text:
    (No. 3964
    Vernon W. Kays, Claimant, vs. State of Illinois, Respondent

      Opinion filed May 13, 1947.

      Supplemental Opinion filed February 14, 1949.

    Henry L. Cowlin, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Henry L. Morgan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

According to report of the Division of State Police, which is part of the record, on April 16, 1945 claimant, Officer Vernon Kays, with Officer Clyde Kingsbury, were patroling the highways in a State police car while assigned to the 4:00 P.M. to 12:00 P.M. shift. Officer Kingsbury drove the car, and claimant was his riding partner. Their tour of duty would have been completed when they reached their respective homes. About midnight they were approaching Marengo from the southeast on IT. S. Route No. 20. At approximately 12:10 A.M. on April 17, about two miles southeast of the City of Marengo and about .200 feet west of Union Road in the County of McHenry, a car approached them from the northeast. ' The approaching car continued 'bn' its side of the road until about 25 feet from the police car, when it turned left into the opposing traffic lane and toward the police car. In attempting to avoid a collision, Mr. Kingsbury swerved the police car sharply to his left; however, the approaching car veered back (right) toward its proper lane causing the cars to collide. • The right front and sides of both cars bore the brunt of the collision.

Officer Kingsbury escaped with minor lacerations and bruises; however, Officer Kays’ legs were crushed when the dash, which had an auxiliary radio set attached to it, was forced back against his legs and the front seat of the car. As the result of injuries received in the accident the driver of the other car, Paul Day, Marengo, on temporary leave from military service, died while being taken to the hospital.

As the police car radio had been damaged in the accident, a passing truck driver was asked to report the accident by telephone to State Police Headquarters at Elgin. About 12:55 A.M., Dr. Robert Miller, of Marengo, and an ambulance arrived at the scene of the accident. Dr. Miller supervised Mr. Kays ’ removal from the car to the ambulance for transportation to St. Joseph’s Hospital, Belvidere, where Drs. Miller and William M. Freeman, of Belvidere, rendered emergency care.

Mr. Kays’ condition grew worse during the night, and the following morning Dr. Miller called in Dr. Maurice P. Rogers, Rockford, for consultation. During the day arrangements were made for Mr. Kays’ transfer to the care of Dr. H. B. Thomas, professor emeritus of orthopedics, University of Illinois Medical College, Chicago. The move was to be made as soon as Mr. Kays’ condition improved sufficiently to permit the trip by ambulance. • Saturday morning, April 26, Mr. Kays was transferred by ambulance from St. Joseph’s Hospital, Belvidere, to St. Luke’s Hospital, Chicago, and placed under the care of Dr. Thomas.

On May 2, 1945, Dr. Thomas reported that claimant had a fracture of the distal end of the left femur with puncture wound near, injury to knee and knee joint, fracture of the distal end of the tibia and fibula with a puncture, wound near, bad fracture of the right distal, femur, bad over-riding not reduced. He also had a Colles’s; fracture and a suspicious bruise on the head.

On September 29, 1945 claimant left St. Luke’s Hospital for his home in Marengo, but thereafter made periodic trips to Chicago for treatments from Dr. Thomas, and on October 29, 1946 claimant testified that he was; still taking a treatment every two weeks.

At the time of the accident claimant was 42 years; of age, married, and had one child, Mary Lou, under 16-years of age dependent upon him for support at the time of his injury. Another child, Vernon William, a son, was born after the accident, August 4, 1945.

Claimant was first employed by the Division of State-Police on August 18, 1943, as a police officer at a salary of $185.00 a month. He continued in the same classification and at the same salary rate through April 17, 1945, the date of his injury, and earned a total of $2,220.00' in the year preceding his injury.

At the time of the injury, 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 claimant’s employment.

The Division of Police made regular salary payments to claimant from the date of his injury, April 17, 1945 until April 1, 1946. July 1, 1945 his salary was increased to $213.00 a month. Salary payments paid to him during this period totaled $2,367.17.

Respondent also paid on behalf of claimant the following medical and hospital services:

Dr. Maurice P. Rogers, Rockford.....................$ 35.00
Dr. W. M. Freeman, Belvidere......'................ 5.00
Dr. H. B. Thomas, Chicago...-....................... 963.00
St. Luke’s Hospital, Chicago......................... 2,623.60
St. Joseph’s Hospital, Belvidere...................... 229.40
Rockford Memorial Hospital, Rockford............... 10.00
Boydston Bros., Amb., Chicago....................... 51.50
Mrs. Otis R. Manby, R.N., Belvidere................. 63.00
Mrs. Nellie Etzler, R.N., Galesburg................... 14.00
Miss Hazel Troon, R.N., Elgin. .................... 109.50
Mrs. Constance McBride, R.N., Elgin................. 77.00
Mrs. Robert Traxler, R.N., Belvidere................. 14.00
A. M. Osborne (Amb.), Marengo...................... 10.00
$4,205.00

and, according to the record, the charges of Dr. Thomas for the treatment of claimant since July 1, 1945, and Dr. Robert Miller’s bill for initial treatment remain unpaid.

Claimant claimed that he had lost approximately ■67% of the use of his right knee and 98% of the use of his left knee, and testified that Dr. Thomas so advised him. This contention is not supported by any medical testimony and, from the record, the Court is unable to determine the extent of claimant’s injuries.

On January 21, 1947, Henry L. Cowlin, attorney for claimant, filed a letter in this case, reading as follows:

“Enclosed find waiver which I have signed for Vernon W. Kays.
After filing his claim in the Court of Claims, Mr. Kays filed a suit in the Circuit Court under the Tavern Liability Law, against some of the tavern keepers and obtained a good settlement and he agreed that the Court of Claims should find that he had no cause of action, as the finding in his favor in the Court of Claims would simply have meant that the State would be subrogated in the other case, and while he would get paid through the Court of Claims, the money would be deducted from the settlement that he made in the other case, so to simplify matters, it was agreed, at the time we had the hearing, that the finding should he against Mr. Kays.
This will enable him to proceed with his application for pension, which he is entitled to.
Very truly yours,
HENRY L. COWLIN.”

Under Section 166, Par. 29 of Chap. 48 of the statutes, Workmen’s Compensation Act, where a third person’s negligence caused the injury the employer is subrogated to his employees rights to the extent of the compensation paid or to be paid. O'Brien v. Chicago City Ry. Co., 305 Ill. 244.

The record shows that claimant was paid $2,367.17 for unproductive time, and that respondent paid $4,205.00 for medical and hospital services, with some medical bills remaining unpaid. Claimant admits that he obtained a good settlement, but the record does not disclose the amount. ' Neither does it disclose that respondent was reimbursed for the money paid on behalf of claimant under the Workmen’s Compensation Act, from the amount of settlement claimant received. To the extent of compensation, paid or to be paid, respondent is subrogated to the rights of claimant against said third person or persons whose negligence caused the accident, and if claimant received settlement from such third person or persons in excess of respondent’s liability under the Workmen’s Compensation Act respondent cannot maintain an action against such third person or persons but must look to claimant for reimbursement. Chicago Surface Lines, et al. v. Foster, 241 I.A. 49.

The Court is making these observations so that the Attorney General may take such further action as may be indicated by a complete record of all the facts in, this case.

Counsel for claimant requests this Court to make a' finding against claimant, so he can proceed with his application for pension under the State Employees Retirement System. The last paragraph of Section 10 of this Act (Chapter 127, Sec. 224, Illinois Revised Statutes for 1945) states:

“Any amounts received by a member under the State Workmen’s Compeinsation or the Occupational Diseases Acts shall be applied as an offset to any accidental disability benefit provided for herein in such manner as is provided in rules adopted by the board.”

This paragraph of the Act contemplates a determination first of claims compensable under the provisions of the Workmen’s Compensation Act. Otherwise the Pension Board would not know what amount to offset against any such disability benefit. The Court of Claims has jurisdiction of claims by employees against the State for personal injuries arising out of and in the course of their employment, to be determined in accordance with the substantive provisions of the Workmen’s Compensation Act, and claimant properly filed his claim with this Court for judicial determination. This, the Court has been unable to do, as the record contains insufficient evidence of the extent of claimant’s incapacity. Competent medical and other evidence should be introduced to show the extent of claimant’s disability. The amount received by claimant from the third persons for his injuries should also be in the record, so the respondent by its right to subrogation, can set off such an amount against any award entered by this Court. Unless this is done the Pension Board cannot, under the statute, make a proper determination of any pension claim filed by claimant under said Section 10.

This Court, on its own motion, requested claimant to submit such evidence, but claimant has failed to do so. The right of respondent to subrogation arises under the Workmen’s Compensation Act. If an award was denied, as requested by claimant, he would then be in a position before the Pension Board to show that an award was denied and no compensation received. The Pension Act does not contain any right to subrogation. The State, under such circumstances, could lose its rightful offset for the amounts it has already paid on account of this accident under the provisions of the Workmen’s Compensation Act and a portion or all of its remaining liability thereunder.

Accordingly the request for a finding against claimant is denied, and jurisdiction of this cause is specifically reserved for the entry of such further orders or findings as may from time to time be necessary.

The testimony on hearing before Commissioner East was transcribed by A. M. Rothbart Court Reporting Service, who have submitted a statement of $13.80 for services. This charge is reasonable and proper.

An award is entered in favor of A. M. Rothbart Court Reporting Service for stenographic services in the amount of $13.80, which is payable forthwith.

Supplemental Opinion

Bergstrom, J.

In the original opinion filed in this case at the May 1947 term there remained for determination the question of the permanent extent of claimant’s injury and the amount received in settlement by claimant for the negligence of the third party tort, feasors.

Claimant was severely injured and was under medical treatment and observation from the date of the accident, April 17, 1945, until June 15, 1948. On the later date Dr. R. H. Thomas, professor emeritus of orthopedics, University of Illinois Medical College, Chicago, who had charge of the patient from the time of the accident, made his final report, as follows:

“I examined Mr. Vernon Kays this morning, June 15, 1948. You remember he came to me in April 1945. He was hospitalized seven months at St. Luke’s and came to the office for treatments over a period of 12 months. He had simple fractures of both femurs, middle third; both knees were crushed (the left more severely); compound fracture -of the lower left tibia; right wrist and right elbow fractured. He was intermittently unconscious for about 12 hours.
“Examination shows the result of femur fractures okay. The knees —full extension in both; only 6 degrees flexion on the left and 12 degrees flexion in right. He is not able to get out of a chair or sit down without the help of the chair arms. The right elbow is all right. Right wrist gives no pain but the grip is 15 per cent less than normal. Both knees show roughness on motion.
“His duty when injured was a policeman. He is totally disabled Tor that work at this time. He needs no treatment nor additional examinations.
“Prognosis: No more improvement is expected. The injured joints will age faster from now on than the normal joints will.”

On December 9, 1948 claimant appeared before this Court for observation. After a careful consideration of the report of Dr. Thomas, the history of this case and what we could visually observe respecting his condition, we are of the opinion that for a man trained only for physical work he has suffered the permanent and complete loss of use of both of his legs as a result of this accident in accordance with Subparagraph 18 of Paragraph E of Section 8 of the Workmen’s Compensation Act. He is, therefore, entitled to compensation as provided under Paragraph F of Section 8 of the Act. (1943 statute, as amended.)

At the time of the accident he was married and had one child under sixteen years of age. His earnings for the year previous to his injury amounted to $2,220.00. He is, therefore, entitled to an award computed under Section 7, Paragraphs A,. H3 and L, in the sum of $5,228.75, from which must be deducted the sum of $2,367.17 paid to him for unproductive time, leaving a balance due him of $2,861.58. After payment of this compensation, he is also entitled to an annual pension for life, based on twelve (12) percent of $5,228.75, or $627.45 annually, payable in monthly installments.

However, as the record now shows that claimant-received $22,000.00 in settlement for the negligence of the third party responsible for this accident, any amount due from respondent to claimant under the Workmen’s Compensation Act is properly set off against this settlement amount. Section 29 of the Act provides as follows:

“Where the injury or death for which compensation is payable under this Act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative.”

An award is therefore made to claimant, V.ernon W. Kays, in the sum of $2,861.58, all of which has accrued, and in addition thereto he is awarded an annual pension for life of $627.45 commencing on June 5, 1948, payable in equal monthly installments of $52.29; provided further, however, that any payments due to claimant under this award shall be set off against the sum of $22,000.00 recovered by claimant, and that no payments shall be made on this award until the amounts due hereunder shall equal said amount of $22,000.00.

All future payments being subject to the provisions of the Workmen’s Compensation Act, jurisdiction is hereby specifically reserved in this case for the entry of such further order or orders as may from time to time be necessary.

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


source: Caselaw Access Project

author: Damron, J.

license: Public Domain

text:
    (No. 4056
    Mary Malloy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1949.

    Thomas J. Downs, John D. O’Connor, and Mearl G. Adams, Attorneys for Claimant.
    Hon. George F. Barrett, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   Damron, J.

On November 1, 1946, Miss Mary Malloy, claimant, was brutally attacked, beaten and stabbed by one, William Payne, an escapee from the Illinois Security Hospital, Menard, Illinois,' an institution for the insane operated by respondent. The attack occurred about eleven o’clock in the morning when claimant was alone in her gift shop at 6846 Wentworth Avenue, Chicago, Illinois. The assailant, Payne, a stranger, had -previously visited the store and made a small purchase about five or ten minutes earlier when another customer was present. At the time of his second visit he seemed to be normal and unexcited. He asked: ‘'Just give me two more cards”. As claimant handed him Ms change he suddenly grabbed her by the throat and struck her. Claimant had given Payne no reason or provocation; she acted in the exercise of due care and caution for her own safety and in a normal manner. Payne then grasped a scissors from its place on the counter. Saying he was going to kill her, he dragged claimant back of the counter and through a curtained doorway leading into the living quarters at the rear of the store. He pulled her into the bathroom, and pounding her head against the wall, stabbed her with the scissors. A customer entered the shop. As claimant lost consciousness, the customer, hearing the struggle and groans, gave alarm. Payne was captured soon after he fled from the store.

Claimant, unconscious and bleeding from her wounds, was taken to St. Bernard’s Hospital, CMcago, Illinois, where she remained two weeks. She was under the care of Dr. Howard J. McNally, a member of the hospital staff as well as of St. Elizabeth and Mercy Hospitals in CMcago. Dr. McNally, who attended her every day, testified:

“Patient entered the hospital in shock and received anti-shock treatment in the form of two blood transfusions, morphine; and had certain wounds. There was considerable swelling of the entire left side of the face, completely closing the left eye. Swelling involved the nose, right side of the face, and also the neck area. Multiple lacerations were present on the face, neck and chest. One laceration penetrated the bony region below the ocular bulb. There was a laceration on the left side of the mouth. There was one laceration in the neck and was characterized by swelling. X-rays were taken at that time which indicated no bony penetrations of the head, neck or chest, but indicated a displacement of the trachea to the right side. Lacerations of the chest did not penetrate the chest cavity. Bye consultation was held at that time and the doctor believed that the orbit had not been penetrated, but there was considerable hemorrhage within it.”

The scars shrank so as not to be noticeable or constitute any sort of disfigurement. Claimant, however, suffered permanent injury to her left eye. The left eye was so torn that the nerves controlling its function of turning in different directions were severed. Thus, claimant cannot use both eyes together without seeing a double image. The evidence on behalf of claimant further shows that as a result, she must use spectacles with the left-glass opaque to prevent the use of that eye. The medical, surgical and hospital expense paid by claimant as the result of her aforesaid injuries totalled $620.32. Including time in the hospital, claimant was incapacitated and away from her business about three weeks.

The complaint, as amended, alleges that on April 6, 1942, William Payne was committed to the aforesaid hospital as criminally insane after he had killed one Mrs. Amalie Fanti, a woman proprietor of a toy shop. The long criminal record of William Payne, under various aliases, is set forth from his first sentence to the Chester, Illinois, Penitentiary in 1908 for burglary and larceny. This record includes many convictions in five states on numerous charges relating to burglary, larceny, robbery, carrying concealed weapons, and murder. In 1938, William Payne was confined in the ward for the criminally insane at the State penitentiary at Anamosa, Iowa. The complaint alleges the respondent had knowledge or by the exercise of ordinary care could have learned of the dangerous character and criminal record of William Payne. The complaint alleges the respondent, contrary to its duty to claimant as well as the public at large with respect to the dangerous inmates, maintained and controlled the aforesaid hospital in a negligent manner in that it did or omitted to do one or more of the following:

“(A) Permitted said inmate, William Payne, his liberty without adequate guard and surveillance.
(B) Permitted said William Payne to take charge of a chicken farm away from the principal buildings and guards of the hospital.
(C) Permitted its charge, William Payne, to escape from said hospital.
(D) That the respondent failed to discover the escape of their charge, William Payne, on October 1, 1946, and that the respondent did not know of said William Payne’s escape until several days after October 1, 1946.”

It is further alleged that by reason of the aforesaid assault committed on the claimant, she suffered personal injuries and damages including the loss of income, medical and hospital expenses exceeding $2,500.00.

The evidence presented by' the respondent constituted the departmental report of the Department of Public Welfare dated May 11,1948, signed by Cassius Poust, director, together with the exhibits referred to in said report. In this report it is stated:

“6 (a) The management did not permit William Payne his liberty without guard or supervision. Payne was not a trusty but under supervision of a guard and within sight except for a short time occasionally when he would be working within the chicken house. The officer in charge inspected the chicken house and premises and directed the work several times daily and maintained a regular check.
“6 (b) The management did not permit William Payne his liberty without guard, surveillance and supervision as is customary under the general practice accepted in an institution of this type. The chicken house is approximately 100 yards from the principal buildings. There is no obstruction of view and it is in plain sight of the officer in charge at all times.
“October 1, 1946, patient walked away from the chicken house on this date. Was last seen at 3:30 P.M. but when supper count was made at 4:00 P.M:. patient was absent. Intensive search conducted throughout the night of the 1st and during the day and night of the 2nd. Pictures and description furnished State police and police of all surrounding districts and principal towns between here and Chicago and towns south as far as Cairo.
Martin.’

Prior to the Act creating the present Court of Claims in 1945, it was held the doctrine of respondeat superior did not apply to the State of Illinois in the exercise of a governmental function and that the State was not liable for injuries resulting from the malfeasance, misfeasance, or negligence of its officers, agents or employees. Helen Turner, Admix., vs. State of Illinois, 12 C.C.R. 265; Brookshier vs. State of Illinois, 14 C.C.R. 134. However, this rule of immunity of the State was expressly abolished by the present Act to the extent necessary for the exercise by the Court of the limited jurisdiction in tort cases provided for in Section 8, Paragraph C of the Act reading as follows:

“All claims against the State for damages in cases sounding in tort, in respect of which 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 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.”

The first question under the evidence offered in behalf of claimant is whether the respondent owed a duty of due care in relation to the claimant. Generally, in the law of negligent liability in tort, this question is resolved by whether it would have been reasonably foreseeable to a normally prudent man in the place of the defendant that the defendant’s conduct would be so careless as to constitute a probable cause of harm to the plaintiff. At 38 American Jurisprudence 656, it is stated:

“The law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully, will be dangerous to other persons or the property of other persons, the duty to exercise his senses and intelligence to avoid injury, and he may be held accountable at law for an injury to person or to property which is directly attributable to a breach of such duty. The duty so arising is absolute”.

and at page 661, it is stated:

“The duty to use care ... is an indispensable element of actionable negligence, may be a duty owing to an individual by reason of his peculiar position, or it may be general and owing to everybody”.

In Jones Company vs. State (1923), 122 Me. 214, certain buildings and personal property owned by the plaintiff were destroyed by fire. The arsonist was an insane patient who had been paroled by the State. The jury, from medical testimony, found the State had been negligent and to have abused its discretion in paroling the insane arsonist, a dangerous man to be at large. The suit was authorized by a statutory provision comparable to the case at hand and expressing: “The liabilities of the parties shall' be the same as the liabilities between individuals ’ ’. In its opinion the Supreme Court of Maine said (at page 125):

“Was Dr. Hedin (the superintendent) negligent in granting parole under these conditions? In other words did he fail ‘to observe that degree of care which the law requires for the protection of the interests likely to be injuriously affected by the want of it?’ It should not require argument or citation of legal authorities to prove the necessity and propriety of the various methods provided by law to protect both the afflicted person and the community at large from the ill effects of insanity. Among those methods is that of restraint by lawful commitment to a hospital provided for the custody and treatment of the insane. While the statute law provides that the superintendent of an insane hospital may permit any inmate thereof to leave such institution temporarily . . . yet reason and good sense demand that such permission should not be given if the safety and welfare of the patient, or the community at large, are to be jeopardized by such permission. And it equally follows that the degree of care to be exercised in giving such permission should be commensurate with the particular nature of the patient’s mental affliction and the possible or proportionate risk consequent upon his enlargement." (Italics ours.)

Persons afflicted with highly contagious diseases, dangerous to human life, are quarantined as necessary to afford protection to the community where they are found. In part, for the same reason, are the criminally insane kept in charge. The respondent took charge of William Payne, dangerous, criminally insane and a person likely to cause bodily harm to others if not controlled. The respondent was under a duty to exercise due care in such control so as to prevent him from causing such harm to members of the public, including the claimant. In this connection see Restatement of the Law of Torts, Section 319, and the second illustration stated thereunder.

The aforesaid duty existing, was the respondent negligent in its discharge? Respondent admits that Payne, the insane escapee, was working at a chicken house outside and at least 100 yards away from the main institutional buildings of the Illinois Security Hospital. Respondent, while generally claiming to have inspected the chicken house, to have directed the work, and to have maintained a regular cheek, provides no facts of the method of such inspection, direction and check whereby the adequacy of its security procedure may be measured in light of its duty of guard and supervision of Payne, dangerous and criminally insane. Respondent admits Payne, in escaping, merely walked away, further, that his absence was not known until a supper count at least a half hour later.

In Arado vs. Eppstein (1944), 323 Ill. App. 194, the Court stated (at pages 199 and 200):

“It is a very ancient and salutary principle of law, that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of proper care; that in case of such an accident the duty of explanation is thrown upon those having charge of the thing, particularly when information concerning the thing itself is within the particular or peculiar knowledge of the defendant.”

To the same effect see Johnson vs. Stevens Bldg. Catering Co. (1944), 323 Ill. App. 212, 217, where the Court adds:

“The doctrine is also based on the further consideration that where the control of the thing which has caused the injury is exclusively in the defendant it is within his power to produce evidence of the actual cause, which the plaintiff is unable to present.”

The respondent had the exclusive control and management of the Illinois Security Hospital and the security measures applicable to inmate Payne. We may observe, the more dangerous the character of Payne, the more diligent is the duty and standard of care required of respondent. It is believed the doctrine of res ipsa loquitur is applicable here in judging the respondent’s performance of its duty of due care in the guard and supervision of inmate Payne. Viewing the evidence in light of such doctrine it is found that it would have been reasonably foreseeable to a normally prudent management in the place of the respondent that the respondent’s conduct of guard and supervision and control of inmate Payne was so careless as to constitute a probable cause of harm to the claimant. Respondent violated its duty of care owned in relation to the public, including claimant.

The injuries and damages to claimant hereinabove set forth were substantially caused by the respondent’s negligence. But for the negligence the claimant would have suffered no harm. No new element contributes to her harm additional to the existing factors of the situation under which the respondent’s conduct we deem was negligent. The injuries suffered by claimant could have been prevented by the duty of care which the defendant violated.

The evidence in this case was heard by Commissioner Burton H. Young, who has reported to this Court that this claimant suffered damages to an amount exceeding $2,500.00.

On the basis of this record and under the provisions of Paragraph C, Section 7 of the Court of Claims Act, an award of $2,500.00 is not an unreasonable sum to allow claimant for damages sustained as a result of these injuries.

An award is therefore hereby entered in favor of Mary Malloy in the sum of Two Thousand Five Hundred Dollars ($2,500.00).


author: Eckert, C. J.

text:
    (No. 4079
    Irving S. Hochstadter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1949.

    Claimant, Pro Se.
    Hon. Ivan A. Elliott, Attorney .General; Hon. Archie Bernstein, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On February 5, 1947, the commanding officer, First Infantry, Illinois Reserve Militia, was allotted the sum of $5,000.00 for active duty pay for officers and enlisted men in connection with the muster-out of the First Infantry, Illinois Reserve Militia, on or before March 31, 1947. This allotment was for administration of the muster-out and the packing, shipping, and return of all military property, except vehicles, to Springfield, Illinois. The pay for a corporal was at the rate of $4.35 per day.

Pay roll certification for personnel of the First Infantry, Illinois Reserve Militia, was submitted by the commanding officer, First Infantry, on March 21, 1947, and the name of the claimant, Corporal Irving S. Hochstadter, was certified for two days pay in the grade of corporal, being a total of $8.70. This pay roll certification was in error as to the time during which the claimant was in service. He had, in fact, been employed by Captain Maurice Lepavsky, supply officer, First Infantry, Illinois Reserve Militia, for thirty-three nights, from 6 P.M. to midnight, during the period of February 6, 1947 to March 27,1947. For this service, he was entitled to $4.35 per night, or a total of $143.55.

The claimant was diligent in the protection of his rights, and submitted a letter to the Military and Naval Department of the respondent on May 24, 1947, asking that the records be checked and that he be paid the balance due him. The Military and Naval Department thereafter spent considerable time in determining the correctness of the claim, and it was only after September 30, 1947, when the appropriation for the biennium had lapsed, that the Department discovered the error in the pay roll certification.

The claimant has rendered services to the State on the order of an officer authorized to contract for such services, and has been diligent in seeking payment therefor. Due to no fault or negligence of the claimant, his claim was not approved and vouchered for payment before lapse of the appropriation from which it was payable. Claimant is therefore entitled to an award in the sum of $143.55, less the sum of $8.70 previously paid to him, or the sum of $134.85.

An award is therefore entered in favor of the claimant, Irving S. Hoehstadter, in the amount of $134.85.


author: Bergstrom, J.

text:
    (No. 4083
    Clifford Camp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1949.
    Robert H. McCarthy, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Clifford Camp, filed his complaint on April 16, 1948 for compensation under the Workmen’s Compensation Act for an injury sustained on June 4, 1947 while employed by respondent in the Department of Public Welfare. The record consists of the complaint, departmental report, transcript of evidence, and claimant’s and respondent’s waiver of brief.

The evidence shows that claimant was employed as a carpenter by respondent at the Peoria State Hospital, and that on June 4, 1947 when he was cutting a piece of material for a door the saw blade hit a knot in the board and the blade jumped and severed the first joint, known as the distal joint, of the third finger on his right hand. He was given immediate treatment at the Peoria State Hospital by Dr. Trigger. He continued working during the month of June, but was laid off the 1st of July, and was unable to obtain other work because of the condition of his injured hand. His temporary total incapacity continued for a period of four weeks.

There are no jurisdictional questions presented by the record, and we find that claimant was injured by reason of an accident arising out of and in the course of his employment by respondent.

Claimant’s earnings for the year preceding his injury were $3,306.64. He has one child aged fourteen years. His compensation rate would, therefore, be $18.00 per week. He is entitled to receive compensation for four weeks temporary total disability, and an award for twelve and one-half weeks for the loss of the distal phalanx of the third finger on his right hand, or a total of' $297.00.

Miss Thelma Metz, Alliance Life Building, Peoria, Illinois, took and transcribed the testimony, for which she submitted her charge of $12.50,which we find is fair, reasonable and customary.

An award is made to claimant, Clifford Camp, in the sum of Two Hundred Ninety-seven Dollars ($297.00), all of which has accrued and is payable forthwith.

An award is also made to Miss Thelma Metz in the sum of Twelve and 50/100 Dollars ($12.50), payable forthwith.

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


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    (No. 4087
    Orbie Lauderdale, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1949.

    Roy A. Ptacin, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. C. Arthut Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On January 9, 1948, the claimant, Orbie Lauderdale, a stationary fireman, was employed by the respondent at the Manteno State Hospital. While working in the basement of the power plant, laying six inch soil pipes, one of the pipes, six feet in length, fell on his left hand, crushing three fingers. Claimant was immediately taken to the employees’ hospital, where his hand was treated and X-rays were taken.

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

Claimant’s earnings for the year immediately preceding his injury were $2,977.25, making an average weekly wage of $57.25. At the time of the injury, he had one child under sixteen years of age dependent upon him for support. Claimant’s compensation rate is therefore $19.50 per week. No claim is made for medical, surgical or hospital services, or for temporary disability. Claimant, however, did receive $260.00 for four weeks non-productive time, which was an overpayment of $182.00. This latter amount must be deducted from any award made in this case.

Claimant seeks an award for complete functional loss of use of his index, middle and ring fingers. Dr. Albert C. Fields, testifying on claimant’s behalf at the hearing before Commissioner Young, stated that he examined claimant on April 24, 1948. At that time he found that:

“His (claimant’s) left hand, index finger, disclosed a thickening at the middle phalangeal joint. There was an absence of the original fingernail which has been replaced by a new nail which is slightly irregular in outline. The finger is held in a hyper-extended position at the distal phalangeal joint. In other words, it is tipped back a little bit. On active motion he brings his fingertips to about two and a half or three inches of the palm. Actively there is no flexion in the distal or mid joint. He is unable to spread his index and middle finger voluntarily. His middle finger is held in a deformed position; hyper-extension of the mid-phalangeal joint. There is a limitation of extension in the distal phalanx amounting to about thirty-five degrees. Actively he brings the fingertips to about two or three inches of the palm. There is no voluntary flexion in the middle or distal phalangeal joint. He also has a new nail on the finger.
“The ring finger, he brings the fingertip to within a half an inch of the palm and flexion is confined to the proximal and mid joint. There is no flexion in the distal phalangeal joint.”

Dr. Fields stated, on the basis of this examination of claimant, including X-rays, that claimant had suffered a complete functional loss of use of his index, middle and ring fingers.

Dr. Julius G-rueneberg, who is employed as a physician and surgeon at the Manteno State Hospital, testifying on behalf of the respondent, stated that he had treated claimant immediately after the accident. He had also examined the X-rays. Dr. G-rueneberg completely concurred in the findings of Dr. Fields in that claimant had suffered a complete functional loss of use of the three fingers.

From this testimony, from the X-rays which form part of the record, and from the report of Commissioner Young, who personally observed claimant’s fingers at the hearing, it is clear that claimant has sustained permanent and complete loss of use of his first, second and third fingers of the left hand. For the permanent and complete loss of nse of his left first finger, claimant is entitled to $19.50 per week for 40 weeks, or the sum of $780.00. For the permanent and complete loss of use of his left second finger, claimant is entitled to $19.50 per week for 35 weeks, or the sum of $682.50. For the permanent and complete loss of use of his left third finger, claimant is entitled to $19.50 per week for 25 weeks, or the sum of $487.50:

A. M. Rothbart of Chicago, Illinois, was employed to take and transcribe the evidence at the hearing before Commissioner Young. Charges in the amount of $35.50 were incurred for these services, which charges are fair, reasonable and customary.

An award is therefore entered in favor of A. M. Rothbart in the amount of $35.50, which is payable forthwith.

An award is also entered in favor of the claimant, Orbie Lauderdale, in the aggregate amount of $1,950.00, from which must be deducted the excessive payment for non-productive time in the amount of $182.00, leaving a balance of $1,768.00, payable to him as follows:

$1,131.00, which has accrued, is payable forthwith;
637.00 is payable in weekly installments of $19.50 per week, beginning February 25, 1949, for a period of 32 weeks, with an additional final payment of $13.00.

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


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    (No. 4113
    Carlo J. Lubertozzi, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1949.

    Frank Martoccio, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General; Hon. William J. Colohan, Assistant Attorney General, for Respondent.
   Damron, J.

The claimant, Carlo J. Lubertozzi, filed his complaint herein on August 24, 1948 alleging that on August 25, 1947 he was injured by reason of an accident arising out of and in the course of his employment by respondent.

The cause was heard before Commissioner Blumenthal on November 30, 1948, and transcript filed on January 13, 1949. No jurisdictional questions were raised.

The claimant testified that on August 25, 1947 he was a temporary employee, as a bricklayer by the Department of Public Welfare at the Chicago State Hospital. While restoring a wall in one of the buildings, he stepped down from his scaffold, tripped over some rubble on the floor and fell to the concrete floor alongside a ditch. He limped around for awhile and thought “it would go away”, but when he got worse the next day, he talked to Mr. John Wright, the chief engineer, and the latter directed him to Dr. Louis Cisman. Dr. Cisman gave him a prescription and instructed him to take hot baths, but the following morning he was unable to get up and go to work. He did not report back to work until two weeks had elapsed. Dr. Olsman sent him for X-rays and prescribed diathermy treatments. He was later sent to the Illinois Research Hospital under the care of Dr. Phillips. While under this treatment for a period of about two weeks he was on light duty. At present, he is working, but his leg falls asleep; is numb and feels alternately cold and hot. In performing his work he “feels” his back when he has to stoop too much. Prior to the accident, he never had any trouble with his back or leg.

While still under treatment by Dr. Phillips, he was discharged by respondent, but about a week later, he obtained employment and is earning $2.75 per hour or $110.00 for a forty hour week.

Dr. Louis Olsman, surgeon employed at the Chicago State Hospital, testified that he first saw claimant on September 4, 1947 and was given a history of having been injured several days previously by falling in a ditch. The impression, following an X-ray was a right sacroilliac strain. Subsequently, diathermy was instituted as a daily treatment for several weeks. When claimant’s symptom of pain continued, he was referred to the University of Illinois Hospital and examined in the orthopedic and neurology clinics in both of which a diagnosis was made of a herniated inter-vertebral disc of the fifth lumbar and first sacral vertebra. The X-rays taken at the Chicago State Hospital and sent to the University of Illinois Hospital were produced and in the opinion of the witness corroborated the findings.

Dr. S. I. Weiner was called on behalf of claimant. He specialized in orthopedics and traumatic surgery and testified as to his qualifications in this field. He examined claimant on November 27, 1948 and took X-rays. The clinical examination disclosed oblique flexion restricted to the right tendon Achille’s para-vertebrae. The reflex was absent and there was also a decrease in the right patella reflex on the right side. The pathology of the X-rays was interpreted as being consistent with a finding of a displaced inter-vertebrae disc. His diagnosis was a dislocation of the nucleons polyposis on the right side of the lumbar spine between the fourth and fifth lumbar vertebrae. The effect of this is to produce pain and disability of the extremity; pain in the lower back aggravated by coughing and sneezing and referred down the right leg. In his opinion there was an approximate 75% permanent loss of use of the right leg. The disability arises from the origin of motor and sensory nerves which supply and control the extremity. The condition will not. improve and may get worse if the displacement takes place towards the spinal canal instead of laterally as at present. Dr. Olsman recalled as a witness testified that in his opinion an injury such as that described would result in a disability of about 50%.

The evidence of Dr. Olsman indicates that claimant was in error in stating that he reported to Mr. Wright on August 25th, the day following the accident and that he was examined by Dr. Olsman on the same day. On cross-examination claimant was vague and not certain as to dates but in view of the other indisputable evidence in the record the conflict of the testimony in this respect •is not of itself significant or essential to the merits of the case.

The evidence, and particularly respondent’s own witness, Dr. Olsman, leaves no doubt that claimant has sustained a permanent partial loss of use of his right leg to the extent of not less than 50%.

It was stipulated that claimant was employed at a rate of $382.00 per month and that when the accident was sustained he had three children under sixteen years of age.

Claimant testified he did not report for work for two weeks during which time he was paid his full wage, $88.17 per week, or $176.34. His compensation rate would be the maximum of $19.50 increased to $23.40 by reason of his three children under sixteen years.

For a 50% permanent, partial loss of his right leg, claimant is entitled to ninety-five weeks at $23.40 or $2,223.00. From this $129.54 must be deducted, being the excess payment for non-productive time, or the difference between $176.34, his wage for two weeks, and the $46.80 to which he was entitled for temporary total disability compensation.

This entitled claimant to a new award of $2,093.46, of which seventy-six weeks has accrued.

An award is hereby entered in favor of claimant, Carlo J. Lubertozzi, i nthe sum of Two Thousand Ninety-three Dollars and Forty-six Cents ($2,093.46). Of this award the sum of $1,778.40 representing 76 weeks has accrued as of February 9, 1949, which is payable to claimant in a lump sum. The remainder of said award amounting to the sum of Three Hundred Fifteen Dollars and Six Cents ($315.06) is payable to claimant at $23.40 per week for 13 weeks, with an additional final payment of $10.86.

A. M. Rothbart was employed to take down and transcribe the testimony in support of this claim, for which he made a charge of $53.60. We find this charge to be fair, reasonable, and customary for the services rendered.

An award is therefore hereby entered in favor of A. M. Rothbart in the sum of Fifty-three Dollars and Sixty Cents ($53.60).

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. 3925
    Coach Corporation of Freeport, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

    Poppenhusen, Johnston, Thompson & Raymond (Earl C. Williams and Henry J. Brandt, of Counsel), Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and William J. Colohan, Assistant Attorney General, for Respondent.
   Damron, J.

Claimant, Coach Corporation of Freeport, an Illinois corporation, seeks reimbursement for a loss it sustained by reason of the misappropriation by the chief security examiner of the Industrial Commission of Illinois of certain U. S. Treasury Bonds which claimant deposited pursuant to the provisions of the Workmen’s Compensation Law.

' The essential facts of record as resolved by the department report and stipulation of the parties are as follows:

On April 22, 1941, claimant deposited five $1,000.00 negotiable U. S. Treasury Bonds bearing 2%% interest, with the Industrial Commission pursuant to a certain deposit agreement of that date executed on behalf of the commission by its then chief security examiner, Lawrence J. O’Connell. Under the terms of the agreement the bonds were to be held by the Industrial Commission as a guarantee for the payment of any judgment entered against the depositor for any sums found to be due its employees under the Workmen’s Compensation Law; the bonds were to be surrendered upon certification that no such payments were due and the interest on these bonds was to be paid to the depositor as it became due.

On April 28, 1941, the said Lawrence J. O’Connell converted two of the bonds by depositing them with the Continental Illinois National Bank and Trust Company of Chicago as security for a personal loan in the sum of $1,600.00. Upon default the bank sold the bonds and the balance in said account after the bank had satisfied its indebtedness amounting to $483.40 was recovered in garnishment proceedings by claimant on October 30, 1944, on order of the Superior Court of Cook County in Cause No. 44 S 12579.

On August 1, 1941, O’Connell converted two additional bonds by delivering them as security for a personal loan of $1,800.00 with the Merchandise National Bank of Chicago. The balance of $303.19 from the proceeds of a sale by the bank to satisfy its indebtedness was recovered on October 30, 1944 by claimant in the same garnishment proceedings.

On October 14, 1941, O’Connell similarly converted the last $1,000 bond by depositing it with North Shore National Bank of Chicago as collateral security for an $800.00 personal loan. The sum of $248.03 remaining after the bank had sold this bond to satisfy its indebtedness was recovered in the aforementioned garnishment proceedings.

Claimant, on November 26, 1948, recovered the additional sum of $1,968.09 representing its aliquot share in the bond obligation of Fidelity & Deposit Company of Maryland, surety for O’Connell in the case of “Montgomery Ward & Company, Inc., vs. Fidelity & Deposit Company in the U. S. District Court, Northern District of Illinois, Eastern Division.”

On the basis of the above admitted facts, claimant seeks an award of $1,997.29 of bond principal and in addition thereto it seeks interest at the rate of 2%% on these bonds as it accrued from March 31, 1941.

In J. Roy Browning vs. State, 16 C.C.R. 67, a claim based on facts very similar to the one at bar was before us; we held there that the deposit of money by claimant with the Industrial Commission was an involuntary transaction required by the law of Illinois before claimant could do business in this State. We further held the Industrial Commission was authorized by law to enter into a contract such as the one introduced in evidence in this case and claimant there was granted an award for the deposit it had made with the Industrial Commission. Leopold Cohen Iron Co. vs. State, 16 C.C.R. 162.

Here we find claimant deposited $5,000.00 in U. S. Treasury Bonds with the Industrial Commission and that due to the action of the chief security examiner of the Industrial Commission, the respondent was unable to deliver to the claimant these bonds. The record discloses that this claimant eventually recovered $3,002.71 from the bonds for which the respondent must be given credit.

The claim for interest must be denied. The State is not liable for the payment of interest in the absence of a statute subjecting it to such liability and in this State there is no such statute. U. S. Industrial Alcohol Company vs. State, 12 C.C.R. 326; Southern Kraft Corporation vs. State, 9 C.C.R. 306; Phillips Petroleum vs. State, 8 C.C.R. 198; Phillips Petroleum vs. State, 10 C.C.R. 319.

An award is hereby entered in favor of claimant, Coach Corporation of Freeport, in the sum of One Thousand Nine Hundred Ninety-seven Dollars and Twenty-nine Cents ($1,997.29).


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    (No. 4100
    Flo McIntyre, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

      Petition of Respondent for Rehearing denied May 12, 1949.

    Paulson, Morgan & Jordan, Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and Archie I. Bernstein, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Flo McIntyre, was employed on May 9, 1947 as an attendant by respondent at the Elgin State Hospital in the Department of Public Welfare. On that day, while hurrying on an errand in the course of her duties, she slipped on a waxed floor, fell, and broke her hip. Claimant, 53 years of age, was immediately taken to the hospital. Her injury caused intense pain, requiring administration of morphine every two hours.

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

Respondent furnished complete surgical, medical and hospital treatment. The only question is the extent of permanent disability of claimant and the extent of the permanent and partial loss of use of claimant’s left leg.

Dr. Paul Tobin, physician and surgeon, of Elgin, Illinois, was brought into the case as an orthopedic consultant by the doctors of the Elgin State Hospital where claimant received all her medical treatment. He examined claimant within forty-eight hours after her injury. He testified that at the time of his initial examination the X-rays of claimant revealed a high fracture of the neck of the left femur, commonly called an intracapsular fracture. ' This fracture was explained as being in the upper part of the thigh bone which is offset and supports . the head of the thigh bone which, in turn, fits into the pelvis which supports the body. Dr. Tobin said this injury is generally caused by a fall. He described claimant as unable to stand or bear weight. She suffered pain on motion of her left leg.

Surgery was performed by Dr. Tobin on May 19, 1947, and the fracture was reduced. Dr. Tobin was assisted by Dr. Hudell of the staff of the Elgin State Hospital. Claimant then wore a plaster cast for a week, following which she was permitted to get up on crutches without weight bearing. She left the hospital on crutches on July 21, 1947, and was incapacitated for about six months following the injury. Repeated checks by X-ray indicated the fracture mended well. Claimant returned to work December 15, 1947. However, on February 19, 1948 she re-entered the hospital, complaining of pain in her knee and hip. On March 4, 1948 claimant underwent another operation to remove the Smith-Peterson nail which had been inserted at the time of her first operation to hold the bone in place and alignment to promote calcification and bony union. It was believed that possibly the presence of the nail was causing her trouble and the recurrence of pain. Sometime thereafter, further X-rays were taken, as claimant continued to suffer pain. It was found from the X-rays that, although the fracture itself had healed, claimant was developing an asceptic necrosis of the head of the femur. Dr. Tobin explained this condition meant the bone was dying without presence of infection. He stated the cause was that the neck fracture shut off the blood flow circulation to the head of the femur, a common development of such type of fracture. Such condition was described as productive of immediate pain in the knee and hip upon standing or walking, making it very difficult for the patient to bear weight on the leg.

Dr. Tobin expressed his opinion that claimant could no longer carry on any work except with the aid of a crutch and could not perform any work that would entail being on her feet. He said she could not return to her former employment as cook or attendant. Dr. Tobin stated claimant was suffering 100 per cent general disability for any working purposes requiring her to stand or bear weight on her leg and 50 per cent partial permanent disability regarding use of her left leg. He told that the condition of necrosis would get worse instead of better. He related, however, a possible non-operative treatment whereby the patient is put to bed for four or five months and then put in a walking caliper, a splint to prevent weight bearing by shifting weight to the pelvis. He added that sometimes after wearing the splint for about a year and a half the head of the femur becomes revascularized. Dr. Tobin estimated the medical, surgical and hospital expense of such course of treatment would approximate $1,000.00.

Dr. John C. Hudell, physician and surgeon on the staff of the Elgin State Hospital, gave claimant medical treatment in conjunction with Dr. Tobin. He completely corroborated and substantiated the testimony of Dr. Tobin in connection with the case history, treatment and extent of claimant’s injuries. Dr. Hudell mentioned the Elgin State Hospital had frequently called on Dr. Tobin to assist as a consultant. Dr. Hudell declared of his own knowledge, being at the hospital at the time, that claimant was injured while in the course of her employment.

Claimant attempted to return to work during June, 1948, following her second operation. However, she had to stop immediately. She had to have her leg dressed at the hospital; her temperature had risen to 101 degrees. She has not worked since because of the pain and suffering in her hip and leg. She testified she presently suffers pain even while sitting down.

The only evidence in the record concerning the extent of disability of claimant and extent of the permanent and partial loss of the use of her left leg is that furnished.by Drs. Tobin and Hudell, both employed by respondent. The Court concurs in their findings. Claimant, by reason of her injury, has been rendered completely disabled, and is wholly and permanently incapable of working.

Claimant was employed at the rate of $120.00 per month, $1,440.00 per annum, at the time of her injury; this represents $27.69 per week. Therefore, claimant’s weekly rate of compensation would be $13.84, increased 20% as by statute provided, or $16.61, the accident having occurred after July 1, 1945 and before July 1, 1947. Claimant is entitled to an award computed under Section 8, Paragraph (f) and Section 7 Paragraphs (a and k) of the Workmen’s Compensation Act, of $4,800.00 for her complete and permanent disability, payable at the rate of $16.61 per week from May 10, 1947 until the said sum has been fully paid; and, after the payment of said sum of $4,800.00, an annual pension of $384.00 payable in monthly installments of $32.00.

Helen Wehrle took and transcribed the testimony and evidence, for which service she submitted her charge in the sum of $30.00, which sum we find fair and reasonable.

An award is therefore entered in favor of claimant, Flo McIntyre, in the sum of $4,800.00, payable as follows:

$1,627.78 which has accrued, is payable forthwith;
$3,172.22 to be paid in weekly installments of $16.61 beginning' April 2, 1949 for a period of 190 weeks, with a final payment of $16.32; thereafter a pension for life in the sum of $384.00 annually, payable in monthly installments of $32.00.

An award is also made in favor of Helen Wehrle for stenographic services in the amount of $30.00, which is payable forthwith.

Jurisdiction is specifically reserved in this cause for the entry of such further order or 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. 4114
    Ladd Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

    Roy A. Ptacin, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General; Archie I. Bernstein, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint was filed August 30, 1948, seeking an award under the Workmen’s Compensation Act for partial disability and loss of use of claimant’s right hand by reason of injuries alleged to have been sustained in an accident on June 27,1948.

Claimant, Ladd Smith, had prior to the accident been employed for two months as a ward attendant of the Chicago State Hospital by the Department of Public Welfare. His rate of pay was $135.00 per month. It is alleged the accident arose out of and in the course of such employment. Respondent contested this allegation because of certain time entries in the regular hospital record books apparently contradicting the injuries as received in line of duty. Respondent contended that the accident occurred at 2:30 P.M., fifteen minutes before the claimant reported for work. Inspection of the original book of record showed this time entry, which might have been interpreted as “2:30”, to have been written over. At the second of two extended hearings, respondent’s supervisor of attendants at the Chicago State Hospital testified that he had originally entered such time as “5:30” confusing it with the time claimant was first given medical attention at the hospital for his injury. He added that realizing his error, he immediately wrote over the numeral “5” to change it to the numeral “3”. This writing over caused the time to appear as either “2:30”, “3:30”, or “ 5:30 ’ ’. The supervisor’s testimony in conjunction with other testimony establishes Ladd Smith was injured at 3:30 P.M., a time when he was in the course of employment by the respondent. Further conflict in the hospital records relates to the day of the injury, whether on Saturday, June 26th, or Sunday, June 27th. It is believed such confusion stems from a mislaid injury report required by rules of the hospital to be accomplished by employees within 24 hours after occurrence of injury. From the record such injury report had been made out on Sunday, June 27th and given to a patient whose duty was to transmit same to the supervisor’s office. The greater weight of the evidence shows claimant to have been on duty at 3:30 P.M. on June 27, 1948 in Ward c-10 of the Chicago State Hospital. Working with him was charge attendant, Kenneth E. Long, now employed by the Illinois Tool Works, Elgin, Illinois, who so testified. At that time the ward doorbell rang and claimant went to the ward door to admit entering patients. As he was so engaged and counting the patients he-stepped back inside the door to converse with Mr. Long, who, was working on reports in the ward office a few feet away. Actuated by wind or draft, the door slammed shut on claimant’s right hand held on the door facing or jam.

Due to injury to the fourth metacarpal of claimant’s right hand, the knuckle is displaced to the degree that when making a fist the ring finger only closes to a point about a quarter of an inch from the palm of the hand. The medical testimony of Dr. Albert C. Fields, called on behalf of the claimant, and Dr. Louis Olsman, called on behalf of the respondent, is in substantial agreement except as to the extent of permanent disability caused by the injury. Commissioner Young heard the testimony and personally observed and examined the condition of claimant’s right hand. It is the finding of the commissioner that claimant has sustained a permanent and partial loss of use of his right hand to the extent of 15%, and we adopt his recommendation as a basis of this award. The proof offered at the hearings in this cause does not justify this Court in allowing temporary total compensation payments, therefore that portion of the claim is hereby denied.

Claimant had not been employed for one year-next preceding his injury; however, employees in his classification at said hospital earned $1,620.00 per annum. His average weekly wage therefore would be $31.73, making his weekly compensation rate amount to the sum of $19.50. If claimant had lost the complete use of his right hand, he would have been entitled to receive, under the Workmen’s Compensation Act as amended, the sum of $19.50 for 175 weeks. Having lost 15% of the functional use of this hand, claimant is entitled to 25% weeks at his compensation rate, making the sum of $497.25. O’Dorman vs. State of Illinois, 16 C.C.R. 277.

An award is therefore hereby entered in favor of Ladd Smith in the sum of Four Hundred Ninety-seven Dollars and Twenty-five Cents ($497.25) representing 15% functional loss of use of his right hand as provided under Section 8 (e) of the Workmen’s Compensation Act as amended, all of which has accrued and is payable forthwith.

A. M. Eothbart Court Eeporting Service, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill of Ninety-three Dollars and Thirty Cents ($93.30). The Court finds that the amount charged was fair, reasonable, and customary and said claim is therefore 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. 4122
    Kathryn E. Carlon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

      Petition of Claimant for Rehearing denied June 17, 1949.

    Herbert J. Deany and Miss Anne G. Carter, Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and Hon. William J. Colohan and Hon. James C. Murray, Assistant Attorneys General, for Respondent.
   Eckert, C. J.

The claimant, Kathryn E. Garlón, on October 6,1948, filed her complaint in this cause alleging that on October 8, 1946, the City of Chicago, a municipal corporation, had within its corporate limits in Cook County, Illinois, possession, supervision and control of the north sidewalk of East 57th Street in front of a store building known and designated as number 1544 East 57th Street, Chicago, Illinois; that the respondent, through its agency, the Chicago Park District, in conjunction with the City of Chicago, or otherwise, exercised some control, the exact nature of which was unknown to claimant, over the public sidewalk at that location; that it was the duty of the respondent to exercise ordinary care to keep this sidewalk in a reasonably safe condition; that respondent negligently permitted this sidewalk to become and remain in a broken and unsafe condition; that because of the negligence of the respondent, and while claimant was in the exercise of due care for her own safety, and while she was walking as a pedestrian upon this sidewalk, she unavoidably stumbled and fell, sustaining serious injuries. She seeks damages in the amount of $2,500.00.

From the public records which claimant introduced at the hearing before Commissioner Blumenthal, it appears conclusively that the Chicago Park District has the ownership, possession, operation and control of the sidewalk in question. In addition to these public records, considerable evidence was offered by claimant describing the condition of the sidewalk, her fall, and the ensuing injuries. Since the controlling question is legal, rather than factual, it is not necessary to detail this evidence.

The Chicago Park District is a municipal corporation with power to sue and to be sued. The cause of action in this case is based upon its alleged negligence. The State of Illinois is precluded from assuming liability for a claim against such a municipal corporation. Article IY, Section 20 of the Constitution of 1870, provides:

“The State shall never pay, assume or become responsible for the debts or liabilities of, or in any manner, give, loan or extend its credit to or in aid of any public or other corporation, association or individual.”

Claimant’s theory that municipal corporations and other governmental entities are such agencies and arms of the State, that the State is responsible for claims against them, has been presented to this Court upon many occasions. The Court, however, has consistently held that it has no jurisdiction to hear and determine such claims, and that the State has no responsibility for the debts or liabilities of such bodies. Jones vs. State, 10 C.C.R. 104; Monaco et al. vs. State, 9 C.C.R. 90; Price vs. State, 8 C.C.R. 85.

The Court of Claims Act of 1945 (Chap. 37, Par. 439.8, Illinois Revised Statutes, 1945) does not extend the jurisdiction of this Court to include suits against municipal corporations. Smith vs. State, 16 C.C.R. 208.

The case of LePitre vs. Chicago Park District, 374 Ill. 184, upon which claimant relies, in no way sustains claimant’s allegation that the Chicago Park District is an agency of the State. In that case, the Supreme Court held that although park districts are municipal corporations, the powers given the commissioners of the Chicago Park District to construct and maintain drives, and to have general control and management of parks, are in the interests of establishing and maintaining a park for public use, and not in the promotion of purely corporate purposes. The Court held that in the creation and maintenance of the Outer Drive, in the City of Chicago, through Grant and Burnham parks, the commissioners were rendering a governmental service, and as such were not liable for negligence. The trial court’s decision was based upon the rule which exempts municipalities from liability from the negligent acts of its servants when the negligent acts complained of arise ont of the performance of a duty the municipality owes to the public. The Supreme Court stated: “The propriety of the application of such rule to the facts is the principal question presented on this appeal”. And the Court found the rule applicable. There is nothing in that decision which in any way conflicts with the decision in Smith vs. State, supra.

Claimant contends that “no logical basis exists for extending thé protection of the Court of Claims Act to claims against the State for the negligent acts of its agents in maintaining State highways beyond corporate limits in reasonably proper and safe condition for travel, and denying the same to claimants injured on similar highways which fall within the jurisdiction of agencies designated by the State to perform such governmental functions”. Such a construction of the Act, claimant believes, is an arbitrary classification subject to attack on constitutional grounds. The Appellate Court of Illinois, however, in a case cited by claimant (Griffin vs. City of Chicago, 317 Ill. App. 368, 369), stated:

"The Supreme Court in LeFitre v. Chicago Park District, 374 Ill. 184, decided that maintenance of park boulevards is a governmental function, for negligent performance of which no liability attaches to the district. Ashland Boulevard is part of the park system, its sidewalks are part of the boulevard (City of Chicago v. O’Brien, 111 Ill. 532), and it follows, their maintenance is a governmental function, for the negligent performance of which the district is not liable. This conclusion admits difficulty, for had plaintiff suffered a like injury just around the corner on Madison Street, she would have avoided the rule, but . so would LeFitre had he turned from the Outer Drive on to a city street and been injured there. The difference is the creation or organization of the district and its predecessors does not affect the rule. The people of Chicago accepted the State’s offer to delegate this governmental function and thereby accepted the principle that any damage from negligence in performance of the function is outweighed by the general good. We are bound to hold that Ashland Boulevard sidewalks are primarily for pedestrians walking from park to park in pursuit of health and recreation. To decide that maintenance of the boulevard is a governmental function and of its sidewalks a proprietary function would aggravate the difficulty.”

Likewise, had the claimant in this case suffered an injury on a city street, or a State highway, she would have avoided the rule. But the fact that she cannot recover against the Chicago Park District, because in the maintenance of this sidewalk it is. performing a governmental function, does not give her a cause of action against the State of Illinois.

An award is therefore denied.


text:
    (No. 4123
    Beulah Evans, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

    Mrs. Beulah Evans, Pro Se.
    Hon. Ivan A. Elliott, Attorney General, and Archie Bernstein, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Beulah Evans, filed her complaint October 8, 1948 for reimbursement of medical expenses incurred by reason of an accident which she sustained on February 3,1948 in the course of her employment by respondent in the Department of Illinois Public Aid Commission, Division of Standards and Services.

The record consists of the Complaint, Departmental Report, Transcript of Evidence, and Stipulation by Claimant and Respondent waiving briefs.

Claimant was employed in the capacity of Visitor, working under the direction of the Superintendent of the Marshall County Department of Public Assistance, Lacón, Illinois, of the Illinois Public Aid Commission. As such Visitor she investigated the need and eligibility of applicants for Old Age • Pension, Aid to Dependent Children, and Blind Assistance. She also determined budgetary allowances in conformity with the rules and regulations of the Illinois Public Aid Commission. The discharge of these duties necessarily required claimant to use her personal automobile in traveling from Lacón ■ on visits to applicants and recipients of public assistance programs residing in her assigned territory.

On February 3, 1948, at about 4:15 P. M. claimant, in the performance of her duties, was traveling in her automobile from Henry, Illinois, to her headquarters in Lacón. At a point about five miles north of Lacón, on State Route No. 29 Detour, she lost control of her car due to ice on the highway. At the time, she was driving with due care, about thirty miles per hour. The car skidded on the icy pavement, turned around twice and struck the embankment. As a result of the impact claimant was thrown against the dashboard and windshield. Shortly thereafter, a couple in another car stopped upon discovering claimant’s automobile in the ditch, and found claimant out of her car lying on the fender in a dazed condition. Claimant was taken home. She went to the hospital the next day upon advice of her physician. Her injuries consisted of fractures of the third, fourth, fifth, sixth and seventh ribs on her right side; hemothothorax; contusion of back, and mild concussion of the brain. She returned to employment on March 29, 1948, and was released from medical care on May 13, 1948. From the bills in the record claimant’s medical, doctor and hospital expenses totaled $300.65. The departmental report admits that claimant is entitled to reimbursement for her doctor and hospital expense. We concur in this view. No claim is made for disability. The record shows that full salary was paid to the claimant during the time she was incapacitated.

There is no jurisdictional question presented by the record, and we find that claimant was injured by reason of an accident arising out of and in the course of her employment by respondent.

A. M. Rothbart, 120 South LaSalle Street, Chicago, Illinois, was employed to take and transcribe the testimony in this case and submitted his invoice in the sum of $14.90, which we find to be fair and reasonable.

An award is therefore made to claimant, Beulah Evans, in the sum of $300.65, $75.00 of which is for the use and benefit of Dr. Ernest C. Burhans, Peoria, Illinois; $30.50 for the use and benefit of Dr. Royal L. Eddington, Lacón, Illinois; and $195.15 for the use and benefit of John C. Proctor Hospital, Peoria, Illinois.

An award is also entered in favor of A. M. Rothbart in the sum of $14.90.

It is further ordered that the payment of the above awards shall be made out of any funds available to the Illinois Public Aid Commission for such purposes in accordance with Chapter 127, Sec. 181A, Illinois Revised Statutes (1947).

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. 4128
    Hazel Ramsey, widow of Robert Ramsey, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

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

Claimant, Hazel Ramsey, filed her claim on October 27, 1948 for damages under the Workmen’s Occupational Diseases Act for the death of her husband, Robert Ramsey, from tuberculosis, which she alleges he contracted while employed as a guard by respondent at the Illinois Security Hospital at Menard, Illinois.

The claimant alleges that her deceased husband was employed in Wards C-2, C-3 and C-4 at the said Illinois Security Hospital from July 17, 1947 to November 19, 1947; that he came in contact with three inmates suffering from the disease of tuberculosis while in the performance, of his duties; that he was not provided with any special gown or mask, or any kind of covering for his mouth and nose, and that the ventilation in said Ward 0-4 was poor and the air was foul. The departmental report denies that the ventilation in Ward 0-4 was poor, that the air was foul, and further states that as soon as it was determined that patients were afflicted with tuberculosis they were immediately moved to the tuberculosis ward, and that Officer Ramsey was only very occasionally in close contact with anyone suffering from tuberculosis.

The pertinent facts brought out by the evidence in this case was the testimony of Dr. George H. Vernon, who established the fact that claimant’s husband died of pulmonary tuberculosis at the Palmer Sanitarium on December 29, 1947. The testimony of claimant, Mrs. Hazel Ramsey, was that her husband was 54 years old, and was in good health on July 17, 1947 at the time he commenced work at the Illinois Security Hospital; that previous to this employment he worked for twenty years as a policeman on the Marion police force; that, to her knowledge, he never had tuberculosis prior to his employment by respondent. These pertinent facts of her testimony were substantiated by her son, Robert L. Ramsey, who also testified. In the record is the testimony of J. S. Dungey, who was also employed as a guard at the Illinois Security Hospital. He testified that he had known the deceased for many years and that his health was apparently good at the time he commenced his employment at the Illinois Security Hospital; that it was necessary to come in close contact with the patients at the institution; that there were three tubercular patients in said Ward C-4 during the time the deceased was employed there, and that the only ventilation was the windows; that during the fall and winter the air was bad in the ward, as the windows could be opened but very little. There is no other evidence, medical or otherwise, that deceased contracted the disease of tuberculosis from his exposure to tubercular patients in the course of his employment by respondent. Claimant has attempted to prove general or ordinary negligence by respondent, which the record before us does not establish without the Court indulging in speculation and surmise. However, it is unnecessary to go further into this question, as proof of general or ordinary negligence is not sufficient to permit recovery under Section 3 of the present Occupational Diseases Act.

Claimant, in her complaint, predicates her recovery under said Section 3. In construing this section the Court said, in the case of Grutzius v. Armour & Company, 312 Ill. App. 366, on page 376:

“In our opinion the language used in the proviso in Section 3, heretofore set forth, is plain and understandable and really not open to construction. It states as clearly as language can that the violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act or the violation by the employer of any statute of this State intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section.
Thus actionable negligence under this section is clearly defined and the proviso excludes any action by an employee for an employer’s negligence except as defined.”

This Court allowed recovery under said Section 3 in the case of Wheeler v. State, 12 C.C.R 254, where there was a violation of a statute. The Court also denied the claim in the case of McNutt v. State, 17 C.C.R., and stated therein that, to establish negligence within the meaning of this section, claimant must show respondent violated

(1) A rule or rules of the Industrial Commission made pursuant to the Health and Safety Act, or
(2) Violated a statute of this State intended for the protection of the health of employees.

It is not alleged in the complaint, nor is there any proof in the record which would show that the case at bar comes within the construction placed upon said Section 3 by the cases hereinabove cited. Under the circumstances claimant’s claim must be denied, as claimant must show by the evidence that the State is charged with negligence as defined in Section 3 of said Act.

For the reason stated, the claim is denied.

Hugo Antonacci, 502 Illinois National Bank Building, Springfield, Illinois, submitted his invoice for the sum of $47.00 for taking and transcribing the testimony in this case, which charge is fair, reasonable and customary. An award is therefore entered in favor of Hugo Antonacci in the sum of $47.00.


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    (No. 4133
    Edward E. Dockry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

    N. T. Axman, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and William J. Colohan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

On November 16, 1948 claimant, Edward E. Dockry, filed his complaint seeking an award in the sum of $146.61 for property damage to his automobile alleged to have resulted from respondent’s negligence in maintaining a dangerous condition on a State highway (Illinois Route 50) known as Cicero Avenue, in Chicago, Illinois.

The record consists of the Complaint, Transcript of Evidence, Departmental Report, and Stipulation waiving brief of respondent and claimant.

Claimant, on his own behalf, testified that about 5:20 P. M. on January 15, 1947 he was driving North on the East side of Cicero Avenue approaching 40th Street, in Chicago, Illinois. It was dark, raining and hazy. As he was driving north along Cicero Avenue between 39th and 40th Streets traveling about 30 miles an hour, with his lights on, he was thrown violently; the car catapulted in the air and he lost control of the car. Upon getting out of the car he observed a hole in the pavement about 5% inches deep, six feet long and varying in width up to twelve inches. There was no barricade or warning on the highway. His three tires were ruptured and drive shaft cracked. He expended a total of $112.94 for new tires, tubes, and for materials and labor for repairs, and produced receipts therefor which were received in evidence. He also expended $4.00 for towing, $2.65 for cleaning his suit and overcoat soiled by the accident and was deprived of the use of his car for approximately a week, and expended $27.02 for transportation during this period. These items of damage total $146.61.

Mr. K. A. Johnsen, an engineer employed by the Division of Highways, stated the department report incorporated the information he had furnished following his examination of the scene of the accident. The day following the accident he observed the hole in the pavement. From his experience as an engineer and employee of the Division of Highways, in his opinion a failure or hole of that nature was due to a weakened subgrade and would not develop suddenly, and it probably happened two or three weeks prior to the accident. On cross examination he testified that Cicero Avenue at the point in question was a highly travelled highway.

The Department Report, dated January 17, 1949, stated that contracts for widening and resurfacing Cicero Avenue between 33rd and 63rd Streets were completed on December 20, 1946. A gap eighteen feet wide was left in the pavement on the east side of Cicero Avenue about forty feet north of the Sanitary District Canal for the purpose of affording a smooth connection with a private road and a gas main being constructed easterly from Cicero Avenue. While the gap remained open for about three weeks heavy rains saturated the subgrade and seeped under the east edg*e of the old pavement. Prior to the report of this accident there had been no finding of any defect at the location in question, and immediately thereafter temporary repairs were made and permanent replacement completed about March 22, 1947. The day following the accident the transverse depression measured approximately six and one-half feet long, four to ten inches wide and five and one-half inches deep.

The record supports a finding that the depression on this highly travelled highway in the absence of any barricade, lights or guards, constituted a hazardous condition, particularly to a motorist on a dark and hazy evening, and that claimant was exercising reasonable care for his own safety. On similar facts we made an award in Toler v. State, 16 C.C.R. 315.

An award is therefore entered in favor of claimant, Edward E. Dockry, in the sum of $146.61.


text:
    (No. 4138
    Albert C. Luth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1949.

    Abraham B. Litow and J. Michael Madda, Attorneys for Claimant.
    Hon. Ivan A. Elliott, Attorney General, and Hon. William J. Colohan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On November 27, 1947, the claimant, Albert C. Luth, employed by the respondent as a highway maintenance laborer in the Highway Division, Department of Public Works, while shoveling cinders from a moving highway truck on to icy patches on the roadway just north of the Northwest Highway in Des Plaines, Illinois, lost his balance and fell to the pavement. He was rendered unconscious and was immediately taken to the Des Plaines hospital. Subsequently, on the same day, he was removed to the Belmont Community Hospital where X-rays were taken. He was then allowed to return to his home.

Dr. H. W. Staple, who examined the claimant immediately following the accident, and under whose direction the X-rays were taken, found that claimant had suffered a concussion of the brain, fractures of the fourth, fifth and sixth right ribs, and coccygeal strain, with minimal coccygeal separation.

Claimant was treated by Dr. Staple for about two months at home and returned to light work on January-20, 1948. He worked until August 10, 1948, when he complained of continual pain in his lower spine. Arrangements were then made by the respondent for an examination of claimant by Dr. H. B. Thomas, Professor Emeritus of Orthopedics, Illinois University, College of Medicine. The examination was made on August 30, 1948 and Dr. Thomas reported that X-rays disclosed hypertrophic arthritis in the lower lumbar spine and sacroiliac joints and a rough place in the coccyx. Claimant remained under the care of Dr. Thomas until December 3, 1948, when he was discharged.

At the hearing before Commissioner Blumenthal, the claimant testified that he still experiences pain in his right arm; that it is numb when he lifts and is weak; that when he walks or climbs he tires easily, has pains in both legs which feel “numb” and “tired out”. He testified that his right side and back, especially in the region of his “tail bone”, are painful. He further testified that his health was normal before the accident, but that since the accident he can only do limited work, and that a fellow workman “takes the brunt” of the work.

Dr. S. F. Weiner, a specialist in orthopedics and traumatic surgery, testified on behalf of claimant. Dr. Weiner stated that he examined claimant on January 22, 1949. Clinical examination disclosed atrophy of the posterior aspect of the right chest including the shoulder blade with limitation of about fifteen degrees in the external and internal rotation. The Laseque leg raising-test signs were positive on both sides aggravating pain in the back and indicating- a restrictive involvement of the fascia extending down from the back to the leg. Dr. Weiner testified that X-rays showed fractures of the fourth, fifth and sixth ribs with an over-riding of approximately % of an inch at the fourth rib; a coracoid process of the scapular; a distortion between the first and second sacral segments; a noticeable widening of the posterior portion of the sacro-coccygeal joint; and showed that the coccyx was bent forward. In the opinion of Dr. Weiner, the limitation of motion in claimant’s right shoulder and in both legs is permanent.

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

At the time of his injury, claimant was fifty years of age, married but had no children under sixteen years of age dependent upon him for support. His annual earnings were $2,640.00. His compensation rate is therefore the maximum of $19.50 per week.

Claimant was totally disabled from November 28, 1947 to January 19, 1948, inclusive. During that period he was paid for non-productive time $225.95. Since this was a period of 7 3/7 weeks, claimant was entitled, at a compensation rate of $19.50, to the aggregate sum of $144.85. Since he received $225.95, there has been overpayment of $81.10 which must be deducted from any award made in this case.

From the medical testimony, and from the report of the commissioner who observed claimant at the hearing, the court finds that claimant has sustained a 12% % permanent partial loss of use of his right arm and of his right and left legs. For this partial loss of use of his right arm, claimant is entitled to receive the sum of $19.50 per week for a period of 28% weeks, or the sum of $548.44. For similar partial loss of use of each leg, claimant is entitled to receive the sum of $19.50 per week for a period of 23% weeks, or the sum of $463.12 for each leg. Claimant is thus entitled to receive the total amount of $1,474.68, from which must be deducted $81.10, the excess payment for non-productive time.

An award is therefore made in favor of the claimant in the sum of $1,393.58, all of which has accrued and is payable forthwith.

A. M. Bothbart was employed to take and transcribe the evidence at the hearing before Commissioner Blumenthal. Charges in the amount of $51.00 were incurred for these services, which charges are fair, reasonable and customary. An award is therefore entered in favor of A. M. Bothbart in the amount of $51.00, payable forthwith.

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


author: Delaney, J.

text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 19, 1949.

    John W. Preihs, Attorney for Claimant.
    Hon. Ivan A. Elliott, Attorney General; Hon. C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a supervisor at the Illinois Soldiers ’ and Sailors ’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell v. State, 11 C.C.R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22,1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940, to January 1, 1942, in the amount of $1,129.82. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942, in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943, to and including September 30, 1943, in the amount of $853.07. On April 17, 1945, a further award was made to claimant for medical and nursing expenses incurred from October 1, 1943, to and including February 28, 1945, in the amount of $1,955.29. On September 12, 1946, a further award was made to claimant for medical and nursing expenses incurred from February 28, 1945, to and including April 1, 1946, in the amount of $1,646.12. On June 5, 1947, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1946, to and including April 1, 1947, in the amount of $2,108.30. On April 19, 1949, a further award was made to claimant for medical and nursing expenses incurred from April 1,1947, to and including April 1,1948, in the amount of $2,207.80. Claim is now being made for an additional award of $1,850.19 for medical and nursing expenses from April 1, 1948, to and including February 1,1949.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over her urine and faeces. From April 1, 1948, to and including February 1, 1949, she has been required, to relieve her of her injury, and to prevent deformity and to stimulate circulation, and for relief of bedsores, to employ and receive medical services and nursing attention. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs and to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily and must be rendered in her home.

Claimant has therefore employed a physician on a monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for which she seeks reimbursement, in the total sum of $900.00. Claimant also seeks reimbursement, at the rate of seventy-five cents per day, in the total amount of $229.50 for board and room of attending nurses. Such expenditure obviates the employment of both a day and a night nurse. In addition, claimant has expended, for nursing services, $608.61, and for drugs and supplies, $112.08. She has submitted to the Court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

This Court has heretofore held that under Section 8, Paragraph (a) of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell v. State, supra.) There has been no change in claimant’s physical condition to justify the denial of an award at this time. The services claimed appear to have been reasonably required and the charges to be reasonable and just.

Award is, therefore, made to the claimant for medical and nursing expenses from April 1, 1948, to and including February 1,1949, in the sum of $1,850.19, which has accrued and is payable forthwith. The Court reserves for future determination claimant’s need for further medical, surgical and hospital services.