text:
    (No. 3037
    Board of School Inspectors of the City of Peoria, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1941.

    H. D. Morgan, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant seeks an award of $3,621.12 as the balance due it for the excess cost of educating twenty-six crippled children in School District No. 150, Peoria County, Illinois, for the year 1934-1935.

There is no dispute as to the material facts. The claim is based on expenditures incurred under authority of “An Act to Enable School Districts and Boards of Education to establish and maintain classes and schools for crippled children” approved June 19, 1923, in force July 1, 1923. Section 685f of the said Act (Smith-Hurd Illinois Revised Statutes 1939, Chapter 122, page 3010) reads:

“The aggregate excess cost of maintenance of such classes and schools as determined, computed, and reported by the board of education, board of school inspectors or school directors, as provided in section 5 of this Act, shall he and the same is hereby made a charge against the State of Illinois and such excess cost shall be paid annually to such board of education, board of school inspectors or school directors on the warrant of the Auditor of Public Accounts out of any money in the treasury appropriated for such purposes, on presentation of proper vouchers approved by the Director of Public Welfare; Provided, however, that such excess cost for each pupil shall not exceed the following amount:
For crippled children........................$300.00 a pupil per annum. In case the money appropriated by the General Assembly for the purposes set out in this section prove insufficient, such money shall be apportioned to each school district on the basis of the claims filed for the excess cost and each district shall thereupon receive a proportional part of said appropriated funds.”

The claimant filed its voucher in proper form with the Department of Public Welfare' of the State of Illinois showing the sum of $4,442.55 due it,for expenditures made under the provisions of the above Act. This voucher was approved by A. L. Bowen, Director of Public Welfare of the State of' Illinois, as correct, and he, in his letter to claimant approving said voucher, stated:

“The fifty-ninth General Assembly which adjourned recently, passed a bill providing that the appropriation for crippled children, should be prorated among the various school districts which filed claims, and the Attorney General has rendered an opinion to the effect that the funds for the school year ending June 30, 1935, should be apportioned on a pro-rata basis to the school districts which presented claims to this Department for approval.
As only $100,000 are available for the payment of these claims for the last school year and the claims will amount to more than $500,000, the payment made by the State on your claim will approximate from fifteen to twenty per cent of the amount due.”

Subsequently, A. L. Bowen, Director of the Department of Public Welfare pro-rated all claims, finding the factor to be 18.49%, and all vouchers of all school districts were handled on that basis. Claimant received $821.43, which was 18.49% of its claim of $4,442.55, leaving an unpaid balance of $3,621.12, being the amount of this claim. -

Claimant relies for approval of its claim on the wording of Section 685f of the Statute above referred to and the case of Fergus vs. Brady, 277 Ill. 272.

In considering the merits of this claim, it is necessary to take into consideration the intent and meaning of sections 18 and 19 of article 4 of the Constitution and the provisions of the Legislative Act in question.

With respect to said sections 18 and 19, the Supreme Court in Fergus vs. Brady, 277 Ill. 272, page 278, said:

“These provisions of the constitution and statute are clear and unambiguous in terms and their purposes and object cannot be misunderstood. Section 18 prohibits its appropriations in excess of the revenue authorized bylaw to be raised in the period for which appropriations are made, but necessarily revenue, whether derived from one source or- another in the future, must always he estimated and never can be a fixed and certain sum. Circumstances may occur that will cause the reasonable expectations of the General Assembly as to the amount of revenue to miscarry or not to be fulfilled, so that there may be a temporary deficiency. To meet that condition which may arise from failure in making collections of taxes or result from decreased revenue from other sources, the section provides that in case of failure of revenue the General Assembly may contract debts, never to exceed $250,000. This debt is only to be created by borrowing money — not by incurring debts or making contracts — since the section requires that the moneys thus borrowed shall be applied for the purpose for which they were obtained or to pay the debt thus created, and to no other purpose. No other debt can be contracted, except for the purpose of repelling invasion, suppressing insurrection of defending the State in war, except upon a vote of the people at a general election. By section 19 the General Assembly is prohibited from authorizing the payment of any claim, or part thereof, created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts are null and void, with the exception that the General Assembly may make appropriations for expenditures incurred in repelling invasion or suppressing insurrection.”

In this same case, the Supreme Court on page 279, and which is the particular part of this case relied upon by the claimant, said:

“In section 19, claims under an agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, board or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may be valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given. An example of such express authority is found in one of the deficiency appropriations to the Southern Illinois penitentiary which had been paid, and serves only as an illustration. The authorities in control of the penitentiary are required by law to receive, feed, clothe and guard prisoners convicted of crime and placed in their care, involving the expenditure of money, which may vary on account of the cost of clothing, food and labor beyond the control of the authorities, and which could not be accurately estimated in advance for that reason or by determining the exact number of inmates.”

Claimant contends that the education of crippled children was a duty it was required to do, expressly authorized by law because of the Statute in question. School districts and other school governing bodies have only such powers and authority as is given to them by Statute, and to remove any question of authority on their part to set up classes and make provision for the education of crippled children, the Statute was enacted. The Statute, however, did not make it compulsory or mandatory on any of the school districts in the State to provide this service. Section 685a of the Statute in question, reads:

“* * * School districts may establish and maintain classes of one or more pupils and schools for the instruction of crippled children who are residents of such a district.”

The word “may” is used, and, in fact, many of the school districts in the State did not establish such schools. The Legislature may have thought it desirable to .establish such schools, but did not make it compulsory to do so. As stated in Fergus vs. Brady, supra:

“The authorities in charge of Southern Illinois penitentiary had a duty imposed by law to take care of all prisoners sent to their institution.”

In their case it was compulsory, which is not true of the case at bar.

Because' of the constitutional provisions all school districts establishing such schools were limited in the aggregate to the sum appropriated of $100,000 from State funds. The Legislature might have thought that this was a sufficient sum to pay for the excess cost of educating crippled children for the year in question, but the amount necessarily had to be estimated. In fact, subsequent sessions of the Legislature have greatly increased the amount of this appropriation and the State is defraying all or a substantial amount of the expense for this additional educational facility.

The Director of the Department of Public Welfare finding that the sum of $100,000 was not sufficient, pro-rated all claims, which was the reasonable and fair thing to do. The Legislature added an amendment to section 685f which was approved July 5, 1935, as follows:

“In case the money appropriated by the General Assembly for the purposes set out in this section prove insufficient, such money shall be apportioned to each school district on the basis of the claims filed for the excess cost and each district shall thereupon receive a proportional amount of said appropriated funds.”

This amendment became law subsequent to the time the claim in question was incurred, but we cite it to show that the Legislature recognized the necessity of pro-rating and thereby enacted into law and removed beyond question what we are of the opinion the Director of the Department of Public Welfare had the implied authority to do before the enactment of the said amendment.

However equitable may be the demands of the claimant in this case, the fact remains that the appropriation was limited to $100,000; it was exhausted; and claimant received its just pro-rata share with other school districts. To allow an award in this case would be contrary to the constitutional provisions herein cited.

Award is denied.


source: Caselaw Access Project

author: Chibe Justice Damron

license: Public Domain

text:
    (No. 2964
    Ralph R. Connor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1941.

      Rehearing denied' January 14, 1942.

    E. J. Coyle and Frank R. Eagleton, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chibe Justice Damron

delivered the opinion of the court:

This claim is based on injuries sustained by Ralph R. Connor, the claimant herein, alleged to have arisen “out of and during the course of” his employment, as a traveling auditor in the Department of Public Welfare of the State of Illinois. This claim was filed August 29, 1936, under the Workmen’s Compensation Act.

The complaint alleges that he was first employed in said department in June, 1933, and was continuously employed therein until the date of the accident.

The complaint further alleges that his duties required him to visit different State institutions to check over and audit the books and records of said State institutions; that on September 6, 1935, he was working at the Illinois State Penitentiary at Joliet, and in order to complete the audit of a transaction it was necessary for him to go to the Women’s Reformatory at Dwight; that while the claimant was traveling along U. S. Highway No. 66, enroute to Dwight for this purpose in his own car, for the use of which he was paid mileage by the respondent, a collision occurred, between his car and another driven by one Miss Nellie Gorra, causing claimant to suffer serious bodily injuries.

The complaint further alleges that after said accident, claimant was taken to a Veteran’s Hospital in Dwight, Illinois, and remained there from September 6, 1935, until January 24, 1936, and that in said accident claimant suffered a permanent and total disability to his left leg. Claimant further alleges that while he was in said hospital at Dwight he notified his superiors in the Department of Public Welfare, of his injury and that within six months of said injury he demanded, from the Department of Public Welfare he be paid compensation as provided by the Workmen’s Compensation Act, and alleges that on September 30, 1935, he was notified by said Department that from that date he was on leave of absence from the Department without pay. That on July 1, 1936, he returned to said Department as an employee in the Springfield office at a decreased salary.

The record in this case consists of the original complaint; a report of the Department of Public Welfare, dated October 9, 1936; the testimony of the claimant, and that of his wife; Exhibits No. 1 to No. 7 inclusive, all offered on behalf of claimant. No defense was offered on behalf of the State.

Claimant seeks an award of, $7,498.94 as follows:

$3,352.50 for temporary and total disability.
$3,417.10 for medical expenses.
$ 729.34 for damaged wearing apparel and damages to car, radio and seat covers of same.

The evidence discloses that the allegations in said complaint are substantially true; that claimant had been employed in the Department of Public Welfare since about May 16, 1933, and on the day of the accident had been working at the Illinois State Penitentiary at Stateville, that in order to check or investigate a certain transaction it became necessary for him to make an investigation at the Women’s Reformatory at Dwight. That he left Joliet shortly before 4:00 P. M. of that day, and at a point approximately six miles north-east of Dwight on U. S. Highway No. 66, his car and one approaching from the south collided. As a result this claimant was rendered unconscious, an ambulance was procured, and claimant was taken to a hospital. Upon examination it was found that he suffered a compound fracture of the left tibia, and a crushing injury to the left patella, also suffered a contusion to the cerebrum. He spent four months in said Veteran’s hospital at Dwight, Illinois, where he was attended by Dr. Robert I. Barickman, then followed one month at the Hines Hospital, in Hines, Illinois, claimant remained at home after being discharged from the latter hospital for a period of above five months. By agreement of counsel for claimant, and respondent he submitted to a physical examination on March 17, 1939, by Dr. Paul H. Harmon, Superintendent of the Division for Handicapped Children in the Department of Public Welfare, who found a broad scar beneath-the left patella which sear is adherent to the left tibia. The left knee joint was unstable and the tibia was posterially luxated. This physician also stated in his report:

“The patient is now able to perform all Ms duties as an accountant (sedentary occupation), for the Department of Public Welfare. He doesn’t have a normal gait, since the left leg has to be supported by a brace, in order to stabilize his knee. There is atrophy of the left leg, and thigh, the circumference of the left thigh being two inches less than the right thigh at a point four inches above the patella, and the circumference of the left calf being one inch less than the right calf four inches below the patella. The patient has a restriction in motion of the left knee, there being possibly forty degrees of passive flection and twenty-five degrees active flection from the straight leg position. Patient has normal range of motion from the left ankle and hip.”

The doctor again examined claimant on October 23, 1939, and reports as follows:

“X would consider the patient’s left leg to be entirely useless were it not supported by the brace, in view of the fact that it is no longer stable unless supported by this appliance.” (Exhibits No. 6 and No. 7.)

The evidence further discloses that this claimant was temporarily totally disabled from following his usual occupation from the day of the injury until July 1, 1936, or a period of 43 3/7 weeks. That on July 1, 1936, the claimant returned to his employment as auditor in the Springfield office in the Department of Public Welfare, wearing a walking caliper. He was reemployed at the same salary he had been receiving at the time of injury.

From a personal examination of the claimant by the court, and upon consideration of the record herein, the court finds:

1. That said Ralph R. Connor and respondent were, on the 6th day of September, 1935, operating under the provisions of the Workmen’s Compensation Act.
2. That on said day, said Ralph R. Connor sustained accidental injuries which arose out of, and in the course of, his employment.
3. That notice of the accident was given to the respondent and claim for compensation made within the time required by the provisions of such Act.
4. That claimant’s annual earnings were Two Thousand Seven Hundred ($2,700.00) Dollars, and his compensation rate is Fifteen ($15.00) Dollars per- week.
5. That claimant, at the time of the injury, was forty-five years of age, and married.
6. That claimant was temporarily totally disabled from September 6, 1935, to July 1, 1936.
7. That as a result of such accident, claimant has sustained a partial permanent loss of the use of his left leg.
8. That the sum of One Hundred Twenty-seven Dollars and Fifty Cents ($127.50) has been paid to him subsequent to said accident, for nonproductive work, during the month of September, 1935.
9. That as a result of said injury he expended the sum of Ten ($10.00) Dollars for ambulance services.
10. That claimant is entitled to an award on the above findings.

The claim for Three Thousand Four Hundred Seventeen Dollars and Ten Cents ($3,417.10), for medical expenses, while in the Veteran’s Hospitals, must be denied for the reason there is no legal obligation on the part of the claimant to pay the Federal Grovernment for the services or appliances he received and therefore there is no legal obligation on the part of the State to pay him the estimated reasonable cost of such services.

Likewise the claim for Seven Hundred Twenty-nine Dollars and Thirty-four Cents ($729.34), for damaged wearing apparel and damages to car, radio and seat covers must also be denied. There is no law or authority for an allowance of this character. The State is not an insurer of the personal property of its employee.

It is evident from the record, that except for claimant’s temporary total disability, his rights, under the Act, are for a specific loss of use of the left leg. The evidence as it now appears in the record supports a fifty (50) per cent specific loss of use of claimant’s left leg. Under the provisions of the Compensation Act, and on the basis of the average weekly wage of claimant he would be entitled to forty-three and three-sevenths (43 3/7) weeks at Fifteen ($15.00) dollars per week, for temporary total disability amounting to Six Hundred Fifty-one dollars and Forty-three cents ($651.43), and on the basis of his average weekly wage claimant would be entitled to ninety-five (95) weeks at Fifteen ($15.00) dollars a week for such specific loss amounting to One Thousand Four Hundred Twenty-five ($1,425.00) dollars, making a total of Two Thousand Seventy-six dollars and Forty-three cents ($2,076.43); from this must be deducted One Hundred Twenty-seven dollars and Fifty cents ($127.50), which was paid claimant during the month of September, 1935, for nonproductive work. The sum of Ten ($10.00) dollars for ambulance service is also allowed making a total due the claimant of One Thousand Nine Hundred Fifty-eight dollars and Ninety-three cents ($1,958.93).

An award is therefore entered in favor of claimant in the sum of One Thousand Nine Hundred Fifty-eight dollars and Ninety-three cents ($1,958.93), all of which has heretofore accrued, and is now payable to the claimant in a lump sum.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30,1941, (Sess. Laws 1941, p. 69), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the General Revenue Fund in the manner provided for in such Act.


author: Fisher, J.

text:
    (No. 3575
    Benjamin Richard Gholson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1941.

    George C. Dixon and John Dixon, for claimant.
    George F. Barrett, Attorney GeneralGlenn A. Trevor, Assistant Attorney General, for respondent. ■
   Fisher, J.

The claimant, Benjamin Richard Gholson, was an employee of the Department of Public Welfare and was employed in the capacity of farm laborer at the Dixon State Hospital at Dixon, Illinois, from August 27, 1934, to December 18, 1939; that during this entire period of time the claimant appeared continuously on the payroll of said institution except for seven days when he was off duty in December, 1937, as the result of a suspension, and ten days when he was off duty in July, 1938, because of a leave of. absence, without pay; that the warrants for payment of salary or wages received by the claimant covering the period from August 27, 1934, to December 18, 1939, covered each and every day during that period except-the seven days in December, 1937, and the ten days in July, 1938, by the dates shown on the face of the respective successive warrants.

He now claims that he worked an extra half day each week during this period for which he was not paid, and has filed a claim for $353.73 for this extra work.

Section 19, Article IV of the State Constitution of 1870 provides as follows:

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

Paragraph 145, Subsection 3, Chapter 127 of the Illinois Revised Statutes of 1939 provides as follows;

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

It is very obvious that in applying Section 19, Article 4 of the Constitution of 1870, and Paragraph 145 above referred to, there is no legal basis on which this claim can be allowed.

The motion of the Attorney General to dismiss, is therefore allowed, and the case is hereby dismissed.

Chief Justice Damron did not participate and took no part in this decision.


author: Eckert, J.

text:
    (No. 3488
    Louis Insalato, a Minor, by the Trust Company of Chicago, Guardian, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1941.

    Frank P. Kronenberg, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On July 29, 1939, the claimant, Louis Insalato, a minor, was a member of Battery B, 124th Field Artillery, Illinois National Guard, on active duty, engaged in unloading horses from a train at 47th Street and Lake Park Avenue, Chicago. While leading the horses to the 124th Field Artillery Armory, located at 52nd Street and Cottage Grove Avenue, Chicago, he was suddenly kicked in the face by one of the horses directly in front of him. After being given first aid treatment, he was taken to St. Luke’s Hospital where he remained until the 6th of August, 1939. He was attended at the hospital by Dr. Charles E. Shannon, who found severe lacerations and injuries to the nose, mouth, gums and teeth, and a fracture of the nasal bone and cartilage. After leaving the hospital, claimant remained at home under the care of Dr. Shannon for a period of six weeks.

The report of the Adjutant General indicates that thereafter claimant showed an unwillingness to avail himself of the medical and dental services provided for members of the Illinois National Guard. Attempts by Dr. Shannon to have claimant report for a final examination were disregarded for approximately six weeks. Finally, on November 1, 1939, claimant reported to Dr. Shannon, complaining of continual pain in the mouth and upper jaw and difficulty in breathing. He also had several badly decayed teeth, the condition of which had been aggravated by the accident. The dental clinic to which he was sent, made an appointment for him to begin the necessary dental work. He failed, however, to report for treatment, and now waives any claim for injuries to his teeth or for dental surgery.

In April, 1940, at the suggestion of Dr. Shannon, claimant was examined by Dr. Paul W. Greeley, a plastic surgeon, who found a pronounced deformity of the nasal bone framework and bony septum of the nose interfering with his breathing. A plastic operation was suggested to correct this nasal deformity and to relieve the >> interference with claimant’s breathing. The operation, however, has not been performed.

From August, 1939, to May 1, 1940, claimant attended thirty-nine of fifty regular drills of his Battery. He also took part in seven days of intensive Fall field training at Camp Grant, Illinois, from November 12th to November 18th, 1939.

This claim arises under the Military and Naval Cole of the State of Illinois, (Illinois State Bar Statutes, Chap. 129), which is a complete code for the military and naval affairs of the State. (Hays vs. Illinois Transportation Company, 363 Ill., 397.) Sections 10 and 11 of Article XVI of the code are the only provisions made by the Legislature for financial help or assistance in cases of personal injuries to, or death of members of the Illinois National Guard suffered while in the performance of their duties. (Echols vs. State of Illinois, 10 C. C. R. 112.)

Section 10 of the code provides that any officer or enlisted man who may be wounded or disabled in any way while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general and to draw one-half his active service pay for not to exceed thirty days of such disability, on the certificate of the attending medical officer. If still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers duly convened by order of the commander-in-chief may determine to be right and just, but not to exceed six months unless approved by the State Court of Claims.

It is the obvious intention of this section to provide medical attention and one-half pay for a wounded or disabled officer or enlisted man whose disability arises out of the lawful performance of his duty and is such as to prevent continuance of his usual means of livelihood. The medical services and the one-half pay not to exceed thirty days are furnished on the certificate of the attending medical officer. In the event the disability continues longer than thirty days, the one-half pay may be continued for such period as a board of three medical officers may determine, but not to exceed six months. These provisions of this section of the code, however, give no jurisdiction to the Court of Claims.

The only jurisdiction of this court under Section 10 is the approval, in a proper case, of the continuance of one-half pay after the expiration of six months from the beginning of the disability. Furthermore, where claim of member of Illinois National Guard is within Section 10 of Article XVI of the Military and Naval Code, claimant must show, before he invokes jurisdiction of the court, that the Military Medical Board, provided in said section has determined that he was entitled to one-half pay for a period in excess of six months. (Echols vs. State of Illinois, supra.)

Section 11 of Article XVI provides that in every case where an officer or an enlisted man shall be injured, wounded or killed while performing, his duty in pursuance of orders from the commander-in-chief, he or his heirs or dependents shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the commander-in-chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.

If both Sections 10 and 11 automatically become applicable to claims of this kind, then two separate tribunals might at the same time be called upon to adjust the same claim. This court has held that such was not the intent of the Legislature. (Echols vs. State of Illinois, supra.) It appears, rather, that the Legislature intended that Section 11 should provide for additional financial help or assistance in cases where such is justified. In other words, Section 10 is first to be applied so that the injured claimant may have one-half of his active service pay and medical services. If his disability is serious enough, Section 10 provides for a continuance of one-half pay and medical services for a period not to exceed six months unless approved by this court. If the disability exceeds six months, claimant may invoke the jurisdiction of this court and show his need for financial help and assistance in addition to that provided for by Section 10. To say that Section 11 gives this court unlimited jurisdiction regardless of the provisions of Section 10 is contrary to the general rules of statutory construction. Section 11 supplements and provides for further possible help and assistance, but it does not supersede Section 10. Furthermore, the financial need of the claimant can only properly be determined by this court when it has knowledge of the proceedings had under Section 10 and the payments made in accordance therewith.

Section 11 is confined to a claim against the State for' financial help or assistance; it does not provide for specific compensation for injury or death as does the Workmen’s Compensation Act of this State. Although this court has frequently, in determining amounts to be awarded to claimants under the Military and Naval Code, referred to the Workman’s Compensation Act, the two acts are essentially and fundamentally different. “The relation between the State and those who are in voluntary military service is essentially different from the relation which obtains between master and servant. Military service is based upon the duty which every citizen owes to the sovereign and differs from ordinary employment in this: that the enlisted man cannot terminate his service at will.. (United States vs. Grimley, 137 U. S. 147; Morrissey vs. Perry, 137 id. 157.) By the terms of the Military Code, penalties for infraction of the regulations therein prescribed may even extend to imprisonment. It thus appears that although an enlistment is a contract, it is not the usual contract of employment contemplated by the Workmen’s Compensation Act.” (Hays vs. Illinois Transportation Company, supra.) The Workmen’s Compensation Act, on the other hand, is based upon the broad economic theory that accidental death or injury in industrial activity and production is an incident thereto and that compensation therefor is properly chargeable as a part of the cost of such activity and production.

The Military and Naval Code was enacted in 1909; the Workmen’s Compensation Act in 1911. Since their enactment, several amendments have been made to each of the Acts, but throughout the history of the legislation on these two subjects, no change was made in the provisions of the Military Code for such compensation as is contemplated by the Workmen’s Compensation Act.

Legislative provisions for a preliminary inquiry, such as -is provided for in Section 10, are fully within the legislative province. Bangs vs. State of Illinois, 10 C. C. R. 127; Blue vs. State of Illinois, 10 C. C. R. 200. It is our opinion, from a consideration of Sections 10 and 11 of the Military and Naval Code, that a claimant, before invoking the jurisdiction of this court, must show :

(1) What payment has been made to him on certificate of attending medical officer of one-half active service pay.
(2) What payment has been made to him by order of board of medical officers of one-half active service pay.
(3) What medical services have been furnished to him.
(4) What need exists for financial help or assistance in addition to the one-half active service pay and medical services already furnished.

There being no proof in this case of a compliance with the provisions of Section 10 of the Military and Naval Code, this court is without jurisdiction. Echols vs. State of Illinois, supra.

Claim, therefore, is denied.


author: Chief Justice Damron

text:
    (No. 3581
    Hugh Allison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

      Rehearing denied May 12, 1942.

    Boy A. Ptacin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This man files his complaint against the State for an injury received by him in the course of his employment for the Department of Public Welfare, while working for the Chicago State Hospital, 6500 Irving Park Boulevard, Chicago, Illinois, an institution for the care of persons mentally imbalanced. He seeks an award of Five Hundred Fourteen Dollars and Twenty-five Cents ($514.25), for twenty-five (25) per cent for loss of use of his right hand.

The complaint states that on January 8, 1941, while employed in said institution, as an attendant, he was struck across his right hand with the handle, of a swab by a patient. Claimant suffered a fracture of the fifth metacarpal bone involving, temporarily, the fourth metacarpal.

The complaint also states he is twenty-six years of age, married, having one child under the age of sixteen years, namely Gwendolyn Allison age five years at the time of the accident, and that he resides at said institution. That his average yearly earnings amount to approximately One Thousand ($1,000.00) Dollars; that nothing had been paid on account of this injury, either for temporary total, permanent partial or total disability. He claims as compensation Twelve Dollars and Ten Cents ($12.10) per week for one hundred seventy (170) weeks, under Paragraph E, of Section 8 of the Workmen’s Compensation Act, and a further sum for temporary total disability, for whatever time, if any, that he is not reimbursed for.

The evidence taken in Chicago on April 10, 1941, shows that he first was employed by the Department of Public Welfare on November 11, 1940, and worked continuously from that time until March, 1941, when he resigned to accept a mechanic’s job at Abingdon, Illinois, at a salary of One Hundred ($100.00) Dollars per month. At the time of the injury he was earning Fifty-two Dollars and Fifty Cents ($52.50) and maintenance.

The evidence shows that he was treated at the institution after the accident by the night nurse, who rendered first aid. The following day he reported to the hospital of said institution where Dr. Cisman taped the injury, and later x-rays were taken. The hand was swollen and painful on the outside below the wrist. He had never injured the hand prior to January 8,1941. This claimant continued to work at his occupation as an attendant, losing no time, and he occasionally had his hand dressed with adhesive strapping. On January 15, 1941, the hand was put into a cast by Dr. Zolt, but about the day of February 1, 1941, the claimant removed the cast without advice of his physician, and apparently no treatment was given him' after that date. On February 24, 1941, his hand was examined by Dr. Albert C. Field, of Chicago, for the purpose of testifying. X-rays were made by Dr. Field, and he testified that they show a comminuted fracture of the fifth metacarpal with some displacement, but was not well healed at that time. He also testified that there was a separation, and a deformity at the site of the. fracture. He states as his opinion, that there is a twenty-five (25) per cent disability of said hand resulting from said injury.

Dr. Lewis Cisman, employed by the Chicago State Hospital, testified that all the effects of the acute injury had subsided, that there remained at that time a deformity at the base of the fifth metacarpal. That patient had weakness and incomplete flection of the fifth metacarpal, and complained of pain on forceable and complete flexion of the fifth finger. He stated that the patient was able to approximate all the fingers to the palm, and was able to approximate all the fingers to the thumb. There was some evidence of weakness in the fourth finger of the right hand. He stated that he was inclined to feel “that the permanent disability will be closer to twenty (20) per cent than twenty-five (25) per cent.”

On cross examination the claimant was asked the following questions:

Q. With that hand in the condition it is in, you are able to earn a salary of One Hundred ($100.00) Dollars a month as a mechanic?

A. Yes sir.

Q. Your hand is picking up some strength isn’t it?

A. It is picking up some strength, it is better than it was when it was hurt, and it is better than it was two weeks after it was hurt.

Q. And you are able to use it now as a mechanic?

A. I am able to use it with the exception of the little finger.

Q. It is just a little weak?

A. It is weak, I cannot exert pressure.

Claimant is not claiming any compensation for loss of time, he having been paid in full his wages from the time of the accident until he resigned.

The remaining question to be decided is whether the claimant is entitled to compensation for specific loss under Section 8 of the Workmen’s Compensation Act. The claimant bases his claim on specific loss of the use of a hand, but this cannot be classified as a hand injury, because the record supports a specific loss of -the use of the little finger only. We make a finding of fifty (50) per cent permanent partial loss of use of claimant’s little finger of the right hand.

The record establishes that the petitioner and respondent were, on January 8, 1941, operating under the provisions of the Workmen’s Compensation Act. That on the date last above mentioned said claimant sustained accidental injuries which did arise out of and in the course of the employment; and that notice of said accident was given said respondent, and claim for compensation on account thereof was made on said respondent within the time required under the provision of said Act.

That the earnings of the claimant during the year, next preceding the injury, were Nine Hundred Eighteen ($918.00) Dollars, included therein is the sum of Twenty-four ($24.00) Dollars per month, the court taking into consideration the fact that the Department of Public Welfare considers maintenance to be of that value, and that the average weekly wage was Seventeen Dollars and Sixty-five Cents ($17.65).'

That the petitioner at the time of the injury was twenty-six years of age, and had one child under the age of sixteen years.

That the necessary first aid, medical, surgical, and hospital services have been provided by the respondent herein.

That claimant is entitled to have and receive from said respondent the sum of Eleven ($11.00) Dollars per week for a period of ten (10) weeks, representing fifty (50) per cent loss of use of the fourth finger, commonly called the little finger, as provided in Paragraph E, of Section 8, and the further sum of Eleven ($11.00) Dollars as provided in Paragraph L, of Section 5, of said Act, as amended, for the reason the injury sustained occurred subsequent to July 1, 1939.

That said claimant is now entitled to have and receive from the respondent the sum of One Hundred Twenty-one ($121.00) Dollars. That all of said compensation has accrued and it is now payable in a lump sum.

This award being subject to the provisions of an Act entitled “An Act Making an- Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue fund in the manner provided for in such Act.


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    (No. 3550
    Velma Boismenue, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

    R. Wallace Karraker, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Velma Boismenue, is employed as an attendant at the Anna State Hospital, a public institution, owned and operated by the State of Illinois under the direction of the Department of Public Welfare. The hospital operates an engine room, boilers, electric dynamos, has a warehouse for the storage of supplies which it receives in quantities and stores for future use, maintains a dairy barn, hales hay, owns and operates mowing machines and tractors, and generates part of its own electricity. On June 12, 1939, while on duty on the hall of H-2 in the old dining room part, claimant slipped on a wet floor and sustained a broken coccyx.

Prom the time of the accident until November 10, 1939, she was confined to her bed in the employees’ hospital, and there underwent an operation. All medical, surgical and hospital services were furnished by the respondent. Claimant was totally incapacitated until August 29, 1940, when she returned to work. When first employed at the institution, on June 26, 1938, her earnings were $52.50 per month.; from January 1, 1939, to July 1, 1939, her earnings were $54.60 per month. While she was confined in the hospital, she was paid $56.70 per month for two months. In addition to her earnings, the record indicates that claimant received monthly maintenance of the value of $24.00. Claimant is over fifty years of age and has no children under sixteen years of age. Her claim is for medical services subsequent to her discharge from the hospital in the amount of $35.00, and for compensation from August 31, 1939, until August 29, 1940, at the rate of $7.50 per week, in the sum of $394.28, or a total sum of $429.28.

Claim was filed herein on October 28, 1940. The respondent thereafter moved to dismiss on the ground that the claim was not filed within one year after the date of the accident, nor within one year after the date of the last payment of compensation, as provided by Section 24 of the Workmen’s Compensation Act. This motion was overruled because it was not definitely ascertainable from the complaint whether or not it had been filed in accordance with the provisions of said section. Evidence was then introduced by claimant, and a stipulation entered into between the respective parties in reference to a photostatic copy of warrant covering payment to claimant for services from August 1st to August 31st, 1939. This warrant showed endorsement by the Anna National Bank of Anna, Illinois, on September 18th, 1939, having been endorsed by the claimant prior to that date. Respondent thereupon renewed its motion to dismiss, which motion is now before the court.

Under Section 3 of the Workmen’s Compensation Act, the provisions of that act apply automatically to the State when it is engaged in any of the enterprises therein enumerated and which are declared to be extra-hazardous. It appears from the record in this case that the State, in the operation of the Anna State Hospital, is engaged in such an extra-hazardous enterprise. Meile vs. State, 9 C. C. R. 170; Lynch vs. State, 9 C. C. R. 290. The enterprise being extra-hazardous, all employees of the institution come within the provisions of the Act irrespective of whether or not they themselves are directly exposed to the hazard. Ascher Bros. vs. Industrial Commission, 311 Ill. 258; Illinois Publishing Company vs. Industrial Commission, 299 Ill. 189. At the time of the injury in question it is apparent that the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and that the injury arose out of and in the course of employment.

■ Claimant’s application, however, was filed herein more than one year after the date of the last payment of compensation. Section 24 of the Workman’s Compensation Act provides as follows:

«* * * Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing; provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided, that in any case, unless application for compensation is filed with the industrial commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred. * * *”

It has been repeatedly held by the Illinois Supreme Court that compliance with this section is a condition precedent to the right to maintain proceedings under the Compensation Act. City of Rochelle vs. Industrial Commission, 332 Ill. 386. Inland Rubber Company vs. Industrial Commission, 309 Ill. 43. The decisions of this court are to like effect. Simpson vs. State, 10 C. C. R. 394; Baker vs. State, 10 C. C. R. 111; Ray vs. State, 10 C. C. R. 66.

Claimant urges, however, that Section 24 has no relation to, and does not affect the application of a claimant in the Court of Claims, and cites Section 10 of the Court of Claims Act, which provides:

“Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.”

Claimant states that the employees of the State of Illinois, while entitled to the benefits of the Compensation Act, are not entitled to the procedural relief given by that Act, since they have no right to appear before the Industrial Commission; that if they do not have that right, Section 24 of the Act does not apply, because that section is concerned only with matters of procedure; that for this court to sustain the motion of the respondent would be to hold that an employee of the State has less rights before the Court of Claims than any other claimant; that such a holding would be unfair discrimination and classification; and that if such were the intent of the Legislature, there would be a specific applicable statute of limitations.

The jurisdiction of the Court of Claims, however, in actions for compensation of State employees for accidental injuries is derived from paragraph 6 of Section 6 of the Court of Claims Act which provides:

“To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duty relative thereto.”

The Court of Claims, by virtue of this provision, is vested with the same jurisdiction in claims for compensation of State employees as that possessed by the Industrial Commission in cases of other employment. It is a well-established rule of law that a statute may adopt a part or all of another statute by a specific reference thereto, and the effect thereof is the same as though the statute or part thereof referred to had been written into the adopted statute. Zurich Accident Insurance Company vs. Industrial Commission, 331 Ill. 576; Evans vs. Illinois Surety Company, 298 Ill. 101. The terms and provisions of the Workmen’s Compensation Act, so far as they may be applicable, must, therefore, be considered by this court as if they were incorporated bodily into the Court of Claims Act.

The Supreme Court in the case of Robbins vs. Lincoln Park Commissioners, 332 Ill. 571, stated:

"The rule is, that where there Is to be found in a Statute a particular enactment, it is to be held operative as against the general provisions on the subject either in the same act or in the general laws relating thereto. Handtoffski vs. Chicago Traction Company, 274 Ill. 282; City of Chicago vs. M. & M. Hotel Company, 248 id. 264; City of Cairo vs. Bross, 101 id. 475.”

In the case of Handtoffski vs. Chicago Traction Company, 274 Ill. 282, the Supreme Court said:

“It is a rule in the construction of statutes that ‘where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment' must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.’ Endlich on Interpretation of Statutes, sec. 399; Chicago and Northwestern Railway Company vs. City of Chicago, 148 Ill. 141."

Section 10 of the Court of Claims Act, providing, in substance, that every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed within five years after the claim first accrues, is a general enactment applying to all claims against the State. Section 24 of the Compensation Act constitutes a special enactment which has reference only to claims against the State “for accidental injuries or death suffered in the course of employment by any employee of the State. ’ ’ The special enactment must prevail over the general five year statute of limitations. Crabtree vs. State, 7 C. C. R. 207.

This results in a uniform rule with reference to claims for compensation whether made against the State or any other employer. It-does not give an employee of the State less rights than another claimant, but gives the State employee the same rights which any claimant has under the Workman’s Compensation Act, whether the claim is made in the Court of Claims or before the Industrial Commission. To hold otherwise would be to distort the meaning of Section 6 of the Court of Claims Act and would establish one rule for State employees and an entirely different rule for. other employees. The State would be placed on an entirely different basis than the private employer. Clearly the legislative intent was not to make such an unjust distinction, but instead, to place State employees, as nearly as possible, on the same basis as employees in private industry.

It is unfortunate that claimant, whose case appears to be so meritorious, failed to comply with Section 24 of the Workman’s Compensation Act. Having so failed, however, this court is without jurisdiction to make an award. Respondent’s motion to dismiss must be granted.

Motion to dismiss allowed, case dismissed.


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    (No. 3556
    Louis C. Chiara, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

    Joseph W. Koucky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chibe Justice Damron

delivered the opinion, of the court:

Louis C. Chiara, claimant, was an attendant at the Chicago State Hospital, Chicago, Illinois, for a long time prior to March 20,1940. On the last mentioned date he was struck in the face by a patient while working on ward CW15. The blow broke his eye glasses and caused his right eye to become discolored. Some sixty (60) days thereafter he claimed that his back had been injured during said assault, which affected the lower extremities, and therefore he files his complaint. He asks an award as the result of said assault, of March 20, 1940, as follows:

(1) Thirteen and 20/100 ($13.20) Dollars per week for one hundred (100) weeks for temporary total disability as provided in Paragraph (e) Section (8).
(2) Thirteen and 20/100 ($13.20) Dollars per week for complete and permanent disability, including pension provided for under Paragraph (f) Section (8).

Three physicians testified in this case, one for the claimant, and two for the respondent. There is very little conflict in the diagnosis of each of these physicians. They all agree that at the time the testimony was taken, on March 27, 1941, that claimant had disability of his legs and back.

The questions to be determined are whether the present ill-being of claimant is attributable to the assault upon him on March 20,1940, and if so did the respondent receive notice or knowledge of the injury within the time fixed by Section 24 of the Workmen’s Compensation Act.

Upon a careful reading of the testimony in this case it is impossible to ascertain the physical condition of the claimant prior to the alleged assault on March 20,1940. This question was studiously avoided in his direct examination by his attorney, neither was any reference made in the examination in chief to the fact that this claimant had received an award for disability from the State of Illinois prior to March 20, 1940, although the same attorney had represented him- and obtained an award, but this fact was developed by the Attorney General on cross examination. It was therefore necessary for the court to examine the case of Louis C. Chiara vs. State of Illinois as reported in 10 C. C. R. page 387, to ascertain the physical condition of the claimant prior to March 20, 1940, and it is interesting to note the similarity between that case and the one before the court.

From this case it appears that claimant suffered from an involvement of the sciatic nerve some years prior to July 20,1935, and that on the last mentioned day he had a stiffness of the lower part of the back, and a limitation of motion of both legs; that the injuries this claimant received on July 20, 1935, either caused a neuritis of the sciatic nerve, or lighted up the pre-existing sciatic condition, and further that he had on said day a permanent loss of thirty-three and one-third (33 1/3) per cent of the use of the right leg, and a permanent loss of ten (10) per cent of the use of the left leg, for which he was paid Nine Hundred Eighty-eight ($988.00) Dollars by the State of Illinois.

Having thus ascertained the physical condition of the claimant prior to March 20,1940, the question now arises is he entitled to additional award for forty (40) per cent additional loss of use of the left leg, and sixteen and two-thirds (16 2/3) per cent additional loss of the use of the right leg, as claimed. This case is not prosecuted under Section 19, Paragraph (h) .of the Workmen’s Compensation Act.

The evidence shows after the claimed assault of March 20.1940, he went to'Dr. Ernest S. Klein, a staff physician for treatment, and although he testified that he reported the injury to his back, to his supervisor, and Dr. Klein, on that day, Dr. Klein denies any such report, and the supervisor did not testify. Dr. Klein testified that the injury involved a slight laceration of the skin near the right eye, which was discolored, and that his glasses had been broken from the blow, and he pronounced the injury mild.

Dr, Louis Cisman, and Dr. H. H. Goldstein, staff physicians, denied that the claimant mentioned an injury to his back or legs at the time they treated him, but agree that claimant informed them that some three weeks prior to the date of the injury he stretched and reached while playing baseball, which caused him to have a pain down his left leg. The court is of the opinion that the contention of the claimant that his back was injured in said assault, but not reported by him until May 20, 1940, was apparently an after thought and is not based on fact. The x-rays that were taken on May 23.1940, showed no evidence of any bony pathology involving the lower lumbar spine, sacral spine or pelvis. The claimant was under treatment from May 20, 1940, until June 1, 1940, when he left the hospital against the orders of the attending physician, without being discharged. On June 21, 1940, the claimant again entered the employee’s hospital for treatment with a similar complaint, and on June 24, again left the hospital on his own accord against the attending physician’s advice, without being discharged. During that month the claimant entered the Cook County Hospital of his own accord where he remained about two weeks and again left without being discharged by the attending physician. The latter part of June he returned to the Cook County Hospital. The evidence is clear that claimant at no time claimed an injury to his back until May 20, 1940, some sixty (60) days having elapsed from the time of the assault.-

The burden of proof is upon the claimant to show by a preponderance of the evidence that the injury for which compensation is claimed not only occurred during the course of his employment but also arose out of it, (Dietzen vs. Industrial Bd., 279 Ill. 11; Board of Education vs. Industrial Comm., 321 Ill. 23.)

Likewise “the burden of proof is on the claimant to show by a preponderance of the evidence that there is a causative connection of the accidental injury with the disability.” (Rittler vs. Industrial Comm., 351 Ill., 338; Sanitary District vs. Industrial Comm., 343 id. 236; Freeman Coal Co. vs. Industrial Comm., 315 id. 84; Standard Oil Co. vs. Industrial Comm., 339 id. 252; Berry vs. Industrial Comm., 335 id. 374; Sears Roebuck & Co. vs. Industrial Comm., 334 id. 246.)

Also the burden of proof is on the claimant to prove by a preponderance of the evidence that notice of said injury was given to respondent within thirty (30) days. Giving notice of the accident within thirty (30) days and making claim for compensation within six (6) months after the accident are each jurisdictional, and conditions precedent to the right to maintain a proceeding under the Compensation Act. (Burke vs. Industrial Comm., 368 id. 554; Lewis vs. Industrial Comm., 357 id. 309; Ohio Oil Co. vs. Industrial Comm., 293 id. 461) as provided by Section 24 of the Workmen’s Compensation Act.

It is the province of the Court of Claims to decide the case upon the evidence and all reasonable inferences that can be drawn therefrom, but in drawing inferences from the evidence, where there is no positive proof that the death or injury of the employee was occasioned as a result of an accident suffered during the course of his employment, the inferences must be reasonable such as can legitimately and properly be drawn from the proven facts. The term “inferences,” as used in this connection, does not mean guesswork. There is no presumption in a case of this nature that the disability was caused by reason of the accident. The liability of the respondent under the Compensation Act can not rest upon imagination, conjecture or surmise. (Rittler vs. Industrial Comm., supra; Byram vs. Industrial Comm., 333 Ill. 152; Illinois Bell Telephone Co. vs. Industrial Comm., 325 id. 102; City of Rochelle vs. Industrial Comm., 332 id. 386.)

It is just as reasonable to infer that the injury of July 20, 1935, caused all the disability complained of as to infer that the blow to the face on March 20, 1940, increased or caused the disability.

The liability of the respondent cannot be rested upon a choice between two views equally, compatible with the evidence. (Rittler vs. Industrial Comm., supra; Green vs. Industrial Comm., 324 id. 504.)

It is well settled in this State that when an accidental injury, which arises out of, and in the course of the employment, aggravates a pre-existing disease or causes it to flare up so that disability results the employer is liable for such disability. (Angerstein’s “Workmen’s Compensation Act.” Section 52; Peoria Terminal Co. vs. Industrial Bd., 279 Ill. 352; Rockford Hotel Co. vs. Industrial Comm., 300 id. 87; Carson Payson Co. vs. Industrial Comm., 340 id. 632; Ervin vs. Industrial Comm., 364 Ill. 62.)

In the instant case claimant was examined on March 20, 1940, and his injury was diagnosed as slight, by Dr. Klein. This was not such an injury that would aggravate a preexisting disease, and claimant does not come within the cases above cited. Likewise he makes no claim here that the attack of March 20, 1940, accelerated or aggravated a pre-existing disease.

Under the facts in this case the court holds that claimant did not give notice of an injury to his back or legs within thirty (30) days as provided in Section 24 of the Workmen’s Compensation Act, and further that the blow to his head could not have caused the disability he attempts to prove. We further hold that the disability, now complained of existed prior to the assault of March 20, 1940, and therefore was not caused by reason of the later assault. To believe otherwise the court would be compelled to indulge in imagination, conjecture, and surmise. That the claim heretofore filed and award granted to him in re: Louis C. Chiara vs. State of Illinois, 10 C. C. R., Page 387, for disability to his legs was adjudicated at that time, and must now be considered res adjudícala — for these reasons an award must be denied.


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    (No. 3467
    Robert Frohock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

      Rehearing denied June 15, 1942.

    Joseph W. Kouoky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This is a claim for compensation which comes before the Court on the complaint, transcript and abstract of testimony, and the respective briefs and arguments of the parties.

Robert Frohock, employed as an attendant in the Chicago State Hospital complains that on February 29, A. D. 1940, while in the course of his employment as an attendant he was attacked by a patient sustaining injuries to his right hand. He seeks an award therefor for twenty-five per cent loss of use of the right hand totaling Four Hundred Thirty-six and 90/100 ($436.90) Dollars.

It is agreed that claimant received a salary of Sixty-three ($63.00) Dollars per month and maintenance, valued at Eighteen ($18.00) Dollars per month. The claimant testified on direct examination that about ten o ’clock A. M. on February 29,1940, while doing the routine work in his ward, that it became necessary to move a patient from a position where he always sat, so the ward could be cleaned. That in doing this the patient became violent and attacked the claimant and that in attempting to hold the patient’s wrists and hands they both fell to the floor, sliding across the floor into a heavy oak bench leg, and claimant’s fist struck the bench leg, fracturing the fourth metacarpal, and otherwise injuring his right hand.

Claimant notified his supervisor immediately, and also the ward physician, Dr. Griffin, who ordered an x-ray immediately, and claimant’s hand was bandaged and he continued to work, losing no time whatever, and received his full salary and maintenance.

The bandage remained on his hand about five weeks. On March 9, 1940, he filed his complaint in this court. The testimony in this ease was taken in Chicago on May 8, 1940. Dr. Albert C. Field appeared in behalf of claimant and testified that there was a fracture of the fourth metacarpal proximal third of the right hand and that the fractural line was fairly well healed. He testified over objection, in his opinion, there was a loss of thirty (30) per cent of claimant’s right hand, and that such loss was permanent.

Dr. Louis Cisman, a staff physician of the Chicago State Hospital, was called by the respondent and testified that his physical examination of the claimant indicated pain, tenderness, swelling at points of localized tenderness in the proximal end of the fourth metacarpal bone of claimant’s right hand and that x-rays revealed a fracture of the fourth metacarpal bone of said right hand and that no displacement existed. He testified that, in his opinion, the loss of use of the right hand was about twenty (20) per cent. There was a further hearing of this case pursuant to agreement of attorneys representing both parties on March 19, 1941. Dr. Louis Cisman was again called as a witness on behalf of respondent. He testified that he examined claimant on March 14,1941, and found that the hand showed a depression of the fourth knuckle of the right hand. The patient had some loss in use of the fourth finger of the right hand. An x-ray picture was taken of the hand on the same day, revealed the fragments to be in good position with a callous formation at both ends of the fracture. He further stated that his examination revealed that the motion of the hand had improved, but as far as the deformity of the fourth knuckle there was no change, that the improvement was limited. That, in his opinion now, the loss of use of his right hand was between ten (10) per cent and twenty (20) per cent.

The record establishes that the claimant and the respondent, were on February 29, 1940, operating under the provisions of the Workmen’s Compensation Act. That on the day last above mentioned said claimant sustained accidental injury which arose out of and in the course of the employment; that notice of said accident was given said respondent and claim for compensation thereof was filed within the time required under the provisions of.said Act.

That the earnings of the claimant during the year, next preceding the injury, were Nine Hundred Seventy-two ($972.00) Dollars, included herein is the sum of Eighteen ($18.00) Dollars per month maintenance, and that the average weekly wage was Eighteen and 50/100 ($18.50) Dollars, and that his compensation rate was Nine and 25/100 ($9.25) Dollars.

That the necessary first aid, medical, surgical and hospital services had been provided by the respondent herein. The court finds that the disabling condition is in the fourth finger and is temporary, and had not yet reached a permanent condition up to the date of the hearing. The following award is no bar to a further hearing, and determination of a further amount of compensation for permanent disability, but is conclusive as to all other questions.

The court finds that claimant is entitled to have and receive from the respondent the sum of Nine and 25/100 ($9.25) Dollars per week for a period of ten (10) weeks, representing fifty (50) per cent loss of use of the fourth (4) finger, commonly called the little finger, as provided in Paragraph (e) of Section (8), and Paragraph (b) of Section (19) of the Workmen’s Compensation Act, and the further sum of Nine and 25/100 ($9.25) Dollars as provided in Paragraph (1) of Section (8) of said Act, as amended, for the reason the injury sustained occurred subsequent to July 1, 1939.

That claimant is now entitled to have and receive from the respondent the sum of One Hundred One and 75/100 ($101.75) Dollars. That all of said compensation has accrued and is now payable in a lump sum.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3597
    Etta Mandell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

      Rehearing denied March 11, 1942.

    Roy A. Ptacin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Etta Mandell, is employed as an attendant at the Chicago State Hospital, a public institution, owned and operated by the State of Illinois, under the'direction of the Department of Public Welfare. The hospital operates a power house, producing its own steam for heating, and generating electricity for lighting, has an electrical system carrying power and operating signals, owns and operates an electric sewing-machine, an electric saw, an automobile and three trucks, and also owns and operates with electricity certain elevators in one of the buildings forming a part of the institution. On February 23, 1941, while cleaning up after the feeding of patients at the institution, claimant slipped on some butter which had fallen to the floor and sustained an injury to her left leg and knee. She was furnished necessary first aid and medical treatment by the respondent, and continued her work.

The day after the accident, claimant complained of severe pain, and was admitted to employees’ hospital where she remained until March 21st, 1941. Medical and hospital services were furnished by the respondent, and claimant was given light and diathermy treatment-. She also received her regular pay while she was so incapacitated. Following her discharge from the hospital, she went to California to visit her sister. Her earnings at the time of the accident were $63.00 per month and maintenance in the amount of $18.00 per month. Her average annual earnings for the year preceding the accident were $972.00, and her average weekly wage was $18.69. She was then fifty-two years of age, married, but had no children under sixteen years of age. No claim is made for medical or hospital services, nor for temporary total or partial disability, but claimant asks for an award in the amount of $488.30 for a twenty-five per cent loss of use of her left leg. Notice of the accident and claim for compensation were made within the time provided by the Workmen’s Compensation Act.

Claimant testified that as a result of the accident her leg swells up and “clicks”; that she has a great deal of pain when she is on her feet for any length of time; that she cannot walk without a limp, and that she cannot bend her knee backward or forward. x

Dr. Albert C. Field, a witness called on behalf of the claimant, testified that he examined Mrs. Mandell on April 17th, 1941, making a comparative examination of both her lower extremities, and of both her knees. He testified that the right knee measured eighteen and one-half inches and the left knee nineteen inches; that on active motion her right knee could be flexed to within five inches of the buttocks, and the left knee to within fourteen and one-half inches; that there was some swelling of the left calf, about three-fourths of an inch enlargement; that the capsule was somewhat thickened; that there was no fluid in the joint; that the' patella was slightly restricted, and that there was crepitation on manipulation. He also testified that he took an x-ray of her left knee which disclosed an irregularity at the superior border of the attachment of the quadriceps femination muscle. In the opinion of Dr. Field, Mrs. Mandell was then suffering from a thirty-five per cent disability of her left leg; on cross examination he stated this might be caused by an arthritic condition as well as by the injury. He also testified that from the x-ray he found some slight lipping of the joint suggestive of an arthritic condition.

Dr. Louis Olsman, called on behalf of the respondent, testified that an x-ray, taken on the second morning following the accident, showed no evidence of fracture, but showed a little roughening of the articular surface, indicating rheumatic arthritis. From the injury revealed by an x-ray taken at the time of the hearing, Dr. Olsman stated that there was a permanent disability amounting to approximately ten per cent.

Following the testimony of Dr. Field and Dr. Olsman, a further examination of the patient was made by the two doctors jointly, at the conclusion of which Dr. Olsman testified, “I boosted my ante and we lowered his. We will settle for twenty-five. ’ ’

Under Section 3 of the Workmen’s Compensation Act, the provisions of that Act apply automatically to the State when it is engaged in any of the enterprises therein enumerated and which are declared to be extra-hazardous. From the testimony in this case, it appears that the State, in the operation of the Chicago State Hospital, is engaged in such an extra-hazardous enterprise. Miele vs. State of Illinois, 9 C. C. R. 170; Lynch vs. State of Illinois, 9 C. C. R. 290. The enterprise being extra-hazardous, all employees of the institution come within the provisions of the Act irrespective of whether or not they themselves are directly exposed to the hazard. Ascher Bros. vs. Industrial Commission, 311 Ill. 258; Illinois Publishing Company vs. Industrial Commission, 299 Ill. 189. At the time of the injury in question, it is apparent that the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and that the injury arose out of and in the course of employment.

The claimant, however^ has the burden of proving the causal connection between the accident and the condition or incapacity which constitutes her claim for compensation. Sanitary District vs. Industrial Commission, 343 Ill. 236; Sears, Roebuck & Company vs. Industrial Commission, 334 Ill. 246. Liability cannot rest upon imagination, speculation or conjecture, but must be based upon facts established by a preponderance of the evidence. Springfield District Coal Company vs. Industrial Commission, 303 Ill. 528. It cannot rest upon a choice between two views equally compatible with the evidence. Rittler vs. Industrial Commission, 351 Ill. 338; Carson-Payson Company vs. Industrial Commission, 340 Ill. 632.

The medical testimony in this case shows that both doctors were unable to determine whether or not the claimant’s alleged disability is a result of the injury or is caused by an arthritic condition which existed prior to the injury. In the report made by the managing officer of the Chicago State Hospital on October 8th, 1941, it was stated that the x-ray taken at the time of the accident revealed no fracture but did show evidence of an old arthritic condition; that claimant was hospitalized for thirty days because of her persistent complaint of pain although there was no evidence of such an injury as to account for the patient’s symptoms. Dr. Cisman also stated that the x-ray, taken at the time of the accident, showed no evidence of fracture, but did indicate rheumatic arthritis. Dr. Field, claimant’s own witness, stated that the alleged disability might be caused by an arthritic condition as well as by the injury, and that an x-ray taken in April, 1941, was suggestive of an arthritic condition. A month after the accident, claimant was sufficiently recovered to make a trip to California; upon her return, she resumed her former position.

It appears from the evidence that claimant has not sustained her burden of proving the causal connection between the accident and her alleged incapacity; that any liability in this case would be based, not upon the facts, but upon conjecture; that there are two views equally compatible: (1) that claimant’s disability is a result of the injury; (2) that claimant’s disability is a result of a prior arthritic condition.

An award must therefore be denied.


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    (No. 3637
    Mary Catherine Newman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

    Claimant, pro se.

      George F. Barrett, Attorney General; Glemh A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

On August 20, 1941, Ralph Newman, a police officer in the employ of the Division of State Police, Department of Public Safety, State of Illinois, District No. 13, with headquarters at DuQuoin, Illinois, while in the course of his employment was riding a motorcycle of the Division of State Police on Route 14 through the Village of Buckner, Illinois, which at about 11:30 A. M. collided with an automobile being driven by Edward Russell of Buckner, as a result of which collision the said Ralph Newman died on the same day. Deceased was being paid by the Division at the rate of One Hundred Seventy-five Dollars ($175.00) per month for his services, and was first employed by the Division of Highways, Bureau of Police, on October 20, 1937, as a State Highway Maintenance Police Officer and was continuously so employed until the time of his death having been previously transferred with the Police organization to the Department of Public Safety, Division of Police, on July 1, 1941. Deceased is survived by his widow, Mary Catherine Newman, claimant herein, and one child, Marilyn Sue Newman, six years of age.

This claim comes before the court on the claim of Mary Catherine Newman, pro se; the report of the Division of Highways, by M. K. Dingle, Engineer of Claims, and the stipulation of the claimant and respondent that the report of the Division of Highways shall constitute the record in this case.

There is no disagreement as to the facts and no question arises as to the jurisdiction of the court or other jurisdictional matters.

This court has held in a large number of cases that an employee of the respondent engaged as a highway maintenance patrolman or police officer is such an employee of the State as is entitled to the benefits of the Illinois Workmen’s Compensation Act.

Church, et al vs. State, 7 O. C. R. 256.
Lightner vs. State, 8 C. C. R. 354.
Ferguson vs. State, 8 C. C. R. 589.

It appears from the stipulated facts herein that the deceased had been paid One Hundred Seventy-five Dollars ($175.00) as payment for his services for the month of August, 1941, and that this payment represents an overpayment of Sixty-two Dollars and Ten Cents ($62.10),

From the agreed facts of -this case and the law pertaining to such facts, claimant is entitled to the benefits of the Illinois Workmen’s Compensation Act.

Deceased had been paid for more than one year prior to the date of his death at the rate of One Hundred Seventy-five Dollars ($175.00) per month, or Twenty-one Hundred Dollars ($2,100.00) per year. Claimant is therefore entitled to an award of Four Thousand Dollars ($4,000.00) as his widow, (Sec. 7A Workmen’s Compensation Act), Four Hundred Ffty Dollars ($450.00) additional for one child under sixteen years of age (Section 7, Par. 3, Workmen’s Compensation Act) and ten per cent (10%) of the total of Four Thousand Four Hundred Fifty Dollars ($4,450.00) or Four Hundred Forty-five Dollars ($445.00) (Chap. 48, Sec. 144, Illinois Revised Statutes, 1941), making a total of Four Thousand Eight Hundred Ninety-five Dollars ($4,895.00), from which must be deducted the sum of Sixty-two Dollars and Ten Cents ($62.10) overpayment of salary to deceased, and such deduction applied on the first payments due under the award.

An award is therefore hereby entered in favor of Mary Catherine Newman, claimant herein, for the sum of Four Thousand Eight Hundred Thirty-two Dollars and Ninety Cents ($4,832.90) payable as follows, to-wit:

(1) The sum of Two Hundred Eighty-four Dollars and Forty Cents ($284.40) compensation for a period of twenty-one weeks, after deducting said overpayment of Sixty-two Dollars and Ten Cents ($62.10), accrued to January 13, 1942, is payable forthwith.

(2) The balance of said award, to-wit: Four Thousand Five Hundred Forty-eight Dollars and Fifty Cents ($4,548.-50) is payable in two hundred seventy-five weekly installments of Sixteen Dollars and Fifty Cents ($16.50) each, commencing January 20, 1942, and one final installment of Eleven Dollars ($11.00).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such an Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


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    (No. 3576
    Hulda Penninger, also known as Hulda Neathamer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

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

On December 2nd, 1940, the claimant, Hulda Penninger, also known as Hulda Neathamer, was employed as an attendant at the Chicago State Hospital, a public institution, owned and operated by the State of Illinois under the direction of the Department of Public Welfare. The hospital operates motor-driven vehicles such as laundry trucks and food trucks, and contains and operates motor-driven machinery such as mangles and washing machines. While going to the schedule board of the institution to ascertain her assignment for the day, claimant tripped, fell, and injured her left wrist. She was furnished necessary first aid by the respondent, and thereafter elected to employ her own physician.

Claimant was totally disabled for a period of twelve weeks, from the date of the accident until March 3rd, 1941, but she received one month’s pay while so incapacitated. Her earnings at the time of the accident were $68.25 per month, her average annual earnings for the year preceding said accident were $819.00, and her average weekly wage was $15.75. Notice of the accident and claim for compensation were made within the time provided by the Workmen’s Compensation Act.

Claimant testified that as a result of the accident she cannot turn over her arm and left hand, cannot bend back her hand and arm, and cannot close her fingers. Dr. Albert C. Field, a witness called on behalf of the claimant, testified that there is a deviation of the band in claimant’s forearm due to shortening of the radius, a backward displacement of the lower fragment, and an anterior displacement of the upper fragment; that on passive motion there is about fifteen degrees of flexion, a limitation of about eighty-five degrees; that her hand is held in a deformed semi-flexed position, about fifteen or twenty degrees less than the normal range; that the extension is practically nil; that there is about eighty-five per cent normal length of motion on eversion and inversion; and' that there is some atrophy of the thenal and hypothenal eminence. Dr. Field further stated that the claimant’s condition is permanent, and that in his opinion she has an eighty-five per cent loss of use of her hand.

Dr. Louis Cisman, called on behalf of the respondent, testified that claimant’s deformity was permanent, and stated that he agreed with the testimony of Dr. Field as to the total amount of disability and loss of function within ten per cent either way.

Under Section 3 of the Workmen’s Compensation Act, the provisions of that Act apply automatically to the State when it is engaged in any of the enterprises therein enumerated, and which are declared to be extra-hazardous. From the testimony in this case, it appears that the State, in the operation of the Chicago State Hospital, is engaged in such an extra-hazardous enterprise. Miele vs. State of Illinois, 9 C. C. R. 170; Lynch vs. State of Illinois, 9 C. C. R. 290. The enterprise being extra-hazardous, all employees of the institution come within the’provisions of the Act, irrespective of whether or not they themselves are directly exposed to the hazard. Ascher Bros. vs. Industrial Commission, 311 Ill. 258; Illinois Publishing Company vs. Industrial Commission, 299 Ill. 189. At the time of the injury in question, the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

The court, therefore, upon a consideration of the entire record, finds that the claimant, having suffered an accidental injury which arose out of and in the course of her employment, is entitled to have and receive from the respondent the following sums, to-wit:

(1) $8.66 per week for twelve • weeks, that being the period of temporary total disability, or the sum of $103.92.

(2) The further sum of $8.66 per week for 127% weeks, to-wit: $1,104.15 for the permanent loss of seventy-five per cent of the use of her left hand.

(3) Or total compensation in the amount of $1,208.07, from which must be deducted the sum .of $68.25, heretofore paid to the claimant, leaving a balance of $1,139.82.

Award is therefore entered in favor of the claimant for the said sum of $1,139.82, payable as follows, to-wit:

(1) The sum of $502.28, compensation for a period of fifty-eight weeks accrued to January 13, 1942, is payable forthwith.

(2) The balance of said award, to-wit: the sum of $637.54 is payable in seventy-three weekly installments of $8.66 each, commencing January 20, 1942, and one final installment of $5.36.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3562
    Martin Bianco, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    Paul D. Perona, for claimant.

      George F. Barrett, Attorney General; Ben F. Bailsbaok, Assistant Attorney General, for respondent.
   Eckert, J.

On August 8th, 1940, the claimant, Martin Bianco, was employed by the Department of Public Works and Buildings in the Division of Highways on State Boute No. 89 about one mile north of McNabb in Putnam County, Illinois. He was assisting in patching concrete pavement and while lifting a sack of cement to pour it into a measuring box, injured the fourth finger of Ms left hand. Claimant continued to work during the remainder of the day and that evening was sent by his foreman to Dr. Perry Hartman, Jr., in Granville, Illinois. The doctor found a dislocation of the distal phalanx of the fourth finger of the left hand and splinted the finger. Subsequently x-ray pictures were taken and thereafter a minor operation was performed upon the finger. Treatment was continued until September 1st, 1940. Claimant lost no time from his work.

The accident occurred the first day claimant was employed by the Department of Public Works and Buildings and no compensation of any kind has been paid to Mm. The Division of Highways, however, has paid on account of the injury $17.50 to the Hartman Clinic at Granville, and $3.00 to St. Margaret Hospital at Spring Valley for x-rays. At the time of the accident, claimant was employed at the rate of 50c per hour. He had no cMldren under 16 years of age. Employees engaged in the same capacity and at the same rate as claimant are employed by the Division of Highways less than 200 days a year and such employees normally work 8 hours per day.

From the record in tMs case, which consists of the complaint, the testimony of Dr. Hartman and of the claimant, the report of the Division of Highways, the brief of the respondent and claimant’s reply thereto, it appears that at the time of the injury in question 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 said Act. Furthermore, the action arose out of and in the course of the employment. It does not appear, however, that claimant is entitled to any award on account of temporary total disability.

It also appears from the record that claimant has suffered the permanent loss of the use of the distal phalanx of the fourth finger. At the rate of 50c per hour, 8 hours per day, compensation should be determined on the basis of 200 days at $4.00 per day or an annual wage of $800.00. This in turn equals an average weekly wage of $15.38. Under the provisions of the Workmen’s Compensation Act, claimant is entitled for the permanent loss of the use of the distal phalanx, 50% of this average weekly wage for a period of 10 weeks, or $76.90. Since the accident occurred after July 1, 1939, the amount of compensation must be increased 10%, making a total sum of $84.60.

Award is therefore entered in favor of the claimant for the said sum of $84.60, all of which has accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3360
    Priscilla Bowers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    Laweence A. Glenn, for claimant.
    Geobge F. Babbett, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed February 8,1939, for Four Thousand Dollars ($4,000.00). Frank Bowers, the deceased husband of claimant, was employed as a fireman at the Southern Illinois Normal University and on November 10, 1938, while engaged in his usual duties as a fireman in the boiler room of said institution was cleaning a steam driven feed pump when the index finger of his right hand was caught between the arm and piston of the pump, and said finger was completely severed between the nail and first joint. Subsequent thereto, on December 11, 1938, he died from an alleged embolism as a result of the said injury. The complaint alleges that the deceased had worked for thirty-three years prior to the date of his accident as a fireman in the said Southern Illinois Normal University, that at the time of his death he left him surviving his widow, Priscilla Bowers, claimant, who was fully dependent upon him for support.

The medical and surgical treatments were furnished and paid for by the employer, except the sum of Thirteen and 65/100 Dollars ($13.65) advanced by Dr. Fred S. Etherton for anti-tetanus serum.

The record in this case consists of claimant’s complaint, amended complaint, the report of the Department of Begistration and Education signed by Boscoe Pulliam, President of Southern Illinois Normal University, transcript of the evidence, a motion on behalf of the claimant to omit claimant’s Exhibit 2 as part of the record, the abstract of the evidence and the respective statements, briefs and arguments of the parties hereto.

The accident in this case occurred on November 10, 1938, the respondent had knowledge of the accident on the day on which it occurred, claimant’s husband died on December 11, 1938, and this claim was filed on February 8, 1939. It would therefore appear that all the jurisdictional requirements of Section 24 of the Workmen’s Compensation Act were complied with in this claim.

A number of decisions of the Court of Claims are cited in the respondent’s brief showing the various occupations and employments of persons working for the State and injured while in such employment to whom, or to whose dependents an award has been allowed. It would appear that among the cases cited there are several of such similarity to the occupation of the claimant’s deceased husband as to be controlling in the present claim.

The courts of a number of states, including the Supreme Court of Illinois, have decided that circumstantial evidence is sufficient as to the occurrence of an accident. It appears that the claimant’s deceased husband’s injury arose during the course of his employment, that is during his normal working hours and at his place of employment. Whether or not it arose out of his employment is a question which must also be decided favorably to claimant before an award can be made. The deceased, Frank Bowers, made a statement to his fellow employee, Samuel Stokes, immediately after accident calling attention to his injury which, under the conditions made, is a part of the res gestae. The record also contains the testimony of the deceased’s fellow fireman, Samuel Stokes, and the testimony of the deceased’s superior, the engineer, F. A. Burke, regarding the circumstances of Frank Bowers’ accident. From all the evidence this court is of the opinion that the accident arose out of the deceased’s employnlent, and we so find.

The other question which this court must determine is whether Frank Bowers’ death was the result of the accidental injury suffered by him on November 10, 1938.

It is contended that Frank Bowers died as the result of an embolism, and there are included in the respondent’s brief several quotations from medical books as to embolism. It appears that an embolism may be composed of a minute particle of fat, clotted blood, an air bubble, or a foreign substance in the blood stream. It further appears that a fat embolism occurs most frequently where there has been a fracture of a bone and the fat from the marrow of the bone gets into the blood stream, either because of the trauma and the injury to the bone or the manipulation of the attending physician in restoring the parts of the bone to their proper position. It also appears that an embolism composed of clotted blood, or even other substances which may be in the blood stream although foreign to it may result either from an opening in the tissues with the resulting coagulation of the blood or the entrance therein of some foreign substance including air, or that such a coagulated blood particle which constitutes the embolus may be part of a thrombus, which is a clot within the arteries or veins, or even occasionally the heart itself. Such latter embolus results when a part of the thrombus is separated from the fixed and parent body and becomes a movable clot travelling throughout the blood stream until such time as it reaches a place in the artery carrying such blood stream which is too narrow to permit the passage of such embolus, when a stoppage results and a physical disability, sometimes even death, follows. It appears, therefore, that an embolus may result from a fracture of a bone, even though the fracture is not of the compound type and no part of the bone protrudes through the surrounding tissues. It also appears that an embolus may be formed where there is no fracture but where, because of external lacerations there was a clotting of the blood, and likewise where an operative procedure is necessary and as a part thereof certain parts have been severed. In the latter case in the healing process blood clots are formed and if these get into the circulatory system as such, rather than as being reabsorbed into the blood stream, disaster results.

However, it also appears that embolism needs neither a fracture nor an incision, nor trauma, so that blood collects as in the case of a black eye, but may be merely a particle that is broken off from a thrombus which is an unnatural growth.

The question in this case to be decided by the court is whether'or not Frank Bowers actually died as a result of an embolus, and if so, whether such embolus was a result of the fracture and traumatic amputation which he suffered, or whether such- death causing embolus was merely one of a series, others of which he had suffered on November 27th and December 9th, and all of which came from the same parent thrombus.

Had an autopsy or post mortem examination been performed in this case, this question undoubtedly would have been definitely determined, but as this was not done this court must arrive at its conclusion from the evidence before it and the reasonable inferences that can be drawn therefrom. The law is well settled that the liability of the respondent cannot be rested upon a choice between two views equally compatible with the evidence. The deceased was attended by Drs. M. and Fred S. Etherton. They both testified that the deceased was a man of good health and cheerful disposition, that they did not know of any physical ailment he had prior to the date of his accident, that his death was caused by an embolus resulting from the accident he received on November 10th, and that it was either a fat embolus or a blood embolus produced by his injury.

This court is of the opinion, from the evidence, that the deceased, Frank Bowers, died from an embolus which had its inception in the traumatic amputation of the finger, and it was caused by the accident suffered by him on November 10,1938. To conclude otherwise would be to indulge in conjecture and to accept inferences and suppositions not supported by the evidence.

The deceased earned the sum of Fourteen Hundred Dollars ($1,400.00) a year. The court therefore finds that claimant is entitled to an award in the sum of Four Thousand Dollars ($4,000.00), being the maximum allowed under the terms of the Workmen’s Compensation Act, which is payable at the rate of Thirteen and 46/100 Dollars ($13.46) per week starting from the time of Frank Bowers’ death, as follows, to-wit:

(1) The sum of Two Thousand Two Hundred Thirty-four and 36/100 Dollars ($2,234.36), which amount covers a period of one hundred sixty-six (166) weeks from the date of his death, December 11, 1938, to and including February 15, 1942, is payable forthwith;
(2) The balance of said award, to-wit: One Thousand Seven Hundred Sixty-five and 64/100 Dollars ($1,765.64), is payable in one hundred thirty-one (131) weekly installments of Thirteen and 46/100 Dollars ($13.46) each, commencing February 22, 1942; and one (1) final installment of Two and 38/100 Dollars ($2.38);
(3) A further award is hereby allowed to Dr. Fred S. Etherton in the sum of Thirteen and 65/100 Dollars ($13.65) to reimburse him for the cost of anti tetanus serum which he administered to the deceased.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such an Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided for in such Act.