text:
    (No. 4220
    Harve Carter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    R. W. Harris, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant was employed by the Department of Public Welfare at the Illinois Security Hospital as a guard with earnings of $2,640.00 in the year preceding his injury.

Claimant injured his right ankle on November 19, 1948, as the result of a fall on the steps of a metal stairway, while making a count of the inmates. He slipped off of the top step, and fell down four or five steps. X-Ray , pictures taken by Dr. May showed no broken bones. Dr. Alonzo N. Baker testified that he examined claimant on January 15, 1949, and found considerable swelling over the outside bones of claimant’s right ankle, and that the ankle was quite tender on pressure. On October 8, 1949, Dr. Baker again examined claimant, and found the same swelling condition of the right ankle. Dr. Baker further testified that the ligaments that hold the tip of the tibia in position to keep it from moving back and forth were torn loose, causing this swelling, and that at claimant’s age of 66 this condition would become permanent.

Claimant at the time of the injury was 66 years of age. He did not take any time off, and was paid full wages for his services by the respondent until he terminated his employment on February 28, 1949. From the medical testimony of Dr. Alonzo N. Baker and the personal examination of claimant’s ankle by Commissioner Summers of the Court of Claims, we are of the opinion that the claimant has suffered a 10 per cent permanent partial loss of use of his right foot caused by the injury to his right ankle.

The record consists of the complaint, departmental report and the transcript of evidence.

No jurisdictional questions were raised.

An award is, therefore, entered in favor of claimant for a 10 per cent permanent partial loss of use of his right foot for which he is entitled to be paid 13% weeks at the compensation rate of $19.50 per week, being the maximum of $15.00 increased 30 per cent, the injury having occurred subsequent to July 1, 1947, amounting to the sum of $263.25, all of which has accrued and is payable forthwith.

G-ray Brewer was employed to take and transcribe the testimony at the hearing before the Commissioner, for which he made a charge of $58.06. We find this sum reasonable, customary and fair for the services rendered. An award is hereby entered in favor of Gray Brewer in the sum of $58.06.

These awards are subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees. ’ ’


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4243
    Michael S. Gaydos and the Kansas City Fire and Marine Insurance Company, a Missouri Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    James H. Manns and Walter J. Simhauser, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimants, Michael S. Gaydos and the Kansas City Fire and Marine Insurance Company, a Missouri Corporation, filed their complaint herein on November 15, 1949, seeking to recover damages sustained in an accident, which occurred on November 5, 1948, between a passenger car driven by Michael S. Gaydos, and a truck of the Division of Highways of the Department of Public "Works and Buildings of the State of Illinois. The claimants ask $934.72 for damages to the automobile; $500.00 for loss of business and profits, as a result of the loss of use of the automobile; $69.00 for damages to clothing, and $3.30 for six dozen eggs destroyed. The evidence discloses that Michael S. Gaydos was the owner of a 1948 Hudson Sedan, which he used in his business as a drug salesman, and that on November 5, 1948, at approximately 3:30 P.M. he was driving same in a northerly direction on U. S. Route No. 66 at a point approximately five miles south of the City of Springfield,-Illinois, which point was also about a mile north of the bridge across Lake Springfield. The highway in this area is a two-lane paved highway, twenty-two feet wide. On the day in question the Division of Highways was making repairs, and the west lane of the highway was blocked. As the claimant proceeded in a northerly direction, he followed the said truck driven by William Sands for approximately two miles, and during this period óf time there was a Ford car between the State truck and claimant’s automobile. Claimant was about fifty (50) yards behind the truck, and about thirty (30) yards behind the Ford. As they neared the end of the barricaded area the claimant was driving about thirty to thirty-five miles per hour, and, after passing the last barricade, the Ford proceeded to pass the State truck, at which time the State truck was near the center lane of the pavement, and it was necessary for the Ford to pull the left wheels off on the left shoulder. The claimant, Michael S. Gaydos, also proceeded to pass the truck, and as he neared the truck he sounded his horn, but the truck driver, without giving any signal or warning, made a left turn toward a smáll roadway on the west side of the highway. Claimant came to a stop with the rear of his car about five feet off on the west shoulder, and then his car was struck on the right side by the left front side of the truck. William Sands, driver of the State truck, testified that he was placing flares along the highway, and he had intended going north, and then turning around to proceed báck south. He looked in his rear view mirror, and saw the Ford approaching, but did not see the claimant’s automobile. The record shows contradictory testimony that William Sands had given a hand, signal, and, also, that he admitted it was his fault.

The record consists of the complaint, transcript of evidence, abstract of evidence, claimant’s waiver of brief, supplemental abstract of evidence, statement, brief and argument of respondent, and reply brief of claimant.

The respondent claims that by Section 23 (d) of the Uniform Traffic Act (Ill. Rev. Stat. 1947, Chapter 95%, Paragraph 120)

“(d) The provisions of this Act shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of the highway, but shall apply to such persons and vehicles when travelling to or from such work.”

the respondent is exempt from any liability. The claimants on the other hand claim the respondent is liable in tort cases as provided by Section 8c of the Court of Claims Act.

“All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois at law or in chancery, if the State were suable, etc.”

In the case of Mower, et al, v. Williams, decided January 19, 1949, where the defendant operating a State owned truck with snow plow, entered an intersection without looking in the direction from which plaintiff’s automobile was coming, relying on a helper’s statement that it was safe to proceed, the Court held that a highway '“maintenance man” who was in charge of helper and equipment was engaged in a “governmental” rather than a “ministerial” function in moving snow and ice from highways, and was not liable for mere defects in judgment in carrying out his duties. The Court further, said that in recognition of the necessity for freedom of action on the part of persons charged with the maintenance of highways, the Legislature has removed by Section 23 (d) of the Uniform Traffic Act, certain requirements which are by law required of the general public.

The Court feels, however, that in this case, the respondent does not come within Section 23 (d) of the Uniform Traffic Act, because the truck operated by William Sands was not “actually engaged in work upon the surface of the highway” at the time of the accident. The Court also feels that the driver of the State truck was negligent in failing to give a proper signal, and in failing to keep a proper lookout for cars, and that his negligence was the cause of the accident, and the claimant was free from contributory negligence. We are of the opinion that the respondent is liable for damages as provided by Section 8c of the Court of Claims Act.

The claimant’s car was repaired by the Capital City Motors, Inc., in the amount of $934.72, and of this amount $50.00 was paid by claimant, Michael S. G-aydos, and $884.72 by the claimant, the Kansas City Fire and Marine Insurance Company, a Missouri Corporation. Claimant, Michael S. Gaydos, claims a loss of $69.00 for damages to a top coat and trousers, and the six dozen eggs, which was not proven by the evidence. We are also of the opinion that claimant, Michael S. Gaydos, has not proven by the evidence a loss of business and profits as a result of loss of use of his automobile,- and that this part of the claim should be denied. This conclusion is based upon a referral to claimant’s Exhibit 3, in which there does not appear to be any substantial difference in his sales for the months of November and December, 1948, when compared with the same period during 1947, and other months during the year 1948.

An award is, therefore, entered in favor of claimant, Michael S. Gaydos, in the amount of $50.00, and an award is also entered in favor of claimant, Kansas City Eire and Marine Insurance Company, a Missouri Corporation, in the amount of $884.72.


author: Deláney, J.

text:
    (No. 4251
    Isabel V. Shepard, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    John S. Huber, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Deláney, J.

Claimant, Isabel V. Shepard, is the widow of Pardon S. Shepard, deceased, who was employed on November 10, 1949, in the capacity of an assistant district traffic engineer for the respondent, Department of Public Works and Buildings, Division of Highways. On that day, deceased was supervising the location and erection of direction and detour signs. His regular hours of employment were from 8:30 A.M. to 5:00 P.M. At approximately 3:30 P.M. he had reached a point'of about one mile southeast of the Village of Hamel, Illinois. At that time and place a semi-trailer truck owned by Jahneke Brothers of Joliet, Illinois, and driven by Robert Dewar of Plainfield, Illinois, was approaching from the southwest in its proper traffic lane. As the two vehicles approached a common point, the automobile driven by the deceased, and owned by the respondent, veered to the left across the center line of the highway, and struck the semi-trailer. The deceased, Pardon S. Shepard, received injuries as a result of this collision which caused instantaneous death, according to the report of the Coroner of Madison County.

Deceased was 51 years of age at the time of his death, and was survived by his widow, the claimant herein. He had no children under the age of 16 years dependent upon him for support. His earnings in the year preceding his injury and death totalled $4,358.33. .His weekly compensation rate, therefore, would be $15.00. The death having occurred subsequent to July 18, 1949, this must be increased 50 per cent, making a compensation rate of $22.50 per week.

Upon consideration of this case, the Court finds it has jurisdiction of the parties hereto and the subject matter; that the injury which resulted in the death of Mr. Shepard arose out of and in the course of his employment ; that the respondent had proper notice of the accident and death of Mr. Shepard; and.the application for claim was filed in proper time as provided under Section 24 of the Workmen’s Compensation Act, as amended.

The record consists of the complaint, departmental report, transcript of evidence and abstract of the evidence.

Claimant is, therefore, entitled to an award under Section 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00, which must be increased 50 per cent, making a total award of $6,000.00.

An award is, therefore, made in favor of the claimant, Isabel V. Shepard, in the amount of $6,000.00, to be paid as follows:

$ 765.00, which has accrued and is payable forthwith;
$5,235.00, which is payable in weekly installments of $22.50 per week, beginning July 14, 1950, for a period of 232 weeks; with an additional final payment of $15.00.

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

An award is also entered in favor of Rollin Moore for stenographic. services in the sum of $45.75, which is payable forthwith. The Court finds that the amount charged is fair, reasonable and customary, and said claim is allowed.

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


author: Delaney,- J.

text:
    (No. 4261
    Carolyn B. Gill, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.
    Feibich and Feibich, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Abthitb Nebel, Assistant Attorney General, for Respondent.
   Delaney,- J.

Claimant, Carolyn B. Gill, is the widow of Clarence S. Gill, deceased, who was employed on December 13, 1949, in the capacity of a resident engineer in the Department of Public Works and Buildings, Division of Waterways. Although his home was at 807 West Pecan Street, Carbondale, Illinois, he was on the above date occupying a room at Utica, Illinois, in a rooming house owned by Mrs. Sam Gardner. On December 13,1949, while driving a State owned automobile from the respondent’s office at Joliet, returning to Utica in the evening, a short distance from Lisbon, Kendall County, Illinois, on Route 52, the deceased overshot a curve in the highway running into and knocking down a number of guard posts along the highway, causing the car which he was. driving to overturn. Mr. Gill, the driver of the car, was fatally injured in the accident.

The record consists of the complaint, departmental report, transcript of evidence, and claimant’s brief, respondent having orally waived the filing of a brief.

Upon consideration of this case, the Court finds it has jurisdiction of the parties hereto and of the subject matter; that the injury which resulted in the death of Mr. Gill arose out of and in the course of his employment; that the respondent had proper notice of the accident and the death of Mr. Gill, and the application for claim was filed in proper time as provided under Section 24 of the Workmen’s Compensation Act, as amended. We further find from this record that deceased’s annual earnings during the year immediately prior to Ms death amounted to the sum of $3,594.00. His weekly compensation rate, therefore, would be $15.00. The death having occurred subsequent to July 18, 1949, tMs must be increased 50 per cent, making a compensation rate of $22.50 per week. The decedent had no children under sixteen years of age dependent upon Mm for support at the timé 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, which must be increased 50 per cent, making a total award of $6,000.00.

. An award is, therefore, made in favor of the claimant, Carolyn B. Gill, in the amount of $6,000.00, to be paid to her as follows :

$ 658.93, which has accrued and is payable forthwith; ■
$5,341.07 is payable in weekly installments of $22.50 per week, begin- . ning July 14, 1950, for a period of 237 weeks, with an additional final payment of $8.57.

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.

An award is also entered in favor of Imogene Ward Steph for stenograpMc services in the ■ sum of $22.74, wMch is payable forthwith. The Court finds that the amount charged is fair, reasonable and customary, and said claim is allowed.

TMs 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. 4273
    Harry W. Hopper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    D.' W. Johnston, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; 0. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Harry W. Hopper, was on September 21, 1949, employed by the respondent in the Department of Public Works and Buildings. On September 21, 1949, the claimant was in the course of his employment assisting in cleaning culverts when a steel cable broke, striking the claimant over his left eye. The blow caused a cut over his left eye about two inches in length. At the time claimant became employed by respondent, he was blind in the left eye. Claimant was treated by Dr. J. J. Grondone, who stated in his report, dated October 29, 1949, that claimant suffered no permanent disability. The only claim that can be made as a result of the injury is a disfigurement scar about two inches in length over claimant’s left eye.

Claimant was first employed by the respondent on August 16, 1949, as a common laborer at a wage of $1.00 an hour. Other Division employees working in the same capacity as claimant ordinarily work less than 200 days a year. Therefore, under Section 10 of the Act claimant is presumed to have earned $1,600.00 for the. year preceding his injury.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident arose out of and in the course of the employment. Respondent furnished complete medical and hospital treatment. The only question is the extent of disability suffered by claimant. At the time of the accident claimant had one child under the age of sixteen years.

From the evidence and the Commissioner’s observations, claimant is entitled to an award of 10 per cent (10%) of the amount allowed under Section 8, Paragraph, (c) of the Workmen’s Compensation Act. Claimant had one child under the age of sixteen years. Under Section 7, Paragraph (k), (3), the death benefit would be $4,450.00 increased 50 per cent, since the accident occurred after July 1,1949, or a sum of $6,675.00. Disfigurement under Section 8, Paragraph (c) equals % of the amount payable as a death benefit of $1,668.75. For 10 per cent disfigurement, therefore, claimant should be allowed the sum of $166.88.

An award is, therefore, entered in favor of claimant, Harry W. Hopper, in the sum of $166.88, all of which has accrued and is payable forthwith.

Harry L. Livingstone was employed to take and transcribe the evidence at the hearing before Commissioner Summers, and charges in the amount of $41.40 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Harry L. Livingstone in the amount of $41.40, 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.”


author: Lansden, J.

text:
    (No. 4130
    Alice M. Granzow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Bippus, Rose, Bubt and Pierce and Roderick N. Wyckoff, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Alice M. Granzow, seeks to recover from respondent under the Workmen’s Compensation Act for injuries sustained by her in an accident arising out of and in the course of her employment as a typist, file clerk and relief switchboard operator in the Chicago office of the Auditor of Public Accounts.

No jurisdictional questions are involved.

On November 12, 1947, while engaged in the performance of her duties, claimant slipped and fell on a freshly waxed and highly polished linoleum floor near her desk in office space rented by the Auditor of Public Accounts. Claimant landed on the point of her left elbow, suffering a deep laceration, which bled profusely.

Since the Auditor’s office was not organized to handle such injuries to employees, claimant went to her own doctors and paid all medical, drug and hospital bills except as hereinafter noted.

The injury to claimant’s left elbow turned out to be much more serious than would usually be expected from such type of trauma. Claimant experienced continuous and intense pain. The left ulnar nerve became thickened, and finally had to be relocated by a neurological surgeon. Later, a technique known as a sympathetic block was resorted to, but to no avail, and claimant’s doctor was of the opinion that the extreme sensitivity of claimant to pain would prevent any further attempt to use thé technique above referred to. Coupled with all this were definite indications that a traumatic neurosis was positively affecting claimant’s use of her left arm.

Claimant has some limitation of motion, flexion being limited about 25 per cent. However, in substance, claimant’s left arm is not usable in her previous occupation except to a limited degree, and from all the evidence we conclude, even though claimant is left handed, that she has sustained a 75 per cent loss of the use of her left arm. Mandel Bros. v. Ind. Com., 359 Ill. 405; Bell & Zoller Mining Co. v. Ind. Com., 322 Ill. 395; Bell v. State, No. 4191, opinion filed March 7, 1950.

Claimant makes no serious claim to total permanent disability, and lack of proof of differential in earnings subsequent to her accident removes from our consideration any question of an award for partial permanent disability. Cogdill v. State, 18 C.C.R. 24; Franklin County Coal Corp. v. Ind. Com., 398 Ill. 528.

The record also shows that claimant is entitled to payment for temporary total disability limited to 64 weeks by reason of Section 8 (e) of the Workmen’s Compensation Act, .since an award for specific loss under said section is being made herein.

On the date of her accident, claimant was 42 years of age, single and had no dependents. Her earnings in the year prior to her accident amounted to $2,280.00. Her rate of compensation is $19.50 per week.

From the date of her accident until July 1, 1949, when she left the service of respondent, claimant did perform services for respondent at various periods. When she was unable to work, she was paid her full salary of $190.00 per month. Subsequent to July 1, 1949, claimant was temporarily and totally disabled for a period sufficient to entitle her to 64 weeks of total temporary disability, including the periods prior to July 1, 1949, when she was unable to work for respondent.

For the 64 weeks of temporary total disability at $19.50 per week, claimant would be entitled to $1,248.00. However, from November 12,1947, to July 1,1949, claimant did not perform any service's for respondent on 375 days for which she was paid, as we calculate from the record, the sum of $2,343.33. She was thus overpaid $1,095.33 which will be deducted from the award hereinafter entered.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony at the three hearings before Commissioner Tearney. Charges in the amount of $142.95 were incurred, which charges are customary and reasonable. An award is entered in favor of William J. Cleary & Co. for $142.95. ■

An award is entered in favor of claimant, Alice M. Granzow, under Section 8 (a) (e) (13) of the Workmen’s Compensation Act for 64 weeks of temporary total disability at $19.50 per week, or the sum of $1,248.00; and a 75 per cent loss of use of her left arm, or 168% weeks at $19.50 per week, or the sum of $3,290.62, or a total award of $4,538.62, from which will be deducted the payment above referred to in. the amount of $2,343.33, leaving a net award of $2,195.29. In addition, she is entitled to an award in the amount of $713.00 for medical, hospital and drug expenses incurred by her to relieve her.from the effects of her accidental injury. One X-Ray bill and two small doctor bills also remain unpaid for which awards are made as hereinafter set forth.

$ 713.00 which is payable to claimant forthwith for medical, hospital and drug expenses.
$2,899.93 less payment above referred to in the amount .of $2,343.33, or the sum of $556.60, which has accrued and is payable forthwith.
$1,638.69 which is payable in weekly installments of $19.50 per week commencing on September 26, 1950, for a period of 84 weeks plus one final payment of $0.69.
$ 7.00 which is payable forthwith to Michigan Boulevard X-Ray Laboratory, 30 North Michigan Boulevard, Chicago, for X-Rays.
$ 25.00 which is payable forthwith to Dr. W. A. Gustafson, 700 North Michigan Boulevard, Chicago, for professional services.
$ 15.00 which is payable forthwith to Dr. H. B. Thomas, 30 North Michigan Avenue, Chicago, for professional services.

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


author: ScHTJMAN, C. J.

text:
    (No. 4167
    Jack Linton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.
    Alfred H. Williston and Carl E. Abrahamson, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ScHTJMAN, C. J.

Claimant, Jack Linton, was .a passenger in an automobile driven by John Bigelow on November 29, 1947. Said automobile was being driven in a southerly, direction upon and along United States Boute No. 12, near the City of Des Plaines, Illinois, being one of the public highways under the jurisdiction of the State of Illinois, Department of Public Works and Buildings, the complaint alleges that at about 12:30 o’clock in the morning, said automobile struck the plow on a State truck, which State truck was parked on the left hand side of the highway with the plow extending about 4 feet into the" westerly line of said highway.

The evidence showed that during the night it snowed, and that William Buelow, a highway maintenance patrolman, was called out on the night of November 28, 1947 to plow snow off the road, and to particularly cinder crossings and intersections because of the icy condition of the pavement.

The testimony showed that the truck had burned out a transmission, and that the driver, William Buelow, had attempted to cross the highway to park the truck, but did not clear the highway because the truck stopped. The truck was loaded with cinders, and at that time a man by the name of Walter J. Gfeudtner was maintenance helper on-the truck with William Buelow. The evidence discloses that both Buelow and G-eudtner left the truck, and went in opposite directions to seek help in order to have the truck towed in; and, that neither one remained with the truck to warn persons lawfully driving in and upon the highway.

While there is some dispute with reference to the lights on the truck, it can be concluded from the evidence that the headlights of the truck and the red flasher light on the top of the truck were working and visible. There is no testimony in the record, however, that the blade of the snow plow, which protruded some four feet into the highway, could be visible by the lights that were testified to. In fact, it was testified by witnesses for the respondent — that, if the snow plow was up, it would obstruct the headlights on the truck.

From the facts, it could be concluded that after 10 o’clock at night the weather had cleared, and the visibility was fairly good, but that the condition of the highway was icy.

The facts are undisputed that the highway truck was parked on the wrong side of the highway, and the reason for this was explained by the testimony of the operator of the truck and his helper, that the transmission had burned out, and the operator was seeking to get the truck across the highway into a gravel driveway.

It is the contention' of the claimant that no flares were placed, which would produce a warning light visible for a distance of 500 feet, and further contended that when a truck is disabled at night, the operator is charged with the duty of placing one such warning light approximately 200 feet in advance of the vehicle, and one each at a distance of approximately 100 and 200 feet, respectively, to the rear of the vehicle. The facts are undisputed that there were no such flares in front or to the rear of the vehicle. It was explained by the respondent that they had flares of the type used by the railroads, but that the same had become wet by reason of the snow, and that they could not be lighted. There was no explanation why other type flares were not carried to meet the emergency, which they should have known existed that night.

While it is true that a statutory violation does not constitute negligence per se, still if the claimant establishes that there has been a statutory violation it would make a prima facie case of negligence against the respondent. However, the evidence is undisputed that the plow of the truck extended some four feet into the highway. The Court’s opinion is that the only conclusion that can be drawn from the evidence is.that this created an exceedingly dangerous condition and should have been protected. The failure to have flares at the point mentioned or someone stationed at the truck to warn of this dangerous condition certainly constitutes negligence on the part of the respondent. It can be safely said that even though a person could have seen a flasher on the top of the truck, and the lights on the truck, there would be no indication that this did light up the unforeseen obstruction such as the plow.

The Court is familiar with the rules of law advanced by the respondent with reference to the violation of the statute as not being negligence per se; that it is not a statutory violation to park a truck on a portion of the highway because of mechanical failure, and the rules announced in the brief. However, the respondent did not park its truck on its side of the road, but attempted to reach a driveway on the left hand side of the highway, and, as a result thereof, left a snow plow attached to the truck protruding out into the highway. There were two men on the truck, they were both aware of the condition, because G-eudtner testified that he particularly went to the front of the truck to see if the lights were burning. Even though he knew of this dangerous condition, he also left to seek help to have the truck removed.

There isn’t any other conclusion from the facts that the Court can draw, but that the principal cause of the collision was the protrusion of the snow plow on the highway. This is corroborated by the fact that another automobile, other than the automobile in which the claimant was riding, also struck the truck, and that the proximate cause of the collision was due to the negligence of the respondent. The Court also concludes that there is no evidence of contributory negligence in the record on the part of the claimant.

There is no testimony in the record as to the negligence of the driver of the car in which claimant was riding. There is no evidence as to whether or not the car was being operated negligently. The undisputed facts in the record show that the car struck the plow. This was shown by the Departmental Report introduced by the respondent.

The claimant stated that the car was approximately fifty feet in front of the truck before he saw the truck, and he stated that he did not see any lights, and the car that he was riding in was traveling about thirty miles an hour.

In order to sustain respondent’s position, it would have to be shown that the claimant saw the truck in time, and that there was danger in running into it, and that the claimant had an opportunity to see the truck before the driver of his car. The testimony would have to show that the claimant could have given a warning, and that the warning, if given, would have averted the accident. The failure of a guest in a car to warn a driver is not in and of itself contributory negligence. (Bliss v. Knapp, 331 App. 45; Rhoden v. Peoria Creamery Co., 278 App. 452-465; Lasko v. Meier, 329 App. 5.)

The record is devoid of any negligence on the part of the driver. In fact, it can be assumed from the evi-' dence in this record that the driver of the car did assume that if they saw a red flasher light that the truck would be operating in the right direction, and would not necessarily have to assume that some obstruction would be protruding from the truck into the highway. There is no dispute in the record but that the driver of the car was operating on a portion of the highway where he had a right to be. In fact the testimony shows that the plow was not only protruding into the highway, but was on an angle, and was down on the pavement.

The Court, therefore, concludes that the claimant is entitled to recover damages due to the negligence of the respondent, which was the proximate cause of the collision. The claimant introduced evidence as to his hospital bill and medical services for which no proper foundation was laid for its admission. However, there was no objection to this testimony, and it will, therefore, be necessary for the Court to consider it as competent. The evidence shows, without objection, that after the collision the claimant took sick, and was taken to the hospital where he remained for about a month, and was attended by a physician by the name of'Dr. Harry Haber. The record shows that his hospital bill was $430.00, that his physician's bill was $189.00, and that he had a lacerated liver. All this testimony was admitted without objection. Claimant further testified that he lost eight (8) weeks of work, and that he earned $55.00 a week.

An award is entered in favor of the claimant in the amount of $1,200.00.


author: S CHUMAN, C. J.

text:
    (No. 4179
    Fred M. Glass, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Francis P. Flynn, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

Claimant, Fred M. Glass, 63 years of age, was employed as a guard at the State Penitentiary, Joliet, Illinois on March 23, 1947. It was stipulated that the State of Illinois, respondent, and Fred M. Glass, claimant, were on the 23rd day of March, 1947 operating under the Workmen’s Compensation Act of the State of Illinois.

The undisputed facts show that while the claimant was in the performance of his duties as a guard at about 10:45 P.M., and while returning from the old quarry to the old prison, and walking along State Highway known as “Woodruff Road”, he was struck by an automobile being driven by Miss Hope H. Placensio. As a result of this accident he sustained multiple abrasions of his face, lacerations of his right hand, contusions to his left side, fracture of the 1st, 2nd, 3rd and 4th spinal process of the lumbar spine as well as contusions, abrasions and severe strain of the right leg from the hip to the ankle.

The facts are without dispute that from March 23, 1947, the date of the injury, to May 29,1947, when claimant returned to work, that he received full salary. It has been held that if the respondent pays wages while a man is off work due to an injury, sustained while in the course of his employment, that it is tantamount to the payment of compensation unless expressly noted to the contrary.

The facts further show that claimant continued in his regular operation from May 29, 1947 up to and including December 16, 1948 when he was struck by an automobile in the City of Joliet, which did not occur out of the course of his employment with the respondent. After said date, he did not return to work, and upon a hearing by the Civil Service Commission of the State of Illinois was discharged from his duties as a guard from the Penitentiary because of his physical condition, and because he was inefficient, lax in performing his duties, guilty of insubordination, and violating the rules and regulations of the institution. The testimony discloses that this decision of the Commission was final, and that claimant was discharged.

. There was no medical testimony submitted by claimant as to his physical condition or his ability to work, and the. only thing in the record with reference to his condition, was that he had not worked since December 28, 1948.

It is apparent to the Court from the facts of this case, that a jurisdictional question is involved. The Compensation Act provides that a claim for compensation must be filed within one year from the date of the injury, or the date of the last payment of compensation. The Court can reach no other conclusion in this case than that the claim should have been filed not later than May 28, 1948.

The claim not having been filed within the time provided by statute, an award will have to be denied.

A claim of William J. Cleary & Co. for stenographic services in the amount of $48.85 is found to be reasonable, and is allowed.

As to the claim of the claimant, an award is denied.

An award in the amount of $48.85 to William J. Cleary & Co. is allowed.

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


text:
    (No. 4198
    Consolidated with No. 4199
    Thomas Rooney and Mary Rooney, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Little, Wilson and Clatjsen, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

These cases were consolidated for hearing and opinion, since both arose out of the same occurrence.

Claimants, Thomas Rooney and his wife, Mary Rooney, seek to recover under the Workmen’s Compensation Act for injuries that arose out of and in the course of their employment as cottage parents at the State Training School for Boys, St. Charles, Illinois, operated by the Department of Public Welfare.

On July 7,1950, an opinion was handed down in these cases in which an award was made to claimant, Thomas Rooney, for temporary total disability that he had not been paid, and a specific loss under Section 8 (e) of the Act; and an award was made to claimant, Mary Rooney, for total permanent disability, plus a pension for life, and, in addition, she was awarded a small sum for medical expenses incurred by her.

On July 31, 1950, respondent filed a petition for rehearing applicable only to the award to Thomas Rooney. Such petition for rehearing was granted on August 7, 1950.

On September 6, 1950, claimant, Thomas Rooney, and respondent filed a stipulation in his case, the effect of which is to remove entirely from this case his claim for specific loss, which the original opinion had erroneously awarded him. Such stipulation is hereby approved, and the remainder of this opinion has been recast to reflect the impact of the stipulation.

It should also be mentioned that this opinion on rehearing is final on the date of its filing. The award to Mary Rooney has already become final, neither side having requested a rehearing within the time allowed. The award made herein to Thomas Rooney is also final, since we construe the intent of the stipulation to be that both sides waive any further rights to petition for rehearing.

On November 25, 1948, claimants were supervising, inmates in Adams Cottage at the aforesaid institution. Certain inmates requested Thomas Rooney to join them in a game of cards, but when he entered the room with them, he was attacked and brutally beaten, chiefly over the head. Mary Rooney heard the commotion, and "rushed to her husband’s assistance, and suffered the same brutal treatment. The inmates who participated in this cruel and premeditated assault did it as the first step in a plan to escape from the institution.

Fortunately, one inmate was not a party to the plan, and he was able to rescue Mary Rooney, and get word to other authorities at the institution. Thomas Rooney lay unconscious in the room where the assault began, but, Mary Rooney, with assistance, was able to get to a doctor on the school grounds.

Thomas Rooney sustained a compound skull fracture, several head lacerations, and a fractured little finger on his left hand. He was taken immediately to the Illinois Research Hospital, Chicago, Illinois, where he remained for 10 to 12 days. His recovery was uneventful, but he has not worked for respondent since the date of the accident.

The only permanent effects that Thomas Rooney has from his accident are a minor denting of the skull, intermittent headaches, and ringing and buzzing in his ears. There is a definite loss of hearing in both ears, attributable to the accident, but not being total and complete, no recovery can be had by virtue of Section 8 (e) (17) of the Workmen’s Compensation Act.

Thomas Rooney suffered from traumatic neurosis for a considerable period of time after his accident. On October 13, 1949, one of respondent’s doctors so found, and based his finding on the frightful and terrifying experience Thomas Rooney had gone through, coupled with his severe injuries. However, on January 16, 1950, one of claimant’s doctors found that his neurosis was no longer disabling. Thomas Rooney is, therefore, not entitled to an award for total permanent disability.

Thomas Rooney, although so alleging in his complaint, offered no proof as to partial permanent disability. But he is entitled to compensation for temporary total disability from the day after his accident on November 26, 1948, up to and including January 16, 1950.

Mary Rooney sustained lacerations on her head, requiring twenty-seven stitches, mild concussion, shock, contusions of the chest, and abrasions on the legs. She was hospitalized for two weeks at the Community Hospital, Geneva, Illinois. Subsequently, she has been periodically under the care of doctors, and has performed no services for respondent.

On the date of the last hearing in this case on January 17, 1950, Mary Rooney suffered from severe headaches, weakness, loss of weight, general rundown condition, debility, dizziness, ringing in her ears, and a definite fear complex. She appeared much older than her actual age, and could no longer stay alone in her home, or in the dark. In other words, Mary Rooney exhibited a typical case of traumatic neurosis, which had rendered her totally and permanently disabled. Her condition was felt to be permanent, and medical authorities indicate that a recovery from severe traumatic neurosis of such duration in a female is exceedingly remote. Gray’s Attorneys’ Textbook of Medicine, vol. 2, para. 101.02, 101.04, 101.10.

This Court has previously granted awards in “neurosis” cases. Gross v. State, 11 C.C.R. 310; Molsen v. State, No. 4168, opinion filed February 14, 1950; Peoples v. State, No. 4248, opinion filed June 6, 1950. Our opinions are supported by. decisions of the Supreme Court of Illinois. Harrisburg Coal Co. v. Ind. Com., 315 Ill. 377; U. S. Fuel Co. v. Ind. Com., 313 Ill. 590; Postal Tel. Co. v. Ind. Com., 345 Ill. 349.

Mary Rooney is, therefore, entitled to an award for total permanent disability, plus a lifetime pension.

The record also discloses that Mary Rooney has paid the sum of $33.00 for medical treatment for which she has not been reimbursed.

Two hearings were held in this case before Commissioner Wise. The first hearing was reported by Mildred Pratt Conner, and the second by Hildegard Daleiden, Aurora, Illinois. Charges of $36.00 and $46.20, respectively, were incurred, which charges are reasonable. The bill of Mildred Pratt Conner was paid for by the law firm of Little, Wilson and Clausen, Aurora, Illinois, and an award for $36.00 is entered in favor of such firm; An award is entered in favor of Hildegard Daleiden for $46.20.

On the date of the accident Thomas Rooney was 58 years of age, and Mary Rooney was 55 years of age. Neither had any children under the age of sixteen dependent upon them for support. The earnings of Thomas Rooney and Mary Rooney in the year prior to their accident amounted to $1,907.00 and $1,823.17, respectively. The rate of compensation for each is,, therefore, $19.50 per week.

Under the formula used by the Department of Public Welfare, claimants were each paid after the accident one month at full salary, and five months at 60 per cent of full salary. Payments to Thomas Rooney amounted to $760.44, and to Mary Rooney to $656.83.

An award is, therefore, entered in favor of claimant, Thomas Rooney, under Section 8 (b) (L) of the Workmen’s Compensation Act for 59 4/7 weeks of temporary total disability, or the sum of $1,161.64. From this sum must be deducted the payments above referred to, amounting to $760.44, leaving a net' award of $401.20, all of which has accrued and is payable forthwith.

An award is, therefore, entered in favor of claimant, Mary Eooney, under Section 8 (a) (b) (f) (L) of the Workmen’s Compensation Act for total permanent disability in the amount of $5,200.00, less the sum of $656.83, or a net award of $4 543.17, plus a pension for life of 8 per cent of $5,200.00, or $416.00 per year, payable monthly after said sum of $4,543.17 shall have been paid to claimant. In addition, claimant, Mary Eooney, is entitled to an award of $33.00 for medical expenses incurred by her for which she has not been reimbursed. These awards are payable as follows:

$ 33.00 which is payable forthwith for medical expenses,
$1,844.14 less payments of $656.83 already made, or the sum of $1,187.31, which has accrued and is payable forthwith,
$3,355.86 which is payable in weekly installments of $19.50 per week, commencing on September 26, 1950, for a period of 172 weeks, plus "one final payment of $1.86, and thereafter" a pension for life payable monthly, commencing one month after the date of the payment of said final payment of $1.86 at the rate of $34.66.

Jurisdiction of the case of Mary Eooney, No. 4199, is specifically reserved for the entry of such further orders as may from time to time be necessary. Penwell v. State, 11 C.C.R. 365, and the same case, No. 3025, opinion filed May 9, 1950; Green v. State, No. 4236, opinion filed June 6, 1950.

These awards are 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. 4204
    Dominic Di Orio, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Gírese and Gíbese, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

The facts in this case show that Dominic Di Orio was the owner óf a 1946 Chrysler automobile, and that on June 14, 1948 he, together with his wife, Dorothy Di Orio, and his wife’s brother, a minor of the age of 4 years, were riding in said automobile at about 11:30 A.M. in the morning, and driving east on Grand Avenue. The claimant, Dominic Di Orio, was driving. Dorothy, his wife, was sitting in the front seat beside him, and her young brother was on her lap. The testimony showed that Dominic Di Orio came down a small hill, and saw a hole in the road when he was about 10 or 12 feet from it; that he was driving about 30 miles an hour, was unable to miss the hole, struck it, and turned his car over into a ditch.

The evidence showed that medical treatments were necessary, and, Dominic Di Orio, together with his wife, Dorothy, sustained loss of time from work as a result of injuries received in the accident.

At the place where the accident occurred, the highway had been designated as Illinois Federal Secondary Proj. No. S-167 (1) Section 35, located in DuPage County, Illinois. This road was originally constructed in cooperation with the Federal Government, and turned over to DuPage County to maintain. Because of the determination of the Court hereinafter set forth, it will not be necessary to discuss whether the State or the County would be liable to maintain this road. The Court feels that in order to hold the State for any liability for defects in roads that there must be competent evidence in the record to show that the State had either actual notice, or constructive notice of a defect in the road, and negligently failed to take steps to protect the traveling public.

It would establish a dangerous precedent for this Court to hold that the State would be liable for all defects on a highway, which it was under a duty to maintain. There is no evidence in this record of the nature of the hole, its size, how long it had been there, how it had been created, or of any notice to the State of its existence, either actual or constructive. There is, therefore, nothing in the record to show that the respondent was guilty of any negligence. To hold that the State would be liable without notice, actual or constructive, would be making the State an insurer.

This Court, by prior decision, is committed to the rule that the evidence must show that the State had actual or constructive notice of the defect, and negligently failed to take precaution to protect the traveling public. (Dockery v. State, 18 C.C.R. 177.)

For the reasons assigned, claim is denied.


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    (No. 4212
    Gilbert Wingerter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.
    John E. Sprague, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Eespondent.
   Delaney, J.

This is a claim of Gilbert Wingerter against the respondent, the State of Illinois, for personal injuries sustained on his first day of employment, January 6, 1948.

The complaint alleges that the claimant was assigned to operate an air hammer used to break out defective pavement on S. B. I. Eoute No. 3 in Eandolph County. Shortly after 11:00 A.M., the air compressor and equipment were moved to a new location. At approximately 11:30 A.M., at a point about one mile north of Ellis Grove, Mr. Wingerter lifted the air hammer from the' air compressor,' and stepped onto the pavement. The corner of the body of a passing Division truck hit Mr. Wingerter, knocking him against the compressor, and injuring his left leg.

The Division had Mr. Wingerter taken to St. Clement’s Hospital, Eed Bud, Illinois, where Dr. A. C. Scott, Evansville, was placed in charge of the case. Dr. Scott secured the services of a specialist in orthopedics, Dr. Kilien F. Fritsch, East St. Louis, Illinois, to aid him in reducing the leg fractures suffered by Mr. Wingerter.

Dr. A. C. Scott testified that his-examination showed Mr. Wingerter received a fracture of the left tibia, or the larger bone, and the left fibula, or smaller bone, near the distal end; also, a fracture that was called com-minuted and compound. By compound, Dr. Scott referred to that entrance from the outside to the side of the fracture. By comminuted, Dr. Scott referred to the facts that the leg was broken into several pieces.

Mr. Wingerter was married, and had three children under 16 years of age dependent upon him for support. As earlier stated, he was first, employed on January 6, 1948, as a temporary laborer in one of the Division’s day labor units at a wage rate of $1.40 an hour. Employees working in a similar capacity ordinarily work less than 200 days a year. Therefore, under Section 10 of the Workmen’s Compensation Act, Mr. Wingerter is presumed to have earned $2,240.00 in the year preceding the accident.

The record consists of a complaint, departmental report, transcript of evidence, three statements of radio-graphic findings, and six X-Ray exhibits.

There is but one question, therefore, for this Court to determine — the nature and extent of his injury, and .whether or not said injury has caused him any degree of permanent disability, as defined under the terms and provisions of the Workmen’s Compensation Act of this State, Section 8, Paragraph (e) 15.

Reviewing the opinions of Dr. Fred Reynolds, Dr. Kilien Fritsch, and the observations of the Commissioner of this Court, we feel Mr. Wingerter sustained a permanent impairment, estimated to be in the neighborhood of 20 per cent of the left leg below the knee.

Following his injury, the Division paid Mr. Wingerter compensation at the rate of $23.40 a week for the period January 7 to August 31, 1948, in the total amount of $759.59. Compensation payments were terminated August 31, 1948, one week after Dr. Reynold’s examination of August 24, 1948, at which time the doctor recommended that Mr. Wingerter return to light work.

The Division of Highways has paid the following creditors in connection with Mr. Wingerter’s injury; Dr. Kilien F. Fritsch, East St. Louis, $75.00; Dr, A. C. Scott, Evansville, $150.00; Dr. Wendell C. Scott, St. Louis, $37.00; Dr. J. Albert Key, St. Louis, $45.00; St. Clement’s Hospital, Red Bud, $258.03; and claimant, Gilbert Wingerter, miscellaneous expenses, $17.47, making a total sum of $582.50 paid.

No jurisdictional questions were raised.

An award is, therefore, made to claimant, Gilbert Wingerter, for 20 per cent partial, permanent loss of use of his left leg below the knee, being 38 weeks. The claimant had three children under the age of 16 years dependent upon him for support at the time of the accident, so that the weekly maximum rate is increased- to $18.00 per week. The injury, having occurred after July 1, 1947, this must be increased 30 per cent, making a compensation rate of $23.40 per week, or the sum of $889.20, all of which has accrued, and is payable forthwith (Sec. 8-J-3).

The testimony at the hearing was taken and transcribed by Henry P. Keefe, who has submitted a statement for his services in the amount of $41.90. This statement appears reasonable for the services rendered.

An award is, therefore, entered in favor of Henry P. Keefe, for taking and transcribing testimony in the amount of $41.90, payable forthwith.

The 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. 4221
    Helen M. Kaspari, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.
    ■ James W. Breen, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Helen M. Kaspari, seeks to recover from respondent under Section 3 of the Workmen’s Occupational Diseases Act, because she contracted tuberculosis while employed as a registered nurse at the Chicago State Hospital, operated by the Department of Public Welfare.

In 1935, claimant entered State service. In 1936, she was transferred to the Chicago State Hospital, and worked as a registered nurse until June, 1947. In that month, after failing to throw off a slight cold, claimant was examined, and found to have arrested minimal tuberculosis in the right upper lobe. Sputum examinations were negative.

Claimant was hospitalized at the Chicago State Hospital for approximately a month, beginning in July, and ending in August, 1947. After hospitalization, claimant took a leave of absence, which continued until March, 1948. However, during her leave of absence, claimant rested, and was examined periodically.

In March, 1948, the Medical Advisory Committee on Chest Diseases at the Chicago State Hospital agreed that claimant’s tuberculosis was arrested, and she was reinstated, and returned to duty.

In September, 1948, reactivation of her tuberculosis was indicated, and claimant was again hospitalized until November, 1948.

In December, 1948,. claimant entered the Edwards Sanitorium, Naperville, Illinois, a private institution, where she remained until April, 1949, when lack of funds compelled her to return to her home, and continue rest there. This institution reported one positive sputum examination.

In. August, 1949, another examination at the Chicago State Hospital disclosed further instability and activation of claimant’s tuberculosis, and, sanitorium care being advised, claimant entered the Chicago Municipal Tuberculosis Sanitorium where she was a patient at the time of the hearing of this case earlier this year.

From 1940 on, claimant worked on the night shift from 11 P.M. to 7 A.M.. Her duties required her to enter, and regularly work in the acute hospital, the tuberculosis wards, the violent wards, and infirmaries.

For a considerable period prior to June, 1947, and again in the period from March to September, 1948, claimant worked seven days per week with no day off. Claimant testified that such a heavy work schedule tired her considerably.

It has been held in this Court that a State employee in a State institution whose duties require her to come in regular contact with tubercular patients, and, who thereby contracts tuberculosis, is entitled to a recovery under the Workmen’s Occupational Diseases Act, if the requirements of Section 3 are met. Wheeler v. State, 12 C.C.R. 254.

Since respondent has not elected to come under said Act, a claimant must proceed under Section 3 thereof in a negligence action with certain defenses barred to respondent. Wheeler v. State, 12 C.C.R. 254; Domke v. State, 12 C.C.R. 451; Norman v. State, 16 C.C.R. 128; Odle v. State, 16 C.C.R. 183.

To be entitled to compensation under the Workmen’s Occupational Diseases Act, a claimant must show that respondent violated:

1) A rule or rules of the Industrial Commission made pursuant to the ' Health and Safety Act of
2) A Statute of this State intended for the protection of the health of employees. Domke v. State, 12 C.C.R. 451.

Being a registered nurse,- claimant is excluded from the benefits of “Ah Act concerning the hours of employment of females in certain occupations” since, such Act by Section 1% thereof does not apply to graduate nurses, it being clear that a registered nurse would also be a graduate nurse. Ill. Rev. Stat. 1949, Chap. 48, Secs. 5, 5a.

However, claimant is entitled to the benefits of “An Act to promote the public health and comfort of persons employed by providing one day of rest in seven,” which provides among other things that an employee in a hospital, etc., shall be allowed at least twenty-four consecutive hours of rest in every calendar week, in addition to the regular period of rest allowed at the close of each working day. Ill. Rev. Stat. 1949, Chap. 48, Sec. 8b. Cf. Domke v. State, 12 C.C.R. 451.

That such statute has been violated is shown by claimant’s testimony, and such violation was negligence on the part of respondent under Section 3 of the Workmen’s Occupational Diseases Act. That such violation proximately resulted in the contracting of tuberculosis by claimant is virtually admitted in the Departmental Report of the Department of Public Welfare admitted in evidence in this case which states in part as follows:

“. . . and the continuous employment (of claimant) as a nurse in various capacities at the Chicago State Hospital make(s) it very difficult to exclude service connected illness.”

Claimant is, therefore, entitled to an award.

As to damages, there is evidence in the record to the effect that, with continued sanitorium confinement and medication, claimant’s tuberculosis may become permanently arrested. We, therefore, conclude that claimant is entitled to an award of $2,000.00.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Tearney. Charges in the amount of $57.40 were incurred, which are reasonable and customary, and an award is entered in favor of William J. Cleary & Co. for $57.40.

An award is entered in favor of claimant, Helen M. Kaspari, for $2,000.00.


author: LaNSDEN, J.

text:
    (No. 4223
    Charles Rohles, Sr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

      Petition of claimant for rehearing denied September 19, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpteb, Assistant Attorney General, for Respondent.
   LaNSDEN, J.

On February 15, 1949, claimant, Charles Rohles, Sr., was employed as a painter at the Chicago State Hospital of the Department of Public Welfare. On that day, after reporting for duty, and while walking to the place where he was assigned to work, he slipped into a depression in the pavement, fell, and sustained a fractured rib, concussion, and other bruises. He. was rendered unconscious by the fall.

Claimant was hospitalized, except for a few days, until March 6, 1949, and he returned to work on March 28, 1949. Claimant was earning in excess of $400.00 per month at the time of the accident, and his earnings in the year prior thereto amounted to $4,642.00.

. During the period claimant was unable' to work, he was paid his full rate of pay, and when he returned to work he was assigned to supervisory duties,' but at the same rate of pay. He worked for respondent until December 15, 1949, at which time he was let out as a result of a personnel reorganization which reduced the number of painters regularly employed at the Chicago State Hospital.

The Departmental Report of the Department of Public Welfare, and the testimony of two doctors, are in substantial agreement that claimant has a long standing osteo-arthritis, which limits the function of Ms spine. Both doctors testified that a fall might have aggravated his condition. Claimant testified that he suffered from dizzy spells due to a heart condition.

In general, the testimony as to the exteht of claimant’s disability leads to the conclusion that claimant has some permanent partial incapacity. "Whether such incapacity is the result of the accident that occurred on February 15, 1949 will not be decided herein, because of claimant’s failure to prove that his earning capacity was diminished as a result of alleged injuries.

For a claimant to be entitled to an award under .Section 8 (d) of the Workmen’s Compensation Act for permanent partial incapacity, he must show the differential between what he earned before the accident, and what he is earning, or able to earn, in some suitable employment after the accident. Cogdill v. State, 18 C.C.R. 24; Merritt v. Ind. Com., 322 Ill. 160.

Claimant testified he was paid his full wages after he returned to work. The Departmental Eeport shows that, he earned more per month after the accident than he did before. So for eight and one-half months after he returned to work, claimant had greater earnings.

However, claimant testified he tried to work after his employment with respondent was terminated, and worked for two hours at $1.00 per hour, but had to quit because he could not perform the duties required. Claimant thought that he could find a job that would pay him $40.00 per week. On cross-examination, counsel for respondent seriously shook the credibility of claimant by getting admissions from claimant of a series of accidents, which had happened to claimant while employed by respondent, when claimant had testified in chief that he had never been sick a day in his life. Claimant had heart trouble, which he admitted, on cross-examination, made him dizzy at times. Claimant’s testimony falls, far short of the proof required to establish a differential in earnings when we give to it the weight to which i* was entitled after cross-examination.

A business agent for the union of which claimant was a member also testified for claimant to the effect that claimant could not earn the prevailing scale of wages, but his testimony was devoid of any figures that could be used by this Court for calculation of an award.

In Franklin County Coal Corporation v. Ind. Com., 398 Ill. 528, it was held that, under Section 8 (d) of the Workmen’s Compensation Act, proof should be required of earnings for a substantial period prior to the accident and after return to work, and, in the event the injured person does not return to work, proof of what he is able to' earn in some suitable employment, will suffice.

Applying that rule to this case, we find that claimant earned approximately $387.00 per month on the average in the year prior to his accident. For the eight and one-half months claimant worked after he returned to work in March, 1949, he was paid an average of approximately $410.00 per month. The proof of what claimant could earn in suitable employment after he was let out by respondent was unconvincing and lacking in figures to be used for purposes of calculation.

An award to claimant must therefore be denied.

Since claimant was paid his full wages during the time he was disabled with knowledge of his injury and without denial of liability, any award for temporary total incapacity must be held to have been paid in full. Olney Seed Co. v. Ind. Com., 403 Ill. 587.

William J. Cleary & Co., Court Reporters, was employed to take and transcribe the testimony before Commissioner Tearney. Charges in the amount of $63.60 were incurred, and an award for such sum is hereby entered in favor of William J. Cleary & Co.

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

Award to claimant denied..


text:
    (No. 4225
    Cliffe Compton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.
    Paulson, Morgan and Jordan, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

On March 18, 1949, claimant, Cliffe Compton, was employed as an attendant at the Elgin State Hospital operated by the Department of Public Welfare.

Shortly after going to work for the day, while moving patients from one room to another, claimant’s second finger on his left hand was caught between the door jamb and the metal edged door, and the distal phalanx thereof was traumatically severed.

For the specific loss, claimant brings this action under the Workmen’s Compensation Act, and he is entitled to recover under Section 8 (e) (3) (6) of the Act, the accident concededly having arisen out of and in the course of his employment.

Claimant lost no compensable time from his employmént as a result of his accident, and all medical treatment was furnished by respondent. No jurisdictional questions are involved.

Claimant had worked for respondent for almost 25 years, and in the year prior to his accident, he earned $2,100.00. Claimant, aged 66, was married, but had no children. His rate of compensation- is, therefore, $19.50 per week.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Tearney.- Charges of $21.10 were incurred, which are reasonable and customary. An award is, therefore, entered in favor of William J. Cleary & Co. for $21.10.

An award is entered in favor of claimant, Cliffe Compton, under Section 8 (e) (3) (6) of the Workmen’s Compensation Act for a fifty per cent loss of the second finger of his left hand, by reason of the loss of the distal phalanx of such finger, or 17% weeks at $19.50 per week, or the sum of $341.25, all of which has accrued and is payable forthwith.

The award is subject to the approval of the Governor as provided in Section 3 of “An Act to provide for the payment of compensation awards to State employees. ’ ’


text:
    (No. 4237
    Gladyce Raeuber, mother of Kenneth Shropshire, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Bell and Smith, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   S CHUMAN, C. J.

Claim was filed herein on October 27, 1949 by Gladyce Raeuber for the death of her son, which occurred as a result of an accident on July 28,1949. Claim is made that the grand-parents of said deceased, Mr. and Mrs. Jasper Otis, were partially dependent upon the earnings of deceased at the time of injury.

Kenneth Shropshire was first employed by the Division of Highways on July 5, 1949 as a laborer at a wage rate of one dollar ($1.00) per hour. He worked from the date of his first employment until his death on July 28, 1949. The claimant, not having worked a full year and less than 200 days, compensation will have to be figured on the minimum basis.

On said date, he was assisting Mr. Joseph Townsend, an equipment operator, in hauling gravel, and while spreading same on the highway, decedent fell from the truck, and was found unconscious. He was taken to the hospital, where he died shortly thereafter. The examination revealed a crushing skull fracture, lacerations and contusions about the left ear, probable fracture of the left ankle, and possible internal injuries.

The accident arose out of and in the course of decedent’s employment,, claim was made, and complaint filed within the time required by law.

The evidence discloses that the decedent was nineteen (19) years of age, not married, and left surviving a mother, sisters and grandparents. During the school year he was actively engaged in all sports at the Watseka High School, and did not work during that period of time. He was employed during the summer of 1948, and made approximately $260.00. His only employment during the summer of 1949 was a job with the Division of Highways. The mother testified that she, her husband, two daughters, decedent and grandparents lived together in Watseka, and all contributed to the support of the family, and all the expenses of the household.

The Court concludes that the evidence was sufficient to establish partial dependency of the claimant, the mother of the decedent. The claimant is, therefore, entitled to the minimum award under Section 7 (c) of the Workmen’s Compensation Act, because the evidence did not set forth any sums of money by which any other conclusion could be reached. Claimant is entitled, therefore, to an award of $1,500.00.

Letha Finch submitted a statement in the amount of $52.50 for stenographic services. This amount is found to be a fair and reasonable charge.

An award is, therefore, entered in favor of the claimant in the amount of $1,500.00 as follows:

$1,327.50 has accrued to September 15, 1950, for a total of 59 weeks at $22.50 a week.
$ 172.50 payable in weekly installments of $22.50, commencing on September 22, 1950 for a period of 7 weeks, with one final payment of $15.00.

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

An award is also entered in favor of Letha Finch' for stenographic services in the amoupt of $52.50, which is payable forthwith.

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


text:
    (No. 4241
    O. R. Willey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Robert H. Allison and Herbert N. Tbagethon, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Abthub Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, O. R. Willey, was employed on February 14, 1949, in the Division of Highways, Department of Public Works and Buildings. On that day, while using an electric drill to cut holes in a metal truck bed preliminary to the construction of a shield over the truck cab, the bit stuck. This caused the drill to twist in claimant’s hand before the power could be shut off. The index finger of claimant’s left hand was injured.

The claimant received no medical attention until March 8, 1949, at which time he was treated by Dr. Charles W. Harrison of the Olney Sanitarium Clinic. Dr. Harrison’s final report of April 29,1949 indicated a fracture and slight stiffness of index finger. Dr. F. E, Fleischli in his report of May 8, 1950 stated claimant had a flexor tendon injury, which is permanent. An examination by Frank M. Summers, a Commissioner of this Court, showed that claimant sustained a 10 per cent loss of use of the index finger of his left hand as a result of the injury.

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

The record consists of the complaint, departmental report, waiver of briefs of respondent and claimant, and transcript of the testimony.

The claimant at the time of the injury had no children under the age of sixteen years. Claimant received earnings from respondent in the amount of $2,820.00 in the year preceding his injury. Mr. Willey did not lose any time, and was paid full salary throughout his period of disability.

For a 10 per cent loss of use of the index finger of his left hand, under Section 8, Paragraph (e) 2, the claimant should receive from the respondent, the compensation rate, $19.50 per week for 4 weeks.

An award is, therefore, made to claimant, O. R. Willey, in the sum of $78.00, all of which has accrued and is payable forthwith.

Johnson Fleming was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $13.75 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Johnson Fleming in the amount of $13.75, 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. 4244
    Rosa Lee Brush, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Russell E. Kale, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Rosa Lee Brush, widow of LeRoy Brush, deceased, seeks to recover from respondent under the Workmen’s Compensation Act for the death of her husband as the result of an accident arising out of and in the course of his employment by respondent as an automotive mechanic in the Division of Highways, Department of Public Works and Buildings.

On July 27, 1949, a hot, humid day,' decedent was working at his assigned duties, having been instructed to install a new battery in a road grader, which was being repaired at the State garage, Elgin, Illinois.

Such battery weighed 62 pounds, and decedent wheeled it on a hand truck to within 30 feet of the grader, and carried it the remainder of the distance. Decedent then lifted the battery vertically 4% feet to the floor of the grader cab, and, after getting into the cab, decedent lifted the battery another 1 y2 feet into the battery box. Then decedent, leaning down in a necessarily awkward and straining position, made the necessary connections.

Shortly after installing the battery, decedent complained of chest pains and shortness of breath. He rested the balance of the afternoon, and went home at quitting time.

Decedent became acutely ill during the night, and was taken to a hospital where his condition was' diagnosed as a severe heart attack.

Decedent had pains in his chest and arms. He was short of breath and in medical shock. His pulse was rapid, his heart beat weak, his blood pressure low. He was pale, perspiring and cold, and his skin was blue.

For some days decedent showed improvement in the hospital, but on August 7, 1949, he displayed the same symptoms he had manifested earlier but to an intensified degree, and he then died.

Prior to July 27, 1949, decedent had been in good health, and had never shown any signs of having a diseased heart.

Medical testimony in the case indicated decedent’s heart attack came about as a result of decedent’s unusual exertion in installing the battery.

No jurisdictional questions are involved.

Prior to Town of Cicero v. Ind. Com., 404 Ill. 487, the Supreme Court of Illinois drew a careful and well defined distinction concerning heart cases under the Workmen’s Compensation Act, based on whether an employee had pre-existing heart disease or not. Fittso v. Ind. Com., 377 Ill. 532. Whatever the Town of Cicero case may have done to erase the previous delineation of' legal principles relating to heart cases, the fact remains that decedent in this case did not have diagnosed or known pre-existing heart disease. This case falls within the rule announced in Marsh v. Ind. Com., 386 Ill. 11, and the cases, cited therein, and Leadley v. State, No. 4137, opinion filed December 7, 1949, in which the Court held that decedent suffered an accidental injury resulting in his death within the meaning of the Workmen’s Compensation Act. Claimant is, therefore, entitled to an award.

On the date of his accident, decedent was 62 years of age, married to claimant herein, but had no children under 18 years of age dependent upon him for support. Decedent’s earnings in the year prior to his accident amounted to $2,864.00, and the rate of compensation is $22.50 per week.

Respondent did not pay anything for decedent’s, hospitalization and medical treatment from the date of his accident to the date of his death. Claimant has offered no proof as to such charges, and we can not reimburse claimant for such unknown expenses. Respondent did, however, pay decedent’s full salary from the date of his accident until his death when decedent performed no services for respondent. This amounted to $92.62, and must be deducted from claimant’s award.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Tearney. Charges in the amount of $43.00 were incurred, which charges are customary and reasonable. An award is entered in favor of William J. Cleary & Co. for $43.00.

An award is entered in favor of claimant, Rosa Lee Brush, widow of LeRoy Brush, deceased, under Section 7 (a) (L) of the Workmen’s Compensation Act for $6,-000.00, less the payment of $92.62 for non-productive work, or a net award of $5,907.38, payable as follows:

$1,308.21 less payment of $92.62 for non-productive time, or the sum of $1,215.59 which has accrued and is payable forthwith,
$4,691.79, which is payable in weekly installments of $22.50 per week, commencing on September 26, 1950, for a period of 208 weeks, plus one final payment of $11.79.

Jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary.

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


text:
    (No. 4259
    Opal Colbert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Opal Colbert, brings this case under the Workmen’s Compensation Act to recover-from respondent for injuries sustained while she was an employee of respondent at the Chicago State Hospital operated by the Department of Public Welfare.

The crucial question to be decided is whether her injuries were sustained as a result of an accident arising out of and in the course of her employment.

On June 2, 1949, claimant was employed by the month in the Nursing Department. On that day she worked her regular shift from 7:00 A.M. to 3:00 P.M. At about 9:00 P.M. while claimant was off duty resting, attired in a housecoat, in quarters in the Employees’ Building furnished by respondent, a coin box telephone on the floor below began to ring. Claimant went downstairs and answered the phone. The call was not for her, and she did not recognize the voice of the person calling. This coin phone was apparently installed so that employees could use it for outside personal calls. There was also a house or institutional phone nearby. The ring of the two phones was different, and by the sound each made, claimant was able to identify which was ringing.

Claimant testified that when she was off duty and on the institution grounds she was subject to emergency call at all times. She differentiated between her regular and extra duty and emergency, duty. Claimant was notified the day before of the time to report for either regular or extra duty, but felt that an emergency duty call could come at any time, although she personally had never been called for emergency duty. She was not .required to stay on the grounds of the institution when off duty.

The phone claimant answered was sometimes used to call employees to duty, but claimant had never been called to duty over the phone she answered.

After answering the phone, claimant started upstairs and either because she tripped on her housecoat, or slipped on the polished floor, she fell, fracturing the distal end of her right fibula.

Hospitalization and treatment were required for several weeks, all of which were furnished by respondent, but respondent never paid claimant any compensation.

Claimant contends that, because of the. possibility that she might have been called to duty on the phone she answered, and because she was on the institution premises in quarters furnished by respondent, subject to emergency call, she was injured in an accident that was incidental to her employment. With this contention we cannot agree.

Although it is true that the Workmen’s Compensation Act is to be liberally construed in favor of employees, claimant must bring herself within the Act and this she has not done.

In Edmonds v. Ind. Com., 350 Ill. 197, a woman was employed by an employer who had elected to come under the Workmen’s Compensation Act. At pages 198 and 199 the Court said:

“The accident from which the injuries resulted occurred on January 10, 1931. For almost two years prior to that date Mrs. Stage had been employed by Edmonds as a maid in his home at LaGrange. She had a room on the third floor of the residence, and made her home there. She was allowed Saturdays off, excepting that she cooked breakfast. She was also permitted to work for other persons, consisting principally of caring for children during the evening, and kept the extra money earned in that manner. On the evening of her injury an arrangement had been made for her to take care of some children at another home, and Edmonds’ daughter had agreed to drive her over to this place. While getting ready to leave the Edmonds home, she fell down the stairs leading from the third to the second floor, suffering a painful injury to her back. At the time of the accident Edmonds was carrying compensation insurance on his household servants and employees. . . .
“The accidental injury contemplated must both arise out of and in the course of the employment. (Becker Roofing Co. v. Industrial Com., 333 Ill. 340; Dietzen Co. v. Industrial Board, 219 id. 11.) The accident in this case occurred on a Saturday evening, when Mrs. Stage was off duty, and was preparing to go out and work for someone else. It, therefore, did not occur within the period of the employment, but rather at a time expressly exempted from the period of her employment. It is true that she was injured at the home of her employer, but this was also her home. The evidence shows that at the time of her injury she was'not engaged in any work which was even remotely connected with her employment by Edmonds. Employees are not in the course of their employment, even though they may be in the general area of it, if they are not engaged in the particular duties for which they were employed or in some work incidental thereto. (Board of Education v. Industrial Com., 321 Ill. 23; Danville, Urbana and Champaign Railway Co. v. Industrial Com., 307 id. 142; Savoy Hotel Co. v. Industrial Board, 279 id. 329.) The fact that Mrs. Stage was in the home of Edmonds at the time she sustained her injury does not alter the fact that she was then off duty, and was in the act of leaving his home under an engagement of her sendees for hire, at another place. The accident, therefore, did not arise out of and in the course of her employment.”

We think that the Edmonds case is applicable to the instant case. The possibility of- something happening on the phone, which had never happened before as far as claimant was concerned, would place on respondent a liability based on conjecture and not facts. This we are not prepared to do.

An award to claimant must, therefore, be denied.

William J. Cleary & Co., Court Reporters, Chicago, Illinois was employed to take and transcribe the testimony before Commissioner Tearney. The charges of such firm, amounting to $56.75, are customary, and an award for said amount is entered in favor of such firm.

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

Award to claimant denied.


author: Lawdsen, J.

text:
    (No. 4260
    Enoch Dutton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lawdsen, J.

Claimant, Enoch Dutton, seeks to recover from respondent under the Workmen’s Compensation Act for a percentage loss of use of his right hand by reason of an injury that resulted from an accident arising out of and in the course of his employment as an attendant at the Chicago State Hospital, operated by the Department of Public Welfare.

No jurisdictional questions are involved, and respondent has furnished all medical treatment required in this case.

On November 25,1949, claimant, while working some patients, slipped on an- icy pavement, fell, and injured his right hand. The fifth metacarpal sustained a compound fracture.

At the time of the hearing in this case the distal ends of the fourth and fifth metacarpals were enlarged. The fourth finger was held in fixed deformity. Limitation of motion was present to a marked degree in the fourth finger, and claimant has suffered considerable loss of grip. Callous formation in the metacarpals hampered claimant’s use of his hand.

From the foregoing we conclude that claimant has sustained a twenty-five per cent loss of use of his right hand. Gray Attorney’s Textbook of Medicine (1949) Vol. 2 pars. 185.02-.05.

On the date of his accident, claimant was 41 years of age, married, but had no children under 18 years of age dependent upon him for support. Claimant had worked for respondent only since August 1, 1949,' but employees in his same category customarily earn in excess of $1,560.00 per year. His rate of compensation is, therefore, $22.50 per week.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony before Commissioner Tearney. Charges in the amount of $37.15 were incurred, which charges are customary and reasonable; An award is entered in favor of William J. Cleary & Co. for $37.15.

Claimant was paid full salary for three days’ work he lost as a result of his accident, or the sum of $13.50. This payment for non-productive time will have to be deducted from his award.

An award is entered in favor of claimant, Enoch Dutton, under Section 8 (e) (12) of the Workmen’s Compensation Act for twenty-five per cent loss of use of his right hand, or 42% weeks at $22.50 per week, or the sum of $956.25, less overpayment of $13.50, leaving a net award of $942.75, all of which has accrued and is payable forthwith.

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


author: SCHUMAIT, C. J.

text:
    (No. 4262
    Amalia Miller, Admx., et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Beverly, Oddsen and West, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General'; William H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAIT, C. J.

Claim was filed herein on January 26,1950, by claimant for the death of her son, which occurred on July 8, 1949, while he was employed by the Division of Highways. The decedent was first employed on June 27, 1949 to mow weeds with his tractor-mower at $2.50 per hour. On the date of July 8, 1949, he was mowing weeds on U. S. Route No. 12 about one and one-half'miles southeast of Richmond, Illinois, and at approximately 11:30 A.M. on said date he was found flying on the side of the road under the mower, with the mower and tractor turned over. A doctor was called, and after an examination pronounced him dead. His injuries consisted of a basal fracture of the skull on the lower right rear side of the head, and a broken neck. The decedent not having worked a full year, and less than 200 days, compensation would have to be figured on the minimum basis.

A" claim was made by the mother on August 2, 1949. All jurisdictional requirements have been met. The mother has filed her claim on the grounds that she was pártially dependent upon the earnings of the deceased at the time of his death.

The evidence discloses that decedent during the school year attended Marquette University, and had graduated therefrom; that he, along with another brother, Conrad, and several farm hands helped his mother farm a two hundred eighty acre farm. The farm was owned by the mother; there are no mortgages on the farm, and the farm is used as a dairy farm with eighty acres in pasture and two hundred acres for crops. The mother testified that the decedent received no salary, but she gave him spending money and his clothes, etc. The elder son, Conrad, age 26, who also lived at home was paid a salary. There are two minor children, who live on the farm, and also assist in the chores. The evidence further discloses that since the son’s death an additional part-time man is hired during the busy season.

The evidence showed that the claimant was the sole owner of the farm and the mother of the decedent; that the father of the decedent and the husband of the claimant had died in 1946; that the decedent had worked and helped on the farm; and that the only thing he ever got was a little spending money.

The only question before the Court in this case is whether or not the facts in evidence discloses a case of partial dependency, so as to allow the mother of the decedent an award under Section 7 (c) of the Workmen’s Compensation Act.

The case of Ritzman v. Ind. Com., 353 Ill. 34 at page 39, wherein the Court stated:

“In view of this evidence it is apparent that Earl performed substantial services with consistent regularity on the farm, and that from these services the parents received a substantial benefit. They received income from the tobacco and other farm products, which his labor helped to produce and prepare for the market. This contribution of labor was just as substantial and as beneficial to his parents as if it had been a portion of wages paid by an employer as a reward for his labor and turned over to them in cash. His labor and services on the farm were relied upon by the parents, the father being sixty-seven years old and afflicted with rheumatism. In the absence of this help to his parents it would have been necessary preceding his death, as the record shows it was necessary following his death, for them to hire a man to aid them on the farm at two dollars per day. The labor so given by the son to his parents was the equivalent of money and answered the same purpose. A liberal construction of the Act requires us to hold that such contributions, regularly made in the form of both money and services up to the time of the accident and for a reasonable period of time prior thereto, were sufficient to enable the applicants to recover on the ground of partial dependency.”

is very close to the situation in this case. On the basis of the decision of this case, the Court concludes that a case of partial dependency has been established.

D. V. Sheffner has rendered a bill for $35.00 for stenographic services, which charge is found to be fair and reasonable.

An award is, therefore, entered in favor of Amalia Miller, mother of the decedent, as a partially dependent parent, in the sum of $1,500.00 to be paid to her as follows:

$1,395.00 which has accrued to September 16, 1950, for a total of 62 weeks at $22.50 a week.
$ 105.00 payable in weekly installments of $22.50, commencing on September 23, 1950 for a period of 4 weeks, and one final payment of $15.00.

An award is entered in favor of D. V. Sheffner in the amount of $35.00 for stenographic services, which is payable forthwith.

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

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


author: SCHUMAN, C. J.

text:
    (No. 4274
    Anne Pollowy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 19, 1950.

    Chuhak and Dahl, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpteb, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

The claimant, Anne Pollowy, was on - November 9, 1949, an employee of the respondent in the Department of Labor, Industrial Commission, Division of Accident Reports. On November 9, 1949, she was sitting on a swivel chair doing clerical work when the chair broke causing the claimant to be thrown to the floor, which resulted in an injury to her left arm.

Claimant was examined by- Dr. Alfred J. Mitchell, who stated in his report dated March 23, 1950, that the claimant had a cyst in the upper end of the left forearm, of which he did not recommend removal unless it should become progressive in character. He further stated that trauma could have resulted in a development of the cyst in the area he described. Dr. Mitchell stated that the claimant showed a 5% permanent loss of use of her left arm.

On March 6, 1950, claimant was examined by Dr. Albert C. Field, who stated that the examination showed the elbow somewhat restricted as to movement, with pain and crepitation on manipulation. He further stated that there ivas an irregular area, which could be palpated over the ulna, about two inches below the olecranon process, and that it was his opinion that the condition, as he found it at the time, was permanent and caused by trauma.

The claimant’s injury arose out of and in the course of her employment by the respondent. She lost no compensable time from her employment. Her earnings in the year preceding the accident amounted to $1,868.00. The only question that is disputed is the nature and extent of her disability.

From the evidence, the Court concludes that the claimant is entitled to 5 per cent loss of the use of her left arm. Compensation therefor, computed at $22.50 per week for 11% weeks, is $253.13. In addition thereto, the claimant expended the sum of $50.00 for medical services, which were required as a result of the injury, making a total amount due her of $303.13.

William J. Cleary & Co. has "rendered a statement for stenographic services in the amount of $40.08, which charge is found to be fair and reasonable.

An award is therefore entered in favor of the claimant in the amount of $303.13, all of which has accrued and is payable forthwith.

An award is entered in favor of William J. Cleary & Co. for stenographic services in the amount of"$40.08, which is payable forthwith.

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