respondent violated:

(1) A rule or rules of the Industrial Commission made pursuant to the Health and Safety Act, or

(2) Violated a Statute of this State intended for the protection of the health of employees.

Claimant argues that under Section 4 of the Occupational Diseases Act an employer may elect to provide and pay compensation according to the provisions of the Act by filing notice of such election with the Industrial Commission; that the Court of Claims supplants the Industrial Commission insofar as claims against the State are concerned; that it is impossible for the State to file a formal election under the Act, because there is no agency, other than the legislature, which has the authority to bind- the State by an election. Claimant further argues that the State is either automatically under the Act or automatically • excluded from the Act as far as payment of compensation to its employees for diseases arising out of State employment; that the legislature in passing the new Court of Claims Act in effect July, 1945, giving the court jurisdiction of claims for personal injuries or death arising out of and in the course of the employment of any State employees, the determination of which shall be in accordance with the substantive provisions of the Workmen’s Occupational Diseases Act, was in itself an election by .the State to pay and provide compensation under the Occupational Diseases Act. Paragraph D of Section 8 of the new Court of Claims Act is substantially the same as it was in the old Act except that it formerly only specified claims to be determined under' the provisions of the Workmen’s Compensation Act, whereas it now covers claims to be determined under the substantive provisions of both Acts. This court concluded that it had jurisdiction of claims arising under Section 3 of the Workmen’s Occupational Diseases Act (Marjorie Wheeler v. State, supra), and the new Court of Claims Act merely confirmed this by express statutory enactment. To conclude that this was an election by the legislature for the State and to have the same effect as the election by employers under Section 4 of the Workmen’s Occupational Diseases Act, would be construing the Act by reading into it something never intended by the legislature. If the legislature intended to make an election, making employees of the State automatically under the Workmen’s Occupational Diseases Act, it is reasonable to assume that it would have done so by amending the Workmen’s Occupational Diseases Act by providing as it did in the Workmen’s Compensation Act, Section 3, which reads— “The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation * * *” This court has interpreted that section to mean that the Act applied automatically and without election to the State.

To recover from the respondent under the Workmen’s Occupational Diseases Act, claimant must show by the evidence that the State is charged with negligence as defined in Section 3 of the said Act.

From the record, this claimant has failed to do.

For the reasons stated, an award is denied.


author: DAMRON, J.

text:
    (No. 3470
    Mary E. Lane Laux, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

      Petition of Claimant for Rehearing denied September 18, 1947.

    Joseph S. Perry, George Perrine and Edgar J. Elliott, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   DAMRON, J.

Claimant, Mary E. Lane Laux, contends that her farm and subdivision property on Stanton Bay near Fox Lake, Illinois, has been damaged to the extent of $15,-600.00 because of an overflow of water thereon as a result of the construction in 1939 of the dam at McHenry, Illinois.

The undisputed evidence shows that claimant is the owner of a farm and certain lots in subdivisions situated within a. few hundred feet of Fox Lake about 11 miles south and upstream of the McHenry dam.

In 1939, the old dam was replaced with a new structure. The permanent crest of the old structure at its highest point was 733.9 feet above sea level. A series of four temporary flash boards or planks each about 7% inches wide were kept above the permanent crest during the summer season to maintain adequate boating depth in the chain of lakes. These flash boards would be removed in the autumn.

The new dam was built to replace the old and deteriorated structure for the purpose of maintaining a more constant water level. It is a concrete and steel structure with a permanent crest 736.40 above sea level and has five vertical by-pass gates to regulate the level and flow of water. Except during heavy precipitations, it has maintained normal water levels in the chain of lakes and has eliminated the previous fluctuations which existed.

Claimant contends that the top level of the new dam is 30 inches higher than the old structure resulting in a permanent 30 inch rise in the water level. The record, however, indicates that the present crest of the new structure is slightly lower than the old dam with its four tiers of flash boards.

Claimant introduced her own testimony and that of other witnesses to the effect that after the dam was constructed in 1939 the water began to overflow and remained over approximately 45 acres of farm land previously used for growing hay and night pasturage thereby preventing her from using or renting the property and greatly impairing its value. She also testified that by reason of similar flooding certain subdivision lots, one of which had been previously filled at considerable cost, had been considerably commercially damaged. It was admitted that prior to 1939 this land would periodically be under water during spring floods but later the water would recede whereupon she could utilize the land. Now; however, the water does not recede entirely and the land is covered with muskrat houses and is worthless.

The testimony on behalf of respondent, corroborated by hydrographic charts, established that the present structure with its head gate section and by-pass gates has eliminated overflows and maintains constant levels except for heavy precipitation. The water was never higher in the new dam and as a rule the water level has been lower since the dam was constructed.

Claimant’s theory appears to be that while the new dam has maintained more constant water levels it has operated to prevent the recessions of spring flood water, as in the past, causing higher water to remain throughout the late summer months over that part of her premises previously used for pasturage. The evidence as we view it, included the hydrographic charts, indicates that prior to the new dam the water levels in the chain of lakes, even in late spring and summer months, over many years was as high, if not higher, than it has been since the old dam was replaced by the new structure; the excessive seasonable fluctuations have been eliminated; and more constant levels have been maintained.

The accuracy of this observation is confirmed by the hydrographic record of water levels for the years 1926 to 1942. During the month of June for all these years, the water level was as high or higher during twelve of the thirteen years preceding the construction of the new •dam than it was for any of the years subsequent thereto. For July, it was! as high or higher for 8 out of the 12 preceding years; for August it was as high or higher for 9 out of the 12 preceding years and for September, it was as high or higher during 8 out of the 12 years for which records are ayailable. This would indicate that the peak water mark even during later summer months following" spring floods was leveled off and reduced by the new dam rather than raised. The records for earlier and later months of the years preceding and following the replacement of thq old dam are even more impressive in -this respect. This evidence cannot be reconciled with claimant’s assertion that damage to her property resulted from the construction of the new dam at McHenry, Illinois.

Claimant has failed to establish her case by a preponderance of the evidence and an award is denied.

Award denied.


text:
    (No. 3538
    John P. Quigley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Wallace Thompson, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General for respondent.
   Damron, J.

Claimant seeks-an award based on Article 16, Section 11, of the Military and Naval Code of the State of Illinois. (Chap. 129, Ill. Rev. Stat. 1945.)

The record,' as constituted, shows that the claimant John P. Quigley, was- a private in the Illinois National Guard July 2, 1937, being a member -of Battery “A” Field Artillery and on said date was a member of a gun crew engaged in moving a 155 mm. Howitzer in the armory at Galesburg, Illinois. The record discloses that the Battery was moving equipment under orders, preparatory to going to field training and while claimant was assisting in moving the field piece, the tread of the rubber-tirecl wheel caught the buckle of the claimant’s boot, pulling his right foot under the tire.

Section 10 of the Code provides that any officer or enlisted man who may be wounded or disabled in any way while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general and to draw one-half his active service pay for not to exceed thirty days of such disability, on the certificate of the attending medical officer. If still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers duly convened by order of the commander-in-chief -may determine to be right and just, but not to exceed-six months unless approved by the State Court of Claims.

Under the provisions of this section, claimant was hospitalized, and received medical treatment. His injured right foot was placed in a cast for 7 weeks, after which he received hydrotherapy treatments at the Illinois Research Hospital in Chicago; all medical and hospital expenses incurred in connection with the injury were paid by the respondent.

On July 5, 1937, a- Regimental Board of two medical officers and one service officer, there not being three medical officers available at that time, convened and made findings as follows: That the cause of injury to claimant was from a 155 mm. Howitzer wheel rolling upon the outside of the right foot; that the injury was incurred in line of duty; that the proper length of treatment would be indefinite; and that he would be left at home station with arrangements for further treatment by Dr. William H. Maley of Galesburg, Illinois.

On August 9, 1937, the same Regimental Board reconvened and made further findings and recommended that Private Quigley be sent to a hospital for hydrotherapy treatments and that he be paid fifteen days pay at $2.00 per day.

Thereafter, claimant made claim for additional service pay which was denied by the Adjutant General.

The above and foregoing proceedings were authorized under Section 10 of the Military and Naval Code.

On August 26, 1940, claimant filed his claim in this court seeking to recover an award in the sum of $5,000.00 for permanent and partial loss of use of his right foot under Section 11 of Article 16 of the Military and Naval Code.

Kvidence in support of the claim was taken February 28, 1947.

Dr. William H. Maley was called on behalf of claimant and testified that he was a graduate of Rush Medical School, Chicago, Illinois; that he attended the claimant on or about July 2, 1937 at the Armory in Galesburg. The claimant was then taken to St. Mary’s Hospital. X-rays were taken of the injured foot and it was placed in a cast. He testified that the junction of the bones of claimant’s right foot was badly crushed although there was no definite fracture, that the injury was permanent and that in his opinion this claimant had suffered a twenty per cent permanent loss of use of his right foot in consequence of said accident.

Commissioner Jenkins before whom the testimony was taken saw the claimant manipulate his right foot, at said hearing, agrees with the estimate of Dr. Maley that claimant has suffered a twenty per cent permanent loss of use of his right foot. We therefore follow this estimate.

In Hall vs. State, 12 C. C. R. 464, on page 467, we said, whatever right to an award exists in favor of claimant is by virtue of the aforesaid provisions of the Military and Naval Code of Illinois. No hard and fast rule exists for determining what amount should be allowed. In certain of these cases this court has seen fit to take as a guide, but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act, in determining* what payment would be reasonable for the loss sustained. ’ ’

Section 8, Paragraph (e) of the Workmen’s Compensation Act, as amended, July 1, 1937, provided for the loss of a foot or the permanent and complete loss of its use, 50% of the average weekly wage during 135 weeks.

Again guided by the rule in compensation cases, the claimant’s compensation rate, based on the fact that he was the father of two children under 16 years of age dependent upon him for support on the date of the accident, will be $12.00 per week. Claimant therefore would be entitled to an award under the above rule, representing 20% of 135 weeks or 27 weeks at $12.00 amounting to the sum of $324.00.

An award is therefore hereby entered in favor of claimant, John P. Quigley, in the sum of three hundred twenty-four ($324.00) dollars.


author: Eckert, C. J.

text:
    (No. 3742
    Charles Stih and Theresa Stih, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    James E. Malone, Jr., for claimants.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

The claimants, Charles Stih and Theresa Stih are the owners as joint tenants of the following described real estate:

Lot Three (3) in Block Three (3) in Lapsley’s Addition to LaSalle, in the City of LaSalle, County of LaSalle and State of Illinois, excepting coal and mineral rights.

This property lies immediately south of, and fronts to the north, on Fifth Street, and is improved with a dwelling house arid a small frame building, formerly used for a retail grocery store. When the buildings were constructed, they weve adapted to the then established grades and curb lines of Fifth Street, so that there Avas free access to the premises from the street.

On September 10, 1940, a highway improvement on Fifth Street, knoAvn as State Bond Issue Boute 7, Construction Section 34, City of LaSalle, LaSalle County, Illinois, was begun by the respondent, and Avas completed on July 2, 1941. The improvement consisted of a neAV concrete pavement of variable width which raised the grade of Fifth Street abutting the claimants’ property, three to four feet. A retaining wall Avas also erected, and a pipe fence, so that direct access from claimants property to the street was cut off. Claimants allege that as a result of the construction of this improvement, this propery has been damaged to the extent of $2,000.00.

From the testimony of expert AAdtnesses, from photo- ' graphs taken of the property both before and after the improATement, it is clear that the raising of the highway level has lessened the value of this property. Commissioner East, Avho viewed the premises, recommends an award in the sum of $1,000.00. The court is of the opinion that the record amply supports such recommendation.

An award is, therefore, entered in favor of claimants, Charles Stih and Theresa Stih, in the sum of $1,000.00.


text:
    (No. 3966
    Louis Glenn Sealock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

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

On April 5, 1944, the claimant, Louis Glenn Sealock, employed by respondent as a highway section man in the Department of Public Works and Buildings, Division of Highways, was standing on a road drag being pulled behind a truck for the purpose of leveling the shoulders of H. S. Highway No. 40 in Fayette County and the end of the drag struck the culvert head wall, causing the drag to lurch and throw claimant forward to the pavement. One of the drag runners fell on Mr. Sealock’s left leg, fracturing it at the ankle.

The driver of the truck called an ambulance, secured the services of Dr. A. it. Whitefort, St. Elmo, and called the Effingham office of the Division of Highways, notifying them of the accident. Dr. Whitefort placed Mr. Sea-lock in the ambulance and took him to the Mark Greer Hospital, Vandalia, Illinois, where Drs. Mark Greer and A. R. Whitefort reduced the fracture and placed the leg in a cast. The same day a representative of the Division of Highways called on Dr. Greer and arranged for claimant’s transfer to the care of Dr. J. Albert Key, Professor of Clinical Orthopedic Surgery, Washington University, St. Louis, Missouri. April 7,1944 Mr. Sealock was transported by ambulance from Mark Greer Hospital to Barnes Hospital, St. Louis, and placed under the care of Dr. Key, where he was hospitalized from April 9 to April 28. After that he paid a number of visits to Dr. Key as the ankle was giving him trouble, and he was again hospitalized at Barnes Hospital from July 17 until July 30, 1945. On July 13, 1946 Dr. Key sent his final report to the Division of Highways, as follows:

“I- examined Mr. Glenn Sealock again on July 10, 1946. As nearly as I can determine, his ankle is solidly fused. The fractures are united in good position, and there is no infection in his leg. I do not think that any further treatment is necessary and think that his case might now be settled.
“I have advised that he return to light work and that he increase his activities gradually. I think that a rating of 50 per cent permanent disability in the ankle will be a fair one in this case.”

Dr. A. R. Whitefort reported with reference to claimant’s disability on December 18, 1946, as follows:

“Left ankle 95%. No side movements. Ant. Post, very slight, possibly ya inch. With ankle stiff we call the limb efficiency as a whole 50% as it throws the skeletal muscles out of line when he walks. He cannot stand on feet too long without pains, in left side and back. When he does he cannot rest as pains persist after retiring. It seems to me that a settlement at this time should take into account the fact that time may not correct and might increase the disability. At the present time the man is only 50% efficient in regarding to following a • laborer or farmer’s occupation. Time may reduce the disability another 25%, but I would not be willing to venture this would be a fact.”

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

Claimant’s earnings during the year immediately preceding his injury were $1,550.00. He has no children under the age of 16 years. His compensation rate is, therefore, $14.90 per week, and since the injury occurred subsequent to July 1,1943, this must be increased 17%%, making a compensation rate of $17.51 per week.

From the evidence, the Court is of the opinion that claimant has been injured to the extent of 50% permanent and complete loss of the use of his leg, and that he is entitled to an award of $17.51 per week for a period of 95 weeks, or $1,663.45, and in addition thereto, the sum of $28.29 representing money advanced by claimant for travel and medical expenses, making a total of $1,691.74. From the amount of $1,691.74 must be deducted the sum of $214.93, which is the amount respondent overpaid to claimant for temporary total disability. Medical expenses were paid by respondent mounting to $1,235.78.

An award is therefore made in favor of claimant, Louis Glenn Sealoek, in the sum of $1,476.81, all of which has accrued and is payable forthwith.

Louis A. McLaughlin, court reporter, Vandalia, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $36.40. The Court finds that the amount charged is fair, reasonable and customary, and that said claim be, and is, hereby allowed.

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


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    (No. 3978
    Leone Feely, mother of Ruth Feeley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Robert David Mack, for claimant.

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

The claimant, Leone Feely, mother of Ruth 0. Feely, deceased, seeks an award under Section (7) (C) of the Workmen’s Compensation Act of Illinois.

Claimant’s decedent, Ruth 0. Feely, succumbed in a fire on June 5, 1946 at the LaSalle Hotel, in Chicago. Miss Feely had been employed by the Department of Public Health for several years prior to June, 1946. As a consultant nurse in the Division of Venereal Disease Control, she was assigned to the Cook County Health Department to instruct nurses in the Venereal Diseases. Clinics. During the week commencing June 2, 1946,. while so assigned, she was registered as a guest at the LaSalle Hotel, with the knowledge and approval of her Departmental officials.

The Department had immediate notice of the fact that Miss Feely lost her life in the fire; complaint was filed within six months and hence no jurisdictional questions are presented.

Following the first hearing of this cause a transcript of the evidence was filed on October 30, 1946. The opinion of the court filed herein stated that two questions were presented for decision (1) Whether claimant was entitled to compensation by reason of her daughter’s death in the fire which occurred while she was a guest in the LaSalle Hotel; and (2) Whether the mother was entitled to an award for partial dependency under the provisions of Section (7) (C) of the Workmen’s Compensation Act.

We held that the first of these questions has been resolved in claimant’s favor in Miller v. State, 16 C. C. R. and Taylor vs. State, 16 C. C. R. In passing on the second question, it was held that the evidence failed to establish the mother’s partial dependency, and for that reason an award was denied.

Thereafter, this court sustained claimant’s petition for rehearing or new trial for the reasons set forth in the affidavit filed in support thereof. The cause was assigned to a commissioner, it being stipulated that any part of the transcript of the evidence taken at the former hearing, together with the exhibits then introduced, might be considered, for all purposes as though such evideuce had been taken and introduced upon the re-hearing.

Claimant, Leone Feely, testified in her own behalf in considerable detail concerning the facts bearing upon the question of dependency, and a transcript of this evidence was filed on July 25, 1947.

The earlier holding of this court in Miller v. State and Taylor vs. State, supra, sustains the previous conclusion of this court in this cause that the death of claimant’s decedent in the fire at the LaSalle Hotel on June 5, 1946 under the circumstances disclosed by this record was compensable as an accidental death arising out of and in the course of her employment.

With respect to the only other issue raised by the proof, as to whether claimant has established by a preponderance of "the evidence her partial dependency under Sction 7 (C), the additional evidence presented by her on the re-hearing is sufficient to resolve that question affirmatively in her behalf.

The material evidence in regard to this phase of the case may be summarized as follows:

The deceased, Euth 0. Feely, was 37 years of age on June 5, 1946. She had never married. During the year preceding her death her earnings from the State were $2,928.85. In addition she was reimbursed by respondent for her travelling and maintenance expenses amounting to about $115.00 to $150.00 per month. She had no other source of income.

Her mother, Leone Feely, was 59 years of age. Euth O. Feely was her only child. Claimant was divorced in 1916 and for more than thirty years the father never contributed to the support of the child. Claimant is employed by the Department of Bevenue and during the year preceding her daughter’s death earned $143.75 a month which, after tax and other deductions left her $120.16 net per month. She had no other source of income.

Except for a short interval of a few months immediately following the divorce, the daughter and mother lived together.

In 1932, shortly after Ruth completed her nurses training, and obtained employment, a home was established and her mother, discontinued working. She was not again employed until June, 1942, at which time she secured employment with the Department of Labor. During these years of unemployment, as well as during a later interval of non-employment from September 1, 1943 until April, 1944, Ruth was her mother ’s sole means of support.

The mother and daughter resided in Springfield, Illinois. 'They occupied a rented six room unfurnished home. The household furnishings belonged to the daughter, having been purchased by her.

Ruth Feely and her mother always deposited their respective pay checks in a local bank account in their joint names. Ruth paid all major bills by check drawn on this account.

The daughter’s duties in the field as consultant nurse for the Department of Health required her to leave Springfield every Sunday evening or early Monday morning. She seldom returned until Friday evening. Each week when she departed she would withdraw her weekly travelling expense and also draw a check to cash for $25.00 which she turned over to her mother for the-latter’s daily routine personal expenses such as meals, transportation, medicine, and occasional amusements. The daughter frequently purchased apparel for her mother.

During the year or two preceding Ruth’s death,■claimant was in ill health suffering from neuritis and arthritis which necessitated the services of a physician, therapeutic treatments and special medication.

The mother testified that her personal expenses ran between $225.00 to $250.00 a month. On the first hearing she testified that Ruth contributed about $150.00 per month to her personal support. On the present hearing before the Commissioner she testified in considerable detail as to her living expenses. The following tabulation elicited from her testimony, itemized her personal monthly expenses as follows:

Rent .......................................
$55.00
Coal........................................
10.50
Garage .....................................
3.00
Meals .....................................
55.00
Clothing....................................
20.00 to $25.00
Physicians — Medicines ......................
10.00 to 15.00
Laundry — Dry Cleaning.....................
10.00 to 12.00
Carfare.....................................
4.00
Reading material, papers, magazines..........
5.00
Maintenance Man...........................
4.40
Telephone ..................................
3.75
Gas — Light .................................
3.00 to 3.50
Water bill .................................
.65 to .90
Insurance premiums — life, accident, hospital..
4.50
Entertainment ..............................
5.00
Church and charity..........................
2.75
Beauty Parlor — hairdresser, manicure, cos-
metics .........•...........................
15.00
Cigarettes ..................................
5.00
Total..................................$217.55 to $230.40

At the time of Ruth’s death there was less than $300.00 in their joint bank account, and other than a small amount of war bonds neither had accumulated any savings.

It is obvious from claimant’s testimony that her net earnings of $120.16 (after deductions) were inadequate to defray her personal living expenses as hereinabove enumerated, and that she was to a substantial degree dependent upon and supported by her daughter at the time of her death. This evidence of claimant was not controverted. It amply sustains the conclusion that she relied upon her daughter for reasonable necessities consistent with her position in life.

It is equally manifest that the amount expended for the various items as testified to by claimant was reasonable and conservatively compatible with prevailing living costs for one in her position in life. The statement from the opinion in Air Castle v. Industrial Commission, 394 Ill. 62 to the effect that “we take judicial notice of the fact that living expenses increased greatly” is germane at this point.

The Attorney General moved to strike claimant’s testimony with respect to the beauty parlor treatments, entertainment, church and charitable donations. While we would hesitate to say that expenditures in such amounts for such purposes, by a person employed as claimant is, in a public office requiring her to present a neat and wellgroomed appearance, are not reasonably necessary, it will serve no useful purpose to extend this discussion or resolve that evidentiary problem in view of the conclusion reached.

The basic legal principles applicable to this aspect of the record have been firmly established.

A mere showing of parentage or lineal relationship raises no presumption of dependency under paragraph (c) of the Act and is a question of fact to be established by a preponderance of the evidence. Bauer & Black v. Ind. Com., 322 Ill. 165; Peterson v. Ind. Com., 315 Ill. 199. An award for partial dependency cannot rest on speculation, but must be based on facts. L. M. & O. M. Co. v. Ind. Com., 335 Ill. 254.

The test of partial dependency is whether contributions were relied on by claimant for her means of living, judging by her position in life, and whether she was to a substantial degree supported by the employee at the time $f the latter’s death. Ritzman v. Ind. Com., 353 Ill. 34, and other cases cited, Smith Hurd Illinois Annotated Statutes (Perm. Ed.) Oh. 48, Sec. 144, par. (c) note 2.

On the other hand partial dependency may exist even though the evidence shows that claimant could have subsisted without the contributions of the deceased employee. Ritzman v. Ind. Com., supra, and Smith Hurd Ill. Anno. Statutes (Perm. Ed.) Chapter 48, Sec. 144, par. (c), supra.

Dependency and the extent thereof are questions of fact. Dependency being shown to exist, the percentage is determined not by the amount of the contribution but by the proportion such contribution bears to the cost of living in the dependent’s station in life. Smyth Co. v. Ind. Com., 306 Ill. 171.

It has often been held that on questions of dependency the Act should receive a practical and liberal construction, Walchter v. Ind. Com., 367 Ill. 256, Air Castle v. Ind. Com., 394 Ill. 62.

The preponderance of the undisputed testimony in this record as it now stands at the conclusion of the rehearing establishes that claimant is entitled to an award for partial dependency under Section 7 (C).

In determining the degree of such dependency it suffices to say that if the items objected to by the respondent are excluded, claimant has nevertheless shown that not less than $200.00 was required to provide the shelter, food, clothing, medical attention, carfare and other incidentals as itemized by her testimony. Her net or “take home pay” was $120.16. This left a deficit of $80.00 per month to provide these reasonable necessaries, which deficit was met from her daughter’s earnings. $80.00 represents 40% of her total support needs of $200.00 and claimant is entitled to an award to that extent. ®

Claimant consequently should be awarded $3,750.00 under Section 7 (C) of the Act, to be increased 20% under Section 7(1), making a total award of $4,500.00. Claimant’s intestate weekly earnings were $56.32, and therefore", her compensation rate is $18.00 per week, being the maximum of $15.00 increased 20% in accordance with Par. 1 of that Section.

An award is therefore made in favor of claimant, Leone Feely, in the amount of $4,500.00, to be paid to her as follows:

$1,206.00, accrued, is payable forthwith;
$3,294.00, is payable in weekly installments of $18.00, beginning
September 26, 1947 for a period of 183 weeks.

Future payments being subject to the terms of the Workmen’s Compensation Act, including respondent’s right of subrogation under Section 29 of the Act, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

In view of the above award, the award of $150.00 to be paid to claimant and the award of $400.00 to be paid to the State Treasurer under Par. E, Section 7 of the Compensation Act, allowed in the original opinion filed herein, is hereby nullified and set aside.

Eileen Jones, reporter, First National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence at the original hearing of this case, and has rendered a bill in the amount of $45.50. The Court found, in the original opinion filed, that the amount charged was fair, reasonable and customary, and said claim be allowed, which finding is hereby confirmed.

A. M. Bothbart Court Beporting Service, 1308 — 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this case at the rehearing thereof, and has renderd a bill in the amount of $57.05. The Court finds that the amount charged is fair, reasonable and customary, and said claim is allowed.

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


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    (No. 4000
    William Eggert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Philip J. Schlagenhauf, for claimant.
    George F. Barrett, Attorney General, and Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On June 11, 1946, the claimant, William Eggert, employed by the respondent as a laborer in the Department of Public Works and Buildings, Division of Highways, while engaged in loading drums of bituminous material onto a truck near Goodfield, Woodford Comity, Illinois, caught his right third finger between a falling drum and a drum lying on- the ground. Immediately after the accident, he was taken to the Eureka Hospital, Eureka, Illinois, where it was found necessary to amputate the distal phalanx of this finger.

At the time of the accident, the employer and the 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 earning-s of the claimant at the time of the injury were 75c per hour for an eight hour day, and employees of the respondent engaged in similar capacity worked less than 200 days per year. Claimant’s compensation rate is, therefore, $11.54. The injury having occurred after July 1, 1945, this must be increased 20%, making a compensation rate of $13.85 per week.

The report of the Division of Highways shows that claimant was wholly incapacitated from June 12, 1946, to September 4, 1946, a period, of twelve weeks. Claimant was paid compensation for that period in the amount of $130.78. He was entitled, however, to compensation for temporary total disability in the amount of $166.20, so that there is due claimant a balance of $35.42 on account of temporary total disability.

Claimant is also entitled to an award for the loss of the distal phalanx of his right third finger, or an award of $13.85 for a period of 12% weeks, being in the aggregate $173.13.

An award is, therefore, entered in favor of the claimant in the amount of $208.55, all of which has accrued and is payable forthwith.

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


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    (No. 4007
    Clarence R. Hieronymus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Robert H. Allison, for claimant;
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On August 21, 1946, the claimant, Clarence R. Hieronymus, employed by the respondent in the Department of Public Works and Buildings, Division of Highways, as a laborer, while completing the greasing of a mud-jack, stumbled on the tongue of a service trailer, and fell backwards, striking his head and back on rough ground. Although the injury was painful, he returned to his work until .evening when, at the suggestion of his foreman, he consulted Dr. Hubert Lang, of Armington, Illinois.

Dr. Lang reported, after his examination, that claimant had suffered a severe contusion and sprain of the thoracic-lumbar region of his back. The doctor prescribed bed rest, heat and taping. X-rays were negative for a recent fracture.

On November 12, 1946, the claimant was taken to St. Francis Hospital, at Peoria, for examination and treatment by Dr. Hugh Cooper. Claimant returned to his home four days later, and Dr. Cooper submitted the following report to the respondent:

“Mr. Clarence Hieronymus has been in the hospital for a few days for a general checkup examination. I took care of him several years ago when he fell from a truck causing an injury of his cervical spine. He had, even at that time, a very severe hypertrophic spondylitis of the whole spinal column causing a great deal of limitation of motion. This is so severe that I doubt if he should be doing very active physical work, if that was his only disability. He, however, began to show some epileptiform seizures following his original injury while he was still in the hospital. He returned to work for the Department,' but I believe still has these peculiar epileptic attacks.
“I believe that we must regard these epileptic attacks as being in some way related to his injury a number of years ago. Certainly it is not safe for him ta try to carry on any remunerated activity, as these attacks 'come quite commonly and would make his work quite dangerous. His hypertrophic changes in his spine are also rather severe and would almost prevent his doing any active work even though he did not have the attacks; I believe we have to regard his condition as a permanent complete disability so far as active work is concerned."

On December 9, 1946, Dr. Cooper submitted the following supplementary report:

“I wish to supplement my recent report on Mr. Clarence Hieronymus as I did not in my recent statement make any statement with regard to his accident of August 21, 1946. He apparently had a rather hard fall at that time landing on his head and immediately began to have more and more trouble with his back pain. Although he has had a generalized hypertrophic arthritis of the spine, he has been able to work with it. The aggravation of this condition, by his fall in August, has made him almost completely disabled.
“Since this man’s injury some years ago he has been having some mild epileptiform attacks. It is probable that he had an attack at the time of this fall in August, although this is not a provable point. Considering the hypertrophic spondylitis, which he has, and peculiar epileptiform seizures which have been getting gradually worse, I believe that this man is disabled completely so far as remunerative employment is concerned.’’

Dr. Lang also submitted a further report in December, 1946, in which he stated that claimant had a severe / arthritis of the spine, and healed fractures of the spine from an older injury. Dr. Lang stated, however, that, since the accident of August 21, 1946, claimant’s back pains had been more severe, and the epileptic spells, which began after an injury in 1943, had been aggravated.-

From these reports, and the testimohy taken before Commissioner Jenkins, it appears that claimant is a man sixty-seven years of age, married, but with no children under sixteen years of age dependent upon him for support. He was first employed by the respondent in 1941, and received a service connected injury, resulting in a broken vertebra, during the year 1943. Following his recovery from that injury, he was re-employed by the respondent. Since the injury of August 21, 1946, claimant has been wholly incapacitated.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of claimant’s employment. No claim is made for temporary total disability, nor for medical expenses, which were paid by the respondent. Claim, however, is made for total permanent disability.

Claimant’s earnings during the year immediately preceding his injury were $1,584.00. His compensation rate is, therefore, the maximum of $15.00; since the injury occurred subsequent to July 1, 1945, this must be increased 20%, making a compensation rate of $18.00 per week.

The Court finds that claimant is totally and permanently disabled, and that he is entitled to an award of $18.00 per week for a period of 266 weeks, and one week at $12.00 per week, or a total award of $4,800.00, and thereafter a pension for life. From this award of $4,800.00 must be deducted the sum of $298.27 which was paid by the respondent for temporary total disability.

An award is, therefdre, entered in favor of the claimant, Clarence B. Hieronymus, in the amount of $4,501.73, payable as follows:

$ 709.73, which has accrued as of September 18, 1947, is payable forthwith.
$3,792.00, payable in weekly installments of $18.00, beginning September 18, 1947, with a final payment of $12.00; and thereafter a pension for life in the sum of $384.00 annually, payable in monthly installments of $32.00.

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

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