text:
    (No. 4267
    Ernest J. Jaax, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    William E. Rodriguez, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; James C. Murray, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Ernest J. Jaax, seeks to recover from respondent under the Workmen’s Compensation Act for injuries allegedly sustained as a result of an accident arising out of and in the course of his employment as a painter at the Chicago State Hospital.

On July 18, 1949, claimant, who had a history of calluses on his left foot, pared and lacerated the callus under the big toe on his left foot with a razor blade.

For about a month prior to that date, claimant had been in charge of eight men, who were redecorating the rooms of the apartment of the superintendent of the Farm Ward Building, which rooms were being completely remodeled. In addition to the painting, the floors were sanded with a power sander, which deposited considerable fine sawdust on the floor. Because of claimant’s previous trouble with his feet, and, because they perspired greatly, he wore shoes in which slits had been cut. As a result of the slits in his shoes, considerable sawdust worked through his socks.

On July 20, 1949, claimant’s left foot began to pain him considerably, and the following day he was given a shot of penicillin by one of the doctors at the institution, such shots being continued for several days. Later claimant was hospitalized at both the Cook County and Masonic Hospitals for ulcerated calluses, and the treatment thereof by private physicians continued for several months.

Claimant now maintains that the sawdust on the floor caused an infection in his left foot, as a result of . which he should be compensated under the Workmen’s Compensation Act for a partial loss of use of such foot, plus compensation for a lengthy period of temporary total disability.

To us, the most significant facts in this case are that claimant shuffled through the sawdust for several weeks prior to the time that he pared his callus without any apparent discomfort, and that it was only immediately after he cut the callus with a razor blade that an infection appeared in his foot, and such infection appeared after a normal period of incubation after the laceration with the razor blade.

Claimant has apparently complied with the jurisdictional prerequisites for this action. He was paid no compensation, and medical services, except for four shots of penicillin, were obtained by himself.

An analysis of the important infection cases that have been decided by the Supreme Court leads us to the conclusion that an award would not be warranted in this case. Had claimant raised a blister on his foot while working, and then an infection in the foot set in, he could recover. Western Shade Cloth Co. vs. Ind. Com., 308 Ill. 554; Freeman Coal Mining Co. vs. Ind. Com., 315 Ill. 84. But, no blister resulted from the chafing action, if any, of the sawdust in his shoes.

Had claimant suffered a blow on his foot, and later an infection arose near the point of impact, he could recover. Challenge Co. vs. Ind. Corn., 292 Ill. 596. But, there is neither a contention, nor any evidence of a traumatic injury to his foot.

This case comes close to Ryan vs. Ind. Com., 329 Ill. 209. In that case Ryan pared a corn or callus on his toe. Later an infection set in leading to gangrene, which necessitated the amputation of his leg below the knee. Ryan suffered from hardening of the arteries, which sometimes causes gangrene. The Supreme Court held that Ryan had not proved that an accident in employment was the cause of the infection, and, therefore, denied an award.

In this case, we do not believe that claimant has proven that the sawdust caused the infection. His doctor would not categorically go that far in his testimony. We are, therefore, confronted with a case of speculation and conjecture. The infection could have resulted from an introduction of bacteria into his self-inflicted laceration either at his home, or going to and from work. Persuasive proof of a causal connection between claimant’s infection, and the onset thereof as a result of his employment is lacking in this record. Peterson & Co. vs. Ind. Com., 281 Ill. 326; Standard Oil Co. vs. Ind. Com., 322 Ill. 524; Gray: Attorneys’ Textbook of Medicine, 3rd ed. (1949), Vol. 1, Paras. 23.16 and 23.17.

William J. Cleary & Co. was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Charges of $73.20 were incurred, which are reasonable and customary. An award is entered in favor of William J. Cleary & Co. for $73.20.

An award to claimant, Ernest J. Jaax, is denied.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    (No. 4301
    James Luzzi, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 6, 1951.

      Supplemental opinion filed October 6, 1951.

    Eugene P. Meegan, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, James Luzzi, filed his original claim on May 11, 1950, in which he alleged that he had occupied the position of carpenter of the classified Civil Service of the State of Illinois; that he was certified as such on December 1, 1934; and, that he had performed his duties as carpenter until he was laid off on June 6, 1947. Claimant contends that he was wrongfully laid off, while temporary employees were working, and was wrongfully deprived of performing his duties as a carpenter as a member of the classified Civil Service of the State of Illinois. Claimant further contended that he made demands upon the Civil Service Commission and upon the Department of Public Welfare for reinstatement and reassignment to duty, stating that he was ready, willing and able to perform the duties of his position. Claimant contended that assignments were made to temporary employees, while his name was available on the Civil Service register, and claims that-by reason thereof a violation of Section 12a of the Civil Service Act of the State of Illinois was had, and that he is entitled to recover for the period of time that he, was unlawfully laid off from June 6, 1947 until he was reinstated to perform his duties as a carpenter on September 13, 1948.

Claimant, in his testimony, admits that the position of maintenance carpenter was filled with temporary appointments, and the conclusion to be drawn from such testimony is that such temporary employees were duly paid the salaries of maintenance carpenters, and, therefore, were de facto employees.

This Court has consistently followed the doctrine, where it is shown by the record, that a payment of salary to an employee, who is deemed to be a de facto employee, constitutes a bar to an action by one claiming the title or right to the position, and, therefore, bars any claim. (Laird vs. State of Illinois, 13 C.C.R. 78).

For the reasons above assigned, the claim will have to be denied.

Supplemental Opinion.

Schuman, C. J.

Claimant’s petition for rehearing is based on the fact that vacancies for the position of carpenter in the classified Civil Service were in existence at the time he was laid off on June 24, 1947, and also vacancies for temporary appointees; and, that the State made no attempt to prove there were no vacancies, or that the salary of claimant was paid to a de facto employee.,

Respondent contends that claimant took no action to review the proceedings of the Civil Service Commission. It is apparent that claimant was not removed, discharged, or suspended, but was laid off, because the work was completed at the Veterans Rehabilitation Center.

Claimant’s whole case is predicated on the fact that temporary appointees were working, and that he should have been placed in one of these positions. There is no showing where work was available, and, if temporary appointees were working, that any violation of the Civil Service Act occurred. In order for claimant to recover, he would have to show he was wrongfully prevented from performing the duties of his position. (Laird vs. State of Illinois, 13 C.C.R. 78.)

Claimant admits that parties employed were temporary employees, and that he commenced no proceedings of any kind before the Civil Service Commission, or any other court.

Section 12 of Chapter 24½, entitled "Civil Service”, (S. H. Ill. Rev. Stat.) provides as follows:

“In employment of an essentially temporary and transitory nature, the appointing officer may, with the authority of the Commission, make temporary appointments to fill a vacancy, but no such authority shall be granted for a period of more than thirty days, but it may be renewed from time to time with the approval of the Commission.”

The Departmental Report further showed that the carpenter list of the Civil Service Commission was cancelled in 1944.

Claimant further based his claim on the fact that there was plenty of work to do at the Chicago State Hospital.. The Departmental Report shows that claimant was served with a notice of suspension, and discharged on October 23, 1944 before a decision was announced by the Civil Service Commission. Claimant agreed he would not seek to be reinstated at the Chicago State Hospital.

In view of the statutory provisions on temporary appointees, and the failure of claimant to show he was wrongfully kept from working, and, by his own admission, that temporary employees worked in his place, the Court is of the same opinion that he is not entitled to an award.

The case of Wilson vs. State, 12 C.C.R. 413, was a case in which the same attorney appeared for claimant, as in this case. That case involved a hearing before the Civil Service Commission, and the Commission found he was wrongfully deprived of his salary, and ordered his reinstatement. The Court allowed an award for salary during the period of his illegal discharge. That case held that payment of claimant’s salary was an affirmative defense.

The case of People vs. Bradford, 267 Ill. 486, involved a suit by a City Commissioner for salary. Defense was abandonment of office. The Court held that there was no vacancy in the office, that no legal method was pursued to remove the Commissioner from office, and that he was entitled to his salary.

The case of City of Chicago vs. Luthardt, 191 Ill. 516, involved a suit where claimant, a Civil Service employee, was prevented from performing his duties by the Chief of Police. The court held that salary was not paid to a de facto officer. The court held the action of the Chief of Police unwarranted, and allowed recovery.

The above cases cited by claimant involve wrongful discharge/ and either no lawful de facto officer, or failure to allege, as a defense, payment to a de facto officer.

It does not appear from this record whether claimant was legally or illegally discharged, or whether he was rightfully or wrongfully prevented from performing his duties. There can be no question, from claimant’s own testimony, that temporary appointees did the work. It is not claimed provisional appointments were made where an eligible list was available. It is not shown permanent work was available, and that temporary appointments were unlawful. Claimant’s own testimony admits payment to other temporary employees.

The Court has consistently held that payment of salary to a de facto incumbent during the time that he performed its duties prior to the reinstatement of a de jure officer or employee is a defense (13 C.C.R. 78).

The case of O’Connor vs. City of Chicago, 327 Ill. 586, holds that temporary appointees are de facto incumbents, and payment to them a bar to a suit instituted by a claimant, who was reinstated by order of court.

On the basis of the record before us, in view of claimant’s own admission that temporary appointees performed the work, a failure to show any illegal or wrongful act in preventing him from working, and the fact that temporary appointees were de facto incumbents, and paid salaries, prevents claimant from recovery in this case.

Petition for rehearing is denied.


author: Schuman, C. J.

text:
    (No. 4347
    Douglas E. Dreier and Ruth Dreier, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Ruddy and Brown, Attorneys for Claimants.

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

This claim arises out of an accident, which occurred on August 31, 1949, while claimants were riding in an automobile over U.S. Highway No. 34.

Claimant, Douglas E. Dreier, in company with his wife, Ruth Dreier, and their two minor sons, left their home in Aurora, Illinois around 11:00 A.M. to go to Denver, Colorado on vacation. Around 1:30 P.M., while driving west on said route, about one mile from Mendota, Illinois, a large limb from a tree fell on their car, and claimants sustained serious personal injuries and damages to their car. The limb was 30 to 35 feet long, and around 18 inches in diameter. It was raining, and a strong wind was in progress.

At the hearing, there was a definite conflict in the" testimony between claimants’ and respondent’s witnesses as to the condition of the tree prior to the accident. John W. Humphrey, former highway section man, testified that there had been several storms in the area over a period of years, and that this tree had been in a dangerous condition for several years. He stated he had complained to the District office relative to same, but nothing was ever done to correct the situation. Clarence Scheidenhelm testified that he lived on the south side of the road just west of the tree in question, and that he had noticed a split or crack in the limb for two years preceding the accident. On the day in question he was working approximately half a mile from the scene of the accident, and that there was a strong wind from the southwest for a period of a few minutes, but that there was no damage done to the corn, and that the only damage he noticed was that to the limb of the tree in question. His wife, Ethel Seheidenhelm, testified that just prior to the accident, when it looked as though a storm was blowing up, she was out in the yard bringing in the children’s toys, and that the, wind blew very hard for approximately a minute; that she did not see the accident occur, but saw the car shortly thereafter. She knew nothing about the condition of the tre'e, but had heard her husband remark about it on various occasions. The respondent’s witnesses, Edward Gutson, supervisor, and Howard Harvey, landscape foreman, all testified that they were familiar with the area and the tree in question; that there was nothing wrong with the tree or limb prior to the accident, and that, upon inspecting the tree after the accident, it did not show an old break.

The Departmental Report showed that the tree was within the limits of the right-of-way, and, therefore, under the control of the State. There is no contention that the area wherein the tree was located was used as a park, so as to limit the liability of the State.

It, therefore, becomes important to determine the condition of the tree or the limb in question, and, whether it was in a dangerous condition, and whether or not the State had notice, actual or constructive, as to such condition, or performed its duty as to care of the trees, so as to avoid accidents caused by the falling of a limb.

The rule as applied to municipalities is again applicable to the facts in this case. In the case of Renle vs. City of Chicago, 268 Ill. App. 266, the court, on page 270, held:

“In the event any of such trees become a menace to pedestrians, by reason of becoming rotten or decayed, the city had the power to remove the same, and was, moreover, under a duty and obligation so to do, if the circumstances warranted it. The duty to maintain sidewalks in a reasonably safe and proper condition applies not only to the sidewalks, but as well to the trees located on the street, and this rule is recognized not only in this State but generally wherever cities are charged with the control of its streets and highways. (City of Mt. Carmel vs. Shaw, 155 Ill. 37; City of Indianapolis vs. Slider, 56 Ind. App. 230; Lundy vs. City of Sedalia, 162 Mo. App. 218.)”

While the evidence is conflicting, a disinterested witness testified that there was a crack in the limb for two years. This witness, Clarence Scheidenhelm, lived •right at the location of the tree, and had observed it every day. The position of the tree, and the enormous size of the limb overhanging the highway warranted a duty on the State to remove the same, if it were defective. That the State had knowledge is in conflict; that it had constructive knowledge seems borne out by the evidence, and required the State to exercise a duty to remove this dangerous obstacle; and, from this record, its failure to do so constituted negligence. There was no question raised as to any contributory negligence on the part of the claimants.

Claimant, Douglas E. Dreier, was pinned in the car. He was removed and taken to Mendota, and later to the hospital in Aurora, Illinois. His injuries were diagnosed as cerebral concussion, multiple abrasions and contusions of the face, hands, arms, anterior chest wall and abdomen. He was hospitalized for a period of eight days, and then remained at home in bed for another two weeks. Claimant was chief engineer for the Walker Process Equipment, Incorporated, of which he was also one of the owners. He was off work from the date of his injuries until December 1, 1949. At that time he returned and resumed part of his duties, and on February 1, 1950 he reported for full duty. His salary in the Company was $500.00 per month, and he was paid same by the Company during his period of disability. After his discharge from the hospital he had a rather marked degree of nervousness, inability to concentrate and read, and considerable trouble with his eyes, which had been bad for a period of years.

Claimant, Ruth Dreier, was riding on the right side of the back seat. At the time of the accident she was feeding the baby; and, when the accident occurred, she was thrown into the back of the front seat. As a result, she suffered a cut on the left knee, a broken toe on the right foot, broken nose, and numerous face and body bruises. At the time of the hearing she had a small scar on her face. She received first aid, attention to her nose and other injuries, but was not hospitalized. Her doctor bills amounted to $15.00. Claimant was a housewife, and after the accident it was necessary to send the laundry out for a period of several months at a cost of approximately $20.00 per month, and it was also necessary to secure additional help in the house.

Claimant, Douglas E. Dreier, sustained rather serious and painful injuries, but according to his doctor he recovered, and the only remaining physical disability was his increased nervousness.

Claimant, Ruth Dreier, sustained painful injuries to her face and knees, as well as a fracture of her big toe, but apparently has no permanent disability.

From the evidence in the record, we make the •following award:

To claimant, Douglas B. Dreier, the sum of $2,000.00.
To claimant, Ruth Dreier, the sum of $500.00.


author: Delaney, J.

text:
    (No. 4349
    La Vona Alford Johnson, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Schmiedeskamp and Neu, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

La Vona Alford Johnson filed her complaint on October 10,1950, as widow of Chester Howard Johnson, deceased, for compensation under the provisions of the Workmen’s Compensation Act.

The record consists of the complaint, Departmental Report, transcript of evidence, abstract of evidence, and statement, brief and argument of claimant.

Mr. Johnson at the time of his death on October 18, 1949 was employed by the respondent as chief maintenance officer at the Illinois Soldiers’ and Sailors’ Home in Quincy, Illinois. On said date deceased was at the paint shop, where he was employed, discussing work to be done during the day with a group of painters, who were under his supervision. He suddenly became ill, fell to the floor of the paint shop, and died within a few minutes.

Deceased was five feet ten inches tall, and weighed 225 pounds. It was necessary that the deceased work extra hours from time to time, and very often he worked late at night. On Thursday, October 13,1949, he worked all day and all night until 5:00 A.M. the following morning. A double sink was removed from Cottage 22 at the Illinois Soldiers’ and Sailors’ Home in order to put a new bottom in it. The sink weighed about 300 pounds. Mr. Johnson with another employee carried the sink down a narrow 40 foot ramp leading from Cottage 22, and lifted the sink onto a pickup truck. The sink was taken to the tin shop, and Mr. Johnson and another employee lifted the sink from the truck, and carried it about 20 feet into the tin shop. Mr. Johnson drilled holes in the sink with an electric drill. He fitted about 80 rivets into the sink, pounding in the rivets. It was necessary to hit each rivet five or six times with a hammer. At midnight Mr. Johnson went home to rest, then came back to the tin shop about 2:45 A.M. the same morning. He helped another employee carry the 300 pound sink from the tin shop, lift it onto the truck, and with another employee carried the sink up the 40 foot ramp, and placed the sink in Cottage 22. He stayed on the job until 5:00 A.M. At that time he went home and went to bed, but got up about 9:00 A.M. and worked all day, which was Friday, October 14, 1949. On October 17, 1949 he came home about 4:00 P.M., and complained that he was not feeling well. The following morning, October 18, 1949, Mr. Johnson arose about 6:30 A.M., and said he felt a weight on his chest, and that it was difficult for him to breathe. On the morning of October 18, 1949, Mr. Johnson went to work as usual, went to his office, said he did not feel well, went to the tin shop, and thence to the paint shop, where he fell to the floor while giving the painters instructions for the day’s work.

According to the testimony of Drs. James L. Rouner, Hugh S. Espy and George Borden, the cause of death was coronary thrombosis due to overexertion. Dr. Hugh S. Espy, who specializes in internal medicine, further testified that a coronary thrombosis develops on arteries that are already diseased, and, when asked if death occurs suddenly, replied “It may occur suddenly, or it may occur any time within a matter of about two weeks. Ordinarily, we regard the period of two weeks after such an event the dangerous period. Sudden death may occur at any time during that interval regardless of how the individual seems to be getting along.”

Claimant was married, but had no children under sixteen years of age dependent upon him for support. His earnings were $5,700.00 for the year prior to his death.

There is no jurisdictional question presented by the record, and we find that the deceased died in the course of his employment by respondent.

Decedent’s compensation rate will, therefore, be the maximum of $15.00 per week. The death having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50 per week.

Following the ruling of the Supreme Court of Illinois in Town of Cicero vs. Ind. Corn., 404 Ill. 487, claimant is entitled to an award of $6,000.00 compensation under Section 7, Paragraphs (a) and (i) of the Workmen’s Compensation Act.

An award is, therefore, made to claimant, La Vona Alford Johnson, in the sum of $6,000.00 payable as follows:

§2,301.42, which has accrued, is payable forthwith;
$3,698.58, payable in weekly instaEments of $22.50, commencing October 12, 1951 and continuing for 164 weeks, with a final payment of §8.58.

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

Helen Woolley was employed to take and transcribe the evidence at the hearings before Commissioner Summers. Charges in the amount of $74.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Helen Woolley in the amount of $74.00, which is payable forthwith.

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


author: Lansden, J.

text:
    (No. 4373
    Jack Flint, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Brown, Hay and Stephens; and, Rosengard and Hecht, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Jack Flint, seeks to recover from respondent for its alleged negligence in allowing holes and ruts to remain unrepaired on one of its highways, as a result of which claimant had an accident, which demolished his automobile, and caused him serious personal injuries.

On May 15, 1950, at about 12:30 A.M., claimant started on a trip to his mother’s home some 12 or 15 blocks from where he lived. The purpose of the trip was to pick up some vitamins for his baby. Claimant testified his trip was “an emergency like”.

His route took claimant along Pulaski Road in a southerly direction between Foster Avenue on the north and Argyle Street on the south. Pulaski Road at the place in question is composed of a bridge and approaches thereto. The roadway is a variable fifty feet in width from curb to curb. Chicago Surface Lines tracks (two sets) occupy the center eighteen feet, five inches, and said agency is responsible for the surface maintenance of that area. The Department of Public Works and Buildings, Division of Highways, operates and maintains that part of the roadway east and west of the area occupied by the car tracks. In other words, the Department maintains two separate sections of roadway, each sixteen feet, more or less, in width. That part of the roadway reserved exclusively for vehicular traffic is paved with concrete, and, from time to time, has been maintained by the application of an asphaltic surfacing material. There are three high elevation street lights mounted on poles along the west side of Pulaski Road, and within the lateral limits of the section of highway where the alleged accident occurred.

Claimant stopped in the westerly of the two south bound lanes of Pulaski Road for a traffic light at Foster. Avenue. When the light changed, he started up continuing in the westerly lane, and, at a point 137 feet south of the curb of Foster Avenue, he felt a bumping sensation in his car, and started to pump his brakes, which he did six or seven times, but his car skidded, went out of control, careened across the car tracks, and crashed almost head-on into a northbound street car. The point where claimant first noticed the bumpy sensation was at the bottom of the incline over the bridge.

It had been raining earlier that evening, and the pavement was moist and damp. Three street lights, 30 feet high, were burning south of the point where the accident occurred.

It is conceded that the concrete surface of the highway near the point of the accident had been scaling, and there were numerous shallow holes in the pavement a little over one inch deep, and ranging up to 2 or 3 feet in diameter. However, claimant testified that he did not see any holes or ruts as he approached the point of the accident, although the street was illuminated, and his car lights were burning.

Two photographs introduced in evidence by claimant show many holes in the street at the scene of the accident, but all of the holes of any size are located in the easterly lane of the two south bound lanes, and the portions of the westerly lane of the two south bound lanes shown in such photographs are comparatively free of holes.

This Court must determine both the law and the facts in a ease. Unlike Courts of Review, we cannot say, “It is for the jury”, nor can we avoid our fact finding duties, as trial courts are able to do in jury cases.

Placing ourselves in the position of a fair and impartial jury, without bias or prejudice toward either party, and keeping in mind the many rules of law relating to negligence, and contributory negligence, we find the issues in favor of respondent and against claimant.

We are just not satisfied that claimant has proven the allegations of his complaint by a preponderance of the evidence. True it is that an accident occurred, but we do not feel that respondent should be held liable on the basis of the testimony and exhibits in the record before us.

An award to claimant, Jack Flint, is, therefore, denied.


text:
    (No. 4377
    Neil Beenes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Stebbins, Pierce and Connell, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claim in this case is predicated on damages to an automobile of claimant, allegedly caused by the negligence of the State, and consists of a repair bill in the amount of $315.00, and towing charges of $35.00.

The complaint alleges that claimant, Neil Beenes, in company with his wife, on July 23, 1950, at about 8:00 A.M., was driving his 1947 Plymouth Sedan over U. S. Route No. 30 in a westerly direction, and approaching the junction of Route No. 14. While attempting to stop behind a vehicle already stopped at the intersection, his car skidded on loose gravel, and ran into a truck proceeding in the opposite direction.

Claimant testified that he was traveling 35 to 40 miles per hour as he rounded a curve, and saw a slow stop sign; that he applied his brakes, and reduced his speed to 15 to 20 miles per hour; that his car skidded across the highway into the opposite lane, and struck the truck.

Claimant, on cross-examination, testified that there was heavy gravel on the road; that a claim was made against him through his insurance company for damages to the truck, and the claim of the trucking people had been satisfied.

The Departmental Report of the Division of Highways showed that the shoulders of the highway had been graded, and gravel placed thereon preparatory to oiling; that this work was done around June 15, 1950, and the road would have been oiled about August 18, 1950. During said period loose gravel was cast onto the pavement by passing vehicles, and was removed at short intervals.

The rule adopted on liability of municipalities by our courts is applicable to this situation. In the case of Storen vs. City of Chicago, 373 Ill. 530, the court, on page 534, held:

“A Municipal corporation is not bound to keep its streets and sidewalks absolutely safe for persons passing over any part of them, its duty being to exercise ordinary care. (Brennan vs. City of Streator, 256 Ill. 468; Boenier vs. City of Harvey, 251 id. 228; Kohlof vs. City of Chicago, 192 id. 249.) Municipal corporations, not being insurers against accidents, are not liable for every accident occurring within their limits from defects in the streets, but the defects must be such as could have been foreseen and avoided by ordinary care and prudence on the part of the Municipalities.”

and, in the case of Boender vs. City of Harvey, 251 Ill. 228, the court, on page 231, held:

“The obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary prudence cannot avoid danger or injury in passing them, - - in general, such defects as cannot be readily detected.”

and, as stated in Thien vs. City of Belleville, 331 Ill. App. 337, on page 345:

“Municipal corporations are not insurers against accidents, and the only duty cast upon the city is that it shall maintain the respective portions of the street in reasonably safe condition for the purposes to which such portions of the street are devoted. It is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their safety. (Molway vs. City of Chicago, 239 Ill. 486; Kohlof vs. City of Chicago, 192 Ill. 249; City of Salem vs. Webster, 192 Ill. 369.)”

This Court adopts the same construction of the law as applied to cities in defining the duty required of the State. The State is not an insurer against accidents. It is apparent that the maintenance of the area involved was not unusual, and was for the purpose of properly maintaining the highway. Other vehicular traffic caused loose gravel to accumulate on the paved portion of the highway, which was recognized, and, at intervals, it was removed. To require the State to keep highways absolutely clear of gravel at points and areas as here involved, would make the State an insurer against accidents. This duty is not required.

Claimant alleged in his complaint that, in attempting to stop behind a vehicle already stopped at the intersection, he skidded on loose gravel, which he called large gravel. Certainly the gravel was visible to him, and not a defect, hidden or not apparent. Claimant, in the exercise of ordinary care and caution, should have observed the condition, and conducted himself accordingly. Drivers on highways are bound to observe conditions readily visible, and not blindly ignore them.

The undisputed evidence shows the loose gravel was on the highway, as a result of other vehicles placing it there. Under the admitted facts, the alleged defect does not constitute actionable negligence on the part of the State.

For the reasons assigned, the claim will be denied.


text:
    (No. 4379
    Charles J. Smith, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Charles J. Smith, Jr., Claimant, pro se.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Charles J. Smith, Jr., claimant, was employed by the Department of Labor of the State of Illinois as a Field Investigator II at a monthly salary of $245.00, commencing on February 1, 1948. The instant claim is for salary for the months of December, 1948, January, 1949, and the first fifteen days of February, 1949.

The testimony showed that claimant was principally engaged to secure employment for veterans in the industrial area around Moline and Rock Island, Illinois. Claimant handled work sent him by the Department, and made monthly reports.

There is no dispute that claimant did not receive any formal notification of his termination of employment. However, claimant, himself, was apprised of this in January, 1949, and received no further work from the Department after November, 1948. In fact, the only report made for January, 1949, was a letter appearing as claimant’s- exhibit No. 6. Claimant, however, received a letter from Fred E. Staib, Supervisor, Employment Assistance Division, dated December 13, 1948, claimant’s exhibit No. 3, which is not disputed, indicating his December report or inventory would be due before January 10, 1949.

On this record, it is undisputed that claimant had no notification of any termination of his employment until he failed to receive his December check. However, after this, he was on notice, and this amounted to a termination.

The Court, therefore, concludes claimant is entitled to his salary for December, 1948 in the amount of $245.00.

An award is entered in favor of claimant, Charles J. Smith, Jr., in the amount of $245.00.


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    (No. 4384
    James Marsaglia, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    James Marsaglia, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, James Marsaglia, seeks to recover from respondent under the Workmen’s Compensation Act for the loss of the distal end of his right ring finger, as the result of an accident that arose out of and in the course of his employment as a temporary equipment operator for the Division of Highways.

Mr. James Marsaglia was 23 years of age, married, and resided in the Village of Auburn, Sangamon County, on May 17, 1950, the date of the injury complained of. He informed the Division of Highways that there were no children under 18 years of age dependent upon him for support.

He was first employed by the Division of Highways on January 16, 1950 as a common laborer, and at a wage rate of $1.00 an hour. With the exception of the period from March 30 to May 1, 1950, inclusive, Mr. Marsaglia was employed continuously by the Division of Highways, weather permitting, and work being available, from the date of his first employment until May 17, 1950, the date of his injury. During this period, Mr. Marsaglia was occasionally employed as a temporary equipment operator, and, when so employed, was paid a wage of $1.20 an hour. The Division paid Mr. Marsaglia $606.40 in wages during his period of employment.

On May 17, 1950, Mr. Marsaglia was using a Divison truck for the purpose of hauling dirt to be used in leveling shoulders on S.B.I. Route No. 29 at a point about 34 mile north of Sharpsburg in Sangamon County. At approximately 2:00 P.M., that day, Mr. Marsaglia was cleaning out the last of a load of clotted dirt and sod from the truck he was driving. To do this, he swung the endgate back and forth. While swinging the endgate, he caught his right ring finger between the endgate and the truck body, severely crushing the distal end of the finger.

He was taken to Dr. H. M. Wolfe, Taylorville, for such treatment as the doctor should advise.

On May 18, 1950, Dr. Wolfe submitted the following report to the Division of Highways :

“Distal end of right ring finger mashed, amputated near joint. Treatment— At St. Vincent’s Hospital, Taylorville, Illinois. Distal end of right ring finger amputated near joint. X-Rays — No. Remarks — After recovering from anesthetic, patient left hospital about 5 P.M. Estimated date of discharge — About 2-3 weeks. Estimated date of ability to return to work — Is going to do flag work on road. What permanent disability do you expect? — Loss of end of right ring finger. Date patient was discharged — Not discharged.”

Dr. Wolfe sent the following final report to the Division on June 26, 1950:

“Nature of Injury — Distal end of right ring finger mashed. Treatment — Removed distal end of right ring finger just distal to joint. Antiseptic dressings. X-Rays — No. Date patient was discharged — June 26, 1950. Permanent disability —Loss of end of right ring finger.”

Mr. Marsaglia returned to work the day following the amputation of his finger by Dr. Wolfe. Therefore, he was not paid compensation for total temporary disability.

The Division has paid the following creditors because of Mr. Marsaglia’s injury: Dr. H. M. Wolfe, Taylorville — $41.00, and St. Vincent’s Hospital, Taylorville — $22.75, totalling $63.75.

Although claimant had worked for respondent for less than one year at the time of the accident, employees engaged in similar work earned far in excess of $1,560.00 per year. Claimant’s compensation rate is, therefore, the maximum of $15.00. Since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making his compensation rate $22.50.

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

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act.

Claimant is entitled to an award for 50% loss of his right third, or ring finger, and under Section 8, Paragraph (e) (4) of the Workmen’s Compensation Act weeks at his compensation rate of $22.50 per week, or the sum of $281.25.

An award is, therefore, hereby entered in favor of claimant, James Marsaglia, in the amount of $281.25, which is payable forthwith.

Harry L. Livingstone was employed to take and transcribe the testimony in support of this claim, for which he made a charge of $17.40. We find this charge to be fair, reasonable and customary for the services rendered.

An award is, therefore, hereby entered in favor of Harry L. Livingstone in the sum of $17.40.

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


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    (No. 4404
    Charles O. McCay and William A. Hasse, doing business as McCay and Hasse, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Markman, Donovan and Sullivan, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimants, Charles O. McCay and William A. Hasse, doing business as McCay and Hasse, filed their complaint in which they seek to recover damages for delay in connection with a grade separation contract between claimants and respondent acting through the Department of Public Works and Buildings. Respondent has filed a motion to dismiss.

In November, 1946, claimants’ proposal to perform certain grade separation work in Cook County near 159th Street and Laramie Avenue was accepted by respondent, and a written contract was entered into. The contract price was slightly over $200,000.00.

At about the same time respondent entered into another contract with the Chicago, Rock Island and Pacific Railroad Company to perform certain other work in connection and conjunction with claimants’ work. The Railroad Company was over a year late in doing what it was supposed to do, and claimants were delayed on that account.

Claimants allege that, by reason of the extra year’s delay, they had to pay higher wages, and higher prices for materials to their damage in the sum of $30,633.94, and they further allege that no part of the delay was due to claimants’ derelictions.

The contract entered into between claimants and respondent is attached to the complaint. Several provisions of the proposal leading up to the contract, found on pages 2, 4 and 6 thereof, preclude extra compensation.

Under Paragraph No. 3 of the document entitled “Contract”, it is provided, among other things, that the “Standard Specifications for Road and Bridge Construction”, dated July 1, 1942, is an essential document of the contract between the claimants and respondent, and is made a part thereof. (Claimants’ exhibit “A”, page 37.) Article 5.7 of the Standard Specifications; for Road and Bridge Construction, adopted July 1, 1942, provides in part as follows:

a* *******
Each contractor involved shall assume all liability, financial or otherwise, in connection with his contract and shall protect and save harmless the Department from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project, and he shall assume all responsibility for all work not completed or accepted because of the presence and operations of the other contractors.
******* *»

In Illinois Steel Bridge Co. vs. State, 7 C.C.R. 75, this Court construed a contract provision almost identical with the above quoted provision from Standard Specifications, and held that such provision relieved the State of any liability for damages caused by delays of another contractor with the State. This decision binds us in this case.

We might also mention that the “equity and good conscience” test, which was used in certain eases cited by claimants, was abolished by the 1945 Court of Claims Act. Ill. Rev. Stat., 1949, Chap. 37, Secs. 439.1-439.24.

The motion of respondent to dismiss is sustained, and the case is hereby dismissed.


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    (No. 4418
    Christ J. Weber, Admr., Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

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

Claimant states that on March 22, 1951 he was duly appointed administrator of the estate of Willard G. Weber, deceased, by the Probate Court of St. Clair County, Illinois. The said Willard G. Weber died on July 2, 1950, leaving certain specified heirs.

The death of the said Willard G. Weber was caused by injuries sustained by him while in the employ of the Commercial Transport, Inc. Said Willard G. Weber was driving a tractor-trailer unit for Commercial Transport, Inc., which overturned when a slab of the concrete road broke while the truck was passing over a weakened portion of the highway. Claimant alleges the negligence of the respondent in the maintenance of said highway in his complaint.

The record consists of the .complaint, motion of respondent for an extension of time to file pleadings, order of Chief Justice granting motion for an extension of time to file pleadings, motion of respondent to dismiss, notice to call up motion to dismiss, and brief of claimant in opposition to motion to dismiss.

Respondent has filed its motion to dismiss the complaint herein, in accordance with the provisions of Section 29 of the Workmen’s Compensation Act, for the reason that on its face both the deceased employee, Willard G. Weber, and the respondent were bound by the Workmen’s Compensation Act.

Claimant, in his reply brief opposing the motion to dismiss, claims this case presents an entirely different situation with respect to the manner in which the accident arose. He argues that in all cases he has examined relating to the cause of action against a third person, said cause of action arose out of a positive act of negligence committed by the third person, or his employee, such as the operation of a truck in a negligent manner upon a highway; the operation of a train in a negligent manner. Claimant further argues that his petition filed in this case alleges that the State of Illinois was negligent in the manner in which it kept in repair a public highway in the State of Illinois.

We find nothing in any of the sections of the Workmen’s Compensation Act, which will support such a construction of the Workmen’s Compensation Act as argued by claimant.

For the reasons stated, the motion of the Attorney General to dismiss is granted, and the complaint herein is hereby dismissed.


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    (No. 4421
    Patrick J. Sullivan, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

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

On December 18, 19 and 20, 1950, the United States Senate Crime Investigating Committee, commonly known as the a Kef an ver Committee”, held public hearings in the United States Court House in Chicago.

Prior to the commencement of the hearing on the 18th, claimant, Patrick J. Sullivan, Jr., a free lance court reporter, was introduced by Peter G. Kuh, an Assistant State’s Attorney of Cook County, to A. G. Geocaris, then the acting Secretary of the Illinois Liquor Control Commission, in the vicinity of the room where the hearing was to be held.

Claimant had been employed by the Corporation Counsel of the City of Chicago, and the State’s Attorney of Cook County to report the testimony given at the Chicago hearings of the Kefauver Committee.

When Geocaris learned of this, he talked to claimant about doing some reporting for the Illinois Liquor Control Commission. We assume that Geocaris was authorized, in his official capacity, to bind respondent in whatever arrangement was made with claimant.

The dispute in this case arises out of what claimant and Geocaris talked about, since respondent has refused to pay claimant the sum of $443.00 for a copy of the testimony presented at the Committee hearings on December 18 and 19, 1950. Said transcript was 886 pages in length, and was charged for at the customary rate of fifty cents per page.

Claimant maintains that Geocaris asked for a complete transcript of the Chicago hearings, and is somewhat corroborated by Kuh in this regard.

Geocaris claims that all the Illinois Liquor Control Commission was interested in was the testimony of Abe Greenberg of the Canadian Ace Brewing Company, and Joseph Fusco of Gold Seal Liquors, two witnesses who were scheduled to appear before the Committee; and,: that all the claimant was supposed to furnish to the Liquor Control Commission was a transcript of the testimony of these two witnesses.

Claimant furnished Geocaris a transcript of the' first two days’ hearings, and, prior to the commencement of the hearings on the third day, Geocaris learned from counsel for the Committee that Greenberg and Fusco would not appear on account of illness. Thereupon, he called claimant, and told him to do no more reporting for the Liquor Control Commission.

On December 21, 1950, claimant billed the Liquor Control Commission for his services, and later talked to Geocaris about his bill, which such Commission finally refused to pay.

Geocaris retained the transcript furnished him by claimant until March 6, 1951, when it was returned to claimant.

The long delay in returning the transcript would seem to indicate that the Liquor Control Commission made some use thereof, yet on the date of December 19th, or prior to the commencement of the hearings of the 20th, Geocaris knew that the transcript already in his hands contained no testimony of Greenberg and Fusco. If the transcript he received was not what he had ordered, Geocaris should have returned it at once. His delay in so doing permits us to draw the inference that his recollection of the so-called “conditional” offer to claimant could have been inaccurate.

Furthermore, if claimant had not been given an order to furnish the Liquor Control Commission with a copy of the transcript, why did Geocaris call claimant before the third day’s hearing commenced, and instruct him, as Geocaris testified, “to discontinue further services”?

We, therefore, conclude that claimant was engaged to furnish a complete transcript of the testimony for the hearings on December 18 and 19, 1950, and is, therefore, entitled to an award.

An award is entered in favor of claimant, Patrick J. Sullivan, Jr., in the sum of $443.00.


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    (No. 4428
    Ernest Jenkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Ernest Jenkins, Claimant, pro se.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Ernest Jenkins filed his complaint on April 18, 1951, alleging that on January 21, 1951, while an employee of the Department of Public Welfare, Division of Nursing, at Jacksonville, Illinois, he was injured when struck in the left eye by a violent patient with his fist.

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

At the time of the accident, claimant was married, but had no children under 18 years of age dependent upon him for support. His annual earnings during the year immediately preceding the accident were $3,000.46.

On January 21, 1951, a newly admitted patient, Arthur Stewart, sat down on the floor while breakfast was being served. Claimant was in front of him, and a patient in back of him. As they were attempting to get him up, said patient struck Mr. Jenkins in the left eye, smashed his glasses, and inflicted an injury described as “discoloration around left eye”. The injury was described as follows “sclera of the left eyeball, swollen, with large hematoma around”. “Pupil dilated, does not react to the light. Vision very much diminished. Case referred to Dr. Alfred G. Schultz, oculist.”

Under date of February 21, 1951, Dr. Schultz reported as follows:

“The above patient was attended by me for an injury sustained while on duty 20 January 1951. He has been under my observation from that time until the present, and now is ready to return to duty.
The diagnosis of the injury sustained was rupture of left eye with prolapse of iris subconjunctivally with hyperemia, subconjunctival ecchymosis, contusion of left lids and orbital region. The eye has cleared quite satisfactorily, and at present his corrected left vision is 20/30-1 in the injured eye. This I do not believe should change periodically for the development of cataract, glaucoma or retinal change. At present there is no indication that these complications will develop, but it is still possible.”

Dr. Schultz testified at the hearing of this cause as follows:

“There is some discrepancy in vision, that I believe is secondary to this injury. His corrected vision at the present is 20/30, or as a guess, a decrease of about l/10th of what we would anticipate his vision to have been prior to the injury, judging from his right vision. In addition to the loss of his natural vision there is some permanent disability due to the deformity of the pupil, which allows for an increase in sensitivity to light, and has some dazzle effect on the vision.”

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

Claimant is entitled to an award of 10% loss of the use of his left eye, under Section 8, Paragraph (e) (16) of the Workmen’s Compensation Act, amounting to $270.00.

The claimant lost five and one-seventh weeks time as a result of the accident, and should be allowed temporary total disability for that period. Claimant’s compensation rate is the maximum of $15.00 per week; since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making his compensation rate $22.50 per week. As claimant was entitled to five and one-seventh weeks while temporarily totally incapacitated, he should have received $115.71. Claimant received from the respondent $329.33; therefore, he was overpaid the sum of $213.62, which must be deducted from his award, leaving a total award due in the sum of $56.38.

An award is, therefore, entered in favor of claimant, Ernest Jenkins, in the sum of $56.38, all of which has accrued, and is payable forthwith.

Dr. Alfred G. Schultz testified at the hearing that there is a balance due him for services rendered claimant in the sum of $63.50, and he is entitled to payment for these services.

An award is, therefore, entered in favor of Dr. Alfred G. Schultz in the sum of $63.50, payable forthwith.

The evidence discloses that Nancy H. Schindler was employed to take and transcribe the evidence at the hearing before the Commissioner. For said services she made a charge of $51.00, which we find is fair, reasonable and customary.

An award is, therefore, entered in favor of Nancy H. Schindler, Court Reporter, in the sum of $51.00.

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


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    (No. 4430
    Elsie M. Whan, Widow, Et Al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Hebel, Ives and Davis, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This is a claim for the death of Otis J. Whan, who, it is alleged, met his death while in the course of his employment for the Department of Conservation of the State of Illinois.

The admitted facts show that Otis J. Whan, 35 years of age, while in the course of his employment for the Department of Conservation, was, on the 16th day of January, 1951, supervising an under-the-ice fishing operation one-half mile north of Two by Four Island in the Mississippi River, about three to four miles south of Muscatine Dam, Iowa. While returning to the Illinois shore, the automobile in which he was riding broke through thin ice, and he was drowned. A formal inquest was conducted by the Coroner of Mercer County, and a verdict rendered “Death by Accidental Drowning”.

The facts show that decedent was survived by his widow, Elsie M. Whan, and a son, James Otis, aged 4 years. No jurisdictional questions are involved. Decedent’s earnings during the year preceding his death were $2,712.00.

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

An award in favor of claimant, Elsie M. Whan, in the sum of $6,675.00. Of this sum there has accrued to October 2, 1951, the sum of $832.50, being 37 weeks at $22.50 per week, which is payable forthwith.
The remainder of said award, in the sum of $5,842.59, is payable to claimant, Elsie M. Whan, at a weekly rate of $22.50, commencing October 9, 1951 for 259 weeks, with one final payment of $15.03.

Future payments, hereinabove set forth, being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction is hereby reserved for the purpose of making such further orders as may, from time to time, be necessary.

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


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    (No. 4439
    Gertrude Habel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Roy A. Ptacin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Gertrude Habel, seeks to recover from respondent under the Workmen’s Compensation Act for injuries to her right arm that resulted from an accident, which arose out of and in the course of her employment as an attendant at the Chicago State Hospital, operated by the Department of Public Welfare.

Just before midnight on December 9, 1950, claimant, who had just come on duty, was crossing the porch of the ward in which she was assigned to work. She slipped, fell, and struck her right side, especially her right elbow, causing a dislocated chipped fracture in the elbow joint.

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

The injuries to her right arm are now concededly permanent, and the only question before us is the determination of the percentage of loss of use of her right arm claimant has sustained.

The doctor, who examined claimant for respondent, and claimant’s doctor, who testified, are in virtual agreement as to limitation of flexion and extension of her right arm, and pronation and supination of her forearm and wrist, the variations in their findings being only 5%. We are prone to follow the findings of claimant’s doctor in this regard, since he examined her both prior and subsequent to the last examination by respondent’s doctor. At the time of this last examination, he found her limitations to be somewhat more severe than at his first examination.

Claimant has a 30 and 25% loss of flexion and extension, respectively, in her right arm. Pronation and supination show a 25% loss. Abduction in the shoulder •is lessened about 30%.

In addition, there was some atrophy of the right shoulder muscles, and a marked enlargement of the right elbow area. Bony changes in the olecranon process, and the fossae, which fit over the end of the humerus and the ulna, were noted. In addition, there was some osteosclerosis in the lower ends of the radius and the ulna, and one bone fragment was floating in the elbow region, never having attached to any bone since it was chipped off. Crepitation, rigidity, and spasticity of arm muscles were noted on manipulation, indicating traumatic arthritis.

The fall, claimant sustained, affected her wrist, forearm, elbow, and shoulder, and her arm will be carried in fixed flexion in the future. The joint space in her elbow is also permanently roughened. Any surgical attempt to improve claimant’s right arm was deemed inadvisable.

From the foregoing, we conclude that claimant has sustained a 66%% loss of use of her right arm, and is entitled to an award under Section 8 (e) (13) of the Workmen’s Compensation Act.

On the date of her accident, claimant was 41 years of age, married, but had no children under 16 years of age dependent upon her for support. Her earnings in the year prior to her accident amounted to $2,316.00, and her rate of compensation is, therefore, $22.50 per week.

Claimant was temporarily and totally disabled from the date of her accident on December 9, 1950 through June 6, 1951. She returned to work on June 7, 1951. During the period of total temporary disability she was paid the sum of $645.45 as compensation, when she should have been paid only $575.36, leaving an overpayment of $70.09, which must be deducted from her award.

William J. Cleary & Co., Chicago, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Anderson. Charges in the amount of $48.40 were incurred, which are reasonable and customary. An award is entered in favor of William J. Cleary & Co. in the sum of $48.40.

An award is entered in favor of claimant, Gertrude Habel, under Section 8 (e) (13) of the Workmen’s Compensation Act for a 66%% loss of use of her right arm, or 150 weeks at $22.50 per week, or the sum- of $3,375.00 less overpayment above referred to of $70.09, leaving a net award of $3,304.91, payable as follows:

$ 385.71, less overpayment of $70.09, or the sum of $315.62, which has accrued, and is payable forthwith;
$2,989.29, payable in weekly installments of $22.50 per week commencing on October 12, 1951 for a period of 132 weeks, plus one final payment of $19.29.

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


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    (No. 4444
    Jefferson Ice Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Donald J. Seeley, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This claim arises out of an action for damages to a truck of claimant by reason of a collision with a State Highway truck, in which it is claimed the State was negligent through its agent in the operation of the State truck.

The undisputed facts show that on March 28, 1951, at about 4:00 P.M., a State truck, operated by Arthur Miller, was parked on the outer lane of westbound traffic facing east on a four lane highway designated as U. S. Route No. 20, near Keeneyville, Du Page County, Illinois. The truck was loaded with fence posts taken up from properties on which had been located snow fences, and was parked behind another truck loaded with fence posts. Arthur Miller started the truck up, gave no signal, and proceeded diagonally across the highway into a driveway leading into a farmhouse for the purpose of turning around and going back west. As the State truck so proceeded, it struck the truck of claimant, operated by Robert N. Zerby, which was traveling in an easterly direction, resulting in the claimed damages.

Mr. Zerby, driver of claimant’s truck, stated he observed the State truck after he had reached the crest in the road about 200 feet away, sounded his horn, and thought he could have stopped at that point, if he had known what the operator of the State truck intended to do.

The weather was clear, visibility good, and the pavement was dry. The State truck was being operated on the wrong side of the road in an area of open country, and at a place where there were no intersecting streets or highways. Claimant’s truck was being operated on its right side of the road.

The evidence, without dispute, shows that the State truck was operated in a negligent manner, which was the proximate cause of the collision and damages to claimant’s truck, and, that claimant, through its agent, was in the exercise of due care and caution for the safety of its truck. The law will not permit the absurdity of looking and not seeing, when respondent’s driver could have looked and could have seen claimant’s truck, and avoided the collision and resulting damages to claimant’s truck.

The damages to claimant’s truck were in the amount of $578.25.

An award is, therefore, entered in favor of claimant for $578.25.


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    (No. 4449
    Walter De Vore, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 5, 1951.

    Gilster and Ebers, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Walter De Vore, filed his complaint on June 21, 1951, wherein he alleges that on January 28, 1949, while an inmate of the Illinois State Penitentiary at Menard, he was directed to work in the tin shop. On the particular day in question, he was cutting out handles for tin cups for use in the penitentiary by means of an electrically powered tin shears, whose mechanism was engaged or disengaged by means of a clutch, which was foot-operated. Claimant further alleges that this machine had been known to slip on previous occasions, causing the mechanism of the shears to become engaged with the power unit without actuation by the operator, and without the control of the operator. While performing his regular duties, the tin shears became engaged with the power unit without control of the claimant by means of the clutch slipping into contact. The third and fourth fingers on claimant’s left hand were sheared off at the first joints thereof, and his hand tendons were maimed and lacerated; and, as a result, claimant was hospitalized for a month. Claimant seeks $2,500.00 in damages from the respondent, State of Illinois.

The record consists of the complaint, motion of respondent to dismiss, notice to call up the motion of respondent to dismiss, brief of claimant in opposition to the motion of respondent to dismiss, and reply brief of respondent.

Respondent has filed its motion to dismiss the complaint, wherein it alleges that it appears from the face of the complaint that the claim is barred by the statute of limitations, more than two years having elapsed since the injury.

Section 22 of the Court of Claims Act reads as follows:

“Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

This Court held in Mc Elyea vs. State, 7 C.C.R. 69, as follows:

“The law of this State gives unto a prisoner serving a sentence in any penal institution the right to sue or to be sued in the Courts of this State during the period of such confinement. A convict does not lose his personal rights because of his imprisonment, although he is deprived by law of certain rights of citizenship. Therefore, as he possessed said personal rights the claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary.”

The complaint shows on its face that more than two years had elasped from the date of the alleged injury to the filing of the complaint. Therefore, under the law, this Court is without jurisdiction to hear and determine the claim for the reason that the statute of limitations had run against the claimant.

Having concluded that we are without jurisdiction to hear and determine this claim, it becomes unnecessary to discuss any other questions.

The motion of the Attorney General is allowed.

Complaint dismissed.


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    (No. 4291
    Peter Fuller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

    Pollock and Ennis, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant filed his complaint for damages based on the contracting of tuberculosis, while employed at the Illinois Soldiers’ and Sailors’ Home at Quincy, Illinois.

The complaint charges that claimant contracted tuberculosis by drinking out of the same cup as used by an inmate, Dixon Motley, who worked with claimant during the years of 1944 through 1946. The records show that Dixon Motley was transferred to the Veterans Administration Hospital at Excelsior Springs with active tuberculosis on July 9, 1946. Claimant charges the State negligently assigned him to work with an individual known to be suffering from tuberculosis, and negligently provided common drinking facilities for the claimant, and the known tuberculosis patient.

There is no charge in the complaint of a violation of any rule or regulation of the Industrial Commission made pursuant to the Health and Safety Act, or of a violation of a statute of this State intended for the protection of the health of employees. There is no evidence of any violations as above stated.

The evidence fails to show any knowledge on the part of the State that Dixon Motley was tubercular, and that the State knowingly required claimant to drink out of the same container as Motley. The proof shows that claimant was awarded Civil Service payments on the ground that his disease was service connected. However, to recover, claimant must establish negligence by showing that the State violated:

(1) a rule, or rules of the Industrial Commission made pursuant to the Health and Safety Act;

(2) a statute of this State intended for the protection of the health of employees. (Ramsey vs. State, 18 C.C.R. 174.)

Neither the complaint, nor the proof establish such negligence, and for this reason the claim must be denied.

Helen Woolley was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $26.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Helen Woolley in the amount of $26.00, payable forthwith.

On the basis of the record before us, an award to claimant will have to be denied.


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    (No. 4319
    William E. Frew, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1951, Judge Delaney dissenting.

      Petition of Claimant for rehearing allowed April 10, 1951.

      Motion of Claimant to dismiss allowed November 13, 1951.

    J. Harold Downey, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, William E. Frew, seeks to recover from respondent under the Workmen’s Compensation Act for injuries allegedly sustained as a result of an alleged accident, which claimant maintains occurred in the course of his employment as a foreman in the machine shop of the Illinois State Penitentiary, Stateville, Illinois, operated by the Department of Public Safety.’

On February 6, 1950, shortly after noon, claimant and an inmate of the penitentiary, Horace Carter, lifted a steel shaft, ten feet long and about two inches in diameter, weighing 100-125 pounds, to a height of four and one-half feet, and placed it on a lathe. Claimant then stated to Carter that the shaft was “awful heavy”.

Later that afternoon, claimant went to the toilet, but passed nothing. After work, claimant, at his home again sought to pass stool, but nothing happened. About 10:00 P.M. claimant again went to the bathroom at his home, but he fainted, and a doctor was summoned, who prescribed treatment. After the doctor left, claimant again went to the bathroom where he again fainted, but this time he vomited blood, and passed a black colored stool.

Thereupon he was taken to a hospital where he was found to have a perforated, bleeding peptic or duodenal ulcer. He has not recovered from the ulcer, and has ceased working for respondent.

Claimant did not notify his superior of his claim that the lifting of the shaft caused the aggravation of his ulcer until nineteen days after the date thereof, and no one knew of the claim of injury prior to that time.

The question in the case is whether claimant suffered an accidental injury that arose out of and in the course of his employment.

For the record in the case, two equally plausible inferences can be drawn, either of which is necessarily conjectural. One is that the strain of lifting the shaft aggravated the ulcer. The other is that his two attempts to pass a stool resulted in strain severe enough to aggravate this ulcer.

Under such circumstances, an award must be denied, since no award can be had on speculation, conjecture or the uncorroborated testimony of claimant. Reinertson vs. State, 17 C.C.R. 10; Mt. Olive Coal Co. vs. Ind. Corn., 374 Ill. 461.

Julia Hertz, Joliet, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. Her charges amount to $44.50, which are reasonable and customary, and an award is entered in her favor for such amount.

An award to claimant, William E. Frew, is denied.

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


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    (Nos. 4353-4354-4397-4398—Consolidated
    Gene Doolittle by Lorena Peterson, his mother and next friend, No. 4353, William Ott, No. 4354, Joyce Prokop, a minor, by John A. Prokop, her father and next friend, No. 4397, and Shirley Prokop, No. 4398, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

      Petition of Claimants for rehearing denied November 13, 1951, Judge Delaney dissenting.

    John Irving Pearce, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Having arisen out of the same accident, the four cases now before us for consideration were consolidated for hearing and opinion. All claimants seek to recover for the alleged negligence of respondent.

Case No. 4353 was filed by Gene Doolittle, driver of the automobile, for reimbursement for doctor and hospital bills, and also for personal injuries sustained in said accident.

Case No. 4354 was filed by William Ott to recover for damages sustained in said accident to his 1940 Chevrolet coupe.

Case No. 4397 was filed by Joyce Prokop, a minor, by her father and next friend, to recover for personal injuries sustained in said accident.

Case No. 4395 was filed by Shirley Prokop, now Shirley Simonelic, for personal injuries sustained in said accident.

On Sunday, September 3,1950, the claimant, Gene Doolittle, used, with his permission, a car belonging to his grandfather, claimant, William Ott. Accompanied by Shirley, Joyce, Joan and Audrey Prokop, he drove from Wilmington, Illinois to a drive-in theatre located near Kankakee, Illinois. At approximately 10:00 P.M. that night they left the drive-in theatre in Kankakee, and drove toward their home in Wilmington, Illinois, on Illinois Highway No. 113 North, which highway extends in a northwesterly and southeasterly direction between Wilmington and Kankakee, Illinois. Said highway, No. 113 North, was originally constructed as a 9 foot paved highway, but in 1944 that part of the highway between Kankakee and a point 300 feet northwesterly of what is locally known as Chicago Road was widened to 20 feet, and that part from 300 feet northwesterly of the Chicago Road to Wilmington continued as a 9 foot pavement, with 4 to 6 foot shoulders on each side of the highway. The point northwesterly from Chicago Road is on a curve to the left when traveling toward Wilmington, and immediately southeast of the Chicago Road intersection on the north shoulder of Route No. 113 North is a diamond shaped 24 inch x 24 inch sign with an arrow indicating a curve to the left.

Prior to September 3, 1950, the shoulders of said highway from the end of the two lane pavement to Wilmington were in the process of a maintenance operation to prepare them for black topping, and the shoulders were bladed in preparation for said black topping. The blading operation was done with one end of the scraper blade resting on the edge of the concrete slab.

As the claimants drove in a northwesterly direction along said highway, and as they rounded the curve at a point where the four-lane pavement merged into the single lane pavement, the driver of the car, Gene Doolittle, lost control of same, and the car went through a fence, and overturned in the field with the consequent injuries to the passengers. The car left the highway at a point approximately 100 feet beyond the end of the two-lane pavement, and came to rest in a field about 30 feet from the highway. Claimants, Gene Doolittle, Joyce Prokop and Shirley Prokop received injuries in the accident. At the hearing there was evidence as to the personal injuries sustained by each claimant, the amount of their bills, and loss of earnings during the period. Also evidence was introduced as to the value of the car in behalf of the claimant, William Ott.

There was also considerable evidence as to the condition of the road at the point in question, and the undisputed failure of the State to erect and maintain necessary signs warning of the change in pavement, and the construction in progress. The evidence on behalf of the claimants as to the condition of the road was very meager and indefinite, and their contentions are not borne out by the photographs taken the day after the accident, and introduced in evidence, to-wit: claimant’s exhibits Nos. 1, 2, 5 and 8. These pictures, in the opinion of the Court, show the shoulders of the road to be in fairly good condition. In fact, the photographs rebut almost entirely claimants’ contention that the shoulders were soft and covered with loose dirt and gravel, for tire tracks visible in the photographs disclose no ruts, but merely surface imprints; and the material on the shoulders, except for some loose stones, is obviously firmly compacted.

The evidence for respondent on the other hand as to the road, condition is more definite, and entitled to more weight. James L. Calhoon, maintenance field engineer from the Elgin office, testified that the shoulders at the point in question were in better than average condition, because of the concentrated effort that was being made to smooth them in preparation for the asphalt treatment. John M. Glenny, highway section man, in charge of the specific portion of the highway in question, likewise testified that the shoulders were in good condition; that they were approximately flush with the edge of the pavement, and that all the loose material was removed from the shoulders each day. We conclude that the preponderance of the evidence shows no negligence on the part of respondent.

Although the occupants of the car, other than Doolittle, testified they were either asleep or drowsy, and did not pay much attention to what was going on, Doolittle, who at the time of the accident was driving 40 miles per hour, testified that he was acquainted with the road, and had traveled over it the night in question on the way to the theatre. He had only been driving a car by himself for the period of several weeks, and his inexperience was in a large part the cause of the wreck.

One who has earlier the same evening driven over a certain stretch of highway is charged with a knowledge of its condition so long as the condition is unchanged on his return trip. Mounce vs. State, No. 4317, opinion filed April 10, 1951. In that case we held also that to approach a place of known danger without care commensurate with such danger is contributory negligence. We feel that the holding in the Mounce case is applicable in these cases.

In view of the foregoing, awards to all claimants must be denied.

Awards denied.


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    (No. 4358
    Martin Jackson Porter and Lillian Stroup, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 7, 1951.

      Petition of Claimants for rehearing denied November 13, 1951.

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

On October 20,1950, the complaint herein was filed by Anna Porter, next friend of claimant, Martin Jackson Porter, owner of a 1940 Packard Sedan. Mr. Porter was driving on Highway No. 48, south of Taylorville, Illinois. His car collided with a truck owned by the respondent, and operated by the Department of Public Works and Buildings of the Division of Highways of the State of Illinois.

At about 7:30 P.M. on the evening of March 12, 1950 the claimant came to a slight curve, and met a car going in the opposite direction. Both cars dimmed their lights, and claimant let up on the gas of his car. The lights on the approaching car affected his visibility, and, after the car passed, he saw a black object on the highway, which proved to be a truck belonging to the respondent.

He was about twenty feet from the truck. In order to avoid colliding with the truck, claimant swerved his car to the left, but on account of snow and ice on the highway, he could not stop. His car struck the truck on the left rear side, causing a total damage in the amount of $250.00. Claimant also alleges he suffered extensive injuries, for which he claims $3,000.00.

Claimant, Lillian Stroup, a sister of Martin Jackson Porter, who was riding in the front seat of the automobile, has also joined in this cause of action, alleging that she also suffered extensive injuries, for which she claims $3,000.00.

The record consists of the complaint, motion of respondent for an extension of time to file pleadings, order of Chief Justice granting respondent an extension of time in which to file pleadings, claimants’ amended complaint, transcript of evidence, motion of claimants for leave to waive filing of abstract of evidence, and claimants’ statement, brief and argument.

Respondent’s truck was scattering cinders on the slippery pavement at the time of the accident. Mr. Lawrence D. Wells was driving the truck at a slow rate of speed, and Mr. Allie Durbin was in the dump bed scattering the cinders.

In this complaint claimants allege that the negligence of respondent in failing to display signal lights, and failure to place signal lights around the truck were the proximate causes of the accident. At the hearing before our Commissioner, Frank Summers, claimants testified that the truck was parked on the right lane of the two lane pavement without lights. The employees of respondent testified that all of the lights on the truck were burning at the time of the impact, and that a blinker light in the center of the cab on top of the truck, which is visible from both directions, was also operating at the time.

The record shows that claimants were involved in a prior accident earlier in the evening at Taylorville, Illinois, and both of respondent’s employees testified that they saw claimants’ car approaching, and that only one head light was burning immediately before the accident.

Although the record shows that claimants have sustained painful and serious injuries, and the loss of the automobile in question, to recover, claimants are required to prove negligence of the respondent. The evidence is to the contrary. The record fails to show that claimants were free from contributory negligence, and that respondent did not exercise due care and caution in the maintenance of the highway.

For the reasons stated, an award is denied.


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    (No. 4396
    Reynolds Reavy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

    Robert T. Swengel, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Reynolds Reavy, was employed on July 9, 1950 by the respondent in the Department of Public Welfare as Cottage Parent II at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. On said date, while in the course of his employment, he fell on the sidewalk, and sustained a fracture of the radius of the right forearm. Claimant was treated by Dr. Ralph Peairs after an X-Ray by Dr. Irwin.

In his report, dated September 5, 1950, Dr. Peairs stated:

“The fracture is apparently healed, but motion of the elbow joint is restricted. He is able to flex the arm to a right angle, and can extend it to about 45 degrees beyond the point of flexion.”

In a report of Dr. Peairs, dated September 8, 1950, he stated:

"At present the fracture is apparently healed, but motion of the elbow joint is limited to about 45 degrees. He has not been very cooperative, and I think failure to maintain passive motion while the fracture was healing has much to do with the limited amount of motion in the elbow joint. I believe he will have a useful arm, but motion will probably be permanently limited.”

The claimant was examined by Dr. Bruce I. Ryder on October 10, 1950. In his report, Dr. Ryder stated:

"Loss of flexion (at elbow) - 45 degrees. Loss of extension of elbow - 45 degrees. The function of rotation of radius on ulna is deficient in supination. One sees no loss of pronation of radius about ulna - right forearm. There is no loss of motion about the right shoulder joint. There is no loss of motion about the right wrist joint.”

In his final report, dated March 15,1951, Dr. Peairs stated:

“The fracture has healed, and he is able to use the arm, but motion of the elbow joint is partially limited. Rotation and supination of the forearm is satisfactory. Flexion and extension of the forearm is limited. When the forearm is placed at right angle to the arm, he is able to flex the forearm only about 40 degrees. When extension is made from the same position, movement extends over an angle of about 50 degrees. This limitation of motion will be a partial permanent handicap to him.”

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

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, transcript of evidence, reporter’s bill, and abstract of evidence.

The evidence shows that claimant was 42 years of age at the time of the accident, and had no children under 18 years of age dependent upon him for support. The claimant’s earnings in the year preceding the accident were $2,139.23. Claimant’s compensation rate would, therefore, be the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50.

From the medical testimony, and the observations of Commissioner Summers of claimant’s right arm, we feel that claimant has suffered a 25% loss of use of his right arm. For 25% permanent loss of use of his right arm under Section 8, Paragraph (e) (13), the claimant should receive from the respondent $22.50 per week for 56^4 weeks, or the sum of $1,265.63.

The claimant worked from the day of the accident to July 20, 1950. His wages were at the rate of $186.00 per month at the time of the injury; therefore, he would be entitled to the sum of $62.00 to July 20,1950. He was paid $330.40 by respondent subsequent to his accident, which would be an overpayment of $268.40. The claimant has suffered a temporary total loss of 3 weeks from July 20 to August 10, 1950. Claimant should be allowed the sum of $67.50 for 3 weeks of temporary total disability, which represents 3 weeks at the rate of $22.50 per week, or a total sum of $1,333.13 for specific loss and temporary total disability.

Claimant is entitled to the sums of $14.00 that he paid to Dr. Cooper, and $5.00 to Dr. Ryder.

An award is, therefore, made to claimant, Reynolds Reavy, in the sum of $1,352.13, less overpayment for non-productive time of $268.40, or the sum of $1,083.73, all of which has accrued, and is payable forthwith.

Mary I. Reynolds was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $59.50 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Mary I. Reynolds in the amount of $59.50, payable forthwith.

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