author: Lansdeh, J.

text:
    (No. 4201
    Edward P. Neiweem and Calvert Fire Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1950.

    Henry L. Arnold, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansdeh, J.

Edward P. Neiweem has filed his complaint in this Court seeking to recover for personal injuries and property damage allegedly sustained as result of a collision near LaCrosse, Wisconsin, between a motor vehicle driven by him and a jeep driven by a Captain Baird, a chaplain on active duty with the Illinois National Guard, who on the date of the accident, July 29, 1948, was engaged in summer training maneuvers at Camp McCoy, Wisconsin, with the 33rd Artillery Division of the Illinois National Guard.

Calvert Fire Insurance Company, a Corporation, joins in Neiweem’s complaint as a claimant by reason of a subrogation agreement between it and Neiweem, the company having paid to Neiweem the sum of $472.65 for damages to Neiweem’s vehicle as result of said collision.

Respondent has filed a motion to dismiss the complaint and the action on the ground that this Court has no jurisdiction of this type of claim.

Respondent relies on Myers v. State, 17 C.C.R. 55, to sustain its contention that this Court is without jurisdiction. That case held that a member of the Illinois Reserve Militia on active duty was not an employee of the State of Illinois and therefore the State was not responsible for his negligence, and the Court further construed the following language of Section 8 C of the Court of Claims Act “the negligence of its officers, agents, and employees in the course of their employment” as being limited to the master and servant relationship. A vigorous dissenting opinion was written by Judge Eckert in the Myers case, and we agree with Judge Eckert and do hereby overrule the holding in the Myers case that a member of the Illinois Reserve Militia on active duty is not an officer, agent and employee of the State.

A person in the armed forces of the United States is an employee of the Government, 28 U.S.C., Sections 1346 (b), 2671; Brooks v. U. S., 337 U. S. 49, 93 L. Ed. 884. The interpretation that we have given to Section 8 C makes the position of this Court consistent with the Federal Tort Claims Act, 28 U.S.C., Sections 1346 (b), 2671-2680.

But does the overruling of portions of the Myers case benefit claimants in this case? Our inquiry must necessarily be directed now to the question of whether Captain Baird, under the facts alleged in the complaint, was an agent of the State of Illinois or the United States of America. We think and do so hold that Captain Baird, under the facts alleged in the complaint, was not an agent of the State of Illinois but on the other hand was an agent of the United States of America.

In reaching this conclusion, we have examined in detail the provisions of the statutes of Illinois relating to State Militia, Ill. Rev. Stat. 1949, Chap. 129, Sections 1-210, and we have compared that statute with the laws of the United States relating to the National Guard, 32 U.S.C., Sections 1-195.

By reason of Article 1, Section 8, Paragraph 16, of the Constitution of the United States, which reads as follows:

“To provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the, discipline prescribed by Congress,”

the laws of the United States relating to the National Guard, 32 U.S.C., Section 1 et seq., are paramount.

For a State Militia to be subject to tbe Federal National Guard Statutes, it must bave been federally recognized, 32 U.S.C., Sections 4, 4a and 4b. That tbe Illinois National Guard bas been federally recognized is in this case certain by reason of tbe fact that summer training maneuvers were being conducted at Camp McCoy, Wisconsin.

Officers and enlisted men of tbe National Guard take a dual oatb to obey tbe orders of tbe President of tbe United States and tbe Governor of tbe particular state, 32 U.S.C., Sections 112, 123, and this dual oatb indicates that at certain times members of a State National Guard unit may be agents of tbe United States of America and at other times may be agents of a particular state. In fact, 32 U.S.C., Section 20, when compared with Section 1.94 leads to that conclusion. Said Section 20 reads as follows:

“Officers of the National Guard of the United States, while not on active duty, shall not, by reason solely of their appointments, oaths, commissions, or status as such, or any duties or functions performed or pay or allowances received as such, be held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United- States.”

Said Section 194 reads as follows:

“No State or Territory or Puerto Rico or the Canal Zone shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this title: Provided, That nothing contained in this title shall be construed as limiting the rights of the States and Territories and Puerto Rico and the Canal Zone in the use of the National Guard within their respective borders in time of peace: Provided further, That nothing contained in this title shall prevent the organization and maintenance of State or Territorial police or constabulary.”

Since by Section 194 no state may order its National Guard used outside of its borders in time of peace, tbe Illinois National Guard while on summer training maneuvers at Camp McCoy, Wisconsin, in the summer of 1948 could only be under Federal jurisdiction and its members were, therefore, agents of the United States of America. July 29, 1948, for purposes of the National Guard, was a time of -peace. 32 U.S.C., Section 164e; Cong. Res. July 25, 1947, Chap. 327, Section 3, 61 Stat. 451.

In view of the foregoing, the motion of respondent to dismiss the complaint and the action is hereby sustained and the action is dismissed.


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4203
    Flossie Barbee, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1950.

    Feed L. Wham, Jr., Attorney for Claimant.
    Ivan A, Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On October 20, 1948, claimant, Flossie Barbee, was the owner of a 1940 Dodge sedan automobile. On said date at approximately 5:45 P.M., said automobile was being driven by Wallace D. Barbee, son and agent of claimant, Flossie Barbee, in an easterly direction on the south side of a concrete highway known as U. S: Route No. 50, about one and one-half miles east of Odin, Illinois. Said highway was undergoing repairs and a large exeavation had been dng by the State of Illinois on the sonth lane at a point where the view of the highway was obscured to anyone approaching from the west by a slight rise in the pavement. The evidence shows that the agents of respondent did not put out flares until after dark and as a result the automobile in question was driven into the excavation where a fourteen foot portion of the pavement had been removed.

As a result of the negligence of respondent, claimant’s automobile was damaged to the extent of $659.83. There was paid the claimant by the Protective Mutual Casualty Insurance Company the sum of $609.83 because of a collision policy which it carried on claimant’s car and to which amount the company is entitled to reimbursement by reason of its right of subrogation under the policy. The claimant, Flossie Barbee, has not received reimbursement of the $50.00 damage sustained by her.

The record in this case consists of the complaint, departmental report, transcript of evidence, abstract of evidence, claimant’s statement, brief and argument, additional abstract of evidence, respondent’s statement, brief and argument and claimant’s reply brief.

The evidence further shows that the claimant, Flossie Barbee, was the sole owner of the automobile which was damaged.

An award is, therefore, entered in favor of claimant, Flossie Barbee, for the sum of $50.00, and an award is also entered in favor of the Protective Mutual Casualty Insurance Company for the sum of $609.83.


author: Lansden, J.

text:
    (No. 4125
    Olga Gaebel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

      Petition of Claimant for rehearing denied February 14, 1950.

    Talcott & Talcott (Edward M. Burke, of Counsel), Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colo han, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Olga Gaebel, widow of Frank B. Gaebel, deceased, seeks to recover from respondent under either the Workmen’s Compensation Act or tbe Workmen’s Occupational Diseases Act for the death of her husband.

Gaebel, aged 55, was, on January 4, 1948, employed in the Department of Public Works and Buildings, Division of Highways, for which Division he had worked continuously since April, 1941. On that day he performed his regular duties driving a snow plow. He worked from 10 A.M. to 8 P.M. with one-half hour at home for lunch. His work that day was his usual winter work, and he sat in a heated cab while cleaning the snow from the highways. Nothing unusual happened in the course of the day except four or five cars were pulled out of snow drifts. At the conclusion of his day’s work, Gaebel and his helper went to a tavern for a drink, Gaebel having a shot of liquor but not finishing his beer. Upon his arrival home, he complained of being ill. A doctor was called the next morning who diagnosed his trouble as a cold and sore throat. A gargle and sulfa drugs were prescribed. Gaebel’s temperature was normal, and his doctor did not check his pulse, heart or blood pressure. The doctor was vague, indefinite and uncertain about Gaebel’s condition except as to his sore throat. His testimony is of doubtful probative value. There was some testimony as to a preexisting condition of nervousness for the year previous.

From January 5 till January 8, 1948, Gaebel stayed at home attended by his doctor. On the latter date, on his doctor’s recommendation because of his inability to swallow normally, he was taken to Gook County Hospital in an ambulance. Gaebel died there on January 13, 1948.

It would serve no useful purpose for this Court to detail and weigh the evidence in point. To do so would extend this opinion to great lengths.

The testimony of the attending physician does not support claimant’s theories of the case. The death certificate admitted in evidence showed the cause of death as cerebral thrombosis and contained no remarks as to associated diseases or other conditions, yet Gaebel had been taken to the hospital because of his sore throat.

Counsel for claimant asked a long hypothetical ■question early in the case, stating that before the hearing was closed all facts would be in evidence upon which such hypothetical question was based. Counsel took a Mg chance and counsel lost. He never did get into evidence all of- the facts that were required to make the’ proof under hypothetical question and amendments thereto proper. Bespondent’s objection was preserved and was well taken. Taking from the record the hypothetical question and the answers thereto, claimant’s case falls. Eckels v. Hulsten, 136 Ill. App.; Haish v. Payson, 107 Ill. 365; Hoxey v. St. L. & S. Ry. Co., 171 Ill. App. 76.

Counsel for claimant in their brief argue at great length on the authority of Mower v. Williams, 402 Ill. 486, that G-aebel was engaged in a hazardous occupation and, therefore, entitled to the benefits of the Workmen’s Compensation Act. That he was is no longer an open question in this Court. Each and every employee of the State is entitled to the benefits of the Workmen’s Compensation Act. The leading case and one wMch directly decides this question is Miller v. State, 16 C.C.R. 194.

But whether a case has been made out under the Workmen’s Compensation Act is the question before us in this case.

The facts in the case do not disclose that claimant has sustained her burden and an award must be denied, under both the Workmen’s Compensation Act and the Workmen’s Occupational Diseases Act. Claimant has failed to prove that the deceased sustained an injury in an accident arising out of and in the course of his employment. Crusan v. Ind. Com., 350 Ill. 407; Fittro v. Ind. Com., 377 Ill. 532; McKee v. State, 10 C.C.R. 460. Claimant has likewise failed to prove that the deceased contracted a disease as an incident to his employment as a result of wMch he died, said disease having been caused by the negligence of respondent. Domke v. State, 12 C.C.R. 451; Wheeler v. State, 12 C.C.R. 254; McNutt v. State, 17 C.C.R. 18.

Conjecture and speculation form no basis for an award by this Court. Reinertson v. State, 17 C.C.R. 10.

A portion of this case has involved an attempt by claimant to have this Court determine her rights under the Illinois State Employees Retirement System. This Court is not the forum in which to raise such questions, since the statute provides for administrative proceedings, remedies and determination subject to judicial review under the Administrative Review Act, Ill. Rev. Stat. 1949, Chap. 127, See. 215-246, specifically Section 228a.

An award to claimant is denied.

Rothbart & Sewell, Court Reporters, 120 South LaSalle Street, Chicago, Illinois, were employed to take and transcribe the testimony before Commissioner Young. Charges in the amount of $58.75 were incurred, which charges are reasonable and customary. An award is entered in favor of Rothbart & Sewell for such amount.

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


author: ScHTJMAM", C. J. JUDGE LANSDEN:

text:
    (No. 4135
    Great American Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

      Petition of Claimant for rehearing denied February 14, 1950.

    Barber, & Barber, by Mr. Henry R. Barber, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHTJMAM", C. J.

The facts disclose that Great American Insurance Company owned 100% of the stock of the County Fire Insurance Company of Philadelphia, a Pennsylvania Corporation, except 20 director qualifying shares on which said company had the option to purchase.

Both of said companies had for many years done an insurance business in Illinois and had paid an annual privilege tax.

That said companies had an agreement dated July 1, 1947, which provided that all business of the County Fire Insurance Company was the business of the Great American Insurance Company, and that Great American received all of the premiums and were liable for all risks the .same as if such policies had been issued in the name of the Great American .(Exhibit B).

That on April 8th, 1948 a reinsurance agreement was entered into by the .parties and it is noted no cash consideration appears in said contract for transfer of said property. It is apparent the agreement was to be effective upon the dissolution of the County Fire Insurance Company.

That on April 14, 1948, a petition for voluntary dissolution was filed in the Court of Common Pleas No. 3 for the County of Philadelphia, Commonwealth of Pennsylvania, and on April 26th, 1948 a decree of dissolution was entered, but not to be effective until the Auditor General, State Treasurer and Attorney General had filed certificates showing all taxes due to the Commonwealth of Pennsylvania had been paid and a certified copy of the decree filed and recorded in the office of the Secretary of the Commonwealth; that Exhibit 6 shows all of the requirements of said decree were met on June 1, 1948 and on August 9, 1948 a decree was entered approving the transfer of the assets of the County Fire to the Great American.

That the Director of Insurance of Illinois pursuant to a report of gross premiums received by the County Fire Insurance Company for the year ending December 31,1947, made an assessment of privilege tax against said County Fire Insurance Company in the amount of $4,289.29 for the privilege of doing business for the year commencing July 1, 1948; that said Director about May 1st, 1948 rendered to said County Fire Insurance Company a statement of said assessment and on or about May 17th said company paid to the State of Illinois said tax.

Exhibit No. 3 dated May 15, 1948 is the assessment of the privilege taken and is shown addressed to the County Fire Insurance Company and received by Great American Insurance Company, this exhibit showing tax due July 1, 1948 and objections to be filed, if any, by June 21st, 1948 at 9:00 A.M.

Exhibit 8 shows County Fire Insurance Company notified the Director of Insurance of Illinois on April 20, 1948, among other things, the following:

“This Company has filed, a Petition for Voluntary Dissolution in the Court of Common Pleas for the County of Philadelphia, Commonwealth of Pennsylvania. The Great American Insurance Company of New York owns all of the Capital Stock of this Company and the Boards of Directors of both companies have voted to liquidate the County Fire Insurance Company. The purpose of this transaction is to simplify the corporate structure of the Great American Group."
“According to our records there will be due the State of Illinois, taxes on premiums written during 1947 which we will be glad to pay before the dissolution if necessary. These taxes, pursuant to the reinsurance agreement, will become liabilities of the Great American in addition to the tax which will accrue on premiums written in 19^8 up to the date of complete liquidation."

Exhibit 9 shows a letter to the County Fire Insurance Company from J. Thor Wanless, Deputy Insurance Director, dated April 30, 1948, and showed received by .Great American Insurance Company, and that upon receipt of a statement from a responsible officer of Great American that taxes on 1947 and 1948 business of County would be paid by Great American, the certificate of authority would be cancelled and a statement of taxes due was sent.

That the privilege tax paid by County Fire to the Director of Insurance was immediately turned over to the State Treasurer.

Claimant contends that the privilege tax paid by County Fire for the year commencing July 1, 1948 never became due and payable and said amount is recoverable under the provisions of Sec. 412 (4) of the Illinois Insurance Code.

A great deal of time has been spent on the question of whether the tax was paid voluntarily, or under protest. The cases cited and argued are in the main devoted to situations where a tax is paid voluntarily and no statutory provisions exist for repayment. In such cases the courts have denied relief.

However, in cases where statutes contemplate a refund or other provisions are set up for credits, where tax overpayments have been established, the courts have held that it did not make any difference whether payments were made voluntarily and without protest, and whether the mistake was one of fact or of law. These cases, however, are construed in accordance with the particular statutory provision. In the cases allowing refunds appropriations had been set up by the departments to cover such situations.

In the instant case there is no evidence of any appropriation available in the Department of Insurance, and, if there was, petitioner would have an adequate remedy at law and this Court would have no jurisdiction.

In the case of Adams vs. Nudelman, 375 Ill. 217 at page 219, it is held:

“No case from this court is cited, and we apprehend that none can he, where the State Treasurer and State Auditor have been compelled to pay money out of the treasury without any appropriation therefor, and it is admitted there is no appropriation applicable to this case.
No matter by what name this suit may be called it is, in substance and in necessary effect, a suit against the State and section 26 of article 4 of the constitution provides that the State of Illinois, shall never be made defendant in any court of law or equity.
The constitution also provides in section 7 of article 9 that all taxes levied for State purposes shall be paid into the State treasury. This last provision is implemented by the State Government act (Ill. Rev. Stat. 1939, chap. 127, par. 171) which requires every board, commission or department collecting money on behalf of the State to pay the same into the State treasury not later than the next day after collection, disregarding holidays and Sundays. The next section following that above mentioned provides a means whereby a taxpayer may, by notice to the State Treasurer, make payments under protest, in which event the money shall be kept in a protest fund for a period of thirty days during which an injunction or restraining order may be .sought for testing the validity of the tax, and providing that such fund .shall be held until the final order of the court. Plaintiffs did not comply with this statute, did not make payment under protest and admit that the moneys they paid have long since been paid to the State Treasurer.”

There is no dispute that the tax in this case was voluntarily made. The petitioner, or the County Fire Insurance Company, had a remedy under Chapter 127, Paragraph 172, Illinois Revised Statutes (State Bar Edition) (Adams v. Nudelman, supra; Farm Bureau Oil Co. Inc. vs. State of Illinois, 14 Court of Claims Reports, 153 at 155.)

Under the decisions of onr courts the money having been paid into the State Treasury, and no appropriation being applicable for the refund in this case, the claim will have to be denied. (Adams v. Nudelman, supra.)

We have carefully considered the decisions cited by claimant, and find that said cases are not in point.

Another reason why the claim will have to be denied is that in effect the County Fire Insurance Company became merged with the Great American Insurance Company, and under Section 409, sub-paragraph (3) of the Insurance Code, the tax is deemed paid by said Great American Insurance Company. Claimant contends contract between County Fire and'claimant evidenced a sale and did not operate to effect a merger or consolidation.

The reinsurance agreement contemplated a dissolution of the County Fire, and was definitely predicated thereon. Exhibit 8 showed the. purpose of liquidating the County Fire was to simplify the corporate structure of the Great American. The reinsurance agreement itself showed that as of July 1, 1947 all policies issued by County Fire were in effect policies of the Great American and Great American received all of the premiums.

Great American, it is admitted, owned and controlled all of the stock of the County Fire. By whatever technical construction you view the transaction it was simply an absorption by the Great American of something it already owned and controlled and to thereafter operate the two enterprises as one.

In Gunggall v. Outer Drive Athletic Club, 349 Ill. 406, the court on page 413, said:

“A consolidation of corporations has been defined to be a merger,, a union or an amalgamation by which the stock of the two corporations, is made one, by which their property and franchises are combined into, one, by which their powers become the powers of one, by which their names are merged into one, and by which the identity of two practically, if not actually, runs into one. This was the definition formulated by the Supreme Court of Montana after an exhaustive examination ¡of a great many adjudicated cases and text books and a consideration of a large number of constitutional and statutory provisions of the different States, in State vs. Montana Railway Co., 21 Mont. 221.”

On pages 414 and 415 of the same opinion, the court •quoted from the case of Chicago, Santa Fe & California Ry. Co. v. Ashling, 160 Ill. 373, as follows:

“It was said that “it is true that what was done must be considered in order to¡ determine whether there was a consolidation or not, but we must look to the results accomplished, rather than to the means, steps or procedure by which those results have been attained.” The fact was then referred to as going far toward stamping the transaction as one of consolidation, that in addition to the consideration of one dollar to be paid by the Santa Fe company and the assumption and payment of the bonded indebtedness of the St. Louis company, the Santa Fe company was to issue its stock to the stockholders of the Santa Fe company, dollar for dollar, in exchange for its stock in the latter company. The effect of this was to incorporate in the Santa Fe company the stockholders of the St. Louis company, combining all the stockholders of each company in one. “This,” the court said, “was an act of consolidation and not by any means necessary to a mere purchase and sale. * * * * By the transaction the St. Louis company was left without property, corporate rights: or franchises of any kind, and without stockholders. All of these were transferred bodily to the Santa Fe company, and became united, respectively, with the property, rights, franchises and stockholders of the latter company. Why was this not a consolidation of the St. Louis company with the Santa Fe •company? There is no magic in words. Merely calling the transaction a purchase and sale would not prevent it from being a consolidation. It cannot be: supposed from the nature of this transaction that it was •expected that the St. Louis company should continue its active corporate existence after divesting itself of all its property, corporate rights .and franchises and stockholders.”

In the case cited by claimant, Morris v. Interstate Iron & Steel Co., 257 Ill. App. 613, at page 620, tbe court .said:

“The contract alleged in the present bill is not one by which two corporations agree to go out of existence and permit a new corporation to succeed to their corporate rights and franchises, nor is it one where one corporation is continued and the other merged, but it is a sale by •one corporation of its property and assets to another, both corporations •continuing to exist. The Illinois corporation did not agree to transfer its corporate franchise: to the New York corporation, nor could it sell its franchise. (See People vs. Union Gas Co., 254 Ill. 395, 404.) Nor was the Illinois corporation dissolved hy the sale of all of its property.”

There is no law submitted as to legal requisites of merger with reference to Pennsylvania or New York.

Fletcher on Corporations, Yol. 15, Sec. 7041, provides :

“Strictly speaking a merger means the absorption of one corporation by another, which retains its name and corporate identity with the added capital franchises and powers of the merged corporation. It is the uniting of two or more corporations by the transfer of property to one of them, which continues in existence, the other being merged therein.”
“Sec. 7046: * * * * there is no merger or consolidation merely because the stockholders of two corporations are largely or wholly the same, * * * *. Such stock ownership and control may, however, when taken in connection with other circumstances force the conclusion that there has been a merger of the companies, and the legal fiction of distinct corporate existence will be disregarded in a case where a corporation is so organized and controlled, and its affairs are so conducted, as to make it merely an i/nstrumentality or adjunct of another corporation.”

The words of tbe reinsurance agreement and tbe true intent and purpose of tbe contracting parties determines whether or not a merger was contemplated. (C. & E. I. R. R. Co. vs. Doyle, 256 Ill. 517.)

The stipulation of facts does not set forth the petition to dissolve the County Fire, nor the complete proceedings relating thereto.

The reinsurance agreement, as stated, required the County Fire to be dissolved and upon its dissolution agreement of July 1, 1947 was to be cancelled; the final decree of court approved the. transfer of the assets to Great American; all of these requirements would not be necessary to an ordinary sale of assets and definitely showed an intention to merge the County Fire into the Great American.

For the reasons above set forth the claim will be-denied.

(No. 4135 — Claim denied.)

Great American Insurance Company, Claimant, vs. State of Illinois, Respondent.

CONCURRING OPINION OF

JUDGE LANSDEN:

I agree with the result of the case, but I am unable to concur in those portions of the opinion which intimate that this Court is without jurisdiction or power to make an award if claimant was otherwise entitled thereto.


text:
    (No. 4136
    Elwyn H. Troth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

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

Claimant, Elwyn H. Troth, was employed on November 26, 1947, as a highway section man’s helper in the Division of Highways. On that day while riding on a truck owned and operated by the Highway Department of the State of Illinois, claimant and another employee stood in the truck to hold two rolls of snow fence when the truck stopped suddenly causing claimant to fall to the pavement. The claimant injured his right side and claims injury to his head, right arm and side. Two or three weeks after the accident claimant was suffering from a hernia which developed on the edge of a scar resulting from an operation for a ruptured appendix. At the time of the appendix operation drains had been placed in the claimant’s abdomen because of péritonitis with abscess. On August 17, 1948, an operation was performed on claimant by Dr. E. C. Burhans, assisted by Dr. A. H. Clark, to repair tbe hernia in qnestion.

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

Tbe record consists of tbe complaint filed November 24,1948, departmental report, transcript of evidence, motion of claimant for a further extension of time in which to file testimony.

Dr. E. C. Burhans made a charge of $150.00 to the claimant for tbe operation. This amount included fee for assistance by Dr. A. H. Clark. Tbe claimant incurred an additional expense of $122.00 hospital bill and $10.20' drug bill to Sutliff and Case. Following bis operation tbe claimant was paid for tbe remainder of August and for tbe month of September, 1948, in tbe amount of $267.10.

Under Section 8 (d-1) of tbe Workmen’s Compensation Act of Illinois, an injured employee, to be entitled to compensation for hernia, must prove:

1. Tbe hernia was of recent origin;

2. Its appearance was accompanied by pain;

3. That it was immediately preceded by trauma arising out of and in tbe course of employment;

4. That tbe hernia did not exist prior to tbe accident.

In tbe case of O’Gara Coal Co. v. Industrial Commission, 320 Ill. 191, tbe Supreme Court said:

“Post-operative hernia, which appears in a very considerable percentage of cases, where an operation has been performed and there has been drainage through the abdominal wall for a considerable length of time; that the injury hastened it; that it would have occurred by the normal pressure of the abdominal contents from the inside out, gradually stretching the scar tissue; that the hernia would keep on getting larger.”

Although claimant did no productive work following. his operation, during the remainder of August and the full month of September, 1948, he was paid full salary-in the amount of $267.10.

From the evidence, we must conclude that claimant elected to secure his own physician. Under Section 8, Par. (a) of the Workmen’s Compensation Act, this service, under such conditions, necessarily must be at his own expense.

Award denied.

The testimony on the hearing before Commissioner .Summers was taken by Emma Bowers, who has submitted .a statement for $25.00 for her service. This charge is reasonable and proper.

An award is, therefore, made in-favor of Emma Bowers for stenographic and reporting services in the amount of $25.00, which is payable forthwith.


text:
    (No. 4142
    Ella Cushman, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1949.

      Petition of Claimant for rehearing denied September 23, 1949.

      Motion of Claimant for new trial denied February 14, 1950.

    Frank R. Eagleton, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Ella Cushman, widow of Clyde E. Cushman, deceased, seeks to recover under the Workmen’s.Compensation Act for the death of her husband, allegedly as a result of aggravation of a pre-existing heart condition, while in the employment and performance of his regular-duties for the Department of Public Works and Buildings of the State of Illinois. With the exception of five-months in 1942 and four and one-half months in 1944,, decedent had worked continuously for respondent since1 1921.

Clyde Cushman was chauffeur for Mr. Walter A. Rosenfield, Director of Public Works and Buildings of' the State of Illinois, and as such on November 5, .1948,. he drove Mr. Rosenfield. from Springfield, departing-about 1 P.M., to the latter’s home in Rock Island, Illinois,, and immediately returned to Springfield.

Mr. Rosenfield testified that Clyde Cushman was not suffering in any manner on the trip to Rock Island and' that he did not complain of anything and did not look like he was suffering. The last time that Mr. Rosenfield saw Clydé Cushman was between 4 and 4:30 P.M. when Mr. Rosenfield got out at his home and Clyde Cushman started back to Springfield.

Claimant herein testified that Clyde Cushman had been under the treatment of a heart specialist in St. Louis for about two years prior to his death and that he had a slight coronary thrombosis accompanied by slight high blood pressure. She also testified that Clyde Cushman had not taken any medicine for a long time and had not seen a doctor about his heart condition since August, 1948.

Dr. Robert Plentje, whose qualifications were admitted, in answer to a hypothetical question, stated that a person might in driving a long time in one day aggravate a heart condition with possible fatal effect. Dr. Flentje had never examined the decedent, but did categorically state that a coronary thrombosis usually causes, death.

The departmental report filed herein contains some statements, contradicted by the oral testimony of Mr. Rosenfield, to the effect that the car Clyde Cushman was driviiig was not operating properly and that he appeared somewhat unnerved at Rock Island. All of the facts relating to what transpired immediately prior to the death of Clyde Cushman are set forth in the departmental report, which reads in part as follows:

“Mr. Cushman left Rock Island at about 4:30 P. M. and arrived at. the State Central Garage, Second and Ash Streets, in Springfield, at 8:25 P. M. It was his custom to make the return trip in three hours, without stopping for dinner or gasoline service. He was to deliver a message from Director Rosenfield to a guest at the Abraham Lincoln Hotel at approximately 9:15 P. M.
“Upon arrival at the garage he parked the State car on Ash Street and went into the garage. There he secured a bar of candy from a vending machine and engaged the night mechanic, Mr. W. T. Wilkins,, in general conversation. After being in the garage about ten minutes, Mr. Cushman complained about feeling “awful” and was about to slump to the floor. Mr. Wilkins being nearby, caught Mr. Cushman as. he was in the act of falling and lowered him gently to the floor. This event occurred near the front of the garage in the driveway area between the gasoline pumps and the shop foreman’s desk.
“The city ambulance was called and responded in about ten minutes. On arrival at the hospital Mr. Cushman was pronounced dead.”

Although briefs were waived by the parties hereto, and the Court has therefore not been afforded the benefit of the views of counsel herein, a rather thorough search of the cases involving death or disability from heart trouble has been made, and the Court has reached the-conclusion that under the facts disclosed by this record, an award would not be justified in this case.

Throughout the cases examined runs a carefully delineated distinction depending on the existence or nonexistence of pre-existing heart disease.

A long line of cases hold that where there is no showing of pre-existing disease and an employee while at work, usually of a heavy nature or involving unusual •exertion or strain, suffers a heart attack, such attack is held to be an accidental injury arising out of and in the course of employment under the Workmen’s Compensation Act. Marsh v. Ind. Com., 386 Ill. 11, is a hecent case wherein are reviewed many of the cases falling in this category.

However, in this record there is uncontradicted testimony that decedent had previous heart disease, and the rule in such cases is that compensation may be awarded although there is a pre-existing disease if the disease is aggravated or accelerated by an accidental injury in the course of employment. There must,-however, be an accidental injury as the immediate or proximate cause of death, Chicago & Northwestern Ry. Co. v. Ind. Com., 341 Ill. 131; Hahn v. Ind. Com., 337 Ill. 59; Jakub v. Ind. Com., 288 Ill. 87.

In Fittro v. Ind. Com., 377 Ill. 532, the Supreme Court ■of Illinois has very clearly set forth the distinction above referred to in heart disease cases, and the court at page ■537 said:

“This case is entirely different from the line of cases- in which the ■death was caused by organic heart trouble or other pre-existing disease. As pointed out by this court in the case of Jacob vs. Industrial Com., 288 Ill. 87, where the death was caused by a pre-existing disease, it must be shown that the disease was aggravated and accelerated by an accidental injury sustained in the course of the employment. (Peoria Railway Terminal Co. vs. Industrial Board, 279 Ill. 352.) Where there is a pre-existing disease, in order to bring the case within the rule, there must be an accidental injury as to the immediate, or proximate, cause of death. The statute provides compensation for accidental injuries, or death, suffered in the course of employment. An accidental injury is one which occurs in the course of the employment, unéxpectedly and -without the affirmative act or design of the employee. It is something which is unforseen and not expected by the person to whom it happens. (Matthiessen & Hegler Zinc Co. vs. Industrial Board, 284 Ill. 378.) Thus, in the pre-existing disease cases, the evidence must show an aggravation, or acceleration, of the disease, by some accidental injury. That role, however, does not apply to a case * * * where no pre-existing disease is shown to exist.”

The facts in this case disclose that Clyde Cushman had finished his driving for the day and had, with the exception of delivering a message to the Abraham Lincoln Hotel for Mr. Rosenfield, to all intents and purposes ceased working for the day. In Philadelphia Reading Coal & Iron Co. v. Ind. Com., 334 Ill. 58, deceased had been working for some months in a coal yard loading' coal in the wagons or putting it in bags weighing about one hundred pounds, which were then loaded by men into the wagon. The deceased worked on the day of his death until the regular quitting time, walked about a hundred yards to his home, sat down on a box on the porch, remarked that he did not feel well, and shortly thereafter fell off the box and soon died. He died of heart disease, which had been diagnosed about seven months prior. The court held that compensation could not be awarded, and at page 62 said:

“There is no evidence in the record of any unusual exertion or strain on the part of Merek shortly before his death. The work he did on the day of his death, while heavy work, was such as he usually did in the course of his employment. Furthermore, he did not collapse while at work, but after having finished the job on which he was working, without any complaint of injury or sickness and with apparently nothing the matter with him, walked two hundred and ten feet or more and sat down before he collapsed.”

The Court is of the opinion that the facts as disclosed in the record of this case are governed by cases, above referred to, and that an award must be and is therefore denied, there being no showing of “an accidental injury to the employee resulting in death” within the meaning of the first paragraph of Section 7 of the Workmen’s Compensation Act.

Hugo Antonacci, Illinois National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence before Commissioner Jenkins, and a charge of $28.30 was incurred for this service, which is reasonable and customary, and an award for such amount is hereby entered in favor of Mr. Antonacci, which is payable forthwith.


author: ScHUMAN, C. J.

text:
    (No. 4150
    Barbara Voris Merkle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 7, 1949.

      Petition of Claimant for rehearing denied February 14, 1950.

    Joseph D. Ryan, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

The facts disclose that the claimant, together with her mother, Leona Merkle, were house guests of Mrs. Green, wife of Governor Dwight H. Green, at the Executive Mansion in Springfield, Illinois, on May 9, 1948.

Claimant testified that she was a reporter for the •Chicago Tribune; that around 12:30 in the morning she went to Gloria’s room, the daughter of the Governor, to get some phonograph records, this room being on the second floor, and that was the last thing that she remembered with reference to the accident. There was no testimony on her part as to the condition of the stairway, the carpet or the flooring.

Leona Merkle, the mother of the claimant, testified that the accident occurred between 12:30 and 1:00 in the morning; that her attention was' attracted when her daughter fell over the balustrade; that prior to the accident she had occasion to inspect the condition of the steps when she came down for dinner; that she testified that the railing was about 3% feet high; that the carpet was loose, that a little piece was sticking up on the carpet not more than an inch or an inch and a half on the first step; that the floor to the side of the carpet was highly polished, and that the stairs were steep; that there was subdued lighting from the light at the top of the stairway with a frosted globe and one at the foot of the stairway; that there was a very large chandelier, but when the family was not home it was not on and that the rise in the carpet was at the edge on the first step after leaving the second floor landing.

Helen Vandiver testified that she was employed at the Executive Mansion for six years, and that she had general care and the duty of maintenance in the Executive Mansion; that she had known the claimant for five years and that her habits were good for being careful and cautious; that the rugs were vacuumed every day; that about three times the rugs came loose and that the tacks would come out and that Louis Harvison was the one who put the tacks back; that the rug did not become uneven, but just loose, and you could put your hand under it; that at the top of the stairway the light was on the wall across from the stairs and that there was a light in the dome, and that without the dome light the lighting was not good; that no one had fallen on this particular stairway and that the carpeting was in good shape and that she didn’t know that the carpeting was loose on May 9th, and didn’t notice any wrinkles in the rug at the time of the accident, and that she had been on the stairway preceding the accident and didn’t notice anything unusual in the condition of the stairway; that the claimant had been a house guest at the Mansion before on several occasions and at least more than once a year; that the claimant had been up and down the same stairway on various occasions both in the daytime and at night.

There can be no question from the facts in this case, and from the law applicable thereto, that the State retained control of the Governor’s Mansion for the purpose of maintenance' and upkeep. The claimant contends in such a situation that it is comparable to a landlord and tenant relationship. She further contends that invitees, such as herself, while upon the premises of the Mansion are entitled to the exercise of due care on the part of the property owner for their protection. In support of this last contention she cites the case of Fisher v. Jansen, 30 Ill. App. page 91, which involved a suit against the owner of a building by a person stopping with one of the tenants. The appellee was injured by walking through the open door of an elevator shaft in the building, while the elevator cab was above, and the person fell into the pit below. The owner of the building employed the person in charge of the elevator. The court on page 93 held:

“The proprietors of such houses could hardly expect to find tenants for and profit from their buildings, if they imposed unreasonable restraints upon the social life of the tenants. The proprietor invites tenants, and thereby impliedly invites the persons who are properly visitors or guests of the tenants, and they come within the protection of the principle that a person, while upon the premises of another by invitation, express or implied, is entitled to the exercise of due care on the part of the property owner for his protection. Thompson, Meg., 313; Bennett vs. R. R., 102 U. S. 577; Hayward vs. Merrill, 94 Ill. 349.”

The Court finds no fault with the rule of law enunciated in the Jansen case, but each particular ease is governed by its own set of facts.

It can be conceded that, insofar as the maintenance of the stairway is concerned, said stairway was under the control of the State. Under such circumstances it was the duty of the State to see that said steps were properly maintained. The question then resolves itself to the point, was the State guilty of negligence in the maintenance of said stairway and was such negligence the proximate cause of the injuries to claimant.

It cannot be concluded from the evidence that the construction of the stairway had anything to do with the injury in question. The stairway in its construction was known to the occupants of the Mansion, being the Governor and his family, and in fact, according to the testimony, has been in that same state of construction since the year 1885. The evidence does not show that the stairway was negligently maintained. It is apparent that the claimant was not a stranger, but had visited the Mansion many times and was familiar, not only with the construction of the stairway, but the carpeting and lighting, and general nature of said stairway. Under similar circumstances if the Governor was injured by falling down the stairs, or members of his immediate family, a recovery could only be had against the State for a defective condition of which the State had notice. The fact that the claimant was an invitee does not make the State an insurer for any injuries that she might sustain.

The State would be liable if it had failed to keep the stairway in repair, and can only be charged with negligence for such failure after notice of the existence of the dangerous condition, or after the defect has continued for a sufficient length of time to charge it with constructive notice.

Even in the cases where the landlord reserves control over parts of the building and premises used in common by all tenants, and where it is held he is under the implied obligation to use reasonable diligence to keep in a safe condition the part over which he so reserves control, it is found that the landlord can only be charged with negligence for failure to repair after notice of the existence of the dangerous condition of the same, or after the defect has continued for a sufficient, length of time to charge him with constructive notice thereof. Burke v. Hulett, 216 Ill. 545, page 550. National Builders Bank v. Schuhan, 319 App. 546 at 552.

One of the conditions complained of by the claimant was that there ivas improper lighting on the stairs. Leona Merkle, mother of the claimant, testified, as shown on page 13 of claimant’s brief, that following dinner she used the stairs and that she noticed that on the edge of the first tread down from the platform near the railing, the carpet was loose. This definitely shows that Leona Merkle, an elderly woman who contended that her eyesight wasn’t good, could see a small rise in the carpet and apparently the light was sufficient for this purpose.

As to the hand railing, this was a condition fully known and not concealed, and in the Court’s opinion' cannot be used for a basis of recovery.

There is no testimony in the record that the Governor or his wife had complained about the condition of the floor, the carpet, the railing or other facts concerning said stairway. On the contrary it is shown that the carpet was vacuumed every day and that there were no defects of any kind observed immediately after the accident with reference to any defective condition in the carpet.

As to how the injury occurred, whether the claimant slipped, tripped or fell, we do not know. The Court does not feel that it is necessary to go into the question as to whether the claimant was in the exercise of due care and caution for her own safety, for the reason we feel that tliere has been no proof of negligence on the part of the State, and certainly no negligence that was the proximate cause of the injury. The evidence wholly fails to show a defective condition which the State was liable for, and without any notice proven of any defective condition on the part of the State, this element of proof being entirely lacking, the claim is denied.


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    (No. 4156
    George Richardson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

      Supplemental opinion filed February 14, 1950.

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

Claimant, George Richardson, was employed on October 1, 1948, by respondent in the Department of Conservation. On that day, while catching pheasants for liberation, a pheasant flew up into his face and struck him in the right eye, bruising the eye and causing internal hemorrhage. Claimant was taken to the office of Dr. J. A. Johnson in the City of Mt. Vernon, Illinois, immediately after the accident.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment. The claimant incurred doctor bills due Dr. J. A. Johnson in the amount of $14.00, which are unpaid. The only other question is the extent of permanent disability suffered by claimant.

Dr. J. A. Johnson attended the claimant. He testified that on the day of the accident he examined the claimant and found the anterior chamber of the right eye was filled with blood and sub-confindivial hemorrhage due to injury, he had complete loss of vision at that time, the blood shut off all light. Dr. Johnson treated claimant for two weeks. There was blood from the injury on the inside of the eye which was gradually absorbed but causing retinitis which affected the nervous coat of the eye, At a later date Dr. Johnson examined his vision and found that claimant’s vision was at that time 6/200ths which would be industrially blind and that his loss of vision is permanent.

Claimant on October 1, 1948, was married but did not have any children depending upon him for support. His total earnings for the year preceding his injury were $2,100.00. His compensation rate would, therefore, be $15.00 per week, increased by 30% to $19.50 per week, the accident having occurred after July, 1947. From the record claimant is not entitled to temporary total disability: He is entitled to receive the sum of $2,340.00 for the loss of the sight of his right eye, computed on the basis of 120 weeks at $19.50 per week.

The Court finds that claimant has permanently lost the sight of his right eye and that he is entitled to an award of $19.50 per week for a period of 120 weeks.

An award is, therefore, hereby entered in favor of claimant, George Eichardson, in the amount of $2,340.00, payable as follows:

$975.00 which has accrued and payable forthwith.
$1,365.00 payable in weekly installments of $19.50 for 70 weeks.

Claimant is also entitled to be reimbursed in the sum of $14.00 due Dr. J. A. Johnson for his services, which is still unpaid.

An award is also made in favor of claimant, George Eichardson, in the amount of $14.00, the sum due Dr. J. A. Johnson for his services, payable forthwith.

The testimony taken at the hearing before Commissioner Jenkins was taken and transcribed by Gladys Berg, who made charges therefor in the amount of $15.60. These charges appear reasonable and proper.

An award is, therefore, made to Gladys Berg in the amount of $15.60, payable forthwith.

Future payments being subject to the terms and conditions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such orders as may from time to time be necessary.

An award is also entered for the sum of $100.00, payable to the Treasurer of the State of Illinois.

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.”

Supplemental Opinion

It being represented to the Court that the award for the one hundred dollars ($100.00) payable to the Treasurer of the State of Illinois under the Special Fund was ineffective at the time that the original opinion was granted.

It is therefore ordered by the Court that the original opinion be modified by striking therefrom “An award is also entered for the sum of one hundred dollars ($100.00) payable to the Treasurer of the State of Illinois”.


text:
    (No. 4157
    County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

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

Claimant, County of Randolph, Illinois, by the chairman of its Board of County Commissioners and its State’s Attorney, filed its complaint on December 30, 1948, seeking recovery from respondent of the sum of $2,549.20.

Claimant’s action is based on a specific statute which confers jurisdiction upon the Court to hear cases under such statute. Ill. Rev. Stat. 1947, Chap. 65, Secs. 37-39; Chap. 37, Sec. 439.8.

Previously the Court granted an award in another case under the same statute, County of Will v. State, No. 4104, opinion filed April 19, 1949, and in its opinion the Court set forth the substance of the applicable sections of the statute involved which will not be repeated in this opinion.

Suffice it to say that the purpose of the specific statute is to reimburse Illinois counties wherein are located State penal or charitable institutions, for the expenses, costs and fees incurred by reason of the continuing flood of petitions for habeas corpus that are filed in such counties by non-residents of such counties. The statute applies primarily to the Counties of Will and Randolph, and allows such counties to recover fees and expenses incurred. The cases naturally involve positions in forma pauperis.

After the original hearing before a commissioner in the case, the Court, on-its own motion, remanded the case to another commissioner to take further testimony on certain aspects of the case which the Court felt should be developed by further proof.

Between the dates of July 18, 1947, and December 1, 1948, there were filed in the office of the Clerk of the Circuit Court of Randolph County, 178 petitions for writs of habeas corpus by inmates of the Illinois State Penitentiary. None of those petitioners were at the time of their commitment residents or committed by any court of Randolph County, and all proceeded as poor persons under Rule 39 of the Rules of the Circuit Court of Randolph County. The Clerk of the Circuit Court, therefore, should have been paid the sum of $890..00, since his fee for filing each petition for writ of habeas corpus is $5.00. Ill. Rev. Stat. 1947, Chap. 53, Sec. 31. County of Will v. State, supra.

Out of the 178 petitions for writs of habeas corpus filed, writs were awarded and hearings were held in 68 cases.

In these 68 cases, at the request of the Attorney General of Illinois, a photostatic copy of the petition was furnished to him by the Clerk of the Circuit Court at a cost of $1.00 per case. Such charge is reasonable and is a reimbursable expense under the specific statute involved in this case. County of Will v. State, supra.

However, in the same 68 cases the Sheriff of Randolph County maintains that he should have been paid $2.00 for serving each writ of habeas corpus, $1.00 for returning each writ, and 40 cents for mileage, or $3.40 per case, amounting to $231.20 for the 68 cases. However, we can find no statutory provision allowing the sheriff all of the .fees he claims. The applicable section of the Pees and Salaries Act, Ill. Rev. Stat. 1947, Chap. 53, Sec. 37, does not mention the allowance of any fees or mileage for serving a writ of habeas corpus. But for returning the writ, the sheriff should be allowed $1.00 in each case.

Although the sheriff might have been entitled to other fees in connection with his duties with writs of habeas corpus, the record in this case is silent thereon, and any award in excess of $68.00 for sheriff’s fees must be denied.

In the 68 cases above referred to the State’s Attorney has claimed a fee of $20.00 per case based on the following section of the Pees and Salaries Act:

“State’s Attorneys shall be entitled to the following fees: ....
For each day actually employed in the hearing of a case of habeas corpus in which tlie people are interested, $20.” (Ill. Rev. Stat. 1947, Chap. 53, Sec. 8.)

The record shows that such 68 cases were heard on eleven different days. On two different days 14 cases were heard: on one day 12; on two days 9; on one day 5; on one day 3; on one day 2, and three days 1.

Although to some the allowance to the State’s Attorney of as much as $280.00 for one day’s work in connection with habeas corpus cases might appear excessive, the fact remains that the statute above quoted allows him $20.00 per case when a hearing is held and will permit of no proration.

Our conclusion in this regard is supported by the decisions of the courts of Illinois, some of which' will be mentioned.

In Fiedler v. Eckfeldt, 335 Ill. 11, at page 17, it was held that the law does not regard fractions of a day and that “the day is, in general, regarded as an indivisible unit of time, so that any act done in the compass of it is no more referable to any one portion of it than to any other portion.” See also Kuznitsky v. Murphy, 381 Ill. 182.

In Anthony v. Gilbrath, 396 Ill. 125, at page 128, the court held as follows: ‘ ‘ The word ‘ hearing ’ is a familiar term and is generally understood as meaning a judicial examination of the issues between the parties, whether of law or fact. ’ ’ Glennon v. Britton, 155 Ill. 232. See also, Menard v. Bowman Dairy Co., 276 Ill. App. 323.

The U. S. Court of Appeals for the Seventh Circuit in Bowles v. Baer, 142 F. 2d 787, stated that the indicia of a hearing were parties, issues of law or fact, action taken which may materially affect the rights of the parties, proceedings usually public, representation by counsel, if not in person, a record of the proceedings, participation in the proceedings, argument and briefing of the case and entitlement to a copy of the order resulting.

In view of the above authorities the State’s Attorney was entitled to $20.00 per case in 68 cases, or a total of $1,360.00.

The County of Randolph is therefore entitled to an award of $2,386.00, and an award is entered in its favor for such sum.


text:
    (No. 4168
    Peter N. Molsen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    J. W. Horwitz and A. B. Litow, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan and William H. Sumpter (James C. Murray and A. Zola Groves, of Counsel), Assistant Attorneys General, for Respondent.
   Lansden, J.

Claimant, Peter N. Molsen, seeks an award under the Workmen’s Compensation Act for disability resulting from an accident that arose out of and in the course of his employment.

On the date of the accident, determined by the proof to be March 5, 1948, Molsen, employed as an automotive mechanic at a Division of Highways garage in Chicago, was sent out with a truck to tow in another State truck which had broken down. While towing the disabled truck, the driver of the truck being towed applied his brakes with considerable force, .which caused both trucks to stop suddenly. Molsen was thrown forward, his chest striking the steering wheel, and in some manner the door in the cab of Molsen’s truck flew open and Molsen fell out on the pavement. He immediately complained to the other driver of severe pain in his chest, and while sitting on the running board of the truck recovering from the blow to his chest, he spit some blood. The effects of the blow apparently passed off and Molsen towed the truck back to the State garage. Notice of the accident was given upon arrival at the garage to Molsen’s superior and later in the day Molsen had to cease working and go home where he rested for three days. He saw his family doctor, Dr. Siegel, who advised him to have an electrocardiogram made.

Upon his return to work, Molsen testified that he suffered severe pains when he tried to do heavy work or heavy lifting, which pains disappeared when he rested. Molsen continued to work regularly until December 15, 1948, but he testified that his duties were more of a supervising nature and that he could not, because of pains in chest, which extended over his shoulders and into his arms, do anything other than minor checking and tuneup of vehicles.

In June, 1948, Molsen requested medical attention because his chest distress had not lessened. Prom that time until January, 1949, Molsen was periodically treated and examined by respondent’s doctors. The final report on Molsen’s condition was made on February 16, 1949. Molsen filed his complaint in this Court on February 17, 1949.

No jurisdictional questions are raised and all have apparently been complied with.

The evidence that can be considered by the Court is found in the Department Report of the Division of Highways, Department of Public Works and Buildings, and the transcript of the testimony taken before Commissioner Young at two hearings held on May 17 and 26, 1949. ■

At the hearing on May 26, 1949, Dr. S. I. Weiner, a specialist in traumatic surgery and orthopedics, testified for claimant and Dr. Harry E. Mock testified for respondent. Plowever, in the Departmental Report are contained statements from Doctors H. B. Thomas, N. C. Gilbert, R. M. Potter and Limarzi, in addition to Dr. Mock.

Dr. Thomas of Chicago is emeritus professor of orthopedics, University of Illinois, College of Medicine, Dr. Limarzi is an internist under Dr. Thomas. Dr. Gilbert of Chicago is acknowledged to be an outstanding heart specialist. Dr. Mock of Chicago is a specialist in surgery of trauma, especially in connection with chest injuries and is associate professor of surgery, Northwestern University, School of Medicine. Dr. Potter is the roentgenologist who X-rayed Molsen’s chest for Dr. Mock’s examination.

A careful analysis of the statements of such an array of medical talent leads the Court to the conclusion that claimant is entitled to an award for permanent partial disability. Such conclusion is suggested on either a theory that Molsen’s accident aggravated a pre-existing heart condition or a theory that the force of the blow to his chest was snch as to injure his heart directly.

Over three months after the accident, Dr. Thomas found evidence of trauma. A muscle squeak over the injured area was observable for over six months. Widened mediastinal shadow was observed by all doctors, the significance of which resulted in divergent views. Medication was prescribed by Drs. Thomas and Gilbert to relieve Molsen of pain, nervousness and apprehension. Dr. Gilbert thought Molsen might have a ‘ ‘ contused heart,” the symptoms of which appeared at a time consistent with Molsen’s complaints that led to his being first sent to Dr. Thomas, who advised light work and avoidance of heavy lifting. Not too much significance was attached to the spitting of blood, Dr. Mock feeling that it was due to an injury to the trachea, but it was felt that such was consistent with an injury in the mediastinal area. Dr. Mock was critical of Dr. Gilbert’s ideas as to Molsen’s “contused heart” but considered Dr. Gilbert to be a very high-class specialist whom he constantly consulted on heart problems. Dr. Mock definitely stated that Molsen was not a malingerer.

The consensus of the opinions of the doctors /was that Molsen showed all indications of angina pectoris, which could have been brought on'by the accident or Molsen’s own ideas as to his injury or could have been aggravated by the accident. Dr. Mock testified that Molsen could have the fixed idea that he had something wrong with his heart, and this fixed idea would stir up angina pectoris. Dr. Mock conceded that a neurosis was just as bad with angina pectoris as organic disease, and he felt that the numerous examinations and treatments that Molsen had had, with constant suggestions of heart trouble, could result in Molsen actually being unable to do any heavy work again.

Two other factors should be mentioned. The first hearing on May 17, 1949, had to be discontinued shortly after it commenced because claimant, who was testifying, became upset and, on the advice of Dr. Weiner, who was present, the hearing was set for a later date. Furthermore, Molsen’s voice tended to lose its volume as the hearing progressed. This was observed and commented upon by Commissioner Young in his report.

This Court feels that this case presents many factual problems that fundamentally are beyond its competency, but the law places on this Court the duty to decide it, and when all is said and done, the mandate of the Workmen’s Compensation Act is that it be construed and administered with a view favorable to employees. The doctors who testified and whose statements have been analyzed did not say that Molsen was not disabled. Their differences were on the point of causation. Even Dr. Mock recommended something be paid on the ground that the injury to claimant played some part in his disability. To the Court, that” appears enough under the previous decisions of the Court and of the Supreme Court upon which to base an award. Harrisburg Goal Co. v. Ind. Com., 315 Ill. 377; United States Fuel Co. v. Ind. Com., 313 Ill. 590; Postal Telegraph Co. v. Ind. Com., 345 Ill. 349; Gross v. State, 11 C.C.R. 310.

Subsequent to his discharge from State employment, Molsen tried to work as a garage mechanic but was unable to continue such work. Then he got a job as a guard at the Cook County jail at $140.00 per month. He found the physical exertion in this work too great and later got a job as an elevator operator at $140.00 per month.

On the date of his injury on March 5, 1948, claimant was 54 years of age, married, but had no children under 16 years of age dependent upon him for support. His earnings in the year prior to his injury amounted to $3,852.00. He earned $250.00 per month from July 1, 1945, to July 1,1947.

The differential between Molsen’s earnings before the accident and his ability to earn thereafter in other employment in- work of a lighter nature is not less than $1,560.00 per year.

No compensation has been paid to claimant. He was paid his regular wages until his discharge from employment on December 15,1948. The payments made to claimant must be treated as wages earned since he did perform services, and such payments cannot be considered as compensation because respondent denied liability throughout. (For a discussion of this problem, see Olney Seed Co. v. Ind. Com., 403 Ill. 587.)

Claimant is entitled to an award under Section 8 (d) of the Workmen’s Compensation Act for permanent partial disability. The differential between his earnings before and after the accident makes this a maximum case with claimant’s rate of compensation at $19.50 per week, commencing on December 16, 1948, the day after he ceased to earn wages from respondent.

The following creditors have been paid by respondent :

Dr. N. C. Gilbert, Chicago.........•.................. $ 25.00
Dr. Warren W. Furey (X-ray), Chicago.............. 10.00
Dr. Robert Potter (X-ray), Chicago.................. 8.00
Dr. Harry E. Mock, Chicago......................... 25.00
Dr. H. B. Thomas, Chicago.......................... 216.00
Louis Pelzmann (Therapist), Chicago............... 156.00
Total .......................................... $440.00

Rothbart & Sewell, Court Reporters, were employed to take and transcribe the testimony before Commissioner Young. Charges in the amount df $150.10 were incurred, which charges are fair, customary and reasonable. An award is hereby entered in favor of Eothbart & Sewell in the amount of $150.10.

An award is entered in favor of claimant, Peter N. Molsen, in the amount of $5,200.00, being calculated in accordance with provisions of Section 8 (d) of the Workmen’s Compensation Act within the limitations therein prescribed, and being at the rate of $19.50 per week for 266 4/7 weeks, to be paid as follows:

$1,189.50, which has accrued and is payable forthwith;
4,010.50, which is payable in weekly installments of $19.50 per week beginning on the 23rd day of February, 1950, for a period of 205 weeks, plus one final payment of $13.00.

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


author: Sghuman, C. J.

text:
    (No. 4170
    Jack Jett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    Herman E. Tavins, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Eespondent.
   Sghuman, C. J.

On September 27, 1948, Jack Jett, the claimant, was in the employ of the respondent, in the Department of Public Works and Buildings, Division of Highways, as a temporary truck driver to assist in center line marking activities at a salary of $250.00 a month. At approximately 4:30 P.M. on September 27, 1948, claimant was driving a Division of Highways truck in a northeasterly direction on Archer Avenue in the City of Chicago, returning it to the Division’s storage shed. As the truck passed through the 5400 block, the right rear wheel came off, allowing the truck to fall to the pavement and settle on the brake housing. Claimant was operating said truck at a speed from 35 to 40 miles per hour. The jar caused claimant to be thrown from his seat and badly bruised and cut his left ankle. Claimant was knocked about in the cab as the truck veered from side to side and he continued his endeavor to bring it under control and avoid collision with other traffic. When the truck finally stopped claimant was positioned with one knee on the seat while his other foot was on the brake. The lower part of his back had hit the side of the door and the steering wheel. His leg was bleeding. That evening claimant’s back was sore and his left leg badly swollen.

No jurisdictional questions are involved and at the time claimant was earning a salary of $250.00 per month. He was first employed on September 17, 1948 and he worked regularly at this same salary rate and in the same capacity from the date of his first employment till the date of his injury on September 27, 1948, and earned a total of $91.67. Employees hired in a capacity similar to that Mr. Jett ordinarily worked less than 200 days a year.

Claimant at the time of the injury had two children, Donald and Jacqueline, aged ten and nine, respectively. Respondent paid Dr. H. B. Thomas, Chicago, Illinois, the sum of $112.00, and St. Luke’s Hospital, Chicago, Illinois, the sum of $11.00 for medical expenses in connection with claimant’s injury. No further claim is made on account of medical expenses and the only question relates to the nature and extent of claimant’s injuries with respect to his claim for complete and permanent disability.

Claimant stated he had suffered no injury to his back nor had he ever experienced' his present back pain prior to the accident in question. Prior to his employment by respondent, claimant had been unemployed. His occupation has been that of chauffeur and he has driven trucks, cars or taxicabs for about 22 or 23 years. During the year preceding the accident he had his own business whereby he was driving a truck into farm areas near Chicago to purchase chickens. He stated that, although to his knowledge truck drivers generally received $250.00 per month wages, during the year preceding the accident his earnings had been less due to misfortune in his business. Claimant has not earned any money since the accident. He explained he obtained a job as a mechanic, for which he is qualified, but had to give it up because the nature of the work, bending and twisting, increased the pain in his back. He stated his back hurt when lifting objects. He said he tried digging in his garden and was required to stop on account of pain caused in his back when he put pressure on his foot. Claimant believed he could perform the work of a chauffeur or truck driver as long as he didn’t have to do lifting. However, despite efforts through employment agencies he has been unable to get re-employed as a chauffeur or truck driver since the accident. After his back pain did not clear up, he first consulted an attorney in January, 1919; later in April he was given a medical- examination by Dr. Samuel I. Weiner. Claimant stated he has had no trouble with his ankle.

Dr. Samuel I. Weiner, physician and surgeon, a member of the staffs of Mt. Sinai and Michael Eeese hospitals in Chicago, testified on behalf of claimant. Dr. Weiner since about 1927 has specialized in the fields of industrial medicine and surgery and orthopedics.

Dr. Weiner made a clinical examination of claimant ■on April 20,1949, and took anterior posterior and lateral X-rays of his lumbar spine and pelvis. He testified the X-rays disclosed an irregularity and malformation in claimant’s lumbrosacral articulation which he believed ■of congenital origin. There was articular roughening and ■calcification where the lumbar spine articulates with the sacrum. It was further stated there was extensive spurring of the anterior portion of the body of the fifth lumbar vertebra and a small spur on the anterior interior portion of the body of the fourth lumbar vertebra. It was noted there existed a narrowing of the intervertebral space between the fourth lumbar body and the fifth, and considerable narrowing between the fifth lumbar body and the sacrum posteriorly, also that the lumbrosacral angle was more than normally acute. Dr. Weiner’s diagnosis was that of an aggravation of a pre-existing arthritis of the lumbar spine and of a congenital defective articulation of the lumbrosacral region which could have been aggravated by the accident in question and that there conld or might be a causal connection between ■claimant’s ill being and said accident. In the doctor’s opinion claimant, because of his spinal condition, was unfit for a regular eight hour day’s work of driving an .automobile.

Dr. Weiner explained that persons having a congenital malformation of the fifth lumbar are particularly susceptible to injury in the region of the lower back be•cause the articulation is'not stable and solid providing the necessary support. He said any form of injury such as a jarring or direct trauma upsets the weakened state and causes the symptoms as in the present case. Dr. Weiner admitted claimant’s injury could have been caused by any undue strain on his back as by digging, stumbling-while carrying a heavy object, lifting off balance, etc. He stated such a condition is quiescent as long as no strain is put on it, and, upon strain it would recur. Claimant’s condition was considered by the doctor to be permanent but that claimant could do any work that did not put a strain on his. back. Dr. Weiner stated that cases,, as the instant one, where a congenital deformity is found the symptoms are persistent and do not respond to the usual type of treatment.

The Departmental Report sets forth the findings of Dr. H. B. Thomas, who treated claimant for his injuries. Dr. Thomas also found the claimant to have a moderate arthritic condition in his lower lumbar spine and sacroiliac joints, however, that X-ray views showed no injury to the bone. Dr. Thomas treated claimant for the pain he suffered in his lower back, and on November 11th suggested he go to a hospital. Dr. Thomas stated that at the time of his last examination of claimant on December 6, 1948", he could find no spasm in his back, accordingly dismissed him without disability. In his final report, dated December 9, 1948, Dr. Thomas wrote:

“. . . Lumbar spine: catches in back when he tries to turn. Bending limited in all directions (bends little unless he bends knees). Reflexes O.K. Back straight but flat. Treatment — Sent to St. Luke’s, for physiotherapy. Said he did not receive satisfactory results. Injections of novocain and medication. Discontinued any further treatments from St. Luke’s. Prognosis — Good. No disability.”

A fair and just conclusion to be drawn from the evidence in this case shows that the claimant was earning-approximately $50.00 a week at the time of his injury .•and according to Ms testimony, which, stands uncontradicted, that the only work that he can perform and could earn any money in would be that of a watchman at which he would earn the sum of $35.00 a week. The difference between his earmngs before tMs accident and after the accident would amount to $15.00 per week. The Court ■concludes from the testimony that the claimant is entitled to have and receive from respondent the sum of $20.80 per week for a period of 76 weeks, as provided in paragraph E of Section 8 of said Act, as amended, for the reason that the injuries sustained caused the permanent loss of the use of 40% of the claimant’s left leg. The evidence shows that the claimant was paid temporary compensation through December 6, 1948. Therefore, compensation payments in this case should start as of December 7, 1948.

Eothbart & Sewell filed a claim for stenograpMc services in the amount of $67.40. The Court finds that this claim is reasonable.

William J. Cleary & Co. filed a claim for stenographic .services in the amount of $21.10. The Court finds that this claim is reasonable.

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

Forty per cent permanent partial specific loss of tlie use of tlie left leg in the sum of $1,580.80, payable in weekly installments of $20.80 commencing on December 7, 1948. Sixty-one weeks of said compensation has accrued to February 7, 1950 in the amount of $1,268.80 ■and is payable forthwith, the balance of $312.00 is payable at the rate ■of $20.80 per week for 15 weeks.

An award is also entered in favor of Eothbart & Sewell for stenographic services in the amount of $67.40, which is payable forthwith, and the Court finds that said .charge is reasonable, and said claim is allowed.

Art award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $21.10, which is payable forthwith, and the Court finds that said charge is reasonable, and said claim is allowed.

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


author: SCHUMAN, C. J.

text:
    (No. 4181
    George Vickery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    Dixon, Devine, Bracken and Ryan, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney (General, for Respondent.
   SCHUMAN, C. J.

The claimant, George Vickery, was on January 29, 1948 employed by the respondent as a carpenter, and on the above date, while working at the Dixon State Hospital, Lee County, Illinois,' claimant fell a distance of fourteen feet to a cement floor and as a result thereof sustained a fracture of the left humerus at the elbow, joint.

At the time of the above injury, the claimant was 58 years old, married, with no minor children.

During the time from January 29, 1948 to May 30, 1948 the claimant was paid by the respondent 17 weeks and 2 days pay as compensation at the rate of $19.50. Claimant returned to bis employment by tbe respondent on May 30, 1948 and continued to work until January 20, 1949. On January 21, 1949, an osteotomy was performed at tbe bead of tbe radius on tbe claimant’s left arm, removing part of tbe bone. Tbis operation became necessary as a result of tbe injury sustained by tbe claimant on January 29, 1948.

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

Tbe only question to be determined is tbe extent of tbe permanent partial loss of tbe use of tbe left arm together with the medical services rendered to tbe claimant.

Dr. David Murphy testified that be attended claimant on January 30, 1948 at tbe request of Dr. Tarnowski, and that tbe X-rays showed fracture displaced on tbe radial side of tbe left humerus of tbe left arm. Tbe radial condial was displaced posterially and they were divided. That it was a bad type fracture and T type of humoral condyles was applied to tbe forearm; that on January 21, 1949 osteotomy operation was done on tbe bead of tbe radius. That claimant convalesced and bad improvement in tbe extension of bis arm to tbe extent of 135°, normal extension being 180°. That tbe ulner nerve became involved which interfered with tbe extension of bis fingers and that bis grip is fair. That considering bis occupation as a carpenter, tbe extension of bis arm is very weak. That tbe elbow bad slightly improved and that tbe disability relative to bis arm is fully 85% to 100% of tbe use of bis arm. That in tbe doctor’s opinion, claimant has sustained a permanent injury to his arm which interfers with tbe extension and flexion. That bis bill for services was in the amount of $280.00, which was a fair and reasonable charge for his services.

Dr. Alexander Tarnowski was called by the respondent and testified that he examined the claimant on August 9,1949 at the request of the Attorney General. That he found that the claimant had practically no use of his-left hand. That he had a slight movement in the fingers,, and there wasn’t complete loss of motion. That claimant had fairly good motion of the wrists. That the motion which controls the movement of the forearm called pro-nation and supination was fairly good. That the motion of the elbow joint which causes extension and flexion of that member was impaired by about 60%. That claimant had fairly good use of the shoulder and that there was some loss of ability to raise his shoulder. That in his opinion the claimant had loss of function in .the left upper extremity of about 75% and that in his opinion the condition that he found was permanent.

The Court finds that Helen Heckman has submitted, a bill for stenographic services in the amount of $15.00, which the Court finds to be a customary and reasonable-charge.

The claimant was treated by Dr. D. L. Murphy, who-has submitted for his services rendered to claimant a bill in the amount of $280.00. The Court finds this bill to be reasonable and customary.

The record shows that the earnings of the claimant for the year immediately preceding his injury was in the sum of $3,000.00.

The evidence, and particularly the medical witnesses, clearly establishes that the claimant has sustained a permanent partial specific loss of use of his left arm to-the extent of 75%.

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

For the 75% permanent partial specific loss of use of the left arm, ■claimant is entitled to an award of 168% weeks in the amount of $3,290.63, payable in weekly installments of $19.50 each, commencing ■on March 31, 1949. 47 weeks of which has accrued to February 16, 1950 in the amount of $916.50, which is payable forthwith and the balance of $2,374.13 payable in 121 weekly installments of $19.50 each, with a final installment of $14.63.

An award is also entered in favor of Helen Heckman for stenographic services in the amount of $15.00, which is payable forthwith.

An award is entered in favor of Dr. David Murphy for medical services rendered in the amount of $280.00, which is payable forthwith.

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


text:
    (No. 4188
    Earl Spencer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1950.

    Harold T. Berc, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William: H. Sumpter, Assistant Attorney General, for Respondent.
   SCHUMAN, C. J.

Claimant, Earl Spencer, was employed by the State of Illinois at the Elgin State Hospital, Elgin, Illinois, and on November 22, 1948 claimant sustained an injury while* in the course of his employment. 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 his employment. Respondent furnished complete surgical, medical and hospital treatment except for the expenditure of $13.70 for a body brace.

That the earnings of the claimant during the year-preceding the injury were $2,100. Claimant received his. full salary of $175.00 per month for full time from the-date of the accident to the present time. No claim is made on the grounds of temporary total disability. At the time of the accident claimant had no children under the age of 16 years and the sole question for adjudication is the-nature and extent of his injury.

Claimant, Earl Spencer, 64 years of age, was employed by respondent on November 22, 1948, as a farm hand at the Elgin State Hospital in the Department of' Public Welfare. It was the duty of the claimant to take a group of patients to the farm, operated as a part of the institution, and direct and supervise their work. Engaged in this capacity claimant would ride in a wagon towed by a tractor back and forth from the farm area,, about a mile distant from the hospital. The wagon was not equipped with seats. At the close of the above day, while sitting on the floor of the wagon as it was returning from the farm over a dirt road located on the grounds of the hospital, the wagon struck a hole. The claimant was thrown in the air and fell injuring his back on the floor of the wagon. He was helped out of the wagon by the tractor driver and his assistant and laid on the grass beside the road. The farm boss, Hubert Draper, came with an automobile and took claimant to his room. The. next morning he was taken in an ambulance to the Elgin State Hospital where he was X-rayed and examined by Dr. Hudell, a staff physician and surgeon. On December 4th claimant was put in a body cast and on December 6th he was taken home. Claimant wore the cast f-or 12 weeks, returning to his employment on February 28th.

The facts show that the claimant is now wearing a corset or brace on his back which prevents him from tiring, provides support, lessening his pain; that claimant at the time of the hearing was suffering from a backache, but that he still performs the same work for the respondent. Claimant further testified that he experienced pain when he stoops or bends and is prevented from lifting heavy objects and that he was required to sleep with a board under his mattress, and that his condition has not improved much during the last two or three months.

Dr. Albert C. Field testified for claimant as an expert witness and described his objective findings as limitation of motion in claimant’s back, as well as tenderness, muscle rigidity and muscle spasms in the lumbar region above the lumbar lordosis and tenderness of both sciatic nerves in both thighs. Dr. Field interpreted an X-ray film which he took of claimant’s back and stated:

-which shows a compression fracture of .the-first lumbar and. vertebral narrowing of the anterior region with some evidence of bony injuries to both the superior and inferior articulating surfaces of the vertebrae. In other words, shows he had a chip fracture in addition to his compression fracture of both of the articulating surfaces of the superior and inferior region, which is a comminuted fracture of the first lumbar vertebrae. ’ ’’

Dr. Field described claimant’s condition as having a fairly well healed compression fracture of the first. lumbar vertebrae. He said claimant would have considerable permanent disability because the anterior surface of the vertebrae is narrowed, putting the weight bearing surface out of line and placing it under a stress and strain of the ligaments and tendons, especially the intercostal nerves in the lumbar region as well as the ilio-hvpogastric nerve.and the ilio-inguinal nerve. It was the opinion of Dr. Field that claimant suffered a traumatic -arthritis due to the accident and resulting from roughness of the articulation of the vertebrae due to the chip or evulsion of the first lumbar vertebrae. He predicted considerable weakness in claimant’s back because of the altering of the attachment of muscles. It was the opinion of Dr. Field that the injury to the lumbar region of claimant’s back affected his lower extremities to the degree of about 30% loss of use of each leg. He stated, however, that claimant would not be limited in the course of his present supervisory work unless he attempted to do any lifting.

Dr. John C. Hudell, physician and surgeon, treated claimant for his injuries. Dr. Hudell, witness for the respondent, is on the medical staff of the Elgin State Hospital and is engaged in the general practice of medicine including central administration of medicine and the performance of whatever surgical procedure may be necessary to treat illnesses of patients at the hospital. He first began treating claimant on November 24,1948. He stated X-rays at the time disclosed him to have suffered a mild compression fracture of the body of the first lumbar vertebrae with no dislocation of the articular surfaces or rotation of the vertebrae. There was an evulsion of a chip or small segment of the anterior and superior lip of the first lumbar vertebrae. Neurological examination was negative. Claimant’s fracture was reduced by hypraextension of the back and he was placed in a cast on December 4th. Dr. Hudell said claimant was comfortable and walked well in Ms cast. Mr. Spencer was then discharged to out-patient care. Thereafter further X-rays were taken at one month intervals. Dr. Hudell stated claimant wore the body cast for twelve weeks when he was discharged from the care of the hospital and placed in physio-therapy treatment and diathermy exercises.

Dr. Hudell said it would be difficult to estimate how long claimant would be required a wear the brace he now uses. Dr. Hudell qualified Ms statement that subsequent X-rays failed to reveal any abnormality by adding that he could not say there was no evidence of strain or tenderness. With the passage of time Dr. Hudell stated there would only be a minimal disability of claimant- — -a small amount of pain in the performance of his duties but not enough to physically disable a man from his chosen avocation. Dr. Hudell stated claimant might be handicapped in lifting heavy objects. Dr. Hudell testified that while claimant has a light limitation of flexion of his leg from a prone positi'on that he can rotate his trunk freely; that hypra-extension is within normal limits and that Ms spine is straight with no evidence of kyphoses, bending of the spine backwards, or lordosis, bending of the spine forwards, or of bending the spine to the side.

The Court finds that William J. Cleary & Co. has rendered stenographic services in the amount of $129.70, which charge is fair and reasonable.

The Court concludes from the evidence that while there is no specific evidence with reference to any specific loss in this case from the medical testimony and the examination by the Commissioner, that the claimant has suffered some degree of permanent disability affecting his limbs. The Court concludes from the. evidence that the claimant has sustained a permanent partial specific loss to the extent of 10% of use of both legs.

The evidence shows that the claimant expended the sum of $13.70 for a back brace. That all the other hospital and medical expenses were paid by the respondent.

The record shows claimant was paid full time during period of temporary total disability in the amount of $565.41 for a period of 14 weeks. His compensation during said period would have been $273.00. He was therefore overpaid in the amount of $292.41, which will have to be deducted from the award.

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

Ten per cent permanent partial specific loss of use of both legs, the sum of $741.00, less the sum of $292.41, or in the amount of $448.59, all of which is accrued and is payable forthwith.
An award of $13.70 for brace purchased by claimant.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $129.70, which is payable forthwith and the Court -finds that said charge is reasonable and said claim is allowed.

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