text:
    (No. 4219
    Roy H. Watson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.
    W. W. Dambón, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Abthlie Nebbl, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant, Roy H. Watson, while employed in the Department of Public Works and Buildings, Division of Highways of the State of Illinois, was injured on September 21, 1948.

No jurisdictional questions are raised and claimant’s earnings for the year preceding his injury were $2,160.00. He is married, but has no children under 16 years of age.

Claimant, with two other employees, was rolling a 05 gallon drum of asphalt up a plank, which was extended from a truck to the ground, and, while so doing, felt a sharp pain in his back at the belt line. He had already helped load three or four similar drums onto the truck.

The pain was persistent, and he did not return to work the following day, but did go to see a chiropractor, by the name of Dr. McKee. He was in such misery that he had his wife call an ambulance, and he was taken to Dr. Beverly Moore at Benton, where he was examined and hospitalized.

Dr. Moore did not testify, but a report of the Division of Highways contains a report, dated September 27, 1948, from the doctor. This report indicates that the X-Rays showed no bone pathology and “the intervertebral spaces are well preserved.” His conclusion, as shown by the report, was as follows, “This man had a lumbosacral strain with some discomfort referred down into the leg. Early treatment is conservative.”

A report, dated October 23, 1948, showed that pain in the back had disappeared, but that he did complain of a little discomfort in the region of the great trochanter and the head of the fibula in the region of the outer side of the knee when he put weight on the left leg.

A report, dated December 1, 1948, showed that an examination on November 29,- 1948 indicated the leg as definitely improved; that he had no active pain below the knee; that he did have a little soreness in the outer upper portion of the left leg, and that he stooped well.

A report, dated January 14, 1949, was for an examination had on December 13, 1948. Claimant had hauled some manure, and lifted a garage door on the track, which he thought made his back worse. The pain in the leg was not made worse by this experience.

Dr. Moore advised him to return to work on December 15, 1948, and, if he could not continue, he was to report back.

Claimant returned to work for two days, but could not continue. On February 4, 1949, he was sent to Dr. Fred Reynolds, orthopedic surgeon, in St. Louis, Missouri. Claimant stated no X-Rays were taken, and the doctor examined him mostly by questioning him about his misery, and where it was, and how it affected him.

From the report of the Division of Highways, a report from Dr. Reynolds, dated February 12, 1949, shows that claimant was examined, and his feeling was that claimant had received a ruptured interverebral disc, probably at the lumbosacral junction on the left side. He recommended a belt, and anticipated that claimant would recover without the necessity of surgery, and felt he could do light work.

Claimant returned to work on February 7, 1949, and worked until March 3, 1949, when he was let out.

Dr. Reynolds again saw claimant on May 25, 1949, and his examination showed claimant to have tenderness at the lumbosacral junction, and over the siatic distribution in the leg. There was limitation and extension in the spine, and pain on extension. Otherwise, the examination was essentially negative. The doctor stated that the man had a ruptured intervertrebral disc, that claimant did not want surgery, and that he felt that a settlement of 20 per cent total disability should be made.

Claimant testified that he had done farming before he went to work for the State Highway Division. The report showed he had been working on the highway since August 12, 1847; that since leaving the Division of Highways he had been farming; that while on the highway, he rented one-half of his 60 acre farm for wheat; that since he left the highway, he had cultivated 20 acres on his farm; that he has not worked for anyone else but himself, hnd prior to his injury he had no trouble with his back; and that the last time he saw a doctor was on May 25, 1949, and is not now under the care of a doctor.

Dr. S. H. Frazer made no physical examination of the claimant, but based his opinions on the testimony he heard, and the report of Dr. Reynolds. The principal part of his testimony was to the effect that an operation would not be recommended for a man 60 years of age.

After the original hearing the Court denied an award, and granted a rehearing for additional testimony. Dr. Frazer stated claimant’s left foot showed diminished sensation, and possible future paralysis of the left leg after a re-examination on October 14, 1950.

Claimant, Roy H. Watson, at the hearing of November 27, 1950, testified that the pain in his left leg was gradually getting worse.

The Court concludes that claimant has sustained a permanent specific loss of 50 per cent of the use of the left leg, and, on the basis of this record, we make the following award:

Fiíty per cent permanent partial specific loss of the use of the left leg in the sum of $1,852.50, all of which has accrued and is payable forthwith.

The claim of Zola Young Sloan for stenographic services in the amount of $69.78 is found reasonable, and an award in the amount of $69.78 is hereby allowed.

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

All future payments are subject to the terms and . provisions of the Workmen’s Compensation Act of the State of Illinois.

Jurisdiction of this cause is specifically retained for the entries of such further orders as may from time to time be necessary.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4253
    James M. Carter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

    Chalmer C. Taylor and Whedon Slater, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, James M. Carter, seeks to recover for the malpractice of a veterinarian employed by respondent to test claimant’s herd of cattle for bovine infectious abortion commonly known as “Bovine Brucellosis” or “Bang’s Disease.”

The Federal and State Governments cooperate to control and eradicate Bang’s Disease, acting through their respective Departments of Agriculture. In Illinois, this program was started as the result of legislation in 1939, later extensively amended in both 1945 and 1949. Ill. Rev. Stat. 1949, Chap. 8, Secs. 134-148a.

Accredited veterinarians are employed and paid by respondent to administer the tests' for Bang’s Disease to herds of cattle, the owners of which apply therefor to either Department of Agriculture.

Claimant had, prior to 1949, applied for such tests, and, at the time of the occurrence out of which this action arose, his herd was subject to annual testing. Such tests were to be made at claimant’s farm near Hudson, McLean County, Hlinois.

The test for Bang’s Disease consists of the insertion of a blood needle into the jugular vein of a cow, withdrawing a blood sample, placing such sample in a sterile tube, and then sending the tube to a- licensed laboratory, where the approved “agglutination test” is completed.

On March 1, 1949, claimant’s herd was tested by Dr. Q. J. Kruger, one of respondent’s veterinarians, and found, after laboratory analysis of blood samples, to be free of Bang’s Disease.

However, on April 28, 1949, an assistant to another of respondent’s veterinarians, Dr. 0. M. Buck, came to claimant’s farm, and informed him that Dr. Buck would test his herd the next day for both tuberculosis and Bang’s Disease. Claimant was requested to have his cattle in his barn when Dr. Buck arrived.

When Dr. Buck and his assistant arrived at claimant’s farm the next morning, they went directly to the barn, and started the tests in the absence of claimant, who was in his fields working. By the' time claimant got to the barn most of the cattle had been tested, and, although claimant informed Dr. Buck of the recent tests by Dr. Kruger, Dr. Buck tested the entire herd.

One of the cows tested by Dr. Buck, subsequent to the arrival of claimant on the scene, was a 3 year old grade Brown Swiss named “Elsie.”

Cattle tested for Bang’s Disease are required to have ear tags. Although there is some dispute in the record as to what number was on Elsie’s ear tag, claimant was positive that she was tested on both dates, and that she was tested by Dr. Buck after claimant arrived at the barn.

Although two tests for Bang’s Disease within sixty days do not endanger or hurt cattle, when Dr. Buck learned of the previous test, he apparently hurried through the testing of the other cattle, one. of which was Elsie.

Within a "day or so, Elsie developed a severe swelling on her neck extending from her mouth to her brisket. The center of this swelling was the point at which Dr. Ruck inserted the blood needle. On May 2, 1949, Elsie died.

Dr. Kruger, who had been called by claimant to treat Elsie, arrived shortly after her death. He testified at the hearing before Commissioner Wise, without objection, that her death was due to a malignant edema, which resulted from the insertion of the blood needle without the taking of the proper sanitary precautions by Dr. Ruck.

The foregoing facts make out a case of negligence for which respondent is liable under Section 8(c) of the Court of Claims Act.

The evidence as to the value of Elsie is undisputed, and shows that she Was worth $375.00.

An award is, therefore, entered in favor of claimant, James M. Carter, for the sum of $375.00.


author: Laksdeít, J.

text:
    (No. 4278
    Charles W. Conrad, Ben Benting and Donald Garner, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

    I. Ray Carter, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Laksdeít, J.

This case was commenced by the filing of a complaint, prepared and signed only by claimant, Charles W. Conrad, who is not a licensed attorney. He sought to make claimants, Ben Benting and Donald Garner, parties to this action, although the complaint states that Garner did not want to join as a party.

At the time of the hearing, claimant, Conrad, was represented by a licensed attorney, but no counsel appeared for claimants, Benting and Garner.

Rule 4 (b) of the Rides of this Court reads in part as follows:

“Only a licensed attorney and an attorney of record in said case will be permitted to appear for or on behalf of a claimant, but a claimant, although not a licensed attorney, may prosecute his own claim in person. . . .”

Therefore, claimants, Benting and Garner, have no standing in this Court, and their claims must be dismissed, but without prejudice.

In this State, the Federal and State governments cooperate to control and eradicate both bovine tuberculosis and bovine infectious abortion, the latter being commonly known as “Bovine Brucellosis” or “Bang’s Disease. ’ ’ Ill. Rev. Stat. 1949, Chap. 8, Secs. .87-105, 134-148a. The T. B. test is compulsory, but the Bang’s Disease test is voluntary. The expense of both tests, if made by a veterinarian employed by respondent, is borne by respondent.

Conrad was the owner of the two farms in Vermilion County upon which Benting and Gamer were tenants. Cattle on these farms were owned fifty-fifty by Conrad and the respective tenants.

On May 3, 1949, Dr. D. H. Ward, a licensed, accredited veterinarian, employed by respondent, tested the 23 cattle on the Garner farm, and the 8 cattle on the Benting farm for both T. B. and Bang’s Disease. A few days later, Dr. Ward informed Gamer that his herd contained no T. B. reactors, but did have one Bang’s Disease reactor. Dr. Ward then informed Benting that his herd contained no T. B. reactors, but did have two Bangfs Disease reactors. Conrad learned this information shortly thereafter, and was furnished copies of the reports of both tests.

Then, a day or so later, Dr. Ward delivered to Conrad a form entitled, “Notice of Shipment of T. B. Reactors for Slaughter.” The notice stated that reactors must be slaughtered within fifteen days after reaction to the test, or no State and Federal indemnity would be paid. The notice contained some spaces for the shipper of cattle to fill in, and was required to be mailed to the State Division of Livestock Industry at the stockyards to which the cattle were shipped.

Conrad arranged to ship the three cattle that had reacted to the Bang’s Disease test to a commission house at the Union Stockyards, Chicago, Illinois. On the notice covering the one Garner cow, Conrad signed at the bottom a statement of the cow’s value. He made no notation on the other notice covering the two Benting cows, but his and Benting’s names appeared on the notice as owners.

Both a State and Federal indemnity are paid in the event T. B. reactors are slaughtered. Ill Rev. Stat. 1947, Chap. 8, See. 92; 21 U.S.C.A. Sec. 114a, but no indemnity has been paid for the slaughter of Bang’s Disease reactors since July 15, 1946, the State and Federal governments not having co-operated in this regard. Ill. Rev. Stat. 1945, Chap. 8, Sec. 137.

Since the three cattle were finally sold as T. B. reactors, the selling price was, claims Conrad, less than their value, and he now maintains that Dr. Ward ordered him to sell the cattle, and that respondent should pay him for the loss sustained, because Dr. Ward furnished him with a T. B. reactor slaughter form when the cattle were not T. B. reactors but were Bang’s Disease reactors.

Aside from the fact that Conrad knew the cattle were not T. B. reactors before the notice was furnished to him by Dr. Ward, and further that Conrad conceded that he did not examine the notice carefully or completely, there is a fundamental weakness in the position he takes. Before either T. B. or Bang’s Disease reactors can be destroyed, the owner must consent thereto. 111. Rev. Stat. 1947, Chap. 8, Secs. 92, 136. By shipping the cattle, and filling out and mailing the notice, Conrad evidenced his consent to their destruction. The confusion which started when Dr. Ward furnished the wrong notice was compounded when Conrad consented, and his loss is attributable as much to his actions as to those of Dr. Ward.

However, after slaughter and upon inspection, it was found that one of the Benting cows did have T. B., although she had not reacted to the T. B. test. For this cow, which was shipped and sold as a T. B. reactor, claimant is entitled to an indemnity, although no appraisal of her value was made before she left the farm.

The evidence shows that the cow, a pure-bred milking Shorthorn, was worth $450.00. She brought for slaughter $180.32, the difference being $269.68. Respondent is liable for one-third of the difference, or $70.00, whichever is less. Ill. Rev. Stat. 1947, Chap. 8, Sec. 92. But, Conrad is entitled to only one-half of the sum of $70.00, or $35.00, since he owned only a one-half interest in the cow.

An award is, therefore, entered in favor of claimant, Charles W. Conrad, in the sum of $35.00.

Claims of claimants, Ben Benting and Donald Garner, are dismissed without prejudice.


text:
    (No. 4306
    Carl P. Rommel, Ileene Rommel, and Janet Stout, a minor by her father and next friend, James J. Stout, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

    Winston, Strawn, Shaw and Black, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimants, Carl P. Rommel and Ileene K. Rommel, his wife, and their granddaughter, Janet Stout, by her father and next friend, James J. Stout, seek to recover from respondent for its negligence in failing to light and warn of the presence of barricades, located in the center of one of the public highways, maintained and controlled by respondent.

The Departmental Report on file herein reads in part as follows:

“Marked U. S. Highway Routes 12 and 20 include that part of 95th Street in Cook County, Illinois, between marked U. S. Route 45 on the west and marked Illinois Route 7 (Southwest Highway) on the east. Having the ,
status of a marked U. S. highway, that section of 95th Street is a part of the System of State Highways, and is subject to operation, maintenance, and reconstruction by the State of Illinois.
“Between U. S. Route 45 and State Route 7, 95th Street has a concrete pavement width of 40 feet, divided into four traffic lanes of 10 feet each. There are two lanes for east bound traffic and two lanes for west bound traffic.
“During the week of October 23 to 29, 1949 a maintenance force of the Division of Highways was engaged in patching the pavement on 95th Street between Kean Avenue and Southwest Highway. All patching was done in the inner lanes, thus leaving the outside lanes for east and west bound traffic open to unrestricted travel at all times.
“Patching consisted of removing ' an area of damaged or deteriorated pavement and replacing it with new concrete. A rectangular section between the center line of the pavement and the division line between the inner and outer traffic lanes was removed down to the earth subgrade. After the new concrete was poured it was permitted to cure for a period of four days before exposure to unrestricted traffic use.
“The most westerly of the patches made between Kean Avenue and Southwest Highway was completed on Thursday, October 27, 1949. This patch is in the inner of the two lanes for east bound traffic. Immediately after the patch was completed standard barricades were set up on the east and west sides of the patch. ...” ■

October 30, 1949, was a cloudy day. A few minutes before 5:00 P.M., and just after sunset on that day, Mr. Rommel and his wife, together with their granddaughter, aged two and one-half, left their home in LaGrange, Illinois, in Mr. Rommel’s car to drive to the home of their granddaughter’s parents.

. The car, a 1949 Mercury sedan, with only about 5,000 miles on it, was in good mechanical condition, having recently been checked.

Their route took them along 95th Street in an easterly direction. The car lights were burning in the dimmed position, and Eommel drove along 95th Street at 40-50 miles per hour in the inside of the two right lanes. The terrain was hilly but gently rolling. All three sat in the front seat, but did not engage in conversation, and the granddaughter, sitting between her grandfather and grandmother, was quiet. The car windshield was clean; it was dark and the pavement was dry.

Eommel was familiar with 95th Street, but the last time he had travelled over it no patching was going on, and he did not know that barricades were placed in the two center lanes of the four-lane highway.

At about 5:15 P.M. Eommel’s car crested a rise in the highway on 95th Street, and about 70 feet beyond the crest his lights suddenly illuminated an unlighted barricade about 40-50 feet in front and in the lane of his car. He swerved to the right to avoid the barricade, but lost control of his car. It plunged across the road shoulder and down into a ravine, and crashed against a tree, which stopped and heavily damaged the car, and caused severe injuries to Mrs. Eommel, and minor injuries to Janet Stout.

Two disinterested witnesses, one an eye witness and the other a police officer, who was called to investigate the accident, testified for claimants. Their testimony showed that an employee of respondent was engaged in lighting the flares at the various barricades moving from east to west. Such employee did not light the flares at the barricade Mr. Eommel was involved with until two other cars almost crashed into it, arid the most westerly flare set up by such employee on the highway was in the same lane but on the west side of the crest of the rise, since the flares lighting the barricade were not visible until the crest was reached. Their testimony also showed that there was no flare illuminating a sign along on the highway shoulder 550 feet west of the crest of the hill, which was black and yellow and bore the legend “Road Repairs Ahead.”

It is our opinion that respondent was guilty of negligence. Pomprowitz v. State, 16 C.C.R. 230. In fact, respondent impliedly so concedes, since its sole defense asserted in its brief is that Mr. Rommel was guilty of contributory negligence. Such defense is, of course, not available against the claim of the two and one-half year old granddaughter, but as to her claim respondent maintains the $500.00 damages sought are excessive. No defense is asserted against Mrs. Rommel’s claim.

Respondent relies on the familiar rule that one cannot be heard to say that he did not see, when, if he had looked, he would have seen. Greenwald v. B. & O. R. R., 332 Ill. 627. The application of this rule cannot be made in this case, as is manifest from the foregoing statement of facts. The more recent pronouncements of the Courts in this State lead us to the conclusion that Rommel was not contributorily negligent as a matter of law or in fact. Rees v. Spillane, 341 Ill. App. 647; Williams v. Walsh, 341 Ill. App. 543, 95 N. E. 2d 743. Of course, even if Mr. Rommel had been guilty of contributory negligence, such negligence was not imputable to Mrs. Rommel. Monken v. B. & O. R. Co., 342 Ill. App. 1.

All claimants are, therefore, entitled to awards.

As to the damages, Section 8 C of the Court of Claims Act limits recovery to $2,500.00 for each claimant.

Carl P. Rommel is clearly entitled to $2,500.00 since his' car was damaged to the extent of $1,000.00, and he expended over $3,000.00 for hospital, doctor and nursing bills for Mrs. Rommel. He makes no claim for personal injuries.

Ileene K. (Mrs.) Rommel is also entitled to $2,500.00. She sustained fractures of both legs and one hand, severe bruises about her head and mouth. She was hospitalized for two and one-half months, and was confined to her bed at home until March 26,1950. She used a walker for some time, and still walks with a cane, and is unable to perform her household duties. The flexion of her left knee is permanently impaired and X-Rays disclosed definite indications of traumatic arthritis in such knee. That Mrs. Rommel suffered great pain for some time is beyond question.

James J. Stout, the father of Janet Stout, testified at the hearing that he waived all claims that he might have to amounts expended for the treatment of his daughter’s injuries so that she could recover such in her name. This has been held to be permissible. McHugh v. Hirsch Clothing Co., 308 Ill. App. 272.

That Janet Stout went through a terrifying experience can not be denied. A cut on her head required several stitches, and she was so frightened that she screamed for some time after the accident. She now becomes easily frightened by the noise of sirens or screeching brakes.. Although her medical bills amounted to only $30.00, we feel that we would be remiss if we confined her recovery to nominal damages for a mental scar, the effect of which is definite and of uncertain duration. A recovery greater than the amount she seeks was approved in Frank v. B. & O. S. R. Co., 269 Ill. App. 129, for somewhat similar injuries. Janet Stout is, therefore, entitled, to the damages claimed of $500.00.

An award is entered in favor of claimant, Carl P. Rommel, for $2,500.00.

An award is entered in favor of claimant, Ileene K. Rommel, for $2,500.00.

An award is entered in favor of Janet Stout, a minor, by James J. Stout her father and next friend, for $500.00.


author: Delaney, J.

text:
    (No. 4314
    Roy Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.
    Arnold and Arnold, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On January 3, 1950, the claimant, Roy Jones, was an employee of the respondent in the Department of Public Works and Buildings, Division of Highways. On that day he was one of a group of men assigned to move equipment from the Village of Brooklyn, Schuyler County, to a Day Labor garage at Camp Ellis, Ipava, Illinois. At approximately 9:30 A.M. Mr. J ones, at a storage lot in Brooklyn, was driving a Caterpillar tractor up a ramp onto a low-boy trailer for transporting to Ipava.

Immediately before loading operations, rain had fallen. The tractor treads and the ramp were muddy. As the tractor moved up the ramp, the tractor slipped off and tipped sideways, throwing Mr. Jones to the ground. He fell on his extended right arm, fracturing it at the wrist. Immediately after the accident, Mr. Jones notified the Division, and went to Dr. Joseph Zingher of Rushville, who reduced the fracture, and treated the injury to its conclusion.

On January 3, 1950, Dr. Zingher submitted the following report to the Division of Highways:

“Nature of Injury — Multiple fractures of distal end of right radius. Treatment — Drugs for pain, arm and forearm cast — X-Rays taken. Estimate of disability — Eight weeks total. Estimated date of ability to return to work— Eight weeks. What permanent disability do you expect? — Painful wrist is possible.”

On March 13, 1950, Dr. Zingher submitted another report to the Division of Highways in which he returned claimant, Roy Jones, to light work:

,, “The X-Ray reveals that the ulnar styloid has not yet united and may never do so. This is not too great a functional loss, however.”
“Nature of Injury — Multiple fractures of distal eijd of right ulnar styloid process. Treatment — Drugs for pain, arm and forearm cast. X-Rays taken. Date patient able to work 3/13/50, patient to light work. Permanent disability — Possible painful right wrist with some limitation of motion.”

The record consists of the complaint, departmental report, stipulation waiving briefs of both parties, transcript of. evidence and X-Ray exhibits Nos. 1 and 2.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the injury and claim for compensation were made within the time provided by the Act. •

On the date of injury, claimant was employed as a truck driver at a wage of $1.75 an hour, and in the twelve preceding months had earned a total of $1,353.97. Other employees of the Division working in a capacity similar to Mr. Jones ordinarily worked less than 200 days a year. Therefore, claimant’s claim will be computed under Section (10) of the Workmen’s Compensation Act. For compensation purposes, claimant must receive the maximum compensation rate of $15.00 per week. Claimant was married, but had no children under eighteen years of age dependent upon him for support at the time of the accident. He was paid compensation for temporary total disability at the compensation rate of $22.50 a week from January 4 to March 12, 1950, in the amount of $218.57. Compensation was terminated March 12, 1950, since Dr. Zingher in his letter and report of March 11, 1950 said Mr. Jones was able to return to work on March* 13, 1950.

The Division has paid Dr. .Zingher $146.50 for his treatment of Mr. Jones, which included charges for X-Rays and cast material.

In a great many cases the ulnar' styloid does not unite in the type of injury we have under consideration. From the record, and the examination of the Commissioner of this Court, we are of the opinion that claimant has suffered a 25 per cent permanent partial loss of use of his right arm, and is entitled to an award for a period of 563/4 weeks at the compensation rate of $22.50 per week, or a total of $1,265.63.

An award is, therefore, entered in favor of claimant, Roy Jones, in the amount of $1,265.63 to be paid to him as follows:

$1,070.36 which has accrued, is payable forthwith;
$ 195.27 is payable in weekly installments of $22.50 per week, beginning on the 16th day of February, 1951 for a period of 8 weeks, with an additional final payment of $15.27.

The taking and transcribing of the testimony before ■ Commissioner- Summers was performed by Mary Lou Paisley, who has submitted a bill for her services in the amount of $22.00. The Court finds these charges usual, fair and customary, and an award is, therefore, made in favor of Mary Lou Paisley in the amount of $22.00, payable forthwith.

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


author: • Lansden, J.

text:
    (No. 4343
    Ted E. Davies, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.

    Frank B. Deyo, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel and William H. Sumpter, Assistant Attorneys General, for Respondent.
   • Lansden, J.

The facts in this case have been stipulated, and such stipulation is hereby approved.

Claimant, Ted E. Davies, was employed by respondent from September, 1946, until October 26, 1948, in the Division of Waterways of the Department of Public Works and Buildings. Claimant actually worked only through October 20, 1948, the remainder of his period of employment being used in annual leave.

During his period of employment claimant was paid a regular salary, and, in addition, while assigned to duty away from his official headquarters, he was entitled to reimbursement for actual expenses incurred, subject to a maximum limitation, and to the rules and regulations of the Department of Finance.

For the twenty-day period in October, 1948 that claimant actually worked, he was assigned to duty away from his official headquarters, working with a surveying party in the vicinity of LaGrange, Illinois.

Before the. end of October, 1948, and while using up his annual leave, claimant submitted an expense account for $110.00 covering the entire month. He was promptly informed that such amount could not be paid since he had actually worked only through October 20, 1948, and he was requested to revise his expense account downward to reflect this fact.

After considerable exchange of correspondence, claimant, who was none too prompt in acceding to requests therein, finally submitted a revised expense account, which was received by the Division of Waterways on December 1, 1949. He was then informed that the appropriation to pay such expenses had lapsed, and, therefore, payment could not be made.

From the stipulation, it is apparent that the Division of Waterways insisted that claimant’s expense account of $110.00 for the entire month of October, 1948 be reduced proportionally to reflect the fact that he actually worked only twenty of the thirty-one days in the month of October, 1948. Claimant finally did this in substance, and he is, therefore, entitled to an award of twenty thirty-firsts of $110.00 or the sum of $70.97.

An award is entered in favor of claimant, Ted E. Davies, for $70.97.


author: Lansdest, J.

text:
    (No. 4346
    Corinne W. Arnold, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 9, 1951.
    Otto M. Hamer and John P. Derning, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansdest, J.

Claimant, Corinne W. Arnold, widow of Clarence C. W. Arnold, deceased, seeks to recover from respondent under the Workmen’s Compensation Act for the death of her husband in an accident that arose out of and in the course of his employment as District Maintenance Engineer for District 10 (Cook County) in the Division of Highways of the Department of Public Works and Buildings.

The Departmental Report on file herein reads in part as follows:

. “On September 12, 1950, Mr. Arnold drove to Springfield from his home in Mt. Prospect, Illinois, for conferences in the Bureau of Maintenance, Division of Highways. The trip was made at the instance of Mr. Arnold’s superiors in Chicago and Springfield. The car driven by Mr. Arnold was regularly assigned to him and owned by the Department of Public Works and Buildings, Division of Highways.
“After completion of his work in Springfield, Mr. Arnold left that city at approximately 4:00 P.M., Central Standard Time, by way of Route U. S. 66. At approximately 8:00 P.M., Central Standard Time, Mr. Arnold was northeast bound on Route U. S. 66 in his proper traffic lane a short distance west of its intersection with State Bond Issue Route 53 in Will County. A tractor-semitrailer unit was southwest bound on Route U. S. 66. When passing through the intersection with Route 53, the tractor-semitrailer unit crossed the centerline of Route U. S. 66 into and along the lane for northeast bound traffic. At a point approximately 85 feet west of Route 53, the tractor-semitrailer unit and the car operated by Mr. Arnold collided head-on. Mr. Arnold was fatally injured and the car he operated was demolished. A passing motorist came upon the scene of the accident and notified the State'Police. The State Police dispatched a squad car to the scene of the accident and placed a call for an ambulance. Mr. Arnold was taken to the St. Joseph’s Hospital, Joliet, Illinois, where Dr. John Sadauskas, an interne, pronounced him dead. The hospital records described Mr. Arnold’s injuries as, ‘Skull fractures and crushing internal injuries. (As diagnosed by Coroner Willard G. Blood, Joliet, Ill.)”

In view of the foregoing and corroborating oral testimony, Clarence C. W. Arnold came to his death as a result of an accident that arose out of and in the course of Ms employment, and Ms widow is entitled to an award under Section 7 of the Workmen’s Compensation Act. Foster v. State, 8 C.C.R. 340; Connell v. State, 8 C.C.R. 452; Miller v. State, 16 C.C.R. 194; Gill v. State, opinion filed July 7, 1950 ; Irwin-Neisler & Co. v. Ind. Com., 346 Ill. 89; General Concrete Const. Co. v. Ind. Com., 375 Ill. 483.

On the date of his accident and death, decedent was 43 years of age, married and living with his wife, and had one child, Barbara Corinne Arnold, born December 4, 1934, dependent upon him for support.

Decedent’s earnings in the year prior to his death amounted to $6,541.87, and the rate of compensation in this case is $22.50 per week.

Other than an ambulance bill, respondent has paid nothing in this case.

William J. Cleary & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Charges in the amount of $31.30 were incurred, which charges are reasonable and customary. An award is, therefore, entered in favor of William J. Cleary & Co. for $31.30.

An award is entered in favor of claimant, Corinne W. Arnold, widow of Clarence C. W. Arnold, deceased, under Section 7 (a) (f) (h) (L) of the Workmen’s Compensation Act for the sum of $6,675.00, payable as follows:

$ 475.71, which has accrued and is payable forthwith,
$6,199.29, which is payable in weekly installments of $22.50 per week, commencing on February 16, 1951, for a period of 275 weeks, plus one final payment of $11.79.

Jurisdiction of this case is .specifically reserved for the entry of such further orders as may from time to time be necessary.

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


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    (No. 4232
    Kathryn A. Downey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    Ensel, Martin, Jones and Blanchard, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

On October 21, 1948, claimant, Kathryn A. Downey, was injured while employed in the office of the Secretary of State. Claimant, during office hours, while walking from the 5th floor to the 3rd floor, fell on a stairway, and sustained rather serious injuries to her back. There are no jurisdictional questions raised, and it is admitted that the case arises under the terms and provisions of the Workmen’s Compensation Act pertaining to State employees.

The facts show that the claimant, at the time she was injured, was 42 years of age, unmarried, and that her earnings for the year preceding her injuries were in the amount of $2,400.00.

The facts show that the claimant has been paid her full salary while she was off work due to the accident.

The facts show, and we do not dispute, that claimant, in an effort to aid in being cured of her injuries, incurred the following expenses:

The Deal Clinic, Springfield, Illinois--------------$ 11.00
Drs. J. Albert Key, Fred C. Reynolds, Lee T. Ford------------------$ 45.00
Drs. John J. Pleak and Barbara Pleak----------------------------------$ 84.00
St. Clara’s Hospital, Lincoln, Illinois-------------$ 28.75
St. John’s Hospital, Springfield, Illinois-------------------------------$ 40.00
Dr. Carl Becker, Lincoln, Illinois-------------------------------$ 22.00
Prescriptions ________ — —----------------------------$ 45.40
Expenses on 8 trips to St. Louis, Missouri, for the purpose of seeking medical attention_____________________________________$100.00
Purchase of 2 medical support garments---------- — -----$ 21.25
2 bedboards____________________$ 8.00

All that the Court is asked to pass on at this time is the amount of the expenses necessarily incurred by the claimant in an effort to be cured of her injuries. The Court finds the expenses above listed to be reasonable and necessary for the purposes mentioned.

An award is, therefore, entered in favor of the claim ant, Kathryn A. Downey, under Section 8(a) of the Workmen’s Compensation Act for $403.40, all of which award is payable forthwith as follows:

$ 11.00 to claimant for the use of the Deal Clinic, First National Bank Building, Springfield, Ill.
$ 45.00 to claimant for the use of Drs. J. Albert Key, Fred C. Reynolds, and Lee T. Ford, 4952 Maryland Avenue, St. Louis, Missouri.
$ 84.00 to claimant for the use of Drs. John J. Pleak and Barbara Pleak, 407 Ferguson Building, Springfield, Illinois.
$ 28.75 to claimant for the use of St. Clara’s Hospital, Lincoln, Illinois.
$ 40.00 to claimant for the use of St. John’s Hospital, Springfield, Illinois.
$ 20.00 to claimant for the use of Dr. Carl Becker, Lincoln, Illinois.
$174.65 to claimant for prescriptions, expenses to St. Louis, Missouri, medical garments and bedboards.

Harry L. Livingstone, Court Reporter, 1008 Ridgely Building, Springfield, Illinois, was employed to take and transcribe the testimony at the hearing, and has submitted charges for said services in the amount of $66.50, which the Court finds to be reasonable.

An award is hereby made in favor of Harry L. Livingstone in the amount of $66.50 for court reporting services.

Jurisdiction of this case is specifically reserved for further orders as from time to time 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. 4247
    Charles Love, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.
    Glenn 0. Brown, Attorney for Claimant.
    ■ Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

At the January term of this Court, an opinion was rendered in this cause allowing to the claimant an award under Section 8 '(d) and Section 7 (h-3) arid (1) of the Workmen’s Compensation Act the total amount of a death award of $5,785.00 for permanent partial disability; claimant being married, and having one child under 16 years of age dependent upon him for support. Because of his injury, Mr. Love was paid compensation for total temporary disability at the rate of $19.50 a week for a period of 42 1/7 weeks in the amount of $821.83.

On February 7, 1951, the respondent filed its petition for rehearing, and directed our attention to the fact that in the opinion we failed to credit the respondent for the amount of $821.83, which we found had been paid to claimant for compensation for temporary total disability.

On February 16, 1951, claimant filed with the clerk a waiver of his right to answer the respondent’s petition.

Respondent seeks to limit the total amount of compensation payable to the amount of a death award in accordance with Section 8 (d).

Section 8 (d) (Chapter 48, Paragraph 145 (d), Illinois Revised Statutes, 1947) provides as follows:

“If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated • from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty per centum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. Provided, however, if no compensation is awarded under the foregoing provisions of this paragraph, and when an accidental injury has been sustained which results in a fracture or fractures of the body or bodies of one or more vertebrae resulting in a loss of function of the back, compensation may be allowed for a period not to exceed thirty (30) weeks in addition to compensation for temporary total disability, such compensation to be in lieu of all other compensation specified hereinbefore by this paragraph.”

The Supreme Court of this State has repeatedly held that in “specific loss” cases the total of the payments for temporary total disability and specific loss together could not exceed the maximum amount of a death award. In Lundgren v. Industrial Commission, 337 Ill. 246, the Court said on page 248:

“Thus it is apparent that the legislature has in this section said that an employee may have compensation, which compensation may be made up of payments for temporary total disability as well as payment for specific injuries enumerated in paragraph (e). Such compensation is, however, specifically made subject to the limitations as to time and amounts fixed in para graphs (b) and (h); that is to say, the total maximum amount of compensation which an employee may receive is limited by the limitations in paragraphs (b) and (h). The limitation as to time contained in paragraph (h) is not applicable here and we may, therefore, disregard it.”

In Henson Robinson Co. v. Industrial Commission, 386 Ill. 232, the Court said on page 236:

“The decision in the Lundgren case "was filed in this Court subsequent to the effective date of the amendment of paragraph (e) aforesaid, but construed the Act as it read prior to July 1, 1929. In construing the effect of paragraph (e) as amended, we must determine and give effect to the intent of the legislature. It is apparent that, in fixing a limitation period of sixty-four weeks for compensation for temporary total incapacity and in removing from paragraph (e) the former limitations as to time and amount fixed in paragraphs (b) and (h) of Section 8, it was the intent and purpose of the legislature to alter the meaning and limitation of paragraph (e). It seems clear that now the provisions for temporary total incapacity and for specific injury by the terminology used are independent of one another and are not to be contained within an over-all maximum defined by the death award.”

In Angerstein on “The Employer and the Workmen’s Compensation Act of Illinois” the limitations as to time and amount of awards under Section 8 (d) are discussed in Section 282, which reads in part as follows:

“The compensation provided in paragraph (d) of Section 8 is expressly made subject to the limitation as to time and maximum amounts fixed in paragraphs (d) and (h) of Section 8. Said paragraph (h) fixes a definite limitation of time such that the compensation payments under paragraph (d) cannot extend over a period of more than eight years from the date of the accident. In other words, an award for permanent partial incapacity could not provide for payments of compensation for more than eight years from the date of accident.
“The limitation as to the total amount of compensation that can be awarded for permanent partial disability,- as fixed by reference to paragraph (b), is that the amount can never exceed the amount which would have been payable under paragraph (a) of Section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving as provided in said paragraph (a) of Section 7.”

In the case now before this Court, however, we have to determine the question of whether or not “permanent partial disability” differs from “specific loss” in this type of case, in that the total payments of compensation for temporary total incapacity and the- amount paid as an award do not exceed the total amount of a death award.

The case under consideration raises the question-as to whether claimant, Charles Love, should be allowed compensation for temporary total incapacity, and also an award in the total amount of a death award.

This Court has not previously ruled on the question involved in this cause, and we have found no ease.s in which the Supreme Court of this State has ruled squarely on this point.

After a careful review of the claim of Charles Love, we are of the opinion that the total of the payments for temporary total disability and permanent partial disability together cannot exceed the maximum amount provided, which was the amount of a death award.

That portion of the opinion rendered at the January term, which allowed claimant, Charles Love, 42 1/7 weeks for temporary total disability in the amount of $821.83, is hereby vacated.

Claimant is entitled to an award in the amount of $5,785.00, less the sum allowed for temporary total disability of $821.83, leaving a balance of $4,963.17. The differential between claimant’s earnings before and after the accident makes claimant’s compensation rate $15.18, commencing on October 1, 1949, the day after he received his last compensation payment.

An award is, therefore, entered in favor of claimant, Charles Love, in the amount of $4,963.17, to be paid to him as follows:

$1,136.34 which has accrued, is payable forthwith;
$3,826.83 payable in weekly installments of $15.18, beginning March 16, 1951 for a period of 252 weeks, with a final payment of $1.47.

Eollin Moore was employed to take and transcribe the testimony at the hearing before the Commissioner, for which he made a charge of $70.96. We find this sum reasonable, customary and fair for the services rendered. An award is hereby entered in favor of Eollin Moore in the sum of $70.96.

These awards are 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. 4275
    Allan J. Berlett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    Hanley and Phillips and Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Eespondent.
   Lansden, J.

Claimant, Allan J. Berlett, seeks to recover from respondent under the Workmen’s Compensation Act for injuries to his hands that he alleges resulted from accidents that arose out of and in the course of his employment as a highway section helper in the Division of Highways of the Department of Public Works and Buildings.

Claimant alleges that the accidents on which he bases, his claim occurred between August 3, 1948, and October, 1948. His first complaint was filed on March 3, 1950, and an amended complaint, after this Court sustained a motion to dismiss the first complaint, was filed on May 26, 1950. The amended complaint contained allegations sufficient to bring claimant within the jurisdiction of this Court.

Respondent still maintains that this Court is without jurisdiction. In this connection, the proof in the record is hazy, but we feel that certain payments made by respondent to claimant were the equivalent of payments of compensation, and that claimant has filed his complaint within the time required by Section 24 of the Workmen’s Compensation Act, and Section 22 of the Court of Claims Act. United Air Lines v. Ind. Com., 364 Ill. 346; Roebuck v. State, 12 C.C.R. 236; La Mantia v. State, No. 4141, opinion filed October 13, 1950.

The record discloses that claimant is suffering from Dupuytren’s Contracture of the hands. Since the record fails to enlighten us as to the nature of this condition, we have made some independent research to ascertain enough information for an intelligent decision of this case.

Reed and Emerson: The Relation between Injury and Disease (1938) at page 500 states as follows:

“Dupuytren’s contraction or deformity, that is, the permanent contraction of the little, ring, and in extreme cases middle fingers, is a fairly common abnormality. This starts as a slight puckering of the skin and subcutaneous tissues at the base of these fingers, which, slowly increasing in grades, progressively flexes them into the palm of the hand, rendering them more or less useless. This condition always starts in one hand, but eventually both become symmetrically deformed.
“While we know nothing concerning the cause of Dupuytren’s contraction, yet there is no evidence that it ever is in any way related to trauma, notwithstanding the fact that in many of the older textbooks injury was given as its chief cause. Since, however, it develops in men engaged in all trades and professions, including occupations which do not necessarily traumatize the palm, since in all cases it develops in exactly the same manner, and since sooner or later both hands practically always become similarly affected, it is difficult to accept any theory which- ascribes it to a single trauma."

Gray’s: Attorneys’ Textbook of Medicine (1949) Vol. 1, pars. 3.25-3.28 has this to say:

“DUPUYTREN’S CONTRACTURE. P. 3.25
“Dupuytren’s contracture is a relatively infrequent disease condition involving the palmar fascia, resulting in major, progressive disability. The condition results from inflammation within the fascia, leading to overgrowth. The tendons are not involved, although they appear as tense cord-like ridges when effort to extend the fingers is made. As time passes on, the fibrous structures within the palm of the hand become further thickened and contract, limiting motion of the fingers, finally producing a claw-like, useless hand.
“Cause P. 3.26
“The cause is open to considerable question. Although rarely found in people under fifty years of age, heredity is believed to play a part. Certainly a similar condition is not infrequently found in the family of the sufferer. Whether trauma is definitely a cause or not is open to question, although many authorities report increased frequency among those whose occupations require pulling, squeezing or pressing. A history of repeated minor injuries to the palm of the hand or of a single excessive blow is not unusual. However, considering the rarity of the disease, and how many occupations require excessive force to the palm of the hand, it is very' questionable if work plays much if any part. The patient looks into the past and all of us can usually recall a blow to the hand within the recent past. Thus it is likely that the blow is charged as a cause, without merit, and since many occupations require more than the average of force to the palm of the hand, it is not surprising that occupation is frequently charged as the causative factor. However, the general consensus of opinion fails to ascribe any cause to Dupuytren's contracture.
“Symptoms P. 3.27
“The difficulty first begins, as a usual rule, slowly and insidiously, with tightness in the palm, more especially of the ring or little fingers. Neuralgic pains may long continue before evidence of any particular involvement. Ultimately, difficulty in extension of the ring or little fingers becomes apparent, later to include the remaining fingers. One or several fibrous nodes may be found, usually at the base of the little finger, at first not attached to the skin, but later adherent.
“Contractions are late, first involving the proximal phalangeal joints, and later the distal. Finally, the fingers may become fixed. Months or years thereafter, a similar difficulty usually appears in the other hand.
“Treatment P. 3.28
“Treatment has been unsuccessful except through surgical means. The fact that removal of all-trauma of consequence fails to stop progress is a cardinal argument against multiple minor traumata as causative factors. As a usual rule, the unfortunate condition progresses unless the fascia with suffident skin is surgically removed. This necessitates a large graft of skin and underlying tissue, usually taken from the abdomen, to prevent undue traction at the edges too widely spread to permit apposition by sutures.”

On seven occasions between August 3, 1948, and October 19, 1948, claimant operated for several hours a compressed air-operated jack hammer to cut and break out old concrete on Highway 115 in Ford County, Illinois. Since the pounding of the jack hammer aggravated claimant’s already existing condition of Dupuytren’s Contracture, he naturally complained to his superiors, and in December, 1948, he was sent to Chicago for ex: amination and treatment by Dr. H. B. Thomas, Professor Emeritus of Orthopedics, College of Medicine of the University of Illinois.

Dr. Thomas diagnosed the disease, and conceded that it was aggravated by the pounding of the jack hammer, and recommended that he not be allowed to use the jack hammer any more. Dr. Thomas treated claimant’s hands and by February, 1949, he found that such treatment had cured and relieved claimant of all aggravation of the contracture, although such was still present.

Claimant’s testimony at the hearing corroborates Dr. Thomas, and, we, therefore, conclude that, the original contracture not having been the result of an accident and all aggravation thereof having been cured, claimant is not entitled to an award.

Hugo Antonacci, Springfield, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Summers. His charges amount to $35.40, which charges are reasonable and customary. "An award is entered in favor of Hugo Antonacci in the sum of $35.40.

An award to claimant, Allan J. Berlett, is denied.

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


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    (No. 4282
    George Johnston, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    Thomas A. Burns, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. ■ Sumpter, Assistant Attorney General, for Respondent..
   Lansden, J.

George Johnston, claimant, filed his claim herein on March 17, 1950, for damages sustained by him in loss of crops and damages to his house, as a result of the flooding of his property during the year 1949 and early 1950, which he alleges occurred as a result of the negligence of the respondent in failing to keep tile across its property free and unobstructed. The claimant was the owner of five acres located in the Northeast quarter of Section seven, Township thirty North, Range thirteen West of the 2nd P. M. situated in Kankakee County, Illinois, which land adjoins respondent’s land on the west, except that they are separated by Illinois State Highway No. 49.

Claimant’s lands dominant to those of respondent as regards surface drainage, and until about 1912 this area was traversed and drained by natural water course known as Little Brainard Creek. This area is also within the Gar Creek Drainage District of Kankákee County, and about 1912 the District installed an artificial water course, covered tile, across the lands now owned by claimant, and to the outlet to the Kankakee River.

Respondent laid the tile across its lands in 1912, being on the premises of the Kankakee State Hospital. The tile connected with that from claimant’s lands at an inlet at the boundary of the grounds of the institution, and carried water ultimately to the Kankakee River.

Respondent’s lands being servient to those of claimant, the former has a legal duty not to obstruct the flow of water from claimant’s lands. Gilman v. Madison, R. R. Co., 49 Ill. 484.

The evidence shows that such inlet is considerably lower than claimant’s lands, and that, when the tile on respondent’s premises is blocked, water bubbles out of the manhole at the top of the inlet and floods respondent’s lands. During no part of 1949 and 1950 did water boil out of such inlet and flood any part of respondent’s lands.

We, therefore, conclude that the obstruction, if any, causing the alleged flooding of claimant’s land was not on respondent’s lands, and any award must be denied.

An award to claimant, George Johnston, is denied.


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    (No. 4308
    County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    John A. Heuer, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, County of Randolph, Illinois, by the chairman of its Board ' of County Commissioners and its State’s Attorney, seeks to recover from respondent the sum of $3,752.20. This action is based on a specific statute, which confers jurisdiction on this Court to hear cases brought thereunder. Ill. Rev. Stat. 1949, Chap. 65, Secs. 37-39; Chap. 37, Sec, 439.8.

The purpose of such statute is to reimburse certain counties in Illinois for expenses, costs and fees incurred because of the large volume of petitions for writs of habeas corpus in forma pauperis filed therein. The Counties of Will and Randolph are the principal beneficiaries of such statute.

Such counties have previously been given four awards in this Court, and those cases have decided that certain fees, expenses and costs are reimbursable under such statute. County of Will v. State, 18 C.C.R. 189; County of Will v. State, No. 4218, opinion filed May 9, 1950; County of Will v. State, No. 4318, opinion filed September 19, 1950; County of Randolph v. State, No. 4157, opinion filed February 14, 1950.

A stipulation of facts has been filed herein, and is hereby approved.

The stipulation discloses that the. Illinois State Penitentiary is located in Randolph County. Between December 27,1948 and December 1,1949, 209 petitions for writs of habeas corpus were filed in forma pauperis in the office of the Clerk of the Circuit' Court of Randolph County by inmates of such institution. None of the petitioners were at the time of their commitment residents or committed by any court of Randolph County. In 10 cases the Clerk’s filing fee was paid by the petitioner. Writs were awarded, and hearings were held in 113 cases. In each of the 113 cases the State’s Attorney of Randolph County represented the People of this State at the hearing, and, in addition, the Clerk of the Circuit Court was required to furnish a photostatic copy of the petition to the Attorney General of Illinois at a cost of $1.00 per petition.

In the above cited cases, we found that the Clerk of the Circuit Court was entitled to' a $5.00 filing fee in each case, and to be reimbursed for the furnishing of photostats at cost. In the County of Randolph case, supra, we found the State’s Attorney to be entitled to a fee of $20.00 for each case in which he appeared at the hearing representing the People.

Previously, as he does herein, the Sheriff of Randolph County sought recovery for serving and returning the writs of habeas corpus, and for mileage. In County of Randolph v. State, No. 4157, opinion filed February 14, 1950, we decided that the Sheriff was not entitled to any fees for serving the writs, or for mileage, but that he was entitled to $1.00 for returning each writ. We reached this conclusion because of the silence of the applicable section of the Fees and Salaries Act, Ill. Rev. Stat. 1949, Chap. 53, Sec. 37, regarding fees for service and mileage in connection with writs of habeas corpus. We adhere to our previous conclusion. Irvin v. County of Alexander, 63 Ill. 528.

The Clerk of the Circuit Court of Randolph County was entitled to receive $5.00 for each petition filed, or the sum of $1,045.00, but he did receive $50.00 in 10 cases, leaving a balance of $995.00 due. Ill. Rev. Stat. 1949, Chap. 53, See. 31. In addition, he was entitled to receive $1.00 for photostats in 113 cases, or the sum of $113.00.

The Sheriff of Randolph County was entitled to receive $1.00 for returning each of the 113 writs of habeas corpus or the sum of $113.00. Ill. Rev. Stat. 1949, Chap. 53, Sec. 37.

The State’s Attorney of Randolph County was entitled to receive $20.00 for each of the 113 cases in which he appeared at the hearing representing the People, or the sum of $2,260.00. Ill. Rev. Stat. 1949, Chap. 53, Sec. 8.

An award is, therefore, entered in favor of the County of Randolph for the sum of $3,481.00.


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    (No. 4320
    Sandusky Corder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

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

Claimant, Sandusky Corder, filed his complaint and amended complaint setting forth that pursuant to an Act of the General Assembly of the State of Illinois entitled “An Act to provide for the registration of burial places of soldiers and sailors serving in all United States wars, or during the.years 1940 or 1941, and for locating such burial places and reporting them to the Federal government, and transporting to such burial places and setting up headstones provided by the Federal government”, approved July 8, 1935, and the several amendments thereto; and pursuant also to instructions from the Military and Naval Department, War Veterans’ Graves Registration of the State of Illinois, claimant did, in Hancock County, Illinois, at the time set forth in the bill of particulars filed herein, and at the time hereinafter mentioned, transport and erect headstones furnished by the Federal government at the graves of certain named deceased veterans of United States wars.

The record consists of the complaint, amended complaint, bill of particulars, report of the Adjutant General, dated January 8, 1951, signed by Leo M. Boyle, Major General, the Adjutant General, which has been filed in this case under Rule 16 of the Court, and which constitutes the record in this cause.

Claimant erected seven headstones; and, as a result of the transportation and erection thereof, there is now due claimant the sum of $70.00.

The seven markers were placed at the respective veterans’ graves prior to, July 1, 1949, and were payable from funds allocated for the 65th biennium, but payment was not cleared before the lapse in appropriation.

This Court has repeatedly held that in the event certain articles are properly furnished, and the State is directed by statute to pay for same, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, an award for the reasonable value of the items furnished will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. (Carl S. Johnson v. State, 16 C.C.R. 96; Rock Island Sand and Gravel Co. v. State, 8 C.C.R. 165; Oak Park Hospital v. State, 11 C.C.R. 219; Yourtee-Roberts Sand Co. v. State, 14 C.C.R. 124.)

An award is, therefore, entered in favor of claimant, Sandusky Corder, for the sum of $70.00.


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    (No. 4336
    Frank T. Clifford, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    William G. Juergens, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On April 22, 1950 "the claimant, Frank T. Clifford, Jr., employed by the respondent in the Department of Public Safety, while acting in the capacity of a guard in the Menard Branch of the Illinois State Penitentiary, was assigned to drive a State owned truck. On the above date he was instructed to remove a pushcart from the truck at the outside warehouse of the institution. At about 10:30 A.M. while unloading the pushcart, Mr. Clifford lost control of the cart, and the fourth finger, commonly called the little finger, of his left hand became caught between the pushcart tongue and a board. The finger was severely lacerated and mashed. He reported to the Prison Hospital, but inasmuch as there was no doctor in attendance, he was sent to Dr. I. D. Newmark, at Chester, Illinois, for medical attention. Dr. Newmark found that there was an evulsion of the distal end of said finger with the nail, and one-third (IS) of the hone damaged, and the lower one-half (%) of the flesh was hanging by a thin shred of tissue. Dr. Newmark found it necessary to amputate the first or distal phalanx of said fourth finger.

The record consists of the complaint, departmental report, and a stipulation in lieu of evidence.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and a claim for compensation was made within the time provided by the Act. The accident arose out of and in the course of claimant’s employment. No claim is made for temporary total disability, nor for medical expenses, which were paid by the respondent. Claim, however, is made for total permanent disability.

Claimant was married, and he had two step-children under 16 years of age dependent upon him for support at the time of the accident, and the relationship of loco parentis is shown to have existed.

He was first employed on October 9, 1949, and received a monthly salary of $237.00 during the entire period of his employment at the Menard Branch of the Illinois State Penitentiary, which terminated September 18, 1950. Other Department employees, working in the same classification as Mr. Clifford, worked continuously through the year and earned $2,844.00 a year. His compensation rate is, therefore, the maximum of $16.00.

The injury having occurred after July 1, 1949, this must be increased 50 per cent, making a compensation rate of $24.00 a week.

From the medical report as shown in the Departmental Report filed herein, we are of the opinion that, as a result of the accident on April 22, 1950, claimant has suffered a 50 per cent partial, permanent loss of use of the fourth finger, commonly called the little finger of his left hand, being 10 weeks.

An award is, .therefore, made in favor of claimant, Frank T. Clifford, Jr., for the sum of $240.00. The respondent has paid the claimant the sum of $59.25 as an overpayment for non-productive time from the date of his injury, April 22, 1950, until he returned to work on April 29, 1950. This amount shall be deducted from claimant’s award. This would make a total award due claimant of $180.75, all of which has accrued and is payable forthwith.

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


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    (No. 4339
    Thomas William Crutchfield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.
    Thomas W. Kehr, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant was injured on September 26, 1949 in an accident arising out of and in the course of his employment as a common laborer in the Department of Public Works and Buildings, Division of Highways.

On September 26, 1949 Mr. Crutchfield was one of a group of men engaged in filling cracks in concrete pavement with molten bituminous material. The work was being done on S.B.I. Route 29 in Peoria County. While working approximately five miles south of Chillicothe, Mr. Crutchfield was walking along the edge of the pavement to the next point of operation, when the supply truck passed him. The sandbox, which extended over the side of the truck body, struck Mr. Crutchfield, knocking him down. As he fell, hot asphalt, which he was carrying in a pouring can, was spilled over his left hand and arm.

His superior took him to Dr. S. A. Smith in Chillicothe for treatment.

On September 27, 1949, Dr. Smith submitted the following report to the Division of Highways:

“Nature of injury — First and second degree bums left hand and arm.”

On January 14, 1950, Dr. Smith sent the Division of Highways the following report:

“Thomas Crutchfield who was recently burned while at work on the State highway is suffering with a 25 per cent disability of the left hand due to contracture of the extensor tendons.”

From the testimony introduced into the record, and the observations of Commissioner Henry S. Wise, we are of the opinion claimant, Thomas William Crutchfield, has suffered a 10 per cent permanent, partial loss of use of his left hand.

No jurisdictional questions were raised.

The record consists of the complaint, departmental report, transcript of evidence and stipulation waiving briefs of both parties.

At the time of the accident, claimant was 72 years of age, married, but had no children under 18 years of age dependent upon him for support. His earnings in the year preceding September 26, 1949 totalled $1,931.80.

Claimant continued to work after the accident, and there was no payment of compensation for loss of time. The State of Illinois paid a bill of $63.00 to Dr. S. A. Smith for professional services.

Claimant is entitled to 10 per cent partial, permanent loss of use of his left hand, being 17 weeks at the maximum rate of $15.00 per week. The injury having occurred after July 1, 1949, this amount must be increased 50 per cent, making a compensation rate of $22.50 per week.

John Nelson Eice took and transcribed the testimony, for which he submitted his charge of $14.70, which we find is fair, reasonable and customary.

An award is made to claimant, Thomas William Crutchfield, in the sum of $382.50, all of which has accrued and is payable forthwith.

An award is also made to John Nelson Eice in the sum of $14.70, 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. 4348
    Clarence C. Diver, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.
    McConnell, Kennedy and McConnell, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Aethtje Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This is a claim of Clarence ,C. Diver against' the respondent, the State of Illinois, for personal injury sustained on April 17, 1950.

The complaint alleges that Mr. Diver and his foreman drove a Division of Highway’s truck to the Rock Island Railroad Depot in Chillicothe, Peoria County, Illinois, to secure a load of drums of asphalt, which was to be moved to a Division storage yard. The truck was backed up to a box car. Mr. Diver stepped between the rear end of the truck and the box car to hand a crowbar to a fellow employee in the box car. While standing between the truck and the box car, the empty truck began to roll backwards. Mr. Diver attempted to hold the truck with his hands. The backward motion of the truck forced his elbows against the side of the box car, fracturing the bone of the lower right arm.

Mr. Diver’s foreman took him to Dr. H. Y. Thomas of Chillicothe, who examined Mr. Diver, and sent him to Dr. Hugh Cooper, a specialist in orthopedic surgery, in Peoria.

On April 19, 1950 Dr. Thomas sent the following report to the Division of Highways:

“Nature of injury — Fragment broken off lower condyle right humerus.”

On April 25, 1950 Dr. Hugh Cooper reported as follows:

“Nature of injury — Fracture of head of the right radius. Treatment— Operated April 24, 1950. Arthrotomy and removal of the head of the radius.”

On May 31, 1950 and on August 3, 1950, Dr. Hugh Cooper reported to the Department that claimant suffered probably a 20 per cent permanent loss of function of his right arm.

A medical report of Dr. Harold F. Diller, wherein the doctor stated claimant had suffered a 30 per cent permanent, partial loss of use of the right arm, was introduced into the record by stipulation.

Mr. Diver was 28 years of age, married, and had one child under 16 years of age. Claimant earned $2,329.03 in the year preceding his injury.

The record consists of the complaint, departmental report, stipulation waiving briefs of both parties, transcript of evidence and claimant’s Exhibit No. 1, being the report of Dr. Diller, which was stipulated into record.

There is but one question, therefore, for this Court to determine — that is the nature and extent of his injury, and whether or not said injury has caused him any degree of permanent disability, as defined under the terms and provisions of the Workmen’s Compensation Act of the State of Illinois, Section 8, Paragraph (e) 13.

Reviewing the opinion of Dr. Hugh Cooper and Dr. Harold F. Diller, and considering the age of claimant— 28 years, .and the fact that he has some limitation in movement, and there is no control movement in his right elbow, we feel Mr. Diver sustained a permanent impairment estimated to be in the neighborhood of 25 per cent loss of use of bis right arm.

Mr. Diver was totally disabled because of this injury from April 18 to May 1, 1950, inclusive. He was paid full salary for this lost time in the amount of $92.19. He returned to work on May 2, 1950. The Division paid the following creditors in connection with the injury of Mr. Diver: Dr. H. V. Thomas, Chillicothe, $3.00; Dr. Hugh Cooper, Peoria, $130.00; and St. Francis Hospital, Peoria, $95.40, making a total of $228.40.

No jurisdictional questions were raised.

Claimant is entitled to 25 per cent partial, permanent loss of use of his right arm being 56% weeks, at the maximum rate of $15.00 per week. The injury having occurred after July 1, 1949, this must be increased 50 per cent, making a compensation rate of $22.50 per week, or a total of $1,265.63. Since his period of disability was less than 28 days, he should be allowed one week temporary total disability or $22.50.

Mary I. Reynolds took and transcribed the testimony, for which she submitted her charge of $43.50, which we find is fair, reasonable and customary.

An award is made to claimant, Clarence C. Diver, in the sum of $1,265.63 from which must be deducted the excessive payment for non-productive time in the amount of $69.69, leaving a balance of $1,195.94, payable to him as follows:

$999.63 which has accrued, is payable forthwith;
$196.31 is payable in weekly installments of $22.50 per week, beginning March 16, 1951, for a period of 8 weeks, with an additional final payment of $16.31.

An award is also made to Mary I. Reynolds in the sum of $43.50, payable forthwith.

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


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    (No. 4368
    Flossie V. Henson, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

    Flossie Y. Henson, widow, et al, Claimant, pro se.
    Ivan A. Elliott, Attorney General; ,C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Flossie V. Henson, widow of Robert Walter Henson, deceased, seeks to recover from respondent under the Workmen’s Compensation Act for the death of her husband as the result of an accident that arose out of and in the course of his employment as a Maintenance Equipment Operator in the Division of Highways of the Department of Public Works and Buildings.

On September 7, 1950, decedent was one of three men assigned to operate a centerlining machine on Route 127 south of Donnelson, Illinois. This machine, when in operation, painted the black line. at the center of the paved highway. The three men pumped air into the paint tank to assure a free flow of paint during the center-lining activities. They then waited on the shoulder of the highway for a State Highway Police escort, which was to safeguard them and the machine while the operation proceeded down the center of the highway.

While waiting, a valve on a paint line of the machine burst, throwing a heavy spray of black paint into the air. To avoid this shower of paint, two of the men. ran down the shoulder of the highway, but decedent ran across the highway and into the path of a truck tractor-semi-trailer unit. The driver tried to avoid hitting decedent, but the left front fender of the truck struck bim and knocked him onto the highway shoulder.

Decedent was promptly taken in an ambulance to the Hillsboro Hospital, Hillsboro, Illinois, but was pronounced dead on arrival.

No jurisdictional questions are involved. Respondent has paid for the emergency ambulance service, and claimant is entitled to an award.

On the date of the accident, decedent was 55 years of age, married and living with his wife, and had one son, Franklin Dean Henson, born June 10, 1933, dependent upon him for support.

. Decedent’s earnings from respondent in the year prior to his death amounted to $2,700.00. The rate of compensation is, therefore, $22.50 per week.

Bernice Naumann, Paris, Hlinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Reasonable charges in the amount of $15.80 were incurred, and an award in favor of Bernice Naumann is hereby entered for «the sum of $15.80.

. An award is entered in favor of Flossie V. Henson, widow of Robert Walter Henson, deceased, under Section 7 (a) (f) (h-3) (L) of the Workmen’s Compensar tion Act in the -sum of $6,675.00, payable as follows:

$ 585.00, which has accrued and is payable forthwith,
' $6,090.00, which is payable in weekly installments of $22.50 per week, commencing on March 16, 1951, for a period of 270 weeks, plus one final payment of $15.00.

Jurisdiction of this case is specifically reserved for the entry of such orders as may from time to time be necessary.

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


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

      Opinion filed April 10, 1951.

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

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully’ detailed in the case of Penwell v. State, 11 C.C.R. 365, in which an award of $5,500.00 was made to the claimant for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940 to January 1, 1942 in the amount of $1,129.82. On March 10, 1943, a further award was made, to claimant for medical and hospital expenses from January 1, 1942 to December 31, 1942 in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943 to and including September 30, 1948 in the amount of $853.07. On April 17, 1945, a further award was made to claimant for medical and nursing expenses incurred from October 1,1943 to and including February 28, 1945 in the amount of $1,955.29. On September 12, 1946, a further award was made to claimant for medical and nursing expenses incurred from February 28, 1945 to and including April 1,1946 in the amount of $1,646.12. On June 5, 1947, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1946 to and including April 1, 1947 in the amount of $2,108.30. On September 22, 1948, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1947 to and including April 1, 1948 in the amount of $2,207.80. On April 19, 1949, a further award was made to claimant for medical and nursing expenses incurred from April 1, 1948 to and including February 1, 1949. On May 9, 1950, a further award was made to claimant for medical, and nursing expenses incurred from February 1,1949 to and including February 1, 1950 in the amount of $2,316.09. Claim is now being made for an additional award of $2,403.09 for medical and nursing expenses from February 1, 1950 to and including February 1, 1951.

Claimant remains totally paralyzed from the waist, down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over her urine and faeces. From February 1, 1950 to and including February 1, 1951, she has been required to relieve her of her injury, to prevent deformity,' to stimulate circulation, and for relief of bedsores, to employ and receive medical services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily, and must be rendered in her home.

Claimant has, therefore, employed a physician on a monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for which she seeks reimbursement in the total sum of $1,098.50, which sum includes X-Rays. Claimant also seeks reimbursement at the rate of $1.00 per day in the amount of $365.00 for board and room of attending nurses. Such' expenditure obviates the employment of both a day and a night nurse. In addition, claimant has expended for nursing services $754.35, and for drugs and supplies, $185.24. She has submitted to the Court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

An award is, therefore, made to claimant for medical and nursing expenses from February 1, 1950 to and including February 1, 1951 in the sum of $2,403.09, which has accrued and is payable forthwith. The Court reserves for future determination claimant’s need for further medical, surgical and hospital services.


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    (No. 4258
    Everett H. Bonham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Tolliver and Bayler, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebbl, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Everett H. Bonham, was employed as a laborer on July 26, 1948, in the Division of Highways of the Department of Public Works .and Buildings. Claimant was 50 years of age, married, and had no children under 16 years of age dependent on him for support. On that date claimant was one of a group of em- . ployees assigned to assist in loading a power mower on to a truck. Planks had been laid from the rear of a truck bed to the pavement, thus making a ramp up which the tractor was to be driven onto the truck. Mr. Bonham was driving the power mower, and as the rear wheels approached the upper end of the plank ramp, the planks slipped off the truck allowing the rear of the mower to fall to the pavement. The mower teetered perpendicularly on the rear wheels, with Mr. Bonham’s left leg wedged under the steering wheel. He used his right leg and foot to press against the tractor to prevent it from tipping over upon him, and forcibly bending his left knee backwards. The weight of the teetering power mower was carried by the region of Mr. Bonham’s hips and lower back, which were resting on the pavement. Fellow employees immediately extricated Mr. Bonham from the power mower, and took him to St. Anthony’s Hospital in Effingham, where Dr. E. L. Damron was placed in charge of the case.

On July 31,1948, Dr. Damron prepared the following report: ■

“Nature of injury, ligaments of left leg bruised and tom. Knee bruised, lower lumbar and sacral region of the back bruised, abrasions of the entire lower back. Bruised over body.”

Dr. Fred Reynolds examined claimant and on February 7, 1949, made the following report:

“It was our feeling that he was suffering from a ruptured intervertebral disc and a flexion deformity of the left knee, and we recommend that he have, hospitalization for myelograms, and removal óf tire disc should it be indicated; and, also, at the same time to have wedging plasters applied to the left leg in an effort to strengthen the knee.”

Claimant was employed intermittently by the Division of Highways from the date of his first employment until the date of his injury. The wage being paid claimant on July 26, 1948, was 90 cents an hour, and the Division had paid him $902.20 in the year preceding his injury. Claimant was paid compensation for total temporary disability resulting from his injury at the rate of $18.00 a week for the period July 27, 1948, to August 15,1949, inclusive, in the amount of $949.96. The Division has paid the following creditors in connection with Mr. Bonham’s injury: Dr. Fred C. Reynolds, $310.00; Dr. Wendell G-. Scott (X-Ray), $30.00; Dr. E. L. Damron, $80.00; Dr. W. J. G-illesby, $25.00; St. Anthony’s Hospital, $244.20; Barnes Hospital, $157.78; and, including expense to claimant of $97.22, or a total of $944.20.

Claimant, and witnesses for claimant, testified that claimant operates a 90 acre farm; that about 51 acres of this farm are under cultivation, and the rest in pasture; that he owns about 7 cows and about 28 pigs, at the time of the rehearing before Commissioner Summers. His son works a 20 acre farm nearby. Claimant has operated, this farm both before and after his injury. Since his injury, he has been unable to do any kind of work except the farm chores: milking and caring for stock. The record shows that the value of the work claimant can do around the farm at the present time is $30.00 a month, or the sum of $7.50 per week. Claimant’s weekly earnings were $18.80 before his injury. The differential between Mr. Bonham’s earnings before the accident, and his ability to earn thereafter in other employment in work of a lighter nature is $11.30 a week, 50 per cent of this average weekly difference in wages would be $5.65 a week, or the sum of $293.80 a year. Under Section 8 (d) and (m), claimant’s compensation rate is $7.35 weekly.

The testimony tends to show a permanent partial incapacity. From the record in this cause, and the observations of Commissioner Summers of this Court, we are of the opinion claimant has suffered a 25 per cent permanent partial disability.

Claimant will be allowed the sum of $949.96 paid for temporary total disability. This case differs from the case of Charles Love vs. State of Illinois, No. 4247, in that the total payments for temporary total disability and permanent partial disability together do not exceed the maximum amount provided, which is the amount of a death award.

Claimant is entitled to an award under Section 8 (d) of the Workmen’s Compensation Act for permanent partial disability in the amount of $5,200.00. However, under Section 8 (h) of the Workmen’s Compensation Act, except in case of complete disability, compensation payments shall not extend over a period of more than eight years, from the date of the accident. Therefore, on the basis of Section 8 (h) claimant, Everett H. Bonham, is entitled to an award of $3,057.60.

An award is, therefore, entered in favor of claimant, Everett H. Bonham, in the amount of $3,057.60 to be paid to him as follows:

$ 633.15 which has accrued, is payable forthwith;
$2,424.45 payable in weekly installments of $7.35, beginning April 17, 1951 for a period of 329 weeks, with a final payment of $6.30.

Marion McKnelly was employed to take and transcribe the evidence at the hearings before Commissioner Summers. Charges in the amount of $40.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Marion McKnelly in the - amount of $40.00 payable forthwith.

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


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    (No. 4284
    Hazel Flowers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.

    Prank B. Sullivan, Attorney for Claimant.
    ItAN A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On June 10, 1949, claimant, Hazel Flowers, an employee of the respondent in the Department of Registration and Education, while preparing to leave the office for the day, injured her back putting her typewriter away. Her desk had a folding top, and the typewriter was not permanently affixed to the desk. While lowering the top, the typewriter slipped, and the force of the movement jerked her across the desk, and caused a severe injury to the lower part of her back.

Claimant continued to work until June 23, 1949. On June 24, 1949 claimant entered Our Saviour’s Hospital at Jacksonville, Illinois, where she was attended by Dr. H. Y. Norris. X-Rays were taken, but these were negative for any bone injury. Dr. Norris diagnosed the injury as a severe lower back sprain with a possible intervertebral disc injury, but claimant refused to have said tests made, and, therefore, there is no proof of any injury to a vertebra. Claimant was hospitalized from June 24, 1949 to August 5, 1949. After leaving the hospital, she stayed in the Herman Koeller home for three weeks in Springfield, and then with her sister in Jacksonville until February 1, 1950, at which date she returned to work with the State of Illinois, but not with - the Department of Registration and Education. Dr. Nor-. ris testified “that the disc was located between the vertebra, between the vertebral bodies. It might be compared to sort of a sponge rubber cushion with semi-liquid center, which, when ruptured, pushes the shoulder backward, and sometimes causes pressure on the nerves which makes the exit from the spine canal in this area, which is responsible, in cases in which it is present, for radiation of pain down the nerves to the leg. ’ ’ The State of Illinois paid the hospital bill in the amount of $433.50, and the bill of Dr. Norris in the amount of $76.85.

The record consists of the complaint, departmental report, amended complaint, transcript of evidence taken on May 24, 1950, claimant’s Exhibits Nos. 1 to 3, inclusive, motion of claimant to introduce additional testimony, order of Chief Justice of this Court granting motion of claimant, transcript of evidence taken on August 1, 1950, transcript of evidence taken on August 17, 1950, abstract of record, and statement, brief and argument of claimant.

At the time of the accident, which resulted in claimant’s injury, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State. Although a question was raised by respondent as to notice of the injury, we find that the Department had very definite notice of the accident, and claim for compensation was made within the time provided by the Act. The accident arose out of and in the course of claimant’s employment.

Claimant’s earnings in the year preceding the injury were approximately $2,400.00. The claimant had no children under 18 years of age dependent upon her for support at the time of the accident. The claimant was paid for the period of June 24, 1949 to July 15, 1949 in the amount of $136.50.

In view of the fact that claimant has failed to take the test that Dr. Norris recommended, there is no positive proof of an injury to the back that would warrant the payment of compensation. In the event proof was made, claimant would still have to prove the differential in earnings before and after the accident under Section 8 (d) of the Workmen’s Compensation Act.

The record shows, however, that there is proof that the injury to the back has resulted in impaired use of the left leg. She states that the leg was numb a considerable part of the time, and that she was unable to handle it properly, and that on occasions had great difficulty in walking and standing. This is also verified by the report of Dr. Norris. After reviewing the record, and from the observations of the movements of claimant by Henry S. Wise, Commissioner of this Court, we are of the opinion that claimant has a 25 per cent loss of use of her left leg. Claimant’s compensation rate is the maximum of $15.00 per week. Since the injury occurred subsequent to July 1, 1947, this must be increased 30 per cent, making a compensation rate of $19.50 per week.

The claimant, Hazel Flowers, is entitled to an award of 47% weeks for a 25 per cent partial permanent loss of use of her left leg. The evidence further discloses that claimant sustained temporary total disability for 315/7 weeks from June 24, 1949 to February 1, 1950, making a total sum due of $1,544.70. Claimant was paid the sum of $136.50 for the period of June. 24, 1949 to July 15, 1949, for unproductive time, leaving a net award of $1,408.20.

An award is, therefore, entered in favor of claimant, Hazel Flowers, in the sum of $1,408.20, all of which has accrued and is payable forthwith.

Dr. H. V. Norris has submitted an additional statement, which is unpaid, in the amount of $61.15 for his professional services rendered to claimant, for which he is entitled to payment.

An award is, therefore, hereby entered in favor of Dr. H, V. Norris in the amount of $61.15, payable forthwith.

The record discloses that Harry L. Livingstone has filed a bill amounting to the sum of $131.50, and Hugo Antonacci has filed two bills, one for $22.00 and the other for $24.00, making a total of $46.00 due Mr. Antonacci for the taking and transcribing of the evidence at the several hearings in this cause. We find these charges are fair, reasonable and just, and should be allowed.

An award is hereby entered in favor of Harry L. Livingstone in the sum of $131.50, and an award is hereby entered in favor of Hugo Antonacci in the sum of $46.00, all payable forthwith.

These awards are 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. 4317
    Orval Mounce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 10, 1951.
    Max G. Gulo and William D. Johnson, Attorneys for Claimant.
    . Ivan A. Elliott, Attorney General; William H. Sumptee, Assistant Attorney General, for Eespondent.
   Lansden, J.

Claimant, Orval Mounce, seeks to recover damages to his person and property from respondent for its alleged negligence in allowing a patch of ice to accumulate on one of the State Highways under its jurisdiction, as a result of which the accident out of which this case arises was caused.

On December 25, 1949, at approximately one o’clock A.M., claimant was driving'his car in an easterly direction on Illinois State Route No. 17 in Livingston County at a point approximately four miles southeast of Streator, Illinois, and approached the bridge over the Vermilion River in the south lane, when his car skidded on ice in said lane and crashed into the bridge with the subsequent damages.

The evidence in this case discloses that claimant lived a short distance east of the scene of the accident, and that he traveled over this road several times a day; that on the afternoon of December 24, 1949, at approximately one or two o’clock P.M. he traveled across the scene of the accident, at which time there was ice on the highway, although it was melting; that at approximately eleven o’clock P.M. he traveled from his home to Streator, and at that time the south half of the highway was covered with ice, and that claimant knew it was freezing. It was while he was returning from this second trip that the accident occurred at approximately, one o’clock A.M. on the morning of December 25, 1949.

Claimant testified that he was driving forty to fifty miles per hour; that he had passed a car some distance west of the scene, of the accident, and that at the time of the accident there was no car approaching from the east, and that he had his lights on dim. His neighbor, Ralph Goddard, testified that the road was clear early in the afternoon, but that at approximately 11:30 P:M. on December 24th the road was covered with ice.

No matter what we might conclude as to the negligence of respondent in knowingly permitting the icy condition in the south lane of said highway to accumulate and remain unmarked and uncindered, we feel compelled to hold that claimant was himself guilty oi con- , tributory negligence. He is, therefore, not entitled to a recovery.

In Duffie v. State, No. 4159, and Hukill v. State, 4160, consolidated opinion filed October 10, 1949, we held that the claimants therein were guilty of contributory negligence in approaching a known place of danger, to-wit: an extended gap in the concrete highway pavement, without care commensurate with such known danger, and we said:

“It has long been the rule in this State that it is the duty of persons about to cross a dangerous place to approach it with care commensurate with the known danger, and when one on a public highway fails to use ordinary precaution while driving over a dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence. Dee v. City of Peru, 343 Ill. 36, 41.

What we said in the Duffie and Eukill opinion applies to this case, and, following such opinion, we must deny an award.

Award to claimant denied.