author: Schuman, C. J.

text:
    (No. 4094
    Ora Westerfield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    Costigan, Wollrab & Yoder, Attorneys for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant, Ora Westerfield, of the town of McLean, Illinois, on August 12, A. D. 1947, was injured at the Illinois State Fair grounds at Springfield, Illinois, while attending the Illinois State Fair, by being knocked down and squeezed by a tractor operated by an employee of the Illinois State Fair. This injury occurred while the claimant was in a ticket booth purchasing a ticket for the races being held by the Illinois, State Fair.

An ambulance was called and claimant was taken to first aid quarters; that thereafter an ambulance operated by Bisch & Son of Springfield, Illinois, was called and claimant was taken to St. John’s Hospital where X-rays were taken. That while in the St. John’s Hospital claimant was attended by William E. Farney, a physician and surgeon of Springfield, Illinois. That thereafter claimant was driven to his home in McLean.

There is no testimony in the record as to whether or not the acts of Chas. Bacon, an employee of the State of Illinois in the operation of the tractor was negligent. However, the evidence conclusively shows that the tractor was under the control and management of the respondent, and the accident is such that in the ordinary course of things would not have happened if the employee exercised proper care and that the doctrine of res ipsa locuiter arises in this case. There was no explanation in the record of how the accident happened nor was there any evidence of any negligence on behalf of the claimant. There being no rebuttal to the prima facie case made by the claimant the facts are sufficient to support an award in favor of the claimant.

The evidence shows that the claimant sustained the following list of expenses as a result of the injury he received:

Bisch & Son ambulance.......................$ 5.00
St. John’s Hospital.......................".... 12.00
St. Joseph’s Hospital.......................... 33.18
Dr. William E. Farney........................ 5.00
St. Joseph’s Hospital.......................... 98.25
Brokaw Hospital ............................. 10.00
Dr. Gordon Schultz........................... 212.00
Special shoes ................................ 4.50
Dr. Smith ................................... 45.00
$424.93

making a total of $424.93.

The evidence further showed that the claimant was engaged in the trucking business and before his injury operated a truck. In accordance with the medical testimony as testified to by Dr. Gordon Schultz, the claimant sustained injury to his feet and also a lung- condition and that all of said injuries have not disabled the claimant in any way.

The testimony showed without dispute, that the average earnings of the claimant ran the same after the accident as before. The only testimony in the record is that the claimant had to pay out the sum of $50.00 for a truck driver.

The evidence is incomplete with reference to the continued necessity for an additional truck driver after October of 1947. The evidence showed that the claimant operated a school bus and received compensation.® for the same to the amount of $75.00 a month, starting ¡¡around the fore part of October 1947. There is no evidence of any loss of earnings on the part of the claimant. However, there is some evidence that he was incapacitated from doing any kind of work from the date of the injury on August 12,1947 to the first part of October 1947. Any further evidence of incapacitation is inconclusive. There was evidence that he suffered some pain as a result of these injuries.

Claimant is entitled to an award in the amount of $1500.00 to cover all medical expenses and injuries sustained, including loss of earnings, pain and suffering and all other damages.

An award is therefore entered in favor of the claim ant in the sum of $1500.00.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4104
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    Hon. John Irving Pearce, State’s Attorney, County of Will, State of Illinois, for Claimant.
    Hon. Ivan A. Elliott, Attorney General, for Respondent.
   Lansden, J.

Claimant, the County of Will, Hlinois, by Elmer J. Stephen, chairman of its Board of Supervisors, and by its State’s Attorney, filed its verified complaint on July 9,1948, making claim to the sum of $561.50 due claimant from respondent.

Jurisdiction is specifically conferred upon this Court in this type of case by Illinois Bevised Statutes (1947), Chapter 65, Sections 37, 38 and 39; Chapter 37, Section 439.8.

Claimant seeks to recover from respondent under the authority of Sections 37, 38 and 39 of Chapter 65 of the Illinois Revised Statutes (1947), entitled “An Act to provide for imbursement (reimbursement) of counties within the State of Illinois for expenses, costs and fees incurred in habeas corpus proceedings in the courts of such counties involving non-residents of such counties who may be confined in State penal or charitable institutions. ’ ’

Section 37 provides that the State of Illinois shall assume and pay to each county, wherein there is situated a State penal or charitable institution, the necessary expenses incurred by it and its officers, either by means of service rendered or otherwise, by reason of court proceedings in such county involving petitions for a Writ of Habeas Corpus, by or on behalf of, an inmate of a State penal or charitable institution who was not a resident of such county at the time of his commitment and was not committed by any court therein.

The complaint complies with the provisions of Section 38 of the aforesaid statute, which requires the filing, by the appropriate State’s Attorney, of a verified and itemized claim in this Court.

Section 39 of said statute defines the word “expenses” used in Section 37 to include all statutory costs and fees of county officers and the expenses incurred in providing juries, if any. Said section further provides that the money paid in payment of an award of this Court pursuant to this statute shall be treated and accounted for as earnings of the office of the respective county-officers.

The complaint alleges that the County of Will has situated within its borders the Illinois State Penitentiary, being a State penal institution. Exhibit “A” attached to the complaint lists one hundred and five individual petitions for Writs of Habeas Corpus filed by inmates of the Illinois State Penitentiary, which were presented to the Circuit Court of Will County, Illinois. Exhibit “A” further lists the $5.00 filing fee of the Clerk of the Circuit Court as provided by Section 31, Chapter 53 of the Illinois Revised Statutes (1947) for each petition. Exhibit “A” itemizes also total charges of $36.50 for photostatic copies of petitions required for seven of said petitions, photostatic copies of which were made at the request of the Attorney General. The case number of each petition, the name of the petitioner, the filing date of the petition, as well as the county of commitment of the respective petitioners, are set forth. The complaint alleges the respective petitioners were neither residents of Will County at the time of their commitment to the Illinois State Penitentiary, nor committed by any court of the County of Will, and that the instant claim has never been presented to any State department or officer or to any person, corporation or tribunal.

The above allegations of the verified complaint are not disputed; they are substantiated by the testimony of Paul V. Wunder, Jr., Clerk of the Circuit Court of Will County, Illinois, and the records of the office of the Clerk of the Circuit Court of Will County, Hlinois, described as General Docket and Record, Volumes 22 and 23, produced at the hearing held in the proceedings.

Mr. Wunder also testified that all petitioners in the petitions itemized in Exhibit “A” had been given leave to file as poor persons, but that prior to the granting of such leave, a local rule of court provided that each petition must be accompanied by a statement from the record office of the penal institution showing the amount of money on deposit to petitioner’s credit and if petitioner had sufficient funds on deposit, leave to file as a poor person was denied. Thereupon, the petition was returned to the penal institution from which it was sent stating that the petition must be accompanied by a check in the sum of $5.00 before it could be filed.

The County of Will is entitled to an award for the reimbursable expenses claimed.

An award is therefore entered in favor of the County of Will, State of Illinois, in the sum of Five Hundred Sixty-one Dollars and Fifty Cents ($561.50).


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    (No. 4120
    Paul A. Rich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    Paul D. Reese, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Paul Rich, was employed by the State of Illinois as a common laborer under the “Division of Highways” and while so employed on October 3, 1947 in the discharge of his duties, sustained an injury to his right eye by being struck with a piece of concrete which flew from a chip-hammer while working on the State Highway Boute U. S. 51 in Union County, about a mile south of Cobden, Illinois. That immediate notice was given to Mr. John P. Van, who was acting foreman of the claimant. Mr. Van offered to take Mr. Bich to a doctor, but he refused. On March 31,1948 Attorney Paul D. Beese of Jonesboro, Illinois, addressed a letter to Mr. William L. Miles of Coulterville, Illinois, a foreman in the maintenance branch of the Division of Highways, which letter was in the form of a notice of claim for compensation for claimant.

It was stipulated in the record by the parties that the statutory notice of injury was given within the time required by the statute and that notice of claim was made within that time.

That the claimant continued working until October 21, 1947, when the work was completed in the area and he was no longer employed by the Division of Highways. The claimant was examined by Dr. Glenn T. Tygett of Cape Girardeau, Missouri, a specialist in the diseases of the eye, ear, nose and throat. Dr. Tygett testified that he saw the claimant on June 9, 1948 and made an examination and that for all practical purposes the sight in the right eye was destroyed. 'He further testified that a cataract had developed as a result of his injury, and that he did not believe that an operation was advisable. He further testified that an operation would not be successful for the reason that the eye, after operated, could not be used with the other eye as a pair and that for all practical purposes the claimant was industrially blind in the right eye.

The evidence shows that the claimant was a temporary employee and was earning 90 cents an hour and eight hours constituted a normal working day and employees engaged in a similar capacity ordinarily worked not to exceed 200 days per year. Upon this basis the claimant’s average weekly wage was $27.69 and his rate of compensation $18.00 per week.

From the undisputed medical testimony and the testimony of the claimant, himself, the claimant has a total loss of his right eye. In the case of Juergens Bros. Co. v. Inds. Com., 290 Ill. 420, at pages 423 and 424, the Court held:

“The question before this Court is whether or not this man has for all practical uses and purposes lost his eye. The application of laws of this character should not be made to depend upon fine-spun theories based upon scientific technicalities, but such laws should be given a practical construction 'and application. For all practical purposes when a person has lost the sight of an eye he has lost the eye, and to say that the statute providing compensation for the loss of the sight of an eye does not apply here because of the remote possibility of Kaage losing his good eye, whereby he can through artificial means gain a certain amount of use of the injured member, is to place a construction on a remedial act which deprives it of all practical effect. Such could not have been the intention of the legislature in passing this Act.
“We are of the opinion that the legislature did not intend that when a man has lost the use of one eye he should nevertheless be deprived of compensation for that loss because he might be unfortunate enough to lose the other eye and thereby gain a certain limited use of the eye first injured. We believe the true rule should be, that where, as here, the employee has lost all practical use of an eye, which practical use cannot be restored so long as he has his other eye, such amounts, in effect, to the loss of the eye, and that compensation for such loss should be paid to such employee under Paragraph (e) of Section 8 of the Compensation Act.”

This case was affirmed in Heaps v. Inds. Com., 303 Ill. 443, at 447, and also in the case of Hamilton Engineering Company vs. Ind. Com., 339 Ill. 30, at pages 41 to 42. After consideration of all the evidence and the statement, brief and arguments, plaintiff is entitled to an award based on total loss of his right eye, which amounts to 120 weeks at $18.00 per week or $2,160.00. The Court finds that the claimant refused medical aid when he was offered medical attention by the Department of Highways and elected to secure his own medical attention and therefore his claim for $50.00 medical expense is denied.

The testimony on hearing by Commissioner Jenkins was transcribed by Arsicel Reese of Anna, Illinois, who has submitted a statement in the amount of $20.00 for said services. This charge is reasonable and proper. This is for the hearing on November 8, 1948. The testimony on hearing before Commissioner Jenkins was transcribed by Eileen Jones on December 6, 1948, who has submitted a statement of $10.00 for her services. This charge is reasonable and proper.

An award is therefore entered in favor of the claimant, Paul A. Rich, in the amount of $2,160.00 for the specific total loss of the use of his right eye, payable as follows:

$1,440.00 which has accrued, is payable forthwith;
$ 720.00 to be paid in weekly installments of $18.00 per week for a period of 40 weeks, beginning April 22, 1949.

An award of $100.00, to be paid by respondent to the State Treasurer of the State of Illinois as ex-officio custodian of the Workmen’s Compensation Special Fund, to be distributed in accordance with the provisions of said Workmen’s Compensation Act.

An award is also made in favor of Ariscel Reese for stenographic services in the amount of $20.00 which is payable forthwith.

An award is also made in favor of Eileen Jones for stenographic services in the amount of $10.00 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.”


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    (No. 4124
    Cecelia E. Rothery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    Warner & Warner, by Henry C. Warner, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and Samuel Rubin, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Cecelia Elizabeth Rothery, was employed on March 23, 1948, as an attendant at the Dixon State Hospital in the Department of Public Welfare. On that day while assisting certain patients in the course of her duties, she slipped on a wet floor, fell, and broke her hip. Claimant, 65 years of age, was immediately taken by wheel chair to appropriate section of the hospital for treatment. Claimant was suffering severe pain in her hip which became swollen.

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.

Respondent furnished complete surgical, medical and hospital treatment. On September 30 claimant received her last medical attention from respondent. About that time she applied for re-employment with the managing officer of the Dixon State Hospital. Claimant’s application was refused. On October 9, 1948 she obtained new employment at the Katherine Shaw Bethea Hospital, Dixon, Illinois, at a salary of $110.00 per month, plus room and board. Previously while employed by respondent, she had earned $175.00 per month from which $32.00 per month was deducted for room and board. The only question is the extent of permanent and complete loss of use of claimant’s left leg.

Dr. Alexander Tarnowski, physician and surgeon, on the staff of the Dixon State Hospital since 1930, attended and treated claimant for her injury. He first examined the claimant on the morning of the following day. Regarding his examination Dr. Tarnowski testified:

“I found that she had a comminuted fracture of the left femur through the greater trochanter. She had eversion of the left foot which was the usual symptom of a fracture of the hip. She was in severe pain and it was impossible to move her hip joint. There was some swelling and all the other signs that accompany fracture of the hip. It was impossible to transport her to the X-ray room because of pain and we had no portable X-ray at the time so we asked -assistance from the Dr. Murphy Clinic and he brought his own portable XTray and the X-ray was taken. . . .
. . . The X-ray showed comminuted fracture through the greater trochanter in the left hip or femur.”

Surgery was performed by Dr. Tarnowski and Dr. Murphy and a Steinman pin traction was applied.

Claimant remained under the traction until May 28th when the pin was removed as X-rays showed considerable callous formation around the fracture site. Mrs. Rothery’s condition further improved and on August 24th she was permitted to leave her wheel chair on crutches. Shortly thereafter she left the hospital. When next-treated by Dr. Tarnowski at the end of September, she walked with the aid of a cane which claimant continued to use until recently. Claimant was described as suffering a two inch shortening of her left leg as a permanent deformity, also, about 35° eversion of her left foot. Dr. Tarnowski explained that eversion means that the foot is turned outward. The present back pain suffered by claimant when walking was ascribed to the shortening of the left leg and the resultant strain on the muscles of the back causing sclerosis, a permanent development.

He added that in about 25% of the cases of like injuries to persons of claimant’s age a resorption of the head of the femur may result; a very serious complication.

The facts show from the testimony of Dr. Tarnowski that the claimant has suffered a 30% permanent complete loss of the use of her. left leg as a result of the accident and that the claimant’s weekly compensation is $19.50.

From the record, the claimant is entitled to receive compensation for total temporary incapacity from March 24, 1948 for a period of 27 weeks and two days, which would be in the amount of $532.08. She is also entitled to receive the additional sum of $1,111.50 for 30% permanent and complete loss of the use of her left leg as a result of said accident. From these amounts must be deducted the sum of $700.00 paid to claimant for unproductive time.

The amount of temporary total disability due and weekly payments on a specific loss of a leg to April 15, 1949 would be $1,078.08, deducting $700.00 from this amount would leave $378.08 due as of April 15, 1949.

An award is therefore entered in favor of the claimant in the amount of $943.58 payable as follows:

$378.08 which has accrued and is payable forthwith;
$565.50 payable in 29 weekly installments of $19.50 each.

Madolin M. Hackett, reporter, has rendered a statement for $25.00 for the reporting* and transcribing* of the notes.

An award is therefore entered in favor of Madolin M. Hackett, for reporting and transcribing the testimony-in this case in the amount of $25.00.

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


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    (No. 4126
    Maurice Hassell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    A. F. Allen, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, for Respondent.
   Lansden, J.

This claim is based upon Section 372a of Chapter 23 of Illinois Revised Statutes (1947) entitled “An Act concerning damages caused by escaped inmates of charitable institutions over which the State has control”, reading as follows:

372a. Claims for damages by inmates of charitable institutions.
Whenever a claim is filed with the Department of Public Welfare for payment of damages to property, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Welfare shall conduct an investigation to determine the cause, nature and extent of the damages inflicted and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have power to hear and determine such claims.

The above quoted statute and Section 8A of the Act creating the Court of Claims, Illinois Revised Statutes (1947), Chapter 37, Section 439.8, specifically confer jurisdiction upon this Court to determine the case herein involved.

The record in this case consists of complaint, departmental report, transcript of evidence, commissioner’s report, and stipulation waiving briefs of both parties, an examination of which discloses the following:

On the evening of June 17,1948, at about 11:00 P.M., Maurice Hassell, claimant, parked his Cadillac automobile in front of his home at 537 West Main Street, Batavia, Illinois. At that time the automobile was locked and in good running condition and mechanical condition, and contained approximately ten gallons of gasoline in its storage tank. Also, several items of personal property of the claimant were in the automobile including a bowling ball, bag and shoes, a man’s sport shirt, a pair of men’s street shoes, a new woman’s dress and a man’s business suit. During the night the automobile was stolen. The automobile was repossessed June 21, 1948, in Chicago. The items of personal property were missing. When found, the automobile was damaged and in very poor mechanical condition. The electric wiring was cut — apparently at the time of theft to start the car in view of the locked ignition system.

Two work uniforms and two pair of work gloves were found in the automobile when it was repossessed by claimant. The uniforms were traced by identification number to a certain cottage of the nearby Illinois State Training School for Boys at St. Charles, Illinois. The respondent admits that two inmates of this cottage escaped at 9:00 P.M. the evening of the theft of claimant’s automobile. The said inmates at the time of their escape were working in the power house of the institution. The gloves found in claimant’s automobile bore a heavy coating of coal and ash dust such as would be expected when worn on duty in and about the power house.

The total damages to claimant claimed as resulting from the above theft of his automobile include $10.00 payment for care of the automobile in the course of its reclamation; $2.00 for gasoline; $82.85 for automobile repairs and $140.50 for loss of the above described items of personal property. Mr. Hassell, a trucking company manager, made further claim for $20.00 for reimbursement for expenses caused by loss of use of his automobile during the four-day period and for sending one man to pick up the automobile.

The departmental report of respondent states in part as follows:

“The institution is of the opinion that the evidence known to itself as herein reported in the various sections of this report substantiates the representations of the claimant as true and as justly entitling claimant to the amount claimed in bill of particulars, after allowing all just credits.
“. . . The Cadillac automobile was inspected by Mr. W. S. Ford, and the damage to fenders, ignition and wiring noted. Motor was started in the presence of Mr. W. S. Ford and performance was noted to be very irregular and noisy.
“. . . The pertinent facts of the claim appear to be borne out by the facts known to the institution to be true; namely, the time of the reported runaway of the two named inmates, the finding and return of certain articles of clothing by the claimant in his car upon its return to him and which articles of clothing were unquestionably worn by the missing inmates, being clearly identified as belonging to Hayes Cottage, the cottage to which said inmates were assigned on the date of their escape. Furthermore, the records indicate no other missing inmates from Hayes on June 17th, 1948. The institution would therefore offer no objection to a favorable judgment on behalf of the complainant.”

The value of the items of personal property stolen was adequately proven, and the costs of parts and labor required to repair the automobile are fair and reasonable.

The record discloses compliance with the above quoted provisions of the special statute for this type of case, and in accordance with previous decisions of this Court, Carls vs. State, 15 C.C.R. 26, 29; Johnson vs. State, 15 C.C.R. 126, claimant-is entitled to be reimbursed for the items of damage claimed.

An award is therefore entered in favor of Maurice Hassell, claimant, in the sum of Two Hundred Fifty-five Dollars and Thirty-five Cents ($255.35).


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    (No. 4116
    Leo Vogt and William Fiste, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1949.

    Paul D. Perona, Attorney for Claimants.
    Hon. George F. Barrett, Attorney General, and Archie I. Bernstein, Assistant Attorney General, for Respondent.
   Schuman, C. J.

On the morning of May 2, 1948, Leo Vogt, claimant, of Princeton, Illinois, was driving his Plymouth automobile with claimant, William Fiste, as passenger. They were en route to attend a Sunday baseball game in Peoria, Illinois. They were proceeding in a southeasterly direction at about 15 miles per hour along a detour of Route No. 29 at Sparland. The road, narrow and winding, was of gravel and wet from a recent rain. They rounded a curve and suddenly came upon a wooden bridge of about ten foot width built at a sharp angle from their direction of travel. The testimony of claimant, Leo Vogt, Record Page 6, showed that he was trying* to slow his car and make the curve approaching the bridge at the same time and because of the wet condition of the road, his car skidded and went to the left-hand side of the bridge and the upright end of the guard rail caught under the high point of his left front fender; that Vogt attempted to release his car causing the guard rail to collapse and causing his car to nose into the ditch.

Respondent’s Exhibit 1 showed that winding road signs were placed along the detour and that a number of small one-way bridges were along said detour; that at the bridge in question two signs were placed showing “Slow” and “Narrow Bridge” on a single post and the other showing a maximum acceptable load limit of five tons. That red flags had been placed at both ends of the bridge in question to serve as warning signals.

The evidence clearly shows that the proximate cause of the accident was the skidding of claimant’s car, connected with his operation of the car in attempting to disengage it from the guard rail. That the condition of the bridge had nothing to do with the skidding* and all of the facts show that the State could not be liable for the injuries and damages sustained by the claimants.

The record is lacking in showing any negligence on the part of the State of Illinois which caused the accident, and therefore each of the claims filed by Leo Vogt and William Fiste is denied.


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    (No. 4143
    Ben Chew, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1949.

    R. W. Harris, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and C. A. Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant was an employee of the Department of Public Works, and Buildings, Division of Highways. He was 45 years of age, married and had no children under 16 years of age dependent upon him for support.

On July 23, 1948, at the Division’s garage 1.5 miles west of Carbondale, Jackson County, Illinois about three o’clock in the afternoon, Mr. Chew was walking across the garage floor to secure some rags to be used in cleaning greasy automotive parts. He stepped in a small pool of liquid floor cleaner, slipped and fell to the floor fracturing his left wrist. The Division had Mr. Chew taken to his family physician, Dr. William Gardiner, Herrin, Illinois immediately following the accident.

Mr. Chew lost time because of his injury from July 24 to July 27, 1948, inclusive, having returned to light work on July 28, 1948. He was paid full salary for the four days lost time in the amount of $30.58. He remained on the payroll of the Department of Public Works and Buildings on his regular salary until December 31, 1948.

The evidence further shows that the Division of Highways paid the bill of Dr. W. R. Gardiner in the amount of $61.00.

The doctor’s report, dated February 7, 1949, shows that Mr. Chew sustained a fracture of the distal end of radius of left arm. That the fracture is healed and that he had good functional use of the arm. That there was some enlargement of the wrist joint and pain in arm on extreme pronation and supination of the arm, and that he did not have full flexion of hand on lower arm, and that extension is normal.

Claimant testified on February 9, 1949 that he felt a numb pain below the elbow; that he was able to grasp and that he did not believe that there was any enlargement of the wrist compared to that of the right hand. The only evidence shown is that the left wrist is enlarged a quarter of an inch as shown by the measurements of the Commissioner.

There is no testimony in the record that the claimant had a permanent partial disability of the hand at the time of the hearing or any permanent partial disability of the left arm due to the accident in question.

There is no testimony that he is unable to do or perform any work. The record being devoid of testimony as to any permanent injury of the left arm at the time of the hearing, an award will have to be denied.

An award is made in favor of Mrs. Imogene Ward Steph, for stenographic services in the amount of $19.53, which is payable forthwith subject to the approval of the Governor.


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    (No. 4097
    Martin E. McNeela, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Leonard J. Rhue, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, by Archie Bernstein, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The complaint alleges that on May 11, 1948, claimant, Martin E. McNeela, of Chicago, Illinois, was injured by reason of an accident arising out of and in the course of his employment by the respondent while working for the Service. Recognition Board at 218 W. Monroe Street, Chicago, Illinois. Claimant, 19 years of age, a clerk typist, was employed at the rate of $1,900.00 a year. Claim is made for medical care and attendance, temporary total disability, partial disability, and for serious and permanent disfigurement to his head and scalp.

On the day of the accident, claimant and his supervisor, Richard William Bauch, entered the freight elevator, push-button self-operable type, situated at the rear of the offices on the second floor of the building at the above address. Several of the personnel from the other offices of the Service Recognition Board located on upper floors of the building were on the elevator. The time was approximately 3:15 o’clock in the afternoon. The elevator proceeded to the first floor. The elevator door consisted of two sections which opened by sliding np and down, instead of to the side. When the bottom half of the door lowered, the upper half simultaneously raised. Mr. McNeela and Mr. Bauch opened the elevator door. They apparently pushed the lower half of the door too hard. When it slammed the mechanism holding the upper half of the door released and the upper half of the door fell and struck both the claimant and Mr. Bauch, gashing the top of their heads. They were stunned as a result of the blow and bled from the scalp wounds so inflicted.

They received first aid and were immediately taken to the Henrotin Hospital, Chicago, Illinois, where their scalp wounds were treated. X-rays were taken of the claimant’s body, shoulders, back and head. He was then taken home in a taxi and remained there for about three weeks before returning to work. Mr. McNeela continued his employment with the Service Recognition Board until August 21, 1948. He then obtained his present employment in capacity as á welder’s helper for the Chicago Oiler Company. He now earns more money than he did when employed by the respondent, as aforesaid. The respondent paid all hospital, medical, and surgical expenses occasioned by the accident. He has not lost any time from employment since the accident; however, he complained of occasional headaches experienced since the accident. The scar resulting from the head wound is completely hidden by his hair and is practically unnoticeable when located upon inspection.

The respondent vigorously contested the claim on the ground that claimant was forbidden to use the freight elevators during break periods and except when authorized in the course of his duties. It was proved that, at the time of the accident occurring during the afternoon break period, claimant entered the freight elevator intending to proceed to the first floor and out the building rear entrance to a nearby coffee shop. There is much conflicting evidence in the record respecting the right of claimant to use the freight elevator at the time he was injured and respecting notices posted and warnings given him forbidding the use of the freight elevator during break periods and except in the course of employment.

In the case at hand, however, there is no need to consider the question of claimant’s right to compensation. Despite full opportunity afforded claimant to produce proof, the record is barren of any showing of compensable injury suffered by claimant.

The evidence showed that although given full opportunity, no medical testimony was submitted to sustain any showing of a compensable injury. In fact a letter was introduced by claimant’s attorney recommending a finding against claimant.

This is also true of the alleged claim for disfigurement as contemplated by the Workmen’s Compensation Act.

The evidence further shows that the alleged injury occurred during a break, or rest period. In using the elevator at such period, as shown by the evidence, claimant was not performing any act for his employer in the course of his employment. The risk assumed by claimant in the use of the elevator was not attendant upon his employment. In fact the instructions were not to use it during this period. The injury, if any, did not occur to the claimant while performing some act for his employer in the course of his employment or incidental to it.

The testimony on the hearing before Commissioner Young was taken and transcribed by A. M. Rothbart, who has submitted a statement for $89.50 for his services. This charge is reasonable and proper.

Claim of Martin E. McNeela is denied.

Award is made in favor of A. M. Rothbart for stenographic and reporting service in the amount of $89.50, 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.”


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    (No. 4098
    Richard W. Bauch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Leonard J. Rhue, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, by Archie Bernstein, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The complaint alleges that on May 11, 1948 claimant, Richard W. Bauch, of Chicago, Illinois, was injured by reason of an accident arising out of and in the course of his employment by the respondent while working for the Service Recognition Board at 218 W. Monroe Street, Chicago, Illinois. Claimant, 23 years of age, a clerk typist, was employed at the rate of $2,200.00 a year. Claim is made for medical care and attendance, temporary total disability, partial disability, and for serious and permanent disfigurement to his head and scalp.

On the day of the accident, claimant and another clerk typist, Martin E. McNeela, entered the freight elevator, push-button self-operable type, situated at the rear of the offices on the second floor of the building at the above address. Several of the personnel from the other offices of the Service Recognition Board located on upper floors of the building were on the elevator. The time was approximately 3:15 o’clock in the afternoon. The elevator proceeded to the first floor. The elevator door- consisted of two sections which opened by sliding up and down, instead of to the side. When the bottom half of the door lowered, the upper half simultaneously raised. Mr. Bauch and Mr. McNeela opened the elevator door. They apparently pushed the lower half of the door too hard. When it slammed the mechanism holding the upper half of the door released and the upper half of the door fell and struck both the claimant and Mr. McNeela, gashing the top of their heads. They were stunned as a result of the blow and bled from the scalp wounds so inflicted.

They received first aid and were immediately taken to the Henrotin Hospital, Chicago, Illinois, where their ' scalp wounds were treated. X-rays were taken of the claimant’s body, shoulders, back and head. He required about 17 stitches for the cut received on his head. He was then taken home in a taxi and remained there for about two weeks before returning to work. Mr. Bauch continued his employment with the Service Recognition Board until September 10, 1948. He then obtained his present employment in the United States post office. He now earns less money than he did when employed by the respondent, as aforesaid. The respondent paid all hospital, medical, and surgical expenses occasioned by the accident. He has not lost any time from employment since the accident; however, he complained of occasional headaches experienced since the accident. The scar resulting from the head wound is completely hidden by his hair and is practically unnoticeable when located upon inspection.

The respondent vigorously contested the claim on the ground that claimant was forbidden to use the freight elevators during break periods and except when authorized in the course of his duties. It was proved that, at the time of the accident occurring during the afternoon break period, claimant entered the freight elevator intending to proceed to the first floor and out the building rear entrance to a nearby coffee shop. The testimony disclosed he so proceeded to save time otherwise required by going to the front stairway or elevator and then around the outside of the building to the coffee shop. There is much conflicting evidence in the record respecting the right of claimant to use the freight elevator at the time he was injured and respecting notices posted and warnings given him forbidding the use of the freight elevator during break periods and except in the course of employment.

In the case at hand, however, there is no need to consider the question of claimant’s right to compensation. Despite full opportunity afforded claimant to produce proof, the record is barren of any showing of compensable injury suffered by claimant.

The evidence showed that although given full opportunity, no medical testimony was submitted to sustain any showing of a compensable injury. In fact a letter was introduced by claimant’s attorney recommending a finding against claimant.

This is also true of the alleged claim for disfigurement as contemplated by the Workmen’s Compensation Act.

The evidence further shows that the alleged injury occurred during a break, or rest period. In using the elevator at such period, as show nby the evidence, claimant was not performing any act for his employer in the course of his employment. The risk assumed by claimant in the use of the elevator was not attendant upon his employment. In fact the instructions were not to use it during this period. The injury, if any, did not occur to the claimant while performing some act for his employer in the course of his employment or incidental to it.

The testimony on the hearing before Commissioner Young was taken and transcribed by A. M. Rothbart, who has submitted a statement for $89.50 for his services. This charge is reasonable and proper.

Claim of Richard William Bauch is denied.

Award is made in favor of A. M. Rothbart for stenographic and reporting service in the amount of $89.50.

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. 4099
    Homer Adams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Kern and Pearce, Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, for Respondent.
   Delaney, J.

By the complaint, which was filed on June 28, 1948, claimant alleges, in substance, that he is the owner of the property described as Northwest Quarter of Section Twenty-two (22), Township Five (5) South, Range Nine (9) East of the Third Principal Meridian, White County, Illinois; that Illinois State Highway Route No. 14 runs east and west immediately adjoining said northwest quarter section on the north side thereof. That during the crops season of 1947 claimant had growing a crop of lespedeza on twenty-five acres of above described land in the northwest corner thereof, and immediately adjacent to the right-of-way of said State highway. That on October 6, 1947, while Division of Highways employees of the State of Illinois were making repairs on said State Highway Route No. 14 at the close of the working day, lighted flares were placed on the slope behind the gutter of the highway, in and near a heavy growth of dry vegetation. It was established by the testimony of the witnesses that a fire originated near one of the lighted flares, apparently carried by a high wind, progressed up the back slope of the right-of-way of said State highway and into the claimant’s field of lespedeza destroying approximately ten acres of claimant’s crop.

The Court is of the opinion that the respondent was negligent in the performance of its duty to the farming public by failing to place lighted flares in a safe place.

The claimant in Ms complaint and on direct and cross-examination has introduced different figures as to his damages sustained, but the Court is of the opirnon that the value of the growing crop was correctly set forth in the complaint.

In an action to recover for injury to growing crops, the measure of damages is the value of the crops at the time when destroyed with the right of the owner to mature and harvest them at the proper time. St. Louis Bridge Ry. Association vs. Schultz, 226 Ill. 409; and Zuidema vs. Sanitary District of Chicago, 223 Ill. App. 138.

An award is therefore entered in favor of the claimant, Homer Adams, in the amount of One Hundred Dollars ($100.00).


text:
    (No. 4109
    Illinois Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Graham and Graham, Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, for Bespondent.
   Delaney, J.

This is a claim by the claimant, Illinois Central Railroad Company, for demurrage on cars of coal and other commodities arising at the Lincoln State School and Colony, Lincoln, Illinois, during the months of May and June, 1947.

The evidence shows that during the months of May and June, 1947, the claimant delivered a number of cars on the siding to the respondent, the State School and Colony. The respondent, the State School and Colony, were notified by the claimant as each car was delivered, and the respondent in turn notified the claimant when the cars were unloaded.

The departmental report filed herein states, in Paragraph 10 of the report that the unloading of all coal and other freights at the Lincoln State School and Colony was handled by inmates and employees of the institution. Certain employees were prevented from operating machinery which was used in unloading coal by the union of which the employees were members. This jurisdictional dispute prevented the clearing of materials alongside of the tracks on the institution grounds and resulted in the delay in unloading the cars for which demurrage charges are now claimed.

The claimant contends that there was in force a contract called “An Average Agreement” between the Illinois Central Railroad Company and the Lincoln State School and Colony under which the demurrage is to be computed. A copy of the purported agreement dated August 26, 1937, signed by one A. E. Causey as acting-managing officer of the Lincoln State School and Colony was admitted in evidence by the Commissioner over the objections of the respondent. Said agreement stated that it was to continue until termination, by written notice from either party.

The claimant states in its brief that a letter was shown at the hearing before the Commissioner which was apparently a reply or answer to an inquiry previously made by the Attorney General, and that such letter was not introduced and is not a part of the record herein. The letter to which the claimant refers is the report of the Department of Public Welfare, dated December 29, 1948, signed by Cassius Poust, Director. Said report has been filed in this cause, and a copy thereof delivered to the counsel for claimant under Rule 16 of the Court of Claims.

The report of the Department of Public Welfare is prima facie evidence of the facts set forth therein by Rule 16 of the Court of Claims which provides:

“All records and files maintained in the regular course of business by any State department, commission, board or agency, of the respondent, and all departmental reports made by any officer thereof, relating to any matter or ease pending before the Court shall be prima facie evidence of the facts set forth therein; provided, a copy thereof shall have been first duly mailed or delivered by the Attorney General to the claimant or his attorney of record.”

This Court has heretofore held that one dealing with an officer or agent of the State is to ascertain the extent of authority of said officer or agent to bind the State. It is clear that the managing officer of a State charitable institution has no authority to enter such an agreement, and that the purported agreement herein is null and void and of no effect. The executive and administrative supervisor of State charitable institutions is in the Department of Public Welfare by express statutory provisions.

In the case of Illinois Central Railroad Company vs. State, 10 C.C.R. 493, the claimant sought an award for repairing a spur track which connected its railroad but which was owned by the State of Illinois and located on the grounds of the Kankakee State Hospital. The claimant had entered into a written agreement with the ground superintendent of the Kankakee State Hospital, and the repairs which required expenditures, both for labor and materials, had been completed. The Court held that the contract was invalid and that, therefore, the claim must be denied, and made the following statement:

“Counsel for claimant filed an able and persuasive reply brief but we are compelled to hold that whoever deals with a municipality does so with notice of the limitations on it or its agents’ powers. All are presumed to know the law, and those who contract with it or furnish it supplies do so with reference to the law, and, if they go beyond the limitations imposed, they do so at their peril. This may seem unjust to the claimant but the answer to that is:
That it is better that a private individual suffer as plaintiff must do in this case than have this Court let down the bars and permit statutory enactments for the benefit of the public at large to be ignored so that the unscrupulous may unfairly and unjustly obtain public moneys. We cannot recognize or put the stamp of approval on the actions of the State officials in entering into such an informal contract.”

The Constitution of the State of Illinois specifically precludes the payment of any claim against the State under any agreement or contract made without express authority of law. The purported agreement upon which this claim is based was made without express authority of law and therefore is barred by Section 4 of Article 19 of the Constitution of the State of Illinois of 1870 which provides as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreement or contracts shall be null and void; provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection'or repelling invasion.”

For the reasons assigned, this claim must be denied. Award denied.


text:
    (No. 4117
    Henry Varness, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Floyd L. Benson, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, by William Colohan, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Henry Varness, was employed on March 4, 1948 as a laborer by respondent in the Department of Public Works and Buildings of the Division of Highways. On that day, while throwing cinders on a pavement as he stood on a truck, claimant, 71 years of age, fell to the road. He was critically injured and was immediately taken to the office of Dr. E. J. Kabal, Sheridan, Illinois, and then rushed to the Horatio Woodward Hospital at Sandwich, Illinois.

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. Respondent furnished complete surgical, medical and hospital treatment. The only question is the extent of permanent disability suffered by claimant.

Dr. Kabal attended to the injuries of claimant. He testified he was familiar with claimant’s general health prior to the accident and that claimant was an active man engaged in manual labor possessing vigorous health for his age. Dr. Kabal stated that when he first examined Mr. Varness on account of the injuries in question he was hemorrhaging badly out of his right ear and nose and his condition was that of an emergency. He directed claimant to be immediately taken to the hospital and followed in his automobile. Upon arriving at the hospital Dr. Kabal described claimant’s condition as follows:

“As he was being lifted from the car I could hear the crepitous bones in his shoulder and back grinding. His pulse was irregular, he was in shock and actively bleeding as stated before from the right ear and nose, he was barely semi-conscious, trembled considerably, couldn’t talk at all, his eyes rolled considerably, and he would not respond to external stimulae or speech.”

The results of Dr. Kabul’s complete examination thereupon made at the hospital were related:

“Mr. Varness’ reflexes were inactive; he was in shock, and his behavior and symptoms already referred to were indicative of severe concussion of the brain and basilar skull fracture. No X-rays were taken as it was impossible to keep him quiet, but bleeding from the nose and ear is prima facie evidence of fracture of the skull. His blood pressure was very low being 70 systolic and 50 diastolic, and, his pulse was thready and intermittent. Compression fracture in the lumbar region of the spine, and fracture of the right transverse process of the third lumbar vertebrae were subsequently revealed by X-ray, but X-rays of the skull were unsatisfactory as even under medication he would not stay still. The injuries to the skull were later confirmed by Dr. E. W. Hagans, an ear specialist in Chicago.”

Claimant was in a semi-conscious state for about three weeks requiring the attention of special nursing care. He was finally discharged from the hospital on April 14, 1948. At the time of discharge while he had recovered from all fractures he was not able to sit up in a chair for more than a half hour period. He could not walk; tired easily; and suffered dizziness. However, it was determined that further hospitalization was of no advantage. Claimant was discharged from Dr. Kabal’s care on June 30, 1948. Dr. Kabal said there was no medical treatment of which he had knowledge that could rehabilitate claimant’s health. He described claimant as having lost his sense of balance tending to the right when walking; further, that Mr. Varness although using a cane cannot walk any distance without tiring to the degree that he begins to tremble. The claimant’s hearing has been so acutely affected by the accident that it is impossible to get in touch with him by speech. Dr. Hagana in a report of the Division of Highways reported the loss on the right ear of 80.7 percent of hearing and on the left ear 100 percent of hearing. Dr. Kabal testified that the claimant as a result of the accident, has no capacity for gainful employment, and is beyond reasonable doubt completely, totally, and permanently disabled for work or employment.

Stipulation between the parties showed that the claimant during the year preceding the accident earned approximately $1,400.00, being at a wage rate of the labor maintenance man at 90 cents per hour on an eight hour day working 200'days per year; that the claimant at the time of said injury was 71 years of age and had no children under 16 years of age.

That all hospital expenses, medical expenses and other expenses have been paid by the respondent and there are no further claims made for such expenses.

Prom the undisputed medical testimony and the other testimony in the record it is shown that the claimant is permanently disabled and has not been able, and is not able to do any work of any kind.

We conclude, therefore, that after a careful consideration of the record, that the claimant is entitled to an award for permanent total disability. We therefore make the following findings:

The claimant and the respondent were on the 4th day of March, 1948, operating under the provisions of the Workmen’s Compensation Act; that on the date last mentioned above, said claimant sustained accidental injuries ; and that said accidental injuries arose out of and in the course of his employment; that notice of said accident was given said respondent and claim for compensation on account thereof was made on said respondent within the time required under the provisions of said Act.

That the earnings of the claimant during the year next preceding the injuries were approximately $1,400.00.

That the claimant at the time of his injuries was 71 years of age and had no children under 16 years of age dependent upon him for support.

That all medical and hospital expenses and other expenses have been paid by the respondent, and that there are no further claims made for such expenses.

The claimant is therefore entitled to an award of $5,200.00, less the sum of $303.48, which sum was paid to the claimant for temporary total disability, or a total award of $4,896.52 payable as follows:

$1,171.16 which has accrued from March 5, 1948 to June 17, 1949, from which is deducted the sum of $303.48, making a sum of $867.68, which is payable forthwith;
$4,028.84 to be paid in weekly installments of $17.48 beginning June 24, 1949 for a period of 230 weeks with a final payment of $8.44; thereafter a pension for life in the sum of $416.00 annually, payable in monthly installments of $34.66.

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. 4132
    Charles L. Leonard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1949.

    Neil H. Thompson, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and C. A. Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Charles L. Leonard, was employed by the State of Illinois, Department of Conservation, .at the Game Farm at Mt. Vernon, Illinois on April 23, 1948. On June 24, 1948, claimant received an injury to his left hand while performing the duties assigned to him at the State Game Farm.

The claimant and another employee were engaged in clipping wings of pheasants. The pheasants were chased from their pens into a small catching box from which they were removed in order to clip their wings. As the claimant reached to catch a bird his fellow employee also grabbed for the same bird and stuck claimant in the left hand with a pair of scissors, which he was holding.

Subsequent to his injury, claimant’s left hand became infected and he was treated by Dr. Jean Modert of the Modert Clinic at Mt. Vernon, Illinois. Due to the infection of his left hand, the claimant sustained a partial loss to his first, second, third and fourth fingers of the left hand. That as a result of the disability he was temporarily totally disabled from work until August 23, 1948.

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 employment.

The only question to be determined is the extent of the permanent partial loss of the use of the fingers in question together with the medical and hospital services furnished.

The evidence shows that the claimant sustained medical expenses in the amount of $100.00 which is due Dr. A. W. Modert as a result of said injuries, and also a hospital bill in the sum of $257.85 due to the Jefferson Memorial Hospital in Mt. Vernon, Illinois as a result of said injury, and the evidence shows that said bills are reasonable and unpaid.

There is nothing in the record to indicate the salary or the earnings of the claimant for the year preceding his injury, but there is no question that he would be entitled to the rate of $19.50 per week.

The evidence, and particularly respondent’s medical witness, clearly establishes that the claimant has sustained a permanent partial specific loss of the first, second and third fingers to the extent of 85% and a permanent, partial specific loss of use of the fourth finger of the left hand to the extent of 50%.

On the basis of this record, we make the following award:

For the permanent, partial specific loss of the nse of the first fing-er of the left hand, claimant is entitled to an award of $663.00 computed at the rate of $19.50 for 34 weeks, or 85% loss of use of the first finger.

For the permanent, partial specific loss of the use of the second finger of the left hand, claimant is entitled to an award of $580.13, being the weekly rate for a period of 29.75 weeks, or 85% of loss of use of the second finger.

For the permanent, partial specific loss of the use of the third finger of the left hand, claimant is entitled to an award of $414.38 for a period of 21.25 weeks at $19.50, or 85% loss of use of the third finger of the left hand.

For the permanent, partial specific loss of the use of the fourth finger of the left hand, claimant is entitled to an award of $195.00 being the weekly rate for a period of 10 weeks at $19.50, or 50% loss of use of said fourth finger, making a total award of $1,852.51. The evidence shows that during the period of temporary total disability the claimant was paid the sum of $350.00 or his full salary. From the total award should be deducted the sum of $185.64, representing' an overpayment of money paid by respondent to claimant for temporary total compensation, leaving a balance of $1,666.87 for which an award is hereby entered in favor of claimant. Of this amount the sum of $808.86 has accrued as of June 17th, 1949 and is payable forthwith. The balance of said award amounting to $858.01 is to be paid in weekly installments of $19.50 for a period of 44 weeks commencing on June 24, 1949 with one final payment of $0.01.

An award is also entered in favor of Dr. A. W. Modert, for medical services in the sum of $100.00 which is payable forthwith.

An award is also entered in favor of the Jefferson Memorial Hospital in Mt. Vernon, Illinois in the amount of $257.87 for hospitalization, which is payable forthwith.

An award is also entered in favor of Gladys Berg, for stenographic services in the amount of $15.60, which is payable forthwith. The Court finds that the amount charged is a fair and reasonable charge 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.”


text:
    (No. 4119
    Esther Applebaum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1949.

    McFarland, Morgan & Stearns, Attorneys for •Claimant.
    Ivan A. Elliott, Attorney General; William J. •Colohan, Assistant Attorney General, for Respondent.
   Lansden, J.

Esther Applebaum, claimant, filed her complaint on September 13, 1948, seeking an award of $2,500.00 for personal injuries sustained on September 14, 1946. It is alleged that claimant, while attempting to cross from the north to the south side of West Roosevelt Road, Chicago, Illinois, in front of number 729, was struck and injured by a jeep belonging to Company “F”, Eighth Infantry, Illinois Reserve Militia, in consequence of the negligent operation of said vehicle by James Franklin, Jr., a sergeant of the aforesaid unit of the State Reserve Militia.

Sergeant Franklin was served with a subpoena and called as a witness by claimant. He testified that he was travelling in an easterly direction upon Roosevelt Road on September 14, 1946, between the hours of 12 noon and 2:00 P. M. He was proceeding about twenty miles an hour. The accident occurred on Roosevelt Road between Union and Halsted. Union Street is a “T” intersection south from Roosevelt and ends on the north. Roosevelt Road is about thirty-five feet wide. Traffic was heavy; cars were lined up on both sides and the west bound traffic was blocked. As he reached a point alongside the safety island, a woman, whom he identified as claimant, ran into the left side of his jeep near the driver’s seat. He first saw her when she came out from between the cars and ran at a “trot” across the street just as the front end of the jeep passed her. ,

At the time she was struck he was travelling in high gear at about twenty miles per hour. He came to a stop and went into a store to phone for assistance. Bugle Sergeant Elmer Johnson of Company B, 8th Illinois Reserve Militia, was a passenger in his jeep. Claimant was taken from the scene of the accident to a hospital. He knew that large numbers of pedestrians customarily cross the street at the place of the accident because there is no other place for pedestrians to cross. There were no stop signs at that point.

On cross-examination Sgt. Franklin stated that he was returning to the 8th Reg. Armory after having been instructed to inquire about some pies which had been ordered by the Regiment to be taken on a camping trip. Claimant stepped from the north side of the street which was to the left of the jeep, from between a line of stationary cars lined np all the way to the point of the accident.

Claimant testified'that she had left the store in which she was employed at 669 West Roosevelt Road, on the southeast corner of Roosevelt and Union. She then went across the street to a cafeteria on the north side of the street. She walked east to a point opposite the west end of a safety island on the opposite side of the street. She looked eastward and then proceeded to cross until she reached the west hound street car tracks. The last tiling she remembered was looking east for her ‘ ‘ safety. ’ ’ She was struck at a point slightly north of the north rail of the east bound street car tracks. She was knocked unconscious and did not regain consciousness until 7:30 that evening at the Garfield Park Hospital. She stayed there ten days and was removed to Michael Reese Hospital and remained there about six weeks. At the time of the accident she was treated by Dr. Rosen and was still under the care of Dr. Philip Lewin at the time of the hearing. “All” her ribs were broken and she had a concussion. She still experiences pain in her side. Her doctor’s bills were about $900.00, and her hospital and nursing expense about $700.00 or $800.00.

No departmental report was filed.

This complaint invokes Sec. 8 (c) of the Court of Claims Law which vests this Court with jurisdiction to determine claims against the State for damages in cases sounding in tort. It is, of course, essential to a recovery under this provision of the statute that claimant establish by a preponderance of the evidence that she was in the exercise of due care for her own safety and that the State, by and through its officers, agents and employees is guilty of negligence which proximately caused claimant’s injuries. This she has failed to do.

The proof in this case is meagre, vague and insufficient. It is not possible for this Court to gather the facts, and circumstances surrounding the occurrence in question from this record sufficiently to say with any degree-of certainty who, if any one, was at fault. The inferences, if any, that may be drawn from this sketchy proof favor respondent rather than claimant. The greater weight of the testimony appears to show that claimant stepped out from between two parked cars; that she-looked only "in one direction, easterly and did not look in any other direction until she struck the left front side of the jeep which was travelling from a westerly direction. This would warrant a finding that claimant was guilty of contributory negligence and that her injuries resulted from her failure to exercise reasonable-care for her own safety rather than the negligence of Sgt. Johnson. Any conclusion to the contrary would be-based on conjecture.

The Court is of the opinion that if claimant had looked she would have seen the approaching jeep and that she cannot now be heard to say that she looked and did not see, when if she had looked she would have seen. Claimant’s conduct from the record shows an absence of due care and caution for her own safety, and an award must therefore be and the same is hereby denied.


author: Lawsden, J.

text:
    (No. 4144
    Mary L. Scheuer, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1949.

    Francis T. Dunoan and Charles W. Helmig, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Lawsden, J.

Claimant, Mary L. Scheuer, is the widow of Theodore Scheuer, deceased, who was formerly employed hy the Department of Public Works and Buildings, Division of Highways, of the State of Illinois. Claimant, as widow, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

There is no dispute whatsoever as to the facts involved in this case. A stipulation of the respective parties, proof offered on behalf of claimant, and the departmental report filed herein present with corroboration and without contradiction all of the facts required for the determination of this case.

On the morning of September 30, 1948, decedent and his supervisor, John Kellerman, who was driving, was transporting a truckload of stone chips, to be used in road maintenance work, proceeding west on U. S. Highway No. 6 from Ottawa, Illinois, en route to Utica, Illinois. Approximately two miles west of Ottawa they noticed two pieces of old furnace pipe lying on the bridge and Mr. Kellerman stopped the truck in the westbound traffic lane to allow decedent to.remove this traffic hazard. Decedent alighted from the truck, stepped around behind the truck and then stepped into the eastbound traffic lane, where he was immediately struck by an automobile owned and driven by Mr. Robert Manahan of Cherry, Illinois. Decedent’s injuries included fractures to both legs, brain injury, fracture of the skull, and multiple-contusions over Ms entire body.

Decedent was immediately taken to Byburn Memorial Hospital at Ottawa and was given medical treatment by two doctors, but decedent died about four hours after being injured.

It is conceded that at the time of the accident, decedent and respondent were operating under the Workmen’s Compensation Act, and notice of the accident,, claim for compensation and application therefor were-all given or made within the time provided by said Act. It is also conceded that the accident arose out of and in the course of decedent’s employment. An award is, therefore, indicated.

The earnings of decedent, exclusive of overtime, in. the year preceding Ms death totalled $1,705.50. He was. a man approximately seventy-two years of age at the time-of the accident and his death, and he had no children, under the age of sixteen years, and was survived by his-wife, the claimant herein, who lived with and was dependent upon him for support.

All medical, hospital and nursing services resulting-from the fatal injuries to Theodore Scheuer have been paid by respondent.

Claimant introduced in evidence, without objection, a funeral bill amounting to $425.00 apparently on the theory that respondent should be made to pay some part or all thereof. Section 7(e) of the Workmen’s Compensation Act relating in part to burial expenses is inoperative so long as an employee dies leaving dependents. In this case there can be no award for funeral expenses even up to the prescribed maximum of $150.00.

Generóse Schweickert, 1801% Fourth Street, Peru, Illinois, was employed to take and transcribe the evideuce before Commissioner Yonng. Charges in the amount of $30.00 were incurred for such services, which charges are fair, reasonable and customary.

An award is entered in favor of Generóse Schweickert in the amount of $30.00, payable forthwith.

An award is entered in favor of Mary L. Scheuer, widow of Theodore Scheuer, deceased, in the amount of $5,200.00, to be paid to her as follows:

$ 780.00, which has accrued and is payable forthwith;
4,420.00, which is payable in weekly installments of $19.50 per week, beginning on the 15th day of July, 1949, for a period of 226 weeks, with an additional final payment of $13.00.

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

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


text:
    (No. 4153
    Eli Aeschleman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1949.

    Harold A. Butters, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Eli Aeschleman, seeks to recover under the provisions of the Workmen’s Compensation Act for the loss of his right thumb as a result of an accident arising out of and in the course of his employment in the Department of Public Works and Buildings, Division of Parks and Memorials.

On May 14, 1948, claimant, employed by respondent as a maintenance man, was mowing, the lawn at Buffalo Bock State Park, LaSalle County, Illinois. Upon his return from lunch, he cranked the motor' of the power lawnmower he was using in the course of his regular duties, and to avoid flooding the carburetor of the engine, rushed around the machine to make the proper adjustment. In his haste, claimant’s thumb accidentally came in contact with the revolving motor fan blades and his thumb was traumatically severed resulting in the loss of the first distal phalange and approximately three-fourths of the next proximal phalange.

Immediate notice of the accident was given, and respondent has furnished and paid all of the medical and hospital expenses resulting from claimant’s injury.

No question has been raised by respondent as to the compliance by claimant with all the jurisdictional requirements of the Workmen’s Compensation Act, and from the record in this case all such requirements have apparently been complied with.

At the time of the accident, claimant was sixty-five years of age, and had no children under the age of sixteen years, and the earnings of claimant during the year immediately preceding his injury amounted to $2,536.00.

Claimant in his complaint erroneously set forth the sections of the Workmen’s Compensation Act under which he deemed himself entitled to an award, but Commissioner Young has recommended to the Court that this apparent oversight on the part of claimant be disregarded. Furthermore, claimant in his brief filed herein, has referred to the correct sections of the Workmen’s. Compensation Act. Therefore, this Court feels that to. rest on such a technicality would not be in keeping with the liberalities allowed litigants in modern practice.

The liability for injuries to fingers has been but little passed upon by the courts in Illinois. In McMorran & Co. v. Ind. Com., 290 Ill. 569, it was held that the loss of one-sixteenth of an inch off the end of the bone is not a loss of the first phalange. This Court in Sieloff v. State, 9 C.C.R. 494, held that a loss of three-sixteenths of an inch of the first phalange was not the loss of such phalange. However, in Macon County Coal Co. v. Ind. Com., 367 Ill. 458, the court held that the loss of three-eighths, of an inch of the first phalange was the loss of such phalange. In Angerstein, “The Employer and The Workmen’s Compensation Act of Illinois” Section 304, the-writer expresses the view that the loss of more than a third of the phalange would be considered the loss of such phalange. See also 18 A.L.R. 1354-1358.

In view of the above authorities, we hold that claimant has lost his entire thumb and that his injury is specifically covered by Section 8 (e) (1) (7) of the Workmen’s Compensation Act which directs that a loss of' more than one phalange be considered as the loss of an entire thumb. An award in favor of claimant is therefore manifest.

Margaret Mohler, Ottawa, Illinois, was employed to take and transcribe the evidence before Commissioner-Young. Charges in the amount of $10.00 were incurred for such services, and the same is fair, reasonable and customary.

An award is entered in favor of Margaret Mohler in the amount of $10.00, payable forthwith.

An award is entered in favor of claimant, Eli Aeschleman, in the amount of $1,365.00, being at the rate of $19.50 per week for seventy weeks, to be paid to him as follows:

$1,170.00, which has accrued and is payable forthwith;
195.00, which is payable in weekly installments of $19.50 a week, beginning on the 15th day of July, 1949, for a period of 10 weeks.

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


text:
    (No. 4163
    Ed Witt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1949.

    Ed Witt, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Ed Witt, filed complaint pro se. Claimant, Ed Witt, was employed by the State of Illinois, Department of Public Works and Buildings, Division of Highways, on April 6, 1942 as a common laborer.

On October 20, 1948, the claimant was engaged in mowing vegetation with a power driven mower on S.B.I. Route 4 in Champaign County. While engaged in said work, the mower bar struck an obstruction and caused the mower bar to fold back toward the machine. Claimant attempted to pull the bar into place, the sickle moved, catching and severing his right index finger one-quarter inch distal to the knuckle joint.

Claimant was taken to Dr. H. C. Bowser in Sidney, who sent him to the Burnham City Hospital in Champaign. The finger was amputated at the knuckle joint. The claimant lost the middle and terminal phalanges of right index finger.

The Division of Highways report and the complaint filed by the claimant show that the Division of Highways had immediate notice of the accident and that the claim was filed in conformity with and in time under the terms and provisions of the Workmen’s Compensation Act.

The evidence shows that at the time of the accident, the claimant was receiving $180.00 a month, and while it is not shown that these were actual earnings for a year immediately preceding the accident, it is presumed that such is the fact.

Prom the evidence, the claimant would be entitled to temporary total disability from October 21, 1948 to November 18, 1948. However, not more than 30 days having been lost as a result of said injury, his compensation would not start until after the 8th day from said injury, which would be on October 28, 1948. Claimant would therefore be entitled to compensation for 13 days or 1 6/7 weeks for temporary disability or an amount of $36.21.

After having lost two phalanges from the right in-' dex finger, he would be entitled to a loss of a whole finger which is 40 weeks at $19.50 or a total amount of $780.00.

An award is therefore entered in the amount of $816.21. The evidence shows that during the period of temporary disability, the claimant was paid the sum of $117.88, or his full salary. From-the total award should be. deducted the sum of $117.88, representing an overpayment of money paid by respondent to claimant for temporary total compensation, leaving a balance of $698.33 for which an award is hereby entered in favor of claimant. All of this amount has accrued and is payable forthwith.

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


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    (No. 4092
    Henry G. Ward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    William G. Juergens, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This claim is brought under Section 3 of the Workmen’s Occupational Diseases Act by the above named claimant, for damages sustained as a result of contracting tuberculosis during the course of his employment by the above named respondent.

The evidence discloses that he was employed at the Illinois Security Hospital at Chester, Illinois; that he was assigned to occupational therapy room, and in the course of his employment he was an instructor of the inmates in crafts of various kinds. This work included assignments at different times in the mending room where the inmates were engaged in renovating moss used in mattresses. This moss had been used in other mattresses and was cleaned by spreading it on the ground and spraying it with a hose, and after this spraying it was re-used. Some of the patients under Mr. Ward’s supervision were later found to have been suffering from tuberculosis, of an infectuous nature. In the cleaning or renovating of this moss, large amounts of dust and lint filled the room. The evidence shows that the claimant worked in this institution from October 18, 1941, to October 5, 1947, at which time he resigned. That subsequently, on January 6, 1948, he was reinstated and assigned to work at the Elgin State Hospital where he reported for work on January 14, 1948, and upon examination and after X-ray pictures were taken, he was advised that he was suffering from active pulmonary tuberculosis, and because of this condition was not permitted to work. The evidence shows that prior to claimant being employed in the Illinois Security Hospital at Chester, Illinois, lie was not suffering from tuberculosis nor was any member,of Ms family. That subsequent to being refused employment be was ordered confined to bed for a period of approximately seven months until August 1, 1948, when against bis doctor’s orders be obtained employment as a temporary clerk on a draft board, wbicb employment ceased October 15,1948.

Dr. E. Ealpb May, tbe physician at tbe Illinois Security Hospital, and 'also tbe claimant’s physician, testified that be bad taken four men out of Mr. Ward’s department who were suffering from tuberculosis. Dr. May further testified as follows:

Q. “Doctor, was he exposed to active tubercular patients?
A. “He was, four of them.
Q. “State whether or not, in your opinion, there was a direct causal connection between the occupation that Ward was engaged in at the Illinois Security Hospital, whereby he came in contact with and had to supervise active tubercular patients in the occupational therapy room where dust and lint was being scattered about, and the subsequent condition he is in, which is active pulmonary tuberculosis.
A. “Yes. The quarters those men were in was a pre-disposing cause. The direct cause was the fact that we took four active tubercular patients out of there.
Q. "Tell me- whether or not in your opinion the tuberculosis from which Henry Ward is now suffering had its origin in his employment considering the fact that he was confined with and locked in the room with active tubercular patients, where dust and lint was constantly flying?
A. “I would say so, because in 1941 he was accepted for the employment for the State, his physical record was negative; in 1942 it was negative; in 1945 it was positive and is still positive.
Q. “Doctor, tell whether or not, in your opinion, the disease is traceable to- the hazards of the employment with the State of Illinois in the Illinois Security Hospital in the physical therapy room in a room where he was confined with active tubercular patients?
A. “Yes.”

The Health and Safety Act (Illinois Revised Statutes, 1947, Chapter 48, Paragraph 137.3) makes it the duty of every employer to provide reasonable protection for the lives, health and safety of all persons employed, to effectuate its purpose. In Wheeler vs. State, 12 C.C.R. 254, we held that the State of Illinois may properly be made respondent in the Court of Claims in any action for damages for injury to health resulting from a disease contracted by a State employee in the course of his employment, and proximately caused by the State’s negligence, under the terms and provisions of the Workmen’s Occupational Diseases Act. The State not having elected to 'provide and pay compensation under Section 4 of the Workmen’s Occupational Diseases Act, the employee has a right of action under Section 3 of the Act. That section provides that violation by an employer of any Statute of this State, intended for the protection of the health of employees, shall constitute negligence of the employer within the meaning of the Section.

The Rules adopted by the Department were intended to promote the health of the claimant and to prevent the spreading of contagious or infectuous diseases, including open tuberculosis, and should have been followed by the officials in charge of the institution, not only for the benefit of its employees such as claimant, but also for the unfortunate inmates of the ward.

Respondent was negligent under Section 3 of the Workmen’s Occupational Diseases-Act and, therefore, an award for damages is justified.

While the claimant was employed, he received a salary of $2,640.00 per year. He is suffering now from chronic pulmonary tuberculosis, bilateral, more marked on the right lung. He does not seem to be improving and will have to remain confined to a bed until his tuberculosis condition becomes arrested. The length of time required is uncertain. The Court is of the opinion that claimant is entitled to damages under Section 3 of the Workmen’s Occupational Diseases Act in the sum of $2,500.00.

An award is, therefore,' entered accordingly.

Lucille McGuire, Court Reporter, was employed to take and transcribe the evidence in this case and has rendered a statement for service in the amount of $10.20. The Court finds that the amount charged is fair, reasonable. and customary in the community where it was rendered and said claim is allowed and payable forthwith.


author: SCHUMAN, C. J.

text:
    (No. 4139
    George W. Lawson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    J. Clinton Seakle, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumptee, Assistant Attorney General, for Respondent^
   SCHUMAN, C. J.

The stipulation of facts disclose that claimant, George W. Lawson, at the time of his alleged claim on May 25, 1948, was 51 years of age and had two minor children under the age of 16 years; that he was employed by the State of Illinois since April 1, 1941 and that his earnings the year immediate to May 25, 1948 were $2,-413.32; that he was paid full salary of $203 per month until June 22, 1948, inclusive, and compensation at the rate of $20.80 a week from June 23,1.948 until September 14, 1948, inclusive; that during his second period of disability he was paid full salary beginning November 16, 1948 through November 25, 1948, and compensation of $20.80 November 30th, 1948; and total payments received by claimant for wages and compensation were $520.29.

That respondent had due notice of the accident, claim for compensation was made and filed within the time required by law.

The facts further disclose that claimant was a Highway Section Foreman employed by the Department of Public Works and Buildings, Division of Highways; that on May 25, 1948 he was operating a motor grader, a mile and a half north of Viola, Illinois, on Route 67; that he started to operate it at 11 A. M. until noon, that gas fumes emanating from the grader blew in his face; that at 1:00 P. M. a bulldozer was hooked in front of the grader to give the grader more power and to prevent it from tipping over; that grader was operated on a slope at a 45° angle and claimant inhaled gas fumes about 2V2 hours; that the bulldozer hit a fence and threw claimant violently against the interior of the cab of the grader; that claimant hit his shoulder, back and head against the cab; that claimant got up and took hold of steering wheel and became dizzy and was sick; that he tried several times to again operate the grader, but could not and was ordered taken home at 4 o ’clock in the afternoon.

That when claimant got home, Dr. James Y. Hastings was called and claimant was kept in bed until June 30th; that electrocardiographs were taken on May 27th, 1948 at the Lutheran Hospital in Moline, and these showed acute coronary insufficiency with myocardial infraction posterior type moderately recent; that when Dr. Hastings examined claimant on May 25, 1948 his general symptoms suggested a coronary attack; that four cardiographs were taken and substantiated Dr. Hastings’ examination and showed coronary thrombosis and that his condition will restrict his physical actions permanently; that claimant has an impaired circulation of the heart muscle and that the condition is permanent; that the condition was caused by the facts showed in evidence with reference to his work on May 25th, 1948, being over exertion and inhaling of gas fumes; and that claimant was totally and, permanently disabled from pursuing gainful employment.

The facts show claimant was engaged in work he was not doing everyday and placed additional exertion and brought on the attack.

The facts further show claimant had never suffered from a heart attack before, and before going to work for the State passed a physical examination; that after the attack he tried to resume his supervisory work, but could not perform said work; that he had a common grade school education, going to work at the age of 14 and had no training of any kind, but for hard labor; and that he tried to get work, but was not able; and had always worked and was never out of a job until the attack on May 25, 1948.

Prom the undisputed facts in this record, the claimant received a coronary attack that arose out of and in the course of his employment and that he is totally and permanently disabled from pursuing any gainful occupation.

In the opinion of the court this case falls within the holding of the Supreme Court of Illinois in the cases of Fittro vs. Industrial Commission, 377 Ill. 532, and Joliet vs. Industrial Commission, 291 Ill. 555.

That all medical and hospital expenses have been paid by the respondent and there are no further claims made for said expenses.

The testimony on hearing before Commissioner Young was transcribed by Laura Campbell, who has submitted a statement of $25.00 for her services. This charge is reasonable and proper.

The claimant is therefore entitled to an award of $6,240.00, less the sum of $145.89 paid claimant for nonproductive time, or the sum of $6,094.11.

An award is therefore entered in favor of the claimant, George W. Lawson, in the amount of $6,094.11, payable as follows:

$ 727.71, being 42 weeks at $20.80 per week, less overpayment of $145.89 for non-productive time, which has accrued and is payable forthwith;
$5,366.40, to be paid in weekly installments of $20.80 per week, beginning September 28, 1949 for a period of 258 weeks; And, thereafter a pension for life in the sum of $499.20 annually, payable in monthly installments of $41.60.

Future payments being subject to the terms and provisions of the Workmen’s Compensation Act of Illinois, the jurisdiction of this cause is specifically reserved for the entry of such other further orders as from time to time may 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. 4145
    Hannah Greenwald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    Henry J. Samuel, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Hannah Greenwald, was employed on April 26, 1948, in the capacity of a claim taker by respondent in the Department of Labor, Division of Tin-employment Compensation. On that day, claimant slipped on a waxed floor at her place of employment in Chicago; claimant sustained a sprained right wrist and injury to her knee.

The record consists of the complaint, departmental report, stipulation, waiver of brief of claimant, and waiver of brief of respondent. -

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. ■

Claimant paid the South Chicago Community Hospital $5.00 for X-rays, $160.00 to Dr. Jacob Samuel for professional services, and $3.50 for medicines. She was temporarily and totally disabled from April 26, 1948, to June 7,1948. The respondent has not reimbursed her for her medical expenses nor has it paid any compensation for the temporary period of her total disability.

Records show that claimant’s salary was $160.00 per month. She was 53 years of age and had no children under 16 years.

We conclude, therefore, that the claimant is entitled to an award for her medical and doctor hills in the amount of $168.50, and also an award of $117.00 for 6 weeks temporary total disability. The injury having occurred after July 1, 1947, this must be increased 30% making her compensation rate the maximum of $19.50 per week, all of which has accrued, payable forthwith.

The testimony on the hearing before Commissioner Blumenthal was taken by A. M. Rothbart, who has submitted a statement for $11.10 for his services. This charge is reasonable and proper.

An award is made in favor of A. M. Rothbart for stenographic and reporting services in the amount of $11.10, 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 awards to State employees.”


author: ScHUMAN, C. J.

text:
    (No. 4147
    William F. Gibbs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

    William F. Gibbs, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

The facts show that on June 25th, 1948, William Gibbs was driving his 1948 Buick Automobile west on TJ. S. Route 36, a short distance from the Village of Cur-ran in Sangamon County, Illinois; that it was around 5:30 in the afternoon and daylight; that claimant was driving 35 miles per hour.

The sworn complaint alleges that two. cars had stopped at the barricade and that a torrential rain was falling rendering visibility very poor.

The departmental report showed that barricades were placed east of the excavation in question; that east of the barricade pavement alignment was straight a distance of 1172 feet and then follows a 6° degree curve to the left for a distance of 440.3 feet.

The undisputed evidence shows that a torrential rain was falling-, and visibility was poor; that two cars had stopped at the barricade to wait for oncoming traffic and that claimant struck the last stopped car; that claimant came upon the Cadillac immediately after rounding the curve.

Claimant testified the Cadillac stopped suddenly. However, the record shows a straight highway for a distance of 1172 feet.

In order for claimant to recover he must prove three distinct elements, namely:

(1) that claimant was in the exercise of due care and caution for the safety of his automobile;

(2) that the State of Illinois was negligent as charged in the complaint; and that the negligence of the State of Illinois was the proximate cause of the injury and damages to the automobile of claimant;

(3) that claimant sustained damages.

The claimant alleges there were no warning signs east of the barricade, or if signs were in place, they were so located as to be valueless.

The only evidence in the record as to signs is that barricades were placed east of first excavation. It is apparent that under normal circumstances this would have been sufficient. Claimant was driving in a torrential rain with visibility poor and it is apparent the lack of signs was not the proximate cause of the accident. Two cars had stopped at the barricade. There was 1172 feet of clear road after rounding curve, and it is apparent due to poor visibility claimant did not see the stopped Cadillac due to said visibility.

The claimant having failed to prove any negligence on the part of the State of Illinois that was the proximate ■cause of the accident his claim will be denied.