author: Chibe Justice Damron

text:
    No. 3428
    Mary Ellen Hewlett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

      Rehearing denied September 14, 1943.

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

delivered the opinion of the court:

This claim was filed on December 14, 1939, and is for an award in the sum of $10,000.00 for damages sustained by claimant by the death of her husband alleged to have been caused by .the injection of defective anti-typhoid serum, or the negligent injection of anti-typhoid serum.

Claimant was appointed administratrix of the estate of her husband, Boy Fewtrell Hewlett, by the Probate Court of Will County, Illinois, on December 4,1939. She files as such administratrix.

The complaint alleges that deceased was employed for more than twenty years continuously prior to his death as a guard at the Northern Illinois Penitentiary at Joliet, Illinois; that deceased was in good health and not suffering from coronary thrombosis or any other disease of the heart, prior to-the injection of said anti-typhoid serum; that during the months of October and November the respondent, by its officers, agents or employees, acting with authority, directed and compelled the deceased, without his consent, to be inoculated with a defective anti-typhoid serum; that shortly after the injection and as a direct result thereof, deceased became ill and was disabled from performing his duties. That as a result of said illness deceased was compelled to call upon the services of a physician, but notwithstanding the illness caused by the first injection, a second and third injection were forced into deceased’s system, body and blood stream causing deceased to become progressively more ill and disabled. That after the third injection deceased became violently ill and shortly thereafter died on the 10th day of November, 1939, all from the ill effects of said defective serum or the manner in which it was administered; that deceased’s death did not arise from his occupation except that injections of serum were forced upon him because he was employed by respondent and that his death was not brought about by any other contributing cause except injection of defective serum or such other contributing cause as was into deceased’s body, system or blood stream by said serum; that the death of deceased was brought about by the negligence of respondent in providing defective serum which was negligently administered to deceased.

The record consists of the complaint, transcript of testimony of claimant, and respondent’s motion to dismiss. The evidence in the case shows that deceased was inoculated with anti-typhoid serum on October 19, October 26 and November 2,1939, and that he died November 10, 1939. The complaint having been filed within six months after the date of the alleged accident and the evidence disclosing that deceased was an actual employee of the respondent during October and November, 1939, the requirements of Section 24 of the Compensation Act of Illinois have been complied with and the court will take jurisdiction of the claim.

The evidence further shows that all guards, employees and inmates of said state penitentiary were requested by the proper authorities to submit to inoculation with anti-typhoid serum. This order was issued during the typhoid epidemic at the Manteno State Institution, at Manteno, Illinois, although there is no evidence that an epidemic had arisen within the confines of the Joliet Penitentiary, yet it seems that this order for inoculation was necessary as a health protective measure.

While it is true that the complaint charges that the deceased was inoculated with defective serum or that the inoculation was performed in a negligent manner, there is no evidence in the record to support such allegations. The evidence does show that no other employee or inmate, all of whom were inoculated, suffered any untoward reactions, except one person who suffered from asthma. Smaller doses were administered to him, which tends to prove that the staff physicians used care and caution in administering the serum.

The evidence further discloses that deceased’s own private physician advised him to cease working during the period of inoculation. This he failed to do and the record further discloses that during that period deceased made no complaint to any person in authority at the. penal institution. The evidence further discloses from medical witnesses that during the period of inoculation deceased did not have an anaphylactic reaction and the evidence shows that had that occurred death would have occurred within a short time after the injection of the serum and before the patient left the room in which he was inoculated. The deceased had three injections spaced about seven days apart and lived eight days after the last injection. Certainly it cannot be seriously contended that deceased had an anaphylactic reaction.

Dr. Paul E. Landmann, deceased’s own physician was called the night of deceased’s death but arrived some time after death had occurred. He issued the death certificate and gave the cause of death as coronary thrombosis, with chronic myocarditis as a contributing factor. Dr. Landmann testified that if defective serum was used, it could cause a thrombosis. There is nothing in the evidence supporting the charge that the serum used was defective. Dr. Landmann further testified that there was no way of determining what the obstruction was and that it was just as likely that the serum inoculation had nothing whatever to do with the thrombosis.

Dr. Wayne S. McSweeney, called as a witness, testified that the injections did not cause chronic myocarditis and that chronic myocarditis would have to come on over a period of months after an acute infection of some kind. He corroborated Dr. Landmann in stating it was likely the injection had had nothing to do with the thrombosis.

Under the Workmen’s Compensation Act of the State of Illinois, the burden of proof is upon the applicant to establish by a preponderance of the evidence every disputed question of fact as to his right to compensation. An award may not be based upon imagination, speculation or conjecture, but must be based upon facts established clearly by a preponderance of the evidence. This petitioner has failed to show that the coronary thrombosis from which it is admitted claimant’s husband died was the result of an injury sustained in the course of his employment by the respondent or that it arose out of said employment.

And further, petitioner has failed to prove that the serum used by the staff physicians of the respondent was defective or that the inoculations were injected negligently by said staff physicians. Even though such proof were present in the record, the State, in the exercise of a governmental function, is not liable for injuries to persons resulting from the negligence of its officers, agents or employees and an award as a matter of social justice and equity cannot be allowed when the State would not be liable in law or in equity if it were suable. This has been the holding of this court in so many cases, citations are deemed unnecessary.

It is regrettable that petitioner’s deceased husband died while employed by the State, but following the precedents of this court and the many decisions of the Supreme Court of this State, we cannot grant an award.

The Attorney General representing the respondent flies a motion to dismiss the complaint. This motion must be sustained. Complaint dismissed.


source: Caselaw Access Project

author: Chief Justice Damron

license: Public Domain

text:
    No. 3779
    Charles Landis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Lewis L. Boot, for claimant.
    George F. Barrett, Attorney General; Bobert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

■ The facts in this case are not in controversy. Charles Landis was on the 18th day of July, 1941, employed by the State of Illinois, and while driving a State highway truck westerly on Franklin Avenue about two blocks west of the Mannheim Boad in the village of Franklin Park, County of Cook, State of Illinois, collided with a vehicle driven by an employee óf the City Ice & Fuel Company, suffering injuries.

Being an employee of the State, the State of Illinois expended for medical, surgical, hospital care and compensation the sum of $1,638.83.

On October 7, 1941, the claimant through his attorney notified the respondent that the claimant had instituted suit for personal injuries in the Superior Court of Cook County against the City Ice & Fuel Company, a corporation, case No. 41S-14981. On November 12, 1941, the claimant created and acknowledged a lien in favor of the State for all monies paid and to be paid by the respondent for medical, hospital care and compensation.

Belying on the above lien, the Attorney General did not file an intervening petition.

At the request of the claimant, W. A. Bosenfield, Director of the Department of Public Works and Buildings, State of Illinois, on October 27, 1942, executed a waiver on behalf of his department waiving any claim which the State had under the provisions of the Workmen’s Compensation Act for subrogation to the amount paid on behalf of said claimant, following which claimant made a settlement in court of his claim against the said Ice & Fuel Company without resorting to trial, for $7,-500.00, out of which claimant refunded to the respondent the sum of $1,638.83, as agreed.

The Attorney General files a motion to dismiss this complaint and to the" motion is attached the affidavit of Earl McK. Guy, Acting Engineer of Claims, Department of Public Works and Buildings, Division of Highways. It corroborates the above facts.

It cannot be questioned that the claimant in the first instance could have filed a claim in this court for injuries received in the course of his employment, or he could have elected to sue the negligent third party in a court of general jurisdiction. This latter course hé followed and obtained a settlement far in excess of any amount which could have been awarded to him by this court following the provisions of the Workmen’s Compensation Act. Having elected to sue the negligent third party he is bound thereby. He is not entitled to two recoveries as was said in People ex rel Barrett vs. Tull, 311 Illinois App. 636:

“Where both parties elect to abide by the provisions of such law they must be held to be bound thereby. To apply any other rule would be to give the appellant in this case the right to recover twice for the same item of damage . . .”

The Court of Claims cannot take jurisdiction of this claim. The motion of the Attorney General will be sustained and the case is dismissed.


author: Eckert, J.

text:
    No. 3793
    Robert H. Musick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Samuel G. Herrod, Jr., for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant ■ Attorney General, for respondent.
   Eckert, J.

On October 21, 1942, claimant, Robert H. Musick, an employee of the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, while serving as rodman for a State highway engineer, was struck by an automobile driven by F. L. Shafer of New Hampton, Iowa. The accident occurred when claimant crossed H. S. Highway No. 24, one-half mile south of the village of Secor.

He was struck on the right leg by the front bumper and fender of the automobile and thrown to the pavement, causing a fracture of the tibia and fibula of the right leg at the ankle, and a transverse fracture of the fibula in the middle of the shaft. He also alleges that he suffered a dislocated internal miniscus, or other loose body, in the knee joint. Immediately after the accident, claimant at his request was treated by Dr. F. W. Nickel at Eureka, Illinois, under whose care he remained until March 10,1943.

Claimant, a man seventy-three years of age, with no children under sixteen years of age dependent upon him for support, had been employed by the respondent since September 2, 1942, at the rate of fifty-five cents an hour. Employees of the Division engaged in the same capacity and at the same rate as claimant are employed less than two hundred days a year; eight hours constitute a normal working day.

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

No claim is made for medical or surgical services or for temporary total disability, the respondent having paid all medical and hospital bills in the amount of $106.50, and having paid claimant compensation for temporary total disability from the date of the accident to March 10, 1943, in the total sum of $199.61. Likewise, no claim is made for compensation for the fractures claimant suffered as a result of the accident, because he now has perfect function of the right ankle. Claimant, however, seeks compensation for the alleged dislocation of the internal miniscus, or other loose body in the knee joint, which he states was not discovered until after the cast was removed from his leg and he had started. to walk. He alleges that he suffers a catching and locking of the right knee joint with pain lasting a short time, but recurring on any normal use of the knee; that he has suffered, as a result of the" accident, a twenty-five per cent loss of use of the right knee joint.

Dr. Nickel first reported to the Division claimant’s complaint of pain and disability in the right knee on March 3, 1943, but stated that there was no visible evidence of injury, and no evidence of any recent injury to the bones making up the knee joint. A further report by Dr. Nickel, under date of April 15, 1943, appears in claimant’s statement and waiver of brief and argument. If this report were properly a part of the record, it would not substantiate claimant’s present claim. This later report states that no injury to the knee was apparent in x-rays taken on October 21, 1942, and no evidence of any fracture or other abnormality of the knee joint or adjacent structures, except an old fracture line above the condyles of the femur, was apparent in x-rays taken on February 25, 1943. There is no further proof of the alleged injury.

Any finding of a dislocated miniscus or other loose body in claimant’s right knee joint would be based entirely upon the subjective complaint of the claimant. Under-Section 8 (i) 3 of the Workmen’s Compensation Act of this State, compensation in cases of this kind is payable only for injuries proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The record in this case is wholly insufficient to satisfy this statutory requirement.

An award is therefore denied.


text:
    No. 3652
    Roy Pedigo, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Samuel H. Shapiro, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On April 29, 1941, claimant, Eoy Pedigo, received an accidental injury while working at Manteno State Hospital, Manteno, Illinois, under the direction of the Department of Public Welfare of the State of Illinois which arose out of and in the course of his employment with the respondent. While engaged in his employment in laying a sewer, when lowering the top of a manhole the lid fell crashing the distal phalanax of the middle finger of his right hand.

All medical, surgical and hospital bills were furnished by the respondent and no claim is made for these items.

The claimant and respondent filed a stipulation of facts in this case which shows that the accident arose out of and in the course of claimant’s employment; that the annual earnings of claimant immediately prior to the date of injury amounted to $2,971.00; that he did not work from the date of the injury to June 1, 1941, but received the sum of $276.00 during the month of May for unproductive work; that the respondent had notice of the accident on the date on which it occurred and that claim for compensation was duly made as provided by Section 24 of the Workmen’s Compensation Act.

The only question to decide in this case therefore is the amount of loss suffered by this claimant by reason of said injury, both temporary and specific.

That portion of the Statute involved (Workmen’s Compensation Act, Sec. 8; Ill. Rev. Stat. 1941, Chap. 48, Par. 145) is as follows:

“(e) For injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such injury, in accordance with the provisions of Pars, (a) and (b) of this Section for a period not to exceed 64 weeks, and shall receive in addition thereto compensation for a further period subject to limitations as to amounts as in this section provided . . . but shall not receive any compensation for such injuries under any other provision of this Act.”

“3. For the loss of a second finger, or for permanent and complete loss of its use, 50 per centum of the average weekly wage during 35 weeks.”

“6. The loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be one-half the amount above specified.”

Claimant’s average weekly salary was $57.13. His •weekly compensation rate therefore on the date of said injury was $16.50. He was 54 years of age and had no dependents under the age of 16 years.

Claimant sustained the loss of the distal phalange of the second finger of the right hand. By virtue of the above quoted statute claimant is entitled to one-half of the compensation payable for the loss of the second finger or 17% weeks at the rate of $16.50, amounting to the sum of $288.75, representing his specific loss.

This claimant having been injured on the 29th day of April, 1941, did not return to his employment until the 1st day of June, 1941, making a total of 4 5/7 weeks for which he is entitled to receive temporary compensation amounting to the sum of $77.80. The record shows, however, that claimant was paid the sum of $276.00 by the respondent for unproductive work during the month of May, 1941. This amount represents an overpayment to claimant of $198.20 on his temporary compensation payments which must be deducted from his award.

An award is, therefore, entered in favor of the claimant and against the respondent in the sum of Ninety Dollars and Fifty-five Cents ($90.55), all of which has accrued and is now payable.


text:
    No. 3669
    Pickus Engineering & Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Dent, Weichelt & Hampton, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant-Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record discloses that the claimant, the Pickus Engineering and Construction Company, Inc., is an Illinois corporation with offices in Wimietka, Illinois. During the year 1937 and for a long time prior to May 28, 1937, and subsequent thereto claimant was engaged as a general building contractor, including the construction of highways and work incidental thereto.

On May 28, 1937, the respondent, through the Department of Public Works and Buildings, mailed copies of a notice to claimant and other contractors that a letting was to be had on June 11, 1937, for a highway improvement designated as State Bond Issue Route 118A, Federal Aid Project 229B, Section 108A, Livingston County, Illinois.

This notice, among other provisions and instructions contained the following:

“Sealed proposals for the improvement of the road described herein will be received by the Department of Public Works and Buildings at the office of the Division of Highways, Springfield, Illinois, until 10:00 o’clock A. M„ June 11, 1937, and at that time publicly opened and read.”

On June 10, 1937, in response to said notice and in conformity with section 3a of it, claimant submitted its proposal to do and perform the designated work as described in said notice, and attached to the proposal a bank cashier’s check or bank draft in the sum of Fifty Four Hundred and Sixty Dollars ($5,460.00) as a proposal guaranty.

On the following day claimant sent the following telegram to the Department from Chicago, Illinois:

"Please change our bid Section Five G One Christian County to read fifteen thousand one sixty four cubic yards gravel or stone to Three Dollars Sixty Five cents per cubic yard and Section Ten Eight A Livingston County one hundred thirty six thousand five eighteen cubic yards excavation to thirty one cents leaving rest unit bid as is. PICKUS ENG. AND CONSTE. INC., JOSEPH PICICUS.”

At 10:00 A. M., on June 11, 1937, the Department publicly opened, read and tabulated all proposals received. Claimant’s proposal for work in Livingston County was found to be the lowest. On June 14, 1937, the Department wired the claimant as follows:

“Articles two point eleven A page seven of Standard Specifications prevent consideration of your telegram concerning Livingston County bid Stop Will consider bid as originally submitted or reject Stop Please advise immediately. Ernst Lieberman.”

Sections 2.9 and 2.11(a) referred to in the foregoing telegram read as follows:

“2.9 WITHDRAWAL OF PROPOSALS. Permission will be given a bidder to withdraw a proposal if he makes his request in writing before the time for opening proposals. If a proposal is withdrawn, the bidder will not be permitted to submit another proposal for the same section at the same letting.

"2.11 DISQUALIFICATIONS OF BIDDERS. Any one or more of the following causes may be considered as sufficient for the disqualification of a bidder and the rejection of his proposal.

(a) More than one proposal for the same work from an individual, firm, or corporation under the same or different names.”

The receipt of this telegram was acknowledged by claimant and on June 17 the claimant company sent the following telegram in response thereto:

“Ernest Lieberman — Highway Dept. Springfield, Illinois, Original figures were based on non-union labor as highway files show no union schedule upon investigation Friday morning Chicago found job was union therefore wired in corrected price Stop Please reject as per your telegram as we cannot accept original figures without heavy loss. PICKUS ENGINEERING & CONST. CO.”

On June 21, 1937, in reply to the above telegram 0. M. Hathaway, then Engineer of Construction for the Division, wrote claimant the following letter:

“I wish to advise you that the telegram which you sent on the morning of the letting, requesting that the unit prices be changed, had no bearing upon your bid as the Engineers of this Department are without authority in the specifications to change a contractor’s bid after it is submitted. Your bid, therefore, must stand as a regular bid.”

On July 24, 1937, this claimant signed the contract to do the work as per his original bid of June 10, posted bond and sent the Department the following letter: “Gentlemen:

Herein, you will find Bond and Contract, signed.

In signing this contract, we reserve whatever rights to which we are entitled with reference to our wire changing the unit price from 27c to 31c per cubic yard.”

Thereupon the claimant proceeded upon the work according to the standard specifications, completing said job on the 24th day of August, 1938, and receiving a formal acceptance thereof on December 28, 1938. On December 29 the Department issued final voucher in the sum of Seven Thousand Five Hundred Six Dollars and Ninety-six Cents ($7,506.96) to the claimant which was received by claimant, endorsed and cashed by it. On December 31, 1938, claimant sent the following letter to the Department;

. . We are accepting the above payment with the understanding that we do not waive our regular rights on our claim for increased unit bid as shown by our telegram, on June 11, 1937.”

The above are the pertinent facts in chronological order upon which this claim is based. Claimant seeks an award of Five Thousand Four Hundred Sixty Dollars and Seventy-two Cents ($5,460.72), representing the difference in labor costs for excavating work between 27c per cubic yard as provided in claimant’s proposal and 31c per cubic yard claimant alleges it was required to pay for this work.

Claimant urges four reasons why it should recover here. First, that its acceptance of the final payment was not a release. Second, that the State is bound by its contracts the same as an individual. Third, that the State is bound by estoppel. And finally, that all acts of public officers are presumed to be regular, in the absence of convincing contrary evidence.

The respondent opposes this award and takes the position (1) Claimant had no right to additional compensation which arose before the contract was signed; (2) Claimant had no right to additional compensation arising out of the contract itself; (3) No right to extra compensation arose after the contract was signed; (4) Since no right to extra pay arose in claimant before or after the contract was executed the complaint should be dismissed.

Ernest A. Monson, Secretary of claimant corporation, was the only witness called to support the allegations of the complaint. During the course of his examination he identified each telegram and letter as set forth above. Most of his testimony was based on heresay evidence, was incompetent and that portion will not be considered by this court.

The claimant in. its voluminous brief cites many cases in support of this claim. All of the cases cited, including a recent opinion of this court, Hartmann-Clarh Brothers Company vs. State, #3290, deal with alleged claims which arose after the execution of the contract and are not in point.

The evidence and exhibits in this case show that claimant was an experienced contractor, was acquainted with the standard specifications as contained in the proposals and was familiar with section 2.9 and 2.11(a), referred to in the telegram of June 14, 1937, to claimant signed by Ernst Lieberman. Yet in the face of this knowledge, claimant continued to permit his bid to stand as filed on June 10, accepted the job after it was awarded to him. Claimant completed the work, cashed the final voucher without reservation, other than the informal conversations held with some of the personnel of the Department and its letter of December 31, 1938. This was an attempt to reserve some purported right although paragraph 9.8 of the specifications specifically stated that “Acceptance by the contractor of the last payment shall operate as and shall be a release to the Department for all,claims or liability under this contract.”

Claimant contends that it was induced to enter into this contract by two representations which the Department allegedly made. First, that if it did not sign the contract its certified check would be forfeited. The burden of proof was on the claimant to prove this contention. There is no proper proof in the record that any such threat had been made by the respondent. Second, that after completing the contract it would be able to recover an additional sum by an action in the Court of Claims. This too the claimant has failed to establish by a preponderance of the evidence. Certain conversations were presumably held between Mr. Pickus, the president of the corporation, and some of the personnel of the Highway Department prior to and subsequent to the awarding of the job to the claimant. These conversations were referred to by witness Monson, but he was not present at any of them and presumably his testimony was heresay.

Claimant points however to a letter it received from Mr. C. M. Hathaway, dated November 9, 1938, which was long after the claimant had started construction under its contract. It shows conclusively that there was no understanding between the respondent and the claimant that it should be paid an additional sum of money. It specifically informs claimant that “although there may be a possibility of reopening this proposition, it would appear to me that it might be one of those instances which would have to be taken up with the Court of Claims. Due to the fact that the State has no legal jurisdiction to act other than it did.”

It shows conclusively that there was no understanding or that there was any argument that would justify this claimant in accepting this work and proceeding with it with any expectation that the State had the power legally to pay it an additional sum over and above the contract price as submitted in its bid. This letter was admitted in evidence without objection being interposed by either side.

It is noteworthy that under article 2.9 of the standard specifications, as contained in the proposal, this claimant could have withdrawn its bid at any time between June 10 and August 24 if it had submitted its request in writing to the respondent. If it had' done so there would have been no question before this court. Claimant, however, elected not to withdraw the bid, but attempted to substitute a higher figure for its original bid. If this claimant suffered a loss it invited it and is now in no position to complain relative to its own conduct.

After a careful reading and analysis of the record in this case we must come to the conclusion that the claimant has no right of recovery.

Award denied.


author: Fisher, J.

text:
    No. 3756
    Ira M. Story, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    J. Max Mitchell, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

. This claim was filed October 14,1942. It is for benefits under the Workmen’s Compensation Act for temporary total and partial permanent disability to claimant’s left leg. The claim is based on injuries sustained by claimant while employed as a laborer by the Division of Highways, State of Illinois.

The record consists of the complaint, report of the Division of Highways, transcript of claimant’s evidence, stipulation of facts, abstract, statement, brief and argument on behalf of claimant, and statement, brief and argument by respondent.

The complaint alleges in part; that the claimant was employed by respondent, Department of Public Works and Buildings, Division of Highways, and while so employed on Route 37 near West Frankfort, Illinois, in the capacity of a flagman claimant slipped and fell under a road grader, which passed over his left leg causing permanent injuries thereto.

The report of the Division of Highways, stipulated herein that “December 11, 1941, on S. B. I. Route 37 about three miles south of West Frankfort, the claimant was engaged in flagging traffic as a protection for grading operations being conducted at the time on shoulders and ditches of the highway. At about 9:30 A. M. the claimant walked along the pavement edge near an operating motor patrol grader for the purpose of warning traffic, while the grader was being turned around. The claimant slipped and fell in front of the grader; a wheel of the grader ran across the foot of the claimant and injured him. The Division had knowledge of the accident and injury on the same day on which they occurred.”

The claim was filed in apt time. The material allegations of. the complaint are sustained by the evidence and claimant is entitled to the benefits of the Workmen’s Compensation Act.

Claimant seeks compensation for 30 per cent permanent loss of the use of his left leg and respondent contends that as there was no injury to the hip or knee and only a partial loss of function to the ankle, this estimate of loss is too great and suggests that the Court observe the claimant in order to reach a fair estimate of the actual amount of disability suffered by claimant.

The claimant was attended by Doctor C. 0. Lane of West Frankfort, Illinois, who on December 12, 1941, reported the injury to the Division of Highways as follows:

“Severe bruising of the soft, tissue of the left foot and ankle, also a crushing fracture of the 4th and left meta-tarsal bone; skin scrape of calf of leg. Treatment —a plaster paris cast applied to left foot.”

Doctor Lane testified that in his opinion claimant had suffered a 25 per cent permanent loss of the use of his left leg, and when asked to detail his consideration of the loss said:

“I consider the damage done to the meta-tarsal bone, and to the tissue forming the joint about the ankle, and the damage done to the tissue above the ankle. All of these result in a partial immobility of the ankle joint, disabling the patient, in my judgment, to the extent of about twenty-five (25) percent.”-

Claimant appeared before the court for observation and from such observation we do not feel justified in reducing the degree of permanent disability as estimated by the attending physician. Claimant is therefore entitled to compensation for twenty-five per cent permanent loss of the use of his left leg.

Claimant was employed as a laborer at a wage rate of fifty cents an hour. He worked less than two hundred days a year and eight hours constituted a working day. He had one child under the age of 16 years at the time of the injury. His compensation rate is therefore $12.10 per week.

Claimant was injured on December 11, 1941. He returned to work on March 1, 1942. He is entitled to receive compensation for temporary total disability of 11 .and 2/7 weeks at $12.10 per week or a total of $136.56. He was paid temporary total compensation the sum of $125.05 leaving a balance due him of $11.51.

Claimant is entitled to receive for permanent partial . disability the sum of $12.10 per week for 47% weeks or a total of $574.75.

An award is therefore entered in favor of claimant, Ira M. Story, in the sum of $586.26, all of which is accrued and 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.”


text:
    No. 3611
    L. B. Strandberg & Son Co., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Rathje, Hinckley, Barnard & Culp, (John J. Dowdle and Walter W. Duet, of Counsel) for claimant.
    George F. Barrett, Attorney General; .Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On April 4, 1936, claimant and respondent entered into a contract for the construction of State Bond Issue Route 55, Project #NRM-377A, Section #55SD NRM 1, Cook County, Illinois. Claimant was then known as “The Strandberg Brothers Company.” On May 27, 1937, its charter was amended, and its corporate name changed to “L. B. Strandberg & Son Co.” Claimant subsequently completed performance of the contract to the satisfaction of the respondent and respondent paid claimant, under the terms of contract, the sum of Fifty-eight Thousand One Hundred Fifty-seven and 47/100 Dollars ($58,157.47).

■ Claimant alleges, however,- that respondent failed and refused to compute the item designated in the contract, ‘ ‘ Class X Concrete ’ ’ in accordance with the method of measurement provided for in the contract and that because of such failure and refusal, claimant suffered damages in the amount of One Thousand Nine Hundred Fifty Dollars ($1,950.00). Claimant also alleges that it was delayed in starting work by the acts -of the respondent and its engineer, was delayed in the progress of the work upon the order and at the direction of the respondent’s engineer, and that because of such delays it suffered damages in the amount of One Thousand Seventy-seven and 46/100 Dollars ($1,077.46). The claimant further alleges that because of the delay caused by the respondent, and the rules and regulations of the Department of Public Works and Buildings, it was prevented from bidding on additional work of the respondent, and thereby suffered damages in the amount of Six Thousand Nine Hundred Sixty-seven and 26/100 Dollars ($6,967.26), or a total sum of Nine Thousand Nine Hundred Ninety-four and 72/100 Dollars ($9,994.72).

The respondent has moved to dismiss the claim on the ground that claimant’s acceptance of final payment under the contract was a complete release to the respondent. In support of the motion, respondent filed affidavit of M. K. Lingle, Engineer of Claims, Division of Highways, Department of Public Works and Buildings. Prom the affidavit it appears that Division 1, Section 9, Article 9.7 of the Standard Specifications for Road and Bridge Construction, adopted by the Department of Public Works and Buildings of the State of Illinois on January 2, 1932, formed part of the contract in question. This section provides in part as follows:

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

“The acceptance by the Contractor of the last payment as aforesaid shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or - furnished or relating to the work under this contract, or for any act or neglect of said Department relating to or connected- with this contract.”

It also appears from this affidavit that a final estimate was prepared by the Department of Public Works and Buildings, State of Illinois, pursuant to this provision; that such final payment estimate for Ninety Thousand Three Hundred Fifty-five and 72/100 Dollars ($90,355.72) was scheduled by the Department of Public Works and Buildings to the Auditor of Public Accounts for payment to claimant; that the Auditor issued his warrant, countersigned and registered by the Treasurer of the State of Illinois, in the amount of Ninety Thousand Three Hundred Fifty-five and 72/100 Dollars ($90,355.-72); and that this warrant was sent to claimant by the Auditor, was received, accepted, and deposited for payment by claimant, and was paid by the Auditor of Public Accounts. A photostatic copy of final payment warrant is attached to the motion.

Prior to acceptance of this warrant, however, at a meeting held in the district highway office in Chicago on November 10, 1937, C. M. Hathaway, Engineer of Construction of the Department of Public Works and Buildings, Division of Highways, advised claimant that acceptance of such final payment would not be considered a release. On November 16th, claimant confirmed this conversation by letter, receipt of which was promptly acknowledged by Mr. Hathaway. Claimant contends that the respondent thereby waived the release provision of the contract, and that the motion to dismiss should therefore be denied.

Claimant concedes that where public officers derive their powers from statute, all persons dealing with them are bound to take notice of the statutory limitations, and are bound to see that such officers are acting within the scope of their authority. But claimant contends that the alleged waiver of the release provision was purely an administrative act provided for by the contract itself, citing Section 5 of the Standard Specifications, which formed part of the contract, and which provides as follows:

“Authority of Engineer. All work shall be done under the supervision of the Engineer and to his satisfaction. He shall decide all questions which arise as to the quality and acceptability of materials furnished, work performed, manner of performance, rate of progress of work, interpretation of plans and specifications, acceptable fulfillment of the contract, compensations and disputes and mutual rights between contractors under these specifications.”

Claimant contends that this provision was in accordance with the right and duty of the Director of the Department of Public Works and Buildings to prescribe rules and regulations fixing the duties of all persons employed by the Department; that a dispute arose under the provisions of the contract, and the engineer, exercising the power properly delegated to him, resolved the dispute in favor of the claimant except as to a determination of the amounts due.

The Department of Public Works and Buildings is a governmental agency created by the General Assembly. Section 4 of the Civil Administrative Code (Chap. 127, Ill. Rev. Stat.), provides that each department of the State Government shall have an officer at its head who shall be known as a director, and who shall, subject-' to the provisions of the act, execute the powers, and discharge the duties vested by law in his respective department. It creates the office of Director of Public Works and Buildings for the Department of Public Works and Buildings. The Boad and Bridge Act (Chap. 121, Ill. Rev. Stat.) provides for the powers and duties of the department. Section 3, Subsection 2, provides that the department shall prescribe rules and regulations, not inconsistent with law, fixing the duties of all persons employed in the department. It does not provide for the delegation to minor officials of the power and duties vested by law in the director of the department. Section 6 of an “Act in Belation to State Highways” (Sec. 296, Chap. 121, Ill. Rev. Stat.) provides that the Department shall have power to contract for the construction and maintenance of State highways.

The court is of the opinion that the duties of C. M. Hathaway, the construction engineer, were purely administrative ; that his attempt to waive- the release provision of the contract was not an administrative act, but was an attempt to exercise the power of the director of the department to contract on behalf of the State of Illinois. To conclude otherwise, would enable an employee of a department to contract an indebtedness against the State wholly without authority. The Engineer of Construction, being without authority to waive the release provision of this contract, acceptance of final payment by the claimant constituted a full release to the respondent.

Motion to dismiss is granted; claim dismissed.


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    No. 3369
    Mabel Albright, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    William S. Ellis, for claimant.

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

On April 9, 1938, the claimant, Mabel Albright, an employee of the respondent at the Lincoln State School and Colony, slipped and fell upon a patch of ice on the grounds of the institution, sustaining a fracture of the left hip. She was hospitalized from the date of the accident until October 15,1938, and all medical services were furnished by the respondent.

Upon her discharge from the hospital, claimant returned to her home in Lincoln. She walked with crutches until January 15, 1939, and with a cane until the middle of May, 1939. She returned to work on June 1, 1939, at a salary of $90.75 per month, the same salary she received for the year immediately preceding the injury. Claimant received one month’s salary while she was incapacitated. She is a widow with no children under sixteen years of age at the time of the injury.

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

The record discloses that claimant suffered a fracture to her left hip about five years prior to the injury of April 9, 1938. The record also contains a statement of the comparative degrees of functions of the various component parts of each inferior extremity of claimant as determined by two physicians on August 4, 1941. It is not possible, however, for the court to determine from the record what disability, if any, claimant may have as a result of the injury of April 9, 1938, and what disability, if any, she may have as. a result of the earlier injury. Furthermore, claimant testified that since she has returned to work, her leg is improving, and that she is able to be on her feet as much as three-fourths of her working day. The record is insufficient to sustain an award for any permanent loss of use of claimant’s left leg.

Claimant, however, was totally disabled from April 9, 1938, to June 1, 1939. She is therefore entitled to receive the sum of $10.47 per week for a period of fifty-nine and five-sevenths weeks, or the sum of $625.21.

An award is therefore entered in favor of the claimant in the amount of $625.21, all of which has accrued and is payable forthwith.


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    No. 3537
    John J. Bradecich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, John J. Bradecieh, contracted typhoid fever on August 13, 1939, while in the employ of the respondent as an attendant at the Manteno State Hospital. He had worked for respondent continuously for more than one year prior to his illness at a salary of $87.00 per month.

Claimant was hospitalized at the institution. During his illness, through an error of an employee of the hospital, he was given West Pine Disinfectant instead of West Pine Cough Medicine. As a result, claimant’s left larnyx is sealed, there are adhesions and scar tissue in the throat, and he is able to speak only in a whisper. Claim is made that, as a result of his illness, claimant also suffered a partial loss of use of his left leg.

Claimant was totally disabled from August 13,1939, to March 22, 1940, during which period of time he was paid compensation in the amount of $460.58. He was subsequently disabled from April 9, 1940, to June 12, 1940, during which time he was paid compensation in the amount of $132.30, making total payments on account of temporary disability in the amount of $592.88. Upon Ms return to work, claimant received the same salary wMch he had received prior to his illness. He is now working at the Elwood Ordnance Plant at a salary of $52.00 per week.

No claim is made for temporary total disability, and there is no proof of any medical, surgical or hospital services rendered claimant other than those furnished by the respondent. Claimant seeks an award for $5,000.00 and pension for life.

At the time of his illness, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of tMs State, and notice of the illness and claim for compensation were made within the time provided by the Act. Claimant had no children under sixteen years of age. It is stipulated that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939. The typhoid fever contracted by the claimant was accidental, arose out of' and in the course of his employment as an attendant at the Manteno State Hospital, and any injury arising therefrom is compensable under the provisions of the Workmen’s Compensation Act. (Ade vs. State, No. 3429, decided at the September, 1943, term of tMs court.)

The claim for a partial loss of use of claimant’s left leg, however, is not sustained by the evidence. Proof as to that portion of the claim is wholly inadequate. Claimant has sustained an injury to Ms throat and voice, but the Workmen’s Compensation Act contains no specific provision for compensation of that type of injury. The only applicable provision of the Act is Section 8(d), which provides that an employee partially incapacitated from pursuing Ms usual and customary line of employment may receive compensation, subject to certain limitations, equal to fifty per cent of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. The proof in this case shows that the claimant immediately subsequent to his illness was employed with no change in salary, and that claimant more recently was employed at a salary in excess of that which he earned at the time of his illness. He is therefore not entitled to an award.

Award denied.


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    No. 2632
    Martin Busekrus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    George Darmstatter and Paul H. Reis, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Martin Busekrus, a resident of the City of Belleville, Illinois, is the owner of a lot adjoining Free-burg Avenue in the City of Belleville, ón Route 13, on the “Southern Belt Line.” The lot is located on the northwest corner of the intersection. Claimant alleges that after the respondent had constructed this cement highway, but before it was completed, he opened a garage on the premises, and installed gasoline pumps; that subsequently S. F. Wilson, Superintendent of Highways in charge of the office of the Division of Highways at East St. Louis, agreed to make certain improvements on the property; that the improvements were in consideration of the conveyance by claimant to the respondent of a strip of land adjoining the highway and lying between it and the property occupied by claimant. Claimant further alleges that, relying upon this agreement, he thereafter conveyed the strip of ground in question to the respondent; that after the execution and delivery of the deed, the respondent refused to carry out the agreement; and that claimant has therefore suffered damages in the sum of $2,500.00.

Claimant testified that his lot is approximately 50 x 127 feet, fronting 50 feet on Freeburg Road and 127 feet on the Belt Line; that Mr. Wilson requested he deed to the respondent a strip of ground along the Belt Line so as to make a round corner at the intersection; that in return for this strip, the respondent would lay concrete from the lot line to claimant’s lunch room and garage; that the improvement agreed upon was never made; that as a result of the failure of the respondent to perform the agreement, and as a result of the improper construction of the Belt Line, the drainage at the intersection is inadequate; that rains carry away the ground" in front of claimant’s place of business, and at times water stands nine inches deep on his garage floor. There is also considerable testimony as to various items of damage to fixtures in the garage as well as to the garage itself, damage resulting from inadequate drainage.

From the record it appears that the agreement of the Superintendent of Highways to improve claimant’s land was made without authority, and is therefore void. (Strandberg & Son, Co. vs. State, No. 3611, decided at the September, 1943, term of this court; Harbeck vs. State, No. 3502, decided at the November, 1943, term of this court.) It remains undisputed, however, that the claimant has received nothing for the land conveyed, and nothing for any damage to that portion of his property not taken for public use. Section 13, Article 2 of the Constitution provides that “private property shall not be taken or damaged for public use without just compensation.” To permit the respondent to acquire private property through unauthorized promises of its agents and employees and without compensation would be in direct derogation of the constitutional provision.

Claimant, however, is not entitled to compensation on the basis of the alleged agreement, so that there is no-evidence in the record from which the court can determine claimant’s damages. There is no proof of the value of the land taken, and no proof of the difference, if any, between the fair cash market value of the adjoining land just prior to the construction of the highway and just subsequent to its completion.

An award is therefore denied.


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    No. 3594
    Louis Eertmoed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Louis F. Knoblock, for claimant.

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

This claim was filed on March 13, 1941, and the record completed on October 1,1943.

The claim is for injuries sustained by claimant while employed by the State of Illinois in the Department of Public Works and Buildings, Division of Highways.

Claimant seeks temporary total and total permanent compensation until - such time as said payments reach the equivalent of a death award, and thereafter a compensation for life as prescribed by law.

The record consists of the complaint, amendment to complaint, transcript of testimony, claimants’ abstract of evidence, report of the Division of Highways, statement, brief and argument of claimant, and the statement and argument on behalf of respondent.

The record shows that claimant, Louis Eertmoed, on March 13, 1940, while employed by respondent in the Division of Highways was engaged in maintenance work spreading cinders upon the icy pavement upon the easterly part of the Cedar Street Bridge over the Illinois River in the City of East Peoria, Tazewell County, Illinois.

The record further shows that claimant was performing duties for which he was employed and that while doing so the truck upon which claimant was working was involved in an accident with another automobile truck owned by the Derges Bottling Company of the City of Peoria, which truck was being driven by an employee of the said Derges Bottling Company, by the name of William Henry Dozard. As a result of said collision claimant was thrown from the truck upon which he was working to the pavement of the said Cedar Street Bridge and received severe injuries from which he has not recovered and from which he has become wholly and completely incapacitated and unable to perform any labor or work for remuneration or profits.

All medical and surgical costs and charges incurred have been paid by respondent.

No jurisdictional questions are involved and there is no dispute as to the facts in this claim or the law applicable thereto. There is ample proof to sustain claimant’s allegation that he is permanently incapacitated and respondent by the Attorney General admits that

“it is the opinion, of the respondent in this claim that the claimant has sustained a permanent disability and that he is permanently disabled from carrying on his usual occupation. It is further the opinion of the respondent that claimant at the present time is totally disabled and is entitled to complete and total disability compensation under the Workmen’s Compensation Act * * * and therefore recommends wholeheartedly the payment of complete and total disability compensation in this claim.”

The admissions and recommendations of the Attorney General are wholly warranted and justified by the facts of this case and the testimony of eminent physicians and surgeons as to the injury.

We therefore find that the claimant at this time is totally disabled and is entitled to the benefits provided in the Workmen’s Compensation Act for such cases. Claimant had one child under the age of 16 years at the time of the injury.

Employees in the same class of work as claimant work less than 200 days per year. His regular daily wage was $4.00. This when multiplied by 200, as required by Section 10 of the Workmen’s Compensation Act would make his annual earnings $800.00. Divided by 52 his average weekly wage would be $15.38. One-half of this would be less than the minimum under Section 8(j) making this a minimum case. Under Section 8(j) the minimum for an employee with one child under 16 years of age is $11.00. Increasing this 10% makes the weekly compensation rate $12.10. Section 8(f) provides for payments of this amount per week until the amount of a death benefit has been reached and thereafter a pension of 8% annually of the death benefit payable in monthly installments. The amount of the death benefit, four times the annual earnings of $800.00 is $3,200.00. This is increased under Section 7 (h) by $350.00 for one child under 16 to $3,550.00. Claimant was paid $331.19 for unproductive time which must now be deducted leaving a balance of $3,218.81 to be paid in weekly installments of $12.10 each. After this amount is fully paid claimant will be entitled to a pension of 8% of $3,550.00 or $284.00 per year payable at the rate of $23.67 per month.

An award is therefore entered in favor of claimant, Louis Eertmoed, in the sum of $3,218.81; payable $1,508.01 which has accrued and is payable forthwith, and the balance of $1,710.80 payable in weekly installments of $12.10 per week for 141 weeks beginning November 16, 1943, and a final payment of $4.70 and thereafter a pension during the lifetime of claimant of $23.67 per month.

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. 3555
    Mary Evans, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Shapiro & Laitridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Mary Evans, contracted typhoid fever on August 20, 1939, while in the employ of the respondent as an attendant at the Manteno State Hospital. Because of the crowded conditions and lack of medical facilities at the hospital during the time of her illness, claimant, at the request of .the hospital officials, secured her own physician and her own nurses. She returned to work on August 13, 1940. On December 30, 1940, she left the institution “on account of my, health.” During the period of her illness, she was paid by respondent the total sum of $617.39.

Claimant testified that since December, 1940, she has been unemployed because of ill health resulting from typhoid fever; that she has arthritis, colitis, and hemorrhoids; that she is in a very nervous state; that she has severe pain in her legs; and that none of these conditions existed prior to her illness of August 20, 1939.

Dr. O. A. Phipps of Manteno, Illinois, testified that he was claimant’s physician from the time that she became ill with typhoid fever to January, 1940. He stated that in January, 1940, she was still suffering from chronic colitis, a complication from the typhoid fever ; that as a result of her illness she suffered from a weakness in the lower extremities, a nerve involvement, arthritis, and chronic inflammation of the intestines.

At the time of her illness, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the Act. Claimant had no children under sixteen years of age. It is stipulated that a typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939, to December 10, 1939. The typhoid fever contracted by the claimant was accidental, arose out of and in the course of her employment as an attendant at the Manteno State Hospital, and any injury arising therefrom is compensable under the provisions of the Workmen’s Compensation Act. (Ade vs. State, No. 3429, decided at the September, 1943, term of this court.)

Claimant seeks an award for total permanent disability and for medical and hospital services. The record, however, is wholly insufficient to sustain an award for total permanent disability. Claimant may be partially incapacitated, but under Section 8 (d) of the Workmen’s Compensation Act, an employee partially incapacitated from pursuing Ms usual and customary line of employment must prove the difference between the average amount wMch he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. The record in this case shows that the claimant returned to work after her illness; that she subsequently quit because of a physical condition existing in December, 1939, and January, 1940. Other than her own statement that she is unable to work, there is no showing as to what she is able to earn in suitable employment. She is obviously a person who has allowed her fears to overcome her better judgment, and for whom proper employment would be a restorative. No award can be made for partial incapacity.

Claimant, however, is entitled to be reimbursed for the following medical expenses:

For the services of Dr. O. A. PMpps, Manteno, Illinois, $113.25.

For the services of nurses in hospital and at home, $190.70.

For miscellaneous items, $118.56.

Award is therefore entered as follows:

For the use of Dr. O. A. Phipps, the sum of $113.25;

For reimbursement of claimant for nursing services, $190.70;

For reimbursement of claimant for miscellaneous medical items, $118.56; being a total award of $422.50, which is payable forthwith.


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    No. 3808
    Eva E. Guinto, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

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

Claimant, Eva E. Guinto, is the widow of Philip Guinto, deceased, a former Sergeant of the Illinois State Police. On August 5, 1943, while riding a motorcycle on Illinois Highway No. 120 near the Village of Hainesville, Lake County, Illinois, to supervise a State Police traffic detail in the City of Waukegan, the deceased apparently lost control of his motorcycle and was thrown to the pavement. He died immediately thereafter. A coroner’s jury returned a verdict of accidental death while on active duty. Claimant, as widow of the deceased officer, seeks an award under the provisions of the Workmen’s Compensation Act in the amount of $4,700.00.

At the time of the accident which resulted in' the death of Philip Guinto, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. Although the evidence is circumstantial, the court is of the opinion that the accident arose out of and in the course of decedent’s employment.

Decedent had been employed by the respondent continuously for more than one year prior to his death at a salary of $195.00 per month. Under Section 10 (a) of the Workmen’s Compensation Act, compensation must be computed on the basis of an annual wage of $2,340.00, making decedent’s average weekly wage $45.00, and his compensation rate the maximum of $15.00 per week. The record does not show that the decedent had any children under sixteen years of age dependent upon him for support at the time of his death.

■ Claimant is therefore entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00. The death having occurred as a result of an injury sustained after July 1, 1943, this amount must be increased seventeen and one-half per cent, or $700.00.

Award is therefore made in favor of the claimant, Eva E. Gfuinto, in the amount of $4,700.00 to be paid to her as follows:

$205.72 which has accrued and is payable forthwith;

$4,494.28 is payable in weekly installments of $15.00 per week beginning November 9th, 1943, for a period of 299 weeks with an additional final payment of $9.28.

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


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    No. 3502
    Elsie Harbeck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Stanton & Stanton, for claimant.
    George F. Barrett, Attorney General; Aleo P. Barnes, Jr., and William L. Morgan, Assistants Attorney General, for respondent.
   Fisher, J.

This claim is for damages to claimant’s property caused by the construction of State Bond Issue Route No. 63.

Claimant alleges in substance; that she was the owner of all of

"that part of the Northwest quarter of the Southwest quarter of Section T4, Township 41, Range 10, East of the Third Principal Meridian, lying north of Higgins Road, situated in the town of Schaumburg, in the County1 of Cook, in the State of Illinois.”

That in the construction of State Bond Issue No. 63 the Department of Public Works and Buildings required a portion of the said land and in order to acquire the needed portion instituted condemnation proceedings on June 27, 1939, in Cook County, Illinois, Case No. 93060.

That in the course of the said proceedings claimant reached an agreement with the Department of Public Works and Buildings whereby claimant was paid $450.00 for the portion of her land actually taken and the Department of Public Works and Buildings agreed to fill the remaining part of claimant’s land to a grade one foot above the center of the proposed State Bond Issue Boute No. 63.

That the said agreement was as follows:

* AGREEMENT

“As an inducement to Elsie Harbecic to execute and deliver her general warranty deed conveying the real estate described in Chicago Title & Trust Company opinion of Title No. 2328837, to-wit:

That part of the West half of the Southwest quarter of Section 14, Township 41 North, Range 10 East of the 3rd P. .M. lying North of Higgins Road, bounded on the North by a line 94 feet Northeasterly of and parallel to the following described line: Beginning at a stone in the West line of said Section 14. 146.53 feet North of the Northwest corner of the Southwest quarter of said Section 14, thence Easterly 1384.45 feet along a curve convex to the Southwest, having a radius of 21, 485.94 feet to a point on the East line of the West half of the Southwest quarter of said Section 14, said point being 293.4 feet South of the Northeast Corner of the West half of the Southwest quarter of said Section 14, situated in the County of Cook, in the State of Illinois,

to the Department of Public Works and Buildings of the State of Illinois and

In consideration of her full release, discharge and satisfaction for any and all damages to the real estate owned and retained by her adjoining the aforesaid real estate, which retained real estate is described as:

That part of the Northwest quarter of the Southwest quarter-of Section 14, Township 41 North, Range 10, East of the Third Principal Meridian, lying North of Higgins Road, in the County of Cook, Illinois, except that part of the West half of the Southwest quarter of Section 14, Township 41 North, Range 10 East of the 3rd P. M., lying North of Higgins Road, bounded on the North by a line 94 feet Northeasterly of and parallel to the following described line:
Beginning at a stone in the West line of said Section 14, 146.53 feet North of the Northwest corner of the Southwest quarter of said Section 14, thence Easterly 1,384.45 feet along a curve convex to the Southwest, having a radius of 21,485.94 feet to a point on the East line of the West half of the Southwest quarter of said Section 14, said point being 293.4 feet South of the Northeast corner of the West half of the Southwest quarter of said Section 14.

Said Department of Public Works and Buildings of the State of Illinois, does hereby agee to natural dirt fill, without charge to said Elsie Habbeck, said retained land to a grade of one - foot above the center of the road under construction or to be constructed, relocated, improved and widened, abutting, adjoining, or over any of the aforesaid real estate, within six months from the date hereof;

And in consideration of the foregoing, Elsjjs Habbeck, does hereby release and discharge said Department of Public Works and Buildings of the State of Illinois, from any and all damages to the aforesaid real estate owned and retained by her.

Department of Public Works and Buildings of the State of Illinois by Ben Schwabtz (Seal), Assistant Attorney General and authorized agent of J. E. Cassidy, Attorney General arid authorized agent and attorney for the Department of Public Works and Buildings of the State of Illinois.
Elsie Habbeck.
Dated, September 29, 1939.”

Claimant further alleges that she subsequently requested the Department of Public Works and Buildings to comply with the said agreement but was informed that it had been discovered that to do so would require 8,000 cubic yards of dirt and that the cost of the same would amount to the sum of $11,328.75. Claimant prays for an award for $11,328.75 as and for her damages accruing through the breach of the aforesaid agreement by the Department of Public Works and Buildings.

The record in this case consists of complaint, amended complaint, stipulation, transcript of evidence, abstract of evidence, motion to dismiss by respondent, claimant’s and respondent’s statement, brief and argument and numerous exhibits.

Respondent, through the Attorney General, moved to dismiss the complaint on the grounds that respondent is not liable for damages occasioned by the misfeasance, nonfeasance, or malfeasance of its servants or employees.

Respondent contends that the Assistant- Attorney General or the Attorney General himself had no authority to enter into a contract such as the contract entered into with claimant herein. Respondent admits that the contract was entered into on the 29th day of September, 1939, the same being signed by one Ben Schwartz, an Assistant Attorney General, the alleged agent of the then Attorney General of the State of Illinois, John E. Cassidy, who had no personal knowledge of the said contract that was signed by his assistant and if he had would have no legal power to authorize the execution of such contract for the Department of Public Works and Buildings of the State of Illinois.

The position of the Attorney General in this respect is sound and with it we must agree. We can find no authority for such an act by an Assistant Attorney General or by a subordinate in the Department of Public Works and Buildings. The alleged agreement is without authority and is void.

Claimant in conveying to Department of Public Works and Buildings of the State of Illinois that portion of the land required by respondent specifically released respondent from all damages to the land taken but- did not release respondent from damages to the adjoining land owned by claimant. The form of release usually taken by respondent contains a release to adjoining land owned by a grantor but in this-case this provision of the release was specifically eliminated for the reason that an agreement had been entered into to fill in the adjoining land owned by claimant to grade level.

The facts of this case are not disputed. It is merely a question of what damages, if any, claimant has sustained and is entitled to recover. Claimant conveyed a certain portion of her land to respondent in consideration of what she thought was a fair agreement to secure her from damages to her adjoining property. The fact that this agreement was entered into by the Department of Public Works and Buildings without authority and by one who had no authority to make such an agreement does not relieve respondent from the liability to pay claimant for any damages which she may have sustained. Section 13, Article 2 of the Constitution provides that “private property shall not be taken or damaged for public use without just compensation.”

Respondent acquired from claimant a portion of land and paid for the portion acquired. It did not pay for the damages sustained to the remaining portion. For this damage claimant is entitled to compensation.

■ The land in question is a triangular piece of property well above grade on the east side thereof and very low and below grade on the westerly side thereof. The portion taken by respondent was all from the east side of the property leaving to claimant the westerly portion which is low and under water in wet seasons. The balance of the land remaining to claimant, is, because of said improvement, now without practical value.

While claimant is not entitled to compensation on the basis of the alleged agreement, she is entitled to compensation on the basis of the depreciation in value her remaining land has sustained by reason of the said improvement. In an effort to determine claimant’s damages this court has investigated and viewed the property and after much consideration concludes that claimant has sustained additional damages in the sum of $1,000.00 for which sum she is entitled to an award.

An award is therefore entered in favor of claimant, Elsie Harbeck, in the sum of $1,000.00.


text:
    No. 3536
    Esther Vanderaa Knickrehm, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Samuel H. Shapiro, for claimant.
    George F. Barrett, Attorney General; William L. Morgan and Glenn A. Trevor, Assistants Attorney General, for respondent.
   Fisher, J.

This claim was filed October 24,1940, and the record of the case completed June 10, 1943.

Claimant alleges that she was employed by respondent at the Manteno State Hospital, Manteno, Illinois, in a clerical capacity and that during the course and out of her employment on the 8th day of September, 1939, she contracted typhoid fever and as a result of such illness claimant became incapacitated and incurred various obligations for medical services for which she asks to be reimbursed and also for compensation under the Workmen’s Compensation Act. Claimant was 22 years of age, married and had no children under the age of 16 years at the time of her illness.

The 'record consists of complaint, stipulation, transcript of testimony on behalf of claimant, waiver of statement, brief and argument by claimant and respondent.

It has heretofore been stipulated in this court that a typhoid fever epidemic existed at the Manteno State Hospital during the month of August, 1939, and after discussing this subject in detail, at the September, 1943, term of this court, in the case of Mary Ade, Claimant, vs. Respondent, No. 3429, we decided that typhoid fever contracted under such circumstances as existed at the Manteno State Hospital was' compensable under the Workmen’s Compensation Act.

It is stipulated herein that claimant became' ill from typhoid fever on.the 8th day of September, 1939, and returned to work on the 3rd day of January, 1940. She was paid $209.18 during the period of her illness which was for unproductive time. Her salary was $60.60 per month. Claimant is entitled to compensation during the period of her illness of 16 3/7 weeks at $8.25 per week or $135.54. She was paid during her illness for unproductive time the sum of $209.18 which must be deducted from any amount found to be due claimant. She was overpaid for temporary total disability the sum of $73.64.

Claimant seeks reimbursement for doctor bills in the sum of $201.50, nursing services in the sum of $150.00, food in the sum of $24.00 and medicines in the sum of $18.00.

The record shows that claimant elected to obtain the services of her own physician and having so elected she cannot be reimbursed for his charges (Section 8, Workmen’s Compensation Act). Respondent furnished hospitalization, food and necessary medical supplies. There is no showing in the record that claimant was compelled to obtain additional food and medicines. The claim for charges therefore cannot be allowed.

Claimant alleges that she expended the sum of $150.00 for nursing services and while the proof of the necessity of such services is meager claimant’s husband testified that there were 40 employees that had typhoid fever at that time; that there was no nurse available to care for claimant; and that there was a shortage of help at the institution. Under such circumstances we believe claimant is entitled to reimbursement for the charges incurred for nursing services.

Claimant is therefore entitled to an award for $150.00 for charges incurred for nursing services less the sum of $73.64 which claimant was overpaid for temporary disability leaving a balance, due claimant in the ,sum of $76.36.

An award is therefore entered in favor of claimant, Esther Vanderaa Knickrehm, in the sum of $76.36.

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


text:
    No. 3745
    William V. Laird, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

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

The claimant, William V. Laird, a civil service employee of the Department of Public Welfare of the State of Illinois, was appointed a Housefather on November 28, 1940, at the Illinois State Training School for Boys at St. Charles. He worked in that capacity until February 10, 1941, at a salary of $84.00 per month, plus maintenance. Claimant was absent from work from February 10, 1941, to February 13, 1941. On February 13, 1941, claimant was suspended pending a civil service hearing v of charges which had been preferred against him. Claimant subsequently resigned.

Claimant alleges that he is entitled to payment of his salary from February 13, 1941, to August 15, 1941, in a total sum of $504.00. From the report of the Director of the Department of Public Welfare, which is a part of the record, it appears that claimant rendered no service to the respondent after February 10, 1941, and resigned as of May 15, 1941. Correspondence between the claimant and the Department relative to the payment of salary for the period of March 15, 1941, to May 15, 1941, corroborates this statement. There is nothing in the record to sustain the claimant’s allegation that he resigned on August 19, 1941.

It also appears from the report of the Department of Public Welfare that claimant was in charge of Pierce Cottage at the Illinois State Training School for Boys at the time of his suspension; that because of the nature of his duties, and because of the necessity of filling the vacancy at once, claimant was immediately replaced and his salary paid to his successor.

It is.true that the right to the salary is attached to and follows the legal title to the office, (People vs. Bradford, 267 Ill. 486; City of Chicago vs. Luthart, 191 Ill. 516), and the rule applies irrespective of the question by whom the services were in fact actually rendered, and is applied in cases involving the rights of civil service employees as well as in cases involving the rights of elected public officials. (Wilson vs. State, No. 3685, decided at the March, 1943, term of this court.)

Claimant, however, has not established his legal title to the office. It does not appear from the record whether claimant was legally or illegally discharged, or whether he was rightfully or wrongfully prevented from performing the duties of his position. The record does not show whether or not he was ever subsequently reinstated by the Civil Service Commission. The record shows only that claimant was absent from work after February 10, 1941, and that on February 13, 1941, charges were preferred against him. During the period of time for which claimant seeks payment of salary, a de facto employee discharged his duties and received his salary. Payment of the salary or compensation of a public office or employment to a de facto incumbent during the time that he performed its duties prior to the reinstatement of the de jure officer or employee is a defense to an action by the de jure officer seeking payment' of the same salary or compensation (Hittell vs. City of Chicago, 327 Ill. 443; O’Conner vs. City of Chicago, 327 Ill. 586).

An award, is therefore denied.


text:
    No. 3534
    Florence M. Nichols, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On August 24, 1940, the above claimant filed her complaint in this court seeking an award under the Compensation Act in the sum of Five Thousand Five Hundred Five Dollars ($5,505.00), itemized as follows:

To doctor bills, estimated....................................$ 365.00

To nurses bills, estimated.................................. 140.00

To claimant as provided under the Workmen’s Compensation Act of the State of Illinois for total disability............. 5,000.00

The record consists of the complaint, testimony of claimant and Dr. Daniel K. Hur, called on behalf of claimant; Manteno State Hospital records, including laboratory reports of the Department of Public Welfare; stipulation and waivers of statement, brief and argument on behalf of claimant* and respondent.

■ The evidence shows that claimant was employed by respondent at the above named hospital as a postal clerk, and that her duties as such were confined to said post-office. That her salary was $63.00 per month and maintenance, estimated at $24.00 per month.

That on the 12th day of August, 1939, she became ill, was hospitalized in said institution, her illness being diagnosed as typhoid fever. She testified that she left the hospital on November 30, 1939, was home one week, returned to the hospital where she remained for two weeks and returned to her home. She testified that during the time she was hospitalized in said institution all medical, hospital and other necessary facilities were furnished her by the respondent. Claimant testified that she did not have confidence in the respondent’s doctors who were treating her, and therefore employed one Dr. Daniel K. Hur, of Manteno, Illinois, to attend her.

There is a stipulation on file in this case as follows:

“It is hereby stipulated and agreed by all parties in the above entitled cause through their respective counsel that notice of injury was given to respondent; respondent had knowledge of injury; claim for compensation was made by claimant, and claim was filed with the Court of Claims all within statutory period; that a typhoid fever epidemic existed at the Manteno State Hospital, Manteno, Illinois from July 10, 1939 to December 10, 1939.”

Since the stipulation conforms in every respect with ■ all requirements of Section 24 of the Workmen’s Compensation Act, this court will take jurisdiction of this claim.

Claimant asks this court to allow the following bills incurred by her after she dispensed with the respondent’s services:

Nurse hire ................................................. $ 80.00

Dr. Daniel K. Hur.......................................... 388.00

Household help .................... 612.00

Medicines .......... 110.00

making a total of One Thousand One Hundred Ninety Dollars ($1,190).

Under the law the respondent must furnish all medical, hospital and other facilities to an employee while injured, and if the respondent fails or refuses, the claimant has the right to employ competent physicians to treat and restore her health. The evidence shows that respondent willingly furnished competent medical services and hospitalization. Claimant was given a private room in the hospital and was treated by Dr. Spika and Dr. Frank of the hospital staff, until she elected to discharge them and employ Dr. Hur to treat her. The remarkable record of recovery of employees and patients during this time, under the direct care of Dr. Spika and Dr. Frank, shows that these men were competent to combat this disease and the claimant was not justified in her opinion of no confidence in the hospital doctors.

These bills incurred by claimant cannot be allowed.

Claimant does not make claim for temporary compensation. The record discloses that the respondent paid her regular salary during her illness amounting to the sum of $650.29 for unproductive work. Claimant was only entitled to temporary compensation. She was not entitled to full salary during this period. She has been overpaid.

The sole remaining question, therefore, for this court to decide is whether or not claimant is a typhoid carrier, as claimed, which has resulted in permanent total disability.

Claimant testified that she took a leave of absence, as she says at the request of the institution because she had been typed as a typhoid carrier. She testified that she sent specimens to the State Health Department from which it was ascertained that she was a typhoid carrier. She now claims that her actions are restricted, that she is' not permitted to work in a place where she comes in contact with other people; that she is barred from swimming or bathing in public places and - claims that she signed a typhoid agreement with the State of Illinois designating her as a typhoid carrier, although such agreement is not in evidence.

On examination of all the testimony, including that of Dr. Hur, and the hospital and laboratory reports, it is difficult for the court to understand the testimony of the said Dr. Hur pronouncing her a typhoid carrier. As far as the record is concerned he must have based his findings on the laboratory tests which are in evidence. This evidence is not the best evidence and is not conclusive.

There are certain standard tests to ascertain if one is a typhoid carrier which are recognized by the medical profession.

There is no showing in this record that any of the recognized tests were used.

The general rule of law that the burden of proof is upon the claimant to prove his claim by preponderance or greater weight of the evidence is applicable to claims under the Workmen’s Compensation Act. And an award for compensation under the provisions of said Act, can only be made, for injuries, and only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself, and unless there are or have been such objective conditions or symptoms, no award for compensation can be made. Peck vs. State, 10 C. C. R., 56. Wasson vs. State, 10 C. C. R., 497.

The evidence in this record does not support her claim of permanent total disability.

An award, therefore, is denied.


author: Fisher, J. ■

text:
    No. 3722
    Lester E. Pearman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1943.

    Donald A. Miller, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J. ■

This claim was filed June 3, 1942, and the record completed September 30,1943.

The claim is for benefits under the Illinois Workmen’s Compensation Act for total permanent disability as a result of injuries sustained by claimant during the course of his employment as an auto control operator while employed by the Department of Public Works and Buildings, Division of Highways, State of Illinois.

Claimant alleges that on October 20, 1941, while engaged in his employment and while operating a bulldozer in spreading and leveling of dirt he slipped and fell striking his back against the said tractor and thereby sustained a fracture from which he has become totally and permanently disabled.

Claimant seeks total permanent disability compensation and a pension for life.

The record consists of the complaint, report of the Division of Highways, transcript of testimony on behalf of claimant, statement, brief and argument of claimant, statement, brief and argument for respondent and reply to argument of respondent by counsel for claimant.

It is admitted that respondent had notice of the accident; that the claim was filed in apt time; that claimant and respondent were operating under the Workmen’s Compensation Act and that all jurisdictional requirements have been complied with.

Claimant had one child under the age of 16 years at the time of the injury.

Claimant was paid compensation at the rate of $16.15 per week from the time of the injury to May 23, 1942, amounting to $506.79. Medical, hospital and transportation expenses and charges in the sum of $583.38 were paid by respondent.

Claimant now seeks total permanent disability and contends that he has become totally and permanently disabled. There appears to be no evidence to support this contention. Dr. E. J. Bendelman testifying in behalf of respondent (page 17 Transcript of Evidence) testified as follows:

“Q. Would you make a statement as to your opinion of the percentage of disability which will be permanent in this case?
A. Well, that is a pretty hard question, I think. Well, I would answer that this way. It depends all together what Mr. Pear-man expects to do in the future. If he expects to continue along the lines he was in when this accident happened, I would say that his disability would be 100%. I don’t think he would be able to continue. Of course, if he wants to take up lighter occupation, he would probably get by with lesser degree of disability.
Q. Do you think he would be able to do lighter work?
A. Yes; I think so, clerical work, work that wouldn’t cause any physical exertion. When you have a spinal injury, you have a pretty hard proposition to content with. That has been my observation.”

Claimant testifying in Ms own behalf said on cross examination (pages 11 and 12 Transcript of Testimony):

“Q. The State offered you a job did it not?
A. Well, no, what you call a job. Wanted to give me $12.50, $18.00 or $20.00 a week, couldn’t live on that. I tell you the way I look at it.
Q. Did you ever refuse to take a job for the State?
A. That one I did. I didn’t feel like going to work for $18.00 crippled, when I had made $75.00. I could make more well. The Doctor advised me to go to work, light, right work.
Q. Any light work pay $75.00?
A. I spent 16 years on bulldozers and auto control work.
Q. Did the State at any time tell you they wouldn’t give you a better job until your condition was improved?
A. It was only a short job at West Vienna building a road there.
Q. It was light work?
A. It wouldn’t last very long.
Q. You don’t know what the State would have offered you after that job?
A. I was on the wrong side of the fence. Not anything. I had worked in political job you mention. Knew I was on the wrong side of the fence.”

The report of the Division of Highways shows that on May 19, 1942, claimant was transported in an automobile of the Division from his home to Barnes Hospital in St. Louis, Missouri, where he was examined by Dr. J. Robert Key, Professor of Clinical Orthopedic Surgery, Washington University School of Medicine. He was returned to his home the same day. On May 20th Dr. Key reported to the Division in part as follows:

“X-Rays — X-Ray examination reveals no evidence of fracture or dislocation. There is some evidence of hypertrophic, large spurs being present between the vertebrae shown in the upper lumbar region, and there is a suggéstion of hypertrophic which is around the margins of the vertebrae in the dorsal region.

Opinion — This man apparently has had a contusion of his back and I believe that his symptoms follow more those -which are usually classified as arthritis rather than being purely traumatic in region. I am not able to connect his headaches with the injury.

For this man I would suggest excess vitamins, a low fat diet, postural exercises, increasing activity and calcium and vitamins by mouth in addition to his low fat diet. I think that he would be much better off and recover more quickly and be able to return to his original occupation sooner if he would begin working and gradually increase his activities.”

The proof submitted tends to support claimant’s allegation that at the present time he is unable to engage in his usual and customary occupation but it is not clear that such disability as he suffers is a result of the injury which he sustained. The burden is upon claimant to prove that he is disabled and that his disability is a direct result of the alleged injury. This he has not done. Claimant himself admits that he is not totally disabled. There is no evidence in the record of this case upon which we could base an award for total disability.

An award must therefore be and is denied.