text:
    (No. 3884
    Thomas Norton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Bay I. Klingbiel, for claimant.
    George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on October 10, 1944. It alleges that on the 2nd day of July, 1941, the claimant, Thomas Norton, was employed as an attendant at the East Moline State Hospital in charge of a painter’s detail, and while working on a window located in the women’s infirmary and while standing on a ladder at a height of about fifteen feet, the ladder broke, causing claimant to fall to the ground, striking his right foot and right heel; that as a result of said fall, the claimant received a second degree laceration of the metatarsal aspect of the foot and heel. An x-ray of the ankle and foot revealed a comminuted fracture of the oscalcis.

The complaint also alleges that all medical, surgical, hospital, etc., in connection with this injury has been furnished by the State, with the exception of railroad fare paid by this claimant in going to and from Chicago.

He seeks an award under the Workmen’s Compensation Act for twenty-five per cent functional disability to bis right foot.

The Attorney General files a motion to dismiss the complaint on the ground that it was not filed within one year after the date of the accident, in accordance with provisions of Section 24 of the Workmen’s Compensation Act. It. has been repeatedly held by this Court that the making of claim for compensation and filing application therefor within the time fixed by Section 24 of the Workmen’s Compensation Act is a condition precedent, without which the Court of Claims- is without jurisdiction to enter an award. Boismenue vs. State, 12 C. C. R. 36; Koleita vs. State, 12 C. C. R. 217; Scott vs. State, 13 C. C. R. 163; City of Rochelle vs. Industrial Commission, 332 Ill. 386; Inland Rubber Co. vs. Industrial Commission, 309 Ill. 43; Simpson vs. State, 10 C. C. R. 394; Baker vs. State, 10 C. C. R. Ill.

This Court has recently held that Section 24 of the Act provides that the right to file application for compensation shall be barred unless such application is filed within one year after the date of accident where no compensation has been paid, or within one year after the date of the last payment of compensation wherein any has been paid. Scott vs. State, supra.

The complaint shows on its face that the accident occurred on the 2nd day of July, 1941, and that no compensation was paid to claimant subsequent to said injury. It also shows on its face that the complaint was not filed until the 10th dáy of October, 1944. This Court is without jurisdiction to hear this complaint.

The motion of the respondent is therefore granted. Case dismissed.


source: Caselaw Access Project

author: Chief Justice Damron

license: Public Domain

text:
    (No. 3888
    Vera June Winfield, Widow of Earl Winfield, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

      John A. Mead and Samuel J. Naylor, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on November 14, 1944. It seeks an award for the death of claimant’s husband-which occurred' on the 26th day of September, 1944.

The record consists of the complaint, departmental report of the Divsion of Highways, stipulation waiving brief, statement and argument on behalf of claimant and respondent.

The record discloses that the deceased; Earl'Wing-field, was- first given- employment by the respondent on the 25th day of March, 1941, in the Division of Highways of the Department of Public Works and Buildings. He continued in such employment until the date of his death. The record further discloses that the deceased at the time of the accident on August 9, 1944, was operating a power mower for respondent along the upper edge of an embankment about five miles northwest of the village of Bowen. The level space between the edge of the embarikment and the fence at the right-of-way line narrowed as the embankment became higher and while driving said mower along the above described terrain, the bank crumbled from under the right rear wheel of the mower, causing it to tip over. The deceased jumped down the bank to avoid the possibility of the mower turning over on him. The bank being steep, the deceased landed with considerable momentum which caused him to run down the bank onto the concrete pavement before he was able to come to a stop. The mower followed down the bank, overturned, stopping upside down on the pavement with the motor running. The deceased ran over and shut oft the motor. In jumping and falling to the pavement, the deceased sustained bruises and thereafter became stiff and sore, but he continued to work until quitting time at 5:00 P. M., then he went home. The claimant voided immediately after he returned home and noticed blood in his urine. During the evening he continued to have distress and frequently voided bloody urine. His discomfort increased, and the claimant called Dr. Earl Cooper, of Augusta, about 3:00 the next morning. The doctor found the claimant’s intestate in intense pain, unable to void, and his bladder distended. Catheierization was done and the bladder was found to be filled with blood clots and bloody urine. On August 16, 1944, Dr. Cooper recommended hospitalization and that Dr. Arthur Sprenger, a urologist, be called in attendance. Mr. Winfield was moved by ambulance to St. Francis Hospital that same day and was placed under the care of Dr. Sprenger, who attended him until his death.

On September 5, Dr. Cooper sent the following report to the Division of Highways:

“Patient’s story of accident: Mowing on hillside. Mower slipped, throwing it off balance and causing loss of control; mower rolled onto middle line pavement. He was thrown, landing on pavement below. Nature of injury: Traumatism — result of impact of landing resulting in diffused severe hemorrhage. Frequent urination. Constant pain, formation of tumor undetermined previously not present. Tests revealed blood in urine. Treatment: Rest in bed. Transferred to Dr. - Sprenger, urologist in Peoria, Illinois. Hospitalized.”

Dr. Sprenger also filed a report on the same day which is as follows:

“Patient’s story of accident: Mowing on hillside. Mower slipped, throwing it oif balance and causing loss of control; mower rolled onto middle line pavement. He was thrown, landing on pavement below. Nature of injury: Distended bladder, blood clots, and a marked secondary anemia. No visible signs of injury. The bleeding may have been accentuated by the injury. Treatment: Suprapubic cystotomy, removal of tumor tissue. Blood transfusions as needed. Later resection of remainder of bladder tumor. Estimated date of discharge: Unable to say.”

Because of the history of the injury, the death was reported to the coroner, who ordered an autopsy which was performed by Dr. J. M. Martin, Peoria, at 10:15 A. M. the same morning. Dr. Martin’s finding was as follows:

“Anatomical Diagnosis”
1. Status post suprapubic cystotomy
2. Large perivesical and retroperitoneal abscess on the left side.
3. Large partially necrotic papilloma of the bladder.
4. Fetid purulent ascending cystopyelonepbritis.
5. Subacute splenitis.
6. Central fatty infiltration of the liver.
7. Depletion of lipoid in the adrenal cortex.
8. Anemia of the myorcardium.
9. Recurrent verrucous endocarditis of the aortic and mitral valves.
TO. Mucous gastritis.
11. Emaciation.”

On September 27, Dr. Sprenger filed the following report with the Division of Highways:

"Treatment: Patient received blood transfusion on admittance. Cystoscopy performed. Two days later, suprapubic cystotomy followed by repeated blood transfusions. Remainder of tumor mass removed by trans-urethral resection. Remarks: This patient was practically moribund on admittance. In spite of all treatment patient gradually became worse and died September 26, 1944.”

The record discloses that the Division of Highways has paid the following accounts: Dr. Earl Cooper $35.00; Dr. Arthur Sprenger $560.00; Dr. George Parker $19.00; St. Francis Hospital $526.85; Stillwell Funeral Home $20.00; Total $1,160.85.

From a consideration of the record we find as follows:

That on the 9th day of August, 1944, the said Earl Winfield and respondent were operating under the provisions of the Workmen’s Compensation Act of the State of Illinois. That on said date, said Earl Winfield sustained accidental injury which arose out of and in the course of his employment from which he died on September 26, 1944. That notice of the accident was given to the said respondent and claim for compensation was made by the above named claimant, within the time required by the provisions of such Act.

That the earnings of said employee during the year preceding the accident were $1,416.15 and his average weekly wage was $27.23. That at the time of the accident he was 32 years of age, married to claimant, and had no children dependent upon him under the age of 16 years.

We find that claimant’s intestate was totally disabled as a result of said accident from August 10 to September 26 inclusive, and that he was paid by the respondent $109.71 temporary compensation for that period which must. be deducted from the award. All medical and hospitalization expenses incurred were paid by the respondent.

An award is therefore entered in favor of claimant, Vera June Winfield, in the sum of $4,700.00, as provided in Section 7 (a) and (1) of the Act, from which must be deducted the sum of $109.71, leaving a balance of $4,-590.29, to be paid to her by the respondent at $16.00 per week. The sum of $592.00 in a lump sum, representing 37 weeks compensation which has accrued from September 27, 1944, to June 13, 1945. The remainder of said award amounting to the sum of $3,998.29, to be paid to claimant at the rate of $16.00 per week for 249 weeks with one final weekly payment of $14.29. All future payments being subject to the terms and provisions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry for such further orders as may from time to time be necessary.

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


author: Eckert, J.

text:
    (No. 3894
    Lula Schierbaum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    R. Wallace Karraker, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Lula Schierbaum, is the widow of Albert W. Schierbaum, deceased, a former employee of the Department of Public Welfare of the State of Illinois. On May 16, 1944, while in charge of a violent ward at the Elgin State Hospital, and while endeavoring to hold and restrain a violent patient, the deceased suffered a coronary occlusion which caused his death on May 31, 1944. Claimant seeks an award under the provisions of the Workmen’s Compensation Act in the amount of $5,000.00.

At the time of the injury which resulted in the death of Albert W. Schierbaum, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The employee was disabled unexpectedly in the course of his employment, without any act or design upon his part. The court is of the opinion that he suffered an accidental injury arising out of and in the course of his employment. Marsh vs. Industrial Commission, 386 Ill. 11.

Decedent had been employed by the respondent less than one year prior to his death. Employees of the same class' in the same employment as decedent earned an annual wage of $1,320.00, including maintenance. Under Section 10(c) of the Workmen’s Compensation Act, compensation must, therefore, be computed on the basis of an annual wage of $1,320.00, making decedent’s average weekly wage $25.38, and the compensation rate $12.69. Decedent had no children under sixteen years of age dependent upon him for support at the time of his death.

Claimant is, therefore, entitled to an award under Section 7(a) of the Workmen’s Compensation Act in the amount of $4,000.00. The death having occurred as the result of an injury sustained after July 1, 1943, this amount must he increased 17%% or $700.00, and the compensation rate must be increased 17%%, or $2.22, making a compensation rate of $14.91 per week.

The claim for medical services after decedent was transferred from the Elgin State Hospital to his home at Vienna, in the amount of $25.00, can not be allowed. The transfer was at the request of the decedent, and in so doing, he elected to secure his own physician.

Award is, therefore, made in favor of the claimant, Lula Schierbaum, in the amount of $4,700.00, to be paid to her as follows:

$834.96 which has accrued and is payable forthwith.

The balance of $3,865.04 payable in weekly installments of $14.91 each, beginning June 26, 1945, for a period of 259 weeks with an additional final payment of $3.35.

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


text:
    (No. 3897
    Mary A. Skaggs, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Mary A. Skaggs, pro se.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on January 9, 1945, by the above-named claimants, who seek an award under the provisions of the Workmen’s Compensation Act, for the death of Zoeth C. J. Skaggs, the husband of Mary A. Skaggs, and the father of the above-named minor claimants.

The record consists of the complaint, a report of the Department of Public Safety, a report of the Department" of Public Health, Division of Vital Statistics, and stipulation by and between Mary A. Skaggs, pro se, as claimant and the Honorable George F. Barrett, Attorney General, for the respondent, and photostatic copy of the marriage certificate of Mary A. Skaggs and Zoeth C. J. Skaggs, waiver of brief of claimant and waiver of brief of respondent.

This record discloses that the widow claimant and the deceased Zoeth C. J. Skaggs were united in marriage on the 27th day of May, 1931. The records of the Department of Public Health, Division of Vital Statistics, show that the following children were born to this marriage: William Frederick Skaggs, bom September 4, 1932; Robert Jerome Skaggs, born November 1, 1934; Hall Murray Skaggs, bom October 29, 1936; and Raymond Gerald Skaggs, born September 2, 1938.

The record further discloses that claimant, Mary A. Skaggs, and each of the above-named minor children, were all living with and dependent upon the earnings of Zoeth C. J. Skaggs at the time of his death.

The record further discloses that the deceased husband of claimant was first employed by the respondent on May 8, 1930, as a guard at the Joliet Branch of the Illinois State Penitentiary. His salary at the time of first employment was $115.00 per month plus maintenance. He continued in his employment as a guard until . the time of his death on November 24, 1944. On July 1, 1943, his salary was raised to $169.00 a month, which last amount he was receiving at the time of his death. The total salary received by Mr. Skaggs during the year next preceding his death was $2,028.00.

On November 24, 1944, between 10:00 and 10:30 A. M., Mr. Skaggs was taken as a hostage by vicious inmates who were attempting to escape from the State-ville prison. Mr. Skaggs was acting in the capacity of guard at the time he was made a hostage. In their attempt to escape in a truck, the inmates holding Mr. Skaggs as a captive were fired upon by guards stationed at various points on the wall enclosure of the penitentiary. As a result of the cross fire, Mr. Skaggs received bullet wounds which proved fatal. Drs. Chmelik, Joliet, and Roblee, Lockport, were called to attend Mr. Skaggs. He died approximately iy2 hours following his injury.

From a full consideration of the record, the Court finds that the deceased, Zoeth C. J. Skaggs, and respondent, were at the time of the accident and death of the former, operating within the terms of the Workmen’s Compensation Act; that the injury and death of Zoeth C.' J. Skaggs was caused by an accident which arose out of and in the course of his employment by the respondent; that respondent had actual knowledge of the accident and notice of claim and application for compensation were made within the time required under the provisions of said Act; that the deceased’s annual earnings for the year preceding his death amounted to $2,028.00, making the average weekly wage amount to the sum of $39.00; that he left surviving him the widow, William Frederick Skaggs, Robert Jerome Skaggs, Hall Murray Skaggs, and Raymond Gerald Skaggs, all of whom are under the age of sixteen years and were dependent upon deceased for support.

An award is hereby entered in favor of claimants in the sum of $6,462.50, as provided in Section 7, Paragraphs (a) and (1) of the Workmen’s Compensation Act, as amended. This award is payable to claimant, Mary A. Skaggs, in monthly installments, at a weekly compensation rate of $23.50. On June 8, 1945, there will be accrued the sum of $658.00,. representing 28 weeks, which is payable to claimant in a lump sum.

The remainder of said award, amounting to the sum of $5,804.50, is payable to claimant in weekly installments of $23.50 for 247 weeks.

The future payments before referred to, being subject to the terms of the Workmen’s Compensation Act, jurisdiction of this cause is hereby retained by this Court for the purpose of making such further orders as may from time to time be necessary herein.

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: Fisher, J.

text:
    (No. 3901
    Everett and Dorothy Bailey, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

      ■ Neil Kerb, for claimants.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

Respondent, through the Department of Public Works and Buildings, Division of Highways, leased from claimants two buildings for general storage purposes in connection with the maintenance of highways.

On September 7, 1944, one of the buildings was destroyed by fire. The building' was a frame structure 50 feet long, 40 feet wide and 14 feet high on one side and 10 feet on the other. The respondent had possession of the said. property under a lease whereby rent in the amount of $65.00 per month was paid by respondent. Upon the land of claimants and adjoining the property so destroyed, the Division of Highways had set up machinery for weighing, drying and mixing asphalt and crushed stone and for elevating the mixed materials into trucks. On September 7,1944, employees of the Division of Highways lighted a burner used to heat a kettle for the purpose of preparing an asphalt mix. After the burner had been lit for about fifteen minutes, some of the liquid asphalt was drawn from the kettle because the molten asphalt was rising. However, the asphalt , continued to rise, and the oil burner was shut off. Before the flame completely died the contents of the kettle boiled over and ignited. Employees of the respondent attempted to quench the fire, without success, and it spread to and destroyed the adjoining building.

Appraisers for the Division of Highways have set the value of the building destroyed at One Thousand Three Hundred Twenty-five Dollars ($1,325.00) and the value of claimants ’ personal property destroyed at Eight Hundred Eighty-two and 80/100 Dollars ($882.80).

There is no disagreement between claimants and respondent as to the facts or as to the value of the property destroyed.

The record consists of the Complaint, Stipulation, Report of the Division of Highways, Statement, Brief and Argument by claimants and respondent, and copy of Lease.

On consideration of this claim at the May 1945 term of this Court, we concluded that the rights of the parties must be determined from the existing lease and, the lease not being before us at that time, we continued the claim for further evidence. The lease was, thereafter, on May 11, 1945, introduced into the record, and we now proceed to a consideration of the claim from the entire record, including the Lease referred to.

The Attorney General contends that the property of claimants was destroyed by fire resulting from an accident, and that respondent is not legally liable therefor for the reason that the State is not liable for damages caused by the negligence of its employees while engaged in a governmental function. As we pointed out in our original opinion — this contention is, without doubt, correct where the action is founded in tort, but in this case the action is based on a contract, and the rule contended for by the respondent does not apply. Large vs. State, 9 C. C. R. 480.

Respondent leased the said premises on March 1, 1942, to continue thereafter until June 30, 1943, unless sooner terminated by Lessee. After June 30, 1943, respondent remained in possession of the same premises, and admits, did so under the same terms and conditions of the written lease. At the expiration of the said lease, respondent held over and continued to pay an agreed increase in rent. The lease provided:

“In consideration of said demise, the Lessee covenants and agrees with Lessor as follows:
(1)
(2) “To use and - occupy said premises for storage purposes and that lessee will replace at its own expense any glass or fixtures which may be damaged or broken by the lessee or its agents during the occupancy by the lessee of said premises.”

Had respondent confined its use of the said premises to the purpose for which it was demised, no recovery could be had by the lessor for its destruction by fire. The liability of the lessee is restricted to the provisions of the lease and, by excluding therefrom liability for damages by fire, it is necessarily implied that no such liability was intended.

However, lessor demised the premises for a specific purpose, “storage purpose,” which purpose was not hazardous, and there was little danger of fire damage to the property from such use. It must be considered that had lessor known the use which respondent was to make of the premises, other and additional safeguards could have been taken by lessor to protect his property.

The use of the premises was restricted to storage purposes and not to the hazardous use of heating and mixing asphalt.

“To constitute a restriction upon their use, the lease need not contain an express covenant by the lessee imposing restrictions; a lease for a particular use, or to be used for a particular purpose implies a restriction' against other uses.”
Sullivan vs. Monahan, 123 App. 467.

Respondent used the premises for purposes other than that specified in the lease and is, therefore, liable for damages resulting from such misuse'.

“If the demised building is leased to be used for a particular purpose, and the lessee, in violation of his contract, uses it for another purpose, he does so at his peril; and if in consequence of such unlawful use the premises are destroyed, the tenant is liable, irrespective of any. question of negligence.”
35 C. J. 1221.

It is agreed that the damages sustained by claimants amounts to $2,207.80, less $300.00 recovered from insurance, and claimants are entitled to an award for such damages.

An award is entered in favor of claimants, Everett Bailey and Dorothy Bailey, in the sum of One Thousand Nine Hundred Seven and 80/100 Dollars ($1,907.80).


text:
    (No. 3906
    James H. Woods, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

    Charles M. Kenney, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

This claim is for damages to claimant’s automobile, which be was required to use in the performance of his duties as a utility engineer for the Illinois Commerce Commission. For the use of his car claimant was paid mileage by respondent at the rate of $.04% per mile. On January 12, 1945, while claimant was on business of the State, pursuant to instructions, he was driving west on Route 16 in the Village of Tower Hill when he was compelled to veer suddenly to the left to avoid hitting another automobile, and claimant’s automobile collided first with a timber sign post and then with a concrete headwall of a culvert. Claimant thereby sustained damages to his automobile in the sum of $366.62, for which sum he seeks an award.

The record consists of the Complaint, Departmental Report, Transcript of Evidence, Statement, Brief and Argument on behalf of Claimant, and Waiver of Brief by Respondent.

There is no rule of Jaw by which the State can be held to insure the property of an employee that is being used by such employee while in the discharge of his duties. The probability of such loss or damage is a risk incident to the employment.

Caslyn vs. State, 9 C. C. R. 107.
Hupp vs. State, 10 C. C. R. 360.
Connor vs. State, 12 C. C. R. 21 at page 25.

Award denied.


author: Eckeet, J.

text:
    Mossee vs. Illinois Public Aid Commission. Ruth C. Mosser, Claimant, vs. Illinois Public Aid Commission, Respondent.
    Illinois Public Aid Commission
    Advisory Opinion Ho. 2.

      Opinion filed March 13, 1945.

   Eckeet, J.

The claimant, Ruth C. Mosser, is employed by the Illinois Public Aid Commission as a Social Service Consultant I. As such consultant, on August 29, 1944, she was sent by her superior, Mrs. Eleanor F. Proctor, Chief of the Division of Standards and Service, to Shawnee-town, Illinois, to analyze designated cases as processed by the Gallatin County Department of Public Assistance. Before her work at Shawneetown was completed, and on the morning of August 30th, while en route to the office of the County Department of Public Assistance, she turned on her right ankle, falling to the ground on both hands and knees.

Following the accident, an x-ray was taken by Dr. E. W. Burroughs of Shawneetown. This disclosed a fracture of the right patella. Dr. Burroughs then placed claimant’s knee in a temporary cast. Claimant, after reporting the accident to her Chicago office, returned to Chicago, going directly to the University of Chicago, University Clinics, where she was treated by Dr. Bonfllio.

While claimant was a patient at the University Climes, five x-rays were taken, a cast was applied to her right leg on two different occasions, and she received numerous massage and heat treatments. Her leg remained in a cast for approximately seven weeks, and she was absent from her duties from August 31, 1944, to November 16, 1944.

Claimant was first employed by the respondent on September 16, 1942. Her salary is $245.00 per month. Her duties consist of analyzing case work practices and case supervision in county welfare departments, making plans and providing consultations and directions in the solution of problems, assisting county welfare departments in making improvements of service to applicants and recipients of public assistance, assisting county welfare department superintendents in meeting with service clubs, civic and other organizations, and interested individuals for the purpose of program interpretation, preparing and studying reports and reviews as required, and working with public assistance representatives on service training or orientation programs for county visitors. Claimant in the performance of her duties^ is required to travel to all parts of the State.

Responsibility for administration of the Public Aid Program in Illinois is divided between the- overseers of the poor, who administer general relief and care for the medically indigent, and the Illinois Public Aid Commission, which administers the Social Security Programs through the County Department of Public Assistance of the one hundred and one (101) downstate counties, and by the Public Assistance Division of the Cook County 'Bureau of Public Welfare in Cook County. The County Departments operate in accordance with uniform policies and procedures as set out by the Commission.

The Illinois Public Aid Commission has created many departments and divisions through which assistance is administered, one of these being the Supplies and Storage Department. The work of this department includes the receiving, storing, shipping, loading, unloading, packaging, unpackaging of all furniture and equipment used by the Commission throughout the State; and also the cutting of paper used by the Commission in its work.

Claimant seeks reimbursement from the Illinois Public Aid Commission, in the sum of $25.00 for the services of Dr. Burroughs, and seeks payment by the Illinois Public Aid Commission to the University of Chicago, University Clinics, in the sum of $142.50 for services rendered by the Clinics. These charges have been examined by the respondent and found to be reasonable.

At the time of the injury, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; claimant sustained accidental injuries which arose out of and in the course of her employment; and notice of the injury was given to the respondent, and claim for compensation was made, within the time provided by the Act.

Section 8, Sub-section (a) of the Act provides:

“The employer shall provide the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury * * *”

The court, therefore, is of the opinion that claimant, under the provision of the Workman’s Compensation Act of this state, is entitled to payment of her medical expenses, and that the Illinois Public Aid Commission should pay to claimant the sum of $25.00 reimbursement for the services of Dr. E. W. Burroughs, and should pay to claimant for use of the University of Chicago, University Clinics, the sum of $142.50 for its services, or a total sum of $167.50, out of any funds held by the Commission and allocated for such purposes.


author: Chief Justice Damron.

text:
    Rowe vs. Illinois State Historical Library. Frederick H. Rowe, Cole Yates Rowe, Richard Yates Rowe, and Millicent Rowe Sammuell, Claimants, vs. Illinois State Historical Library, Respondent.
    Illinois State Historical Library
    Advisory Opinion Ho. 3.

      Opinion filed April 17, 1945.

   Advisory Opinion by

Chief Justice Damron.

Frederick H. Rowe, Cole Yates Rowe, Richard Yates Rowe and Millicent Rowe Sammuell made a demand for a pastel portrait of Ex-Governor Richard Yates which came into the possession of the Trustees of the Illinois State Historical Library in 1920 through delivery to them by Richard Yates, Jr., now deceased, and has remained in their possession ever since.

The aforesaid trustees have directed the librarian to request an opinion of this Court as provided for in Chapter 37, Sec. 432, Par. 5 of the Hlinois Revised Statutes with reference to this demand and have accompanied the request for our opinion with a record consisting of a formal demand by claimants, copies of letters, and a reply of the above named claimants.

THE RECORDS

The claimants assert, in their demand, that they are entitled to the sole-and exclusive possession by reason of the fact that in 1865 the Ex-Governor gave the portrait to his only full sister, namely Millicent Yates Mathers, who then lived in Jacksonville, Illinois. That the said Millicent Yates Mathers upon receiving the portrait, placed it in her home in Jacksonville, Illinois; she kept it hanging on the wall of her living room until she died at the age of 84 years. That long before, and at the time of the death of Ex-Governor Richard Yates, which occurred in 1873, the portrait by reason of the gift, as aforesaid was the sole and exclusive property and remained in the possession of his said sister, Millicent Yates Mathers. That she was the mother of one child, a daughter, namely Marietta Mathers, who was her only direct and sole heir at law, and upon her death the portrait became the property of her daughter. Marietta Mathers, while owner of and in possession of said portrait was married to one Frederick H. Rowe, one of the claimants, and after said marriage the said Marietta Mathers Rowe and Frederick H. Rowe continued to live in the city of Jacksonville, Hlinois, and said portrait continued to hang upon the walls of the living room of their home in said city. That there were born to Marietta Mathers Rowe and Frederick H. Rowe, three children who are claimants herein, namely Cole and Richard Rowe, and Millicent Sammuell.

That in 1920 Richard Yates, Jr., came to Jacksonville and discussed with his cousin, Marietta Mathers Rowe, the matter of her loaning said portrait of Ex-Governor Richard Yates to the State of Illinois for the purpose of having same exhibited in the new Illinois Centennial Building, then about to be opened to the public for the first time; that she consented to loan the portrait for that purpose, whereupon it was taken from the walls of the living room of her home and sent by her in her automobile in care of the said Richard Yates, Jr., to Springfield, Illinois, only for the purpose of exhibiting it in the Centennial Building. Claimants further alleged that at the same time a portrait of Mrs. Catherine Yates, wife of the War Governor, was placed in the Centennial Building as an exhibit alongside of the portrait of the Civil War Governor which was borrowed from the home of Murphy Jackson, who lived in Jacksonville, Illinois, and who had been a nurse and attendant to Mrs. Catherine Yates during her lifetime and who had obtained the portrait from.the Civil War Governor as a gift.

These claimants further allege that Marietta Mathers Rowe died on August 27, 1928, while the portrait of the Civil War Governor was still on exhibit in the Illinois Centennial Building. Thai at the time of her decease she left a will bequeathing all of her personal property to her husband Frederick H. Rowe, claimant, for the period of his natural life, and upon his death to their three children the claimants herein. ■ That during all of the time from 1920 to the death of Marietta Mathers Rowe, the claimants had no reason to doubt that the portrait would be returned to them upon request to the Trustee of the Illinois State Historical Library, and they had no reason to believe, they allege, that the State of Illinois or any collateral heirs of the War Governor were claiming title to the portrait.

That on April 11, 1936, Richard Yates, Jr., died, whereupon the claimant, Richard Yates Rowe requested-the Historian at the Illinois State Historical Library to deliver up the portrait so that he might take it back to the family home in Jacksonville, whereupon the said Historian advised that he would have to look into the matter and that he would discuss the matter with him later; that on several occasions thereafter, the claimants requested the returning of the portrait to them from the Illinois State Historical Library but for various reasons the portrait was not delivered to them. That subsequent thereto, the claimants applied to the Trustees of the Illinois State Historical Library by making a personal and direct request for the portrait, to Oliver R. Barrett, a member of the Board of Trustees, who informed claimants that a letter was in the files of the Illinois State Historical Library purporting to be signed by one Mrs. Richard Yates, Jr., who is now deceased and who, in her lifetime was a daughter-in-law of Ex-Governor Richard Yates, in which letter the daughter-in-law expresses the thought that she believed it was the intention of her husband, Richard Yates, Jr., to have the portrait remain in the Illinois State Historical Library, that therefore, the Illinois State Historical Library could not return the portrait to these claimants nor could they recognize the right to the portrait as the heirs at law of Mary Mathers Rowe.

Attached to the request for this opinion we find the record of a carbon copy, unsigned receipt as follows:

Illinois State Historical Library Springfield
December 6, 1930.
This is to certify that Hon. Richard Yates has deposited in the Illinois State Historical Library the following pictures which are to be returned to him or his heirs on demand:
1 oil painting by Healy of his mother, Mrs. Richard Yates.
1 pastel picture of his father, Governor Richard Yates.
Librarian, Illinois State Historical Library.
c/c for Library.
Copy of letter of Mrs. Eichard Yates:
Pleasant Ridge, Michigan April 23, 1939.
My Dear Mb. Angle:
In compliance with my husband’s wishes, I would like to present the portraits of Richard Yates, Sr. and his wife, to the Illinois State Historical Library. These "portraits were placed in your care some time ago, during my husband’s life-time.- I am certain that it was his intention that they should be given to the Library, to remain there permanently. .
Very sincerely yours,
(Signed) Helen Wadsworth Yates.
Mrs. Richard Yates,
25 Poplar Park,
Pleasant Ridge, Michigan.
Letter of Mrs. Catherine Yates Pickering:
Pleasant Ridge, Michigan, February 19, 1945.
My Dear Mr. Angle:
I am very sorry that there has been any embarrassment about the portrait of my grandfather, Richard Yates. I do not believe that there is anything that my sister or I could add to the letter from my mother which is in your possession. Mother had a remarkable memory, and I am positive that she was correct in her statement that Father wanted to have the portraits in the Library.
In regard to the portrait of my grandmother. It hung on the wall of our hall at 1190 Williams Blvd. after the death of my grandmother in 1908. It certainly did not belong to “Auntie Mercy,” her life-long companion.
It is too bad that the Rowes waited twenty-five years to present their claim. It would have been better if they had done so in my father’s lifetime.
Very truly yours,
(Signed) Catharine Yates Pickering.

And the following statement by the State Historian:

“No member of the Board of Trustees or staff of the Illinois State Historical Library has any personal knowledge of the conditions under which" the pastel portrait of Richard Yates was placed in this Library.
At a meeting in Chicago, September 14, 1944, the Trustees of this Library took cognizance of Mr. Rowe’s claim. Their action is recorded in the minutes of the meeting as follows:
The Librarian was instructed to inform Secretary of State Richard Yates Rowe that the Trustees were under an obligation, moral as well as legal, to respect the claim of title of those from whom it obtained the portrait of Richard Yates, Sr., and that therefore they could not honor his request that the portrait be turned over to him.” Respectfully submitted,
(Signed) ■ Paul M. Angle, State Historian.
Illinois State Historical Library, Springfield, Illinois.

We have carefully considered the record presented to us and find that the respondent would not be justified in withholding this portrait from the claimants. Title passed to Millicent Yates Mathers, sister of Ex-Governor Richard Yates, by gift from the War Governor to her in 1865 and at the time of the gift she took possession of said portrait and possession remained in her until her death; at her death title and possession of this portrait passed to her only daughter and sole heir at law, Marietta Mathers Rowe. Marietta Mathers Rowe died on August 27, 1928, leaving a last will and testament bequeathing all of her personal property, including this portrait, to her husband Frederick Cole Yates Rowe, Richard Yates Rowe and Millicent Rowe Sammuell, all of whom are claimants.

The Court is of the opinion that Richard Yates, Jr., who delivered the portrait to the Illinois Historical Library in 1920, was not the owner of it and conld not have passed title to the respondent.

We advise the Trustees of the Illinois State Historical Library and its Custodian to surrender the portrait to the above claimants.


author: Damron, C. J.

text:
    (No. 3686
    Charles R. Denges, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1944.

      Petition of claimant for rehearing allowed May 9, 1944.

      Supplemental opinion filed November 13, 1945.

    Emerson C. Whitney and J. D.. Teitelbaum, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Damron, C. J.

This complaint was filed on the 19th day of February, 1942 by claimant seeking an award under the provisions of the Workmen’s Compensation Act.

It alleges that claimant was employed by the respondent in the Division of Highways in the capacity of laborer. That on the 23rd day of July, 1941 in the course of his employment for the respondent in repairing the road surface of Grand Avenue, a public road approximately one mile west of Wolf Road, Cook County, the crow bar which claimant was using slipped and the upper portion of the handle hit the claimant a hard blow on the right nipple of the right part of his chest.

It further alleges that on the date of the accident he notified his employer by reporting the injury at once to William E. Johnson, his foreman, and subsequently on November 11, 1941 he made a written report of his accident and the injury to the State of Illinois by mailing a notice thereof to the Division of Highways.

It alleges that claimant has been unable to work since the 26th day of November, 1941 and has suffered severe and permanent damage and disability as a result of his said injury. That as a direct result of said injury he has incurred medical, surgical and hospital expenses in the sum of $138.00, none of which have been paid by claimant or respondent.

It avers he is suffering with cancer of the breast and that it is necessary! for him to take x-ray treatments of the malignant tissue approximately three days in each week and asks an award for permanent and complete disability in accordance with the Workmen’s Compensation Act.

The respondent files a motion to dismiss the complaint setting up two reasons therefor:

(1) No claim for compensation was made within six months after the date of the accident as required by the terms and provisions of Section 24 of the Workmen’s Compensation Act. .

(2) The claimant’s complaint does, not show a demand for compensation within six months after the accident.

The record consists of the complaint, original transcript of evidence, abstract of evidence, claimant’s statement, brief and argument, report of the Division of Highways, motion of respondent to dismiss, statement, brief and argument in support of said motion and suggestions of claimant in reply to respondent’s motion to dismiss.

The report of the Division of Highways is prima facie evidence under rule 21, if a copy thereof shall have been first duly mailed or delivered by the Attorney General to the claimant or his attorney of record.

This report, a copy of which was delivered to the attorney of record for claimant on the day of the hearing, July 28, 1942, in the office of the Attorney General, 208 South LaSalle Street, Chicago, states that “on or about November 3, 1941, Kendrick Harger, district engineer, Chicago, received a bill from Oak Park hospital, dated October 30, 1941, covering services rendered the claimant. This bill was in the amount of $47.15 and indicated that the claimant had been confined in the hospital from October 24 to 26, 1941 inclusive, and that he had been served in the operating room and had been administered an anesthetic. This was the first notice that the Division had concerning an injury to the claimant.”

The evidence of the claimant shows that on the date of said injury he notified his foreman, one William E. Johnson, that he had been struck a blow on the chest that day, but he did not ask for hospitalization or medication. He testified he did not think it was serious. Johnson was not called as a witness.

Referring again to the departmental report, it contains a report of Dr. Louis River, of Oak Park, who operated on claimant. On November 18 at the request of the Division of Highways he supplied it with the following report in reference to his treatment and examination of said claimant:

“Patient’s story of accident — claims he struck region of right nipple with crow bar which slipped while working. Patient came on his own responsibility. No evidence of injury noticed when I first examined him, October 21, 1941. There was a 3 cm. in diameter free hard nodule above .and medial to the right nipple. Presumptive diagnosis was carcinoma of the breast. Treatment — simple right mastectomy, October 25, 1941. Uneventful recovery, primary union of the wound. Section shows grade 3 adenocarcinoma. At present receiving deep x-ray therapy from Dr. Jenkinson at the Ravenswood Hospital. Ability to return to work — November 3, 1941. Patient was discharged October 31, 1941. I have no reason to believe this lesion to be the result of occupational trauma.”

TMs report as well as the evidence of the claimant shows that claimant was paid full wages from the date of the alleged injury to the 19th day of November, 1941 when he ceased to be an employee of the Division. These wages amounted to the sum of $280.20. William E. Johnson, the foreman of the gang in which the claimant was employed on the date of the alleged injury, turned in the time for this claimant, which enabled claimant to receive full wages and failed to make any report to the Division of any claim for injury on July 23, 1941, or subsequent thereto.

The report further states “no officer of the Division or of the State of Illinois received a demand from the claimant or his personal representative for compensation until the filing of the complaint in this case.”

Section 24 of the Workmen’s Compensation Act is jurisdictional. It provides “no proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty days after the accident * * *. Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing; provided, no proceeding for compensation under this Act shall be maintained unless claim for compensation. has been made within six months after the accident, provided, that in any case, unless application for compensation is filed with the Industrial Commission (Court of Claims) within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred.”

It has been repeatedly held by this court that the giving of notice within thirty days and the making of claim for compensation and filing application therefor within the times fixed by Section 24 of the Workmen’s Compensation, Act is a condition i precedent, without which, the Court of Claims is without jurisdiction to proceed with the hearings. Crabtree vs. State, 7 C. C. R. 207.

Under the record we must consider the filing of the complaint the first demand made by claimant for compensation. This complaint was filed on February 19, 1942, more than six months subsequent to the date of the alleged injury.

The provisions of Section 24 of the Compensation Act not having been complied with, the motion of the Attorney General to dismiss is therefore sustained for lack of jurisdiction to hear said complaint.

Case dismissed.


author: Damron, J.

text:
    (No. 3686
    Edith Denges, Widow of Charles R. Denges, Claimant, vs. State of Illinois, Respondent.

      Supplemental opinion filed November 13, 1945.

   Damron, J.

On February 19, 1942, claimant, Charles B. Denges, filed his complaint, in this court, seeking an award under the provisions of the Workmen’s Compensation Act.-

The Attorney General filed a motion to dimiss the complaint, for the reason that the complaint failed to show a demand for compensation was made on respondent within six months after the accident, as required under Section 24 of the Compensation Act.

At the March term, 1944, of this court, we delivered an opinion sustaining the motion of the Attorney General, and complaint was dismissed for lack of jurisdiction.

On April 12,1944, the claimant filed a motion for rehearing in said cause, and on May 9,1944, re-hearing was granted.

On the 26th day of December, 1944, the Department of Public Works and Buildings (Division of Highways), filed an additional report, in this court, which shows that claimant did comply with the provisions of Section 24 of the Act, in that he had reported to one William E. Johnson, his foreman, on the day he was injured, and under Bule 21 of this court, this report is accepted as prima facie evidence.

On February 28, 1945, the Trust Company of Chicago, as administrator, filed a suggestion of death, showing that claimant, Charles Denges, had departed this life on the 7th day of May, 1944, and on the 20th day of March, 1945, the said administrator filed a motion to be substituted as claimant in the above entitled proceedings.

On October 26th, 1945, an amended and supplemental claim was filed by Edith Denges, as widow of Charles B. Denges, deceased, which is now under consideration by this court. Said amended complaint sets up all the material allegations of the complaint, heretofore filed by Charles R. Denges, deceased, and," in. addition thereto, shows that the said Charles R. Denges died on May 7, 1944, of carcinoma of the breast and pleural carcinoma metastases, which directly and proximately resulted from the injury received by him in the course of his employment for the respondent on the 23rd day of . July, 1941. ...

This complaint further shows, and the allegations are corroborated by the report of the Division of Highways, as aforesaid, that claimant left surviving him his widow, Edith Denges, now the claimant, as the sole and only dependent.

All of the facts having heretofore been set out in our former opinion, we will not resort to a repetition, but briefly state that Charles R. Denges was in the employ of the respondent, in the Division of Highways, in the capacity of a laborer, receiving a wage of 60c per hour, for. an eight hour day, being employed each week five and one-half days.

On the 23rd day of July, 1941, while in the act of prying loose a broken piece of concrete on the road surface of Grand Avenue, a state highway approximately one mile west of Wolf Road, in Cook County, Illinois, the crow bar slipped, and the upper portion of the handle hit the claimant a hard blow on the right nipple of his chest; he was treated for said injury at the Oak Park Hospital, Oak Park, Illinois, by Dr. Louis River, but continued work until the 19th day of October, 1941, receiving his full wages during that time. On that day he ceased to be an employee of the Division.

. The evidence discloses that cancer of the breast developed from this injury; that he received numerous x-ray treatments in order to relieve himself of this' condition, which failed to so relieve him. Claimant died, as a result of his injuries, on May 7, 1944, as aforesaid.

After a full consideration of . this record, the court makes the following findings:

That claimant arid respondent were, on the 23rd day of July, 1941, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, said claimant sustained accidental injuries which arose out of and in the course of his employment, from which he died; 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 by the provisions of Section 24 of said Act; that the earnings of said claimant, at the time of his injury, were 60c per hour for an eight hour day, five and one-half days per week.

The evidence discloses that employees of the resporid.ent, doing similar work of claimant’s intestate, worked for respondent less than 200 days per year.

His weekly wage, therefore, would be $18.46, making his compensation" rate amount to the sum of $10.15, as provided iri Section 8, paragraph (L) of the Workmen’s Compensation Act (Rev. Stat. 1941).

An award is, therefore, hereby entered in favor of the claimant, Edith Denges, as the dependent widow of Charles R. Denges, deceased, in the sum of $4224.00, as provided in Section 7, par. (A-K) of the Workmen’s Compensation Act, as amended.

There has now accrued up to November 13, 1945 the sum of $2153.25, being 212 1/7 weeks, at $10.15, which is payable in a lump sum forthwith; the remainder, $2,-070.75, to be paid to her weekly, at the rate of $10.15, with a balance of $0.15.

Such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

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,” and is payable, upon approval, from the appropriation from the Road Fund in the manner provided in such act.

This record discloses that claimant incurred medical and hospital bills, including x-ray treatments, which were not authorized by the respondent. Claim for these medical expenses, therefore, cannot be allowed.


text:
    (No. 3686
    Edith Denges, Widow of Charles R. Denges, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 19, 1946.

    Emerson C. Whitney and J. D. Teitelbaum, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

This cause again comes before the Court pursuant to a petition for a lump sum settlement in accordance with the. provisions of Section Nine (9) of the Workmen’s Compensation Act.

On November 13, 1945, this Court entered an award in favor of the claimant, Edith Denges, as widow. of Charles R. Denges, for $4224.00 as provided in Section 7a. of the Act, as amended. At the time of the rendition of the award, there was then due the claimant the sum of $2153.25 which was paid to the claimant by the respondent, in a lump sum.

..The above named petitioner was the only dependent left, surviving the said deceased employee, there was no child or- children left surviving whom he was under legal obligation to support at the time of his injury which resulted in his death.

At the time of the’ filing of this petition for a lump sum, there was yet due claimant, under the provisions of said award, the sum of $1979.40 to be paid to her at the rate of $10.15 per week. This petitioner states in her petition that she now has. an opportunity to go into the retail clothing business in which, she is experienced and in which she believes that she can make a satisfactory livelihood. She says she has no other source of income and is, at the present time, unemployed.

The question' as to whether the provisions of the Workmen’s Compensation Act, relative to lump sum payments, apply to cases in which the facts are similar to the facts.in the present -case, was considered in Illinois Zinc Company vs. Industrial Commission, 366 Illinois 480. In that cáse, as in this, the deceased employee left him surviving his widow and no child or. children whom he was under legal obligation to snpport at the time of his injury. It was pointed out in that opinion that under the provisions of Section 7a and Section 21 of the Workmen’s Compensation' Act, the right to receive compensation would be extinguished by the remarriage or death of the widow; that althogh it might, be for the best interest of the widow, it clearly could not be for the best interests of the employer to allow a lump sum. The Court further said:

“It is our opinion that Section 9 is not applicable to an award such as this, which is uncertain and contingent in its duration and amount. To hold otherwise would be to deprive the employer of due process of law and the equal protection of the law and would render the entire section unconstitutional. A commutation of the last 102 weeks of compensation in this case would be as absurd from a legal standpoint, as if the Governor should attempt to commute the last one-half or one-third of a life sentence.”

Under the law, as laid down by our Supreme Court in the Illinois Zinc Company vs. Industrial Commission, supra, we have no authority to order a lump sum payment under the facts in this case, and claimant’s petition therefore must be denied.


text:
    (No. 3737
    Ruth Cassity, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

      Petition of claimant for rehearing denied May 8, 1945.

      Motion of claimant to set aside denial of petition for rehearing denied November 13, 1945.

    Frank R. Eagleton, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed on August 3,1942. Claimant alleges that on or about the 4th day of August 1941 she was employed as an attendant at the Manteno State Hospital ; that on the 4th day of August, 1941, while in the course of her employment and the performance of her duties, she was kicked in the stomach by an insane patient, and, as a result of said kick, is now totally disabled.

The record consists of the Complaint, Departmental Report, Rule to Show Cause, Claimant’s Motion for an Extension, Stipulation with Claimant’s Exhibits A, B, C and D, Transcript of Claimant’s Evidence, Claimant’s Statement, Brief and Argument, Respondent’s Statement, Brief and Argument, and Reply Brief of Claimant.

Claimant testified that she was injured on the 4th day of August, 1941, and that she remained at the State Hospital at Manteno for one month “or a day or two over”; that she then took sick leave and went to Danville, Illinois. She further testified that about the second or third day after she arrived at Danville, Illinois, she was taken to the Lake View Hospital, and called Dr. Dickerson. Dr. Dickerson reports that he was first called on September 22, 1941 to treat Mrs. Cassity at the Lake View Hospital in Danville, Illinois. The report of the Manteno State Hospital, filed herein, states that she failed to report for duty and was reported “as a quit-short resignation,” and further that she was discharged from the hospital on August 19, 1941. She was paid her full salary for the month of August 1941. The report of the Manteno State Hospital further shows that on August 2,1941, while working in the hospital, claimant was kicked in the center of the chest by a disturbed patient. She was immediately seen by the hospital physician, who, after examining her, stated there were no visible signs of injury. She was not hospitalized, and resumed her usual duties. Later, op August 18, 1941, she entered the hospital complaining of nausea and vomiting. She volunteered that she had had similar attacks of this nature, the previous one being about six weeks before, and she stated at that time the cause of her then illness was the witnessing of a colored patient in an epileptic seizure. The report further shows “the physical examination at this time revealed that she had extensive gynecological and gastric surgery.” The same report, signed by Edward Ross, M. D., Managing Officer, Manteno State Hospital, concluded “It is our candid opinion that no deleterious effects resulted from her injury on August 2, 1941. Our records do not indicate that any demands on this hospital have been made for further compensation or medical attention.”

Exhibit B, attached to the Stipulation herein, is a letter from D. L. Dickerson, M. D. of Danville, Illinois, who stated that on September 22, 1941 he was called to the Lake View Hospital at Danville to attend Mrs. Cassity. He found her in distress and said “the injury which the patient believed responsible for her distress was trauma high in her epigastrium that resulted in periodic attacks of pain, similar to but never as sevére as the attack at that time. Examination of the abdomen revealed a dome-like contour with moderate distension. The skin was marked by several former surgical incisions. Rebound tenderness was unusually present, especially in the upper abdomen. * * The left foot and ankle were encased in a plaster cast due to an injury not associated with the injury in question.” Dr. Dickerson concludes “It is my opinion that the cause of Mrs. Cassity’s distress or condition was produced by deep trauma to the abdomen, associated with previous abdominal surgery, which resulted in partial intestinal obstruction. She has been unable to work from the time of the injury and will be for some time.”

Exhibit D, filed herein, is a letter signed by W. L. Couch, Assistant Superintendent of Charities, Department of Public Welfare, to Frank R. Eagleton, attorney for claimant. This letter is as follows:

“I have a letter from Dr. Major H. Worthington, superintendent of the Research and Educational Hospitals, in which he discusses among other things the facts in the case of Ruth Cassity. I am not enclosing a copy of his letter only because he has written me in a rather personal way. I will quote one paragraph of Dr. Worthington’s letter.
“Keep these two points in mind — a kick in the chest or over the sternum means an injury to the bony thorax enclosing the lungs and heart — the epigastrium refers to the soft parts of the lower abdomen over the stomach and intestines.” In another section of the letter, Dr. Worthington states—
“If the original injury was a kick in the chest, the symptoms now complained of would - have no bearing on the original injury.” In view of the fact that the matter was referred to Dr. Worthington in an effort to assist us in getting at the facts, I have, of course, sent a copy of this letter to Mr. Nebel in the Attorney General’s Office, as he, too, should have this information.”

No other reference to an examination by a Dr. Worthington appears in the record of this case, and no medical testimony has been presented.

Claimant’s testimony is vague and indefinite. She testifies that a month after the injury she left the hospital at Manteno for Danville, and that the second or third day after she arrived at Danville she became suddenly ill and was taken to the Lake View Hospital at Danville, and Dr. Dickerson was called to treat her; that he treated her for six months or more; that thereafter Dr. Dickerson became ill and entered a sanitarium. In answer to a question of. whether she had been able to work since the injury she answered, “I have not worked at any time since then.” She testified that she had had three or four abdominal operations before the injury complained of.

There is no competent proof of the nature of claimant’s injury — the cause or duration thereof. No objective condition or symptom appears. The claim is based entirely upon the subjective complaint of the claimant. The entire record is insufficient to meet the requirements of Section 8(13) of the Workmen’s Compensation Act.

Also, as pointed out in the brief filed herein by the Attorney General:

Liability under the Workmen’s Compensation Act cannot rest on imagination, speculation, or conjecture, nor on a choice between two views equally compatible with the evidence, but such liability must arise out of the facts established by a| preponderance of the evidence.
Springfield Dist. Coal Co. v. Ind. Com., 303 Ill. 528.
Libby, McNeill & Libby v. Ind. Com., 320 Ill. 293.
Rittler v. Ind. Com., 351 Ill. 338.
Rosenfield v. Ind. Com., 374 Ill. 176.
Mandell v. State, 12 C. C. R. 49.
Pesavanto v. State, 12 C. C. R. 474.
Alexander v. State, 13 C. C. R. 5.
Brachenbush v. State, 13 C. C. R. 20.
Nichols v. State, 13 C. C. R. 80.
Pearman v. State, 13 C. C. R. 84.

Respondent, by the Attorney General, contends that to base an award upon such a record as is now before the Court would be at best speculatory. The evidence could very well support the view that the present condition of claimant existed for some time prior to the injury complained of; that the statements of claimant are vague and indefinite in regard to the type and extent of disability which she allegedly suffers, and that to make an award based upon such a set of facts would require considerable speculation or conjecture, which is contrary to the previotis holdings of this Court and the Supreme Court of Illinois.

Claimant in this case is represented by very able counsel, entirely familiar with the requirements under the Workmen’s Compensation Act, and it can be safely assumed that had there been evidence to sustain the contentions of claimant, such evidence would have been fully presented.

We must agree with the contention of the Attorney General that to base an award on the record of this case would be merely speculation and conjecture.

For the reasons stated, an award is denied.


text:
    (No. 3871
    Herman Drezner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

      Petition of claimant for rehearing denied September 11, 1945.

    Paul W. Brust, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Herman Drezner, was certified on May 1, 1939, by the Illinois Civil Service Commission to the Illinos Liquor Control Commisson, and was thereupon employed by the Illinois Liquor Control Commission as a special agent. On November 25, 1941, written charges were filed with the Illinois Civil Service Commission alleging that claimant had solicited funds for the Democratic Party during the months of October and November, 1940. A Trial Board, appointed by the Commission, subsequently conducted an investigation of the charges, and claimant was suspended from his position for a period of thirty days from December 17, 1941, to January 16, 1942.

On January 14, 1942, the Illinois Civil Service Commission, approving the findings of its trial board, ordered that claimant be removed from his certified position as of January 31, 1942.

On May 21, 1942, claimant instituted proceedings in the Circuit Court of Cook County to secure his reinstatement and reassignment to duty as a special agent with the Illinois Liquor Control Commission. On January 12,1943, the court entered a judgment order quashing the record of the discharge of claimant, which judgment was not appealed from, and is in full force and effect. Pursuant to this judgment, on January 21, 1943, claimant was reinstated and reassigned to duty as special agent with the Illinois Liquor Control Commission in the classified service of the State of Illinois, and since that time has performed the duties of the position and received the salary attached thereto.

Claimant now alleges that from December 17, 1941, to January 21,1943, he was illegally prevented from performing the duties of his position as special agent, and was illegally deprived of the salary accruing to that position ; that during all of said time he was ready, able and willing to perform the dutes of the position, and was illegaily prevented from doing so; that the salary of the position of such special agent was $2400 per year, payable in monthly payments of $200 each; that for the month of December, 1941, claimant was paid for seventeen days only in the sum of $103.22; that under Section 12 of the State Civil Service Act, his suspension in excess of thirty days was prohibited; that he remained under suspension and was denied the right to perform the duties and receive the salary as such special agent from December 17, 1941, to January 21, 1943; and that there is due and owing to him for salary for said period the sum of $2626.68.

The claimant also alleges that the Illinois General Assembly, at its regular 1941 session, made an appropriation for the ordinary and contingent expenses of the Illinois Liquor Control Commission, which appropriation included $300,800.00 for salaries and wages of employees of the Commission; that the appropriation was in part as follows: 36 special agents at $2400.00 each, $86,400.00 per annum; and that there were sufficient funds on hand when the appropriation lapsed to pay claimant the amount of salary alleged to be due him for the period in question.

From the record, it appears that claimant was a duly qualified civil service employee of the State of Illinois; that he was properly suspended for a period of thirty days; that at the expiration of said period of thirty days he was illegally discharged and wrongfully prevented from performing the duties of his position; and that he was subsequently reinstated by order of a court of competent jurisdiction. He has been diligent in the protection of his own rights, and at all times for which he seeks payment of salary, he was ready, willing, and able to perform the duties of his position, tendered the performance thereof, and such tender was refused. A civil service employee, illegally discharged and subsequently restored to his position by judgment of a court of competent jurisdiction is entitled to the salary provided for said position for the period of the illegal discharge where he is ready, able, and willing to perform the duties of such position and tendered his services to his employer. Wilson vs. State, 12 C. C. R. 413.

It also appears from the record, however, that during seven months of the period in question, there were thirty-six special agents employed by the Commission. The appropriation for the biennium was for salaries and wages of thirty-six special agents, at not to exceed an annual rate of $2400.00 each. Claimant’s contention that if thirty-six agents had in fact been employed and paid, the payroll would have exhausted the appropriation for the period in question, can not be sustained. The appropriation was for a salary “not to exceed” the specified rate contained in the appropriation bill. The Illinois Liquor Control Commission could not at any time have employed more than the specified thirty-six special agents. During seven months of the period of claimant’s absence from his employment, his position was filled by a de facto employee. Payment of the salary or compensation of a public office or employment to a de facto incumbent during the time that he performed its duties prior to the reinstatement of the de jure officer or employee is a defense to an action by the de jure officer seeking payment of the same salary or compensation. Laird vs. State, 13 C. C. R. 78.

The Court, therefore, finds that claimant is not entitled to the payment of salary for the period of thirty days during which he was rightfully suspended, and is not entitled to the payment of salary for the period of seven months during which time his position was filled by a de facto employee. Claimant, however, is entitled to award for payment of his salary during the remaining period of his illegal discharge in the amount of $1026.68.

Award is therefore entered in favor of the claimant in the sum of $1026.68.


text:
    (No. 3881
    Revy M. Martin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1945.

      Petition of claimant for rehearing denied September 11, 1945.

    Wilson & Schmiedeskamp, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Bevy M. Martin, employed by the Department of Public Welfare of the State of Illinois, as an attendant at the infirmary of the Illinois Soldiers’ and Sailors ’ Home at Quincy, Illinois, was struck by an automobile on the grounds of the Home on February 10,1944. The Illinois Soldiers’ and Sailors’ Home consists of a group of buildings, including a hospital, infirmary, administration building, and various cottages. The grounds of the institution are enclosed, and a paved road enters .the east side of the grounds through a stone gate and curves past various buildings to another gate at the south side of the grounds.

Claimant customarily rode to work on a bus which enters from the east gate and leaves through the south gate. On the day of the accident, claimant was required to report for work at 7 A. M. At 6:40 A.M. he got off the bus at the regular stop on the grounds, between the hospital and the infirmary. He then attempted to cross the street when he was struck by a moving automobile and seriously injured. He was immediately taken to the hospital of the Illinois Soldiers’ and Sailors’ Home, was subsequently moved to Blessing Hospital at Quincy, Illinois, under the care of Dr. James F. Merritt, and later returned to the hospital at the Illinois Soldiers’ and Sailors’ Home.

As a result of the accident, claimant sustained a fracture of the neck of the right scapula and an impacted fracture of the surgical neck of the left femur and com-minuted fractures of both the left tibia and fibula. He also sustained shock, a possible skull fracture, a weakened heart, and thrombophlebitis in both left and right legs. Because of the condition of shock, and the subsequent development of thrombophlebitis, the fractures were not set. Claimant’s hip has failed to heal, and his left leg is shortened approximately an inch and a half. As a result of the fracture of the scapula, his right shoulder is now completely ankylosed. Claimant is still able to walk only with the aid of crutches, and it appears unlikely that he will ever be able to walk unaided, or to use his right shoulder. Claimant is totally and permanently disabled.

At the time of the accident, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. At the time of the injury claimant had no children under sixteen years of age. Claim is made for temporary total disability, for medical expenses in the following amounts: Blessing Hospital, Quincy, Illinois, $273.40; Dr. James F. Merritt, Quincy, Illinois, $128.00; nursing services $426.00; Dr. Harold Swanberg, Quincy, Illinois, $10.00; Illinois Soldiers ’ and Sailors ’ Home, $15.00; and for complete and permanent disability, including pension, under paragraph 8(f) of the Workmen’s Compensation Act.

An injury received while on the employer’s premises by an employee going to or from the scene of his duty is in the course of and arises out of his employment, if the employee is using a customary or permitted route within a reasonable time before or after work. Schafer vs. Industrial Commission, 343 Ill. 573. At the time claimant was injured, he had entered the grounds of the institution where he was employed; the injury was sustained approximately fifteen minutes before he was required to report for work; and he was on a paved road regularly used by employees and others entering the grounds. The court finds that the injury was in the course of and arose out of claimant’s employment.

The court also finds that claimant is completely disabled, and is therefore entitled to' an award under Section 8(f) of the Workmen’s Compensation Act. This section provides for payment of compensation equal to 50% of his earnings, but not less than $7.50, nor more than $15.00 per week, commencing on the day after the injury, and continuing until the amount paid equals the amount which would have been payable as a death benefit if the employee had died as a result of the injury, and thereafter a pension during life annually. Since payments are to commence on the day after the, injury, the Act does not provide for a separate award for temporary total incapacity.

Claimant has incurred medical and hospital expenses for which he is entitled to an award in the total amount of $852.40, and he has received from the respondent the sum of $513.55 which must be deducted from any award entered in his favor. Claimant’s annual wage for the year immediately preceding the accident being $1500.00, his average weekly wage was $28.44, 50% of which is $14.42. Since the injury occurred subsequent to July 1, 1943, this must be increased 17%%, making a compensation rate of $16.94. The amount which would have been payable as a death benefit if the claimant had died as a result of his injury is $4700.00.

Award is therefore made in favor of the claimant, Bevy M. Martin, in the amount of $5552.40, from which must be deducted the sum of $513.55 previously paid to claimant, leaving a balance of $5038.85, to be paid to him as follows:

$426.00, reimbursement for nursing services;

$273.40 for the use of Blessing Hospital, Quincy, Illinois;

$128.00 for the use of Dr. James F. Merritt, Quincy, Illinois;

$10.00 for the use of Dr. Harold Swanberg, Quincy, Illinois; and

$15.00 for the use of the Illinois Soldiers’ and Sailors’ Home, all of which are payable forthwith.

$664.99 which has accrued, and is payable forthwith.

$3521.46 payable in weekly installments of $16.94 each, beginning June 12, 1945, for a period of 207 weeks with an additional final payment of $14.88.

Claimant is entitled thereafter to an annual pension in the amount of $376.00, payable in the amount of $31.33 per month.

The court specifically reserves jurisdiction for the entry of such further orders as may from time to time be necessary.


text:
    (No. 3898
    Maude Deans, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1945.

    David N. Conn and William G. Juergens, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Maude Deans is the widow of Charles J. Deans, deceased, a former police officer of the Illinois State Police. On August 8, 1944, while riding a motorcycle on Illinos Highway No. 14, near the village of Christopher, Franklin County, Illinois, the deceased apparently lost control of his _ motorcycle which turned abruptly off the pavement, and rolled down an embankment. Deans was thrown from the motorcycle and sustained a fractured skull, from which he died almost immediately. Claimant, as the widow of the deceased officer, seeks an award under the provisions of the Workmen’s Compensation Act in the amount of $4,700.

At the time of the accident, which resulted in the death of Charles J. Deans, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of decedent’s employment.

Decedent was first employed by the respondent on January 1st, 1944. Persons of the same class, and in the same employment, earned $185.00 per month during the year immediately preceding the death. Under Section 10(c) of the Workmen’s Compensation Act, compensation must be computed on the basis of an annual wage of $2,220.00, making decedent’s average weekly wage $42.69, and his compensation rate the maximum of $15.00 per week, plus 17%1/2, or $17.63 per week. The decedent had no children under sixteen years of age dependent upon him for support at the time of his death.

Claimant is therefore entitled to an award under Section 7(a) of the Workmen’s Compensation Act in the amount of $4,000.00. The death having occurred as a result of an injury sustained after July 1st, 1943, this amount must be increased 171/2% or $700.00.

Award is therefore made in favor of the claimant, Maude Deans, in the amount of $4,700.00 to be paid to her as follows :

$1,002.40 which has accrued and is payable forthwith;
$3,697.60 is payable in weekly installments of $17.63 per week, beginning September 11th, 1945, for ,a period of 209 weeks, with an additional final payment of $12.93.

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

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


author: Fisher, C. J. Fisher, C. J.

text:
    (No. 3904
    With leave to present additional evidence.
    Ernest C. Carls by Mrs. Marjorie Van Stone Carls, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1945.

      Claimant, pro se.

    .George F. Barrett, Attorney General; C. Arthur Rebel, Assistant Attorney General, for respondent.
   Fisher, C. J.

Claim was filed April 10, 1945 for Eight Hundred Eight Dollars and Twenty-seven Cents ($808.27)under the provisions of Chapter 23, Section 372(a) Illinois Revised Statutes 1943, which reads as follows:

“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 Public 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 recomSaend 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.”

Claimant alleges that Alfred Bartosik, John Brant, Wesley Beaty, Vincent Litwicki, Walter Racinowski and Thomas Thario escaped from the Illinois State Training School for Boys at St. Charles, Illinois, on July 12, 1944. On the night of July 12th or 13th a 1941 Nash Sedan Automobile belonging to Ernest C. Carls was stolen from a locked garage. The same night the said automobile was wrecked and the six named escapees were apprehended at the time of the wreck by Deputy Sheriff Harry Crawford of Kane County.

As a result of the theft and wrecking of the said automobile, claimant sustained damages in the amount of $808.27. The Department of Public Welfare on March 14, 1945, filed herein a report and recommendation, as follows:

“Having been presented with a claim for damages to an automobile filed by the above claimant, the Department of Public Welfare, pursuant to Section 372a of the Charities Act relating to claims for damages by inmates of charitable institutions, has investigated the allegations set forth and reports as follows:
From, the information thus obtained it appears—
1. That the above named Ernest C. Carls and Marjorie Van Stone Carls bear the legal relationship of husband and wife and that the said Ernest C. Carls entered the service of the United States, February 13, 1942, having last been reported to be in New Guinea.
2. That Ernest C. Carls on or about November 11, 1940 in consideration of a purchase price of Twelve Hundred .and Fifty Dollars | $125.00) purchased from Art’s Garage, Sycamore, Illinois, one automobile described as a ’41 Nash Six Sedan, Motor No. 357235. Registration (license No. 842-786) shows title to be in Ernest C. Carls, 132 Fabian Street, Sycamore, Illinois, subject to a lien given the Sycamore Finance Company in the sum of $750.00.
3. That, since Ernest C. Carls entered the service of his country, his wife, Mrs. Marjorie Van Stone Carls has had the custody and keeping of the above described automobile at Virgil, Illinois, where she has been living with relatives.
4. That on or about the night .of July 12-13, 1944, said described automobile. was in a locked garage, when it was stolen and subsequently wrecked, entrance into the garage having been gained by breaking a large window.
5. That, although there were no known outside witnesses to the theft, six boys were apprehended at the actual time of wrecking of the herein described automobile by Deputy Harry Crawford of the Kane County Sheriff’s office. The said six boys were identified as follows:
Alfred Bartosik, John Brant, Wesley' Beaty, Vincent Litwicki, Walter Kacinowski, Thomas Thario, all of whom were at liberty after having escaped from the St. Charles School for Boys, July 12, 1944.
6. That, because of said theft and wrecking of said automobile, damages resulted for which claim is presented in the amount of $808.27, based upon items listed in:
(a) Invoice of Leader Oil Company, Virgil, Illinois. (Copy attached under the caption Exhibit “A”)............ $ 47.06
(b) Estimate obtained from Van’s Garage, Virgil, Illinois. (Copy attached under the caption Exhibit “B”)...... 90.90
(c) Estimate obtained from Barkers Body Shop, Aurora, Illinois. (Copy attached under the caption Exhibit “C”) .............................................. 670.31
7. After a careful consideration of the facts presented and it appearing the damages herein mentioned arose through no fault of claimant, but did result from the wilful acts of the boys named, who had been inmates of the Illinois State Training School for Boys, at St. Charles, Illinois, a charitable institution over which the State of Illinois has control and while they were at liberty after having escaped from said institution, It Is Hereby Recommended that an award be made to claimant in the amount for which claim is presented, to-wit: Eight Hundred and Eight and 27/100 Dollars (808.27), representing the aggregate of items listed in Exhibits “A”, “B”, and “C”.
Respectfully submitted,
DEPARTMENT OF PUBLIC WELFARE
By Rodney H. Brandon, Director. ■
The record consists of the following:
Statement of Claim.
Stipulation of Facts.
Statement, Brief and Argument by the Attorney General on behalf of Respondent.
Waiver of Statement, Brief and Argument by Claimant. Departmental Report.

From the report of the Department of Public Welfare it appears that the automobile belonging to claimant was subject to a lien given on November 11, 1940 to the Sycamore Finance Company in the sum of Seven Hundred Fifty Dollars ($750.00) at which timé the automobile was purchased by claimant. It does not appear from the record that this lien of $750.00 has been paid or otherwise satisfied, and we must assume that it remains a valid lien for such sum.

This claim is based entirely upon estimates necessary to repair the damaged automobile and, while these estimates appear to be reasonable, no award can be made until the repairs are actually made and paid for, or a release of the said lien is obtained. Until such release is obtained, the Sycamore Finance Company could very well be an “injured party” and entitled to share to the extent of its interest in any award which might be made herein.

For the reason stated, an award must be denied, and an order is entered herein giving claimant sixty (60) days to present such additional evidence as indicated herein to be required. In the event of claimant’s failure to so produce such additional evidence, the claim will stand dismissed as óf the date of this order.

(No. 3904

Claimant awarded $808.27.)

Supplemental Opinion filed November 13, 1945.

Fisher, C. J.

Subsequent to our original Opinion filed herein at the September 1945 term of this Court claimant, in accordance with leave granted, has filed additional evidence which we indicated was required before the rights of the parties could be determined.

The record now consists of the following': Statement of Claim, Report and Recommendation of the Department of Public Welfare, Statement, Brief and Argument on behalf of Respondent, Receipt for payment in full of lien to Sycamore Finance Company, Paid Voucher for repairs, and Stipulation of Facts.

The facts in this claim are fully set forth in our original Opinion.

The Department of Public Welfare, in accordance with Chapter 23 of Section 372(a) Illinois Revised Statutes 1943, made an investigation of this claim and found the facts as alleged by claimant to be true. The Department found the damages to claimant’s car were caused by inmates who had escaped from the Illinois State Training School for Boys at St. Charles, Illinois, which is a state charitable institution.

The Attorney General, in a brief and argument filed herein, concludes that “The report of the Department and the sworn statement of the claimant are in complete agreement as to the facts, and the Department has recommended that an award be made. The charges for the damage done to the automobile in the possession of the claimant are itemized fully and appear to be reasonable in every respect. As the procedure outlined by the statute has been followed in detail and there is no disagreement as to the facts, it appears that the claimant is entitled to an award in the amount of $808.27.”

An award is entered in favor of claimant, ERNEST C. CARLS, in the sum of Eight Hundred Eight and 27/100 Dollars ($808.27).


text:
    (No. 3703
    Silas Hamson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

    J. Howard Helmick, for claimant,
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint was filed April 8, 1942 and seeks an award under the Workmen’s Compensation Act.

The record consists of the claimant, report of Divsion of Highways, stipulation in lieu of evidence, waiver of brief of claimant and respondent.

Silas Hamson, according to the record, resides in Decatur, Illinois. He was first employed by the Division of Highways on April 23, 1941 as a laborer at a rate of $.50 per hour and continued in that capacity and at that wage rate until the time of the alleged accident on which this claim is based. He had no children under sixteen years of age dependent upon him for support at the time of the accident in question.

On July 23, 1941 at about 8:25 A. M., the claimant was riding in the bed of a truck owned by the respondent. The truck was traveling from Decatur to Farmer City to engage in patching concrete pavement on arrival at that point. At the “ Y” intersection of S. B. I. Routes 48 and 121, the driver lost control of the truck, the truck upset and the claimant was thrown to the ground and injured. He was taken immediately to St. Mary’s Hospital in Decatur and placed under the care of Dr. John J. Hopkins, of that city. He remained under the care of Dr. Hopkins until November 26, 1941. On December 9, 1941, the claimant was sent to Chicago by the respondent and there placed under treatment by Dr. H. B. Thomas, an orthopedic surgeon. He remained under the care of this physician until the 13th day of February, 1942. According to the stipulation filed herein, claimant received compensation for temporary total disability from the date of his injury to the 23rd day of February, 1942, amounting to the sum of $382.14, at a compensation rate of $11.58. He claims to be entitled to temporary total compensation to the 31st day of May, 1942, after which date he was able to return to work.

In addition to the additional temporary total disability claimed, claimant also seeks an award of $11.58 per week for 190 weeks for the loss of use of his right leg, as provided by the Workmen’s Compensation Act of the State of Illinois.

In the report of the Division of Highways, filed in this case are reports of the physicians who treated claimant. Dr. John J. Hopkins, who first attended the claimant directly after the accident and in whose care he remained until November 26, 1941, summarizes claimant’s injuries as follows:

“Sprain and bruise left and right ankles, bruises left thigh posterior lower Vs, bruise over right crest of illiac. Laceration left face. Fracture longitudinal through head! of right tibia. Treatment — suture of laceration on face, immobilization of fracture. Estimated date of ability to return to work — 12 weeks.”

Dr. H. B. Thomas, to whom he was sent after being discharged following the treatment rendered by Dr. Hopkins, made a report to the Division on December 18, 1941, as follows:

“Treatment — baking and massage and use to right knee and ankle. Prognosis — fair. The right knee will continue to give some trouble. The right ankle should recover completely. Not yet able to work * * * »»

On February 13, 1942, Dr. Thomas reported:

“Mr. Hamson was dismissed today and is on his way home by train. His measurements of the motion in the aiik'le are about the same as last time — dorsi flexion of both ankles are almost alike, plantar flexion of the right ankle is 10° less than the left. Supination is 50% of normal and pronation is 35% of normal. (2/3/42.) The motion at the knee is practically full. You will remember, however, that he had a bad fracture. He will probably have a disability of the right knee of 10% and of the right ankle 10%. I believe he could do some light work, but I am sure he won’t want to.”

From a consideration of this record, we make the following finding. That the claimant and respondent were, on the 23rd day of June, 1941, operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, said claimant sustained accidental injuries which arose out of and in the course of the employment; and 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 Section 24 of this Act.

The record discloses that claimant was being paid by the respondent the sum of $4.00 per day for an eight hour day or an annual wage of $800.00. This in turn equals an average weekly wage of $15.38, making his compensation rate amount to the sum of $7.69. However, the accident having occurred subsequent to July 1, 1939, the compensation is increased under the Act by 10%, making his weekly compensation rate $8.45; that claimant, at the time of the injury was 58 years of age and had no children under sixteen years of age dependent upon him for support; that the necessary first aid, medical, surgical and hospital services were provided by the respondent, amounting to the sum of $480.16; that the sum of $382.14 was paid to the claimant for temporary total disability at a compensation rate of $11.58. That claimant was temporarily totally disabled from June 23, 1941 to May 31, 1942, being 48 weeks and six days, for which he is entitled to be paid at $8.45 per week, amounting to the sum of $412.84, leaving a balance due claimant for temporary total disability of $30.70.

From the medical testimony, it appears that claimant has sustained a 25-% permanent loss of use of his right leg, amounting to 47% weeks at $8.45 per week, which is $401.38. Claimant is also entitled to $30.70 additional temporary total disability compensation making a total sum due claimant of $432.08, as provided in Section 8, paragraph 15e of the Workmen’s Compensation Act, as amended.

An award is therefore entered in favor of claimant in the sum of $432.08, all of which has accrued and is payable forthwith.

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


text:
    No. 3787
    The Western Union Telegraph Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1945.

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

The above named claimant is a foreign corporation existing under and by virtue of the laws of the State of New York, and having authority to do business in the State of Illinois. Among other services rendered to the public by the claimant is installing and maintaining time service by means of electrically controlled clocks.

During the month of October, 1940, at the request of the Secretary of the Senate of the State of Illinois, at Springfield, the claimant maintained regular time service by means of an electrically controlled clock for the State Senate. This clock was kept in operation and services were maintained by the claimant at the request of the aforesaid official from October 1940 through July, 1942. The total charges, for this service rendered by claimant amounts to the sum of Twenty-one ($21.00) Dollars.

This claimant, prior to filing its complaint, demanded payment of Twenty-one Dollars from the aforesaid Secretary of the Senate of the State of Illinois, but payment was refused for the reason that the account had not been vouchered in time to be paid before the appropriation therefor had lapsed.

From the record it is evident that the services were rendered as per invoice attached to the complaint. And it is further evident from the record that had claimant billed the respondent in apt time the account would have been paid in due course for the reason there existed appropriations sufficient to pay each item at the time the services were rendered.

Where it clearly appears that claimant rendered services to the State at the request of its duly authorized officers and for which an appropriation existed out of which payment could be made therefor, an award may be made for compensation for such services, in an amount not in excess of that agreed upon, where such appropriation lapsed before payment was made for same, on claim filed within a reasonable time. Riefler, et al., vs. State, 11 C. C. R., 381. Western Union Telegraph Company vs. State, 12 C. C. R., 329.

An award is therefore entered in favor of claimant in the sum of Twenty-one ($21.00) Dollars for the following periods: October, 1940, $3.00; October, 1941, $3.00; July, 1941, $3.00; October, 1942, $3.00; April, 1942, $3.00; January, 1942, $3.00; July, 1942, $3.00.