text:
    (No. 4011
    Vernon Oil Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Carl E. Stilwell, for Claimant;
    George F. Barrett, Attorney General;
    C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Vernon Oil Company, an Illinois corporation, filed its complaint on March 3, 1947 to recover the sum of $7,396.15, which sum it alleges was overpaid to the State for motor fuel tax owed to the State for the period from January 1, 1938 through July 1944. The complaint further alleges that in the latter part of the year 1944 the State audited the books of claimant for the purpose of checking the motor fuel tax owed to the State for the period from January 1, 1938 through July 1944, and that said audit showed claimant had overpaid the motor fuel tax by the said sum of $7,396.15.

The respondent filed a motion to dismiss the complaint for the reason that the claim is barred by the statute of limitations contained in Chapter 37, Section 439.22, Illinois Revised Statutes 1945. This section is commonly referred to as Section 22 of the Court of Claims Act, which went into effect on July 1, 1945, and reads:

“Every claim cognizable by the court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the clerk of the court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons, and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

The complaint, on its face, shows that the cause of action arose over two years prior to March 3, 1947, the date complaint was filed. In the case of Illinois Oil Company v. State, No. 3976, opinion in which was filed at this term of Court, we discussed this question at length. We held in this case that said Section 22 operates as a limitation on the jurisdiction of this Court, and that claim must be filed within two years from the time the cause of action accrued.

The motion of respondent is granted, and the case is hereby dismissed.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 4012
    Dorothy Fogleman, widow of Glen Fogleman, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Claimant, pro se.

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

Claimant, Dorothy Fogleman, is the widow of Glen Fogleman, deceased, who was formerly employed by the respondent as Supervisor of Pedatory Control in the Department of Conservation. On February 5, 1947 claimant was engaged in the bombing of a crow rookery near Oblong, Illinois. In the company of other employees of the department, he hung dynamite shot bombs in a hedgerow and drove to Oblong for lunch. While returning to the rookery to explode the bombs, a front tire of his automobile blew out, and the car crashed over a twenty foot embankment, resulting' in his death from a fracture of the neck. Claimant, as widow of the deceased employee, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the accident, which resulted in the death of Glen Fogleman, 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 had been employed by the respondent continuously for more than one year prior to his death at a salary of $2,556.00 per year decedent’s average weekly wage was $49.15 so that his compensation rate is the mayimnm of $15.00 per week. The death having occurred subsequent to July 1, 1945, this must be increased 20%, making a compensation rate of $18.00 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, which must be increased 20% under Section 7 (1), making a total award of $4,800.00.

An award is, therefore, made in favor of the claimant, Dorothy Fogleman, in the amount of $4,800.00 to be paid to her as follo.ws:

$ 576.00, accrued is payable forthwith;
$4,224.00, is payable in weekly installments of $18.00 per week, beginning September 18, 1947, for a period of 234 weeks, with an additional final payment of $12.00.

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 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: Damron, J.

text:
    (No. 4013
    Ford B. Lindeberg, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.
    Roy A. Ptacin, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint was filed March 7, 1947 and the evidence heard on June 3, 1947. The record consists of the complaint, transcript of the testimony, departmental report, and stipulation of the parties -waiving statement, brief, and argument. No jurisdictional question is raised.

The claimant, Ford B. Lindeberg, 46 years of age, on September 21, 1946, was employed by respondent in the Department of Public Welfare as an attendant at the Chicago State Hospital. On that day while on duty in “Cottage Ward 10-11, about 6:45 a.m., he was assaulted by a patient and thrown to the floor injuring his left knee (and left hand.

Claimant was immediately examined by the night physician .and carried on a stretcher to the employee’s infirmary, where he was confined to bed and given first-aid. The same morning following further examination and X-rays which disclosed a comminuted fracture of the patella, he was transferred to the Illinois Research Hospital. Additional X-rays were taken and the fracture of the left knee was reduced by a bone operation and the fragments held in apposition by a wire suture.

Claimant was hospitalized at Illinois Research Hospital until October 16 and then returned to the Chicago State Hospital for further treatment. He was in the hospital until October 29, 1946. He returned to work on December 1, 1946.

Prior to the accident, claimant’s general condition, including his left knee and hand, was very good but since then, he has no strength or stability in his leg after normal use and after a few hours work, he experiences pain and is compelled to bandage the leg.

Dr. Albert C. Fields, called on behalf of the claimant, testified that the movement of the knee on palpation was restricted to about three-quarters of normal; .with instability of the knee joint and an abnormal increase in lateral movement. The fourth finger of the left hand is held in n flexed deformity with a limitation of extension of about 45 degrees enlargement of the mid-phalangeal joint and an inability of about 10 to 15 degrees in bringing the tip of the finger to the palm of the hand. In his opinion, the condition is described as permanent.

This testimony was further corroborated by X-rays revealing the comminuted fracture of the left patella and the fracture of the fourth finger of the left hand. The fractured knee fragments were not in complete apposition and bony union is not established between the fragments.

Dr. Louis Cisman, surgeon and personnel physician at the Chicago State Hospital, was called as a witness by respondent. He testified in the same respect as to the fractures and in answer to a question by the Assistant Attorney General stated that he (claimant) has obtained as much healing as he will with that fracture. He further testified that a union of the fractured knee was not obtained and that an X-ray as recent as March 6, 1947, showed three definite fragments separated by about a quarter of an inch with a metal wire encircling the patella. He also found about a 45 degree limitation of extension in the little finger of the left hand.

Commissioner Blumenthal who heard the testimony in this case reports there is a reddened well-healed, crescent-shaped scar about 5% inches long over the left knee cap and the lack of apposition of the fractured fragments was obvious from observation of the X-ray as was the deformity of claimant’s little finger on his left hand.

Claimant’s annual average wage was $1,440.00 with, a wepkly wage of $27.69. His weekly compensation rate would be $13.85 increased by 20% or a total rate of $16.62.

The evidence in this case on behalf of claimant as corroborated by respondent’s witness clearly indicates that claimant has sustained a forty per cent permanent and partial loss of use of his left leg for which he is entitled to $1,263.12 at the rate of $16.62 for 76 weeks.

As shown by the record, claimant also suffered a fifty per cent permanent and partial loss of use of the little finger of the left hand for which he is entitled to $166.20 at the rate of $16.62 for 10 weeks.

While at the Illinois Research Hospital claimant personally paid $16.25 for medicines and Xrrays as shown by the itemized receipted bills for such charges for which he is entitled to an award reimbursing him for these expenditures.

Claimant returned to work on December 1, 1946 and was entitled to receive $166.20 for 10 weeks temporary total disability. He' was paid $115.00 for September, $104.80 for October, and $86.25 for November, or a total of $306.05 of which $83.07 was earned during September. The balance of $222.98 represents a payment of $56.78 in excess of the $166.20 compensation to which he was entitled and this sum of $56.78 must be deducted from the award.

An award is therefore hereby entered in favor of claimant in the sum of One Thousand Three Hundred Eighty-Eight Dollars ($1,388.79) Seventy-Nine Cents ($1,445.57 less $56.78) of which $698.04 has accrued as of September 20, 1947 and the balance of $690.75 is payable at the rate of $16.62 per week commencing September 27, 1947.

A. M. Rothbart, Court Reporting Service, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $47.20. The Court finds that the amount charged is fair, reasonable and customary and said claim is allowed.

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


author: Bergstrom, J. Eckert, C. J.

text:
    (No. 4014
    William B. Myers, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Chief Justice Eckert, dissenting.
    Maurice DeWitt, for Claimant.
    George F. Barrett, Attorney General.
    C Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant filed Ms complaint on March 12, 1947 for damages to his airplane resulting from an accident which occurred on September 27, 1946 while participating in a test mobilization of the Air Corps of the Illinois Reserve Militia.

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

The claimant, William Myers, Jr., testified that he served in the United States Air Forces during the last war for almost three years; that he was connected with the Air Transport Command as Chief Flight Check Engineer and, as a part of his duties, had to relieve the copilot and pilot in test flights and act as co-pilot engineer on runs of lighter aircraft in the Umted States. It was also part of Ms duties to bring planes from the hangar to the flight line and taxi planes while on the ground. He had flown about 3,000 hours and had been on ajn fields in thirty foreign countries and on practically every airport in the United States of any size, and had completed twenty-four circuits on the Hump which is considered the most hazardous route in the world* without any accident.

The evidence further shows that claimant was a rated pilot and was commissioned as a Captain in the Air Wing of the Illinois Beserve Militia on June 16, 1946, and that pursuant to orders he reported for training maneuvers of the Air Wing of the Illinois Beserve Militia at the Chicago Municipal Airport. There were about fifty aircraft engaged in the maneuvers and he, like most of the officers in the Air Wing, owned his own plane. On September 27, 1946 while engaged in said maneuvers and while acting under orders, claimant’s airplane collided with a jeep and was severely damaged. When the accident happened claimant had the left wing position in a V formation. He was flying a B.T. 13 and had very limited ground vision while taxiing, and he testified that in taxiing or flying in formation each of the planes of the wing V are to watch the flight leader and maintain their positions, and it is his duty to keep his eyes ahead for any obstructions, such as other airplanes. It is also the duty of the control tower to warn the pilot of any obstructions. Section 1.130 of Standard Airport Traffic Control Procedures, which was introduced into evidence, states “The importance of issuing definite concise instructions to pilots of taxiing aircraft cannot be overemphasized. The visibility problem in an .airplane is most acute when taxiing. Very few aircraft afford any forward vision for several yards directly in front of the airplane and the pilot must depend to a large degree upon the control tower to issue necessary instructions which will assist him in determining the proper taxi route and will prevent collision with other aircraft or objects”.

On this particular flight the pilots were under orders to ignore the control tower and to depend on the landing signal officer for their signals. At the time the accident happened the landing signal officer' g’ave the “all clear” signal and .was waiving the flight on. The evidence also shows that the signal officer- was the one who left the jeep at the end of the runway. Claimant’s testimony is substantiated by another officer in the same flight. From the evidence, the Court is of the opinion that the accident was caused by the negligence, of the signal officer, and claimant would be entitled to an award if there was some legal basis on which to give it. In the case of Butterworth v. State, 14 C. C. R. 188, this .court denied the claim where the claimant owned his airplane which was severely damaged while acting under orders investigating flood conditions, when the plane in taking off smashed into a ditch, as there was no legal basis on which to make an award.

We have held in numerous cases that an employee’s, property, damaged by the negligence of another employee, was not compensable; that the State does not insure the property of an employee used by such employee in his employment; and that the State is not liable for damages caused by the negligence of its employees. These cases were all decided, however, before the new Court of Claims Act went into effect in July 1945, which, under paragraph C, Section 8 of the said Act, gave the Court jurisdiction of cases against the State of. actions-sounding in tort, and which specifically provides that the defense that the State is not liable for the negligence of its officers, agents and employees in the course of their employment, shall not be applicable. As this section reads, the words officers, agents find employees are written in this order and are immediately followed by the words “in the course of their employment”. We construe the words officers and agents as used here, with the word employees, to make it all inclusive so as to cover any person serving the State under the heading of employment, as the word employment affecting a relationship of master and servant is ordinarily construed. As the Statutes must be strictly construed, the words officers and agents as here used would mean the same as employees. In view of the above provisions there would be no difficulty in deciding the case before us if claimant, while- on active duty with the militia, could be classified as employed by the State.

In denying such a claim, Butterworth v. State, supra, in our dictum, referred to claimant’s status, in substance, as an employee of the State, but this point was not at issue or controlling in this case. In the case before us it is a material fact, and we must necessarily decide whether a member of the militia while on active duty, is or is not an employee of the State. A member of the militia is rendering the highest degree of service to the State whioh it is possible for a citizen to render. He is protecting and defending the sovereign power of the State. He is performing a duty which a citizen may be called upon to perform by his government in time of national emergency with or without his consent. Life itself may be the price he must pay for enjoying his high privilege of citizenship. It is not a contract of employment, measured by the accepted concept of such a contract with respect to private employment. Hays v. Illinois Transportation Co., 363 Ill. 398. The minute he is sworn in he is subject to the orders of his superiors. His individual freedom of action is strictly limited and restricted. He is governed by the terms of the military code, and penalties for infractions of the regulations therein prescribed may result in punishment by the military and may even extend to imprisonment, and in time of war, death. His rate of pay, subsistence, clothing, medical service, disability compensation and like matters, are all provided for by specific statutory authority. It is essentially different from the relationship of “master and servant” as this relationship is, considered by existing law and custom.

Under Par. C of See. 8 of the new Court of Claims Act, this court could, in a proper case, award damages to property where the accident was caused by the negligence of an employee of the State. However, for the reasons above stated, we must conclude that a member of the militia' cannot be considered an employee of the State, and an award cannot be allowed under said Par. C of Sec. 8. Neither are we advised of any authority under the Military and Naval Code for payment of damages to private property pwned by members of the militia, nor has counsel for claimant presented any legal basis for payment of this claim. In the absence of express statutory authority to pay claims of this nature they must be denied, even though claimant has suffered damage resulting from circumstances beyond his control and regardless of the equities of the case.

For the reasons stated, the claim is hereby denied.

Eckert, C. J.

(Dissenting).

Dissenting Opinion op Judge Eckert

Under Section 8 of “An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named”, which became effective July 17, 1945, this Court was given jurisdiction to hear and determine :

“All claims against the State for damages in cases sounding in. tort, in respect of which claims the claimants, would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and 'all claims sounding in tort against The Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $2,500.00 to or for the benefit of any claimant. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.”

To construe the obviously broad language of this section so as to exclude members of the Illinois Reserve Militia, while on active duty, appears contrary to the expressed legislative intent. There is nothing in the act from which we can rightfully infer that the General Assembly intended the words “officers, agents and employees” to be limited to a “master and servant” relationship.

“A member of the Illinois Reserve Militia, while on active duty, “rendering the highest degree of service to the State which it is possible for a citizen to render”, is certainly as much an “officer, agent and employee” of the State as is a member of the Illinois State Police or any other person serving the State in any other type of service. It is true that distinctions can be drawn between various types of employment within the State, but service in the Illinois Reserve Militia is nevertheless an employment of the highest type, and as integral a part of State government as can be found.

I am of the opinion that Section 8 (C) of the present Illinois Court of Claims Act was intended to include members of the Illinois Reserve Militia, while on active duty, and that therefore an award should be made in this case.


author: DAMRON, J.

text:
    (No. 4015
    Claudia Layman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Roy A. Ptacin, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   DAMRON, J.

On January 25, 1947, the claimant, Claudia Layman, employed at the Chicago State Hospital as an attendant, received an injury to her left hand by being struck on said hand with the heel of a shoe by a patient she was attempting to subdue.

The injury was immediately reported to her superior in said institution and claimant was immediately sent to the employee’s hospital. X-rays were made of the left hand which divulged a fracture of the proximal end of the 5th metacarpal. Her left hand was immobilized with splints. She returned 'to work on the 11th day of March 1947 and during the time of her recuperation period, was paid her full salary. The record discloses that during the year next preceding the injury, claimant was on leave of absence twice and the amount earned by her during that year aggregated $1,189.00.

It is stipulated, however, in the record, that employees in the same line of employment who worked a full year, received $1,740.00. It is further stated that all first aid, medical-and hospital services were provided claimant by respondent.

There being no jurisdictional question raised on the part of the respondent, the only issue to be decided by this court is the nature and extent of the injuries received by claimant on January 25, 1947, and an adjudication between the amount of money paid to her for unproductive work and the amount she would be entitled to receive as temporary total compensation during the time she was recovering from said injuries.

Claimant testified that as a result of using her left hand since the injury, it becomes sore and stiff; that the áth and 5th fingers are stiff along the outer edge to the 8 wrist bone. She further testified that she was unable to do all her usual tasks about her home due to this stiffness of the hand and that she cannot lift anything, cannot sweep by using a broom, and could not wring clothes as she had.been able to do prior to the accident.

Dr. Albert C. Fields was called as a witness on behalf of claimant and testified that he had examined the injured hand which disclosed some deformity at the 5tli metacarpal carpal articulation. The 5th finger, he testified, is held in a somewhat flexed deformity, limitation of extension about 35 degrees. He said there was practically no flexion in the mid-phalangeal joint. In motion, she lacked about an inch of bringing the tip of the finger to the palm of the hand. There is also some restriction of movement in the phalangeal joint of the other fingers. He testified he took X-rays of the injured hand which were introduced in evidence and stated that they disclosed evidence of a bony injury, and an impacted com-minuted fracture at the proximal end of the 5th metacarpal; that there was considerable deformity present at the site of the fracture.

Dr. Douis Olsman was called on behalf of the respondent ; he testified that X-rays taken by him revealed a fracture at the proximal head of the left 5th metacarpal with some deformity and separation of the proximal fragment. He testified that repeated X-rays taken at intervals after the injury showed healing to be progressive. ■ The claimant, he said, was given physiotherapy in the course of her -convalescence. He testified that at present, the patient has evidence of tenderness at the base of the left 5th finger at the 5th metacarpal carpal articulation; that there was a modified degree of contracture of the left 5th finger with limitation of complete flexion to within a half inch of the palm. That there was to a lesser degree, a limitation of flexion of the left 4th finger to within a quarter of an inch of the palm. Dr. Olsman in response to a question testified that there was about 30 degrees of full extension of the 5th finger of the injured hand.

The record discloses that at the time of the injury, claimant was 44 years of age, was married and had no children under 16 years of age dependent upon her for support. The report of the Department of Public Welfare filed herein, discloses that claimant was paid her full salary at the rate of $145 a month for January, February, and March 1947.

Upon full consideration of this record, we make the following findings: that the average weekly wage of claimant is $33.45 based on the annual earnings of employees in like employment and that her weekly compensation rate at the time of injury was $18.00. We find from the medical testimony that claimant has sustained a 30% permanent loss of use of her left hand and that she is entitled to an award of 51 weeks at $18.00 or the sum of $918.00.

The record discloses that she was incapacitated for work from January 25 to March 12, 1947 being six weeks three days for which she was entitled to receive the sum of $115.71 as temporary total compensation. She was paid full salary during that time in the sum of $222.18 being an overpayment of $106.47 which must be deducted from the award.

An award is therefore hereby entered in favor of claimant, Claudia Layman, in the sum of Bight Hundred Eleven Dollars ($811.53) Fifty-three Cents payable as follows: of this amount, $486.00 has accrued as of September 17, 1947 being 27 weeks lapsed from the date of temporary total disability. The remainder of the award, amounting to the sum of $325.53 is payable to claimant at $18.00 per week commencing on September 24, 1947.

A. M. Rothbart, Court Reporting Service, Chicago, Illinois, has entered a bill in the sum of $49.10 for taking and transcribing the testimony in this case. The court finds this charge to be fair, reasonable, and customary and said claim is allowed.

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


author: Bergstrom, J.

text:
    (No. 4019
    Josephine V. Cairns, widow of Charles O. Cairns, deceased: Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18. 1947.

    Willard V. Kelsey, for Claimant.
    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

This claim was filed on April 17, 1947 by Josephine V. Cairns, widow of Charles 0. Cairns, in her own behalf, and in behalf of her two minor children, Betty Iona Cairns and Gerald Leroy Cairns, against the State of Illinois, under Section 7 (a) of the Workmen’s Compensation Act.'

The record consists of the Complaint, Departmental Beport, Amended Complaint, Stipulation, Claimant’s. Waiver of Brief and Bespondent’s Waiver of Brief.

The evidence shows that decedent was first employed by the Division of Highways on April 19, 1945 and worked regularly thereafter until his death on March 1, 1947. That during the night of February 28-March 1, 1947, falling snow caused the highways to become slippery. This condition caused a number of vehicles to stall on a hill on U. S. Highway No. 67 approximately 2% miles north of Godfrey, Madison County. This group of stalled vehicles caused an extra-hazardous traffic condition. The Division of State Police requested aid from the Division of Highways in resolving the difficulty. Following this request, Mr. Cairns’ highway section man, George Kruse of Brighton, and Mr. Cairns drove to the hill north of Godfrey. They spread cinders on the slippery hill, which enabled all of the stalled vehicles but one to proceed. This last vehicle, a truck owned by the Lee Transportation Company, had proceeded in a southerly-direction part way up the hill when its wheels began to spin, causing it to stall again. Mr. Cairns and Mr. Kruse walked from their truck at the bottom of the hill to the stalled truck and began to carry cinders from a stock pile on the east side of the highway and throw them under the rear wheels of the Lee truck. About 2:30 A. M. Mr. Cairns had carried a shovelful of cinders across the highway and was spreading them in front of the rear left wheel of the Lee truck when a truck owned by the Hayes Freight Lines, driven by Herbert Krigbaum, Quincy, Illinois, and proceeding in a northerly direction, passed the Lee truck. Because of the falling snow the driving lights of the Hayes truck were depressed and Mr. Krigbaum failed to see Mr. Cairns until it was too late to .avoid striking him. Mr. Krigbaum immediately stopped his truck, assisted in removing Mr. Cairns’ body from the highway, and called the State Police. About 3:00 A. M. Mr. Ralph A. Gent, Alton, Deputy Coroner of Madison County, arrived at the scene of the accident, pronounced Mr. Cairns dead, and removed the body.

The record clearly shows that decedent was injured out of and during the course of his employment by respondent, and as respondent had immediate notice of" the accident and claim was filed within six months from the time it occurred, the provisions of Section 24 of the Compensation Act have been fully met. The record also shows that the Division of- Highways paid no treatment bills or compensation because of this injury.

At the time of decedent’s death, his widow, Josephine V. Cairns, and his two minor children, Betty Iona born March 28, 1934 and Gerald Leroy born March 5, 1938, were totally dependent upon him for support. Decedent’s earnings from the respondent for the year preceding his death were $1,800.00. Claimant is entitled to an award in the sum of $4,800.00. Since the death occurred subsequent to July 1, 1945 this must be increased 20%, making a total award of $5,760.00. The weekly compensation rate is $19.20.

An award is therefore entered in favor of claimant, Josephine V. Cairns, in the amount of $5,760.00, to be paid to her as follows:

$ 537.60 accrued, is payable forthwith;
$5,222.40 payable in weekly installments of $19.20 beginning on the 22nd day of September, 1947 for a period of 272 weeks.

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 concerning1 the payment of compensation awards to State employees”.


text:
    (No. 4027
    Leo Spelman and C. R. Doty, Partners, doing business as Spelman and Doty, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

      Opinion on Rehearing filed December 18, 1947.

    Max A. Weston, for claimants.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This complaint was filed on May 27, 1947 by the above named claimant, seeking- to recover the sum of $152.48.

The record consists of the complaint; stipulation, which provides that the report of the Department of Public Works and Buildings, Division of Highways, dated May 29, 1947, shall constitute the record in this case; the report of the Division of Highways, referred to in said stipulation; and waiver of brief and argument on behalf of both claimant and respondent.

The departmental report is in words and figures as follows:

“The above titled, complaint arose out of purchases of gasoline, kerosene, grease, automotive parts, and services by the Department of Public Works and Buildings, Division of Highways, from claimants. There were 81 separate items purchased during the period February 25, 1944 and June 26, 1945, inclusive.
Department records show that the purchases were made by Division of Highways employees; that the materials and services were fur-nished by claimants and used in Division of Highways equipment ; that the dates, quantities, unit prices, and totals as alleged are correct; and that said unit prices were customary and usual prices prevailing at the times and places of purchase.
Invoices (sales tickets) were not presented to the Division of Highways for payment until on or about January 21, 1947. On January 23, 1947, claimant was told by letters (claimant’s exhibit 1) that invoices dated prior to July 1, 1945 could not be scheduled and paid from current appropriations and that it would be necessary that claimant apply to the Court of Claims for an award.
Appropriations made by the 64th General Assembly were in existence and funds, available in them for payment of claimant’s invoices, if they had been scheduled for payment before the lapse of said appropriations.”

The complaint shows that the first delivery of gasoline products to the respondent, was on February 25, 1944, and thereafter, during that year, there were deliveries made down to and including December 18, 1944 in the sum of $84.64. Commencing January 2, 1945 and down to and including June 26,1945, there were sold and delivered to the respondent, gasoline and other products in the sum of $67.84.

The 64th General Assembly enacted legislation to create the Court of Claims and to prescribe its powers and duties and repealed the Court of Claims Law approved June 25, 1917, as amended (Chap. 37, Par. 439;. 111. Rev. Stat. 1945). Section 22 of this Act, which is now in full force and effect, provides as follows:

“Every claim cognizable by the court and not otherwise sooner barred by law, shall be forever barred from prosecution therein unless it is filed with the clerk of the court within two years after it first accrues . . . .”

It is well settled in this State that the power of the Court of Claims to entertain a claim against the State is purely statutory inasmuch as the State is not suable in a court of general jurisdiction and this power can be exercised only in a manner and, within the limitations as prescribed by the Statute creating this Court. Vernon Oil Company v. State of Illinois, No. 4011.

The .complaint shows on its face that all goods,' wares, and merchandise, with the exception of nine items, for which claim is made herein, accrued to claimant more than two years prior to May 27, 1947, the date of the filing of this complaint, and are therefore barred by the Statute of Limitations. The following items, June 4, 1945, $2.04; June 4, 1945, $3.60; June 4, 1945, $1.50; June 4, 1945, $0.15; June 5, 1945, $1.80; June 18, 1945, $0.90; June 18, 1945, $0.90; June 26, 1945, $1.80; and June 26, 1945, $1.65; making a total of $14.34, were filed in apt time and are allowed.

An award is therefore hereby entered in favor of claimant in the sum of Fourteen Dollars Thirty-Four Cents ($14.34)' and its claim for the remaining sum of $138.14 is denied.

Supplemental Opinion

Damron, J.

At the recent September term of this Court, an opinion was rendered in this cause allowing to the claimant the sum of $67.85 and denying claims'in the sum of $84.64 for the reason, ‘ ‘ The complaint shows on its face that all goods, wares, and merchandise, with the exception of nine items, for which claim is made herein, accrued to claimant more than two years prior to May 27, 1947, the date nf the filing of this complaint and are therefore barred by the Statute of Limitations.

On October 16, 1947, the claimant filed a petition for rehearing and directed our attention to the fact that we had overlooked that 0. R. Doty, a member of the above co-partnership, was inducted into the Armed Services of the United States in September 1943 and continued in the Armed Services until November 29, 1945.

Section 205 of the Soldiers ’ and Sailors ’ Civil Relief Act provides: “The period of military services shall not be included in computing any period now or hereafter to be limited by law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agencies of government by or against any person in military service by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of said services .....”

This provision of the Federal Statute must be regarded as written into our own statutes and therefore is a stay on pur Statute of Limitations which requires a claimant to file his claim within two years after it first accrued.

That portion of the opinion rendered at the September term which allowed claimants the sum of $67.84 and holding that the remainder of said claim was barred by the Statute of Limitations is hereby vacated.

An award is hereby entered in favor of claimants in the sum of $152.48 for merchandise and supplies sold and delivered to the respondent from February 25, 1944 to June 5, 1945.


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    (No. 4030
    Lovell Dean, widow of Warren L. Dean, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947.

    Kinder and Dey, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Lovell Dean, is the widow of Warren L. Dean, who was employed by respondent in the Department of Public Works and Buildings, Division of Hightvays, and seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

On April 14, 1947 Mr. Dean and other men were engaged in filling pavement cracks Avith molten asphalt on U. S. Highway No. 66 in Montgomery County. About 1:10 P.M. Mr. Dean was refilling his pouring-can at the rear of the kettle. A tractor-trailer transport, loaded with approximately 429 bushels of shelled' corn and driven by Mr. Everett J. Woods of Sullivan, Missouri, approached from the north. The flagman signaled to Mr. Woods to stop to permit a north bound car to pass. However, the transport disregarded the signal and continued down the highway. The flagman called a warning to the group and jumped into the ditch. Mr. Dean either failed to hear the warning or failed to respond quickly enough, for he continued to fill his pouring can at the back of the asphalt kettle. The transport continued in its course and struck Mr. Dean, pinning him between the transport and the asphalt kettle. He fell from between the two vehicles about 90 feet from the point of impact. Dean’s superior called- an ambulance to take him to a hospital. It was determined upon arrival of the ambulance that „Mr. Dean was dead. The body was taken to a funeral home at Witt. There it was found that he had suffered fractures of both legs, an arm, the skull, chest injuries and the body was badly burned.

The deceased was injured during the course of and out of his employment by respondent, and the employer and employee were operating under the provisions of the Workmen’s Compensation Act. The record does not present any jurisdictional questions. The deceased was survived by his widow, Lovell Dean, and two children, Thomas Dean, 3 years old, and Beverly Sue Dean, 4 months old.

Decedent’s earnings from respondent during the year preceding his death totalled $1,807.83. The accident having occurred subsequent to July 1, 1945, the weekly compensation rate would be $19.20. Under Section 7 (h) Par. 3 of the Workmen’s Compensation Act, claimant is entitled to an award in the amount of $4,800.00, which must be increased 20% under Section 7 (1), making a total award of $5,760.00.

An award is therefore made in favor of the claimant, Lovell Dean, in the amount of $5,760.00, to-be paid to her as follows:

$ 422.40, accrued is payable forthwith;
$5,337.60, is payable in weekly installments of $19.20 per week, beginning September 23, 1947, for a period of 278 weeks.

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.”


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    (No. 3873
    Harry Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    Clarence B. Davis, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Harry Wilson, filed his petition for readjustment of his claim under Section 19, Paragraph H of the Workmen’s Compensation Act on February 26, 1947. In an opinion filed November 13, 1945, this Court held that the accident, through which claimant was injured on August 10, 1943, arose out of and in the course of Ms employment, and awarded Mm $3,496.03 for total temporary disaMlity covering a period .of 84 6/7 weeks from September 1, 3.943 to April 17, 1945, but denied Ms claim for permanent disability.

Claimant testified at the hearing held before Commissioner Jenkins on June 19, 1947, that he has been unable to work or earn any money since his award; that he has been receiving medical treatment ever since that time; that his physical condition has not improved, but has deteriorated, and he is suffering more; that he can only stay up two or three hours at a time during the day; and that he has been unemployed since the award. Dr. William Henry Wilson testified that he had been treating claimant continuously since January 1947, and on direct examination answered as follows:

Q. As a result of your examination, can you tell the Court what you found in Mr. Wilson’s condition?
A. The patient came to me and gave me a history as follows: that on the 10th of August, 1943, while working for the State of Illinois in the Judge’s chamber, he was standing on a ladder doing some type of cleaning, and he slipped. He fell about ten feet, his head striking the floor and his back striking a chest of drawers which had been pulled out.
From that time until the present he has been unable to perform any type of significant duty. That was the history he related when he came to me on the 20th of January, 1947.
At the time of the examination, there was revealed marked tenderness at the base of the skull down to about the eighth dorsal vertebra. He was most tender at the point of the eighth dorsal vertebra. There was also a tenderness in the area of the right shoulder.
He stated he had gone to several physicians and osteopathic physicians, and had received various treatments. At the time he came to my office I did not get an X-ray examination, as I figured I would give him treatment and note the response, and get an X-ray check later on if necessary. Finally, on the 16th of May, his condition was apparently getting worse, and I decided to get an X-ray examination. I had taken his word for the fact he had an X-ray examination and nothing significant was shown, other than some changes in the right shoulder area.
The X-ray examination at the Memorial ■ Hospital on or about the 16th of May, 1947, revealed an old compression fracture of the eighth dorsal vertebra. There was some caving in of the anterior of the body of the vertebra. There was some slight arthritical indication in the shoulder.
My physical examination after the X-ray examination showed essentially the same clinical finding as my examination of January 20, 1947. He had not responded to treatment, which consisted of diathermy along with massage and intravenous medication such as potassium iodine and colchicine. Despite all of the treatment, there was apparently no favorable result. As a matter of fact, it was noted the patient moved with even more difficulty and was even more careful upon arising from a sitting position.
Basing my observations upon his history and previous treatments, the treatments I gave him, the physical examination and the laboratory study, particularly X-ray examination, it is my opinion that his is a chronic condition, and is a case of total disability, and that the patient would not be able to perform any type of duty because of this.
Q. Would you say, Doctor, in your opinion that this man’s condition of disability is progressive?
A. Yes, I would say it is progressive.

Dr. J. J. Pleak, an Osteopathic Physician, who also testified at the original hearing, testified at the hearing on May 6, 1947, that claimant received treatments from him np to January 1947; that he treated him for general neuritis in conjunction with the spine; that it resulted from the injury he received; that he had a traumatic neuritis, which is the hardest one in the whole medical history on which to get results. He also testified that in his opinion claimant could not handle a position of regular employment with regular hours.

It appears from the evidence that the claimant has been unable to pursue any gainful occupation or engage in any compensating employment since the date of his original injury. From the evidence, we concur with the recommendation of Commissioner Jenkins, who personally observed the physical appearance of claimant, that claimant’s disability has increased and he is now totally and permanently disabled as the result of the injury he sustained while employed by respondent on August 10, 1943, and so find.

Claimant also makes claim for medical services in the amount of $99.00, X-rays in the amount of $30.00, and drugs in the amount, of $8.28. As he apparently elected to provide for his own medical services, this part of his claim must be denied.

Claimant is entitled to an award under Sec. 8, Par. (f) of the Workmen’s Compensation Act, computed in accordance with Sec. 7, Par. (a) of the Act, of $4,000.00 increased by 17%% under Par. (1) or $700.00, a total of $4,700.00. From this must be deducted the sum of $1,496.03 paid through the previous award, which leaves a balance of $3,203.97 payable at his compensation rate of $17.63, and thereafter an annual pension during life in the amount of $376.00 payable at the rate of $31.33 per month.

Harry L. Livingstone, Court Reporter, 1008 Ridgely Building, Springfield, Illinois, has rendered a statement for $40.20 for the taking and transcribing of the evidence. This charge is fair and reasonable.

An award is therefore entered in favor of Harry L. Livingstone for taking and transcribing the testimony in this case in the amount of $40.20, and an award is entered in favor of claimant, Harry Wilson, in the amount of $3,203.97, as follows:

$2,362.42, accrued, is payable forthwith;
$ 841.55, is payable in weekly installments of $17.63 for a period of 47 weeks beginning November 21, 1947, with a final payment of $12.94; thereafter an annual pension of $376.00 payable in monthly installments of $31.33 during the term of his natural life.

The Court hereby retains jurisdiction of this cause for the making of such other and further orders herein that may be necessary in accordance with the provisions of the Workmen’s Compensation Act.

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


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

      Order filed November 12, 1947.

   Now coming on to be heard the petition of the respondent filed in the above entitled cause on the first day of October, 1947, and it appearing from said petition: that an award under the Workmen’s Compensation Act for total permanent disability, including a pension for life, was heretofore made to the claimant, Revy M. Martin, by this court in its opinion of date June 12, 1945; that in said opinion this court found that claimant’s annual wage for the year preceding the accident in question was $1,500.00, and that in addition to the then accrued payments, claimant was entitled to $3,521.46, 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; that claimant has received payments under said award at the weekly installment rate of $16.94 from June 12, 1945 to June 23,-1947, or for a period of 106 weeks; that on June 23, 1947, claimant, Revy M. Martin, was again employed by the respondent, State of Illinois, at the Soldiers and Sailors Home, Quincy, Illinois, at a salary of $145.00 per month, which was increased to $170.00 per month on July 1, 1947; and that said claimant is now employed and earning more than he earned prior to the injury for which said award was made;

It is, therefore, ordered, adjudged and decreed, that the award for permanent total disability, heretofore entered herein, be, and the same is hereby terminated, and that the payments thereunder cease forthwith, all in accordance with Section 8 (f) of the Workmen’s Compensation Act of Illinois.


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    (No. 4009
    Harold R. Brown and Alice I. Brown, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    Richolson, Wilhelm and Davies, for Claimants.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

.Harold R. Brown and Alice I. Brown filed this complaint on February 19, 1947.

The complaint alleges that they are the owners of a one hundred thirty acre farm in Grundy County immediately adjacent to and south of the Illinois and Michigan Canal; that they acquired the property in August, 1940.

It is further alleged that many years ago the duties of maintenance, operation and repair of the Canal were transferred from the Canal Commissioners to the Waterway Division of the Department of Public Works and Buildings; that in violation of its duty the latter Department failed to keep the Canal free of foreign matter whereby for several years since 1940 excessive water accumulated in the channel and- overflowed its banks submerging claimants’ lands, damaging their crops and preventing them from raising crops.

Claimants allege that 2,500 bushels of corn of the value of $3,400.00 were destroyed in 1941; that during the year 1942, 8,000 bushels of the value of $12,000.00 were destroyed; that they were unable to raise crops comprising 8,000 bushels of the respective value of $12,000.00 each in the years 1943 and 1944 and that the land was damaged as to its fair cash value to the extent of $150.00 an acre, namely $19,500.00, which damages' total $58,900.00.

Harold B. Brown testified that the property was acquired in 1938; that he paid $35.00 an acre for 106 acres and $40.00 an acre for the other 24 acres. He talked to the Superintendent of the Canal in March, 1942 and several times afterwards and informed him if the gates were not left open in the spring to take care of flood water the farmers would have to handle the gates. When the gates were not open the water would overflow over his farm. This happened in October, 1941 destroying 2,000 bushels which was 25% of his corn crop. In February, 1942 the Canal flooded again and the water was not off until June, 1942. Except for 2 acres, no corn was planted that year. The farm was flooded again in the spring of 1943 when only 10 acres were planted. In 1944 only 5 or 6 acres were planted producing about 500 bushels. The farm was under production in 1945. The witness also testified as to numerous conversations with Mr. Pitts, the Superintendent, and others about taking care of the gates, and changing the course of Carson Creek to eliminate excess water flowing into the Canal.

Claimants contend that the evidence discloses without denial that during heavy rainfalls the water goes over the banks of the Canal which has become a shallow basin since the Canal has been abandoned for navigation purposes and that such damage is occasioned during heavy rainfall whether the gates are opened or not. It is further contended that the State by abandonment and neglect has changed the course of the drainage and thereby damaged claimants’ property and deprived them of its use and enjoyment, for which loss they should be compensated by respondent.

The respondent contends that the instant proceedings are barred by reason of the limitation provision of Section 22 of “An Act to create the Court of Claims” (approved July 17, 1945; ch. 37, Par. 439.22 Ill. Rev. Statutes) which reads as follows:

“Every claim cognizable by the court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

It appears without controversy from this record that claimants seek an award for alleged damages caused by overflowage during the years 1941, 1942, 1943, and 1944 and that no claim is asserted for any damage either to land or crops for any year subsequent to 1944.

The claim, if cognizable by this court, accrued more than two years prior to the filing of the complaint herein on February 19, 1947.

The former comparable section (Sec. 10) of the prior enactment creating the Court of Claims (approved June 25, 3917) and repealed by the present law, afforded a five year period from the time the claim accrued, within which it might be filed.

No savings clause was enacted in the present law as to claims that accrued prior to such enactment.

The general rule which holds that statutes of limitation should not be given a retroactive effect, unless it clearly appears that the legislature so intended has no application to the present enactment. The statutory provision under consideration is a condition of liability and not a mere statute of limitation. Where the right of action is one created by statute and the time for filing the action is a condition of liability, it will not operate retrospectively in the absence of a manifest contrary intention. Carlin vs. Peerless Gas Light Co., 283 Ill. 142; Spaulding vs. White, 173 Ill. 127.

Even though the remedy granted claimants to enforce their rights in this court by the statute may be regarded as creating a liability upon the State, or creating a cause of action, such liability and corresponding right is necessarily derived from the statute itself. The provisions of this enactment with respect to the time for filing such claims is a condition of such- liability. The action or claim cannot be maintained unless there is a full compliance with all the prescribed statutory conditions precedent. Vernon Oil Co. vs. State, No. 4011. (Opinion rendered September term, .1947.)

No department, agency or official of the State can waive the immunities of the State nor does this Court have the authority or power, indirectly or directly, to waive any condition essential to confer jurisdiction upon it to adjudicate a claim. The sole authority to do this rests with the legislature.

In the light of these basic and controlling reasons we must hold that claimants are precluded by Section 22 of the Court of Claims Law from maintaining his claim for the alleged damages caused to his property and crops during the years 1941 to 1944, inclusive.

This court, after the expiration of the two year limitation as provided in Section 22 within which the claim must be filed, is without jurisdiction to consider such claim. Our jurisdiction is clearly limited to the consideration of claims which have accrued within two years prior to the filing of the complaint.

Because of the views above set forth, it will be unnecessary for us to comment further as to the manifest impropriety of the measure of alleged damages aggregating $58,900.00 as asserted by claimants, for the loss of 2,500 bushels of corn in 1941 on the basis of its gross pegged selling price; a potential yield of 8,000 bushels which were never planted for the succeeding years 1942, 1943, 1944 on the basis of the same figures, in addition to a depreciation of $150.00 an acre fair cash market value of the land itself, notwithstanding claimants’ testimony that the value of the land would be $300.00 an acre ($39,000.00) or that they would not accept $250.00 an acre if it were not for the Canal.

The motion of the respondent to dismiss this complaint is allowed.

Complaint dismissed.


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    (No. 4025
    Della Childers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    Dixon, Devine, Bracken and Dixon, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Della Childers, is the widow of George B. Childers, deceased, who was employed by the Department of Public Welfare at the Dixon State Hospital, as a watchman.

The record consists of the Complaint, Amendment to the Complaint, Departmental Report, and Waivers of Brief and Argument by Claimant and Respondent.

On January 4, 1947 Mr. Childers started out in an automobile with some other employees of the .Institution to locate two patients who had escaped, which was a part of Ms duties as watchman. The night was extremely cold — the temperature being below zero — and while the car was in the northeast part of the town about one-half mile from the Institution, the automobile became stalled in a snow bank. Mr. Childers and the other two employees took turns in shoveling the snow and pusMng the car to extricate it, wMch took about an hour and a half. They then returned to the main office of the Institution, and as decedent reached for the door latch, befell over. A doctor was immediately called, and Dr. Belinson and Dr. Kamenetz came in a matter of a few minutes. Dr. Belinson testified that decedent died from a coronary occlusion; that the physical exertion by decedent in extricating the car and the cold weather were definite contributing factors to his death. Dr. Kamenetz testified to the same effect.

It has been held on numerous occasions that when a person’s pre-existing disease is aggravated or accelerated in the course of his employment and death results therefrom, it is compensable. Finkler v. State, 11 C.C.R. 55; Martin v. State, 14 C.C.R. 189; Valier Coal Co. v. Industrial Commission, 339 Ill. 458; Marsh v. Industrial Commission, 386 Ill. 11; Simpson Co. v. Industrial Commission, 337 Ill. 454; Vincennes Bridge Co. v. Industrial Commission, 351 Ill. 444.

At the time of the accident, decedent and respondent were operating under the provisions of the Workmen’s Compensátion Act, „and notice of the accident and claim for compensation were made within the time provided in the Act, and we find that the accident arose out of and in the course of decedent’s employment.

The earnings paid to decedent by respondent for the year previous to his death aggregated $1,531.29. Claimant, therefore, is entitled to an award under Sec. 7 (a) of the Workmen’s Compensation Act in the amount of $4,000.00. The accident having occurred after July 1, 1945 this must be increased 20% making a total award of $4,800.00. .Decedent’s average weekly wage, computed under Section 10 (a) of the Act was $29.45, and his compensation rate would be $14.73 per week, which must be increased 20%, making the compensation rate $17.68 per week. Decedent had no children under the age of 16 years dependent upon him for support at the time of his death.

An award is therefore made in favor of claimant,. Della Childers, in the amount of$4,800.00, to be paid to her as follows :

$ 795.60, which has accrued is payable forthwith;
$4,004.40, payable in weekly installments of $17.68 beginning on November 24, 1947 for a period of 226 weeks, with an additional payment of $8.72.

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 of such further orders as may from time to time be necessary.

Darleen Lambert, court reporter, Dixon, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $15.00. The Court finds that the amount charged is fair, reasonable and customary, and that said claim be, and is, hereby allowed.

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


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    (No. 4028
    Della N. Corcoran, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.
    Roscoe Bonjean, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

The claimant, Della N. Corcoran, is the widow of Edward J. Corcoran, deceased, a former employee of the Secrtary of State at the State House Power Plant. On April 22, 1947, the decedent arrived at Ms place of employment about 2:30 P.M., apparently in good health. His duties included the firing of four boilers, and during the afternoon -he spent considerable time cleaning the fires. For that purpose, slash bars, about ten or twelve feet long, with a blade about fifteen inches long and two and one-half inches wide, were used to knock off the clinkers. These slash bars weigh thirty pounds or better.

About 5:45 in the afternoon, James Holland, employed at the power plant as a stationary engineer, called to decedent asking for additional steam for a new engine. After a few minutes of strenuous exertion to comply with this request, the decedent came to the engine room, up steep steps from the boiler room, and there Holland found him buckled up, with one hand on the throttle, and the other on the steam chest of an engine. In answer to Holland’s inquiry, the decedent said he was very sick. Holland, after putting him in a chair, called his superior for a replacement, and the decedent was sent home in a taxicab. Dr. Robert E. Smith called by an employee of the power plant, arrived at decedent’s home shortly afterward. After a brief examination, Dr. Smith called an ambulance for Corcoran’s removal to a hospital, but Corcoran died en route.

Dr. Smith, testifying on behalf of claimant, stated that he had been the decedent’s physician for five years preceding his death; that decedent had been treated in .1945 for common cold and had come in during the fall of 1946 for a general checkup which showed no symptoms of any kind. Dr. Smith found nothing in that examination to indicate a heart ailment. On the contrary, Dr. Smith stated he found the decedent then in very good health. Dr. Smith testified that the immediate cause of the death was a coronary occlusion, and stated that in his opinion over-exertion by the decedent, while cleaning the fires on the afternoon of April 22nd, caused the occlusion that resulted in his death.

At the time of the accident, which resulted in the death of Edward J. Corcoran, 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 record is clear that claimant’s death was caused by a coronary occlusion, and that he was not suffering from any pre-existing disease which contributed to his death. The record further shows that a coronary occlusion may result from over-exertion. On the. day in question, the decedent had performed considerable strenuous work in the course of his employment, particularly in the latter part of the afternoon. The hurry to finish the cleaning of the fires, to provide additional steam for the new engine, easily and logically might result in the coronary occlusion which caused his death. He suffered the attack at a place where he was in the discharge of those duties. The death, therefore, may be said to have resulted from an accidental injury arising out of and in the course of his employment, .at a definite time and place within the meaning of the Workmen’s Compensation Act of Illinois. Fittro vs. Industrial Commission, 377 Ill. 532, 37 N.E. 2nd, 161.

At the time of his death the decedent left him surviving Della N. Corcoran, his widow, who seeks an award, under the provisions of the Workmen’s Compensation Act, in the amount of $5,340.00, and two minor children, one of whom will be sixteen years of age on January 8, 1948. During the year immediately preceding his death his earnings were $2,890.00. Under Section 10a of the Workmen’s Compensation Act, compensation must be computed on the basis of this annual wage, making decedent’s average weekly wage $55.06, and his compensation rate the maximum of $15.00 per week, plus 20% or $18.00.

Claimant is entitled to an award under Section 7a of the Workmen’s Compensation Act in the amount of $4,450.00. The death having occurred as a result of an injury sustained after July 1st, 1945, this amount must be increased 20%, or $890, making a total award to claimant of $5,340.00.

The testimony at the hearing before Commissioner Jenkins was taken and transcribed by Hugo Antonacci, who has submitted a statement for his services in the amount of $54.45. This statement appears reasonable for the services rendered.

An award is therefore made to Hugo Antonacci, in the amount of $54.45, payable forthwith.

An award is made in favor of the claimant, Della N. Corcoran, in the amount of $5,340.00, to be paid to her as follows:

$ 522.00, which has accrued, is payable forthwith;
$4,818.00, is payable in weekly installments of $18.00 per week, beginning November 12, 1947, for a period of 267 weeks, with an additional final payment of $12.00.

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

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


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    (No. 4029
    Dorsie L. Bohannon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.
    Paulson, Morgan and Jordan, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant filed his claim on June 3, 1947 for benefits under the Workmen’s Compensation Act as a result of injuries which he received on October 2, 1946 while employed by the Department of Public Welfare at the Elgin State Hospital, Elgin, Illinois.

According to the evidence, claimant was employed as a regular attendant at the Elgin State Hospital and, while in the performance of his duties on October 2, 1946 he slipped and fell down a flight of stairs, causing injuries to his shoulder and hip. He was immediately hospitalized in the Infirmary, which is part of the Elgin State Hospital, and was confined there three weeks for treatment. He was treated by Dr. Manuel Schreiber who is employed at the hospital and also by D\r. Frederick Schurmeier who is a practising physician in the City of Elgin, who, in turn, turned him over to Dr. Lyman Smith. Claimant further testified that he was 59 years old, had no wife or children, and that he has been unable to work since the date of his injury.

At the time of the accident claimant and respondent were operating under the provisions of the Workmen’s Compensation Act. Notice of the accident and claim for compensation were made within the time provided in the Act, and we find that the accident arose out of and in the course of claimant’s employment.

Claimant makes claim for permanent total disability. The burden of proof is upon claimant, and an award must be based on facts and inferences reasonably drawn from facts proved by the evidence. Claimant’s own physician, Dr. Lyman Smith, testified that in his opinion, as a result of the accident, claimant has a 75% loss of the use of his right arm and a 5% loss of the use of his right leg because of the above injury. He also testified that the shoulder injury could probably be corrected by surgery. The Court is unable to conclude from the medical testimony and the evidence in the record that claimant is entitled to an award based on his total permanent disability, but finds from the evidence that claimant is entitled to an award based %n 75% loss of the use of his right arm and 5% loss of the use of his right leg.

Claimant’s annual earnings were $1,643.03, so his weekly compensation rate would be $15.00, which must be increased 20%, the accident having occurred after July 1,1945, making his weekly compensation rate $18.00. He is, therefore, entitled to an award for temporary total incapacity for 64 weeks at $18.00 per week or $1,152.00, 168% weeks at $18.00 per week or $3,037.50, for 75% loss of the use of his right arm; and 9% weeks at $18.00 per week or $171.00 for 5% loss of the use of his right leg; which makes a total of $4,360.50, from which must be deducted the sum of $687.28 paid' to claimant for unproductive time, leaving a balance of $3,673.22.

An award is therefore made in favor of claimant, Dorsie L. Bohannon, in the amount of $3,673.22, to be paid to him as follows:

$ 356.72 which has accrued, is payable forthwith;
$3,316.50 payable in weekly installments of $18.00 beginning November 21, 1947 for a period of 184 weeks, with a final payment of $4.50.

Gertrude E. Stover of Elgin, Illinois, was employed to take and transcribe the evidence in this case, and has rendered a bill in the amount of $18.00. The Court finds that the amount charged is fair, reasonable and customary, and that said claim be, and is, hereby allowed.

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


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    (No. 4031
    Jennalyn Gorman, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    Vernon G. Butz, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint was filed on June 14, 1947 for an award under the Workmen’s Compensation Act, as amended, for the death of Richard Gerald Gorman, the husband of the above named claimant.

The record consists of the complaint, departmental report, statement, brief, and argument of claimant, waiver of statement, brief and argument on behalf of respondent and a stipulation that the report of the Department of Public Welfare shall constitute the record in this case.

The record discloses that Richard Gerald Gorman, had been employed by the respondent as a painter since April 1, 1946. That on May 19, 1947, he with other workmen was painting a tubular fire escape at the Kankakee State Hospital and while so engaged, a clevis, holding “bosuns chair” upon which he was sitting became loosened causing him to fall approximately 35 feet to the ground. He was given first aid treatment at the Kankakee State Hospital but died about three hours, after the accident as a result of his injuries.

The record further discloses that at the time of the accident, which resulted in his death, he left surviving him his dependent widow, the claimant herein but no children under sixteen years of age. The record further discloses that during the year immediately preceding the accident he received a salary from the respondent of $3,408.00 per annum. Under Section 10 (a) of the Workmen’s Compensation Act, compensation is computed on the basis of the annual wage, making decedent’s average weekly wage $65.28 and his weekly compensation rate would therefore be $18.00 per week.

Upon this record we make the following findings:

That on the 19th day of May 1947, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, 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 the deceased during the year preceding injury were $3,408.00 and that the average weekly wage was $65.28; that the deceased at the time of the injury was 57 years of age and left surviving him . his widow, the above named claimant who was dependent upon him for her support at the time of his death.

Claimant is therefore entitled to an award under Section 7, Par. (a) and (h) of the Workmen’s Compensation Act, as amended.

An award is therefore entered in favor of claimant, Jennalyn Gorman, in the sum of Four Thousand Eight Hundred ($4,800.00) Dollars payable to claimant at $18.00 per week. Of this amount the sum of $450.00 has accrued as of November 10, 1947 and is payable forthwith. The remainder of said award amounting to the smn of $4,350.00 is payable to her at $18.00 a week commencing on November 17, 1947 for 241 weeks with the final payment of $12.00.

All future payments being subject to the terms and provisions of the Workmen’s Compensation Act, as amended, 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.”


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    (No. 4034
    Mary T. Hediger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    Frederick L. Habbeggar, for Claimant.
    George F. Barrett, Attorney. General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

Claimant, Mary I. Hediger, is the widow of John T. Hediger, deceased, who was formerly employed by the Department of Public Works and Buildings, Division of Highways, as an equipment operator. On June 9, 1947 while performing his duties as such operator, a road grader knocked down the decedent and passed over him. Death occurred a few hours later. Claimant, as widow of the deceased" employee, seeks an award for the death of her husband under the provisions of the Workmen’s Compensation Act.

At the time of the accident, which resulted in the death of John T. Hediger, 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 had been employed by the respondent continuously for more than one year prior to his death at a salary of $2,040 per annum. Under Section 10 (a) of the Workmen’s Compensation Act, compensation must be computed on the basis of this annual wage, making the decedent’s average weekly wage $39.23, and his compensation rate the maximum of $15.00 per week. The death having occurred subsequent to July 1, 1945 this must be increased 20%, making a compensation rate of $18.00 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, which must be increased 20%, making a total award of $4,800.00.

An award is therefore made in favor of the claimant, Mary I. Hediger, in the amount of $4,800.00, to be paid to her as follows:

$ 396.00 which has accrued and is payable forthwith;
$4,404.00 is payable in weekly installments of $18.00 per week, beginning November 10, 1947, for a period of 244 weeks with an additional final payment of $12.00.

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

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


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    (No. 4041
    Helen F. Fredrickson, widow of George L. Fredrickson, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

    John F. Gibbons, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

This claim was filed in this Court October 1, 1947, by claimant, Helen F. Fredrickson, on her behalf as widow and on behalf of Dolores A. Fredrickson, born January 19, 1932, the daughter of George L. Fredrick-son, deceased.

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

The stipulation provides that the report of the Department of Public Safety dated October 7, 1947, signed by Harry L. Curtis, Superintendent of the Division of State, Police, shall constitute the record in this case.

Said report is in words and figures as follows:

“Prior to his death, Mr. George L. Fredrickson resided with his wife, Helen F., and one child, Dolores A., born January 19, 1932, who were totally dependent upon him for support.
Mr. Fredrickson was first employed by the Department of Public Safety, Division of State Police, on March 24, 1944, as a police officer at a salary of $185.00 a month. He was regularly employed in that capacity from the date of his first employment until the date of his death, September 1, 1947. During his period of employment he received salary increases, and on July 1, 1947, his salary was $235.00 a month. Earnings in the year preceding Mr. Fredrickson’s injury resulting in death totaled $2,600.00.
The night of August 31-Septemher 1, 1947, Officer Fredrickson was one of a group assigned to a special detail at Pere Marquette State Park. About 5:10 A.M. September 1, 1947 Officer Fredrickson, together with Officers Durward I. Williams and Jack P. Drew, was sitting in a car parked on a driveway near the park entrance. At this time Mr. Charles E. Woolsey, of Godfrey, Illinois, rode up on a motorcycle and' asked aid for a man who had been in a motorcycle accident 1% miles, east of the park on S.B.I. Route 100 in Jersey County.
The officers drove to the site of the accident where they found that a motorcycle had struck an electric power pole breaking it off. The injured man was lying at the side of the road, and the power lines were hanging close to the ground between the body and the highway.
The officers got out of their car. At about 5:20 A.M., while darkness prevailed, Mr. Fredrickson started toward the body, but became entangled in the live wires. Officers Williams and Drew attempted to release Officer Fredrickson from the wires while Officer William C. Culberth drove to a telephone to have the current turned off. The current was turned off at approximately 5:29 A.M., and the body was removed from the wires immediately thereafter and was taken by ambulance to the Jacoby Funeral Home, Jerseyville, where Dr. B. M. Brewster pronounced the officer dead.
The State has not made any expenditures in connection with Officer Fredrickson’s death.’’

Upon consideration of this case, the Court finds it has jurisdiction of the parties hereto and of the subject matter; that the injury which resulted in the death of claimant’s intestate arose out of and in the course of his employment; that the respondent had proper notice of the accident and death of claimant’s intestate and application for claim was filed in apt time as provided under Section 24 of the Workmen’s Compensation Act, as amended. We further find from this record that the deceased’s annual earnings during the year immediately prior to his death amounted to the sum of $2,600.00 making his average weekly wage amount to the sum of $50.00. His weekly compensation rate therefore would be $19.50 under the Workmen’s Compensation Act, as amended and in force July 18, 1947.

We further find that under Section 7 (a) of the Act, claimant is entitled to an award.

An award is hereby entered in favor of claimant, Helen F. Fredrickson, in the sum of $5,785.00. Of this sum there has accrued to November 10, 1947, the sum of $195.00 being 10 weeks at $19.50 per week which is payable forthwith to her in lump sum.

The remainder of said award amounting to the sum of $5,590.00, is payable to claimant, Helen F. Fredrick-son, at a weekly rate of $19.50 commencing November 17, 1947 for 286 weeks with one final payment in the sum of $13.00.

The future payments herein-above set forth, being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction in this cause is hereby retained for the purpose of making further orders that may be from time to time necessary.

This award being subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved June 30,1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from Eoad Fund in the manner provided for in such Act.