text:
    (No. 3294
    Mellissa Lacefield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant filed her claim Pro Se on July 5, 1938 as the mother of Herbert M. Lacefield, and thereby seeks payment of a soldier’s bonus to which the latter was entitled as a soldier from the State of Illinois in the World War. The Attorney General has filed a motion to dismiss the claim, contending that the court has no jurisdiction for the reason that the complaint shows upon its face that more than five years have elapsed between the time claimant’s right first accrued and the date of filing such complaint. A report filed herein by the Adjutant General of Illinois discloses that Herbert M. Lacefield applied for an Illinois soldier’s bonus on February 19, 1923; that the application was approved and Warrant No. 355,800 was issued to him in the sum of One Hundred Thirty-five ($135.00) Dollars. Between the time the application was filed and the time the Warrant was issued, i. e. on June 9, 1923, Herbert M. Lacefield died, leaving a widow but no children. His widow remarried in September, 1923. Payment on the Warrant was stopped and same was returned to the State Treasurer and was cancelled. Claimant herein as the mother of the deceased soldier, represents herself as the beneficiary entitled to receive the bonus that is payable by virtue of her son’s military service.

Section 2, House Bill No. 127 (the original bonus Act, approved May 3, 1921) states the beneficiaries of such act to be “the husband or wife (if not remarried), child or children, mother, father, brother or sister in the order named.”

The Adjutant General’s report states that the mother appears to be the proper beneficiary.

In 1927 the législature passed another Act entitled, “An Act Terminating the Service Recognition Board and Making-Provision for Certain Claims for Compensation.” Section 3 of the 1927 Act is as follows:

“In all cases where claims for compensation have been heretofore or are hereafter allowed by the service recognition board but payment of compensation has not been made either because the claimant or his heirs have not been found, or any other reason, it is the duty of the Adjutant General, as soon as satisfactory proof is furnished to him, locating or identifying the claimant or his heirs or as soon as the disability preventing payment is removed, to certify such fact to the State Treasurer, who shall make payment from the soldier’s compensation fund, in the sum allowed by the service recognition board to the person entitled thereto.”

The 1927 Act of the Legislature seems broad enough to avoid the' limitation of one year fixed by the 1925 statute which required applications to be made within one year from the date that such Act became effective, which was July 1, 1925.

Cases similar to the present one have previously been considered by the court. (Orilla Lorraine Thomas vs. State, 8 C. C. R. 211. Catherine Knarr vs. State, 8 C. C. R. 565.) This case like the others thus considered is a meritorious one, and unless barred by the statute of limitation, should be paid. We have heretofore construed the wording of the 1927 Act to mean that the statute of limitations would not begin to run until “satisfactory proof of heirship or dependency” is, furnished to the Adjutant General. The 1927 Bonus Act was passed later than the Court of Claims Act, and if there is any conflict in regard to the right of claimant in point of time to file her claim, the later Act should prevail. Such Act carried an appropriation for the payment of claims arising by virtue thereof. Such appropriation, made in the 1927 Act lapsed in 1929. House Bill No. 474, approved June 14, 1929, appropriated the balance of this fund ($101,804.00) to the Department of Public Welfare for the relief of indigent women and children of deceased World War veterans. The Adjutant General ’s office has certified that satisfactory proof has been furnished to him identifying claimant as the one to whom compensation is payable, but there is no existing appropriation out of which such bonus payment can be made. We find that claimant is properly entitled to receive such compensation as was contemplated in the passage of the Act by the legislature, and an award is therefore hereby allowed in favor of claimant in the sum of One Hundred Thirty-five ($135.00) Dollars.


source: Caselaw Access Project

author: Me. Justice Yantis

license: Public Domain

text:
    (No. 3274
    Florence Nichols, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Theodore W. Hinds, for claimant.
    Otto Keener, Attorney General; Murray P. Milne, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The complaint herein discloses that plaintiff was employed as an attendant at the Elgin State Hospital being employed under the Department of Public Welfare; that she had been assigned duties therein which were detrimental to her health and well being- though not so known to her at that time, and that although she was a strong and robust person such work was injurious to her health, and as an approximate result of such work she submitted to an operation at the Elgin State Hospital on or about December 2, 1936. The claim further recites that she was informed by the physician in charge that the operation would be for the removal of her appendix, or, if necessary, an exploratory operation; that she signed a blank unfilled operation permit form, but that without her further knowledge or consent the physician in 'charge caused the removal of claimant’s ovaries, fallopian tubes and uterus; that following such operation injections of glucose were given to her in her limbs in such a negligent manner that the latter became infected; that she was thereafter so negligently cared for the infection resulted in large and unsightly scars, weakening of the muscles of her thighs which left claimant unable to work in as competent a manner as heretofore, and prevents and deprives her of the opportunity of having a family which she was desirous of doing, for all of which she prays damages from the State of Illinois in the sum of Twenty-two Thousand Seven Hundred Thirty-five and 20/100 ($22,735.20) Dollars.

The Attorney General has filed a motion to dismiss the complaint, for the reason that same seeks an award for the alleged negligent conduct upon the part of officers, agents and employees of the State, for which the latter cannot be held to respond.

“The doctrine of respondeat superior does not apply to the State, and the latter, in the absence of a statute, is not liable to respond in damages for injuries occasioned by the negligent and wrongful conduct of its officers, agents or employees.”
Jones vs. State, 8 C. C. R. 78.
Palumbo vs. State, 8 C. C. R. 196.
Short vs. State, 9 C. C. R. 134.

The doctrine of the State’s liability is rather fully set forth in the case of Crabtree vs. State, 7 C. C. R 207, wherein the court holds:

"The jurisdiction, of the Court of Claims to make an award is limited to cases where the State would be liable in law or equity in a court of general jurisdiction if it were suable.”

The motion of the Attorney General is allowed and the claim dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3304
    R. H. Davidsmeyer, Doing Business as Illinois Road Builders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Vaught, Foreman & Cleary, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On July 1st, 1936; October 15th, 1936; and October 23d, 1936, claimant delivered to the respondent certain road oil for use on a detour on S. B. I. Route No. 104 near Franklin, Illinois, pursuant to a previous purchase order issued by the Division of Purchases and Supplies, Department of Finance, of the respondent.

It is admitted that the merchandise was delivered as ordered, and that the quality, quantities and prices were in accordance with the purchase order. Through an error on the part of a representative of the Division of Highways, the quantities shown in the complaint were not scheduled in time for payment from the 59th biennium appropriation, and it therefore became necessary for the claimant to file his claim in this court.

We have repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouekered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where, at the time of the purchase thereof, there were sufficient funds remaining unexpended in the appropriation to pay for the same. Metropolitan Electrical Supply Co. vs. State, No. 3270, decided at the present term of this court, and cases there cited.

The facts in this case bring' it within the rule above set forth, and therefore claimant is entitled to an award for the amount due it in accordance with the aforementioned purchase order, to wit, $234.27.

Award is therefore entered in favor of the claimant for the sum of Two Hundred Thirty-four Dollars and Twenty-seven Cents ($234.27).


author: Mr. Justice Tantis

text:
    (No. 3251
    W. A. Wilkinson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On December 17, 1937 plaintiff herein, according to his complaint, purchased a license for an automobile then owned by him, and paid to the Secretary of State a license fee in the sum of $10.50. He received the license plates, but on the 1st day of January the automobile for which same were' purchased was wrecked and was disposed of as junk, and claimant now seeks a refund of the amount so paid by him for the said license plates.

The Attorney General has filed a motion to dismiss on the ground that the complaint does not set out a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

Applications, of a similar nature have been frequently before the Court, and in all instances where proper objection has been interposed, the Court has held that no refund is properly allowable. There is no provision of the Motor Vehicle Act or by any other law which authorizes a return of a license fee under the facts set forth in the complaint. If the legislature intended that refunds- should be made under any set of circumstances they could have placed such provision in the statutes. Under the facts stated in the complaint plaintiff could not maintain an action against the State if the latter were suable in a court of law. The motion of the Attorney General is therefore sustained and the complaint dismissed.


text:
    (No. 3258
    Mabel B. Sale, as Administratrix of the Estate of Lloyd B. Sale, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    'Glenn, Beal & Browning, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Mabel B. Sale, as administratrix of the estate of Lloyd B. Sale, deceased, filed her complaint herein on May 7th, 1938, and alleges therein in substánce:—

That on September 22d, 1937 claimant’s intestate was driving his automobile in a southerly direction on McCormick Blvd. in .the Village of Niles Center in Cook County, Illinois; that at the same time the respondent, by one of its servants and agents, was driving its auto truck in a southerly direction on Main Street in said village, and was approaching the intersection thereof with McCormick Blvd.; that both of said streets are paved streets, and that they intersect at right angles in a suburban district of said village; that while claimant’s intestate was driving across such intersection, in the exercise of all due care and caution, the respondent, through its said agent, so carelessly and negligently drove and operated its said truck into and across such intersection, that it ran into and collided with the automobile of claimant’s intestate with great force and violence, and thereby inflicted injuries upon claimant’s intestate from which he died on the same day; that said decedent left him surviving Mabel B. Sale, his widow, and William Lloyd Sale and Laura Muriel Sale Gregory, his children, as his next of kin; that by reason of the death of claimant’s intestate, said next of kin have been deprived of their means of support; that claimant was duly appointed administratrix of the estate of said decedent by the Probate Court of Cook County, and asks for an award in the amount of $10,000.00.

The second count of the complaint is similar to the first, except that it alleges that the death of claimant’s intestate was the result of the wilful and wanton acts and conduct of the respondent through its said agent.

The Attorney General has moved to dismiss the case upon the grounds that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior.

The complaint alleges that the truck of the respondent was loaded with concrete beams, concrete beam boxes, and other road-building materials, and that the driver thereof was acting within the scope of his employment. The legitimate inference to be drawn therefrom is that the employment of claimant’s intestate was in connection with the construction or maintenance of the concrete highways of the respondent.

We have repeatedly held that the State in the construction and maintenance of its hard-surfaced highways is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the carelessness and negligence of its servants and agents, in the absence of a statute making it so liable. McGready, et al. vs. State, 9 C. C. R. 63; Royal vs. State, 9 C. C. R. 67; Tivnan vs. State, 9 C. C. R. 495; York vs. State, 9 C. C. R. 472; Crank vs. State, 9 C C. R. 379; Spurrell vs. State, No. 2228, decided September Term, 1937; Wolfe vs. State, No. 3215, decided May Term, 1938.

The liability, if any, rests upon the negligent servant or agent, and not upon the State.

The question raised by the second count of claimant’s complaint was squarely before this court in the case of Garbutt vs. State, No. 2246, in which an opinion on rehearing was filed at the September Term, 1937. In that case we held that if the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross negligence or the wanton acts of such servants and agents, in the absence of a statute making* it so liable.

The rule announced in the Garbutt case was followed in the case of Stanley vs. State, No. 2697, decided November Term, 1937; and the case of Durkiewiecz vs. State, decided September Term, 1937.

Under the law as above set forth, we have no authority to allow an award, and therefore the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Per curiam:

text:
    (No. 3092
    Roy De Vincent Cox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Per curiam:

From the stipulation of facts herein it appears:

1. That on August 16th, 1933 claimant was duly appointed court reporter by Hon. Max F. Allaben, then one of the Circuit Judges for the Sixteenth Judicial Circuit, comprising the counties of Kane, DuPage, Kendall and DeKalb.

2. That on August 10th, 1936 said Max F. Allaben died, and from that date until the present time the judicial work of the Sixteenth Judicial Circuit has been handled and carried on by the two surviving judges, to wit, Hon. William J. Fulton of Sycamore and Hon. Frank W. Shepherd of Elgin.

3. That claimant received the compensation to which he was entitled for his services as court reporter from the date of his appointment up to and including the month of August, 1936, but has not received any compensation as such court reporter since the month of August, 1936.

4. That after the death of said Judge Allaben claimant was requested by the two surviving judges of that Judicial Circuit to continue his work as court reporter, and pursuant to such request, has continued to perform the regular duties of court reporter in connection with judicial proceedings in the Circuit Court of Dupage County, and was still continuing to perform such work at the time of the filing of the complaint herein.

5. That the regular salary and compensation of court reporters under the laws of this State is $270.00 per month, and that the original claim filed by the claimant herein is to be considered as having been amended to cover the period which has accrued since the claim was originally filed and during which claimant has continued to act as such court reporter.

6. That the docket of the Circuit Court of DuPage County is a very heavy one and requires the attendance of at least one judge for practically every court day in the term, and the attendance of two judges on Friday of each week; that claimant has attended each and every session of the Circuit Court of DuPage County during all the time covered by this claim, and holds no other appointment as court reporter in any other court of this State.

7. That the official court reporter for Hon. Wm. J. Fulton is D. V. Scheffner, and the official court reporter for Hon. F. W. Shepherd is Jennie E. Little; that said D. V. Scheffner, during the entire period of time covered by this claim has also acted as official court reporter for the County Judge of Kane County, and the Probate Judge of Kane County; that Jennie E. Little during said period has also acted as official court reporter for the County Judge of DeKalb County; that the County Court of DeKalb County is also a court of probate jurisdiction; that by reason of their duties as court reporters as above set forth, neither said D. V. Scheffner nor said Jennie E. Little has attended the Circuit Court of DuPage County when in session, as court reporter for either of .the surviving judges of said 16th Judicial Circuit.

8. That it is and has been essential to the conduct of the judicial business of the Circuit Court of DuPage County, in the usual and ordinary manner, that a court reporter be in attendance at the sessions of said court, and that without the services of such reporter it was and is impossible to carry on the business of said court.

9. That claimant has during all of the time covered by his claim performed the work of court reporter at the sessions of the Circuit Court of DuPage County in a competent, dependable and skillful manner.

Respondent has filed a motion to dismiss the case for the reason that claimant’s office as court reporter terminated with the death of Judge Allaben, and for the further reason that the claimant has a complete and adequate remedy, enforceable in the ordinary courts of general jurisdiction.

In 1927 the Legislature of this State enacted a law entitled “An Act to Authorize the Judges of Circuit, Superior and City Courts to Appoint Shorthand Reporters for the Taking and Preservation of Evidence, and to Provide for their compensation.” (Ill. Rev. Stat. 1937, State Bar Assn. Ed., Chap. 37, Secs. 163a, b, c, and d.) Section 163a of such Act provides as follows: -

“That each of the several judges of the Circuit, Superior and City courts in this State, be and they are hereby authorized to appoint one official shorthand reporter, who shall be skilled in verbatim reporting, and who shall have been a bona fide resident of the State of Illinois for one year, and whose duty shall be as hereinafter specified. None of said reporters shall hold more than one of said official appointments. Such appointment shall be in writing and shall be filed in the office of the Auditor of Public Accounts, and continue in force until revoked by the Judge making said appointment. The reporter so appointed shall hold his position during the pleasure of the judge so appointing him, not, however, to extend heyond the time the judge making such appointment shall be elected for; provided, however, that in case of the absence or disability of said reporter so appointed, the Presiding Judge may appoint any other competent reporter to act in his place during such absence or disability, which said substitute shall be paid by said official reporter for his said services.”

Prior to 1934, the construction of such statutory provisions, as applied to facts similar to those involved in this case, had never come before our Supreme Court.

In the case of Shell vs. State, 8 C. C. R. 235 (decided November 13,1934), upon the authority of The People Ex Rel, etc. vs. Kelley, 134 Ill. App. 642, we held that a court reporter’s term of office did not expire upon the death of the judge appointing him, and that such reporter continued in his office until the time of the appointment of another court reporter by the successor to the deceased judge.

Since the filing of such decision, the question as to the proper construction of the aforementioned statutory provisions has come before our Supreme Court in the case of People vs. Barrett, 365 Ill. 73. In that case plaintiff had been appointed court reporter by Judge Craig Van Meter, formerly a Judge of the Circuit Court of the Fifth Circuit. Judge Van Meter presented his resignation to the Governor in December, 1935, and same was duly accepted. On January 1st, 1936 Judge Van Meter ceased to act as Circuit Judge. Although the plaintiff performed no duties as court reporter since January 1st, 1936, she held herself ready to do so, but was refused a salary warrant by the State Auditor on the ground that the resignation of Judge Van Meter terminated her right to hold the office of court reporter. Thereupon she instituted a mandamus proceeding against the State Auditor to compel the issuance of a warrant for the amount which she claimed to be due her.

The case was quite exhaustively considered by the court, and it was there held that the resignation of Judge Van Meter and the acceptance of such resignation by the Governor, terminated his office, and that the termination of the office of the Judge also terminated the tenure of his court reporter. In its consideration of the case, the court said:

“The statute cannot be construed without noticing that each and every judge of the Circuit and Superior courts has his personal court reporter. If it should be held that when a judge resigns his court reporter continues in office, it would be with nothing to do except to draw the salary, because any other judge called in to do the work of the court would have his own duly appointed court reporter to work for him and with him and he might not wish to work with some other reporter. * * * We take it that the Act means that the appointment is absolutely under the control of the judge making it, and that in order to hold the office a court reporter must be sustained by the continuing will and pleasure of “the judge so appointing him.” Without the continuance of that will and pleasure the office necessarily fails. There can be no court reporter for a judge if there is no judge to require such a reporter.”

There is no distinction in principle between the present case and the Barrett case, and we are bound by the law as there laid down.

Under the law as declared by our Supreme Court, the court reporters originally appointed by the surviving judges of the Circuit were their personal reporters, and when such surviving judges held court in DuPage County, their own court reporters should have been in attendance. The fact that they might have been busy in other courts would make no difference whatsoever, as the statute specifically provides that “in case of the absence or disability of said reporter so appointed, the presiding judge may appoint any other competent reporter to act in his place during such absence or disability, which said substitute shall be paid by said official reporter for his said services.”

Claimant also contends that if he has no right to recover under the statute relating to court reporters, this court has a right to allow an award under the provisions of the Court of Claims Act which gives it the authority to hear and determine “all claims * * * legal and equitable * * * which the State as a sovereign commonwealth should in equity and good conscience discharge and pay.”

The right of this court to allow an award in any case solely on the grounds of “equity and good conscience,” was before this court in the case of Crabtree vs. State, 7 C. C. R. 207, and after a full consideration of the subject, we there held as follows:

We conclude, therefore, that Section four (4) of paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay”; merely defined the' jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

Under the decision in the Barrett case, the claimant has no legal right to an award, and therefore, under the law as laid down in the Crabtree case, he cannot invoke the principles of equity and good conscience to secure such award.

The law as laid down in the Crabtree case has been followed consistently by this court, and has been approved in many cases decided since that time. Crank vs. State, 9 C. C. R. 379; Titone vs. State, 9 C. C. R. 389; Stanley vs. State, No. 2697, decided in 1937; Garbutt vs. State, No. 2246, decided in 1937; King vs. State, No. 2295, decided in 1937.

Claimant also contends that if he is not entitled to recover by virtue of any statute of this State, nevertheless the Circuit Court, as a court of general jurisdiction, has inherent power to appoint the necessary attendants and assistants, and if no provision is made by statute for their compensation, they are entitled to the reasonable value of their services.

Whatever may be the law in the absence of a statute providing for the appointment of court reporters, it cannot be seriously contended that where the Legislature has specifically authorized the appointment of court reporters in a certain manner, that the Circuit Court or any of the judges thereof, have any inherent power to appoint in a manner contrary to the legislative authority. To hold in accordance with claimant’s contention would be to nullify the legislative enactment.

In view of the conclusions we have reached in this matter, it is unnecessary to consider the other points raised by the Attorney General.

For the reasons above set forth, the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2912
    Louis C. Chiara, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

    Joseph W. Koucky, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On July 20th, 1935, and for some time prior thereto-, the claimant was employed by respondent as an attendant at Chicago State Hospital, Chicago, Illinois. On the last mentioned date, while on night duty and while waking one of the patients, about 5:45 A. M., claimant was assaulted by such patient, who grabbed him by the neck and threw him lengthwise across the rail of the bed in such manner that his head and shoulders were on the bed, his back was across the rail, and his feet were off the floor. The patient then dragged claimant on the floor, got on top of him, broke his glasses, and started to scratch his face before he could be removed.

Claimant reported the accident to his supervisor, but continued with his work and completed his work for the night at 6:30 A. M. He reported for work again that night, and continued to perform his duties regularly until October 22d, although he claims that he had pain all the time. About four weeks after the accident, the pain got so bad that he consulted Dr. Booney, one of the doctors at the institution, who- treated him therefor. There was no improvement in his condition and on October 22d, 1935 he was placed in the institution hospital where he continued to be treated by Dr. Booney and by Dr. Meany, both of the institution, until November 15th, 1935. He then felt that his condition was not improving-, and, after asking* if he could get a release and go to another hospital, went to see Dr. Levinthal at Michael Beese Hospital. He remained at Michael Beese Hospital ten days and was then taken home. While at Michael Beese Hospital he was placed in a cast, and remained in such cast for eight weeks. He was off duty from October 22d, 1935 to January 14th, 1936, when he returned to his regular work as an attendant. Since January 14th, 1936 he has worked regularly as an attendant, although he claims he still has pains through the small of his back and down both legs, and was still taking treatment at the time he testified on July 23d, 1936. Since January 14th, 1936 he has received his regular salary, but for the period from October 22d, 1935 to January 14th, 1936 he received only two weeks’ wages.

The medical testimony consists of the testimony of Dr. N. H. Adams who was called on behalf of the claimant, and Dr. George E. Rooney, one of the regular physicians at Chicago State Hospital, who was called on behalf of respondent.

It appears that the claimant suffered from an involvement of the sciatic nerve some years prior to the time of the accident in question, but he claims that'he had entirely recovered therefrom, and Dr. Rooney stated that he had seen claimant many times before the accident, walking* about the grounds in normal fashion. Both doctors agree that there is a stiffness of the lower part of the back, and a limitation of motion in both legs, and from all of the testimony in the record, we are of the opinion that the injuries claimant received on July 20th, 1935 either caused a neuritis of the sciatic nerve, or lighted up the pre-existing sciatic condition, and produced the condition of which he now complains.

The evidence sufficiently shows that the respondent, in the conduct and management of Chicago State Hospital, is engaged in a hazardous occupation, within the meaning of those words as used in Section Three (3) of the Workmen’s Compensation Act of this State, and it is not seriously contended that claimant and respondent were not operating-under the Act at the time of the accident in question.

The evidence also shows that notice of the accident was given and claim for compensation made within the time required by the Act.

Claimant was thirty-three (33) years of age at the time of the accident and had two (2) children under the age of sixteen (16) years. His wages were Fifty Dollars ($50.00) per month, plus maintenance estimated at Twenty-four Dollars ($24.00).

The respondent contends:

1. That the claimant failed to prove by competent evidence that there were or had been objective symptoms or conditions not within the physical or mental control of the employee himself, and that therefore, under the provisions of Section 8, paragraph i-3 of the Compensation Act, claimant is not entitled to compensation:

Said Section 8, paragraph i-3 reads as follows:

“Provided, further, that all compensation, payments named and provided for in paragraphs (b), (c), (d), (e) and (f) of this section, shall mean and be defined to be for injuries and only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.”

Respondent seems to take the position that objective symptoms include only those which can be seen, or ascertained by touch. The same contention was made in the case of Van Vleet vs. N. Y. Public Service Co., 111 Neb. 51; 195 N. W. 456. In that case, in considering such question, the court said:

“Defendant’s idea is that by objective symptoms are meant symptoms of an injury which can be seen or ascertained by touch. We are of the opinion that the expression has a wider meaning, and that symptoms of pain, and anguish, such as weakness, pallor, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by the statute.”

This question was considered by our Supreme Court in the case of Powers Storage Co. vs. Ind. Com., 340 Ill. 498. In that case the court, on page 509, said:

“It is true that the injury was to the brain and the injury was not shown by an examination of the brain, but such an injury has a characteristic result, which was present in this case. This result was an objective symptom proving the injury. The second point under this head is that the symptoms shown by Ballauer were within his physical or mental control. This contention is based upon the fact that the motor function of the left side, and not the sensory functions, were affected, and it is contended that the appearance of paralysis could be stimulated. The paralysis in this case extended to the entire side, including the face, and is an objective symptom, though it might be possible for an exceptional individual to stimulate. There is no evidence in this case that it may be simulated or that tends to show simulation by the defendant in error.”

The opinion of the court in the last mentioned case was approved in the case of Plano Foundry Co. vs. Ind. Com., 356 Ill. 186.

In this connection it must be borne in mind that the respondent’s witness, Dr. Rooney, was the treating physician; that therefore he was competent to testify as to the statements made to him by the claimant during treatment relating to his disability; that Dr. Rooney testified, among other things, as follows: that prior to the accident in question he had seen claimant many a time, walking around the grounds in normal fashion; that claimant is now partially disabled, and his condition is permanent; that the first time he examined claimant, the latter “had an inability of complete extending the leg” and “complained of .severe pain when I went over the muscles and sciatic nerve on the right”; that claimant was then suffering terrific pain; that he was then unable to walk at all, and had to be carried; that there has been considerable improvement in claimant’s condition, otherwise he would not be able to walk at all; that if claimant had a predisposition to sciatic involvement, it would be very easy for such condition to flare up as the result of the fall he sustained; and that in his opinion, claimant was not malingering.

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

From a consideration of all of the evidence in the record, we are of the opinion that the results to the claimant were characteristic of the injury, and constituted objective symptoms proving such injury, and that therefore this contention of the respondent is untenable.

2. The respondent also contends that if claimant is entitled to an award, he is not entitled to any compensation for temporary total disability.

Claimant was injured on July 20th, 1935 and continued to work regularly thereafter until October 22d, 1935. In considering the question of what constitutes temporary total incapacity, our Supreme Court, in the ease of Mt. Olive Coal Co. vs. Ind. Com., 295 Ill. 429, said:

“The period of temporary total incapacity is that temporary period immediately after the accident during which the injured employee is totally incapacitated for work by reason of the illness attending the injury. It might be described as the period of the healing process. Temporary as distinguished from permanent disability is a condition that exists until 'the injured workman is as far restored as the permanent character of the injuries will permit.”

The holding of the court in the last mentioned case has been approved in numerous cases since that time. Stromberg vs. Ind. Com., 305 Ill. 619; Consolidated Coal Co. etc. vs. Ind. Com., 311 Ill. 61; Guest Coal Co. vs. Ind. Com., 324 Ill. 268; Western Cartridge Co. vs. Ind. Com., 357 Ill. 29.

In the last mentioned case the Industrial Commission found that the employee had been temporarily totally disabled for a period of seven weeks, and that he then returned to work for a period of six weeks, at which time he again became temporarily incapacitated for work, and that such incapacity lasted for 54-2/7 weeks, and thereupon entered an award for 61-2/7 weeks temporary incapacity. The Circuit Court approved the finding* of the Industrial Commission in this respect, but the Supreme Court held that the Circuit Court was in error, and held that if the employee had any disability after his return to work, it must be classified either as partial or total permanent disability and not as temporary.

Under the holdings of our Supreme Court in the cases above cited, we are of the opinion that the claimant in this case is not entitled to compensation for temporary total incapacity.

3. In his complaint the claimant sets forth that he sustained injuries to his spine and right leg*, and the respondent takes the position that he is not entitled to recover for any disability which he may have sustained to his left leg, on account of the fact that no claim was made therefor in the complaint.

A similar question was raised in the case of Consolidated Coal Co. vs. Ind. Com., 322 Ill. 510, and in disposing of the same, the court, on page 517, said:

“An application for the adjustment of a claim for compensation is in the nature of a pleading and should be consistent with the findings of the commission in making the award. * * * It is not, however, a formal pleading and need not state all the elements of a cause of action, as is required in a declaration in an action at law. The application is sufficient if it states the nature' of the accident and the character of the injury to such an extent that it fairly advises the employer of the nature of the claim and enables him to ascertain the facts and to prepare his defense. * * * The application was sufficient to allow the introduction of evidence showing the actual disability caused by the accident and to sustain an award to the extent justified by the evidence.”

The contention of the respondent in this behalf is not well taken.

4. Respondent objects to the item of $200.00 which claimant seeks to recover as the reasonable value of medical and hospital services rendered to him.

Section 8, paragraph A of the Workmen’s Compensation Act provides that “the employer shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury. The employee may elect to secure Ms own physician, surgeon and hospital services at his own expense.”

The record as to the medical and hospital services furnished to claimant, other than the services furnished by respondent, is very unsatisfactory.

The State furnished all medical and hospital services from October 22d to November 15th, 1935, and on the last mentioned date, claimant went to Michael Beese Hospital and placed himself under the care of Dr. Levinthal. The only testimony in the record as to why claimant went to another hospital and secured another physician, is the following:

A) In his direct examination claimant stated (page 4):

“After Sy2 weeks they couldn’t do anything for me so I asked Dr. Rooney if I could get release and go to another hospital. I went to Michael Reese Hospital.”

B) Dr. Booney in his direct examination (page 4) said:

“He (claimant) showed little or no improvement while he was here, and for that reason was a little upset and he left to seek his own family physician, Dr. Levinthal.”

There is nothing in the record to indicate what reply, if any, Dr. Booney made to claimant’s inquiry above set forth, nor is there anything to indicate that he was not receiving proper treatment. So far as the record discloses, the State was willing and able at all times to furnish the necessary medical and hospital services. There is nothing to indicate that the claimant was authorized by any duly authorized officer or agent of the respondent to go to another hospital, or to obtain other medical services at the expense of the State.

Considering all of the evidence in the record, we feel that the selection of Dr. Levinthal and Michael Beese Hospital was made by claimant upon his own responsibility, and without any authority on the part of the respondent, and inasmuch as claimant elected to secure such services without authority from the respondent, he must be held to have done so at his own - expense.

The testimony of the medical witnesses both for the claimant and for the respondent shows that the claimant has a permanent disability of both legs and that the same resulted either directly from the injury he sustained on July 20th, 1935, or indirectly as a result of the aggravation of a preexisting condition which was latent at the time of such injury. Dr. Rooney’s last examination of the claimant was at the time of the hearing on November 1st, 1937. His conclusions at that time were substantially as follows:

Eight leg: Limitation of abduction, 50 to 55%. Limitation of flexion, 25%; — or 40% loss of the use of the whole leg.
Left leg: Limitation of flexion, 15%; or 10 to 15% loss of the use of the whole leg.

Upon consideration of all of the evidence, we find that the claimant sustained a permanent loss of 33-1/3% of the use of the right leg*, and a permanent loss of 10% of the use of the left leg, and under the provisions, of Section 8-e-15 of the Compensation Act, is entitled to compensation for 82-1/3 weeks at $12.00 per week, to wit, Nine Hundred Eighty-eight Dollars ($988.00), all of which compensation has accrued at the present time.

Award is therefore entered in favor of the claimant for the sum of Nine Hundred Eighty-eight Dollars ($988.00).

This award being* subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof”, approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the general fund in the manner provided for in such Act.


text:
    (No. 3246
    James B. Simpson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

    Clys Pyle, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The above matter comes before the court on a motion by respondent to dismiss the complaint. Application is made for compensation under the terms of the Workmen’s Compensation Act of Illinois, and it appears that the injury in question was sustained on October 30, 1936 and the complaint was not filed until April 22,1938. The Attorney General contends that as the claim for compensation was not filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the court is without jurisdiction and the claim should be dismissed.

It appears that claimant was engaged as a laborer in the construction of S. B. I. Route No. 139 and while in the performance of his duties, on the 30th day of October, 1936, was struck by a State truck and suffered injury to his right leg; that he was removed to the hospital at Carmi where he received treatment until November 18, 1936. He received further medical attention until December 26, 1936, at which time he was discharged by the attending physician, Dr. Frank C. Sibley, of Carmi, who reported, “I have finished this case; no more treatments necessary.” Claimant received temporary compensation of Seven and 50/100 ($7.50) Dollars per week for a period of six (6) weeks, i. e. from October 31, 1936 to December 11, 1936.

We have repeatedly held, in accordance with the decision of our Supreme Court that,

“An application for compensation within the time required by the Act is jurisdictional.”
Gettinger vs. State, 8 C. C. R. 1;
Thompson vs. State, 9 C. C. R 97;
Lewis vs. Ind. Comm., 357 Ill., 309.

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

Among the rules prescribed by the Workmen’s Compensation Act are the provisions of Section 24 which provides :

“No proceedings for compensation shall be maintained unless,

1. Notice of the accident is given as soon as practicable and not later than thirty days (fifteen in case of hernia).
2. Unless claim for compensation is made within six months after the accident. •
3. Unless application for compensation is filed with the Industrial Commission within one year after the date of injury or within one year after date' of last payment of compensation.”

Counsel for claimant comments- forcibly against the Attorney General resisting’ the claim at bar — not on its merits but upon the technicality of the law. Neither the Attorney General nor this court can enlarge the jurisdictional rights conferred upon this court by the legislature which established it. We must determine claims for accidental injuries in accordance with the rules prescribed in the Workmen’s Compensation Act, and as that Act provides that application for compensation must be filed within one year, etc., no award could be allowed to claimant herein. If the merits of his claim would have entitled him to an award, it is unfortunate that his claim was not presented within a limitation of time that would have permitted this court to grant an award.

The motion of the Attorney General is allowed and the claim is dismissed.


author: Mr. Chief Justice Hollbrich

text:
    (No. 3269
    Silver Fleet Motor Express, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

    Claimant, pro se.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

On November 1st, 1937 the claimant, Silver Fleet Motor Express, Inc., of Louisville, Kentucky, obtained a certificate of authority to transact business in the State of Illinois, and a license as a distributor of motor fuel under the provisions of the Motor Fuel Tax Law of this State (Ill. Rev. Stat. 1937, Bar Assn. Ed., Ch. 120, pars. 417-434).

Claimant operated under such license until March 31st, 1938, at which time it ceased to do business within this State in such a manner as to require it to hold a motor fuel distributor’s license, and such license was therefore cancelled.

The Motor Fuel Tax Law imposes a privilege tax on the operation of motor vehicles upon the public highways of this State at the rate of three cents (3c) per gallon on all motor fuel used in such vehicles upon such public highways. Such law also provides that no person shall act as a distributor of motor fuel without first securing a license from the Department of Finance. Applicants for such licenses are required to furnish a bond, and under the provisions of the Act are required to make a monthly return to the Department of Finance, showing an itemized statement of the number of invoiced gallons of motor fuel purchased, acquired or received; the amount sold, distributed and used; the amount lost or destroyed; and the amount on hand at the close of business for such month, etc.

Such Act further requires each distributor to collect from the purchaser at the time of such sale, three cents per gallon on all motor fuel sold, and at the time of making his return, the distributor is required to pay to the Department the amount so collected, less the actual cost of making the collection and payment, not to exceed two per cent of the amount so collected.

The claimant submitted its returns regularly as required by the Motor Fuel Tax Law, and paid the amount required to be paid in accordance with such several returns.

Claimant’s return for the month of December, 1937, indicated that it had on hand an actual inventory at the end of such month in the amount of 138 gallons. Its return for the month of January, 1938, indicated an actual inventory at the beginning of such month in the amount of 7,057 gallons. It is apparent that there was an error in either one of such returns, as the inventory on hand at the end. of December and the inventory on hand at the beginning of the next succeeding month should have been the same.

An investigation and audit conducted by the Motor Fuel Tax Division of the Department of Finance indicates that the inventory reported at the beginning of the month of January, 1938, was erroneous, and that such inventory should have been 138 gallons instead of 7,057 gallons. Inasmuch as claimant made payment on the basis of 7,057 gallons, there was an over-payment at the rate of three cents per gallon on 6,919 gallons. A further audit of the account of such distributor indicated an excessive deduction in the amount of 95 gallons over and over and above that allowed for temperature variations. Substracting this excessive deduction from the aforementioned 7,057 gallons, leaves a net amount of overstated gallonage of 6,824, on which payment of motor fuel tax was made at the rate of three cents per gallon, to wit, $202.72, which last amount claimant seeks to recover in this proceeding.

The purpose of the Motor Fuel Tax Law as set forth in Section 17 of the Act (par. 433) is “to impose a tax upon the privilege of operating each motor vehicle upon the public highways of this State, such tax to be based upon the consumption of motor fuel in such motor vehicle, ’ ’ etc.

The tax is a privilege tax imposed upon the privilege of operating motor vehicles upon the public highways of this State; and is based upon the amount of motor fuel consumed in each motor vehicle. The tax is paid, in the last analysis, by the ultimate purchaser (sec. 6, par. 422) but is collected in the first instance by the distributor, who is required to pay over to the State all moneys so collected by it.

The money which is collected by the distributor, and paid by it to the State, is not the proceeds of a tax assessed against such distributor, but of a tax which is ultimately paid by the consumer, but which, in the first instance, is advanced by and collected from the dealer by the distributor, and which the dealer in turn passes on to the consumer. The collection of the tax is made through the instrumentality of the distributor, who acts as the agent of the State in that behalf. People vs. Kopman, 358 Ill. 497.

As between the claimant and the respondent, the payment made by the claimant pursuant to the several reports submitted by it, was not the payment of a tax, but was a payment made by an agent to its principal, in fulfillment of certain duties imposed upon it by law.

This case, therefore, is essentially different on the facts, from the cases which involve the voluntary payment of an illegal or excessive tax.

The law with reference to payments made under a mistake of fact is set forth in 21 E. 0. L. 164, sec. 191, as follows:

“Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payer that the fact was otherwise, it may be recovered. The ground on which the rule rests is that money, paid through misapprehension of facts, in equity and good conscience belongs to the person who paid it. Municipal corporations as well as individuals are subject to this rule. An error of fact is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.”

To the same effect see 48 Corpus Juris 759, sec. 318, and annotation in 87 A. L. R. 649; also Stempel vs. Thomas, 89 Ill. 146; Wolf vs. Beaird, 123 Ill. 585; Blomstrom vs. Dux, 175 Ill. 435-439; Jenson vs. Muting, 256 Ill. App. 514.

The payment made by the claimant in this case clearly was made under a mistake of fact, that is to say, a mistake as to the amount collected by it from the dealers to whom it made sales, and therefore, under the law as above set forth, claimant is entitled to the return of the amount so overpaid by it.

Award is therefore entered in favor of the claimant for the sum of Two Hundred Two Dollars and Seventy-two Cents ($202.72).


author: Mb. Justice Yantis

text:
    (No. 2668
    Charles J. Weidner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

    J. S. Cook, for claimant.

      Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Charles J. Weidner was an employee of the State Highway Department, and on February 2, 1935, while helping repair the highway on U. S. Route No. 6 near Morris, Illinois, he stepped from a truck to the tongue of a tar kettle wagon, slipped and fell about three feet, striking his back upon the pavement. On May 10, 1935 he filed his complaint herein, seeking an award of Four Thousand Eight Hundred ($4,800.00) Dollars and a pension for life as a result of the injuries which he alleged he had sustained.

The medical report of Dr. Gordon M. Perisho under date of April 19, 1935 discloses the nature of the injury to be cerebral contusion, contusion of the right elbow, compression fracture of the third lumbar vertebrae and a sacro-illiac sprain. After being taken to the hospital he was placed in a plaster body cast for six weeks and this was followed by a Taylor spine brace for seven weeks longer. He was in the hospital four days, then remained in his home for one week ; was returned to the hospital for Laboratory tests and X-ray examinations.

The claim is before the court on the original complaint, a report by the Division of Highways, dated June 24, 1935 consisting of accident report, doctors ’ reports and correspondence, a supplemental highway report of July 21, 1936 accompanied by a medical report by Dr. Thomas, Orthopedic Surgeon of Chicago, also the transcript of testimony of the several witnesses and the Statements, Briefs and Arguments of the respective parties.

The record establishes that claimant was an employee of respondent and that both the latter and the claimant were operating under the terms of the Workmen’s Compensation Act of Illinois at the time of said accident. Further, that the accident in question arose out of and in the course of claimant’s employment. The application for compensation was filed herein within four months after the accident occurred, and the claim is properly before the court for consideration. The report of the Division of Highways shows that claimant commenced work for respondent December 1,1934 and worked sixteen days in December, sixteen days in January, 1935, and two days in February, being paid at the rate of Forty (40) Cents per hour for an eight hour day. He was a maintenance helper. Such employment is not continuous throughout the year but is governed by that provision of statute which provides for a minimum number of working days of two hundred (200) in determining average annual wages.

Claimant contends that because he occasionally drove the truck from which he stepped at the time of his accident, his compensation should be determined under a Union scale for truck drivers at from Seventy-five (75) Cents to One ($1.00) Dollar per hour. The record discloses no merit to this contention. He was hired as a maintenance helper and drew wages as a maintenance helper. His wages amounted to Three and 20/100 ($3.20) Dollars per day. His annual wages were Six Hundred Forty ($640.00) Dollars or an average of Twelve and 31/100 ($12.31) Dollars per week. Under the provision of Section 8 (J) 2 of the Workmen’s Compensation Act the amount of any temporary total disability allowable to claimant would be increased from the miuirrmm of Seven and 50/100 ($7.50) Dollars to a minimum of Twelve ($12.00) Dollars per week by reason of there being two children under the age of sixteen (16) years dependent upon him at the time of such accident.

There is some conflict as to when the claimant was able to go back to work and as to when his temporary total disability ceased. Dr. John Mitchell, under whose care claimant was for the greater portion of the treatments received by him, testified that in his opinion claimant was able to work from approximately September 1, 1935. On Page D-l of the record claimant testified that the first work he did was on November 1,1936, when he worked for one month for O’Brien and Morris, Contractors at Four ($4.00) Dollars per day. Later in his testimony (Page D-4) he stated that he had done no work prior to June 5, 1936 except driving his truck a few times for short distances.

Dr. Mitchell, an Orthopedic Surgeon, of Joliet, Illinois, testified that he first saw claimant on May 25, 1935. At that time he was complaining of a pain in the lower side and between his shoulders. There was some pain and pressure between the third and seventh Dorsal vertebrae but no pain to pressure in the Lumbar region. The X-rays that were taken of him showed Hypertrophic Arthritis. There was a limitation of motion in the forward bending which the doctor thought was due to a stiffness in his spine from non-use. The doctor was unable to state whether there had been a fracture or merely a spur from such arthritis; that there was no way to distinguish between the two because of the time that had elapsed between the time of the injury and the examination. Such arthritis, the doctor testified, is that type which produces an overgrowth of bone and not a destruction of bone. After massage treatments the patient had greater motion in the spine but there still remains some stiffness in the lumbar region; that he finished his treatment with the patient on July 30th, 1935, and believed he should have been able to go back to work within a month after that time. The doctor had no record of any injuries to claimant’s right elbow, and the major portion of the complaint was as to pain between patient’s shoulders. There was no complaint to Dr. Mitchell in regard to the sacro-illiac sections. The doctor further testified that the patient had no apparent pain when he left and complained only of stiffness in his back. From his treatment and examination the doctor testified that in his opinion the arthritis existed prior to the injury.

Claimant had previously been injured while working on the W.P.A. in 1934, at which time he had mashed his left foot and was laid up for about six months as a result thereof. He testified that he now has pains in the left hip, the lower part of the spine and in the left shoulder; that this pain comes and goes, usually occurring when he attempts to lift anything heavy, and lasts for as much as an hour at a time. Dr. N. H. Adams made an examination of claimant on January 22, 1936 and again on June 5, 1936. From the latter examination he testified that claimant could then bend over and touch his finger tips nearly to the floor. That patient is subject to pain in the left hip and that these pains would be due to the arthritic changes in the patient’s spine; that in his opinion the patient could do light work in house or factories and that there is a causal connection between the patient’s present condition and the accidental injury.

Dr. H. B. Thomas, Orthopedic Surgeon of Chicago, examined patient on June 5, 1936. He testified that they stripped the patient and X-rayed the body. “Patient complained rof the coccygeal region in the spine but my examination of same disclosed negligible evidence of disability. The X-ray of the sacro-illiac region showed Hypertrophic Arthritis but no evidence of injury. A negative condition was found in the Lumbar region. We found a compression fracture of the third vertebrae which plaintiff did not know he had. The arthritis found in the sacro-illiac joint was of a toxic formation known as traumatic.” From his examination the doctor testified that in his opinion claimant was able to do the same type of work today that he was doing at the time of the injury. In the opinion of Dr. Thomas the pain complained of by claimant was not from the portion of the body affected by his' fall but from other portions of the body as a result of the arthritic condition present. Because of the evidence of the fracture which claimant has sustained in the back however, the doctor testified that there was in his opinion a ten (10) per cent permanent disability existing, that could be attributable to the accident in question.

From a consideration of the entire record we must conclude that the end of claimant’s total temporary disability was November 1, 1936 when he began working for the Contractors O’Brien and Morris, at wages in excess of those which he had been earning in the employ of respondent. In a report, dated May 27, 1935, Dr. Mitchell stated that in his opinion from an examination of the patient the latter should be able to return to work after removal of the ffrace which he was then wearing and some massaging of his spine to induce normal motion. Following this, on June 3, 1935, Dr. Perisho made his report, stating that in his opinion the patient was apparently “suffering from traumatic arthritis which has been definitely aggravated by the injury.” The doctor further reported that he had done everything he could for the patient,” * * * he is still unable to return to

work and further treatment by an Orthopedic Specialist was advised. Further treatment was authorized by the Examining Committee of the Health Department of the State of Illinois and Weidner was informed on June 8,1935 that he might receive further treatment from Dr. Mitchell. In his testimony (Page C-3) the latter testified that he gave him massage treatments until July 30, 1935 thereby obtaining more motion in the patient’s spine. The doctor further testified that in his opinion the patient was able to- return to work approximately September 1, 1935. In his final testimony on August6?, 1937, Dr. Mitchell, who apparently had more care of the patient than any other doctor, was examined as follows:

1 ‘ Q. State whether or not in your opinion the pains of which Mr. Weidner complains are a result of the injury incurred by him.
“A. I don’t know. I can’t answer that. His pains are subjective and I have to go by objective findings.
“Q. Do you find objective symptoms to substantiate the pains of which Mr. Weidner complains,
“A. I did at that time as he had stiffness in his back and pain upon pressure in the upper dorsal region
‘1Q. The pain in the upper dorsal region was not, however, at the site of the injury?
“A. No.”

The burden of proof is upon claimant to establish Ms right to permanent partial disability, and tMs he has failed to do. He has arthritis but apparently not from the injury suffered by Mm. His earning capacity is apparently as great now as before the accident, and no basis is shown upon which to estimate an award for partial permanent disability.

From a consideration of all the evidence the court finds that claimant is entitled to temporary total disability for a period of Ninety-one (91) weeks at the rate of Twelve ($12.00) Dollars per week, or a total of Ten Hundred Ninety-two ($1,092.00). Dollars. That he has heretofore received One Hundred Forty and 40/100 ($140.40) Dollars compensation wMch leaves a balance of Nine Hundred Fifty-one and 60/100 ($951.60) Dollars due Mm for temporary total compensation to November 1, 1936.

All of the bills shown by the departmental report filed May 27, 1938 to be still outstanding, for medical and hospital charges, were incurred with the approval of the respondent and are entitled to payment as follows:

Dr. Gordon M. Perisho.................................... $148.00
Morris, Ill. Hospital....................................... 85.50
Dr. John Mitchell, examination............................ 15.00
$248.50

It is therefore ordered that an award be and the same is hereby allowed for the payment of said bills in the sum of Two Hundred Forty-eight and 50/100 ($248.50) Dollars in favor of claimant for the use of the following, to-wit:

Dr. Gordon M. Perisho.................................... $148.00
Morris, Ill. Hospital....................................... 85.50
Dr. John Mitchell, examination............................ 15.00
$248.50

It is further ordered that an award is hereby allowed claimant for an additional sum of Nine Hundred Fifty-one and 60/100 ($951.60) Dollars for temporary total disability sustained by him in the accident in question, such award being payable in weekly installments of Twelve ($12.00) Dollars per week. As the total amount so due has already accrued, the full sum of Nine Hundred Fifty-one and 60/100 ($951.60) Dollars is payable at the present time.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3208
    H. E. Callahan, Doing Business as Callahan & Callahan, Claimant, vs. State of Illinois, Respondent.

      Opinion files May 11, 1938.

      AwarS vacates November 10, 1938.


author: Mr. Justice Yantis

text:
    (No. 3185
    Raymond Boyle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1938.

      Rehearing denied November 16, 1938.

    Austin J. Barlow, for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

On January 15, 1937 and for more than a year prior thereto claimant had been in the employ of the State of Illinois as a highway maintenance patrolman in District No. 10. On that day about 1:30 A. M., while spreading* cinders on U. S. Route No. 68, he was struck by an automobile driven at a high rate of speed by one John Eiselt, of 3711 South 54th Avenue, Cicero, Illinois. The record does not disclose what blame should be attached to John Eiselt or what, if any, efforts have been made to obtain damages from him.

Claimant was taken to the hospital and placed under the care of Dr. Dwight C. Reeves of Maywood. No fractures were found and claimant returned to work on March 1, 1937 and was thereafter released from service at the end of that month. He received full salary at the rate of One Hundred Twenty ($120.00) Dollars per month, or One Hundred Eighty-one and 94/100 ($181.94) Dollars as .compensation for the period of his temporary total disability. He had no children under sixteen years of age at the time of the accident, and respondent had notice of the accident the following day. The claim was filed January 11, 1938.

The following bills have been paid by respondent in connection with claimant’s accident:

Dr. Dwight C. Reeves, Maywood............................$ 71.00
Berwyn. Hospital Assn., Berwyn............................ 6.60
Oak Park Hospital Assn., Oak Park........................ 15.00
The Lido Pharmacy, Maywood............................. 6.40
McNamara’s Druggist, Maywood........................... 1.17
Total ................................................ $100.10

Claimant seeks a further award for temporary total disability and partial permanent disability, in such amount as may be found due him under the terms of the Workmen’s Compensation Act. It appears from the record that claimant was unable to work as the result of his injuries from January 15,1937 to March 1,1937, or a period of six and one-half (6%) weeks. That his annual earnings for the year previous thereto were One Thousand Four Hundred Forty ($1,440.00) Dollars. That an examination of claimant on April 13, 1938 before Doctors H. B. Thomas, Ernest Moore and A. R. Hollander, of the staff of the Illinois Research Hospital at Chicago, disclosed that claimant lost the hearing of his right ear at the age of six years, that about 1931 he submitted to an operation for the removal of a brain tumor, and as a result thereof suffered an impairment in hearing of his left ear; that he had been in poor physical condition over a long period of time; that there is a limitation of motion of the cervical spine; that there is some sclerosis of the shoulders; that there is some sclerotic condition of the blood vessels, possessed of some degree of chronic arthritis and a slight traumatization of the center of the spine. From the history of claimant’s previous physical condition and of the accident in question, it is the opinion of the medical men that the slight traumatization of the spine, disclosed by the X-ray examination, has a causal connection to the accidental injury sustained by claimant on January 15, 1937, and aggravated the chronic arthritic condition in claimant’s right shoulder; that the soreness and stiffness complained of by claimant affects the .use of his right arm, and that he has sustained a specific loss of ten (10) per cent of the use of his right arm as a result of such accidental injury.

The record supports a finding of ten (10) per cent permanent partial loss of use of claimant’s right arm.

His average weekly wage was Twenty-seven and 96/100 ($27.96) Dollars per week. Under the provisions of Paragraph (b), Section 8 of the Workmen’s Compensation Act he would have been entitled to six and one-half (6%) weeks compensation for temporary total disability at the rate of Thirteen,and 98/100 ($13.98) Dollars per week, being fifty (50) per cent of his average weekly wage, or a total of Ninety and 87/100 ($90.87) Dollars.

Under the provisions of Paragraphs 13 and 17, Subsection (e), Section 8 of the Act, he is entitled to fifty (50) per cent of his average weekly wage for twenty-two and one-half (22%) weeks, or Three Hundred Fourteen and 55/100 ($314.55) Dollars. He has heretofore been paid One Hundred Eighty-one and 94/100 Dollars ($181.94) so that there remains due him the further sum of Two Hundred Twenty-three and 48/100 ($223.48) Dollars.

An award is therefore hereby entered in favor of claimant for permanent partial disability for ten (10) per cent loss of use of his right arm in the sum of Two Hundred Twenty-three and 48/100 ($223.48) Dollars. As the full amount has heretofore accrued full payment is now due.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claim of State Employees and Providing for the Method of Payment Thereof,” approved July 3,1937 (Sess. Laws 1937 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Eoad Fund in the manner provided for in such Act.


author: Mb. Chief Justice Hollebich

text:
    (No. 2906
    Ellis Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1938.

    Joseph W. Koucky, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

For some time prior to, and on the 6th day of March, A. D. 1936, the claimant was in the employ of the respondent as an attendant at the Chicago State Hospital, Chicag’o, Illinois. On said date he was employed in the violent ward, and while attempting to separate two patients who were fighting, he was knocked down and sustained a colies fracture of the left wrist.

He was taken to the institution hospital where he was treated by Dr. Eooney and Dr. Meany of the institution; the arm was placed in a cast, and claimant remained in the hospital until April 5th, 1936, on which date the cast was removed and replaced by a splint. Claimant returned to his regular work on the same day, with his arm in a splint, but-continued to receive diathermy and massage treatments for some time thereafter. All medical and hospital services were furnished by respondent, and claimant was paid his regular salary during the time he was off work-.

The evidence clearly dhows that claimant and respondent were both operating under the provisions of the Workmen’s Compensation Act, and that the injuries sustained by the claimant arose out of and in the course of his employment.

His annual earnings during the year preceding the injury were $936.00, and his average weekly wage was $18.00.

Claimant at the time of the injury in question was married and had one child under sixteen years of age.

The only question in the case is the extent of the injury to claimant’s left wrist. Dr. Eooney of the institution was one of the treating physicians, and testified on behalf of the respondent. He stated that it usually takes a year or a year and a half for a condition of this kind to return to normal. He examined the claimant on November 1, 1937 and from such examination testified, without objection, that the claimant has sustained the permanent loss of twenty-five per cent (25%) of the use of his left hand.

Dr. Adams who was called on behalf of the claimant, examined him for the purpose of testifying in the case, and testified, without objection, that on May 18, 1936 claimant has a loss of seventy-five per cent (75%) of the use of the hand, but that such condition was not permanent. He also testified, without objection, that at the time of the first hearing, to wit, on July 23, 1936, claimant had a loss of fifty per cent (50%) of tíre use of the hand, and that such condition is permanent.

Under all the evidence in the case, together with the inferences which may legitimately be drawn therefrom, we are of the opinion that' the disability to claimant’s hand does not exceed 25%.

"We find, therefore, that the claimant was temporarily totally disabled from the date of the injury to April 5, 1936, and that he sustained the permanent loss of 25% of the use of his left hand; that under the provisions of Section 8, Paragraphs (b), (c), (e) and (i) of the Compensation Act, claimant is entitled to receive three and one-seventh weeks ’ compensation at $11.00 per week for temporary total disability as aforesaid, and 42-% weeks’ compensation at $11.00 per week for the permanent loss of 25% of the use of his left hand; making- a total of $502.07; — all of which compensation has accrued at this time. From this must be deducted the sum of $78.00 which was paid to claimant for non-productive time, as hereinbefore set forth, and which must therefore be considered compensation.

Award is therefore entered in favor of the claimant for the sum of Four Hundred Twenty-four Dollars and Seven Cents ($424.07).

This award being- subject. to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided for in such Act.


text:
    (No. 2753
    Illinois Central Railroad Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1938.

    Alschuler, Putnam & Johnson, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

It appears from the complaint herein that on May 16, 1934 the claimant delivered its certain railroad freight car known as Illinois Central car No. 229272, loaded with baled straw, to the Aurora, Elgin and Fox Biver Electric Company, a common carrier, at Coleman, Illinois, and said Electric Company on said date delivered the same to the respondent, within the grounds of the Elgin State Hospital at Elgin, Illinois; that said car was then in good condition and was delivered to the respondent solely to permit the respondent to unload therefrom the baled straw which was consigned to the respondent; that it was the duty of the respondent to use due care and caution to protect such car and to return the same to the claimant in the same condition in which it was received; that by reason of the carelessness and negligence of the servants and agents of the respondent, such car was damaged by fire on the night of May 16th, 1934, and rendered useless as a freight car, whereby claimant was damaged to the extent of $960.73, for which amount it asks an award.

The Attorney General has moved to dismiss the case on the grounds that the State, in the exercise of its governmental functions is not liable under the doctrine of respond-eat superior.

It is a well settled rule of law that in the maintenance of its public institutions, such as State Hospitals, the State exercises a governmental function. It is also well settled in this State that in the exercise of such functions, the State is not liable for the negligence of its servants and agents, in, the absence of a statute making it so liable. Symonds vs. Clay County, 71 Ill. 355; Minear vs. State Board of Agriculture, 259 Ill. 549; Stein vs. West Chicago Park Commissioners, 247 Ill. App. 102; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

The rule as above set forth has been applied by this court in numerous cases involving the same principle as is involved in this case. Loges vs. State, 8 C. C. R. 53; Nafziger, Recr. etc. vs. State, 8 C. C. R. 314; Hussman vs. State, 8 C. C. R. 414; Unverfehrt vs. State, 8 C. C. R. 577; Titone vs. State, 9 C. C. R. 389; Lindner vs. State, 9 C. C. R. 448.

Under the law as above set forth, we have no authority to allow an award, and therefore the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Me. Chief Justice Hollerich

text:
    (No. 2790
    Robert L. Spalding, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1938.

    Hogan & Coale, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 19th day of November, A. D. 1934, claimant was in the employ of the respondent, and was engaged in setting out trees along S. B. I. Boute No. 48 in Christian County. On the last mentioned date, he sustained accidental injuries to his back, which arose out of and in the course of his employment, as a result of which he was temporarily totally disabled from the date of the injury as aforesaid, to January 11th, 1935, on which date he resumed his previous employment. There was no permanent,,injury. Notice of the accident was given and claim for compensation on account thereof was made within the time required by Section 24 of the Workmen’s Compensation Act, but no compensation was paid to claimant, and no application for compensation was filed by him in this court until January 6, 1936.

Section 24 of the Compensation Act provides that “unless application for compensation is filed with the Industrial Commission within one year after the date of the injury, or within one year after the date of the last payment of compensation, the right to file such application shall be barred. ’ ’

Our Supreme Court has repeatedly held that this provision is jurisdictional, and is a pre-requisite to the right to recover. DuQuoin School District vs. Ind. Com., 329 Ill. 543; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 611; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43.

The rule thus laid down has been followed by this court in numerous cases. Crabtree vs. State, 7 C. C. R. 207; Dahler vs. State, 8 C. C. R. 23; Duke vs. State, 8 C. C. R. 225; Wolfe vs. State, 8 C. C. R. 333.

Under the rule as above set forth, claimant is barred from recovering compensation for the injuries so sustained by him.

We have heretofore held that while the furnishing of medical and hospital services by an employer is provided for by the Workmen’s Compensation Act, such services are not considered a part of the compensation to which the employee is entitled under such Act, and that therefore the time within which a claim for medical and hospital services may be filed, is not governed by Section 24 of the Compensation Act. Wolfe vs. State, 8 C. C. R. 333; Elmendorf vs. State, 8 C. C. R. 548; Taden vs. State, 9 C. C. R. 254.

The evidence discloses that claimant was attended by Dr. W. A. Monoghan from the date of his injury to January 10, 1935; that such services were reasonably worth $22.50; and that the doctor has not yet been paid for such services.

Award is therefore entered in favor of the claimant, Robert L. Spalding, for the use of Dr. W. A. Monoghan, for the sum of Twenty-two Dollars and Fifty Cents ($22.50).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Glovernor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


author: Mr. Justice Linsoott

text:
    (No. 2972
    Delia Schierer, Widow of Albert C. Schierer, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1938.

    Cassidy & Knoblock, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

The amended complaint in this case alleges that Albert Schierer, deceased, on the 26th day of June, 1936, was in the employ of the State of Illinois, and had been in the employ of the State of Illinois many months prior thereto, as an. oil inspector in the Department of the Illinois State Oil Inspection; that on said date, he was driving an automobile which was the property of the State of Illinois, on a highway in the County of Woodford, and State of Illinois', near the town of Washburn; that at said time he was performing his duties as State Oil Inspector; that sometime between five and six P. M., the automobile in which he was riding, collided with a motor truck operated by H. Hahn who resides in Toluca, Illinois.

The evidence discloses that Schierer was going around a curve in the road and Hahn was going in the opposite direction. Schierer stated after the accident that he did not see of the car at all until it hit him; that “it was around a bend, and he was driving toward the sunset”.

Schierer received severe injuries, his left arm being severed from his body. He was removed to St. Francis Hospital, Peoria, Illinois, where he remained a patient until his death on July 1st, 1936, death being the direct result of the injury suffered by him in this accident.

The annual earnings of the deceased during the year next preceding the injury were $1,800.00.

Claim was filed herein on September 15th, 1936.

Deceased left hisl wife and four children: Mary Elizabeth, 18, Duane Schierer, 15, Arthur Schierer, 11, and Philip Schierer, 6, whom he was under legal obligation to support at the time of his injury, and they all reside at Metamora, Woodford County, Illinois.

In the complaint it is alleged that the decedent’s doctors’ bills were $357.00; hospital bill, $141.25; nursing services, $63.00; ambulance service, $15.00; and funeral expenses, $400.00. The record shows that the hospital, doctors’ and nurses’ bills were all necessary and reasonable, with the exception of $10.00 item hereinafter referred to.

Dr. Sumner M. Miller of Peoria testified that he was called by Dr. Charles Boon of Washburn to assist in the case of deceased; that he, Dr. Miller, was the chief surgeon in charge; that he was called on June 26, 1936 to the St. Francis Hospital in Peoria, Illinois. Dr. Miller testified that deceased had suffered traumatic amputation of the left arm, which was entirely off at the shoulder joint; that he was suffering from surgical shock which made impossible any attempt to treat the stump surgically, as he would have died had he attempted such a thing; that he did a minor amount of repair work on the stump, cleaned it up, put on hot dressings, treated him for shock for the relief of pain, and injected glucose solution in the veins and under the skin, with periods of intermission practically continuously and repeated at intervals during the next two days; that on June 29th, the deceased recovered from the shock; that his condition had so improved that they performed an amputation; that Dr. Boon was associated with him in the treatment of this case during this period and at the time of the amputation; that deceased reacted well from the operation, but within a few hours he became very sick and prostrated with great swelling of the tissues near the wound; that the wound was opened, and quantities of gas were expressed by pressure on the surrounding parts; that the wound was then opened widely for drainage; that solutions were again administered under the skin and in the veins, and large doses of gas bacillus antitoxin were administered; that deceased became very toxic, rapidly becoming worse, went into collapse, and died on July 1st, 1936, of gas bacillus infection. Dr. Miller testified that he spent an hour or two the first night and three or four hours a day every day in giving him solutions and looking over him. He testified that the deceased died from gas bacillus infection resulting from contamination of the wound at the time the injury was received. For these services Dr. Miller testified that he made a charge of $200.00, and that was a fair and reasonable charge.

Dr. C. L. Boon assisted with some of the work and he made a charge of $25.00, and the evidence shows that this was a fair, reasonable and customary charge for the services he rendered. Dr. G. W. Magaret, who also assisted in the case in giving blood transfusions, made a charge of $110.00, but the usual charge for such service is $50.00 for each transfusion, and there is no evidence to support the charge for the extra $10.00. $24.00 was charged for the antitoxin, and that is a fair and reasonable charge. That was purchased and paid for by Dr. Miller, several bills having been rendered by the druggist who supplied it to Dr. Miller, and that is the usual and customary charge. Therefore, the sum of $224.00 is due Dr. Miller. It was also necessary to have two nurses in attendance, a day nurse and a night nurse, and Dr. Miller testified that the usual and customary charge of nurses was $6.00 a day, and that the hospital charged them $1.00 for their meals, making $7.00 per day for their charge.

Delia Schierer, wife of the deceased, testified that she paid Julia Fidler, one of the nurses, the sum of $28.00, that being the usual charge. Miss Marie Henebry’s bill was $7.00 per day for five days, or $35.00, but she was not paid. The bill of E. A. Rickett in the amount of $15.00 for ambulance service was reasonable.

Delia Schierer, after the death of deceased, remarried on April 5, 1937.

Paragraph 6 of Section 3 of the Workmen’s Compensation Act provides that the provisions of such Act shall apply automatically to all employers and all their employees, engaged in “any enterprise in which explosive materials are manufactured, handled or used in dangerous quantities”. Paragraph 7 of Section 3 of the Compensation Act provides that the provisions of such Act shall apply to all employers and all their employees engaged in any department of “any enterprise wherein * * * explosives * * * or inflammable vapors or fluids * * * are manufactured used, generated, stored or conveyed in dangerous quantities”. Schierer’s duties required him to obtain samples of gasoline, kerosene, etc., and to test the same. The samples were taken from railroad tank cars containing 7,000 to 8,000 gallons, upon the arrival of such cars at their destination in the territory assigned to said decedent, which territory comprised the greater part of five counties. At the time of the accident in question he was driving toward his home with a number of samples which he had obtained that day. All samples were taken by Schierer to his home and tested, for the reason that all testing had to be done where ice and the necessary electric current were available for the making of the prescribed tests. That such fuels were inflammable and explosive was shown by the fact that in February, 1936, the gasoline in one of the containers in the possession of said Schierer expanded until the container exploded, the gas ignited, and the flames spread to other containers and over the interior of the one-room building in which the tests were being made, and were put out by the local fire department which was called for that purpose.

Under all of the evidence in the case, and under the law as laid down in the case of Gibson vs. Ind. Board, 276 Ill. 75, we find that at the time of the accident in question Schierer and the respondent were operating under the Workmen’s Compensation Act, and that the death of said decedent resulted from injuries which arose out of and in the course of his employment. Under the provisions of Section 7, paragraphs (a) and (h), and Section 8, paragraph (a), the respondent is required to pay compensation to the beneficiaries provided by such Act, in the total amount of $5,500.00, together with the necessary medical, surgical and hospital services in the total amount of $568.25, as shown by the evidence herein; — the total amount required to be paid being $6,068.25. There is no authority under the provisions of the Workmen’s Compensation Act for the allowance of the amount expended for funeral expenses.

We further find that the children’s share of the compensation which accrued between the date of the death of the decedent and April 5, 1937, should be paid to their mother for their support.

Award is therefore made and entered herein as follows:

To Delia Schierer, for the bill she paid to Julia Fidler......$ 28.00
To Delia Schierer, for the use of Marie Henebry............. 35.00
To Delia Schierer, for the use of Dr. Sumner M. Miller, for medical services of $200.00 and antitoxin for which he paid $24.00 ............................................. 224.00
To Delia Schierer, for the use ’of Dr. C. L. Boon............. 25.00
To Delia Schierer, for the use of Dr. C. W. Magaret........ 100.00
To Delia Schierer, for the use of E. A. Rickett on account of ambulance........................................... 15.00
To Delia Schierer, for the use of St. Francis Hospital, for services, medical supplies, etc............................ 141.25
To Delia Schierer, for the use of herself and Duane Schierer, Arthur Schierer; and Philip Schierer, compensation from the date of the death of said decedent to April 5, 1937, to-wit, 39 5/7 weeks, at $18.00 per week..................... 714.86
To the duly and legally appointed guardian of Duane Schierer, Arthur Schierer, and Philip Schierer, the sum of $4,785.14, payable in weekly installments of $18.00 per week commencing April 5, 1937.......................... 1,785.14
Total ..............................................$6,068.25

The total amount of the award to Delia Schierer as above set forth has accrued and is payable at this time.

Compensation has accrued to Duane Schierer, Arthur Schierer and Philip Schierer from April 5, 1937 to November 15, 1938, to wit, 84 weeks at $18.00 per week, in the amount of $1,512.00, which is payable to their duly appointed guardian forthwith. The balance of the award to said Duane Schierer, Arthur Schierer and Philip Schierer, to wit, $3,273.14, is payable do their duly appointed guardian in installments of $18.00 per week from November 15, 1938 until such sum has been fully paid.

It is further ordered that such guardian, when appointed, shall furnish a certified copy of his, her or its letters of guardianship to the Auditor of Public Accounts of this State.

This court reserves jurisdiction of this matter for such other or further orders as may be in accordance with law.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83) and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided for in such Act.