text:
    (No. 3977
    Board of Education of School District No. 129 Winnebago County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Thomas and Daves, for claimant.
    George F. Barrett, Attorney General and C.

      Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

Claimant, Board of Education of School District No. 129, Winnebago County, Illinois, filed its claim on August 26, 1946.

Claimant seeks to recover from respondent the sum of $900.38 under the authority of paragraph A-l, Section 234%, Chapter 122, Illinois Revised Statutes 1943, which provides for State contributions to School Districts which have pupils who are children of parents or guardians employed in military encampments owned or used by the State or Federal Government or a United States Veterans Hospital, etc.

By stipulation, the record in this case consists of the complaint together with the exhibits attached thereto, and the report of the Office of the Superintendent of Public Instruction of the State of Illinois dated January 16,1947 which has been filed in this case, and the stipulation.

The -complaint alleges, and contains as a part thereof, photostatic copy of a petition filed by claimant for a Writ of Mandamus in the Circuit Court of Winnebago County, Illinois, case No. 52263, wherein in Count 1 petitioner prayed for an order on the defendant,' Vernon L. Nickell, as Superintendent of Public Instruction of the State of Illinois, commanding him in the due course of administration of the affairs of his office, to prepare and certify to the Auditor of Public Accounts of the State of Illinois, the tuition claims of said petitioner for the school year ending June 30, 1944, or to amend the claim for tuition of School District No. 129, Winnebago County, Illinois, as heretofore certified to said Auditor of Public Accounts of the State of Illinois, in accordance with the terms and provisions of the Statutes of the State of Illinois, said claim to be certified in the sum of $1,470.00. It also contained a prayer that the Court order the defendant, Arthur C. Lueder, as Auditor of Public Accounts of the State of Illinois, commanding him in the due course of administration of the affairs of his office, to permit the Superintendent of Public Instruction of the State of Illinois to prepare and certify to him the tuition claim of School District No. .129, Winnebago County, Illinois, for the school year ending June 30, 1944, or to amend the tuition claim of said School District heretofore certified to him, all in accordance with the terms and provisions of the Statutes of the State of Illinois, said claim to be certified in the sum of $1,470.00; and, wherein in Count II of the same petition, the same prayers were set forth except that the amount was $900.38 and for the school year ending June 30, 1943. The petition was later amended and Count II stricken from the petition. Subsequently, on April 16, 1945, an order was entered by the Court in said proceedings substantially allowing the prayer of the petition as contained in Count I.

The complaint filed herein also alleges that the funds for the sum of $900.38 for tuition due the said School District for the school year ending June 1943 could not be reached by court order in the action for a Writ of Mandamus unless and until there had been made a re-computation of the claims of all school districts within the State of Illinois, which districts exceed 13,000 in number ; that such recomputation would have caused a delay in the payment of tuition claims to school districts and would have worked irreparable injury to all such districts, and similarly, would have imposed undue hardship upon the Auditor of Public Accounts of the State of Illinois in the performance by him of the regular functions of his office. That since June 1943 the school appropriations for the State of Illinois, for that year, have either been used, or have lapsed, and funds which would have been available for disbursement under order of Court, were not then available by reason of the provisions of Ch. 127, par. 161, 163, Ill. Rev. Stats., 1945, which provides:'

“161. For what period appropriation available. When an appropriation shall be made without restriction as to the time of its use, it shall be available for expenditure for the purposes and to the amount therein stated, from the date that the act becomes, effective to and including the thirtieth day of June of the year in which the next General Assembly shall convene;”
“163. Warrants may issue until what time. In payment of contracts made and liabilities incurred within the times specified in this Act, warrants may issue at any time until the expiration of the first fiscal quarter after the adjournment of the General Assembly held next after that at which the appropriation was made;”

and that by reason of the foregoing, claimant was deprived of adequate remedy by way of proceedings in mandamus, and therefore brought this, its claim, before the Court of Claims of the State of Illinois.

The record contains a report from the Superintendent of Public Instruction of the State of Illinois concurring to the facts as alleged, and further states “The amount asked by the District has not been paid and it appears that the plaintiff is entitled to the sum of money which has been asked for.”

Through the mandamus proceedings filed in the Circuit Court of Winnebago County, Illinois, claimant obtained relief for the school year ending June 30, 1944. The facts are the same with respect to the school year ending June 30, 1943, and claimant dismissed its mandamus proceedings affecting this school year for the reason that it would have required a recomputation of the claims of over 13,000 school districts in the State of Illinois. This would have caused unreasonable delay in the payment of such tuition claims, and would have required considerable administrative detail work to make such a recomputation. From the record, claimant is entitled to an award for the sum of money claimed.

An award is therefore entered in favor of the Board of Education of School District No. 129, Winnebago County, Illinois, in the sum of $900.38.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 3984
    Ruby Baker, Widow of Frederick C. Baker, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    Paul F. Jones, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General for respondent.
   Eckert, C. J.

The decedent, Frederick C. Baker, was employed by the respondent in the Department of Insurance, Division of Licenses, at the time of his death, and had been so employed since May 15,1941. His employment required that he investigate violations of insurance laws wherever such ■’ violations might occur. Much of his work was, of necessity, done in Chicago.

During the latter part of May, and the first week of June, 1946, the decedent was assigned to work in Chicago, and he was authorized by his department to stay at the LaSalle Hotel. Early in the-morning of June 5th, a disastrous fire occurred at the hotel in which Mr. Baker lost his life. He left the claimant, Ruby Baker, his widow, and Ruth Ann Baker, his fifteen year old daughter, surviving.

The Director of Insurance had immediate notice of Mr. Baker’s death, and demand for compensation was made by the claimant within six months thereafter.

There is no dispute as to the facts. The respondent, however, raises two questions of law which have previously been presented and determined by this court in the case of Lilla M. Miller vs. State of Illinois, No. 3991, 16 C.C.R.; Margaret L. Taylor vs. State of Illinois, No. 3996, 16 C.C.R. The decisions in those cases are controlling here, and permit no distinction between an employee of the Department of Insurance and an employee of the Department of Revenue or the Department of Public Health.

The court, therefore, finds, that the death of Frederick C. Baker arose out of and in the course of his employment, and that as an employee of the Department of Insurance he was entitled to the benefits of the Workmen’s Compensation Act of this State.

Mr. Baker’s earnings during the year immediately preceding his death were in excess of $4,000.00, so that claimant is entitled to an award in the sum of $4,450 00. Since the death occurred subsequent to July 1, 1945, this must be increased 20%, making a total award of $5,340.00. The weekly compensation rate is the maximum of $15.00, increased 20% or $18.00.

Award is therefore entered in favor of the claimant, Ruby Baker, in the amount of $5,340.00 to be paid to her as follows:

$ 828.00, accrued, is payable forthwith; ,,
$4,512.00, is payable in weekly installments of $18.00, beginning on the 24th day of April, 1947, for a period of 250 weeks, with an additional final payment of $12.00.

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

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


author: Damron, J.

text:
    (No. 3987
    Albert E. Coolidge, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.

    L. Richard Whitney, for claimant.

      George F. Barrett, Attorney General, for respondent.
   Damron, J.

This is a claim under the Workmen’s Compensation Act for an injury to the above named claimant which occurred on the 25th day of September 1945.

The record consists of the complaint, report of the Division of Highways, respondent’s waiver of brief, statement, and argument, repor^ of the attending physician, stipulation that departmental report shall constitute the record, claimant’s waiver of brief, statement, and argument, and the report of Commissioner East.

The departmental report shows that the claimant resides at Elmwood, Peoria County, Illinois, is married, 64 years of age and had no children under 16 years of age dependent upon him for support at the time this cause of action arose. He was first employed by the Division of Highways as a highway maintenance patrolman March 22, 1941 at a salary of $125.00 per month. Although his classification remained unchanged, his salary rate was increased on the following dates to the amounts indicated thereafter: December 1, 1941, $135.00; July 1, 1943, $150.00; July 1, 1944, $160.00. July 1, 1945 his classification was changed to that of highway section man and his salary was increased to $184.00 per month. He continued in the same classification and at the same salary rate until the date - of his injury, making his salary for the year next preceding the date of his injury amount therefore to the sum of $1,995.47.

On September 21, 1945, claimant was standing on a pile of posts, loading a highway truck when the post he was standing on rolled from under his feet causing him to fall to the ground striking his right shoulder with great force.

Although his shoulder was painful, Mr. Coolidge thought it would improve without treatment; by September 26, the pain had increased so he reported the injury to the Peoria office of the Division of Highways. He was advised to see a doctor immediately. Claimant consulted his family physician who advised heat and limited use; however, the shouldér responded poorly to the treatment, and on October 28, his family physician suggested examination by Dr. Hugh Cooper, who maintained offices in Peoria. On October 29, 1945, Dr. Cooper reported to the Division of Highways that claimant was suffering from ‘‘sub-deltoid bursitis” of the right shoulder. On January 5, 1946 Dr. Morton, the family physician, reported to the Division of Highways as follows: “Mr. Albert Coolidge is still under my care for his shoulder. His recovery is still indefinite. ’ ’ The claimant remained under the care of Dr. Morton who gave him hydrotherapy and massage treatments of the injured shoulder and discharged him from further treatment on March 30, 1946.

The respondent has paid the following bills incurred in this accident: Dr. Hugh Cooper, Peoria, $6.00; Dr. D. H. Morton, Elmwood, $8.00; St. Francis Hospital, Peoria, $34.50.

The record contains a copy of a letter dated February 14, 1947 signed by Dr. Hugh Cooper, Orthopedic Surgeon, Peoria, Illinois, which states that this physician examined claimant on October 29, 1945 and at that time claimant had considerable limitation of rotation and abduction of the right shoulder joint. X-rays at that time were negative so far as any fracture or dislocation was concerned. He saw claimant a month later at which time he still had rather marked limitation of motion in the shoulder joint and in the opinion of this physician, was unable to work.

Commissioner East heard the testimony in support of this claim, observed the claimant, examined and manipulated the shoulder and reports that claimant has suffered a 40% functional loss of use of the right arm and we adopt his recommendation as a basis of our award.

Claimant’s average weekly wage, based on liis annual earnings for the year next preceding the injury, is $38.37. The compensation rate therefore is $18.00. If claimant had lost the complete use of his right arm, he would have been entitled to receive, under the Workmen’s Compensation Act, as amended, the sum of $18.00 for 225 weeks. Having lost-40% of the functional use of this arm, claimant is entitled to 90 weeks at his compensation rate, making the sum of $1,620.00.'

An award is therefore ■ hereby entered in favor of Albert E. Coolidge in the sum of One Thousand Six Hundred Twenty ($1,620.00) Dollars representing 40% functional loss of use of Ms right arm as provided under Section 8(e) of the Workmen’s Compensation Act, as amended. Of this amount, the sum of $1,476.00 has accrued, representing 82 weeks as of April 23, 1947 wMch is payable in a lump sum forthwith. The remainder of said award, amounting to the sum of $144.00, is payable to claimant at the rate of $18.00 per week beginning April 30, 1947 and continuing weekly thereafter at said compensation rate until the last mentioned sum is fully paid.

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


author: Bergstrom, J.

text:
    (No. 3989
    Shell Oil Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.
    Shell Oil Co., pro se,
    George F. Barrett, Attorney General, for respondent.
   Bergstrom, J.

This claim was filed on September 20, 1946 by the claimant, Shell Oil Company, Inc. for $52.75, which claimant alleges is due for deliveries of gasoline and oil to the Illinois Soldiers’ and Sailors’ Children’s School, Normal, Illinois.'

The record consists of the Complaint, Report of The Illinois Soldiers’.and Sailors’ Children’s School of Normal, Illinois, and Waivers of Briefs.

The complaint alleges that deliveries were made to the said School as follows:

May 1, 1945 — 100 gal. gasoline..................................$13.40
May 26, 1945 — 100 gal. gasoline................................. 13.40
June 26, 1945 — 49 gal. oil....................................'.. 9.31
June 26, 1945 — 52 gal. oil...................................... 16.64
Total .....................................................$52.75

and that invoices were submitted within a reasonable time, but could not be paid because of the expiration of the time limit for payment from the appropriation of the 63rd biennium. The merchandise was ordered and delivered under State of Illinois blanket purchase order number D-124367 for period July 1,1944 to June 30,1945.

In the report of The Illinois Soldiers’ and Sailors’ Children’s,School, receipt of the merchandise is acknowledged ; also that claimant has not received payment.

Where claimant has rendered service to the State'of Illinois in accordance with a duly authorized contract, has submitted its statement of costs and charges to the respondent within a reasonable time and has, not received payment, there remaining a sufficient unexpended balance in the appropriation from which payment could have been made, the.claimant is entitled to an award. (The Texas Company vs. State of Illinois, 15 C.C.R. 112; Illinois Bell Telephone Company vs. State of Illinois, 15 C.C.R. 115 and cases therein cited).

An award is therefore entered in favor of claimant, Shell Oil Company, Inc. in the sum of $52.75.


text:
    (No. 4001
    Grover T. White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.
    Frederick E. Merritt, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

This claim was filed on December 16, 1946, and alleges that claimant, Grover T. White, was employed by respondent in the Department of Public Works and Buildings, Division of Highways, and while so employed on August 20, 1946 unloading rock out of a railroad car onto a conveyor belt and in the course of his employment, his right eye became filled with foreign material and dust, became infected and, as a result, later had to be removed. He claims compensation for the loss of his right eye.

The record consists of the Complaint and Report of the Division of Highways. From the record, the jurisdictional requirements have been satisfied, and the claimant was injured during the course of and out of his employment.

August 20, 1946, the day on which this cause of action arose, claimant was 53 years of age, married, and had one child six years of age, dependent upon him for support. He was first employed by the Division of Highways as a common laborer on June 28, 1946 at a wage rate of $1.10 per hour. His classification and wage rate remained unchanged during his period of employment with the Division of Highways. Earnings exclusive of' overtime for his period of employment were $468.33. Employees working in a capacity similar to that of claimant ordinarily work less than 200 days per year. Eight hours constitute a normal working day. His compensation rate, therefore, would be $15.00 per week. The injury having occurred subsequent to July 1945 this must be increased 20%, making a compensation rate of $18.00 per week.

On August 20, 1946 claimant was engaged in transferring crushed limestone rock from railroad cars to trucks by hand shoveling. The scene of operation was the Illinois Central Eailroad siding in Kinmundy, Marion County, Illinois. The shoveling by several employees caused much dust to be raised and, on several occasions during the day, limestone dust got into claimant’s eye. On each occasion he attempted to rub the dust out of his eyes, and continued with his work. That evening his right eye began to smart and burn. In the days following, his eye continued sensitive, and claimant secured colored glasses to protect it from the sunlight and the dust resulting from the nature of the work.

He did not report his injury to the Division of Highways until September 16, 1946." His foreman requested him to go to the Haley Eye Infirmary, Centralia, Illinois, for treatment. Dr. Max Kirschfelder of the Haley Eye Infirmary, who examined claimant’s eyes requested authorization for his hospitalization." The Division of Highways made an investigation of the injury and then completed arrangements for such treatment as should be prescribed by Dr. Lawrence T. Post, and on September 19, 1946 claimant was sent to St. Louis where Dr. Post made arrangements for his admittance to the McMillan Hospital. On September 20, 1946 Dr. Post sent the Division of Highways the following report:

“Examination of Mr. Grover T. White on September 19 revealed an extensive infected ulcer of the right cornea. The vision in this eye was light perception. The other eye appeared normal. A cauterization was performed of the ulcer and the patient hospitalized. The outlook is very bad but it was thought that an effort should be made to preserve' the eyeball if possible. If no improvement takes place within about a week, enucleation should be done.”

On October 1, 1946 Dr. Post further reported, as follows:

“I was unable to save Mr. Grover T. White’s eye and had to perform an evisceration of the globe on September 25. The eye was full of hard matter at that time and was in a hopeless condition.
I sent him home on the 20th with instructions of how to keep' the eye clean. I should like to have him return on Thursday, October 10, at twelve o’clock for the fitting of an artificial eye.”

On October 10, 1946 claimant was fitted with an artificial eye, was then discharged and told that he should be able to return to work at once.

Claimant was paid compensation for total temporary disability at the rate of $18.00 per week for the period from September 17, 1946 to and including October 15, 1946 in the amount of $74.57. The following creditors have been paid in connection with this injury:

Haley Eye Infirmary, Centralia.............................. $ 10.00
Dr. Lawrence T. Post, St. Louis, Mo.......................... 209.00
McMillan Hospital .......................................... 93.35
Grover T. White, expenses .................................. 30.35
Total ................................................... $342.70

Prom the evidence, claimant is entitled to receive the sum of $2,160.00 for the loss of the sight of an eye, based on 120 weeks at a compensation rate of $18.00 per week.

As claimant lost the sight of an eye, the sum of $100.00 should also be paid to the Treasurer of the State of Illinois for the special fund provided in Section 7, par. E of the Workmen’s Compensation Act and as authorized under section 8, par. E, sub-pari 20 of the said Act.

An award is therefore entered in favor of claimant, Grover T. White, in the sum of $2,160.00, payable as follows :

$ 504.00, which has accrued and is payable forthwith;
$1,656.00, payable in installments of $18.00 per week for 92 weeks, commencing May 7, 1947.

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

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


text:
    (No. 4002
    May Smith, Widow of Richard Smith, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 24, 1947.
    Sherwood L. Costigan, for claimant.
    George F. Barrett, Attorney General, and Wm. L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

Claimant, May Smith, filed her complaint herein on December 16, 1946, seeking an award under the Workmen’s Compensation Act for the death of her husband, Richard Smith.

The record consists of the complaint, departmental report, stipulation with reference to report, claimant’s waiver of brief, respondent’s waiver of brief, and the commissioner’s report.

The record discloses that claimant’s decedent, Richard Smith, whs employed at East Moline State Hospital by the Department of Public Welfare. On October 28, 1946 deceased was assisting in the unloading of a railway coal car on the premises of the hospital. The brake of "the car was released and as it moved downgrade, it struck a derail and the impact threw deceased from the car platform to the ground in front of the moving car which ran over and fatally injured him. The respondent had immediate notice of the accident.

From this record we make the following findings: that the claimant’s deceased husband, Bichard Smith, at the time of the injury which resulted in his death was 66 years of age, and had no children under the age of 16 years dependent upon him for support.

The Court further finds that the injury which resulted in the death of claimant’s husband arose out of and in the course of his employment for the respondent; that at the time of the accident, his rate of pay was $145.00 per month and that his earnings during the year next preceding his death were $1,740.00.

An award is hereby entered in favor of the claimant, May Smith, widow of Bichard Smith in the sum of Four Thousand Eight Hundred ($4,800.00) Dollars as provided in Section 7 (a) of the Workmen’s Compensation Act, as amended. Of this amount, the sum of $450.00 has accrued as of April 22, 1947 and is payable to her in a lump sum forthwith. The. remainder of said award amounting to the sum of $4,350.00 is payable to her weekly in installments of $18.00 commencing on April 29, 1947 and continuing each week thereafter at said compensation rate until the last mentioned sum has been fully paid. Such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois; jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award is subject to the approval of the Grover-nor as provided in Section 3 of, “An Act concerning the payment of compensation awards to State employees.”


text:
    (No. 3497
    Ronda R. Weber, Widow of Herbert Weber, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Paul D. Perona and William Zwanzig, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and C. Arthur Nebel, Assistant Attorneys General, for respondent.
   Eckert, C. J.

On September 1, 1939, Herbert Weber, employed as an attendant at the Manteno State Hospital, contracted typhoid fever in the course of his employment. In the original complaint, filed in this case by Herbert Weber in his lifetime, it was alleged that as a result of the typhoid fever he had been unable to carry on his usual and customary duties, and had suffered a severe kidney infection. He sought an award for medical and hospital services, total and permanent disability, and life pension.

Herbert Weber died November 7, 1946, and thereafter, by leave of court, an amended complaint was filed by the claimant, Ronda R. Weber, as widow of Herbert Weber, deceased, alleging that she was married to Herbert Weber on June 30, 1932 and that decedent left surviving, as his only heirs, Ronda R. Weber, his widow, and Geoffrey Lewis Weber, his son, who was born on January 31,1944. The amended complaint alleged that the death was the direct and proximate result of the typhoid fever contracted while Weber was employed by the respondent.

When the illness was contracted, decedent and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the act. A typhoid fever epidemic existed at the Manteno State Hospital from July 10, 1939 to December 10, 1939. Typhoid fever contracted during this epidemic constitutes an accidental injury which is compensable under the Workmen’s Compensation Act. (Ade vs. State, 13 C.C.R. 1).

Decedent’s annual earnings for the year next preceding his illness were $672.00, making an average weekly wage of $12.92. Since he had one child under sixteen years of age living at the time of his death, his compensation rate is the minimum of $11.00 per week. The illness having occurred subsequent to July 1, 1939, this must be increased 10%, making a compensation rate of $12.10. Decedent was totally incapacitated from September 1, 1939, to November 6, 1939, a period of nine and two-sevenths weeks. During that time he received for non-productive work the sum of $127.40, which must be deducted from any award entered in this case.

Herbert Weber, testifying on his own behalf, at the original hearing, stated that on August 29, 1939, he reported to Dr. Spinka, Staff Physician at the Manteno State Hospital, that he was suffering from an abdominal disorder; that Dr. Spinka advised him to go to his room, and that if he did not feel better by morning, and needed medical or hospital services, to secure them wherever available, because the hospital at the institution was already filled with typhoid fever patients. The following day he went to the Coleman Clinic at Canton, Illinois, where Dr. Bennett sent him to the Graham Hospital. Weber remained there from August 30th to October 6th, 1939. The total charges paid to the hospital for that period amounted to $128=70.

Weber further testified that on February 27, 1940, he had a relapse, and returned to the Graham Hospital where he was found to be a typhoid carrier. He remained at the hospital from February 27th, to March 31st, 1940, and paid total hospital charges for that period of $122.94. Because his condition did not improve, he was subsequently taken to St. Luke’s Hospital in Chicago for the removal of one kidney. He remained there from November 8th to December 6th, 1942, at a total expense of $471.54. From December 23, 1942, to January 17, 1943, Weber was again treated at the Graham Hospital, at Canton, at a total expense of $209.10, and from January 30, 1946, until March 10, 1946, at a total expense of $416.00.

Weber also testified that he had paid the following medical expenses: Dr. E. P. Coleman $226.50; Dr. Harry Culver, $285.00; Dr. Daniel K. Hur, $54.00, or a total of $565.50. Additional expenses incurred by Weber just prior to his death were as follows:

Graham Hospital ...............................'...............$34.48
Prescriptions and. Medicines.................................... 12.00
Medical services, Coleman Clinic................................ 54.00

Decedent further testified that for a period of four years after his original illness, except during the several periods of hospitalization, he worked as a guard at the Elwood Ordnance Plant at a salary at $34.00 per week, plus over-time pay. He stated, however, that he had been unable to do any work since October, 1945.

Dr. David A. Bennett, testifying on behalf of Weber, stated that he examined Weber on August 30, 1939, and found that he had typhoid fever; that he treated him at the Graham Hospital from August 30, to October 6; that on October 24, 1939, Weber was found to be negative of typhoid fever, but that he again saw Weber on February 15, 1940, and Weber was then running pus cells in his urine. An intravenous pyelogram was done at that time, and on March 1st, 1940, a blood test showed positive typhoid.

Dr. Bennett testified that on May 20, 1940, a specimen of urine showed typhoid bacilli present, a condition which remained throughout 1940, and for which Weber was continuously treated. Tests made on November 1st, 1941, November 8th, 1941, and November 17,1941, showed Weber still a typhoid carrier in the urine. On November 18,1941, and on February 15,1942, a cystoscopy was done at the hospital. Typhoid was still present in the urinary tract.

Dr. Bennett testified that in December, 1942, Weber’s right kidney had become abscessed, the infection in the left kidney having infected the right kidney, developed stones, and so damaged the right kidney as to necessitate its removal. On January 30, 1946, Dr. Bennett found stones in the left kidney, one of which was impacted in the left ureter, causing uremia. The stone was removed at that time, but other stones still remained in the left kidny, which had only a limited function.

Dr. Bennett stated, at that time, that the original typhoid infection caused Weber to become a typhoid carrier; that the resulting infection in the kidney would be the cause of his ultimate death; that the typhoid had so infected the remaining kidney that Weber’s life expectancy was definitely lessened. Dr. Bennett stated that claimant was then totally incapacitated, and that his condition was permanent. From the proof submitted on hearing, following the death of Herbert Weber, it appears that his death was the direct result of the original typhoid fever infection, being caused by uremia, as Dr. Bennett predicted.

Claimant is therefore entitled to an award on account of the death of Herbert Weber, under Section 7a of the Workmen’s Compensation Act of this state, in the amount of $3,038.00, less the sum of $127.40 paid to decedent for non-productive work, or the sum of $2,910.60.

Marguerite Corso was employed to take and transcribe the evidence at the hearings before Commissioner Jenkins. Charges in the amount of $57.60 were incurred for these services, which charges are fair, reasonable, and customary.

An award is therefore entered on account of medical, ■ hospital and nursing services in the sum of $2,014.26 payable forthwith as follows:

Graham Hospital, Canton, Illinois.............................$911.22
St. Luke’s Hospital, Chicago, 111................................ 471.54
Dr. E. P. Coleman..................■.......................... 226.50
Dr. Harry Culver............................................. 285.00
Dr. Daniel K. Hur............................................ 54.00
Coleman Clinic, Canton, 111.................................... 54.00
Ronda R. Weber, reimbursement for purchasing prescriptions and medicines .............................................. 12.00

An award is entered in favor of Marguerite Corso in the amount of $57.60, payable forthwith.

An award is entered in favor of Ronda R. Weber, widow of Herbert Weber in the amount of $2,910.60 to be ' paid to her as follows:

$ 612.71, which had accrued under the terms of an award made to the decedent immediately prior to his death on account of permanent disability, and which is payable forthwith;
326.70, which has accrued since the death, hnd which is payable forthwith;
1,971.19, which is payable in weekly installments of $12.10 per week, beginning on the 16th day of May, 1947 for a period of 162 weeks, with an additional final payment of $10.99.

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

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


text:
    (No. 3918
    Goldblatt Bros., Inc., a Corporation, claimant vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Bernard Rosencranz, Bernard Brown, Attorneys for claimant.
    George F. Barrett, Attorney General, Wm. L. Morgan, Assistant Attorney General, of counsel, for respondent.
   Damron, J.

This is a claim of G-oldblatt Bros., Inc., for an award in. the sum of $3,705.75.

The claim is based on Section 29 of the Workmen’s Compensation Act which provides- that where an injury or death for which compensation is payable by the employer under the Workmen’s Compensation Act was caused under circumstances creating a legal liability for damages in some person other than the employers, such other person having also elected to be bound by the Act, or being bound thereby under Section (3) of the Act, then the right of the employee to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not exceeding the aggregate amount of compensation payable under the Act by reason of such injury or death of such employee.

The complaint alleges that claimant’s employee, Ira Messersmith, on the 3rd day of September 1943, was injured while walking across the Cass Street Bridge of the Illinois Waterway, at Joliet, Illinois, and through the negligent act of the bridge tender in raising said bridge without due notice, caused Ira Messersmith to slide down the western slope of the raised bridge, fracturing his left hip and injuring his right knee.

At the hearing before the Commissioner, the claimant introduced a certified copy of an application for adjustment of claim which was filed with the Industrial Commission by the said Ira Messersmith on the 5th day of December 1944, against Goldblatt Bros., Inc., alleging that he sustained an accidental injury on the 3rd day of September 1943, arising out of and in the course of his employment. On the 23rd day of February 1945, an arbitrator awarded compensation at the rate of $11.16 per week for a period of 416 weeks and one week at $1.04 and thereafter a pension during his lifetime, as provided in Paragraph (f) Section 8 of the Workmen’s Compensation Act, as amended. No petition for review by the Industrial Commission was ever filed by either Messersmith or Goldblatt Bros., Inc., but on the 3rd day of March 1945, Messersmith settled his claim under the award with this claimant for $2,000.00. A settlement contract and petition for lump sum in the sum of $2,000.00 was filed with the Industrial Commission, and on the 14th day of March 1945, the settlement contract was approved, the petition for the lump sum was granted and the sum ' of money was paid to said Ira Messersmith, by this claimant.

The claimant contends that the respondent should reimburse it for all money expended, because it says that its employee was injured through the negligent act of the bridge tender, who was an employee of the State of Illinois, on the date of the occurrence.

It is the contention of the respondent that as no liability or responsibility rested upon the State of Illinois for the negligent or tortuous acts of its officers, agents, or employees at the time of the events upon which said claim is based, the claimant has not stated a cause of action and therefore its claim should be dismissed.

Section 23 of the Illinois Waterway Act (Chap. 19, Section 101 Smith-Hurd Annotated Statutes) makes provision for the liability of the State for all damages

(a) to real estate or personal property within or without the radius or zone of the Illinois Waterway and for all damages.
(b) to persons caused by the construction, maintenance or operation of the Illinois Waterway and its appurtenances.

The respondent in resisting this claim, while ad.mitting that the above provision in the Waterway Act makes provision for the liability of the State for damages to real estate, personal property, and to persons, denies that this Act has any application to the case in question because it says the Cass Street Bridge in Joliet, over the Illinois Waterway, is a part of Illinois SBI Rt. No. 22 and that the construction of said bridge and the maintenance thereof was for the purpose of carrying said route over the Illinois Deep Waterway and was a part of the construction by the State, of a state-wide system of durable hard surface roads upon the public highways of Illinois, and therefore the State cannot be bound nor is liable to another for the negligent acts of its officers, agents, or employees in the performance of their governmental functions in the Highway Department.

This Court will take judicial notice that sometime prior to the year 1932, the respondent commenced the construction of the Illinois Waterway, through the City of Joliet and was engaged in such construction work during all the year of 1932 and for some time thereafter. Said waterway in passing through the City of Joliet runs in a northerly and southerly direction and in general, following the bed of the DesPlaines River and the Illinois and Michigan Canal and occupies the space thereto which was occupied by said River and Canal.

Cass Street in said City of Joliet, extends in an easterly and westerly direction and intersects the Illinois Waterway at right' angles. Prior to the time of the construction of the Illinois Waterway, said DesPlaines River and said Illinois and Michigan Canal were crossed by a public bridge approximately level and at grade on Cass Street.

Respondent commenced the work of demolishing the then existing bridge on Cass Street about May 1, 1932 and commenced the construction of a new bridge on said street to take the place of the old bridge. The Cass Street . bridge and approaches were completed about the 1st day of January 1933. It was so constructed as to provide a clearance thereunder of 16% feet, thereby making the floors of said bridge approximately 18 feet higher at the crown than the floors of the old bridge. Stein et al vs. State 8 C.C.R. 251 at 253-, This new construction was necessary in order to permit boats and barges travelling this water route to clear. It was a part and parcel -of the specifications of the waterway system. It had no connection with the needs of the Highway Department and although it was under the jurisdiction of the Department of Public Works and Buildings (Division of Highways) the layout and construction of said bridge was primarily for the accommodation of traffic on the waterway system as aforesaid. So far as the demand for highway purposes was concerned, there is nothing in the record that indi- . cates there was need for the reconstruction of said bridge or the building of an incline approach thereto. It must-be admitted that the canal was being reconstructed as a part of the Illinois Deep Waterway project and that as a part of such program, it was deemed necessary to elevate the Cass Street Bridge to aid in carrying out the purposes of the Deep Waterway.

It is the contention of the respondent that the Cass . Street Bridge is a part of the Highway Department and has nothing to do with the Waterway Department and in support of its contention cites Section 84, Paragraph 5 of Chap. 19, Illinois Revised Statutes which defines the powers of the Department of Public Works and Buildings as follows:

“84. Department of Public Works and Buildings to control. The construction, maintenance, control and operation of ‘Illinois Waterway’ and its appurtenances shall devolve upon the Department of Public Works and Buildings.”

Respondent argues that since claimant’s employee' was injured as a result of sliding down the bridge toward the west when the bridge was opened for the purpose of being painted, and since the injured man was found lying-on the highway off of the bridge, and since the bridge is no part of the Department of Waterway but belongs to the Highway Department, claimant should not maintain its action and an award should be denied. ■

If we could agree with respondent that the Cass Street Bridge was not a part of the Illinois Waterway, the motion to deny an award would be sustained. This Court has had many claims filed before it and the decisions rendered consistently adhered to the rule that the State was not liable for the negligence or torts of its officers, agents, or employees under, “An Act creating- the Court of Claims and prescribing its powers and duties” approved June 25, 1917. Brookshire vs. State, 14 C.C.R. 134; Sanford vs. State, 12 C.C.R. 360. In Turner et al vs. State, 12 C.C.R. 265 we held the State is not liable for the negligence of its officers, agents, or employees in the conduct of a governmental function in the absence of a statute making it liable. To the same effect are Hewlett vs. State, 13 C.C.R. 27 and Hallisey vs. State, 14 C.C.R 156.

The Waterway Act specifically provides in Section 23 that if damages are sustained by a person through a negligent act in the construction, maintenance, or operation of the Waterway and its appurtenances, the State shall be liable. It is evident that the Legislature in the enactment of this statute intended to make an exception to the rule as laid down in the cases above cited.

Upon.consideration of the record in this case, we find that the proximate cause of the injury to claimant’s employee was the negligent act of omission of the respondent’s bridge tender at and before the happening of the accident. We further find that said negligent act of respondent’s employee created a legal liability as provided in Section 29 of the Workmen’s Compensation Act, as amended, and at the time of the occurrence, said employee and respondent were operating under the provisions of said Act.

The evidence discloses that claimant has been put to an expense for hospitalization, medical, and its settlement with its employee through the Industrial Commission, of $3,705.75 for which it is entitled to be reimbursed.

An award is therefore entered in favor of Goldblatt Bros., Inc., in the sum of Three Thousand Seven Hundred Five Dollars Seventy-Five Cents ($3,705.75).

D. V. Sheffner, Geneva, Illinois, has presented a bill for reporting services in this cause in the sum of $62.00, and A. M. Rothbart, Court Reporting Services, has presented a bill for taking and transcribing certain portions of the testimony in the sum of $22.60.

The Act creating the Court of Claims of Illinois does not contain a provision authorizing this Court to enter an award for these services in a claim such as this. These claims must therefore be denied.


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    (No. 3949
    Water Works Commission, a Quasi-Municipal Corp., of the City of Quincy, Adams County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Frank J. Dick, for claimant.
    George F. Barrett, Attorney General, C. Arthur Nebel, Assistant Attorney General, for respondent.
   Damron, J.

This claimant, a Quasi-Municipal Corporation of the City of Quincy, Illinois, by its president, files its claim herein for an award for water service furnished by it to the Illinois Soldiers and Sailors Home at Quincy, Illinois which is owned and operated by respondent.

It appears from the record that a new infirmary was erected at said Institution by the respondent and that water furnished by the claimant for the use of such infirmary, through inadvertence or otherwise, was not metered.

The record further discloses that a conference was had between the officers of the Soldiers and Sailors Home and claimant in which it was determined that for water furnished by claimant to the new infirmary, there was due the claimant the sum of $496.86; but inasmuch as the appropriation from which this amount could be paid had lapsed at the time of the discovery and the determination of the amount due, there were no funds available from which the Institution could pay such amount, therefore, this claim was filed in this Court.

The departmental report of the Department of Public Welfare admits that the water was furnished by' claimant to respondent’s infirmary and recommends that the claim in the above amount be allowed.

This Court has held that where it appears that water was actually furnished to an institution operated and under the control of the respondent, and was not fully paid, the state institution must pay for it since under the law it is a requirement that institutions procure and furnish water for its inmates. City of Jacksonville vs. State, 15 C.C.R. 62.

An award is therefore entered in favor of claimant, Water Works Commission, a Quasi-Municipal Corporation of the City of Quincy, Adams County, Illinois, in the sum of Four Hundred Ninety-Six Dollars Eighty-Six Cents ($496.86).


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    (No. 3992
    John O’Dornan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Harry A. Sewell, Eugene Lieberman, Attorneys for claimant.
    George F. Barrett, Attorney General, Wm. L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

This complaint was filed October 8, 1946 seeking an award under the Workmen’s Compensation Act for disability and reimbursement for medical expense by reason of injuries alleged to have been sustained in an accident on March 21,1945.

It was stipulated, upon the hearing, that the injury arose out of and in the course of claimant’s employment. All jurisdictional questions are resolved by the stipulation and the evidence.

The transcript of evidence was filed on February 28, 1947.

The claimant, John O ’D ornan, is 55 years of age and has been employed continuously since 1931 by the Department of Public Welfare as a maintenance man in the Engineering Department at the Chicago State Hospital. During the year immediately preceding the accident Ms rate of pay was $1.75 per hour and Ms gross annual earnings were $3,449.25.

On March 21,1945 in the course of Ms duties he lifted steel beams and ovens in the bakery shop at the hospital wMch was then being remodeled. Prior to tMs date, claimant experienced no physical difficulty although Ms work necessitated lifting and moving heavy objects. On tMs date, he complained to the master mechanic that he was injured and could not work any more. He was directed to the employee’s hospital where he was told he probably had caught “cold in Ms back” from a draft and was instructed to take heat treatments. That was the only treatment he received from respondent. Ten days later Dr. Benjamin Cohen of the hospital staff visited and examined him at his home but did not prescribe treatment.

The day following the accident claimant consulted his own doctor. In July 1946 he was reimbursed by respondent in the sum of $142.50 for his medical expense. Since then he has continued medical treatment and has expended $177.75 additional for physicians, x-rays and medicine for which he has not been reimbursed.

Claimant returned to work on May 9, 1945 and was fully compensated by respondent for this period of temporary total disability.

Since resuming employment claimant has worked steadily. There is no evidence to show that he has earned less than he did prior to March 21, 1945. On the contrary he testified that he is now receiving more money than he did prior to the injury. He is doing Ms regular work with the exception of lifting heavy objects but experiences almost constant pain at the base of his spine while moving around and is no longer able to lift heavy objects or carry heavy burdens.

Dr. Benjamin Cohen called by respondent testified he examined claimant in the latter part of March 1945; he took no x-rays and diagnosed claimant’s condition as lumbar myositis which is an inflammation of the muscles in the lumbar region caused by lifting, straining and similar activities. Dr. Cohen’s diagnosis was “merely a clinical impression. ’ ’ An x-ray taken when claimant returned .to work disclosed osteoarthritis involving the articular facets.

Dr. L. Willard Shabat testified on behalf of claimant. Despondent conceded Dr. Shabat’s qualification. He examined claimant on September 17 and October 5, 1946 and again on February 1, 1947. His objective findings in relation to the complaint in question disclosed marked restriction of forward, lateral, and backward motion of the spine; restriction of straight leg raising on either side but especially the left leg as shown by the Gruenslen and Laguere tests indicative of lumbo-sacral and sacroiliac involvement and marked spasm of both erector spinal groups of muscles. X-ray films of claimant’s back were interpreted as showing evidence of arthritic changes of lipping along the lateral aspect of the bodies of the vertebrae and in the lumbo-sacral joint. These lippings evidencing outgrowth of bone presented a severe type of osteoarthritis. Claimant’s forward motion of the spine is 35 degrees or 60% les than the 90 to 100 degree normal faculty. The lateral sway of the spine is only 20 degrees to either side as contrasted with a normal range of 45 degrees. He has pain in arching his back and has what is called a stiff or “poker” back. On the basis of these'findings claimant in the opinion of Dr. Shabat had a 35% disability of his back. The condition in his judgment is permanent and progressive. It invariably involves locomotion and causes disability of the lower extremities. As the condition progresses and the overgrowth of bone is laid down1 in the course of nature’s compensatory healing the tendency is to “freeze” the joint even more, the person cannot bend and his lower extremities become rigid. The limited movements and restricted locomotion of his lower extremities are definitely related to the degree of motion he can obtain from his back and hence it is definitely impaired.

He further testified to a direct causal relationship between the lifting of the heavy objects on March 21st and the condition as above described and that the preexisting arthritic condition was aggravated by the injury.

On cross-examination, Dr. Shabat stated injury will not accelerate arthritis; it will merely elicit symptoms in a silent type of arthritis and that had claimant sustained no accident, he would still have an arthritic condition which would develop progressively. On redirect examination, he stated these arthritic conditions could exist for years without symptoms evidenced to the patient until an excessive lift or pull or other exciting factor would provoke or start off the vicious cycle.

This evidence will not warrant an award for either temporary total incapacity under Sec. 8(b) of the Workmen’s Compensation Act or for partial incapacity under the provisions of paragraph (d) of that section.

Paragraph (d) in substance provides that where, after and as a result of injury, the employee becomes partially incapacitated from pursuing his usual and customary line of employment he shall, except in the cases covered by the specific schedule of Section 8, paragraph (e), receive compensation equal to 50% of the difference between the average amount earned before the accident and the average amount which he is earning or able to earn after the accident. The claimant is not shown to have incurred any diminution of earnings.

The case of William Co. vs. Palush, 303 Ill. 352 cited by claimant and the quotation therefrom to the effect that it does not follow as a proposition of law that compensation can be denied merely because the employee earned more subsequent to the injury than he did before, involved an award under paragraph (c) of Section 8 for permanent and serious disfigurement of the hand. This case has no application to Section 8 (d). It is only for disfigurement under paragraph (c) or for the specific loss of members covered by the schedules of paragraph (e) that no showing of reduced earnings is required as a basis for recovery. Nokomis vs. Industrial Commission 308 Ill. 609.

The decisions of the Supreme Court as well as the decisions of this court have uniformly held that before an award for partial incapacity under paragraph (d) is justified, the claimant must show that he is not earning, or is not able to earn as much as he earned before he was injured. The amount the injured employee is able to earn, will never be less than he actually earns and if the injury does not reduce his earning capacity he is not entitled to compensation for partial disability under paragraph (d). Compensation in such instances is based only on reduced earning capacity and is measured by such loss. Groveland Coal Co. vs. Industrial Commission, 309 Ill. 73 at 74; Consolidated Coal Co. vs. Industrial Commission, 314 Ill. 526 at 528; Dial vs. State, 15 C.C.R. 53.

It is manifest that no award for partial incapacity under paragraph (d) can be made to claimant inasmuch as he has shown no loss of earning capacity as required by the statute.

On the other hand, the evidence of the claimant, supported by Dr. Shabat and to some extent by Dr. Cohen for the respondent, clearly indicates that claimant as a result of the accident, sustained an injury which aggravated a pre-existing arthritic condition and that a disability ensued from such aggravation. Where pre-existing conditions of disease are aggravated by an accidental injury, the disability resulting from such aggravation is compensable. Chicago Park District vs. Industrial Commission, 372 Ill. 358; Bartholomew vs. State, 15 C.C.R. 117. This doctrine as it relates to a claimed partial incapacity under paragraph (d) is necessarily qualified by the express provision of that paragraph which requires proof of loss of earning capacity before an award could be made thereunder. However, as we have pointed out no such qualification exists in cases of losses covered by the specific schedule of paragraph (e). Loss of earning capacity is not a condition to recovery for specific losses under the last mentioned paragraph. Nokomis vs. Industrial Commission supra.

From a careful consideration of the record, we find from a preponderance of the evidence that claimant has sustained a permanent and partial loss of use of both his legs to the extent of 15% which disability can be attributed to the aggravation of his pre-existing arthritic condition. For this permanent and partial loss, claimant is entitled to an award. His compensation rate is $17.63 as provided by the Act. For thé permanent and complete loss of a leg claimant would be entitled to his weekly rate for 190 weeks or $3,349.70. A 15% loss would entitle claimant to $502.45 for each leg or $1,004.90 for both members computed at the rate of $17.63 per week for 57 weeks.

Claimant has expended $177.75 for medical services, x-rays, and medicine rendered on account of his injuries for which he is entitled to reimbursement as follows: Dr. L. Willard Shabat, $140.00; X-rays, $15.00; Medicines, $22.75.

A. M. Bothbart, Court Beporting Service, has filed a bill in the sum of $43.75 for taking and transcribing the' evidence. The charge is fair, reasonable and customary and is allowed.

An award is entered in favor of claimant John O’Dornan for One Thousand Two Hundred Twenty-Six Dollars Forty Cents ($1,226.40) all of which has accrued and is payable forthwith.

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


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    (No. 3993
    South Side Petroleum Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Finn, Tollkuehn and Smith, for claimant.
    George F. Barrett, Attorney General, Wm. L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

This complaint was filed October 15, 1946 seeking an award to reimburse claimant in the sum of $1,935.72.

Claimant is a wholesale and retail dealer in gasoline, oil, and other petroleum products. Its business is subject to the provisions of Chap. 104, Ill. Rev. Stat. referred to as the Oil Inspection Act of Illinois. Regulation No. 5 adopted by the Department of Revenue pursuant to the Act in part provides that any petroleum product having an end point of 550° F. or less shall be classified as kerosene and subject to inspection.

Claimant alleges that it erroneously paid $1,935.72 in inspection fees from May 1,1941 to and including July 1946, on certain of its oil products; that these products had an end point in excess of 550° F.; and therefore were not within the purview of the regulations.

On September 18, 1946, claimant by letter advised the Department of Revenue of the above facts and requested advice as to the procedure to follow so as to obtain an allowance on the over-payment of the aforementioned inspection fees. The Supervisor of the Petroleum Inspection Division of the Department replied that where a distributor voluntarily and wilfully includes fee payments on certain products and subsequently finds that he was in error in so doing and requests restitution, the Department could not be. held responsible but that claimant if it so desired, could refer the matter to the State Court of Claims for consideration to which the Department of Revenue would voice no objection.

The above constitutes the essential facts of record pursuant to stipulation of the parties.

The decisions of this Court are consonant with those of our Supreme Court in the affirmation of applicable legal principles which preclude an award on the basis of these facts.

No provision is made in the Oil Inspection Act for refund of fees paid thereunder.

We have repeatedly held that fees and taxes paid _ voluntarily and without any compulsion or duress, cannot be recovered in the absence of a statute authorizing such recovery. Warren vs. State, 14 C.C.R. 84; Wright & Wagner Dairy Co. vs. State, 12 C.C.R. 149; Socony Vacuum Oil Co. vs. State, 11 C.C.R. 149.

Moreover, this Court has consistently ruled that an award for refund of fees and taxes paid under similar circumstances must be denied where the claimant has failed to comply with the provisions of Par. 172 of the State Government Act (Ch. 127, Par. 172, Ill. Rev. Stat.).

In Farm Bureau Oil Co. vs. State, 14 C.C.R. 153 we reviewed the well established principle that where a statute of this State provides an adequate remedy in courts of general jurisdiction and a claimant fails to exercise its rights thereunder, it cannot contend the tax was paid involuntarily and this court is thereby precluded from entering any award. Numerous cases were cited in that. opinion which enunciate and support this clearly established rule.

Pull consideration has been given to the question as to whether, the record before us would sanction the conclusion that the payment of the fees in question had been made under a mistake of fact but the record as constituted will not support such conclusion. The burden of proof rests on claimant and this court can only pass upon the record as made and cannot assume or conjecture that essential facts exist which are neither alleged or proven. Nowhere in this record is there any averment or proof that claimant did not know the “end point” rating or degree of its petroleum products at the time it paid the inspection fees thereon. In the absence of such allegation and proof, it would be reasonable to infer that as a dealer, claimant was familiar with the quality and characteristics of the products in which it dealt and that claimant with knowledge of the facts, inadvertently but voluntarily paid the fee thereon although the product was not within the purview of the regulation.

As to this aspect of the record, the present case cannot be logically distinguished from the case of Socony Vacuum Oil Co. vs. State, supra. In that case, claimant erroneously believed that certain of its trucks weighed over 24,000 pounds when fully loaded and paid the required $250.00 license fees for vehicles in such classification. Subsequently, it discovered the trucks weighed less than 24,000 pounds and that it should have paid only $150.00 in fees for vehicles under the 24,000 pound classification. It was conceded that the amount paid was in excess of the amount claimant was required to pay under the law. We held in that case that claimant did that which it believed the law required it to do and that under the decisions of this Court and the Supreme Court of this State, reviewed in that opinion, there could be no award for the excess payments.

The error or mistake of claimant in this case, from all evidence appearing in the record, was one as to application of Regulation No. 5 of the Department of Revenue. A mistake of law is an erroneous conclusion as to the legal effect of known facts and therefore under the law, payments made by claimant are clearly a mistake of law and are not recoverable.

For the above reasons, an award is denied and the claim dismissed.


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    (No. 3997
    Clarence J. Fannin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Baker, Lesemann, Kagy & Wagner, for claimant.
    George F. Barrett, Attorney General and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Bergstrom, J.

Complaint was filed on November 12, 1946, wherein claimant alleges that he was injured on December 4, 1945 in the performance of his duties while in the employ of respondent, and seeks to recover for the permanent loss of the sight of his right eye.

The record consists of the Complaint, Departmental Report, Stipulation, Claimant’s Brief, and Respondent’s Waiver of Brief.

The evidence shows that on December 4, 1945, about 6:00 P. M. claimant was called from his home to investigate an automobile collision which had occurred in front of his house. The driver of one of the cars, a woman, became abusive to the point that it was necessary to prevent her from operating her car. Claimant, who was a highway police officer employed by respondent, placed her under arrest. She refused to accompany him, and in the scuffle that ensued, she stuck her thumb into the officer’s right eye.

Previous to this occurrence and during the week of September 3,1945 claimant had developed an irritation of his right eye which was described as, a “cold in the eye” or an “ acute inflammation in the right eye. ’ ’ He consulted various doctors, and immediately prior to the injury of December 4, 1945 his eye was responding to treatment prescribed by Dr. Gr. F. Schwartz of St. Louis, Missouri. Following this latter injury, claimant’s eye grew progressively worse, and on December 17, 1945 he requested the Division of State Police to furnish specialized treatment.

On December 27,1945 claimant was sent to St. Louis, Missouri for an examination and such treatment as • should be prescribed by Dr. Lawrence T. Post, Professor and Head of the Department of Clinical Opthalmology, Washington University, School of Medicine. He examined claimant on that day and reported that the right eye showed a hazy rough cornea with many deposits on the endothelium, pupil slightly and irregularly dilated and fixed by posterior adhesions to the anterior lens capsule over which was gray fibrinous exudate. There was red reflex', but no fundus details were seen. The tension was 34 . (Schiotz). The left eye appeared normal externally and opthalmoscopically. It was his opinion that the patient had a glaucoma in the right eye secondary to a uveitis. From the history he judged that the uveitis was present before the injury from the thumb, but, since there was history of lost vision at the time immediately after this injury, he was of the belief that it undoubtedly was a contributory factor in the present serious condition of the eye.

Dr. Post treated claimant and made various reports of the patient’s progress, including one dated April 5, 1946, which reads as follows:

“Replying to your letter of April 3rd, I saw Mr. Fannin yesterday and made the following observation:
“Vision in the right eye, 20/200; tension 11 (normal); pupil, bound; moderate lens opacity. I believe that this is about the maximum vision that he will attain, an'd I doubt if even this will be held indefinitely. I advised that he might go back to work whenever he desired.”

On July 19, 1946 Dr. Post sent in his final report, wherein he stated:

“First examination by me on December 27, 1945, showed vision hand motions at 6 inches right eye 'and 20/20 vision left eye. With a plus 1.00 sphere add, he read 3% point with the left eye. There was a uveitis present in the right eye and the intraocular tension was 34, which indicates that the eye was too hard. I thought that the inflammation was the cause o‘f the glaucoma and that this had either been induced or increased by the blow on the eye. I treated him for many months with a variety of drugs and procedures. Tension became normal and vision slowly improved to a maximum of 20/200. From then on it began to fail because of a secondary cataract in this eye, and when last seen June 21st, vision was 4/200 and the eye quiet. I believe that the vision will fail further as the cataract becomes more mature, but X do not advise the removal as the chance" of obtaining good vision even with operation after such an attack of uveitis is almost nothing.”

f

There is also a report from Dr. Howard G. Knapp of East St. Louis, Illinois, which is included in the record by stipulation, dated February 11, 1947, in which he states:

“Today I examined Mr. Fannin’s eye. He states that on December 5, 1945 his right eye was injured while he was on duty with the State Highway Patrol.
The uninjured left eye is nfirmal in every respect. Vision is 20/20. There is no evidence of any sympathetic reaction.
The injured right eye deviates outward a varying degree, up to thirty degrees. Lids are normal. The cornea is clear. The anterior chamber is shallow. The iris is atrophic and bound down to the lens by many adhesions. There is almost complete absorption of the pigment layer of the iris. The pupil is filled by a white organized exudate in which iris pigment is incarcerated. There is. an opacity of the lens. The fundus is not visible. Vision is finger count (uncertain) at one foot. Light perception is faulty. . This represents a one hundred per cent loss of visual acuity in the right eye.
I do not believe there is any danger to the left eye.”

Inasmuch as respondent received notice of the accident on the day after it happened' and the other jurisdictional requirements have been satisfied, claimant is entitled to the benefits under the Workmen’s Compensation Act. The evidence also shows that the accident arose out of and during the course of claimant’s employment by respondent, and as a result thereof, claimant has a permanent loss of the sight of his right eye, aggravated by and fairly attributable to the accident.

Claimant’s total earnings from respondent for the year preceding his injury on December 4, 1945, were $2,363.61. His compensation rate would, therefore, be $15.00 per week, increased by 20% to $18.00 per week, the accident having occurred after July 1945. Claimant filed an affidavit that he was unemployed from December 4, 1945, the date of the accident, until September 6, 1946 when he was employed by the Payne and Dolan Construction Company. Dr. Post advised claimant on April 4, 1946 that he might go back to work whenever he desired. From the record, claimant is entitled to receive compensation for total temporary incapacity from December 5, 1945 to April 5, 1946, a period of 17 1/7 weeks at $18.00 per week, or $308.57. He is also entitled to receive the additional sum of $2,160.00 for the loss of the sight of his right eye, computed on the basis of 120 weeks at $18.00 per week. From these amounts must be deducted the sum of $745.50 paid to claimant for unproductive time, which leaves the balance he should be paid $1,723.07.

• Respondent paid the sum of $142.00 to Dr. Lawrence T. Post, St. Louis, Missouri for medical services, and also paid claimant $244.87 for travel and expenses from his home to St. Louis, Missouri for medical treatment.

An award is therefore entered in favor of claimant, Clarence J. Fannin, in the sum of $1,723.07, payable as follows:

$ 604.50 which has accrued and is payable forthwith;
$1,118.57 payable in 62 weekly installments of $18.00 commencing May 21, 1947, and a final payment of $2.57.

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


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    (No. 4003
    John Robke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1947.

    Fred Branson, for claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

On February 13,1945, the claimant, John Robke, was employed by the respondent in the Department of Public Works and Buildings, Division of Highways, as a member of a group clearing dead trees and brush from the right-of-way of Illinois Highway 15 in Washington County. While chopping down a tree, claimant’s axe caught in a grapevine and severely wrenched his right shoulder.

Claimant was immediately taken to Dr. A. J. Bauer, at Germantown, Illinois, who prescribed medication and rest. Dr. Bauer, upon examination, found a partial dislocation of the right shoulder downward, with extensive swelling, and disability to move or elevate the arm. X-rays subsequently taken showed no fracture.

On March 27, 1945 claimant was taken to St. Louis, Missouri for examination and treatment by Dr. J. Albert Key, Professor of Clinical Orthopedic Surgery, Washington University. Dr. Key reported a moderate crepitus on all movements of the shoulder, and pain at the limits of abduction and external and internal rotation. He found, also, motion limited, and a marked weakness, in abduction, together with a moderate tenderness over the greater tuberosity of the humerus, and over the brachial plexus on the side of the neck. Dr. Key stated that X-rays showed no evidence of fracture or dislocation, but showed a moderate atrophy of the upper end of the humerus. His diagnosis was a rupture of the supraspinatus tendon.

After a second examination by Dr. Key, on March 24, 1945, claimant’s condition was found unimproved; he was unable actively to abduct his arm more than 45°; movement of the shoulder was accompanied by course crepitus; and the X-rays taken at that time showed some roughening of the tuberosity. Dr. Key stated that claimant’s ruptured suprasinatus tendon would not heal, and because of claimant’s age he was unwilling to recommend surgery. On May 31, 1945, Dr. Key reported that claimant was able to do light work, and claimant returned to his employment on June 2nd.

The shoulder, however, continued to trouble the claimant, and on May 1, 1946 he was again examined by Dr. Key, who found a rupture of the long head of the biceps, and found that claimant was unable to abduct his shoulder completely, but was able to use the arm fairly well at levels below the shoulder. Dr. Key still felt that an operation should not be performed.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this state, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of the employment.

During the year immediately preceding the injury, claimant’s earnings were $1,219.50, making a compensation rate of $13.78 per week. Since claimant was paid compensation by the respondent at that rate for the period of February 14, 1945, to, and including May 31, 1945, no award can be made on account of temporary disability. Claimant’s medical and hospital expenses were also fully paid by the respondent. The only question remaining is the extent of.claimant’s permanent disability.

Dr. Harry E. Eyan, testifying on behalf of claimant, stated that claimant has an atrophy of the upper right arm, more pronounced in the upper part of the biceps muscle, a pronounced inability to raise the right arm, and that the abduction of motion in the right arm is limited to approximately 45°. He found a marked depression in the upper third of the biceps muscle, apparently due to rupture, and a limitation preventing claimant from doing approximately 75% of his work. Dr. Eyan’stated that the disability was permanent, and like Dr. Key, doubted the advisability of an operation.

Eosalee Cox was employed to take and transcribe the evidence at the hearing before Commissioner Jenkins. A charge in the amount of $5.00 was incurred for this service, which charge is fair, reasonable, and customary.

From the record, and the report of Commissioner Jenkins, who observed the claimant, the court is of the opinion that claimant has suffered a 60% partial permanent loss of use of his right arm. He is, therefore, entitled to an award in the amount of $13.78 per week, for a period of 135 weeks, or the sum of $1,860.30.

An award is entered in favor of Eosalee Cox in the amount of $5.00, payable forthwith.

An award is entered in favor of John Eobke in the amount of $1,860.30, payable as follows:

$1,405.56, accrued, is payable forthwith;
454.74, is payable in weekly installments of $13.78, beginning on the 17th day of May, 1947, for a period of 33 weeks.

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


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

      Opinion filed June 5, 1947.

    John W. Preihs, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, C. J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers ’ and Sailors ’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C.C.R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,-215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940 to January 1,1942, in the amount of $1,129.82. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942, in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943, to and including September 30,1943, in the amount of $853.07. On April 17,1945, a further award was made to claimant for medical and nursing expenses incurred from October 1, 1943, to and including February 28, 1945, in the amount of $1,955.29. On September 12, 1946 a further award was made to claimant for medical and nursing expenses incurred from February 28, 1945 to and including April 1, 1946 in the amount of $1,646.12. Claim is now made for an additional award of $2,258.30 for medical, hospital and nursing expenses from April 1, 1946 to and including April 1, 1947.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over urine and faeces. From April 1, 1946 to and including April 1,1947, she has been required, to relieve her of her injury, and to prevent deformity and to stimulate circulation, and for relief of bed sores, to employ and receive medical services and nursing attention. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs and to prevent infection arising from her impaired circulation and piaralysis. The services of a physician are needed almost daily and must be rendered in her home.

Claimant has therefore employed a physician on a monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for which she seeks reimbursement in the total sum of $975.00. Claimant also seeks reimbursement, at the rate of fifty cents per day, in the total amount of $182.50, for board and room of attending nurses. Such expenditure obviates the employment of both a day and a night nurse. In addition, claimant has expended, for nursing services, $831.68, and for drugs and supplies, $119.12. She has submitted to the court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

This court has heretofore held that under Section 8, paragraph (a) of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell vs. State, supra). There has been no change in claimant’s physical condition to justify the denial of an award at this time. The services claimed appear to have been reasonably required and the charges to be reasonable and just, excluding the claim in the amount of $150.00 for the purchase of a wheel chair, which must be denied.

Award is, therefore, made to the claimant for medical and nursing expenses from April 1,1946 to and including April 1, 1947, in the sum of $2,108,30, which has accrued and is payable forthwith. The court reserves for further determination claimant’s need for further medical, surgical and hospital services.


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    (No. 3533
    Naomi Jeanne Clifton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

    George W. Lawrence and Jack L. Sachs, for claimant.
    George F. Barrett, Attorney General, and William L. Morgan; Assistant Attorney General, for respondent.
   Eckert, C. J.

On August 17,1940, claimant, Naomi Jeanne Clifton, filed an “Amended Statement of Claim” in this court seeking an award of $338.50 for medical, hospital, and nursing services. She alleged these charges were incurred as a result of typhoid fever which she contracted on August 17, 1939, while employed by the respondent at the Manteno State Hospital. Attached to, and forming a part of the “Amended Statement of Claim” was a petition, sworn to by George W. Lawrence, attorney for claimant, stating that on February 26, 1940 he forwarded to the clerk of this court a petition on behalf of claimant; that he heard nothing further regarding said petition; and that he believed that the same was lost either in the office of the clerk, or between his office and the office of the clerk of this court. Attorney for claimant thereupon moved this court to restore the files, and asked leave to file a true and correct copy of the 6 ‘ original claim. ’ ’ Copy of the “original claim” was also attached to the “Amended Statement of Claim”, indicating that it was verified under date of February 26,1940.

On- August 21, 1940, the petition of the claimant for leave to restore the files was denied by this court. The “Amended Statement of Claim”, filed as of August 17, 1940, was ordered to stand as claimant’s original statement of claim filed as of that date. Subsequently, a “Statement of Claim”, filed in this court on September 11, 1945, stated that claimant was employed by the respondent on August 15, 1939, and that while so employed she contracted the. illness in question. No other date appears in this statement.

Forming a part of the record, is a departmental report, made by Dr. Walter H. Baer, Managing Officer of Manteno State Hospital, which under the rules of this court is prima facia evidence of the facts contained therein. The date claimant’s illness began, in this report, is given as August 1, 1939.

At the hearing before Commissioner East, Mary L. Clifton, mother of claimant, testified that claimant contracted typhoid fever while in the employ of the respondent at the Manteno State Hospital. She made no attempt, however, to fix any date when claimant contracted , the disease.

It is also clear from the record that claimant has failed to comply with Section 24 of the Workmen’s Compensation Act of this State, which provides that no proceeding for compensation under the act shall be maintained unless claim for compensation has been made within six months after the accident, and unless application for compensation is filed within one year after the date of the injury, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid. Failure to file application within the one year period, under Section 24, bars the right to file such application thereafter.

The testimony on hearing before Commissioner Blumenthal was taken and transcribed by A. M. Rothbart, Court Reporter, who has submitted a statement of $13.30 for stenographic services. This charge is reasonable and proper.

An award is therefore entered in the amount of $13.30 payable to A. M. Rothbart forthwith.

The claim is otherwise denied.


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    (No. 3768
    David Cohen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 5, 1947.

    Harry S. Cowen, Attorney for claimant
    George F. Barrett, Attorney General, for respondent, Wm. L. Morgan and Leonard H. Lawrence, Assistant Attorneys General, of counsel.
   Damron, J.

On December 9,1942, the above named claimant filed a complaint in this Court alleging that he is entitled to a refund in the sum of $1,785.93 from the State, by reason of an erroneous payment of that amount heretofore made by him to the Department of Finance on December 7, 1938.

The claimant, by his attorney, and the respondent, by its Attorney General, have filed herein a stipulation of facts which they agree shall be considered as in lien of a transcript of evidence pursuant to Rule 16 of this Court and shall constitute the record in this case, and is in words and figures as follows:

1. That on or about September 4, 1937, a suit had been filed by the Department of Finance of the State of Illinois, against the claimant herein, in the Municipal Court of Chicago, Case No. 2779835, claiming the sum of $1,704.67 in an action of debt, pursuant to the Retailers’ Occupation Tax Act, seeking to recover a judgment for said amount for an indebtedness alleged to be due under the said Act, based upon a tax assessment as determined by the said Department of Finance.
2. That on December 23, 1937,. a judgment had been recovered against the claimant in the aforesaid suit in the sum of $1,704.67 and costs, after the said Municipal Court had overruled the defense of the claimant as incorporated in his Second Amended Statement of Defense, in which he had questioned the jurisdiction of the Municipal Court of Chicago over the subject matter of said suit, and thereafter, on December 7, 1938, after the issuance and service of. an execution upon the claimant, he had paid in satisfaction of the aforesaid judgment, the sum of $1,785.93, which represents the amount of said judgment plus statutory interest, but exclusive of court costs.
3. That the said defendant perfected an appeal to the Supreme Court, of Illinois, wherein the judgment was affirmed and which is found in Volume 369 of the Illinois Reports beginning at page 511.
4. That the claimant (defendant) herein did not deny and does not now (1) that he had been notified of the hearing to fix his tax liability as required by the act, or (2) that a hearing was had pursuant to such notice, or (3) that a deficiency assessment in the amount claimed had been made by the department, or (4) that he had been notified of the assessment, or (5) that he had not paid it, or (6) that he had taken no steps within the time fixed by section 12 of the act to have the finding of the department judicially determined by suing out a writ of certiorari, nor did he charge the department with failure to observe all the procedural steps required to be taken by it prior to bringing its action to collect.
5. That on November 27, 1942; an order was entered in the aforesaid cause decreeing said judgment as being absolutely void ab initio and unenforcible, inasmuch as the Municipal Court had lacked the requisite jurisdiction over the subject matter of said cause.
6. That by reason of the foregoing the aforesaid judgment was vacated, set aside, held for naught and expunged from the records in the Municipal Court, and said cause was dismissed.
7. That the claimant has received no payment, either in full or to apply on account of the aforesaid claim, either from the respondent or any of its departments or divisions having supervision and control of the matter and issues involved in this cause.
8. That after ‘the Municipal Court of Chicago had decreed its judgment in this case as being absolutely void ab initio and unenforcible, and had vacated said judgment on November 27, 1942, thereafter, on February 1, 1944, claimant filed a claim for credit or refund with the Department of Finance asking a refund of the moneys paid previously to the said Department in satisfaction of the aforesaid void judgment. Said claim for credit was mailed to the Department of Finance on February 1, 1944 and receipt thereof was acknowledged by the said Department on February 7, 1944. The claim for credit was based upon a payment predicated upon a void judgment and was filed after the court had vacated the said judgment as void. Said claim for credit was denied by the Department and certiorari to review said record was perfected to the Circuit Court of Cook County. On May 8, 1946, the Circuit Court of Cook County denied the writ of certiorari for the reason that that court was without jurisdieion in the premises.

It is to be noted from examination of this record that claimant in seeking a refund of $1,785.93 from the respondent bases his claim wholly on a claimed erroneous payment of said amount paid by him under a void judgment of the Municipal Court of the City of Chicago. It further appears from the record that from this judgment claimant appealed to the Supreme Court of this State vx where the judgment was affirmed. Department of Finance vs. David Cohen, 369 Ill. 510, In that case he did not deny that he owed the respondent the above amount of money assessed against him but challenged the constitutionality of the Act. In the opinion, the Court noted that the affidavit of defense did not deny that appellant had been notified of the hearing to fix his tax liability as required by the Act or that a hearing was had pursuant to such notice, or that a deficiency assessment in the amount claimed had been made by the Department, or that he had been notified of the assessment, or that he had not paid it or that he had taken no steps within the time fixed by Section 12 of the Act to have the finding of the Department judicially determined by suing out a writ of certiorari, nor did he charge the Department with failure to observe all the procedural steps required to be taken by it prior to bringing its action to collect. A motion was made by the Department to strike defendant’s affidavit on the ground it failed to state a defense. The motion was allowed and judgment entered for the amount of deficiency and penalties claimed. Even here the claimant did not deny or plead that the taxes assessed against him were erroneously assessed and by his failure to plead this fact, it must be assumed that at the time of the entry of judgment in the Municipal Court, he owed that amount to the State of Illinois.

It is to be noted that the judgment obtained against this claimant was affirmed on October 17,1938 by the Supreme Court of this State.

This record contains a document marked “Exhibit B ’ ’ which is in words and figures as follows:

“This matter coming on for hearing upon motion of David Cohen, doing business as Embassy Drug Shop, defendant in the above entitled cause, for leave to file his petition to vacate and set aside the judgment heretofore entered herein against him on December 23, 1937, in the sum of $1,704.67 and costs, and
Upon the reading of said petition, it appearing to the Court that said defendant has' a full and complete defense to the claim which is the subject matter of the above entitled cause and upon which the aforesaid judgment is predicated, in that the municipal Court of Chicago had not acquired jurisdiction over the subject matter of said cause, and that, therefore, the aforesaid judgment is absolutely void ab initio and unenforceable.
It is Therefore Ordered, Adjudged and Decreed that leave be and the same hereby is, given to the said defendant to file the aforesaid petition to vacate the judgment heretofore entered herein against him on December 23, 1937, in the sum of $1,704.67 and costs.
It is1 Further Ordered, Adjudged and Decreed that the aforesaid judgment be, and the same hereby is, declared to be void and unenforceable, and said judgment be and the same is hereby vacated, set aside, held for naught, and expunged from the records in the above entitled cause, and said cause be, and the same hereby is, dismissed, without costs.”
Enter: (Signed) Joseph J. Drucker, Judge.

It is to be noted that claimant bases Ms right to recover from the respondent on the order of the Mumcipal Court of CMcago which was entered in said Court on the 27th day of November 1942.

By obtaining this order of the Municipal Court Judge, claimant predicates Ms right to recover on a “void judgment” and contends that since this order was entered, he paid the judgment as a mistake of fact and has filed herein a voluminous brief.

We hold that the order of the Municipal Court of Chicago finding that its judgment against the claimant in favor of the Department of Finance was void ah initio, is not binding and that the Municipal Court was without jurisdiction to enter such an order.

A similar situation arose before our Supreme Court in The People vs. Circuit Court 369 Ill. Sup. 438. This was a case wherein one Karatz was tried and found guilty in the Criminal Court of Cook County for conspiracy to defraud. He was sentenced to serve a term of from one to five years in the Illinois State Penitentiary and to pay a fine of $2,000.00 and costs. That judgment of conviction was confirmed in the Appellate Court, People vs. Barry, 287 Ill. App. 12. Upon further review, the Supreme Court confirmed the judgment of the Appellate Court. People vs. Karatz, 365 Ill. 255. Thereafter, while the sheriff of Cook County having charge of Karatz under a mittimus issued out of the Criminal Court was proceeding to deliver him to the Illinois State Penitentiary, Joliet, a writ of habeas corpus was served upon him, issued by a Judge of the Circuit Court of Will County. In this case, the Court said “the sole question presented in this cause is that of the jurisdiction of the Circuit Court of Will County and Wilson, one of the judges of the Court, to issue the writ of habeas corpus. The ground on which a writ was sought was that the mittimus under which Karatz was held was void because the grand jury which returned the indictment against him was an illegal and void grand jury.”

In holding the Circuit Court of Will County was without power or authority to enter orders concerning the case, the Supreme Court said on page 440 of Ill. Sup. 369,

“It has been so frequently held by this court as to be plain and settled law in this State, of which all inferior courts must be held to have knowledge, that when a judgment is affirmed by this court all questions, whether raised by assignment of error or which might have been raised on the record, are finally adjudicated, and such judgment must be regarded as free from all error. (People v. Superior Court, 234 Ill. 186; Gould v. Sternberg, 128 id, 510.) The adjudication of this court in People v. Karatz, supra, affirmed the conviction of Karatz and pronounced the judgment against him a valid judgment.
While it is true that circuit and superior courts and the judges thereof have concurrent jurisdiction with this court in habeas corpus proceedings, that fact, as, this court has held, does not authorize those courts or judges thereof to review a judgment of this Court, by the writ of habeas corpus. When this court, in the exercise of its appellate jurisdiction, has determined the validity -of a judgment of the lower court, the judges of the circuit and superior courts are bound- by that judgment and are without power or authority, by habeas corpus or otherwise, to passi upon its validity. This is not only well settled in this State but is so thoroughly founded on principles of orderly administration of the law that there ought not to be any judge who doubts " or is unfamiliar with it.”

Many other eases -could be cited to the same effect. The law as announced in the Karatz case is controlling here.

The claimant having failed to establish his right to an award by a- preponderance of evidence, the complaint is dismissed.

Award denied.