author: Me. Chief Justice TIolleeich

text:
    (No. 2086
    William Stack, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    Theodobe D. Kahn and Theodobe A. Lentin, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Chief Justice TIolleeich

delivered the opinion of the court:

Claimant filed his complaint herein on March 9, 1933, in which he asks for an award in the amount of $1,302.00 for work done by him as a painter at the State Hospital for the Insane at Dunning, Illinois, from January 1, 1932, to June 10, 1932.

All of the facts which are before the court have been stipulated by the parties. There are numerous facts in connection with the issues involved, which should have been presented to the court for a proper determination of the case, which have not been stipulated, or which appear by inference only, and not by way of direct averment.

From the facts stipulated and the inferences which may reasonably be drawn therefrom, it appears that claimant was appointed as a painter at the State Hospital at Dunning on May 15,1930, by Dr. Daniel B. Coffey, managing officer of such hospital, and continued in such employment until June 10, 1932, at which time he resigned voluntarily, but subject to the question of the legality of such employment from January 1, 1932, to July 10, 1932; that he performed his work at all times in a satisfactory manner; that he received the compensation due him for his services from May 15, 1930, to December 31, 1931; that he has received no compensation for his services from January 1, 1932, to June 10, 1932; that he now claims compensation for forty-one (41) days between January 1, 1932, and March 15, 1932, at $14.00 per day, and for sixty-one (61) days between March 15,1932, and June 10,1932, at $11.28 per day; that the position held by the claimant was a civil service position; that claimant’s appointment on May 15,1930, was a temporary appointment made with the authority of the Civil Service Commission; that some time prior to January 1, 1932, a civil service examination was held for the classification of a painter; that claimant had notice or knowledge of such examination but failed to take the same; that thereafter claimant filed an affidavit to the effect that he was prevented from taking such examination by sickness; that on January 8,1932, the Civil Service Commission notified Dr. Coffey, managing officer of said Dunning Hospital, that claimant could not be continued in the classification of a painter, inasmuch as such Commission had an eligible list in that classification; that regardless of such notification claimant was continued on the payroll until the time of his resignation on June 10,1932.

Under the Civil Service Act, when there is no eligible list, the appointing officer may, with the authority of the Commission, make temporary appointments to remain in force only until regular appointments under the provisions of the Act can be made. Hurd’s Revised Statutes, 1933, Chapter 126A, Sec. 10. Consequently, when claimant was appointed “on a permit,” as stated in a letter of the Civil Service Commission relative thereto, he knew that his appointment was temporary, and that it could remain in force only until an examination for that classification was held, and a regular appointment made under the provisions of the Civil Service Act. Claimant also knew that prior to January 1, 1932, an examination was being held for his classification, as he sought to excuse his absence therefrom by an affidavit to the effect that he was sick at that time. There is nothing whatsoever in the record to show that claimant at any time took the civil service examination for his classification.

It is incumbent on the claimant to establish his right to the compensation claimed. Being a civil service employee he must establish his right under the terms and provisions of the Civil Service Act. It is not sufficient in such a case, merely to show that he performed labor for the State in a civil service classification. He must establish his right to perform such services under that classification, either as a temporary appointee “under a permit” when there is no eligible list, or as regular appointee from the eligible list. Inasmuch as claimant was appointed temporarily on a permit, in May, 1930; and inasmuch as a civil service examination for his classification was held prior to January 1, 1932, claimant was required to show, as a condition precedent to his right to recover, either that there still was no eligible list for his classification during the time for which he claims compensation, or that he was regularly appointed from the civil service list. This follows of necessity from the requirements of Section three (3) of the Civil Service Act to the effect that “no appointments to any of such offices or places shall be made except under and according to the provisions of this Act and of the rules hereinafter mentioned.” Such requirements of the Civil Service Act must be held to be mandatory, otherwise such Act would be entirely ineffective.

Claimant has failed to establish his right to recover under the terms and provisions of the Civil Service Act, and an award must therefore be denied.

Award denied. Case dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2331
    Evert Poff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    Gerald G. Ginnaven, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant and the Attorney General have stipulated the following facts in this case, to wit:

“That Evert Poff resides at 901 North Third Street, Springfield, Sangamon County, Illinois. That on the 21st day of February, A. D. 1931, that the said Evert Poff was a private in the machine gun troop of the 106th Cavalry, Illinois National Guard, and was then and there under orders of his superior officer of said National Guard attending a drill at the State Fair Grounds north of the City of Springfield, Illinois, and during said drill was riding a cavalry horse and while in the line of duty his horse stumbled, slipped or fell, pinning and crushing his right foot under the body of said horse; that as a direct result thereof the said Evert Poff was injured, in and about his foot and leg; that pursuant to orders he was sent to Dr. G. B. Lutyens for medical attention and later after receiving three months’ treatments from said physician was treated by Dr. Percy Taylor for a period of two months; that later under direction of his superior officer said Evert Poff was sent to Dr. J. I. Ford, for treatment; and later under the direction of his superior officer was examined and treated by Dr. G. D. Lockie; that on November 10th, A. D. 1931, said claimant was ordered to Hines Hospital at Chicago, for examination by the State Medical Board; that on December, A. D. 1931, said claimant was ordered to St. John’s Hospital, Springfield, Illinois, his right foot placed in a plaster cast for a period of two weeks; that said claimant received further medical treatment from Dr. G. D. Lockie, in August, 1933, and was later sent to Illinois Research Hospital in Chicago for examination and treatment where he remained for a period of nine days; later under direction of his superior officer he was sent to Dr. J. I. Ford, who made an arch support and brace for said right foot which claimant is now wearing. It is further stipulated that said claimant was paid by the State of Illinois the sum of Sixty Dollars ($60.00) per month from the 21st day of February, A. D. 1931, to the 21st day of October, A. D. 1931.”
It is further stipulated “that the only questions in dispute are the nature and extent of the disability, if any, or if his present condition and disability was aggravated by the injury and if claimant has a permanent disability, what amount should be allowed as just compensation for said disability.”

If claimant is entitled to an award, it must "be based upon Section Eleven (11) of Article Sixteen (16) of the Military and Naval Code of this State, which provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.”

The Medical Examining Board which examined claimant at Hines Hospital on November 10, 1931 found that trauma was the initial canse of claimant’s condition; that snch condition was complicated by a secondary infections process of the Achilles tendon to a moderate degree; that claimant’s throat showed evidence of infected tonsils, and recommended that snch tonsils be removed for the purpose of attempting to eliminate the cause of infection; — which recommendations were thereafter complied with, as appears from the stipulation.

It appears from the evidence that the original injury was not in itself serious but an arthritic condition developed thereafter, which arthritis was superinduced by the injury.

In July, 1931 Dr. Ford of Springfield, at the request of the Adjutant G-eneral’s office, prepared an arch support for claimant’s foot, which he wore until December, 1933, at which time Dr. Ford made another arch support which claimant was still wearing at the time of the hearing herein. Until the time the first arch support was made for claimant, he used crutches all the time.

Claimant attended the drills of his Company during the time he was laid up and went to Taylorville with the Company in February, 1932, remaining there for twenty-nine days. He also went to Harrisburg with the Company in 1933 and remained there for two weeks. He was given the usual pay allowance, and was given work which would not require him to do any walking.

Claimant still complains of pain in his foot, shooting up his leg; also claims that such pain interferes with his sleep; that after sleeping three or four hours, the pain becomes so severe that he has to get up and rest the muscles of his leg before he can go back to bed.

The extent of claimant’s injury is not entirely clear. His counsel suggests that the $420.00 service pay which he received since the date of his injury be considered as temporary total compensation and that in addition thereto, claimant should receive compensation under the terms and provisions of the Workmen’s Compensation Act for loss of fifty per cent of the use of his right leg and loss of eighty per cent of the use of his right foot.

There is evidence to the effect that claimant sustained a loss of fifty per cent of the use of his right leg and the Attorney General concedes that if claimant is entitled to an award, the disability to the right leg is fifty per cent.

Section 10 of the Military and Naval Code provides for one-half active service pay to enlisted men who may be wounded or disabled while on duty, and under the provisions of such section claimant received the sum of $420.00. Section 11 provides for financial help or assistance in case an officer or enlisted man is wounded or killed while performing his duty, and further provides that “the State Court of Claims shall act on and adjust the same as the merits of each case may demand. ’ ’ The amount to be awarded to any officer or enlisted man under Section 11 is left entirely to the discretion of the Court of Claims and no limitation is placed upon their action except that the amount of the award shall be “as the merits of each case may demand.”

So far as the temporary disability is concerned, we are disposed to accede to the suggestion of counsel for claimant to the effect that the service pay received by claimant be considered as compensation for such disability.

In cases involving what is known in the Workmen’s Compensation Act as a “specific loss”, this court has in several cases made an award in accordance with the terms and provisions of the Workmen’s Compensation Act, and it appears to the court that in this case an award based upon the terms and provisions of the Workmen’s Compensation Act would be such as the merits of the case demand.

However, under the evidence an award cannot be made for the loss of a portion of the use of the right leg and also for the loss of a portion of the use of the right foot, as there was but one injury, and compensation for the loss of the use of the leg includes the foot. Applying the provisions of the Workmen’s Compensation Act, claimant is entitled to an award for the loss of fifty per cent of the use of his right leg; that is to say, he is entitled to compensation at the rate of Fifteen Dollars ($15.00) per week for ninety-five (95) weeks, making a total of Fourteen Hundred Ninety-five Dollars ($1,495.00).

Award is therefore entered in favor of the claimant for the sum of Fourteen Hundred Ninety-five Dollars ($1,495.00).


author: Mr. Justice Linscott

text:
    (Nos. 1726, 1727, 1728, consolidated
    John Connor, No. 1726, Myrtle Connor, No. 1727, Della Connor, No. 1728, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1935.

    G. A. Hickman and Carl Choisser, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

These claims were all filed February 24,1931, and all arise from the same state of facts which all occurred at the same time. Number 1726 is the claim of John Connor. The claimant alleges that on the 16th day of September, 1930, in the Village of Bamsey, County of Fayette and State of Illinois, that he was the owner of and lawfully occupying and driving a certain Ford roadster in which he was then riding in a southerly direction on the westerly side of a certain highway in Fayette County, and was in the exercise of all due care and caution for his own safety and for the safety of his property, and avers that the defendant, the State of Illinois, by its servants and agents, to-wit: W. L. Moody and C. E. Caldwell, State patrolmen, were possessed of a -certain Hupmobile automobile and were then and there driving in a northerly direction approaching a certain railroad crossing in the Village of Bamsey, which crossing was being held closed by the agents of the Nickle Plate Railway Company in order to permit the safe crossing of one certain engine and train of cars and it is further alleged that it became and was the duty of the agents of the State to obey and abide by the signals of the agent of the railway company to stop until such time as the said engine and train of cars had passed, hut this they failed to do, but carelessly, negligently and improperly refused to use care and caution in this behalf for the safety of plaintiffs and others using the highway, but so negligently, improperly and recklessly managed its car that the same collided with, ran into and against the car in which the plaintiff was driving with great force and violence and overturned the same and the plaintiff was badly injured and suffered severe shock to his nervous system, and the declaration contains other averments concerning the injuries.

Claim No. 1727 is the claim of Myrtle Connor, and No. 1728 is the claim of Della Connor.

In claim No. 1726 damages in the sum of Two Thousand Dollars ($2,000.00) are asked; in claim No. 1727 damages in the sum of Thirteen Hundred Dollars ($1,300.00) and in claim No. 1728 the same amount.

From the testimony of John Connor, the claimant in No. 1726, it appears that in the Ford coupe at the time of the accident was his wife, Myrtle Connor, and Della Connor and Frank Cockrum, together with plaintiff, four of them being-in a Ford coupe; that at about eleven o’clock at night he started to turn off to the left; that he was run into by a car and the front wheels of the car were off the pavement at the time the other car struck him. The road upon which both cars were driving ran north and south through Ramsey.

It appears from the evidence that a railroad track crosses the State highway at right angles. Claimant had turned off at the left on the easterly side of the highway, north of the railroad and John Connor testified that a train was standing across the hard road and a flagman was there to stop traffic. The car that struck him came from the south. Connor testified that the flagman attempted to stop this car but was not successful. It came right on, ran into his car. Connor’s testimony must be in error because if the train was standing across the State highway, the car that struck Connor could not have crossed the railroad. This north bound car was driven by Walter Moody, who with another patrolman, were in uniform and driving a Hupmobile car that was privately owned. The testimony of Connor is largely his conclusions of facts. He testified that he was using due care and caution with reference to his driving; that the collision tore his car all to pieces and crippled his wife and the other woman. On direct examination he stated that his car was worth Three Hundred Dollars before it was struck; that afterwards it was sold for Three Dollars for junk.

n In our view of the case it will be unnecessary to go into the various injuries received by these parties. On cross examination Connor stated that his car was a 1925 model Ford; that he had purchased it second hand for Fifty Dollars or Seventy-five Dollars in the Spring of 1930; that he had put new equipment on it such as piston rings and rods and new tires. The accident occurred on September 26, 1930.

On cross examination he stated that the accident occurred' about eleven o’clock and we assume this was p. m.; that he had plenty of room to drive up and stop off of the hard road; that the brakeman was on the hard road apparently about to couple-up a train; that he had seen the lights of the other car as Connor drove up to the track.

Myrtle Connor testified that she was the wife of John Connor and had been knocked out of the car. She had been sitting on the right hand side; she did not see the car coming before she was struck; she saw the train and the brakeman and the car was coming fast, “maybe 60 or 70 miles an hour.” On cross examination she said her husband had driven the car over to the left hand side of the pavement directly in the line of traffic coming south.

Della Connor, another witness, testified that she was in the car at the time and had been thrown out and did not know anything else until she came to in the doctor’s office. She testified that she did not see the car until she was struck. She also testified that the brakeman was “right at the road with a lantern waving it. ’ ’

Frank Cockrum testified that he was a teamster and was riding in the car at the time of the collision. He said he saw a light coming up the road and they were hit by a car, and that this car was coming pretty fast. He was knocked unconscious.

Walter Moody testified that he was superintendent of the State patrol of Illinois; that he was in the vicinity of Ramsey at about eleven o’clock in a privately owned Hupmobile and had been driving about fifty miles an hour; that he came up to the crossing and slowed down; that he turned off of the hard road and was hit by this other car; that there was a flagman on the back end of a car that was west of the crossing on . the railroad track. He testified that he had to turn to the right to avoid striking’ the other car and when the collision occurred he was four and one-half feet off the pavement; that after the accident he was sixty-five feet beyond the place where it occurred and on the other pavement, apparently meaning on the other side of the road. Moody’s car was never on the left hand side of the road until after the accident.

On cross examination he testified that the brakeman at the crossing was 60 or 70 feet from the hard road and that at the time of the accident, he was driving about 25 miles an hour.

Substantially to the same effect was the testimony of witness Caldwell. Moody was recalled and stated that he was 40 feet away from the Ford car when he saw it turn to the left, and that he attempted to avoid it.

It is very apparent that the testimony of the owner of the car is in error when he says that a railroad train obstructed the highway because it appears that 'the car driven by the highway patrolman was driven across the railroad track on the highway. We are not surprised that some of the inmates of the Ford car did not see the Hupmobile being driven toward them. When there are four people riding in a Ford coupe each of them would be greatly crowded and not in a very good position to see.

The declaration avers that it was the duty of the agents of the State to stop their automobile “in order to permit the safe crossing of one certain engine and train of cars, and there became and was the duty of the State of Illinois to obey and abide by the signals of the agent of the said railroad company to stop until such time as the said engine and train of cars had passed.”

Without further comment upon this alleged duty, certain it is that before one may recover from another on the grounds of negligence he must show that such other person owed him a duty, failed to perform that duty, and the resulting damages.

The alleged duty complained of here was a duty that was owed to the railroad company. It does appear, however, that some of the occupants in the Ford coupe did suffer painful and severe injuries, but because the doctrine of respondeat su perior does not apply in the State of Illinois, even though there had been negligence on behalf of agents of the State, there could be no recovery.

After a consideration of all the evidence we hold that as a matter of law in all three cases there was contributory negligence.

Without unduly extending this opinion, we hold that there is no liability on behalf of the State in each of these cases. Cases dismissed.


author: Mr. Justice Linsoott

text:
    (No. 1729
    Anne Huntington, a Minor, by E. D. Huntington, Her Father and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1935.

    Thomas A. Murphy and Sommers & Sommers, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

On February 25, 1931, claimant filed her claim by E. D. Huntington, her father and next friend, and alleges that claimant was a minor of the age of four years, and resided with her father in the City of Chicago, and that prior to the month of February, 1929, she was regularly enrolled as a student in the kindergarten department of the Alice Barnard Public School, which is located at 104th and Church Streets, in the City of Chicago, Illinois, and that school was, at all times mentioned in the claim and was, on the date of filing the claim under the jurisdiction of, and operated and controlled by the Board of Education of the City of Chicago; that “the Board of Education of the City of Chicago” is a body politic and corporate, created by Statute, and is an agency of the State of Illinois, having existence for the sole purpose of performing certain duties deemed necessary to the maintenance of an efficient system of free schools, within the City of Chicago.

It is further alleged that in the month of February, 1929, one of the lavatories of that school was heated in part at least, by an open gas plate suspended on the wall, but in that position, the gas plate did not heat the room to a proper temperature, and that at the request of the teacher of the kindergarten department, the janitor instructed one of his assistants to remove the plate from the wall and to place it on the floor of the lavatory, with the further instruction that the said plate should not be lig-hted during the hours that school was in session; that on the 26th day of February, 1929, the plate was placed on the floor of the lavatory and was permitted to remain lighted during school hours; that the lavatory was in almost constant use by the children in the kindergarten department; that about 1:30 p. m. on the last mentioned date, all of the children in the kindergarten class in the said school, were formed in line and marched to the lavatory by their teacher, and remained in line formation awaiting their turn, and that the claimant was standing in line at a point immediately in front of the spot on which the lighted gas plate had been placed, when she was pushed and shoved by another pupil, and the claimant fell in a sitting position upon the lighted gas plate, her clothing caught fire, and she was severely burned on the back of her body, from the buttocks to the neck, and upon the upper parts of both arms.

It is further alleged that claimant was confined to her bed for more than five months, and still requires medical care and attention; that she has been badly disfigured and the disfigurement is permanent; that her nervous system has been seriously affected, and that she will never fully recover from the effects of the aforesaid injuries.

It is further alleged that the cause of the injuries sustained by the claimant were and are proximately and solely chargeable to the careless and negligent conduct of the servants and employees of the Board of Education, and that by reason of the injuries, the parents of the claimant have been obliged to and did expend the sum of Fourteen Hundred Dollars ($1,400.00), and will be obliged to spend other large sums of money in and about attempting to heal and cure the claimant, all to the damage of the claimant and her parents in the sum of Ten Thousand Dollars ($10,000.00).

It will be noted that the claimant is attempting to recover damages on behalf of her parents, but inasmuch as the Attorney General has not raised this question, we will confine our opinion to questions raised by demurrer filed by the Attorney General.

A general and special demurrer was filed and it is set up: First, that the doctrine of respondeat superior is not applicable to the State; Second, that in the absence of a Statute the State is not liable for the negligence of its officers, agents and employees; Third, that the Alice Barnard Public School of the public school system of Chicago, is under the direct supervision and control of the Board of Education of the City of Chicago, a body politic, being a non-profitable corporation created by the State of Illinois in the exercise of its governmental function and the State, therefore, is not liable for damages resulting from the negligence of said corporation, or its agents.

This court and text writers generally have held that the doctrine of respondeat superior is not applicable to the State and for that reason the demurrer is sustained. Case dismissed.


author:
      Me. Justice Yantis
      Per Curiam:

text:
    (Nos. 1723-1776, consolidated
    Edmun Schweizer, No. 1723, E. Albertine Williams, No. 1776, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1935.

      Rehearing denied May 14, 1935.

    M. A. Brennan ; W. W. Whitmore ; Wm. R. Bach and L. Earl Bach, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

On the night of January 13, 1930, Edmun Schweizer and Miss E. Albertine Williams were driving in the former’s automobile between Bloomington and Saybrook, Illinois. The night was foggy and the pavement wet. Plaintiff Schweizer testified that several cars passed him and that he could see the tail lights for quite a distance after they went by. Approximately 17 miles east of Bloomington, at about 7:00 o’clock that evening he ran into the rear end of a snowplow then owned and being operated by the State of Illinois. There was snow and slush, and the snow plow had been used all day to clear the pavement for the use of the travelling public. It became broken so that it was necessary to stop where it then stood on the hard road. It was on its lawful side of the road, but was standing still at the time of the accident. According to the testimony, the stop would be characterized at law as an “Emergency Stop.” The signal lanterns had burned out about 30 minutes before the accident, and the only lights were the head lights and the red rear light on the back of the cab. Plaintiff testified that he was approximately thirty feet from the snow plow when he first saw it; that he discovered afterwards that there was a tail light on the top of the cab of the snow plow and that the body of the plow extended six or eight feet back from the cab.

The father of Albertine Williams testified that he reached the scene of the accident shortly after it occurred; that the condition and position of the automobiles were the same as testified to by other witnesses; that he drove up behind the State truck, or snow plow, from the rear, the same as young Schweizer had done, and that he could see the tail light on the snow plow when about 20 rods distant from same, but that when he got closer the windshield visor of his own car cut off the view of the tail light because of the height of the latter from the ground.

Both Edmun Schweizer and E. Albertine Williams received injuries in the accident, of a serious nature. The former has filed his claim for moneys expended for medical care in the sum of Twenty-five Dollars, ($25.00); personal injuries, One Thousand Dollars ($1,000.00), automobile damage Four Hundred Seventy-five Dollars ($475.00) or a total of One Thousand Five Hundred Dollars ($1,500.00). Miss Williams has filed her claim for One Hundred Dollars ($100.00) hospital expense; Forty Dollars ($40.00) medical expense and One Thousand Eight Hundred Sixty Dollars ($1,860.00) for physical injuries, disfigurement, pain and suffering.

The record does not show that the proximate causes of the accident were from the negligent acts of the State or its employees, and that the plaintiff Schweizer was free of any contributory negligence. The snow plow was engaged in lattempting to clear the road to make it safer for the traveling public. The breakdown constituted an “Emergency Stop.” The pavement was snowy and wet, and the night was extremely foggy, requiring more than ordinary care on the part of anyone operating an automobile on the highway. Plaintiff Schweizer’s statement that he did not see the tail light or the car until within thirty feet, indicates that he was not watching the roadway ahead with the degree of care which the conditions required, because the witness, Edgar J. Williams, father of the co-plaintiff, testified that he could see the tail light on the snow plow twenty rods before he reached it.

The Attorney General also contends that no award should be entered herein because of the rule, that the State is not liable for the negligence of its agents and employees unless there is a Statute making it liable. There being no such Statute in regard to the rule of respondeat mperior as applied to this character of claim, no award can be allowed. The contention of the Attorney General is properly made. The State acts in its sovereign capacity and is not liable for the torts or negligence of its agents in the construction and maintenance of its hard road system.

Derby vs. State, 7 C. C. R. 145.

Claim denied. Case dimissed.

Opinion on Petition eor Rehearing.

Per Curiam:

This cause now again coming before the Court on Claimant’s petition for rehearing and the court having reviewed the record and being fully advised in the premises finds that the petition for rehearing is without merit.

As stated in the original opinion the record discloses that the highway in question is one built and maintained by the State of Illinois. In the construction and maintenance of its roads the State acts in a governmental capacity and in the exercise of such functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a Statute creating such liability. The General Assembly has never enacted a law making the State liable for damages arising as complained of in this case. This court does not consider that it has authority or power to make an award under the facts appearing herein. See

Bucholz Admx., etc. vs. State, 7 C. C. R. 241.

Crabtree vs. State, 7 C. C. R. 207.

The petition for a rehearing is denied and the original opinion filed herein on March 12th is re-affirmed and the above case is dismissed.


text:
    (No. 1813
    Elery Tascher, and Elery Tascher, Next Friend of Charles Tascher, a Minor, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1935.

    J. N. Moore and Wendell P. Kay, for claimants.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this case alleges that on or about July 9, 1930, the State of Illinois, through its Highway Department and divers employees was engaged in the construction of a part of State Route No. 49, at a point on Route 49 about one mile south of its intersection with Route 8, Iroquois County, and had in its employ one Harold Seivert, who was driving a loaded truck over Route No. 49, and that this truck was being driven at about twenty-five miles per hour, and as the driver of the truck approached a point on Route No. 49 on which the home of the claimant abutted, he saw a United States mail ear or automobile immediately west of the shoulder on Route No. 49, and said Seivert also saw Ellery Tascher driving a team of horses across Route No. 49 to a field to the west of the route.

The declaration also avers that Charles Tascher started across Route No. 49 in an easterly direction east of the car belonging to the mail carrier, but said Seivert, wholly disregarding his duty in that behalf, operated and drove his truck negligently and recklessly in such a manner, that he approached without warning the point on said Route No. 49 where said Charles Tascher was passing, and the truck was propelled with great force and violence against the head of said Charles Tascher, knocking him down, fracturing his skull and running over the right foot of the said Charles Tascher, crushing the muscles, tendons and ligaments in the foot.

It is also averred that the said Charles Tascher suffered permanent injuries; was confined to a hospital at Watseka, Illinois, for two weeks; that he incurred a-hospital bill of $66.95, a doctor bill of $75.00, and a nurse bill of $64.00; that his mother boarded near the hospital to give him the care needed under the circumstances and for that expended the sum of $10.00.

Claimant also claims a permanent disfigurement to his right foot, and alleges that it will remain permanently shorter and much broader than his other foot and causes a considerable limp.

It is also averred that Charles Tascher tires easily, and this unfits him to do his share of the farm work, and that the right foot requires different shaped shoes than the one on the left foot; that his earning ability has been greatly impaired ; that he now suffers and will suffer for the rest of his natural life, the humiliation and shame of being a cripple, and alleges damages in the sum of $3,000.00.

In the same declaration, Blery Tascher claims and avers that he paid the hospital bill, doctor bills, nurse’s bill and the expenses of the boy’s mother in the. aggregate sum of $216.95, and that by reason of the injuries sustained by Charles Tascher, the services of said Charles Tascher has diminished in the sum of $500.00, and that by reason thereof, the said defendant is indebted to him in the sum of $716.95, for which he makes claim.

;The case stands in this court on a motion to dismiss. While there may be other grounds for dismissing the same, that is, technical grounds on questions of pleading, we prefer to consider this case from the standpoint of whether or not the State of Illinois should be held liable. The Attorney General urges that the motion to dismiss should be allowed and the claimants barred from maintaining their alleged tort action for the reason that the doctrine or rule of respondeat superior has no legal application to a sovereign State in the exercise of a governmental function.

In the case of Seymour vs. VanSlyck, 8 Wend. 403, 422; United States vs. Kirkpatrick, 9 Wheat. 720, 723, it was held:

“The. government itself is not responsible for the misfeasances, or wrongs, or negligences or omissions of duty of the subordinate officers of agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties and losses which would be subversive to the public interest; and indeed, laches are never imputable to the government.”

This rule has been followed and applied by this court in many instances where claims have arisen as the result of negligence of officers or servants of the State of Illinois.

In the case of the City of Chicago vs. Williams, 182 Ill. 135, on page 138, the Supreme Court, after reviewing certain cases concerning the liability of municipal officers said: “But where acts are done by the officers of towns and cities in their public capacity in the discharge of duties imposed by the law for the public benefit and for the promotion and preservation of the public welfare, no private action lies unless the right to bring it is expressly conferred.”

While there may be some language in the Court of Claims Act to the effect that a case of the kind at bar could be maintained, in this court, we cannot ignore the express constitutional provisions, and must hold that there is no express right to bring a suit of this kind in this court.

The rule announced in the Williams case has been approved by our Supreme Court in many cases prior to that and also subsequent to that time.

Regrettable as it is, we must hold that neither claimant has set forth a cause of action against the State, and the motion to dismiss must be sustained for the reasons hereinbefore set forth. Case dismissed.


author: Me. Justice Yantis

text:
    (No. 2468
    William S. Bailey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    William S. Bailey, claimant, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

William S. Bailey, a member of the Howitzer Co., 130 Inf. I. N. G. was in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933. (See Case vs. State, C. of C. No. 2469.)

Claimant states that the injuries received by him were as follows: Cuts on two fingers of the right hand, burns received while being dragged along the side of the bus in escaping therefrom, and a bruise on the fore part of the right leg.

Claimant testified that his right leg was affected for a week or ten days, preventing him from doing ordinary labor; that during a part of that time he was at Camp Grant; that after he returned from Camp Grant his injuries did not prevent him from performing his usual labors.

A Military Medical Board examined him on August 8, 1934 and found that there was no permanent disability. Claimant agrees with this report.

Claimant’s usual wages were $18.00 per week; he is married and has three children, ages 11, 9 and 7. Taking into consideration the time that he was disabled and his earnings, an allowance of $20.00 would be merited. Under authority of the Military and Naval Code an award is therefore allowed claimant in the sum of Twenty Dollars ($20.00).


text:
    (No. 2446
    Earl R. Brake, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Earl B. Brake, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Earl R. Brake was a member of the Howitzer Co., 130th 'Inf. I. N. G. and was in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933. (See Case vs State, C. of C. No. 2469.)

A Military Medical Board made a physical examination of claimant on August 8, 1934, and found that there is no sign of scars or disability of any kind existing. Claimant testified that he was in the bus immediately behind the one that caught fire and that upon arriving where the bus was burning, he jumped on the running board of a private automobile to instruct the driver to go into Pana and send out nurses and doctors. While on the running board another car drove along side and caught claimant’s leg between the rear fenders of the two cars; that the leg was skinned and the muscles strained and the calf of the leg was bruised as a result. Claimant suffered temporary disability for two or three days, then went to Camp Grant with his Company and after he returned from Camp Grant was treated for about a week. He testified, however, that after his return from Camp Grant, there was no disability that made him unable to perform the duties of his regular employment. Claimant agrees with the report of the medical board as to permanent disability, and the court therefore finds, under authority of the Military Code that an allowance of $7.50 is merited and an award is made in favor of claimant in the sum of Seven and 50/100 Dollars ($7.50).


author: Mr. Justice Yantis

text:
    (No. 2467
    Edward F. Brooks, a Minor by J. Floyd Brooks, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied May 14, 1935.

    Edward F. Brooks, a Minor, by J. Floyd Brooks, His Next Friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Edgar F. Brooks, a minor files his claim herein by J. Floyd Brooks, his next friend and a stipulation has been filed that he was one of the members of the Howitzer Co. of the 130th Inf. I. 1ST. G. who was injured in the bus-fire that occurred near Pana, Illinois, on July 26, 1933, while claimant was on duty as a member of said Company. The injuries received by claimant were duly considered by medical boards at various times, the last of which was on August 8, 1934. That report shows that while burns were received by claimant on the face and neck, no scars appeared. There are some scars on the body, none of which cause any disability. An X-ray examination shows the possibility .of a fracture having occurred on the right shoulder. The Military Board estimated the permanent partial disability at ten per cent (10%). Claimant stated that the shoulder injury was the result of his jumping from the burning bus. Claimant was moved to the Pana Hospital immediately after the accident and remained there three days. He then went to Camp Grant for further training with his Company, where he received regular military pay. Prior to the accident he was employed in an A. & P. store on Saturdays outside of school hours. At the time of the hearing he did not recall at what rate he had received wages. In September following the accident he was re-employed by the Davidson Biscuit Company and had been continuously employed by such company from that time until the date of the hearing. He testified that he has been compensated through the Adjutant General’s Office for the loss of time due to injuries, in the sum of One Hundred Eighty Dollars ($180.00).

At the time of the accident claimant was a senior in high school and after regaining employment worked six hours a day and attended high school in the afternoon so he could graduate. His testimony is that he is paid forty cents (40c) per hour for six hours a day. He further testified that he was in accord with the ten per cent (10%) disability finding-made by the Military Medical Board.

Considering this claim under the same rules we have followed in determining awards in similar claims we find that claimant should receive an award of Two Hundred Fifty Dollars ($250.00). The State has paid or has assumed payment for medical, nursing and hospital fees amounting to Sixty-two and 75/100 Dollars ($62.75) in addition to the One Hundred Eighty Dollars ($180.00) previously paid claimant. A further award is hereby entered in his favor in the sum of Two Hundred Fifty Dollars ($250.00).


author: Mr. Justice Tantis

text:
    (No. 2451
    Lloyd G. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Lloyd G. Brown, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Lloyd G. Brown, a member of the Howitzer Co. 130th Inf. I. N". G., was in the military bus-fire accident that occurred near Pana, Ill., on July 26, 1933.

A Military Medical Board examined claimant at Camp Grant on August 8,1934, and reported there was no permanent disability. Claimant testified he agreed with that report. The record discloses that claimant was a married man with one child ten months old at the time of the hearing. He operates a small truck farm and estimates his earning at approximately $300.00 per year. In the military bus-fire he suffered burns to both ears, his right leg was sprained and his side was also bruised. Following his return from Camp Grant he was unable to perform his usual duties for a period of about three weeks.

The record indicates that claimant merits an allowance for three and one-half weeks temporary disability. If the Compensation Act rules were applied a minimum allowance of $7.50 per week would be increased to $11.00 because of one child under sixteen years of age. An allowance will be made upon this basis and an award is hereby entered in favor of claimant in the sum of Thirty-six and 75/100 Dollars ($36.75).


text:
    (No. 2495
    Ruth L. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    B. Wallace Karraker, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Under a stipulation of facts filed herein it appears that claimant, Buth L. Brown, is the widow and only heir-at-law of Charles B. Brown, deceased; that the latter was an employee of the State of Illinois and had worked in the Division of Highways for over thirteen years; that at the time of the accident complained of his salary was Two Hundred Dollars ($200.00) per month. It further appears that on Saturday afternoon, July 21, 1934, this employee, Brown, was working on S. B. I. Boute No. 84, Section 102-X, assisting in laying forms and operating the “bull float,” an instrument used in leveling the surface of the concrete pavement. The temperature on the day in question was about 106° in the shade. The employee was working in a depression where the highway declined and crossed a valley. He was working in the direct rays of the sun where the temperature was between 115° and 120° Fahrenheit. The crew engaged in the work was shorthanded and did not have the normal number of employees for such work and in addition, the job was being rushed or hurried in an effort to finish the same. The employee, Brown, was overcome from the heat on the day in question and died on July 22, 1934. The attending physician, Dr. J. L. Klein, certified that in his opinion the cause of death was the result of sunstroke.

In claims for compensation arising from injury or death by sunstroke each case must stand on its own proof. The mere fact that an employee while in the course of his employment and engaged in performing the duties of his employment, suffers injury or death as a result of sunstroke or heat prostration, does not establish a compensation liability. It must appear that the employee was subjected to a substantially increased hazard over that to which the public in general and other workmen in the same locality were subjected, and that the sunstroke was due thereto, so that the injury might be said to arise “out of” the employment. (Angerstein, P. 85, Par. 47.)

It appears from the record that this employee at the time of being overcome by the heat was being subjected to a more severe and different degree of exposure from that of the public in general and from other workmen. He and a limited number of associates were engaged in doing the work that ordinarily would have required the services of a larger number and at a particular spot where the degree of heat was in excess of that found to exist in general. While it is difficult to determine when an injury from heat prostration is compensable we believe the facts in" the instant case justify a finding that an award is due plaintiff herein.

The employee’s wages were Two Hundred Dollars ($200.00) per month, and a maximum allowance of Four Thousand Dollars ($4,000.00) is authorized by the Workmen’s Compensation Act. Under our practice such award should be commuted to a lump sum payment. Thus commuted the amount payable would be Three Thousand Six Hundred Eighty-eight and 33/100 Dollars ($3,688.33).

The record further discloses that a hospital bill of Fifteen Dollars ($15.00) is due the Belleville Hospital in Muscatine, Iowa, and a doctor’s bill of Nineteen Dollars ($19.00) is due Dr. J. L. Klein of Muscatine, Iowa, and the award herein includes these two items.

An award is therefore entered in favor of plaintiff, Ruth L. Brown, in the sum of Three Thousand Seven Hundred Twenty-two and 33/100 Dollars ($3,722.33).


text:
    (No. 2454
    Dwight G. Carter by David Carter, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Dwight Gf. Carter by David Carter, His Next Friend, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Dwight G. Carter, injured in the Pana military bus-fire accident on July 26, 1933, has filed his claim pro se for such award as the judgment of this court may consider of merit.

Claimant was a member of the Howitzer Co. 130th Inf., I. N. G. The Medical Board in this, as in the other cases growing out of the accident, made findings at various times, the last of which was on August 8,1934, at which time they found claimant had suffered permanent partial disability of ten per cent (10%). This disability was the result of burns and injuries to his left shoulder, hand and right leg. The backs of both his hands were burned, the inside of the left hand, the right leg was burned and he suffered a strain in the left shoulder. The sides of his face, neck and ears were burned,s but no serious scars appear to have resulted therefrom. Claimant was engaged in farming prior to the accident; is unmarried and makes his home with his father and mother. He was farming for himself, owned his own horses and rented land from a neighbor. He has signed and filed herein his approval of the medical board’s finding of permanent partial disability of ten per cent (10%), as determined by the board in its examination of August 8,1934. The records show that he had been paid through the Adjutant General’s office Four Hundred Twenty-eight Dollars ($428.00), from July 25, 1933, to February 26, 1934, and that the State had also paid for him, or assumed the obligations of, medical and hospital fees amounting to Two Hundred Eighty-three and 85/100 Dollars ($283.85).

There is nothing in the record to indicate what claimant’s earnings were during the year immediately prior to the accident.

If plaintiff was making his claim as an employee the amounts previously paid him, would exceed any allowance due bim under the Workmen’s Compensation Act. We believe the court is justified, however, in disregarding the payments heretofore made in considering the ten per cent (10%) permanent partial disability. Such disability will be figured upon the basis of the minimum provided by the Workmen’s Compensation Act in case of death, i. e. ten per cent (10%) of Two Thousand Five Hundred Dollars ($2,500.00), or Two Hundred Fifty Dollars ($250.00) — and am award is therefore made to claimant in the sum of tivo Hundred Fifty Dollars ($250.00) ; same to be in addition to any payments heretofore made, and it is further ordered that any payments heretofore approved shall be discontinued, upon the issuance of a warrant in payment of this award.


author: Mb. Justice Yantis Mb. Justice Tantis

text:
    (No. 2469
    Marlow Case, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing granted May 14, 1935.

    Marlow Case, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Marlow Case, claimant herein, was a member of Howitzer Company 130th Infantry, Illinois National Guard, on the 26th day of July, A. D. 1933, and was one of the men injured in the motor bus fire that occurred near Pana, Illinois, on that date. He files his claim herein pro se.

Claimant’s Company had been engaged in active duty at Taylorville in Christian County, under orders of the Governor of this State, as Commander-in-Chief of the National Guard, to assist the sheriff of that county in maintaining peace during a strike then in progress among- the coal miners of that county.

On the above date, the Company under command of Captain Edward G. Johnston, started on its homeward trip from Taylorville to Mt. Vernon, Illinois; transportation being furnished by the State of Illinois in two automobile buses chartered by the State through its Military Department from the Illinois Terminal Transportation Company. When about four miles northwest of Pana one of the buses caught fire and the flames spread so quickly throughout the interior of the bus No. 200, that the passengers were compelled to leap from the moving bus, thereby receiving not only serious burns, but other accidental injuries. First aid and hospital care was immediately given and the State, through the Adjutant General’s office and under approval by this court, has made certain payments to various ones of the injured men, as will appear in the individual cases.

A military Board of Inquiry that met after the accident found that the injuries received by the various men were sustained in the line of duty as members of said Company, and that the injuries occurred through no fault or neglect on the part of any officer or enlisted man of the Illinois National Guard. The transportation company that owned the bus is, from the records, apparently a subsidiary of the North American Light & Power Company, which in turn is the parent company of the Illinois Power & Light Corp., and the Illinois Traction, Inc., and was granted a charter on the 15th day of November, 1930. The general offices are now located in the Mid-west Terminal Building, 12th and Lucas Streets, St. Louis, Missouri, according to investigation and reports made by the Illinois Commerce Commission, following the fire; and the transportation company is indemnified to the extent of Fifteen Thousand Dollars ($15,000.00).

Private Marlow Case was seated directly back of the driver. He received the most severe scars and burns of any member of the Company except those who died as a result thereof. The reports of the Military Board and the written testimony of witnesses and the oral examination of Private Case in open court, disclose that his entire face is covered with scars with Keloid formation; both ears being burned so severely that they are merely vestigial. There is a bi-lateral retraction of the lids because of scars, preventing the closing of either eye. The Dorsum of each hand is covered with sears and Keloid formations preventing the flexing of the hands or their use in general physical labor. There were severe first, second and third degree burns on the legs and shoulders and the scalp above the right ear was burned, preventing the growth of hair above the right ear. Further medical reports estimate that claimant suffers a permanent partial disability of seventy-five per cent (75%), as a result of all the various injuries sustained. Oral proof and examination in open court disclose that because of the Keloid formation and burned eyelids and ears, claimant is seriously restricted, if not prevented, from obtaining any kind of position where the duties would depend upon contacts with the public in general. On the other hand, he cannot perform general physical labor because of the drawn and injured condition of both hands and his physical inability to withstand excessive heat.

Claimant is twenty-one years old, a high school graduate and had finished one year in Blackburn College. He was attempting to educate himself as a Professor in Agriculture and during his vacation periods he was engaged in active farm work. When engaged in such labor he earned from Two Dollars ($2.00) to Three Dollars ($3.00) a day. He is unmarried and had been a member of the Militia Company for about three years.

The Court of Claims is asked to adjust this claim under the provisions of Section II, Article XVI, of the Military and Naval Code of Illinois, which provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chiei, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

The claim filed by plaintiff states that medical, nursing and hospital fees amounting to One Thousand Three Hundred Eighty-six and 85/100 Dollars ($1,386.85) have been paid or assumed by the State for him. The record further discloses that from the date of the accident July 26, 1933, to February 22, 1934 the sum of Four Hundred Twenty Dollars ($420.00) has been advanced and paid to claimant through the office of the Adjutant General under authority of the Military Code; and since that time under approval by this court, further payments have been made which will aggregate approximately Five Hundred Fifty Dollars ($550.00) additional.

The Court of Claims is not definitely committed to the observance of the provisions of the Workmen’s Compensation Act or any other specific guide in determining what awards shall be made in cases arising under the Military Code, but it has in many instances, followed the Compensation Act as a reasonable guide in such matters. The claim of Private Case appeals most strongly to the court. He is a young man, with splendid prospects for the future at the time of the accident in question. His previous earnings had been small compared to the probable returns in the work for which he was educating himself. His ability to support himself in the future is restricted to a minimum, and the medical record rates him as being seventy-five per cent (75%) disabled. Under the most liberal construction of the Compensation Act he could not be allowed more than Two Thousand Five Hundred Dollars ($2,500.00) under Section 8-B for temporary total incapacity; and a sum of One Thousand Eight Hundred Seventy-five Dollars ($1,875.00) for permanent partial disability, or a total of Four Thousand Three Hundred Seventy-five Dollars ($4,375.00), and in the ordinary Workmen’s Compensation Case there would be deducted from this, the amount already paid of approximately Nine Hundred Seventy-five Dollars ($975.00). The court is of the opinion that the claimant’s condition and the nature of his service are such that a more liberal award than one allowable under the Compensation Act is justified, and under authority of the Military and Naval Code, snch award should be made without regard to the amounts advanced through the Adjutant General’s office. We believe such advancements should be continued until the award herein made is paid, and it is therefore ordered:

That approval is hereby entered for the continued payment through the Adjutant General’s office and regular military channels of daily pay in the sum of Two Dollars ($2.00) per day to Private Marlow Case pending an appropriation by the Legislature of Illinois for the award hereinafter made; such payment to cease if and when a voucher in payment of said award is issued to said Marlow Case.

We further find that the merits of the claim of Marlow Case justify an award under the provisions of the Military and Naval Code of Five Thousand Dollars ($5,000.00) and we therefore make and recommend an award in his favor in said sum.

Opinion on Behearing.

Mb. Justice Tantis

delivered the opinion of the court:

This matter again coming before the court upon the application of claimant by E. G. Johnston, Capt. of the Mt. Vernon Howitzer Co., 130th Inf. for the allowance of further hospitalization to relieve claimant of partial effects from the injuries complained of, and the court being further advised in the premises, and it appearing from the further evidence herein that Marlow Case was examined on April 10, 1935 by Dr. V. P. Blair of St. Louis, Missouri, as per a report of the latter on file herein, and it being apparent that claimant’s injuries may be relieved to some extent by further surgical treatment and hospitalization. -

It is Hereby Ordered, that this cause remain upon the docket of this court for the purpose of allowing an additional award for such expense if any, as may hereafter’be shown to have been properly incurred in surgical treatment and hospitalization given to claimant for the purpose of effecting relief from the injuries and disfigurements herein complained of. This supplemental order shall not delay the payment of any award heretofore made herein.


text:
    (No. 1829
    James E. Chase, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    James E. Chase, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, James E. Chase, filed his petition setting forth that on the 4th day of August, 1931, he was employed by the State of Illinois at the Elgin State Hospital as mechanics • helper, and had been so employed for sometime prior thereto, and at the direction of his superior officer, he was requested to frame a piece of lumber, and in doing this he was using a jointer. During the process of the work and while pressing down with his left hand, the knives struck a knot which hurled the timber from under his hand, permitting his left hand to drop into the knives, badly lacerating the third, fourth and fifth fingers of the left hand. He was taken to a hospital and given immediate attention where he was confined three weeks, being under the care of Dr. Wiltrakis. About 1:30 o’clock on the same afternoon, the third finger was amputated at the first joint and both the fourth and fifth fingers were amputated at the second joint, and he claims Fifteen Hundred Dollars ($1,500.00) damages.

It appears from the record that the claim arose out of and in the course of employment and that the proper authorities had prompt notice, and the State is bound by the provisions of the Workmen’s Compensation Act.

Under the Compensation law, Item 3, subsection (e) Section 8 of the Workmen’s Compensation Act provides that for the loss of a second finger, the employee shall receive fifty percentum of the average weekly wage during thirty-five weeks. The employee was earning from $115.00 to $120.00 a month at the time he was injured. The record does not disclose that he had any dependents.

Section 4 of the same subsection above referred to, provides that for the loss of the third finger, the employee shall receive fifty percentum of the average weekly wage during twenty-five weeks.

Item 5 of the same subsection provides that for the loss of a fourth finger, the employee shall receive fifty percentum of the average weekly wage during twenty weeks.

Under Item 6 of the same subsection it is provided that the loss of the first phalange of the finger shall be considered equal to the loss of one-half of such finger and compensation shall be one-half of the amounts above specified.

The maximum amount which this employee would be entitled to under the Compensation Act would be Fifteen Dollars ($15.00) per week. He therefore would be entitled to one-half of the amount of 35 weeks at $15.00 per week, because but one phalange was amputated, or...........$262.50

For the third finger, 25 weeks at $15.00 per week, or 375.00 For the fourth finger, 20 weeks at $15.00 per week, or 300.00

making a total of................................ $937.50.

We, therefore, award the claimant here, the sum of Nine Hundred Thirty-seven Dollars and Fifty Cents ($937.50).


text:
    (No. 2453
    Champ Clarke, a Minor by Ben Clarke, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Champ Clarke, a Minor, by Ben Clarke, His Next Friend, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Champ Clarke, a member of the Howitzer Co., 130th Inf. I. N. G. "was in the military bus-fire accident that occurred near Pana, Ill. on July 26, 1933.

Claimant resides with his parents on a farm and was employed by his father at $15.00 per week at the time of the accident. He also played in a band at such times as they called him, and when he thus played received $10.00 per week. The evidence does not show that he received any calls or that the band had need of his services following the accident or that he lost any wages in such connection.

A Military Medical Board passed upon his physical condition in August, 1934 and reported that he had no permanent disability. The evidence shows, however, that Private Clarke received a skinned elbow, a skinned hip and a slight dislocation of one shoulder in the bus-fire accident; also that the shoulder gave him considerable temporary trouble for about four weeks after the accident. During two of these weeks he was in Camp at Camp Grant in military service and received the usual pay therefor. At the time of the fire he lost a pair of glasses valued at Ten Dollars ($10.00) and toilet articles valued at Five Dollars ($5.00).

It appears from the entire record that claimant should be reimbursed for the items of property lost in the sum of Fifteen Dollars ($15.00) and compensation for temporary disability for two and one-half weeks on the basis of the Compensation Act scale of $7.50 per week.

An Award is Therefore Made in favor of Ben Clarke for the use of Champ Clarke in the sum of Thirty-three and 50/100 Dollars, ($33.50).


author: Mb. Justice Yantis

text:
    (No. 2406
    William J. Connell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Andrews & Young, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant was employed by respondent at the" Dixon office of the Division of Highways, as a painter, at a salary of One Hundred Eight Dollars ($108.00) per month. On June 21,1933 while riding on a State Highway truck from the place of his work near Kewanee to the Paint Shop at Dixon, the truck collided with another automobile at an intersection of State Highways in Annawan, Illinois, and claimant was injured; the injuries consisting of a V shaped cut about two inches long on his chin; a cut on his left cheek about two inches long and the loss of three upper teeth, and the loosening of all the other upper teeth, resulting in their later removal; also a skin cut one inch long above the hair line on the right side of the forehead. All of plaintiff’s medical expenses, and the cost- of a new set of upper teeth have been paid for by the State, as his employer, and plaintiff has received full pay during his temporary total incapacity and is still employed by the State. He was thirty-two years of age at the time of the injury and he had two children, one aged eleven and another aged eight years. Additional compensation was claimed in the sum of “One Thousand Dollars ($1,000.00) for serious and permanent disfigurement to the face and head, under Paragraph 8-C of the Workmen’s Compensation Act.”

In his Statement, Brief and Argument, plaintiff submits the following: “The question which complainant desires to present is whether he is entitled to any further compensation for the disfigurement caused by the scars and the loss of teeth; # * # that because he still suffers severe headaches as a result of the brain concussion * * # his recovery is not complete, and this court should allow his claim to stand open so that if, at any time in the future, the consequences of the brain concussion and injuries become so serious as to amount to incapacity, complainant will not be barred from having any further award to which he may be entitled under the law.”

The Statute under which claims of employees are heard by this court specifies that same shall be considered under the provisions of the Workmen’s Compensation Act of Illinois.

Any question as to deferred or an increasing disability that plaintiff may desire to urge in the future will therefore be governed by the terms of that Act.

While plaintiff at the time of the accident was not at the scene of his labors but was returning therefrom, he was riding in a State truck. As the State was providing the means of conveyance, this claim comes within the exception as to non-liability of the employer for accidents occurring off the premises.

He is entitled at this time, under the proof, to an award for physical disfigurement. His counsel in their Brief and Argument state that “complainant himself is unable to compute the pecuniary measure of the injuries to him.” Plaintiff’s disfigurement has not in fact interfered with his employment as he is still employed by the State. Such disfigurement might well affect his opportunity for employment in a general way, however. From the evidence in the record, including the photograph appearing therein, an award of Five Hundred Dollars ($500.00) is allowed.


text:
    (No. 2462
    Aaron Gooch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied March 14, 1935.

    Aaron Gooch, pro se.
    Otto Keener, ‘Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Aaron Gooch was a member of the Howitzer Co. 130th Inf. I. N. G. and was in the military bus-fire accident near Pana, Illinois on July 26, 1933. At that time he was residing in Mt. Vernon, Illinois, but at the time of the hearing herein he was residing at 403 North 7th Street, DeKalb, Illinois. Prior to the accident he was a mechanic. In the accident he suffered only a slight injury to the left elbow and testified that he was not disabled and did not lose any time from his regular employment as a result of the accident.

Claimant was examined by a Military Medical Board in August, 1934, and was found by the board to have received no permanent disability. Claimant testified that he approved the finding of the Military Medical Board. If there was any basis upon which the Court could base an award for financial help or assistance to Private Gooch such award would be made, but in the absence of such showing and there being nothing in the record upon which to base an award, no recommendation for an award is made and the claim is dismissed.


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    (No. 2447
    Howard F. Greathouse, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Howard P. Greathouse, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Howard F. Greathouse, a Sergeant in the Howitzer Co. 130th Inf. I. N. G., was in the military bus-fire accident that occurred near Pana, Illinois on July 26, 1933.

A Military Medical Board made a physical examination of claimant on August 8, 1934 and found that no evidence of disability or disfigurement existed. Claimant testified that he received lacerations on the leg and elbows in the bus-fire; that he received treatment from Dr. Hamilton at Mt. Vernon and at Camp Grant where he went after the accident. He further testified that he was unable to work before he went to Camp Grant and about a week after he returned therefrom. Claimant is married and has one child eight years old and was earning Twenty Dollars ($20.00) per week as a clerk. Application of Workmen’s Compensation Act Rules seems equitable.

On the basis of wages and time lost an award of Sixteen Dollars and Fifty Cents ($16.50) is hereby made in favor of claimant.


author: Mr. Justice Yantis Me. Justice Yantis

text:
    (No. 2461
    Nettie Hale, Admr’x. of the Estate of Morris Harper, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing granted May 14, 1935.

    Nettie Hale, Admr’x. of the Estate of Morris Harper, Deceased, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Morris Harper was a member of the Howitzer Co. of the 130th Inf. I. N. G. and lost his life in the military bus-fire accident near Pana, Illinois, on July 26, 1933. His mother, Nettie Hale was appointed administratrix of his estate and has filed this claim pro se..

Deceased was twenty years of age at the time of his death and left as his heirs — his mother, one married sister, a brother sixteen years of age, another brother fourteen years of age and a half brother two years of age. His father is dead and his mother has again married. Deceased resided with his mother, stepfather and brothers at the time of his death, living on a farm in Jefferson County. His sister was married and lived in her own household.

Deceased worked on the farm, helping with the farm work and all the duties about the house and home. He also worked away from home when he could obtain anything to do. The money that Morris earned he used for clothing and contributed a part to his mother.

The State has paid or assumed payment of medical and other fees amounting to Four Hundred Twenty-five and 10/ 100 Dollars, ($425.10). Because of the meager proof in the record as to contributions by the deceased to his mother’s support, it is difficult to determine what award can be allowed in this case. If we strictly applied the rule of the Workmen’s Compensation Act no award would be made. This court, however, is not limited by said Act in acting on claims submitted under the Military and Naval Code.

“In cases where an officer or enlisted man of the National Guard is killed while performing his duty, etc., his heirs or dependents shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

Sec. II Art. XVI Military & Naval Code of Ill.

Because it is apparent that the deceased soldier was contributing by his labor something to his mother and family’s support, although to a limited extent, an award for their financial help and assistance seems merited, and an award is hereby entered, in favor of Nettie Hale, as the mother of said Morris Harper, deceased, in the sum of One Thousand Dollars ($1,000.00).

Opinion on Beheaetng.

Me. Justice Yantis

delivered the opinion of the court:

Application of the above named claimant for a re-consideration of the award of One Thousand Dollars ($1,000.00) heretofore made in her favor has been duly considered and the entire record in connection with the military bus-fire accident out of which the death of Morris Harper resulted, has been reviewed.

The contributions to the support of claimant by the deceased, as shown by the record, were so meager, there is no theory upon which an award to the amount of One Thousand Dollars ($1,000.00) as heretofore granted can be sustained, except by giving to her the benefit of the provisions of the Workmen’s Compensation Act. Accepting such Act as a guide the court in its original opinion made an award of One Thousand Dollars ($1,000.00) to claimant. No sufficient basis for a change of such award being evident, the award heretofore made is hereby re-affirmed and such award of One Thousand Dollars ($1,000.00) in favor of Nettie Hale as the mother of Morris Harper, deceased, is hereby recommended.


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    (No. 2456
    Ashley W. Harlow, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Ashley W. Harlow, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Ashley W. Harlow has filed his claim as another of the members of the Howitzer Co. 130th Inf. I. N. G. who was in the military bus-fire accident near Pana, Illinois on July 26, 1933. (See Case vs. State — C. of C. No. 2469.)

A Military Medical Board in considering his case on August 8, 1934 found there were no visible scars and no disability. Claimant in his testimony herein agrees with the conclusion reached by the medical board and states that the only effects upon him as a result of the accident were burns across the knuckles of the left hand, the left side of his nose and a bruised elbow. He was not regularly employed prior to the accident but had been working on Saturdays on the basis of $18.00 per week. The State has assumed the payment of medical expense in his behalf of $4.50.

Claimant lost personal effects of the value of Eighty-five Cents (85c). There being no permanent disability the only loss of time that could be calculated for which claimant might be entitled to compensation would be three days, between the time of the bus-fire and his departure for Camp Grant. If the Compensation Act was applied there could be no award, but the court under authority vested in it under the Military and Naval Code, is of the opinion that claimant should be compensated for the three days time on the basis of his wages at $18.00 per week and also for the loss of property, and on this basis a total award of $9.85 is allowed.


author: Mr. Justice Tantis Mr. Justice Yantis

text:
    (No. 2442
    Elijah F. Hayes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing granted May 14, 1935.

    Elijah F. Hates, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Corporal Elijah F. Hayes has filed his claim pro se under a stipulation that he was a member of the Howitzer Co. of the 130th Inf. I. N. G. and was injured on July 26, 1933 in the bus-fire near Pana, Illinois while on duty as a member of the National Guard of this State; that his injuries have been duly considered by a Medical Board on September 23, 1933, July 26, 1933, January 14, 1934 and August 8, 1934.

Claimant is forty years of age and had been a member of the Militia since January 3, 1930. Prior to the injury he was engaged as an automobile mechanic and was earning Thirty-seven Dollars ($37.00) per week. He is a widower without any children and testified that the most serious injuries received by him in the bus-fire were severe burns on the left hand, and in the lumbar region of the back and on the neck and back of the left ear. There is some stiffness in the left hand, causing inability to grasp tightly. In its final examination at that time the Military Medical Board considered X-ray films made on August 10, 1934 showing a bony deformity in his shoulder, and the Board estimated his permanent partial disability at twenty-five per cent (25%). There is evidence of a hernia operation performed several years ago and a recurrence of such hernia shortly before the accident in question, but in no way connected with the accident.

Payments have been made to the claimant under the provisions of Section X Art. XVI of the Military Code through the Adjutant General’s Office from July 25, 1933 to February 26, 1934 in the sum of Four Hundred Fifty-four and 75/100 Dollars ($454.75). Under approval of this court further payments have been made to claimant through the Adjutant General’s Office.

In addition thereto the State has paid or assumed payment for medical, nursing and hospital fees for claimant to the amount of Two Hundred Eighteen and 75/100 Dollars • ($218.75). Claimant testified that the burn to his left hand and the dislocation of his shoulder comprise the most serious injuries; that the burn to his right hand was the most painful at the time of the accident, but that there seems to be no permanent injuries thereto.

While the Workmen’s Compensation Act does not control in claims of this character, we believe its provisions are properly considered as a guide. That Act provides for a payment of fifty per cent (50%) of the average weekly wage with a maximum of Fifteen Dollars ($15.00) for 225 weeks for the loss of an arm or the total loss of its use. Claimant’s earnings would entitle him to the maximum of Fifteen Dollars ($15.00) per week if figured by this rule. Twenty-five per cent (25%) disability of loss of an arm would figure $15.00 times 56-% weeks — or Eighth Hundred Forty-four Dollars ($844.00). If the Compensation Act was to be strictly applied, the amounts heretofore paid would be approximately the same as the amount due for temporary total incapacity. If we consider the twenty-five per cent (25%) disability finding as made by the Medical Board to apply to claimant’s general physical ability instead of treating it as a disability to the left arm alone we would consider his award on the basis of a maximum death benefit of Four Thousand Dollars ($4,000.00); twenty-five per cent (25%) of which would be One Thousand Dollars ($1,000.00).

Under the authority of the Military and Naval Code and under all the facts shown by the Record, and the various medical reports, the court is of the opinion that an allowance should be made on the latter basis, and an award is therefore allowed in the su/tn of One Thousand Dollars ($1,000.00).

It is Further Ordered, that payments heretofore authorized and approved under orders of this court to claimant shall be discontinued upon the issuance of a warrant in payment of said award.

Opinion on Rehearing.

Mr. Justice Yantis

delivered the opinion of the court:

Application of the above named claimant for a reconsideration of the award of One Thousand Dollars ($1,000.00) heretofore made in his favor has been duly considered and the entire record in connection with the military bus-fire accident, out of which the injuries to claimant resulted, has been reviewed. As the injuries growing out of this accident were suffered by the various claimants while engaged in military service, the reports of the Military Medical Boards are entitled to earnest consideration. In the case of Corporal Hayes, the last of such reports was that of August 8, 1934. The award of One Thousand Dollars ($1,000.00) was based upon the evidence as disclosed in his case and the court finds no sufficient basis for a modification or change of the amount of that award. However a further showing has been made over the signature of Dr. V. P. Blair of St. Louis, Missouri, that an examination of claimant under date of April 10, 1935 shows that certain skin graft can be made across the dorsum of the left hand, which the doctor believes will release the hand sufficiently to permit the closing of same and to also remove the tenderness now existing. Such operation involves an estimated hospitalization of four weeks time and a surgical charge of Three Hundred Fifty Dollars ($350.00).

Again following the practice in connection with the Workmen’s Compensation Law, and believing from the record that the surgical treatment in question will relieve the claimant to some extent of the disability now existing,

It is Thereeore Ordered that this cause shall remain upon the docket for such further orders and awards if any as may prove legal and proper, in addition to the specific award hereinabove made, for surgical care and hospitalization as hereinabove indicated.


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    (No. 2443
    Alva D. Howard, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Alva D. Howard, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Alva D. Howard, a member of the Howitzer Co. 130th Inf. I. N. G. was in the military bus-fire accident that occurred near Pana, Illinois on July 26, 1933. (See Case vs. State — C. of C. No. 2469.)

A Military Medical Board made a physical examination of claimant on August 8, 1934 and found that there is no evidence of laceration of the right leg or disability of the back apparent. Claimant testified that when he leaped from the window of the burning bus he strained his back; however he agrees with the report of the medical board. There was no apparent loss of time and no permanent disability. Claimant lost a wrist watch valued at Ten Dollars ($10.00) and certain other personal effects for which an allowance should be made. Hnder authority of the Military and Naval Code, and the evidence appearing in this case an award is made in favor of claimant in the sum of Fifteen Dollars ($15.00).


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    (No. 2455
    Rollie Hughey, a Minor, by J. B. Hughey, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Rollie Hughey, a minor by J. B. Hughey, his next friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Rollie Hughey, a member of the Howitzer Co. 130th Inf. I. N. Gr. was in the military bus-fire accident that occurred near Pana, Illinois on July 26, 1933.

Claimant is an unmarried man and employed by his father in Highway Construction work. His compensation was forty cents (40c) per hour for nine hours a day and an average of about five and one-half (5%) days a week. Claimant went to Camp Grant following the accident and after his return was unemployed approximately two weeks because of the injuries he had received in the bus-fire. These injuries consisted of burns on both arms from the elbows to the hands with minor bruises. Claimant further, testified that the burn on his left hand had not healed when he left Camp Grant.

A Military Medical Board examined him on August 8, 1934 at Camp Grant and reported that there is no evidence of disfigurement or permanent disability. Claimant agrees with that report.

In the claim filed by claimant herein he asks an award for personal property of an estimated value of Twenty-five Dollars ($25.00) claimed to have been lost in the fire, but no proof or evidence in regard to such loss appears in the record.

Under the evidence herein submitted and basing consideration of the claim upon the general provisions of the Workmen’s Compensation Act, an allowance for two and one-half weeks, covering the period between the fire and the service at Camp Grant and two weeks thereafter, will be made.

An award is therefore entered in favor of J. B. Hughey for the use of Rollie Hughey in the sum of Twenty-three and 10/100 Dollars ($23.10).


author: Me. Justice Yantis Mr. Justice Tantis

text:
    (No. 2101
    John T. Heathcock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied April 9, 1935.

    Johnson & Petebson, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Plaintiff was a Highway Patrolman employed by the State of Illinois in the Division of Highways on the 13th day of April, 1932. He was working upon and about the earth shoulders of State Route No. 7, and while employed in the regular course of his duties was operating and riding upon a drag. While doing so he was thrown to the ground, the drag fell upon him and he suffered a compound dislocation of the Tibia of the right leg at the ankle joint and also a compound fracture of the Fibula of the right leg about three inches above the lower end of said right Fibula. A stipulation of. facts entered into between the parties hereto further recites 6 ‘ That by reason of said accident the muscles, tendons, ligaments and tissues of the ankle joint of said right leg and foot were torn and bruised; that by reason thereof, and when in the process of healing, certain fibrous tissue formed in and about said ankle joint producing a partial fixation of said ankle joint known as Ankylosis; * * that he became partially incapacitated from pursuing his customary and usual line of employment as a farmer; that same was a result of the partial loss of the use of said right leg and foot; and that the partial loss of the use of said right leg and foot is forty per cent (40%) of the total use of said member.” The required averments as to notice, demand, etc. are alleged.

Claimant was unable to work from the day of his injury, April 13, 1932, to August 22, 1932, during which time he was paid his full wages. Under the stipulation it is agreed that in the allowance of any award the sum of Two Hundred Sixty-six and 95/100 Dollars ($266.95) should be credited, because of such payment of wages in full during the period of incapacity.

As above quoted, the stipulation states that the condition which finally resulted from the accident is “A partial fixation of the ankle joint.” The concluding words of the stipulation as to the extent of the loss or injury are “That the partial loss of use of said right leg and foot is 40% of the total use of said member.”

As the permanent condition is localized in the ankle joint, a total loss could only be of the foot. A partial loss must be founded upon the basis on which a total loss would be computed. If an amputation of the foot had resulted it would, from the facts alleged, have apparently been little more than three inches above the ankle. An amputation of a foot, if made well below the knee, is considered a loss of a foot, and not a partial loss of a leg (Angerstein, Section 309, Page 570).

The evidence here supports an allowance to plaintiff on the basis of forty per cent (40%) for loss of use of his right foot. His average wages were $28.85 per week. A total loss of a foot would entitle him to fifty per cent (50%) of his wages for one hundred thirty-five weeks (135). A forty per cent (40%) loss entitles him to an award of Seven Hundred Seventy-nine and 22/100 Dollars ($779.22). From this a deduction is to be made, under the terms of the stipulation, of Two Hundred Sixty-six and 95/100 Dollars, ($266.95), making an allowance of Five Hundred Twelve and 27/100 Dollars, ($512.27).

An award is therefore allowed in favor of plaintiff in the sum of Five Hundred Twelve and 27/100 Dollars ($512.27).

Opinion on Rehearing.

Mr. Justice Tantis

delivered the opinion of the court:

An opinion was filed in this cause on March 13, 1935 granting to petitioner an award in the sum of Five Hundred Twelve and 27/100 Dollars ($512.27). On April 3,1935 plaintiff filed his Petition for Rehearing, asking that said award be changed and allowed in the sum of Seven Hundred Twenty-two and 29/100 Dollars ($772.29).

The basis of said petition is that a Stipulation of Facts was entered into between the parties in which it was agreed “That the partial loss of use of said right leg and foot is 40% of the total use of said member”; that it had been definitely agreed between the parties that a net award of Seven Hundred Seventy-two and 29/100 Dollars ($772.29) should be allowed and that it was the intention of the parties that by said stipulation it was to be agreed (Par. 8 Petition for Rehearing) “That any award entered would be based on the 40% loss of use of said right leg and foot.” In his Petition for Rehearing Plaintiff purports' to quote Anger-stein Section 435, Page 718-20 by saying “That the stipulation of the parties hereto as to material facts is binding upon this court.” The wording found in the reference so cited reads “A stipulation by the parties as to the facts, so long as it stands, is conclusive between them and cannot be met by evidence tending to show that the facts are otherwise.”

The original opinion herein recites the stipulation in much detail and that stipulation specifically stated that the condition resulting from the accident was “A partial fixation of said ankle joint.” In its opinion the court gave full consideration to the Stipulation of Facts between the parties. The conclusion to be reached from such Statement of Fact was for the court to determine. The basis upon which the conclusion was reached is fully set out in the opinion.

Under the stipulation herein filed the only award either partial or total that could be made would be incident to the loss of or loss of use of plaintiff’s foot.

No matters appearing in the Petition for Rehearing upon which a different result might be obtained the petition is denied and the original award re-affirmed.

Mr. Chief Justice Hollerich, dissenting.


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    (No. 2444
    Burrell M. Hulbert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Burrell M. Hulbert, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Burrell M. Hulhert, a member of the Howitzer Co. 130th Inf. I. N. G. was in the military bus-fire accident that occurred near Pana, Illinois on July 26, 1933.

Claimant is a brother of Private Wilburn Hulbert who died as a result of burns received in this same accident. (C. of C. No. 2421.)

Claimant received a cut and a burn to his hands; and his face and hair were burned to some extent in getting out of the bus window to escape the flames. He was an employee at the Mt. Vernon Foundry on the basis of $25.00 per week. A Military Medical Board made a physical examination on August 8,1934 and found that there was no evidence of scars or disability in this case. There is no evidence that claimant lost any time or wages by reason of disabilities suffered in the fire except approximately a week between the time of the bus-fire and the time he went to Camp Grant. Under the theory of allowance followed by the court in most cases of this character, an allowance of $12.50 would seem merited, under authority of the Military Code, and an award is therefore made in favor of claimant for the sum of Twelve and 50/100 Dollars ($12.50).