text:
    (No. 4424
    Sylvia Thoesen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

    J. Michael Madda and Abraham B. Litow, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

This is a case under the Workmen’s Compensation Act. Commissioner Egill Anderson, one of the Commissioners of this Court, heard this case, and his report, filed herein, reads in part as follows:

“Claimant, Sylvia Thoesen, a spinster, 50 years of age, height 5 ft. 4^ inches, and weighing 225 pounds, was on December 6, 1950, at 12:30 P.M., employed by respondent as field auditor in the Department of Revenue. While in the course of her employment, and walking down a set of stairs leading to the vault located west of the south bank of elevators at 11 South LaSalle Street, Chicago, claimant fell down six or seven treads to the landing below, landing on her knees, and injuring her legs, bruising her shoulders, back, hips and nose. After the fall claimant rested a while on the landing, and then went downstairs to the vault where she sat for about two or two and one-half hours, and then took a cab home. When she arrived home she fainted several times, and went to bed. A Dr. Richter called on claimant the next day, examined her, and prescribed a sedative that evening, and cold applications to the legs. He called on her again the following day, but prescribed no medicine, and suggested to her that when she felt better she should have X-Rays taken. He called on her the third time around Christmas, gave no treatment, but prescribed some medication. She stayed in bed for seven days, and was off from work from December 6, 1950 to January 2, 1951.

After seven days thrombosis appeared in the inner part of the left leg just above the ankle and outer part of the right leg near ankle. First there was a hard lump, which gradually became painful, and black and blue. This condition of the legs persisted for about three or four weeks in the left leg, and about two weeks in the right leg, when it finally cleared up satisfactorily.

Claimant kept hot compresses on her legs, and took some medication for the pain in the ankles while she was staying at home. After she returned to work, she saw Dr. Richter, at which time he took X-Rays of her ankles at St. Ann’s Hospital. Claimant also consulted a Dr. DiCosola, who gave her some medication, pills and a prescription, and recommended heat applications to the ankles.

At the time of the hearing, claimant complained of pain in the ankles and knees while working, and also sometimes at night in bed. She testified that her ankles were swollen; that, when she went up and down steps she had to hold onto the railing; that she could not walk the way she used to walk; that these conditions did not exist prior to the accident, and that she never was injured before.

Dr. Samuel Weiner testified in behalf of claimant that on August 20, 1951 he gave her a general physical examination, and also an orthopedic and vascular examination. He testified that her lower extremities showed varicose veins in both legs, palpable thrombosis or clots in the pits of the knees, involving the adjacent portions of the calves of both legs, and both of the ankles showed palpable landmarks, which were found to be resistant to motion on manipulation of both ankles.

Claimant’s exhibit No. 1, an X-Ray, was received in evidence. This film was taken August 20, 1951, and showed claimant’s right and left legs, and portions of both feet. Dr. Weiner, interpreting this film, testified that the right ankle had an inversion deformity; that it is comparatively turned in to the extent of about 15 degrees in the ankle joint, and that it also showed a linear calcification along the tissues adjacent to the distal end of the fibula in the ankle joint of the right side; also that the right ankle, looking down into the foot, contained some arthritic spur formation between the first cuneiform bone. Dr. Weiner further testified that from his diagnosis, claimant has residual defective circulation of the right leg and ankle, causing a postural disturbance of the ankle and leg; and also a postural thrombophlebitis involvement of the varicose veins of both the right and left leg. He explained that a postural disturbance in the right lower extremity is the inversion deformity of the ankle, which causes a deflection of the weight-bearing axis of the left leg in relation to the ankle, and the only things found there were the residual clots in the veins above the calf and just below the knee. In answer to a hypothetical question incorporating the facts pertaining to claimant herein, Dr. Weiner further testified that there could have been, or might have been, a causal connection between the ill being of the hypothetical person and the alleged accident. He also further testified that the condition of both of claimant’s lower extremities was permanent.

Dr. Albert G. Field, expert medical witness for respondent, testified he took two X-Ray films of claimant on September 5, 1951, and same were admitted into evidence as respondent’s exhibits Nos. 2 and 3. Dr. Field interpreted respondent’s exhibit No. 2 as being an anterior-posterior and lateral view. He stated that there were two projections taken on the same film of claimant’s right leg, which disclosed the lower end of the tibia, fibula, and ankle joint. It included the astragalus, the tarsal, and part of the metatarsal bones. He further testified that there was no evidence of bony injury or dislocations; that the anterior-posterior view disclosed some evidence of sclerosis, and some evidence of osteomyelitis or arteriosclerosis in the blood vessels; that there was no deformity in the site of the ankle joint. He further stated that the ankle joint was well preserved, and the contour of the joint made with the tibia, the astragalus, and the fibula was within normal limits; that there was no break in the continuity; that there was no pronation or supination, inversion or eversion in the ankle joint; that the ankle was straight; that there was no division in the lateral view on the left; that the front showed no evidence of bony injury or dislocation; and that there was some slight haziness due to some arthritic condition of the ankle joint.

Dr. Field further testified in interpreting respondent’s exhibit No. 3 that there were two projections taken on the same film, the anterior-posterior and lateral views of the left leg, which showed the same amount of bone as the previous film; that the X-Ray showed no evidence of bony injury or dislocation in the ankle joint; that there was no break in the continuity; and that it showed some sclerotic condition of the blood vessels due to the arteriosclerosis condition; that in comparing both films they are identically the same; and that there is no appreciable pronation or supination.

Dr. Field, in interpreting claimant’s exhibit No. 1, testified it disclosed no evidence of bony injury or dislocation; that the position of the left leg was within normal limits; that there was some sclerosis along the edges of the soft tissues, due to arteriosclerosis in the blood vessels; that the right leg disclosed some deformity to the ankle joint, which was due to the position the patient’s foot was held in at the time of the taking of the film; and that the foot was not straightened out in the same way as the foot on the opposite leg.

Dr. Field further testified he made a physical examination of claimant’s lower extremities, and stated that she was overweight; that she walked with a flatfooted gait; that he made comparative measurements; that the fossae on each side were well preserved; that the anatomical landmarks were well preserved; that there was some slight crepitation present on manipulation, flexion was within normal limits, and the leg could be fully extended; that the right foot was somewhat rigid, was markedly pronated, and there was a reflection of both the longitudinal and the transverse arches with hyperextension of the toes with prominent metatarsal heads; that the fossae between the metatarsals were fairly well preserved, with no appreciable swelling; that there was some slight spiderweb condition of the veins in and around the ankle joint, but it was small and non-symptomatic; that the movements of the ankle both actively and passively were well performed, and there was no complaint of rigidity encountered on manipulation; and that there was no enlargement of the veins in either leg.

Dr. Field further testified that the movements of her left lower extremities were fairly well performed; that extension was within normal limits; that there was some slight crepitation present in the muscular part of the leg, which was well preserved; that there was no irregularity or no hardening that could be palpated or outlined in the course of the veins, and there was no swelling or deformity whatsoever in the calves of either the right or left leg. The movements of the left foot were within normal limits — flexion, extension, pronation and supination; that she was wearing arch supports made by Scholls’ Laboratory, which were not sufficient for her feet to remain in normal position, and she had some trouble with her arch supports.

Dr. Field in answer to a hypothetical question, incorporating the facts pertaining to the claimant herein, testified that there was no causal connection between the complaint as enumerated at the hearing, and the injuries as described in the hypothetical question. He further testified that the pronation in claimant’s feet had existed for a long time, and she was wearing arch supports to give her adequate support, and the swelling and the puffiness around the ankle joints was due to stress and strain placed on the ankle joints because of her overweight, and he concluded by stating that the deformity in claimant’s right ankle was due to pro-nation of the foot as a result of being flatfooted.

Claimant and respondent at the time of the accident were operating under and subject to the provisions of the Workmen’s Compensation Act, and notice of the accident was given the respondent within thirty days, as provided by the said Act. At the time and place of said injury claimant was performing duties for respondent in the course of her employment.

During the period from December 6, 1950 to January 2, 1951, while claimant was off from her work, she was paid her full salary. Claimant resumed her employment with respondent on January 2, 1951, and is now so employed.

For the year immediately preceding the injury claimant, while employed by respondent, earned a salary of $2,676.00.

It is the opinion of the undersigned, after hearing the evidence in this case, and observing the movements of claimant, that she has not proved her case by the preponderance or greater weight of the evidence; that she has apparently recovered from the effects of the fall in question; that the present condition of her ankles appears to be due to overweight; and that the deformity in the right ankle appears to be due to pro-nation of the foot as a result of claimant being flat footed, and not due to the accident in question.”

We do hereby adopt the statement of facts made by Commissioner Anderson, and agree with his conclusions, and an award to claimant, Sylvia Thoesen, will be denied.

Respondent has paid for all medical expenses in this case except a bill in the amount of $45.00 owed Dr. Albert C. Field. An award is entered in favor of Dr. Albert C. Field, Chicago, Illinois, for $45.00.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Anderson. Charges in the amount of $82.00 were incurred. An award is entered in favor of William J. Cleary & Co. for $82.00.

An award to claimant, Sylvia Thoesen, is denied.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1949, Chap. 127, Sec. 180.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4426
    Mae French, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

      Petition of Claimant for rehearing denied November 13, 1951.

    Bowe and Bowe, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter. Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Mae French, seeks to recover from respondent under the Workmen’s Compensation Act for injuries that resulted from an accident, which arose out of and in the course of her employment as a certified housekeeper at the Veterans Rehabilitation Center in Chicago, operated by the Department of Public Welfare.

On December 20, 1950, claimant, in the course of her duties, was walking from one building to another at said Center when she misstepped, or tripped, and fell, striking the brick pavement on her right side, sustaining a fractured wrist and a fracture of one of the pelvic bones.

No jurisdictional questions are involved, and respondent has furnished all medical and hospital services required to cure and relieve claimant of the effects of her accidental injuries.

Claimant’s doctor took ten X-Rays. Those of claimant’s right shoulder, right elbow and right knee disclose nothing that could cause recognizable disability, and the doctor’s physical examination of claimant corroborates such conclusion.

The X-Rays of claimant’s right wrist disclosed a Colles fracture (silver fork) of the radius and ulna, the fracture of the former bone extending into the joint space. Reduction of such fractures was incomplete, and deformity in the wrist was marked. Limitation of flexion and extension of the wrist amounted to 85 and 70%, respectively. In addition, claimant’s fingers on her right hand were stiffened, flexion being limited 25%.

From the foregoing, we conclude that claimant has sustained a 40% loss of use of her right hand.

The X-Ray of claimant’s pelvic region disclosed a fracture of the right ischium, and a separation of the os pubes: The Lasuege and Kernig tests disclosed an inflammatory condition in the lower lumbar region at the sciatic nerve. This would indicate a small loss of use of both legs.

Since claimant’s discharge from the hospital, she has performed her work and social duties as before, but her gait is careful, and somewhat awkward.

The foregoing indicates to us that claimant has sustained a 10% loss of use of both legs.

Claimant, on the date of her accident, was 71 years of age, and had two grown and married daughters. Her earnings in the year prior to her accident amounted to $2,530.00, and her rate of compensation is, therefore, $22.50 per week.

Claimant was temporarily and totally disabled for one month, or 4-2/7 weeks, and during such period of temporary total disability she was paid her full salary of $215.00, but she was entitled to only $96.43, and was thus overpaid $118.57, which will have to be deducted from her award.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Anderson. Charges in the amount of $48.85 were incurred, which charges are reasonable and customary. An award is entered in favor of William J. Cleary & Co. in the sum of $48.85.

An award is entered in favor of claimant, Mae French, under Section 8 (e) (12) (15) of the Workmen’s Compensation Act as follows:

40% loss of use of her right hand, or 68 weeks at $22.50 per
week, being the sum of.................................................................... $1,530.00
10% loss of use of both right and left legs, or 38 weeks at $22.50 per week, being the sum of................................................ 855.00
$2,385.00
Less overpayment............................................................................ 118.57
Net award.................................................................................. $2,266.43
This award to claimant is payable as follows:
$ 829.29, less overpayment of $118.57, or the sum of $710.72, which has accrued, and is payable forthwith;
$1,555.71, payable in weekly installments of $22.50 per week commencing on October 12, 1951, for a period of 69 weeks, plus one final payment of $3.21.

This award is subject to the approval of the Governor. Ill. Rev. Stat., 1949, Chap. 127, Sec. 180.


author: Delaney, J.

text:
    (No. 4442
    Nova Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

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

Nova Casey filed his complaint on June 1, 1951, wherein he alleges that on December 5, 1950, while employed by the Department of Conservation as a carpenter at the Ramsey Lake Project at Ramsey, Illinois, he was injured while repairing the roof of a shelter.

The record consists of the complaint, Departmental Report, motion of claimant for an award under Section 19 (b) of the Workmen’s Compensation Act, transcript of evidence, and reporter’s bill.

At the time of the accident, claimant was 53 years of age, married, but had no children under 18 years of age dependent upon him.

He was first employed by the Department of Conservation on March 14, 1950. His rate of pay was $1.50 per hour; and, although he had worked for respondent for less than one year, employees engaged .in similar work earned in excess of $1,560.00 per year. Claimant’s compensation rate would, therefore, be the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50.

Claimant was injured while on a scaffold supported at one end by a stepladder; he was handing bunches of shingles to a man on the roof. One bunch started to slide down the roof, and, when he stopped the bunch of shingles, the stepladder turned over, and he fell approximately six feet to the concrete floor below.

On the date of the hearing, claimant testified that he had only been able to work on several occasions, and that, at most, his work record would not amount to more than one full day of gainful employment. He further testified concerning his physical condition, and this was verified by Dr. E. P. Staff. Commissioner Henry S. Wise of this Court examined claimant, and found that he was having considerable trouble with his left foot and ankle, and that he was unable to work on the date of the hearing.

Claimant has filed his motion herein for an order of this Court for payment of compensation up to the date of the hearing on August 30, 1951, and further asks that no final order be entered in said cause determining the extent of permanent disability until a further hiring is had, pursuant to the provisions of Section 19 (b) of the Illinois Workmen’s Compensation Act.

Under Section 19 (b) of the Workmen’s Compensation Act, claimant is entitled to be paid for 38 2/7 weeks at his compensation rate of $22.50 per week, or a total of $861.43. Since the respondent has not furnished medical services, claimant is also entitled to be reimbursed for the sum of $22.50 paid to Dr. E. P. Staff. The other bills will be offered at the final hearing.

An award is, therefore, entered in favor of claimant, Nova Casey, in the sum of $883.93, all of which has accrued, and is payable forthwith.

The evidence discloses that James Moliski was employed to take and transcribe the evidence at the hearing before Commissioner Henry S. Wise of this Court. For said services he made a charge of $54.10, which we find is fair, reasonable and customary.

An award is, therefore, entered in favor of James Moliski, court reporter, in the sum of $54.10.

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

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


text:
    (No. 4454
    Max Heck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

    A. M. Fitzgerald and Walter T. Day, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant filed his complaint herein on July 5, 1951, and alleges that on January 7, 1950 he was employed by respondent, the State of Illinois, as a guard at the Menard Penitentiary. On said day he was assigned to duty at the gate, known as the double gate, forming the entrance from the general division to the psychiatric division at said penitentiary, and was then engaged in the performance of his duties as such watchman or guard.

On the day in question, while in the course of his employment, the claimant opened said gate for the purpose of admitting supplies, whereupon an inmate of said penitentiary ran into and against the claimant with great force and violence, causing the claimant to be thrown against said gate. Because of the icy condition of the walks and premises, which were then slippery, the claimant fell on the hard surface, sustaining an abrasion over the tibia of his right leg, which, because of the severity thereof and possible internal injury at the said point of abrasion, has refused to heal or be cured.

Claimant further alleges, that, due to his physical condition, he has been retired in advance of the time when he would be entitled to the State Employees’ Retirement Pension.

Claimant prays that he be awarded compensation for permanent disability to the amount and extent provided by the Workmen’s Compensation Act for at least 50% of the use of his right leg, and that, in addition thereto, he be awarded compensation for loss of salary and earnings during the period of sixteen months, which he would have and could have received but for said injury, and prays judgment of this Court in the sum of Twenty-five Hundred Dollars ($2,500.00).

The record consists of the complaint, motion of respondent to dismiss, arid notice to call up motion to dismiss.

Respondent alleges in its motion to dismiss that the complaint on its face shows that the accident occurred on January 7, 1950, and that the complaint was filed on July 5, 1951, and is not within the one year limitation period as prescribed by Section 24 of the Workmen’s Compensation Act. Section 24 of the Workmen’s Compensation Act requires that suit be filed 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. Claimant does not allege payment of compensation.

For the reasons stated, the motion of respondent is sustained, and the complaint is hereby dismissed.


text:
    (No. 4408
    Ada Dougherty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1951.

    Maurice W. Kepner, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Ada Dougherty, was on May 12, 1950 employed by the respondent in the Department of Public Welfare, at the Illinois State Training School for Boys, St. Charles, Illinois. On May 12, 1950 the claimant, in the course of her employment by the respondent, caught her foot in the loop of a laundry bag, and fell to the floor of the laundry. As a result of the fall, her right wrist was broken. Fluoroscopic examination of her right wrist showed a transverse fracture of the distal end of the radius.

Claimant was treated by Drs. Francisco Diaz and Lyman Smith at the request of respondent. On March 21, 1951 Dr. Smith filed a report with the respondent, and a copy of same is made a part of the record in this case, and marked claimant’s exhibit No. 3. In his report, Dr. Smith stated:

“Mrs. Dougherty was last seen by me on August 31, 1950. At that time, examination of the right wrist revealed a slight degree of radial deviation, extension of ten degrees, flexion of thirty degrees, five degrees of supination, and pronation was complete. There was some slight stiffness of the fingers. The index finger in particular reached to within one-half inch of the palm on closing. This result was considered satisfactory considering the severity of her original wrist fracture.
She first had been seen by me on May 16, 1950 at Elgin State Hospital, at which time the wrist was manipulated and a cast applied. This cast was removed on June 24, 1950, and a posterior mold was used for a night splint following that.”

On August 8, 1950, Dr. Smith stated she would be able to do light work.

Dr. H. G. Woody examined the claimant on May 18, 1951. His report of this examination, made a part of the record by stipulation, showed the claimant to have a partial permanent disability resulting from a muscle pull caused by a deformity and ununited fracture.

From the medical reports filed herein, the testimony given at the hearing, and also from the Commissioner’s examination of the claimant’s right wrist and arm, we feel that claimant has suffered a 25% permanent loss of use of her right arm as a result of the accident.

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

The record consists of the complaint, Departmental Report, transcript of evidence, reporter’s bill, claimant’s exhibits Nos. 1-4, inclusive, stipulation waiving briefs of both parties, motion of claimant for leave to waive filing of abstract of evidence, and stipulation.

. On the date of the accident, claimant was 70 years of age, and had no children under 18 years of age dependent upon her for support. Her annual earnings for the year preceding the accident were $1,972.90. Claimant has suffered temporary total disability from May 12, 1950 to August 31, 1950, or 15 6/7 weeks. Claimant’s compensation rate would be the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50.

For 25% permanent loss of use of her right arm under Section 8, Paragraph (e) (13), claimant is entitled to receive from the respondent $22.50 per week for 56)4 weeks, or the sum of $1,265.63, and for temporary total disability 15 6/7 weeks at $22.50 per week, or a sum of $356.76, making a total amount due of $1,622.39. From this must be deducted the sum of $758.23 received by claimant for non-productive time.

An award is, therefore, entered in favor of claimant, Ada Dougherty, in the amount of $864.16, all of which has accrued, and is payable forthwith.

Harry L. Livingstone was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $52.60 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Harry L. Livingstone, in the sum of $52.60, payable forthwith.

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


text:
    (No. 4415
    George L. Carnes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1951.

    Schimmel and Schimmel, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, George L. Carnes, seeks to recover under the Workmen’s Compensation Act for an injury to his right eye, as the result of an accident that arose out of and in the course of his employment in the Division of Plant Industry, Department of Agriculture.

On November 16, 1950, claimant was struck in the right eye by a prickly ash twig, while inspecting wooded territory for common barberry with a crew of six men. While so inspecting, a twig snapped back striking his eye ball, and cutting the eye. He was treated by Dr. A. M. Paisley, and remained in Our Saviour’s Hospital at Jacksonville until November 26, 1950. Mr. Carnes returned to work December 18, 1950, and worked until December 22, 1950. An infection set up in the injured eye. He went back to Dr. Paisley, who sent him to Dr. Vargas. From January 6, 1951 to January 10, 1951 claimant was again in Our Saviour’s Hospital. He was released on January 10, 1951 to go to Barnes Hospital in St. Louis, Missouri, where he remained from January 11, 1951 to January 31, 1951 under treatment of Dr. B. Y. Alvis. He returned to work on April 2, 1951.

In a report dated March 21, 1951, and made a part of this record by the rules of the Court, Dr. B. Y. Alvis stated:

“The eye can be considered industrially blind. The vision is reduced to approximately one-two hundredths.”

The record consists of the complaint, Departmental Report, transcript of evidence, stipulation waiving briefs of both parties, and stipulation on medical bills.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment. The only question is the extent of permanent disability suffered by claimant.

Claimant’s earnings for the year immediately preceding his injury were $2,568.00. At the time of the injury, he had no children under eighteen years of age dependent upon him for support. His compensation rate would, therefore, be the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50.

For the loss of sight of his right eye, claimant is entitled to $22.50 per week for 120 weeks, or the sum of $2,700.00, under Section 8, Paragraph (e) (16) of the Workmen’s Compensation Act.

As a result of the accident, he was temporarily totally disabled for a period of 19 weeks. He should be allowed $22.50 per week for 19 weeks temporary total disability in the amount of $427.50. Claimant is, therefore, entitled to a total award of $3,127.50. Claimant was paid full salary for the time he was disabled, and the sum of $1,016.50 must be deducted from said award for non-productive time. Respondent has paid all hospital and medical bills of claimant, incurred as a result of said injury.

An award is, therefore, made to claimant, George L. Carnes, in the sum of $2,111.00, payable as follows:

$1,260.00, which has accrued, less payment of $1,016.50 for non-productive time, or $243.50.
$1,867.50, is payable in weekly installments of $22.50 commencing on December 21, 1951, and continuing for 83 weeks.

Janette Webel was employed to take and transcribe the evidence at the hearings before Commissioner Summers, and submitted her invoice for these services in the amount of $16.90, which charges are fair, reasonable and customary.

An award is also entered in favor of Janette Webel in the amount of $16.90, payable forthwith.

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


text:
    (No. 4440
    Hughes C. Blake, doing business as Blake Motor Sales, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1951.

    Leonard S. Hopkins, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant has filed his complaint herein, alleging that on February 12, 1948 the State of Missouri, by and through its Director of Revenue, issued to James J. O’Connor a certificate of title to a motor vehicle, to-wit: 1941 Buick Sedanet with engine No. 44390604, showing a lien of a chattel mortgage in the amount of $960.00 to the Commonwealth Loan Company.

On a later date Mr. O’Connor moved to the State of Illinois, and made application to Edward J. Barrett, Secretary of State of Illinois, for a new certificate of Illinois title, surrendering the Missouri title. The said Edward J. Barrett, Secretary of State, did then issue to Mr. O’Connor certificate of title No. B453505 to said 1941 Buick Sedanet with engine No. 44390604, showing liens “none”.

Claimant further alleges that the Secretary of State failed to make the notation of the chattel mortgage lien to the Commonwealth Loan Company.

On April 17, 1948, Mr. O’Connor sold said 1941 Buick Sedanet to Hughes C. Blake, claimant, and assigned said Illinois certificate of title to claimant. Hughes C. Blake sold said Buick Sedanet to Mr. Raymond F. Hoffman on April 26, 1948. On May 31, 1949, upon demand and proof of the existence and validity of said mortgage by the Commonwealth Loan Company, and to protect the enjoinment of the motor vehicle by Mr. Raymond F. Hoffman, the said Hughes C. Blake, claimant, paid the balance then due of $475.00 to satisfy said mortgage lien.

Claimant alleges that under Chap. 95½, Par. 78 of the Ill. Rev. Stat., 1949, the Secretary of State, his employees, agents and servants were negligent, which resulted in a loss to him of $475.00, for which he prays judgment.

The record consists of the complaint, motion of respondent for an extension of time in which to file pleadings, motion of respondent to dismiss, notice to call up the motion of respondent to dismiss, statement, brief and argument in support of the motion of respondent to dismiss, and answer of claimant to the motion of respondent to dismiss.

The respondent herein has filed its motion to dismiss for the reason that the complaint is insufficient in law to state a cause of action against the respondent.

In the case of L. B. Motors, Inc. vs. R. H. Prichard, 303 Ill. App. 318, the Appellate Court of the State of Illinois in discussing Paragraph 78 said:

“The object of the legislature in enacting the Motor Vehicle Law and Uniform Motor Vehicle Anti-Theft Act was to protect the public from thefts of automobiles, from evils arising from unregulated use, sale and transfer of motor vehicles, and from crimes committed by their use.
tThe Motor Vehicle Law and Uniform Motor Vehicle Anti-Theft Act were not intended as recording statutes, and do not in any way alter, modify or change the effect of the provisions of the Uniform Sales Act.”

We do not feel that it was the intention of the Legislature to place the responsibility, as alleged by the claimant, upon the office of the Secretary of State.

. For the reasons stated, the motion of respondent to dismiss must be sustained.

Case dismissed.


text:
    (No. 4468
    William J. Tebeau, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1951.

    Frank J. Mc Garr, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, William J. Tebeau, presents to this Court a new question, which also carries with it the hopes of several thousand disappointed veterans of World War II to whom the payment of a bonus under the Illinois World War II bonus law has been denied by the Service Recognition Board. Ill. Rev. Stat., 1951, Chap. 126½ Secs. 47-57.

Claimant served over 35 months in the United States Navy during World War II, all but 19 days of his service being within the period for which a bonus could have been paid. He alleges that he was a resident of the State of Illinois on October 5, 1942, the date he entered the Navy. However, after filing his application in apt time, he was unable to convince either the Service Recognition Board, or the Board of Review of such Board, that he was a resident of this State on October 5, 1942. The final administrative action denying his claim for bonus payment was taken by said Board of Review on September 5, 1950, and he filed his case in this Court on July 27, 1951 seeking an award for the amount of bonus he states the Service Recognition Board unjustly denied to him.

Respondent has filed a motion to dismiss predicated on several grounds, only one of which need be considered in this opinion.

This Court has long been committed to the rule that it has no jurisdiction of a case that can be, or could have been litigated in the courts of general jurisdiction in this State. Moline Plow Co. vs. State, 5 C.C.R. 277.

More recently in Barrett vs. State, 13 C.C.R. at page 17, this Court said:

“The Legislature in creating the Court of Claims did not intend that it should usurp the powers of, contradict, or compete with courts of general jurisdiction.”

If claimant had, or has, a remedy in the courts of general jurisdiction in this State, he has no remedy in this Court.

His complaint in essence alleges an abuse of discretion. Mandamus is one remedy to correct such abuse. Nichols Illinois Civil Practice Act, Vol. 7, Sec. 7160. That a petition for mandamus may be used to compel the Service Recognition Board to pay a bonus claim it has arbitrarily denied was decided in People ex rel Mosco vs. Service Recognition Board, 403 Ill. 442.

The motion of respondent to dismiss is, therefore, allowed, and the claim of claimant, William J. Tebeau, is dismissed.


text:
    (No. 4240
    Rev. Val J. Klimek, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Pierre N. Thomey and Robert Magill, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Rev. Val J. Klimek, was employed by the State of Illinois at the Illinois State Training School for Boys at St. Charles as a counselor and Catholic Chaplain, and was so employed for the period of approximately June 1, 1948 to the middle of March, 1949. He was paid a salary of $250.00 per month, from which a deduction was made for board, room and laundry. In addition, he was furnished an apartment, consisting of five rooms, located on the third floor of the school building. An additional element of the contract was that claimant was to be provided with someone to clean up his apartment each day. This service was provided by the State designating an inmate, Harry Wanders, who was in need of psychiatric therapy.

While the claimant was so stationed at St. Charles, he also was attending classes at Loyola University in Chicago on Monday and Saturday of each week, with the consent of the Superintendent of the Institution.

On the morning of February 14, 1949, claimant read Mass at 8:00 A.M. with Harry Wanders as ah altar boy. Claimant had breakfast, and Wanders commenced his duties with respect to cleaning up the apartment. Claimant left Wanders in his apartment washing dishes, and told him to stay and finish the work when he left for his classes at Loyola at approximately 9:30 A.M. on said date. It was a rule of the Institution that these boys were not to be left alone.

During the morning of February 14, 1949 at approximately 11:00 to 11:30 A.M. the switchboard operator noticed there was something wrong with the telephone in claimant’s apartment, but nothing was done at that time toward an investigation. A fire was discovered in the building, and in the apartment at approximately 1:15 P.M. It was not extinguished until 7:00 P.M., and considerable damage was done to the building and contents. Damages to the building amounted to $150,000.00, and contents to $21,000.00, excluding claimant’s personal property.

An investigation was held as to the cause of the fire, but the cause was not definitely established.

The record consists of the complaint, motion of respondent to dismiss, notice to call up motion to dismiss, Departmental Report, transcript of evidence, claimant’s abstract of evidence and argument, respondent’s abstract of evidence, and respondent’s statement, brief and argument.

At the beginning of his argument, counsel for claimant states that the Court ruleql on the pleadings that the doctrine of res ipsa loquitur applied. The respondent is correct in that the ruling of the Court on a motion to dismiss the complaint was simply that the complaint was sufficient to allege a cause of action.

We do not feel that the doctrine of res ipsa loquitur applies, and, claimant, having failed to prove any negligence on the part of the State of Illinois, will be denied an award. It becomes unnecessary to discuss any other questions.


author: Schuman, C. J. Schuman, C. J.

text:
    (No. 4340
    Stanley J. Heleniak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

      Supplemental opinion filed January 8, 1952.

    Gustave E. Riedl, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Stanley J. Heleniak, was employed by the Division of Highways as a sign erector at a salary of $322.00 per month on April 16, 1949, and worked continuously at said position until December 2, 1949, earning a total of $2,543.10.

Claimant, while loading a truck with equipment at about 10:00 A.M. on December 2, 1949, and while lifting a tool box collapsed. He was taken to a hospital, and his ailment was diagnosed as acute myocardial infarction. He was off work until February 8, 1950, and on his return was given light work because of his precarious heart condition. On May 3,1950, while at home, claimant suffered another heart attack. From the record it is shown that on about June 23, 1950 he was able to return to light work, but was not reemployed by the department.

There are no jurisdictional disputes involved. Claimant’s earnings for the year preceding the injury would be predicated on the basis of $3,864.00. He was married, and on December 2, 1949 had three children under 16 years of age dependent on him for support. The medical testimony showed, without dispute, that his heart condition arose out of and in the course of his employment, and has resulted in a permanent partial disability. Claimant was temporarily totally disabled from December 3, 1949 to January 7, 1950, and from May 3, 1950 to June 23, 1950. Previous to the heart attack on December 2, 1949, claimant had enjoyed good health, and had never suffered any previous heart attacks. The record further discloses that after June 23, 1950, he went to work in the Recorder’s Office as an errand boy, and was earning $250.00 a month.

The evidence shows, without contradiction, that claimant has sustained a loss of earnings of $16.60 a week due to his injury.

Under the recent pronouncements of this Court, claimant is entitled to an award for permanent partial disability.

William J. Cleary & Co. has submitted a bill in the amount of $68.00 for stenographic services, which the Court finds reasonable.

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

Claimant is entitled to an award under Section 8 (d) of the Workmen’s Compensation Act for permanent partial disability and for temporary total disability.

The following award is entered in favor of claimant, Stanley J. Heleniak:

The sum of $447.43 for temporary total disability for a period of 16 4/7 weeks, covering the period of December 3, 1949 through February 7, 1950 and from May 3,1950 through June 22,1950, a total period of 16 4/7 weeks, at a compensation rate of $27.00 per week. Of this amount $382.49 has been paid, leaving a balance due claimant in the amount of $64.94, which is payable forthwith.
The sum of $6,730.88, being calculated in accordance with Section 8 (d) of the Workmen’s Compensation Act within the limitations therein prescribed. and being at the rate of $16.18 per week for 416 weeks, to be paid as follows:
$1,019.34, which has accrued through September 7, 1951, and is payable forthwith.
85,711.54, which is payable in weekly installments of $16.18 per week, beginning on September 14, 1951, for a period of 354 weeks.

An award in the amount of $68.00 is also made in favor of William J. Cleary & Co. for stenographic services.

This award is subject to the approval of the Gover- > nor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.

Supplemental Opinion

Schuman, C. J.

The Court, in its opinion filed on September 7, 1951, awarded claimant the sum of $6,730.88 for total partial disability, and also allowed $447.43 for temporary total disability. Attention was called to the Court by the respondent in its petition for rehearing that the total amounts for both could not exceed the amount of a death award. The contention of the respondent is correct, and a total of 28 6/7 weeks will have to be deducted from the award for total partial disability, leaving a period of 387 1/7 weeks to be paid at the rate of $16.18, commencing the last day of temporary total disability.

The award is modified as follows:

The sum of $447.43 for temporary disability; of this amount $382.49 has been paid, leaving a balance of $64.94, which is payable forthwith.
The sum of $6,263.97, being calculated in accordance with Section 8 (d) of the Workmen’s Compensation Act, and being at the rate of $16.18 per week for 387 1/7 weeks, to be paid as follows:
$1,303.65, which has accrued through January 7, 1952, and is payable forthwith.
$4,960.32, which is payable in weekly installments of $16.18 per week, beginning on January 15,1952, for a period of 306 weeks, with one final payment of $9.24.

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


text:
    (No. 4372
    Herbert Cutshall, Emma Cutshall, LeRoy Harley and Ruth Harley, Claimants vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Pefferle, Sheehan and Pefferle, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimants, Herbert Cutshall and Emma Cut-shall, own the following described real estate, to-wit:

The East one-half (E.^) of the Northwest one-quarter (N.W.M) °f Section twenty-one (21), Township Nine (9) North, Range five (5) West of the third Principal Meridian, lying West of the right-of-way of U. S. Highway Route No. 66 and Federal Aid Route No. 5, situated in Montgomery County, Illinois, containing seventy (70) acres more or less; subject, however, to Articles of Agreement for a Warranty Deed.

On October 21, 1947, the Department of Public Works and Buildings of the State of Illinois filed a petition, making claimants herein parties defendant thereto, seeking to condemn a certain portion of the real estate described herein for the purposes of a right-of-way, and also seeking to condemn an easement for the construction and maintenance of a storm sewer over and across the real estate herein to drain a proposed subway to be constructed under the Illinois Central Railway.

A final decree of the local Circuit Court was entered on July 14, 1948 granting the prayer of the petitioner, and directing petitioners to pay the sum of $2,742.00 to defendants. The payments were made as directed by the Court, and the subway, storm sewer and highway have been constructed on the respective lands.

The claimants have filed their complaint herein seeking to recover for damages to lands not taken, which are alleged to have resulted from the construction of the subway and storm sewer. Claimants allege that the supply of water in a dug well, located near the condemned property, about 21 feet deep, used to water livestock, and to furnish water for household purposes, was greatly diminished after completion of the storm sewer. It is further alleged in claimants’ complaint that the State of Illinois drilled the well 120 feet in depth, and water was obtained, but that this water was contaminated, and could not be used for livestock purposes.

The record consists of the complaint, transcript of evidence, motion of claimants for an extension of time to file abstract and brief, order of Chief Justice granting the motion, motion of claimants for a further extension of time to file abstract and brief, abstract of evidence, statement, brief and argument of claimants, statement, brief and argument of respondent, and respondent’s exhibit “A”.

A decree in condemnation includes damages both to lands taken and lands not taken, and includes all damages past, present and future.

C.R.I. & P. Ry. Co. vs. Smith, 111 Ill. 363.

C.P. & St. L. Ry. Co. vs. Nix, 137 Ill. 141.

C.P. & St. L. Ry. Co. vs. Blume, 137 Ill. 448.

St. L. & B. Ry. Co. vs. VanHoorebeke, 191 Ill. 633.

A.T. & S.F. Ry. Co. vs. Jones, 110 Ill. App. 626.

Lampp vs. State, 6 C.C.R. 349.

Baker vs. State, 9 C.C.R. 115.

Siekmann vs. State, 10 C.C.R. 286.

Longden vs. State, 12 C.C.R. 129.

Sauerhage vs. State, 16 C.C.R. 217.

From the record in this case the general proposition of law applies.

The Attorney General has asked leave to withdraw respondent’s exhibit “A”, being a certified copy of final order and decree of the Circuit Court of Momtgomery County, Illinois. Respondent is hereby granted leave to withdraw said exhibit.

This claim is, therefore, denied, and the complaint dismissed.


author: Schuman, C. J.

text:
    (No. 4378
    Theodore Marcinkiewicz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Bernard S. Neistein, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This case is predicated upon a claim against the State of Illinois for the wrongful incarceration of claimant in the Illinois State Penitentiary from December 18, 1933 to February 23, 1950 in violation of Article II, Sections 2 and 9 of the Constitution of Illinois, and in violation of the Fourteenth Amendment to the Constitution of the United States.

Claimant was indicted for murder in Cook County, tried, and convicted. Claimant appealed his case to the Supreme Court of Illinois, and his conviction was affirmed, and appears in Volume 560 of the Illinois Supreme Court Reports, page 261.

Claimant filed a petition for a Writ of Habeas Corpus in the Criminal Court of Cook County, and obtained his discharge under an order issued by Judge Thomas J. Lynch, who, in his order of February 23, 1950, gave a summary of the facts, and concluded that the State’s Attorney had suppressed facts, which amounted to a denial of a fair trial to claimant, and “violated his constitutional rights under the Fourteenth Amendment of the Constitution of the United States by denying, him due process of law.”

The State has moved to strike and dismiss the complaint for the reasons therein set forth.

The decision in this case is controlled by our decision in the case of James Montgomery vs. State of Illinois.

In addition to the reasons assigned in the Montgomery case, an additional fact is noted in this case. The claimant appealed his conviction, and the conviction was affirmed in 360 Ill. 261. In the case of People vs. Circuit Court, 369 Ill. 438, the Court, on page 441, held:

“While it is true that circuit and superior courts, and the judges thereof, have concurrent jurisdiction with this court in habeas corpus proceedings, that fact, as this court has held, does not authorize those courts or judges thereof, to review a judgment of this court by a writ of habeas corpus. When this court, in the exercise of its appellate jurisdiction, has determined the validity of a judgment of the lower court, the judges of the circuit and superior courts are bound by that judgment, and are without power or authority, by habeas corpus or otherwise, to pass upon its validity. This is not only well settled in this State but is so thoroughly founded on principles of orderly administration of the law that there ought not to be any judge who doubts or is unfamiliar with it.”

The Court is of the opinion that it cannot question the validity of the conviction of the claimant in view of the holding in the above cited case.

For the reasons assigned in our opinion in the Montgomery case, and the additional reason cited herein, the motion of the respondent to dismiss is allowed, and the claim is dismissed.


text:
    (No. 4382
    Amos R. Eaton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Dunn and Dunn, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Amos R. Eaton, seeks to recover from respondent under the Workmen’s Compensation Act for injuries to his right wrist and arm, which resulted from an accident that arose out of and in the course of his employment as a farm hand at the Illinois Soldiers’ and Sailors’ Children’s Home, Normal, Illinois, operated by the Department of Public Welfare.

Previously an opinion was hied in this case on April 10, 1951, which overruled respondent’s motion to dismiss, and held that claimant was entitled to the benefits of the Workmen’s Compensation Act, because each and every employee of respondent without exception is under the Act. Miller vs. State, 16 C.C.R. 194.

On May 18, 1950, claimant attempted to start the engine of a tractor by cranking, but the engine “kicked”, causing the crank to reverse its direction suddenly and with extreme force, so that claimant sustained a chip fracture of his right wrist, and traumatic aggravation from his fingers to his shoulder.

No jurisdictional questions are involved, and the sole question in this case is the nature and extent of claimant’s disability.

Claimant lost no time from his employment from May 18, 1950 until August 15, 1950, when he took a leave of absence from his job with respondent. However, he was bothered all the time by pain and stiffness in his right arm and wrist. Claimant resigned from State employment on November 20, 1950.

Although claimant maintains he should be awarded compensation either for total permanent disability or permanent partial disability, the record wholly fails to support such contention.

But, claimant is entitled to an award for the specific loss of partial use of his right arm under Section 8 (e) (13) of the Workmen’s Compensation Act.

On the date of the hearing before Commissioner Wise, claimant’s injury to his right arm had reached its maximum recovery. His wrist was swollen, and X-Rays showed calcification of the vessels of the wrist. There was evidence of traumatic arthritis in his right shoulder, and his grip in his right hand was lessened. There was limitation of flexion, extension and rotation in his right arm, and a 50% loss of abduction of the arm. A comparison of claimant’s left arm with his right disclosed that such uninjured arm was also limited somewhat in its function, because claimant was 75 years of age on the date of his accident.

We conclude that claimant has sustained a 20% loss of his right arm.

Respondent did not furnish claimant with all medical services required to cure and relieve him of the effects of his accident. Claimant paid $12.50 for X-Rays, and $36.00 for osteopathic treatments. Claimant still owes Dr. Ross Elvidge, Normal, Illinois, $65.00 for hydro-therapy treatments and inter-muscular injections. Respondent is liable for these bills.

On the date of his accident, claimant was 75 years of age, married, but had no children dependent upon him for support. His earnings in the year prior to his accident amounted to $2,217.06, and his rate of compensation is, therefore, $22.50 per week.

Paul E. Kelly, official court reporter, Bloomington, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. His charges amount to $76.00, which are reasonable and customary, and an award is entered in favor of Paul E. Kelly for $76.00.

Awards are entered in favor of claimant, Amos R. Eaton, under Sections 8 (a) (e) (13) for medical bills, and a 20% loss of use of his right arm, respectively, payable as follows:

(1) To claimant for medical bills the sum of $48.50, payable forthwith.

(2) To claimant for the use of Dr. Ross Elvidge for professional services the sum of $65.00, payable forthwith.

(3) To claimant for a 20% loss of use of his right arm, 45 weeks at $22.50 per week, or the sum of $1,012.50, all of which has accrued, and is payable forthwith.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1951, Chap. 127, See. 180.


text:
    (No. 4388
    N. B. Couchot, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Barasa and Barasa, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claim in this case arises out of alleged damages to an automobile owned by claimant, N. B. Couchot. It is based on the negligence of the State in the maintenance of manhole covers located in a State highway.

It is conceded that the State maintained alternate Route No. 30 (Roosevelt Road) in DuPage County, Illinois.

Alternate Route No. 30 beginning at its intersection with Route No. 53 extends east on a down grade. At this point in the road, the road is referred to as Bakers Hill. On Bakers Hill are located six manholes used in the drainage of the road. The manholes are of ■ a standard type with a metal lid flush with the road surface, and are located in a travel part of the highway.

The evidence, without dispute, shows that the manhole cover fitted loosely in the socket, and tilted when it was run over by a car wheel.

On November 21, 1949, at about 8:30 P.M., the claimant, N. B. Couchot, accompanied by his wife, was driving in a 1948 Chrysler Sedan, which belonged to claimant, at about 40 to 45 miles per hour in an easterly direction in the outer east-bound lane of Roosevelt Road down what was called Bakers Hill, about 1 mile east of Glen Ellyn, DuPage County, Illinois. As said claimant was driving his automobile over one of the manhole covers, it tilted, and, as a result, the right rear tire, tube, wheel, rear spring and fender of the automobile were damaged, and, as shown by the repair bill admitted in evidence, claimant sustained damages in the amount of $57.70, $7.70 of which was paid by the All State Insurance Company, because of the fact that the claimant had a deductible insurance policy of $50.00. Apparently there is no claim made on behalf of the Insuranee Company for the $7.70, leaving a balance due claimant for the repairs on his automobile in the sum of $50.00.

It was dark when the accident happened, the pavement was dry, and the traffic was light. Claimant’s car was burning the regular driving light with a visibility of about 25 feet or more ahead.

Subsequent to the accident, the manhole cover in question was placed in the manhole collar, and molten asphalt poured around the lid to make it solid- in the manhole collar, and prevent it from tilting when automobile wheels passed over it.

There can be no question but that it was the duty of the State in maintaining said manhole covers to see to it that they would not be dangerous to persons lawfully using the highways, and driving their automobiles over them. From all the evidence in this case, it cannot be disputed that the State had constructive notice of the condition of these manhole covers for a reasonable length of time, so as to charge the State with negligence in failing to properly maintain said manhole covers. The only conclusion that the Court can draw from the testimony in this case is the fact that the State’s negligence in the maintenance of the manhole covers was the direct and proximate cause of the accident here in question, and that the State should respond to the claimant for the damages to his automobile. The evidence shows, without a doubt, that the claimant, in driving over said highway, was in the exercise of due care and caution for his own safety, and the safety of his automobile.

An award is, therefore, .entered in favor of the claimant, N. B. Couchot, in the amount of $50.00 for the damages to his automobile.


text:
    (No. 4435
    Omer H. Hester, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Bradbury and Bradbury, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Omer H. Hester, seeks to recover from respondent under the Workmen’s Compensation Act for injuries sustained in an accident, which arose out of and in the course of his employment as a guard at the Pontiac Branch of the Illinois State Penitentiary, operated by the Department of Public Safety.

No jurisdictional questions have been raised, or can be involved.

On August 1, 1949, claimant, who was assigned to security duties, was making the rounds, punching the clock at the various stations, when his attention was attracted by a light in the elevator shaft of the sheet metal building. Thinking that the light might come from a fire, he investigated the source of the light, and found it to be a reflection of the sun’s rays through a slit in pieces of sheet metal. As he turned away, he slipped and grabbed the elevator gate, which gave way, and claimant fell 4^ feet into the bottom of the elevator shaft, and sustained a serious fracture of the neck of his right femur.

After claimant finally dragged himself out of the shaft, he crawled along the floor, and finally his cries were heard by one of his superiors.

He was thereupon taken to the prison hospital, and the next day, since he was a veteran of World War I, he was transferred to the Veterans Administration Hospital, Dwight, Illinois, where he remained, except for two days, until August 22, 1950. He returned to said hospital on March 22, 1951, remaining until June 25, 1951.

The record discloses that claimant’s fracture was first reduced by an operation, and the fragments were fixed with a pin through the neck of the femur, and a plate extending down the shaft was held in place by several screws.

This operation was not successful since no union resulted, and muscle pull sheared off some of the plate screws.

On claimant’s re-entry into said hospital, the metallic fixation material was removed with the exception of one screw, which could not be taken out. A bone graft was made, and multiple steel pins were driven through the trochanteric area up through the neck and into the head of the femur.

Claimant’s fragmented, intra-capsular fracture has never healed. Either the fragments will be absorbed, or a degenerative arthritis will destroy the function of the hip joint.

A fusion operation might be performed, which would relieve claimant of some pain, but would result in permanent immobilization of the hip joint.

At the hearing before Commissioner Wise on October 1, 1951, claimant was unable to walk, and could stand only with the aid of crutches.

Prior to his employment by respondent, claimant was a laborer and farmer, and it appears without question that claimant is totally and permanently disabled from pursuing any gainful occupation available to him by reason of his education, experience and training. He can no longer perform manual labor, and a housekeeper is required to furnish claimant with his minimum daily needs.

On the date of his accident, claimant was 53 years of age, divorced, and had no children dependent upon him for support. He began working for respondent on July 1,1949, and his rate of pay was $237.00 per month. His rate of compensation is, therefore, $22.50 per week.

From the date of his accident through December 31, 1950, claimant was paid his full salary of $237.00 per month. The payments for the seventeen months, when claimant did not and could not perform any services for respondent, amounted to $4,029.00. Claimant has thus been greatly overpaid, and the award hereinafter entered in his favor must take this into account.

Priscilla M. Bradbury, Robinson, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Her charges amount to $41.00, the same being reasonable and customary, and an award is entered in her favor for $41.00.

Because respondent did not furnish the medical treatment required of it under the Workmen’s Compensation Act, claimant, in addition to the hospitalization and surgical services furnished by the Veterans Administration, consulted with, and was treated by Dr. Raymond B. Murphy, Palestine, Illinois. A bill for $330.00 has been submitted by Dr. Murphy, but at the hearing the doctor testified that his charges included an amount for his testimony at the hearing, and for his time in making up reports. Respondent is liable only for those professional services, which tend to cure and relieve claimant of the effects of his accident. Therefore, claimant and respondent each owe Dr. Murphy something. Although Dr. Murphy’s bill is not itemized, we can hold respondent liable for X-Rays, four or five treatments and consultation services, and we find the reasonable value of these services to be $130.00. Claimant will, therefore, have to pay Dr. Murphy $200.00 from his own funds.

An award is entered in favor of claimant, Omer H. Hester, under Section 8 (a) of the Workmen’s Compensation Act, for medical services for the use of Dr. Raymond B. Murphy in the sum of $130.00, payable forthwith.

An award is entered in favor of claimant, Omer H. Hester, under Section 8 (f) of the Workmen’s Compensation Act, for total permanent disability, plus a pension for life; or the sum of $6,000.00, plus an annual pension of $480.00, payable monthly in the sum of $40.00 after the payments of $6,000.00 shall have been made.

However, since claimant has been so greatly overpaid, having already received $4,029.00, which amounts to 179 weeks at $22.50 per week, and one week at $1.50, no payment can be made to claimant under the award herein until one week after January 5, 1953, by which date 179 weeks of compensation will have accrued. At that time claimant should receive only the amount of $21.00, being one week’s compensation less $1.50 already paid to him in the said amount of $4,029.00.

The remainder of the award is payable as follows:

Commencing on January 19, 1953, claimant shall receive the sum of $22.50 per week for 86 weeks, plus one final payment of $15.00; and commencing one month after the date of said final payment of the sum of $6,000.00, claimant shall receive $40.00 each month for life.

Jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to' time be necessary. Penwell vs. State, 19 C.C.R. 176; Penwell vs. State, 18 C.C.R. 8; Penwell vs. State, 18 C.C.R. 183.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1951, Chap. 127, Sec. 180.


text:
    (No. 4438
    Grace R. Sitter, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    Warner and Warner, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

A claim was filed herein on May 16, 1951 by Grace R. Sitter, in her own right as surviving widow of Bon Sitter, and on behalf of decedent’s minor daughter, Shirley Ann Sitter.

Bon Sitter, decedent, was employed by the State of Illinois at the Dixon State Hospital, and had been so continuously employed from March 25, 1922 until the date of his death on March 31, 1951. He was a stationary fireman, and was employed in the power house and steam plant at the Dixon State Hospital. At the time of his death he was receiving $325.00 per month, and in the year preceding his death his earnings were approximately $3,760.00. He left the claimants, Grace R. Sitter, his widow, and Shirley Ann Sitter, daughter, who was born on January 10, 1935, as his surviving dependents. Both of the claimants reside at 909 Galena Avenue, Dixon, Illinois.

On March 8, 1951, at approximately 11:00 A.M., Bon Sitter, decedent, was assisting Walter Rucker, a machinist, in repairing a steam pump in the power plant where he was employed. They had removed a cover plate on the pump to expose the valves, and were replacing the plate. While tightening one of the bolts, which held the cover plate in place, the wrench, decedent was using, slipped, and, as a result of the strain on his muscles and other portions of the body, he suffered an inguinal hernia on his right side. He immediately complained of pain, which fact was verified by Walter Rucker in his report to the State. Mr. Sitter continued working until March 15, 1951, at which time the pain became so great that he called at the dispensary of the State Hospital, and reported the injury to the physician in charge. The injury was diagnosed as a hernia, and an operation was recommended. The operation was performed by Dr. David L. Murphy of Dixon on March 19, 1951 at the Dixon State Hospital. Dr. Murphy in his testimony stated that the decedent was suffering from a right inguinal hernia, and he was positive that it was of recent origin. Mr. Sitter was making a good recovery, although his action after being up and around several days was restricted. On the 29th and 30th of March he apparently was all right, but on the morning of the 31st, a nurse called Dr. Murphy, and reported that Mr. Sitter was in a critical condition. Dr. Murphy immediately went to the hospital, arriving there at about 7:35 A.M., but Mr. Sitter had just expired. Dr. Murphy in his testimony stated that Mr. Sitter died of a pulmonary embolus, which was a direct result of the surgical procedure.

At the hearing on September 27, 1951, Mr. Handy, a State employee, testified as to the decedent’s work record and rate of pay. Grace It. Sitter, his widow, testified as to the dependency of herself and child, and the previous good health of Mr. Sitter. Dr. Murphy testified as above set forth.

The decedent was paid salary through March 31, 1951 at the rate of $325.00 per month, this being for one-half month after he quit work on March 15, 1951, but Mr. Handy testified that he had fifteen days due for vacation time and three days’ accumulated time for previous overtime work. There is no compensation due for temporary total disability. The facts in this case are practically all admitted by the State in its Departmental Report, and there is no question that this was a death, which arose out of and in the course of decedent’s employment. There are no jurisdictional questions involved.

Betty Falk, Dixon, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Her charges amounted to $15.00, which the Court finds to be reasonable.

An award is entered in favor of Grace R. Sitter, claimant, under the terms and provisions of the Workmen’s Compensation Act, in the amount of $6,675.00, payable as follows:

$906.43, which has accrued from April 1, 1951 to January 8, 1952, and is payable forthwith.
$5,768.57, which is payable in weekly installments of $22.50, beginning on January 15, 1952 for a period of 256 weeks', with one final payment of $8.57.

An award is entered in favor of Betty Falk, Dixon, Illinois, in the amount of $15.00 for stenographic services.

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

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


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    (No. 4450
    Edward M. Tripp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

    R. Wallace Karraker, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant, Edward M. Tripp, was on August 31, 1950 a duly certified Civil Service employee of the State of Illinois, and employed as Supervising Attendant at the Anna State Hospital, Anna, Illinois. On September 1, 1950, claimant was served with a writ and notice of suspension from his employment, which was signed by C. D. Noble, Superintendent of the Anna State Hospital; and, by Fred K. Hoehler, Director of the Department of Public Welfare, and which notified claimant that he was suspended from his employment for a period of thirty days from September 16, 1950 to October 16, 1950, citing as reasons' for the dismissal his political activity as a precinct committeeman.

On the same date, August 31, 1950, Fred K. Hoehler, as Director of the Department of Welfare, filed written charges, addressed to the Illinois Civil Service Commission, requesting the removal of the claimant for the same charges as set forth in the notice served on the claimant re his dismissal or suspension for thirty days. The Hearing Board of the Illinois Civil Service Commission on October 13, 1950 recommended that the claimant be discharged from the certified position of Supervision Attendant I, effective October 16, 1950, and the Illinois Civil Service Commission approved the findings and decision of the Hearing Board under a certification dated October 31, 1950, and certified the decision to the Department of Public Welfare for enforcement.

The claimant, under the Administrative Review Act, filed a petition in the Circuit Court of Union County, and, under an order of the Circuit Court on the 3rd day of April, A.D. 1951, said Court held that the decision of the Civil Service Commission was without any evidence of political activity, that there was no proof of the charges made, and ordered that the order of the Civil Service Commission dated October 31, 1950 discharging the claimant as a Civil Service employee be quashed, and held to be null and void. There was no appeal from this order of the Circuit Court by the State.

In accordance with the order of the Circuit Court, the claimant was restored to the payroll and to his work at the Anna State Hospital as of April 3, 1951. Claimant does not make any claim for loss of wages for the period of September 16 to October 16, 1950, but claims wages at the rate of $215.00 per month from October 16, 1950 to April 3, 1951, or for a period of five months and seventeen days, in the amount of $1,185.00.

The evidence discloses that the claimant has been diligent in the protection of his rights, and at all times for which he seeks payment of salary, he was ready, willing and able to perform the duties of his position, tendered the performance thereof, and such tender was refused. It has been repeatedly held by this Court that a Civil Service employee, illegally discharged, and subsequently restored to his position by a judgment of a court of competent jurisdiction, is entitled to the salary provided for said position for the period of illegal discharge, where he is ready, able and willing to perform the duties of said position, and tendered his services to his employer. The respondent in this case offers no proof that claimant’s salary had been paid to a de facto incumbent prior to the claimant’s reinstatement, and offers no proof that any other agent or de facto incumbent performed the duties of claimant’s position during the period in controversy.

The Court, therefore, finds that the claimant is rightfully entitled to an award for payment of his salary during the period of his illegal discharge in the amount of $1,185.00.

An award is entered in favor of the claimant, Edward M. Tripp, in the amount of $1,185.00.


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    (No. 4185
    Edith F. Garrett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Roy R. Helm, Attorney for Claimant.

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

Edith F. Garrett, claimant, filed her claim herein on April 13, 1949, alleging that on June 11, 1948 she was employed by the Department of Public Welfare at the Anna State Hospital, Anna, Illinois, as a nurse. Claimant had been on leave for two days, and returned to the Hospital about 6:30 P.M., and went directly to bed. She slept until 9:00 P.M., went to supper at 9:30 P.M., clocked in for work at 10:40 P.M., talked to the Supervisor a few minutes, and then started to walk on the usual accustomed route from the main building to the Women’s Cottage, where she was scheduled to work. During her absence the preceding days, an excavation had been made across the sidewalk between the main building and the Women’s Cottage at a point where the sidewalk leads from the front sidewalk to the Women’s Cottage. It was dark, and there were no lights, warnings, signs, or barricades of any kind to warn her of the excavation, which was 4J^ to 5 feet deep. Claimant fell into the ditch; and, as a result of this fall, she broke the top of the femur that goes into the pelvis of the right leg.

The claimant was on June 17, 1948 taken to St. John’s Hospital, St. Louis, Missouri, where on July 22, 1948 Dr. Patrick Murphy repaired the break by placing a Smith-Peterson pin in the bone. The claimant was returned to her home in Brookport, Illinois on October 21, 1948. In July of 1949, an X-Ray, made under the direction of Dr. Warner A. Gray, showed that the Smith-Peterson pin was protruding past the head of the femur, about l/8th of an inch into what is called the acetabulum. The claimant returned to St. John’s Hospital, where Dr. Patrick Murphy found that the bone had grown to the pin. He removed the pin from claimant’s hip.

At the hearing of this cause, Dr. Warner A. Gray testified that claimant was unable to do any type, kind or character of work. Dr. Harry Wright also testified that claimant was unable to do any work requiring physical exertion. Commissioner Frank M. Summers of this Court observed the claimant, and feels that she is totally disabled, and that she will remain totally disabled. She is able to move only with the aid of crutches.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment. The only question is the extent of permanent disability suffered by claimant.

The record consists of the complaint, Departmental Report, transcript of evidence, abstract of evidence, ■statement, brief and argument of claimant, claimant’s X-Ray exhibits Nos. C-l, C-2 and C-3.

The claimant’s earnings for the year preceding the accident were $2,040.00. She had no children under 16 years of age dependent upon her for support.

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

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

The compensation rate is the maximum of $15.00 per week, increased 30%, or $19.50. Claimant is also entitled to be reimbursed on account of medical and hospital expenditures made by her as follows: Hospital in 1948, $395.10; ambulance in 1948 to and from St. Louis, Missouri, $70.00; hospital in 1948, $121.00; and an ambulance charge in 1948 of $10.00, or a total of $596.10. Dr. John Murphy has submitted a statement for $300.00 in 1948, and $100.00 in 1949, or a total of $400.00, which should be paid.

The claimant is, therefore, entitled to an award of $5,200.00, plus $596.10 reimbursement of medical and hospital expenses, plus the sum of $400.00 for the use of Dr. John Murphy, or the sum of $6,196.10. From this amount shall be deducted the sum of $889.86, which claimant received for non-productive time. There should also be a further deduction' of $3,125.00, which was received by the claimant from the Kuhne Simmons Construction Company through the Liberty Mutual Insurance Company. The total award granted claimant is, therefore, $2,181.24.

The settlement received from the Insurance Company, and payment made by the respondent for nonproductive time equal approximately 206 weeks. From the day after her injury in 1948, 206 weeks is May 23, 1952. Considering Leap Year, no further compensation payments can be made claimant until May 24, 1952.

An award is, therefore, entered in favor of claimant, Edith F. Garrett, payable as follows:

$ 400.00, payable to claimant forthwith for the use of Dr. John Murphy;
$1,781.24, payable in weekly installments of $19.50 per week for 91 weeks, commencing May 24, 1952, with one final payment of $6.74; thereafter a pension for life in the sum of $416.00 annually, payable in monthly installments of $34.66.

The testimony had' at the hearing was taken and transcribed by Ettamarie Holland, who made charges therefor in the amount of $36.30. These charges appear reasonable and proper.

An award is, therefore, entered in favor of Ettamarie Holland in the amount of $36.30, payable forthwith.

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


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    (No. 4324
    Walter Witte, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Robert E. Dolph, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

On December 29, 1949, at about 3:30 P.M., claimant, then 41 years old, and an inmate of the Vandalia State Penal Farm, (where he had been committed for vagrancy on September 25,1949) was engaged in painting one of the buildings located on the grounds of the institution, and, while so working, stepped into an incline, fell, and injured his right knee.

Immediately after the accident, claimant was placed in an automobile by Frank Hartigan, a registered male nurse, and Mr. Churchill, an inmate orderly, and was taken to the institutional hospital. He was carried by the two men into the hospital. Claimant was then treated by Mr. Hartigan for shock. The next morning Mr. Hartigan administered a hypodermic, but nothing else that day. The following day claimant was fluoroscoped in the dispensary of the hospital. Mr. Hartigan, Mr. Churchill, and four colored boys attempted to set his right leg. Claimant was placed under anesthetics, and gained consciousness about a half hour later. There was no treatment given, except Mr. Hartigan placed an Ace bandage on the right knee. He received no medication or treatment after that. Dr. S. W. Moore, the institutional physician, saw claimant for the first time on January 8,1950, ten days after the accident, but prescribed no medication. The Ace bandage had been removed by Mr. Churchill, and the swelling of the knee became worse. On January 9, 1950, weight traction of five pounds was instituted on Dr. S. W. Moore’s orders, and under Mr. Hartigan’s supervision, to correct the recurrent deformity of the right knee. On January 17, 1950, half of the weights were removed, and, on January 20, 1950, all weights were removed, an Ace bandage was reapplied, and heat treatments administered. Dr. 8. W. Moore visited the claimant the second time, after he had been in the hospital for about three weeks. During claimant’s stay in the hospital, he was attended by Mr. Hartigan, the male nurse, and Mr. Churchill, the inmate orderly/ Dr. S. W. Moore gave claimant a fluoroscopic examination three days before he left the hospital. Claimant remained in the institutional hospital about a month, and was then transferred to Dormitory B, where he stayed two or three weeks, during which time he saw no physician or surgeon, and received no medication or treatment. He was then sent to Dormitory D. Claimant made no complaint to any supervisor, and he did not work on the institutional grounds after he left the hospital. He was released from the institution about March 24, 1950.

During the first week in May, 1950, claimant went to the Hines Hospital, where he stayed a period of about one month. X-Rays were there taken of his right knee.

Dr. Robert B. White, medical expert, testifying for claimant, stated he made a physical examination of claimant on July 27,1951, and found that, in comparing the right and left knees, there was an obvious deformity of the right knee, characterized by a displacement of the head of the fibula. X-Ray pictures were taken of both of claimant’s knees on July 28,1951. These X-Ray films were admitted into evidence as claimant’s exhibits Nos. 1, 2, 3 and 4.

In interpreting the X-Ray films, Dr. White stated exhibit No. 1 was a film of claimant’s right knee, and showed a healed fracture of the upper end of the tibia, with a marked latter displacement of the fibula, which is attached to the fragment, and a depression and irregularity of the joint surface. Exhibit No. 2 was a picture of claimant’s right knee. It showed a side view of the same fracture described in exhibit No. 1, with a marked depression of the joint surface, and irregularity of the surface. Exhibit No. 3 showed the left knee, and was a normal X-Ray picture of a knee. Exhibit No. 4 was also a picture of claimant’s left knee, and showed a normal X-Ray picture of a knee. Exhibits Nos. 5 and 6 were X-Ray films taken of the right knee on May 2, 1950 at Hines Hospital, and were admitted into evidence with the qualification that the respondent does not admit the truthfulness of the testimony or the genuineness of the exhibits. In his interpretation of exhibit No. 5, Dr. White stated it showed a healed fracture, and represents the joint surface of the upper end of the tibia, with a marked depression and irregularity of the joint surface. Exhibit No. 6 showed a healed fracture through the upper end of the tibia, involving the joint surface, with a marked depression and irregularity of that joint surface, and a marked displacement of the upper end of the fibula, which is attached to the fracture fragment. There was less healing shown in this particular film taken on May 2, 1950.

Dr. White stated that the age of the fracture shown in exhibit No. 5 was within a year of the fracture. His opinion was based on a comparison with claimant’s exhibits Nos. 1, 2, 3 and 4 taken on July 28, 1951, and the marked degree of healing that had occurred sometime before the earlier films and the most recent films.

Dr. White also testified that a fluoroscopic examination of a fracture was not as accurate as an X-Ray picture. He further testified that the injury to claimant’s knee was permanent, that he will have or has already had considerable pain in arthritic changes, which will become progressively worse in the next few years; that claimant bore weight with considerable difficulty, and that there was a deformity of the right knee.

At the time of the hearing, claimant walked with a limp of the right foot. He stated he was a pianist, and his only employment at present was playing the piano once a week.

Dr. S. W. Moore, the institutional physician, was on vacation at the time of the accident in question, and did not see claimant until January 8, 1950. Frank Hartigan, the registered male nurse, was instructed to call Dr. C. H. Moore in the absence of Dr. S. W. Moore for such cases, if in doubt as to the necessary treatment. Dr. C. H. Moore was ill at the time of claimant’s accident, and advised Mr. Hartigan to proceed with the reduction of what he felt was a dislocation of the right knee, as revealed by fluoroscopic examination.

There is no question from the testimony in this case that the State was negligent in the treatment of claimant, and in its failure to furnish competent medical services after it assumed responsibility of earing for him.

As a result of the injury and improper care, claimant has sustained a permanent injury to his right knee, and is entitled to an award.

An award in the amount of $1,500.00 in favor of claimant is allowed.


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    (No. 4420
    John Terracino, Gwendolyn Terracino and Mary Meyers, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

      Petition of Claimants for rehearing denied February 8, 1952.

    George Yellen, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

This is an action allegedly based on the negligence of respondent in the operation and maintenance of one of its highways.

On July 2, 1950, about 9:30 A.M. claimant, John Terracino, age 43, was driving his 1950 Nash Ambassador automobile, accompanied by his wife, Gwendolyn * Terracino, claimant herein, who was sitting by his side in the front seat, and, claimant, Mary Meyers, who was seated on the right rear seat. The car was travelling at about thirty miles per hour in a southwesterly direction along and upon the inside lane of the southwest bound four-lane paved highway, known as U. S. Route No. 66, about seventeen miles from Joliet, Illinois, and approximately four miles northeast of the intersection of U. S. Route No. 66 and U. S. Route No. 66 alternate.

At said time and place an automobile driven by one Mr. McNeil was proceeding about forty miles per hour in a northeasterly direction upon said highway, and apparently struck some depression in the pavement and swerved to the left, colliding head on with the automobile driven by claimant, John Terracino, damaging his automobile, and causing bodily injury to all three claimants herein, and death to Nellie Randolph.

It appears from respondent’s exhibit No. 1, the Departmental Report of the Division of Highways, which was received in evidence, that on June 5, 1950 the Department of Public Works and Buildings awarded a contract to the Black Top Roads Company for resurfacing that part of Route U. S. No. 66 from its junction with Alternate Route U. S. No. 66 northeasterly to the DuPage-Cook County line. This section of highway is slightly in excess of seven miles in length, and at the time of claimant’s accident had a concrete wearing surface 40 feet in width. Two lanes were available for each direction of traffic; and, on June 22, 1950, the Division of Highways furnished and supervised the erection of signs at the ends and at intermediate points along said section of highway. Immediately west of the DuPageCook County line a standard X-12 sign was erected on the north highway shoulder facing east. This sign, 8 feet wide and 5 feet high, bore the legend “PAVEMENT PATCHING AHEAD. This road is being kept open for your convenience. DRIVE WITH CAUTION. Barricade and one way traffic ahead.” Eight hundred feet west was erected a standard X-14 sign on the north shoulder facing east, which bore the legend “Speed limit 25 M.P.H. in repair zones.” This sign is 42 inches wide and 36 inches high. A standard X-13 sign was erected on the north shoulder of Route U. S. No. 66, a short distance west of its intersection with State Route No. 83. This sign, 8 feet long and 6 feet high, bears the legend, “U. S. 66 — 7 MILES, under construction, patching, widening, and resurfacing. This road is being kept open for your convenience. DRIVE WITH CAUTION.” Four hundred feet west of the X-13 sign was erected a second X-14 sign, and a third X-14 sign was erected on the north shoulder of Route U. S. No. 66, 400 feet west of its intersection with Downers Grove Road; and for east bound traffic X-13 and X-14 signs were erected at the junction of Route U. S. No. 66 and Alternate Route U. S. No. 66. An X-14 sign was erected on the south shoulder of Route U. S. No. 66, 400 feet east of Lemont Road. All of the aforesaid signs were in place on July 1 and 2, 1950.

The existence and locations of these signs were also verified by the testimony of witnesses in this case.

Claimant, John Terracino, testified that he saw the other car involved in the accident, driven by Mr. McNeil, when about 150 feet away, approaching in a northeasterly direction upon said highway, strike a hole about one foot wide, one foot six inches long and two inches deep, and then swerve to the left into the path of claimant’s car. Claimant, John Terracino, testified further that he then applied his brakes, and steered his car to the right, and, as he did so, said oncoming car swung back to the right colliding head on with his automobile. He further stated that the pavement was rough, jumpy and holey, when the accident happened; that at the time of the collision the two right wheels of his car were on the shoulder, and the two left wheels on the pavement.

Claimants were all seriously injured in the collision, and were taken in an ambulance to the St. Joseph’s Hospital in Joliet, Illinois, where they all received medical treatment and hospitalization. Claimant, John Terracino, remained there from July 2, 1950 to August 15, 1950; claimants, Gwendolyn Terracino and Mary Meyers, were there from July 2, 1950 to September 9, 1950. Gwendolyn Terracino also went to the Wesley Memorial Hospital on January 17, 1951, where surgery was performed on her knee on January 18, 1951.

At the time of the accident, the skies were clear, the sun was shining, the pavement was dry, and there was no other traffic upon said highway, except the cars involved in the collision.

Route U. S. No. 66 from its junction with Alternate Route No. 66 northeasterly to the DuPage-Cook County line, and upon which highway the accident took place, was being repaired and resurfaced. The first part of the operation was started in May, 1950, or the first part of June, 1950. It consisted of mud packing, which is a mixture of cement, lime and mud; patching the breaks, taking out broken up concrete, stone and brick, and patching up the holes. This work was finished about June 23, 1950, at which time work was begun to pull out the equipment. The next part of the operation of resurfacing with a mixture of asphalt and stone, which was being carried on by an independent contractor, was then started, and was in operation at the time of said accident. While the resurfacing operation was being carried out, the contractor put up barricades, and stationed ^flagmen where needed. When the resurfacing of a part of the highway was completed, the contractor took down the barricades, removed them from the highway, and made a smooth lead off by tapering the resurfacing material smooth with the pavement being covered.

As the work of mud packing and patching was being carried on, the respondent’s workmen went up and down the highway looking for patch spots, and the road was rechec-ked for holes and bad spots before the equipment was pulled out. The highway under repair, where the accident occurred, was checked by respondent’s workmen two days before the accident happened, and again the day after the accident occurred, and no holes or depressions were discovered.

From the foregoing summary of the facts in the case, we are compelled to conclude that claimants are not entitled to awards.

The State is not an insurer of all accidents, which may occur by reason of the condition of its highways. Beenes vs. State, No. 4377, opinion filed October 5, 1951.

However, the State is negligent, if, having knowledge of dangerous conditions on its highways, it fails to warn users of the highways of such dangerous conditions. Pomprowitz vs. State, 16 C.C.R. 230; Rickelman vs. State, 19 C.C.R. 54; Rommel vs. State, No. 4306, opinion filed February 9, 1951; Cruger vs. State, No. 4271, opinion filed October 13, 1950. Cf: Mowery vs. City of Mounds, 245 Ill. App. 338.

However, the record in this case discloses that the State had fulfilled its obligation to users of the highways by the erection of large, unambiguous and prominent signs that adequately warned of the conditions users would encounter in the construction area. Mr. McNeil was apparently not sufficiently impressed with the warning signs that he must have seen, and, we, therefore, absolve respondent of any liability for the accident involved herein, and hold that it was the negligence of McNeil, and not that of respondent, which caused the serious injuries and substantial damages to claimants.

We have intentionally not undertaken a discussion of the doctrine of “intervening agency” as announced by our Supreme Court in several cases, such as, Illinois Central R.R. Co. vs. Oswald, 338 Ill. 270; Briske vs. Village of Burnham, 379 Ill. 193; and Merlo vs. Public Service Co., 381 Ill. 300, because we feel that such doctrine, assuming its validity, has no application to the facts in this case. Cf. Leon Green, Illinois Negligence Law IV, 40 Ill. L. R. 12-27 (May-June 1945).

Awards to claimants are, therefore, denied.