text:
    (No. 3279
    Nettie Schlup, Administratrix of the Estate of Barney W. Lee, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1940.

    Davidson & Davidson and Brown, Hay & Stephens, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On August 14, 1937, one Barney W. Lee was in the employ of the respondent as a laborer in the maintenance department of the Division of Highways, and was engaged in cutting vegetation on the right-of-way of S. B. I. Route No. 127, about seven (7) miles south of the Village of Green-ville, in Bond County. The crew foreman had made arrangements with one of the adjoining property owners to provide a hay rack and team to move the vegetation off the right-of-way, provided the respondent would furnish the help to load and unload same. Lee was assigned to the work of assisting with the loading and unloading, and was riding on a load while the same was being taken from the highway." In turning off the highway the wagon overturned and Lee was thrown onto the concrete pavement, sustaining a contusion of the left forehead and temple, as well as an abrasion of the face, sprain and torn ligaments of the left wrist, and a sprain of the great toe of the right foot. He was removed to his home in Greenville, where he was attended by Dr. William L. Hall, who continued to treat him until September 1, 1937, and who reported on September 6, 1937, that there was no permanent injury.

Lee returned to work for respondent on October 5th, 1937, and continued to work until October 16, 1937, although he subsequently testified that he never did feel right after the accident.

He continued to receive his regular salary from October 17, 1937, to April 29, 1938, to wit, the sum of $228.20, which being for non-productive time, must be considered as compensation and deducted from any award made herein.

On October 17, 1937, Lee’s sister called Dr. William T. Easley, who examined Lee and found him insane. On October 20, 1937, Dr. H. D. Oartmell of Greenville was also called to attend Lee and advised hospitalization and treatment by specialists in St. Louis. On October 21st Lee was taken to the Evangelical Deaconess Home and Hospital in St. Louis, where he remained until November 19,1937, under the care of Dr. L. H. Hempelmann. Dr. Hempelmann called into consultation Dr. Roland W. Klemme, a specialist in brain surgery. At such consultation it was determined to operate on Mr. Lee’s head for the purpose of making a ventriculogram, which was done. Thereafter claimant began to improve' and the operating doctors were of the opinion that he might have a complete recovery if he did not return to work too soon.

Lee returned to his home from the hospital on November 19, 1937, and continued under the care of Dr. Cartmell until March 2, 1938. On the last mentioned date, with the acquiescence of the Division of Highways, Lee was taken to Chicago for examination by Dr. H. B. Thomas, head of the Department of Orthopedics, College of Medicine, University of Illinois, and Dr. H. Douglas Singer, head of the Department of Neuropsychiatry, College of Medicine, University of Illinois, and remained in Chicago until the evening of March 7, 1938. Thereafter Dr. Singer reported to Dr. Thomas that in his opinion the injury sustained by claimant was the actual cause of his disability, and thereafter Dr. Thomas reported to the Division that “the disability of which the claimant complains is due to his cardio-vascular disease, contributed by the accident.”

After his examination in Chicago, Lee returned to his . home, and was examined by Dr. Cartmell on several occasions. On May 9, 1938, Dr. Cartmell submitted a report to the Division of Highways in which he stated:

“I do not think he will ever be fit to work;
Prognosis — Permanent disability.”

On June 18, 1938, said Barney W. Lee filed his claim for compensation in this court.

On or about February 15, 1939, Lee was taken to the Mark Greer Hospital at Vandalia, Illinois, and died there on February 22, 1939.

On May 15, 1939, Nettie Schlup was appointed administratrix of the estate of said Barney W. Lee, deceased, and thereafter as such administratrix was substituted as claimant herein.

The present claimant seeks to recover an award for the compensation due Barney W. Lee at the time of his death, the unpaid hospital and medical bills, and for funeral expenses as provided for by the Compensation Act.

It appears from the evidence that all medical, surgical and hospital bills have been paid by the respondent, except the bill of Dr. H. D. Cartmell in the amount of $42.50 and the bill of Mark Greer Hospital in the amount of $38.50.

It also appears that said Barney W. Lee was not regularly employed by respondent for one year prior to the accident in question; that the work in which he was engaged at the time of such accident was work in which it was the custom to operate for a part of the whole number of working days in each year; that he was paid forty cents (40c) per hour for an eight-hour day, and his annual earnings, in accordance with the provisions of paragraph (e) of Section Ten (10) of the Workmen’s Compensation Act must therefore be taken to be Six Hundred Forty Dollars ($640.00) and his average weekly wage Twelve Dollars and Thirty Cents ($12.30). All compensation payments, therefore, must be at the minimum rate of Seven Dollars and Fifty Cents ($7.50) per week.

The said Barney W. Lee was fifty-seven (57) years of age at the time of the accident in question, had no children and no dependents.

The medical testimony in the record is quite voluminous and from such testimony it satisfactorily appears that Lee was completely and permanently disabled as the result of the injuries sustained by him on August 14, 1937, and therefore the administrator of his estate is entitled to have and receive from the respondent compensation at the rate of $7.50 per week for seventy-eight (78) weeks, being from the date of his injury to the date of his death as aforesaid, less the period from October 5,1937, to October 16,1937, during which period he worked for the respondent, and less the sum of $228.20 heretofore paid to him as aforesaid; and that all of such compensation has accrued at this time.

Under the provisions of paragraph (a), Section eight (8) of the Workmen’s Compensation Act, the respondent is required to furnish all necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter which are reasonably required to cure or relieve from the effects of the injury. All of such medical, surgical and hospital services have been furnished by the respondent except the aforementioned bill of Dr. Cartmell in the amount of $42.50 and the aforementioned bill of Mark Greer Hospital in the amount of $38.50, for which bills the respondent is liable under the terms of the Workmen’s Compensation Act.

Under the provisions of paragraph (e) of Section Seven (7) of the Compensation Act in force at the time of the accident, the respondent is also liable for burial expenses of the decedent in an amount not to exceed One Hundred Fifty Dollars ($150.00), same to be paid to the person incurring the expense of burial. The evidence discloses that Lena Cook, a sister of the decedent, paid the funeral expenses and that the same exceeded $150.00. She is therefore entitled to'be reimbursed therefor by the respondent to the extent of $150.00.

Pursuant to the further provisions of said paragraph (e) of Section Seven (7) of said Workmen’s Compensation Act, in force August 14, 1937, the respondent is also required to pay into a special fund of which the State Treasurer is-ex-officio custodian the sum of Six Hundred Dollars ($600.00).

Award is therefore hereby entered as follows:

1) In favor of Nettie Schlup, Administrator of the estate of Barney W. Lee, deceased, the sum of Three Hundred Fifty-six Dollars and Eighty Cents ($356.80).

2) In favor of Nettie Schlup, Administrator of the estate of Barney W. Lee, deceased, for the use of Dr. H. D. Cartmell, the sum of Forty-two Dollars and Fifty Cents ($42.50).

3) In favor of Nettie Schlup, Administrator of the estate of Barney W. Lee, deceased, for the use of Mark Greer Hospital, the sum of Thirty-eight Dollars and Fifty Cents ($38.50).

4) To Lena Cook, in repayment for funeral expenses advanced by her, the sum of One Hundred Fifty Dollars ($150.00).

5) To the State Treasurer of the State of Illinois, as ex-officio custodian of the Workmen’s Compensation Special Fund, the sum of Six Hundred Dollars ($600.00), said sum to be held and disbursed by said State Treasurer in accordance with the provisions of the Workmen’s Compensation Act of this State.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of An Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2759
    Milton Gardener, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1941.

    George M. Schatz, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint alleges that the respondent on January 11, 1935, was possessed of a 1926 model, Reo motor truck, and that by its duly authorized agent and servant, one Floyd Smith, an inmate of the Illinois State Penitentiary of Joliet, Illinois, was operating this truck along and upon a certain public street of the said city, namely 16th Street, at or near the Illinois highway commonly known as Route No. 66; that the truck.was proceeding in a westerly direction on the north side of said 16th Street. The complaint further alleges that the claimant was then and there the owner of an automobile and was operating* the same in a southerly direction on the west side of said Route No. 66, near the intersection of 16th Street, and was exercising due care and caution for his own safety and the safety of others, and that the agent of the State was negligently operating the State truck, and drove across and upon said Route No. 66 without giving claimant any warning of his intention to so do, and came into a violent collision with claimant’s automobile and as the result of this collision, the claimant’s automobile was damaged in the sum of $508.30, as shown by the bill of particulars attached to the complaint.

Attached to the complaint is a statement from the General Exchange Insurance Corporation that it has an interest in the claim to the amount of $445.30 by reason of a subrogation and assignment agreement entered into by claimant on January 12,1935; that no part of the claim has been paid.

Counsel for the State has made a motion to dismiss this complaint.

The rule is universal that the State is never liable for the negligence of its agents and employees unless there is a statute making it so liable. This rule has been so often announced by this and other courts that it would seem it should now be well known. The following are but a few of the many cases announcing the rule:

United States vs. Kirkpatrick, 9 Wheaton, 720;
Story on Agency, 9 Ed. Sec. 319;
Belt vs. State, 1 C. C. R. 266;
Johnson vs. State, 2 C. C. R. 165;
Schroeder vs. State, 3 C. C. R. 36;
Wunderlich Granite Co. vs. State, 4 C. C. R. 143.

There are many eases much more recent than the above, the citation of which is unnecessary.

The motion of the Attorney General must, therefore, be sustained and claim denied.


text:
    (No. 2752
    The Kansas Flour Mills Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1941.

    Cecil H. Haas, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint alleges that claimant, a corporation was engaged in the milling business with its principal office at 1000 New York Life Building, Kansas City, Missouri; that during the first part of March, 1935, the State of Illinois through its State Purchasing Agent, invited the claimant to submit bids on certain purchases to be made by the respondent, said bids to be received until 10:00 A. M. March 19,1935, by sending to claimant a notice, together with specifications of the articles to be bought, said notice in part stating that the bids for certain institutions including the one at St. Charles, Illinois, would be made net excluding in the price thereof the amount of processing taxes ; that pursuant to said invitation to bid, the claimant submitted to the respondent, a certain bid! and together with said bid, the claimant sent a letter dated March 15, 1935, to the effect that where prices on wheat flour have been quoted excluding the wheat processing tax, it would be understood that the buyer agrees to furnish seller affidavits required to support claim for refund, and if such affidavits are not' furnished, and/or if the Federal Government refuses to allow refund of the claim, the buyer shall pay the amount of such processing taxes to the seller. The complaint further alleges that on March 20, 1935, the Purchasing Agent for the State advised claimant that it had been awarded items 2, 3 and 9 for the St. Charles School for Boys as set out. in its proposal, and also sent the claimant a purchase order dated March 20, 1935 for items of flour. It is contended that these items were duly shipped and received by the State.

The complaint further alleges that a ‘1 Monthly Return of Processor of Wheat” was duly made by claimant and filed in the office of the Collector of Internal Revenue of the United States at Kansas City, Missouri, by Valier & Spies Milling Corporation, an affiliated corporation of the claimant herein, in which return were specified certain of the items listed in the purchase order made by the State of Illinois; that an exemption was asked from the payment of the tax on the ground that the St. Charles School for Boys was a charitable institution; that on or about September 10, 1935, the Internal Revenue Bureau of the Treasury Department of the United States notified said Valier & Spies Milling Corporation that said claim for credit of said taxes had been rejected on the ground that the St. Charles School for Boys was not a charitable institution within the meaning of the law.

It is charged in the complaint that Valier & Spies milling Corporation is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, and that it and the claimant herein are affiliated subsidiary corporations wholly owned by the Flour Mills of America, Inc., a Maryland corporation; that the items which the State bought were processed by Valier & Spies Milling Corporation, and that any liability accruing because of said processing taxes was and is that of the claimant herein.

Counsel for the State has made a motion to dismiss this claim.

The Agricultural Adjustment Act was held to be unconstitutional by the Supreme Court of the United States, in the case of U. S. vs. Butler, 287 U. S. 1.

Later on the United States Supreme Court in the case of Anniston Mfg. Co. vs. Davis, 301 U. S. 337, held that where the processor has not passed the tax on to the consumer he may, under Sections 901 to 917 of Title YU of the Revenue Act of 1936 recover the taxes from the Federal government, and if the commission refuses a refund under the above sections the processor may prosecute his claim in the United States Court of Claims.

In the case of McCampbell Co. vs. State, 10 C. C. R. 42, this court held that where the processor has not passed the tax on to the consumer he may under the Federal law, recover the tax from the Federal Government, and if the Commissioner refuses a refund, the processor may prosecute his claim in the United States Court of Claims, and we held in that case that inasmuch as the tax was not passed on to the consumer, the claimant had an adequate remedy in presenting its claim to the Federal Government.

For the same reason, an award in this case will be denied and the motion to dismiss sustained.


text:
    (No. 2755
    Lowell Lieurance, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1941.

    Hardy, Hardy, Hardy & Withered, for claimant.
    John E. Cassidy, Attorney General; Gdenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant avers that on December 6, 1934, at about 8:00 o’clock a. m., claimant was in a certain public garage in the City of Abingdon, Illinois, known as Spurgeon’s Chevrolet Sales; that he had stored an International truck in said garage, and on that morning he went there to procure the same; that he went to the front of the truck for the purpose of cranking the same preparatory to moving it from the garage; that this truck was so placed that it was facing one of the walls of said garage building, the front of said truck being approximately three feet distant from the wall; that at this time and place there was another truck owned and operated by the Department of Public Works and Buildings, Division of Highways of the State of Illinois, in this garage, a short distance from claimant’s truck and headed toward the claimant’s truck, and while the claimant was between the wall and his truck and endeavoring to crank the same, the driver of the State truck started his engine and it ran against claimant’s truck because it had been negligently and carelessly left in gear, and by means of this carelessness and negligence claimant was pushed against the wall of the garage building and was severely injured. Claimant asks for damages in the sum of $6,000.00.

The Attorney General has made a motion to dismiss.

This court has on numerous occasions held that the State of Illinois is not liable for the negligence and carelessness of its officers and agents.

In the case of Minear vs. State Board of Agriculture, 259 Ill. 549, it was held that such board is not subject to the liabilities of a private or quasi-public corporation, and the same rule is applicable to other agencies of the State.

The motion of the Attorney General must, therefore, be sustained and award denied.


author: Mr, Justice Linscott

text:
    (No. 2761
    Karl Lissak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1941.

    Lloyd H. Melton, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr, Justice Linscott

delivered the opinion of the court:

Claimant seeks to recover damages to his automobile occasioned by a collision thereof with a truck driven by a man named Pat Slayden, four miles west of the Village of Nashville, Illinois. Claimant alleges that a construction crew of the State Highway Department was doing work on the road and as the claimant was driving very slowly, a watchman signaled for him to proceed and he did proceed and attempted to pass the construction crew, and while passing a large truck that was in the act of receiving a load, the driver of the truck, Pat Slayden, suddenly and without any warning drove his truck forward in such manner that it collided with claimant’s car, and damaged claimant’s car to the extent of Fifty Dollars ($50.00). An itemized statement of account is attached to the complaint filed herein.

Counsel for the State has made a motion to dismiss and this motion must be sustained, first, on the grounds that there is no averment that the driver of the truck was an agent of the State; and second, because, as we have often said, in the construction and maintenance of its roads, the State acts in a governmental capacity, and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.

Morrissey vs. State of Illinois, 2 C. C. R. 454;
Minear vs. State Board of Agriculture, 259 Ill. 549;
Bucholz, Admx. vs. State, 7 C. C. R. 241.

For these reasons an award will be denied.


author: Mr. Justice Yantis

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

      Opinion filed January 13, 1941.

    John W. Peeihs, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

. Elva Jennings Penwell filed her claim herein on November 12, 1936, alleging that on February 2, 1936 while employed as a Supervisor at the Illinois Soldiers’ and Sailors’ Children School, at Normal, Illinois, a charitable institution operated, controlled and managed by the State of Illinois, she was injured in an accident arising out of and in the course of her employment, for which an award is sought under the terms of the Workmen’s Compensation Act. In addition to the transcript of evidence, filed November 13, 1940, oral appearances have been made by Counsel and written Statements, Briefs and Arguments are filed herein.

The respondent, by the Attorney General, concedes that the Court has jurisdiction of the parties and of the subject matter under the terms of the Illinois Workmen’s Compensation Act, and further that the record supports a finding that the accident arose out of and in the course of claimant’s employment.

The Attorney General submits that the questions of primary importance at issue are :

First, whether or not the claimant’s condition is the result of the accidental injury.

Second, whether or not the respondent is liable for the Doctor bills shown to have been incurred by claimant.

Third, whether such medical bills are reasonable and proper.

The record shows that claimant had been employed at the institution in question for more than a year prior to February 2, 1936, and that at the time of her accident on said latter date she was receiving wages in the amount of $100.00 per month with a further allowance for maintenance on the basis of $24.00 per month, or a total of $1,488.00 per year.

Claimant’s duties required her to exercise supervision over children and employees in the institution, and to make frequent inspection of the several buildings connected therewith. Claimant is a single woman having been granted a divorce from her husband in 1931. At the time of the accident she was the mother of three children, Bruce V. Penwell, Jr., thirteen years of age, Carolyn Penwell, aged twelve years, and Janey Penwell, aged nine years, all of whom were under her care and supported by her. On February 2, 1936 about four o’clock P. M. she left the main building of the institution to inspect another building. It was cold weather and ice and snow had frozen on the steps, of the building. Her foot slipped on one of the upper steps, and she was thrown backwards and down the stairs. She struck on her head and back, and was found and picked up at the bottom of the steps. She was taken to her room and placed under the care of Dr. L. Shafton, the School physician. Her body was bruised and blood was coming from her ears and nose. The evidence discloses that prior to the accident, claimant had enjoyed good health and passed a satisfactory medical examination at the time she became employed at the institution. At that time her eyes tested 20/20. After the fall she was confined to her room until Saturday, February 14, 1936. Pains had developed in her abdomen and side, in her shoulder and in the right side of her head with some fever. Severe pain developed in the left eye and the sight of that eye gradually faded out during the next three days. On February 20th complete loss of vision had resulted in the left eye. At that time Dr. Hartenbower, an eye specialist, was called, and suggested that the claimant should go to Mayo Brothers Clinic. Claimant was taken to the Clinic at Mayos, and entered Worrall Hospital February 22, 1936. The left optic nerve was swollen and the edema spread to the spinal cord causing transverse myelitis. While at Mayos the sight of the right eye was lost and a general paralysis condition ensued. She stayed at the Clinic until April 3, 1936, by which time the paralysis had receded to the sixth Dorsal Vertebrae below the collar bone. Her arms were still useless and she was completely paralyzed below that point. The treatment at Mayos consisted of serum injections to reduce the edema of the optic nerve, and spinal punctures, intravenous glucose, special diets, etc. On April 4, 1936 claimant entered the B. J. Palmer Chiropractic Clinic at Davenport, where she remained until June 1,1936, under the care of Dr. B. J. Palmer. There was intermittent improvement in her eyesight, hut at the time she left the Palmer Clinic she was still practically blind, having approximately one-eight (1/8) vision in one eye with veiy slight use of her hands and arms, and the rest of her body in a state of placid paralysis.

Claimant enter Johns Hopkins Hospital at Baltimore on June 5, 1936 and remained there until June 17, 1937. She there received massage and ultra-violet ray treatments. Her eyesight improved until she could read with one eye. The paralysis receded almost to her waist and she regained the use of her arms and hands. From Baltimore she was taken to her home at Beecher City, Illinois, under the care of a registered nurse who continued the massage and sun-bath treatments.

On February 10, 1938 she entered the Laughlin Hospital at Kirksville, Missouri, Avhere she remained until June 27, 1938. During- her stay there, a lessening of the spasticity of her limbs resulted. During the previous year, this spasticity had increased until it was with difficulty that the legs could be straightened or moved. After leaving Kirksville on June 27, 1938 she returned to her home at Beecher City and remained until August 25, 1938, when she returned to Kirks-ville, residing outside the Hospital, but receiving treatments prescribed by the Hospital staff. She returned to Beecher City June 1, 1939, back to Kirksville September 1, 1939, and back to Beecher City June 1, 1940 where she now remains. At the present time she has paralysis of the motor and sensory nerves below the Sixth Dorsal Vertebrae, incontinence of urine and faeces. There is a tendency of contraction and spacticity of limbs, and because of constant confinement to bed, she suffers bed sores which require medical care and dressings two or three times a day. Claimant has purchased an ultra-violet-ray lamp so as to receive the light treatments at her home, and is occasionally removed from her bed to a Avheel chair. Claimant testified that judging from her condition during the past four years and the result of treatments received at the various hospitals, she will require the services of a practical nurse and a Doctor so long as she lives, because of the tendency of her muscles to contract and the continued existence of bed sores as a result of her rather constant confinement to her bed.

Reports from the several institutions where Mrs. Penwell received treatment, appear in the record. The court, desiring further information as to her immediate condition, of its own accord, requested an examination of claimant at the Herndon Clinic in Springfield, Illinois, and a report of such examination by Dr. R. F. Herndon appears in the record. Claimant’s condition seems to be one which the medical profession has been unable to greatly relieve. Dr. Herndon made a complete study of the reports from the several hospitals, and made a thorough examination of claimant. Without reviewing all of the medical testimony, and for brevity we quote from the conclusion of Dr. Herndon’s report as follows:

“Examination, shows a well-developed and nourished, healthy appearing woman of about 40, lying quietly in bed. She is cheerful, alert and very cooperative. Neurological examination reveals a sharply defined area of anesthesia extending about the body as a girdle at the level of the costal margins and the spinous process of the first lumbar vertebra. Below this level there is a complete absence of all forms of sensation. There is a complete spastic paralysis of the lower extremities with increased tendon reflexes, unsustained clonus, and positive Babinski and related toe signs. The legs are extremely spastic and stimulation produces, involuntary contractions. There is only moderate general atrophy of the lower extremities and despite their spasticity they can be completely straightened. Above the costal margins there are no neurological abnormalities. Examination of her head and neck, heart and lungs and spine reveal nothing abnormal. Blood pressure 122/80.
“At the present time she has almost normal vision in her right eye and useful eccentric vision in her left eye, but the left eye has a large central blind spot that prevents reading, etc. She regards herself as normal to the rib margins. Below this she is completely paralyzed.
“From the above it is my opinion that following her fall Mrs. Penwell developed a diffuse, acute myeloencephalitis which, after a few exacerbation, gradually subsided leaving the residuals described. The ultimate cause of such condition is unknown, but there is some reason to believe they are virus disease (that is due to ultramiscropic organisms). While her accident was not the real cause of her trouble, I believe that it must be regarded as the precipitating factor, and that if it had not occurred she might never have had the illness which followed. It is possible, though very improbable that she may improve in the future but there is no reason to believe that she will ever be self-supporting. In short, it is my opinion that she is totally and permanently disabled and that her disability arose as the result of her accident.
“From the negative standpoint there is absolutely no evidence of a syphilitic factor in this case nor do. I believe that she had an ordinary bacterial infection such as might have resulted from a skull fracture.”

If it can reasonably appear that there is a causal connection between the accident and the resulting injury or death of the workman, an award is justified under the provisions of the Compensation Act. If a dormant condition which might not cause disability is accelerated by reason of an accident so that disability results, such disability is compensable. If death or disability is fairly chargeable to an accident suffered in the course of employment as an efficient cause, compensation may be awarded even though, as in a sarcoma case, such sarcoma previously existed and was aggravated or accelerated by the injury.

In Railroad Water and Coal Handling Company vs. Industrial Commission, 334 Ill. 52, the employee was injured in the chest while helping dig a ditch. Four months after the accident an examination disclosed tuberculosis in the right lung, which apparently had existed for some time, but which had not previously evidenced itself. The medical testimony was that the accident had caused the latent tuberculosis to “light up.” The court, in sustaining an award, said:

“The finding of the Industrial Commission that the disability of defendant in error is due to the injury, and that the tuberculosis is not an independent intervening cause, is not manifestly against the weight of the evidence. Under the decisions of this court- — the judgment of the lower court should be and is affirmed.”

The medical reports, as considered and summarized in the report of Dr. Herndon, is that claimant is totally and permanently disabled, and that her disability arose as the result of her accident. The court feels impelled to accept this proof as determinative of the issue as to whether claimant’s condition is the result of the accidental injuries, and we find that claimant, while an employee of respondent, suffered an accidental injury which arose out of and in the course of her employment, and which has resulted in the total permanent disability of the claimant.

As claimant was receiving wages of $100.00 per month plus a maintenance allowance of $24.00 per month, her annual wage scale at the time of such accident was $1,488.00, or an average weekly wage of $28.61. The dependence of three children upon claimant authorizes a weekly wage percentage of sixty-five (65) per cent for compensation payments, which would be $18.60, but under the limitation of Section 8 (j) 3 of the Act, the maximum amount payable is $18.00 per week. The record discloses that claimant received $100.00 for nonproductive time subsequent to her injury and in excess of all payments due her for wages at the time of her injury, and such sum should be deducted from any award made herein. In view of claimant’s earnings and the three dependent children, she is entitled to an award herein of four times the average annual earnings, subject to a maximum limitation of $5,500.00. In view of her continued disability she is further entitled to a pension of $660.00 per year, such pension being payable at the rate of $55.00 per month.

As to the further issue of whether the respondent is liable for the doctor bills under the evidence contained in the record, the court finds:

That respondent had immediate notice of claimant’s accident and of her increasing disability that immediately followed, and of her need for specialized treatment incidental to the blindness and paralysis that resulted therefrom.

J. H. Russell, Managing Officer of the institution where she was employed, reported: “Mrs. Penwell was going between buildings occasioned by her duties. The concrete steps were slippery due to the snow and ice, and she slipped and fell down the steps. Dr. Shafton, Institutional Pediatrician, who examined her, reported bruises and a severely shaken up condition; in a few days the eyesight was completely gone in one eye, and she determined to go to the Mayo Clinic for observation, advice and treatment. I saw her once thereafter at her hotel in Davenport, Iowa, at which time she had regained partial sight and some control of her head and arms, although she was still confined to bed. Since Mrs. Penwell consulted the local eye specialist and left for Rochester our institution has not since been solicited by her for medical aid.”

The consensus of the decisions of Illinois law upon the question of furnishing medical aid is that, “If there has been a request of the employer to furnish such services, or if the employer has knowledge of the accident and the need of such services, and fails or refuses to furnish them, then the employee clearly has a right to secure such services and to hold the employer liable for them. If there is such a request by the employee, or such knowledge on the part of the employer, the services should be promptly provided, and in such case the employer is liable, unless there is a definite record that the employer had tendered such services from other sources and the employee had refused to accept them.”

In the case of Old Ben Coal Corporation vs. Industrial Commission, 311 Ill. 35, the employer took the injured employee to a hospital at Christopher, and the next day he was taken by his friends and family to a different hospital, where he remained about a year. The employee testified that he demanded medical and hospital treatment after being moved, but that none was tendered. The employer claimed it had its own staff of physicians at Christopher and would have furnished such services if the employee had not selected his own. In sustaining an award, the court said: “The employer is not given the right, simply because the employee leaves the hospital to which the employer took him, to avoid all liability for hospital and medical treatment without tendering other services of like character, unless the facts show that the employee, by leaving the hospital, elected to secure a physician and hospital at his own expense.”

If the employee has already gone to a hospital or secured his own physician, the employer should make a definite offer to provide such services, and in the absence of such offer the employee is justified in attempting to gain such medical care and hospitalization as will cure or relieve him of bis disability. The evidence herein discloses no offer by respondent to give any specialized care or treatment which was apparently required by claimant’s condition, and no objection appears to have been made at any time by respondent as to the hospitalization and treatment which claimant was procuring. The testimony shows that such services were reasonable and were furnished by some of the best known medical institutions in America. The testimony is further that the items of expense and charges made by those institutions and the moneys expended by claimant in obtaining such services were reasonable and necessary. Same is true in regard to the local medical and nursing services rendered to her at her home in Beecher City. The total amount of such expenditures, all of which claimant has paid or obligated herself to pay from her own funds or from moneys borrowed by her, amounts to $8,188.95, with an additional sum of $27.00 for ultra-violet-ray lamp, used to relieve the skin-condition, expended or incurred up to and including October 22, 1940.

The testimony further shows that claimant still requires the attendance of a practical nurse and medical services; that her paralysis extends from the waist down and is of the spastic type; that she has no control over her lower limbs nor over urine or faeces; that the treatment now being.given her consists of osteopathic manipulation, massage, and light treatments to release the spastic condition to prevent deformity and stimulate circulation, and medical treatment for the relief of bed sores; that such treatments are given her once or twee daily and the light treatments three times a week.

The court therefore further finds that claimant is entitled to such further care as is reasonably required to relieve her from the effects of the injury, as provided in Section 8, Par. (a) of the Workmen’s Compensation Act.

In accordance with the foregoing findings, an award is hereby made in favor of claimant, Elva Jennings Penwell, as follows:

For total permanent disability.................................$5,500.00
As the disability began February 2, 1936 and is compensable at the rate of $18.00 per week, $4,626.00 of said award will have accrued by January 16, 1941. The sum of $100.00 heretofore paid for non-productive time is to be deducted, leaving $4,526.00 due and payable as of January 16, 1941. The balance of said sum of $5,500.00, i. e. $874.00, is payable in forty-seven (47) weekly installments of $18.00 per week, and one payment of $28.00.
Thereafter and in addition to said sum of $5,500.00 there shall be due and payable to claimant in accordance with Section 8-20 (f) of the Workmen’s Compensation Act of Illinois, a pension during her life annually, in the sum of $660.00, being twelve (12) per cent of said sum of $5,500.00, payable in monthly installments of $55.00 per month, commencing after the final payment of said award of $5,500.00 has been paid.
In addition to the foregoing, a further award is made in favor of claimant for necessary medical, surgical and hospital services heretofore expended or incurred by her to cure or relieve from the effects of her injury, in the sum of $8,215.95, which said sum is due and payable to her at the present time.

This court is powerless to place a definite limitation upon the time such medical, surgical and hospital services could be or shall be rendered to claimant. The only authority for such payment, and the only limitation thereon, is that such expenditure shall be that which may be “reasonably required to cure or relieve from the effects of the injury.” (Newman Co. vs. Ind. Com., 353 Ill. 190.)

As above stated, the proof here shows that medical and nursing services are still necessary to relieve claimant from the effects of her injury, and that such services are now being and can be rendered in her home. There is no proof indicating any malingering or other circumstance which would enable us to say that further services are not reasonably necessary to relieve Mrs. Penwell from the effects of her injury. In the same manner that we are powerless to place a definite limitation upon the time and amount of such services, so do we regard it as improper for us to attempt to anticipate what such requirements may amount to,- although there is some evidence as to the cost of the present treatment. We therefore find that claimant is entitled to such further care as is reasonably required to relieve her from the effects of her injury.

No award is made at this time for the payment of problematical and anticipated expenses that may be incurred by claimant in attempting to further cure or relieve her disability, the propriety and the amount of any such future payments being considered to be a matter for the discretion and action of the court if and when such expense has been incurred.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the, Method of Payment Thereof” (Ill. Revised Statutes, 1939, Bar Association Edition, Ch. 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Sess. Laws 1939, p. 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided by the foregoing Acts.


text:
    (No. 2715
    Aquilla T. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1941.

    A. Moeeis Williams, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Teevoe, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim is presented on the theory that because claimant was employed and paid as a janitor at $35.00 per month at the Bloomington Free Employment Office, and because there was an appropriation to that office of $600.00 per year, or $50.00 per month for janitor services, therefore the $15.00 per month representing‘the difference between the $35.00 and the $50.00 per month should be paid to claimant.

The Attorney General has made a motion to dismiss this case and argues that the appropriation of $600.00 annually for janitor services for said office for the bienniums in question were modified by the provisions in Section 1 of the Appropriation Acts, which limited the amount of the appropriation to “so much thereof as may be necessary.” If only $35.00 per month was necessary for such services then it could not be said that more than that amount was in fact appropriated. Six Hundred Dollars ($600.00) per year was the appropriation, but the complaint does not aver that the claimant was the only person doing that work and being paid from the appropriation. It appears that the claimant was hired at the rate of $35.00 per month and accepted that amount month after month without objection.

Section 19, Article IV of the Constitution provides, in part as follows:

The General Assembly shall never grant or authorize extra compensation, fee or allowance, to any public officer, agent, servant or contractor, after service has been rendered or a contract made.

The motion of the Attorney General will, therefore, be sustained, and said claim denied.


author: Mr. Chief Justice Hollerich

text:
    (No. 3078
    Elmira Heine, as Administratrix of the Estate of Arthur Heine, Deceased, and Elmira Heine, Individually, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1941.

    Miller & Shapiro, for claimants.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For several years prior to September 4th, 1936 Arthur Heine was employed as a butcher at the Manteno State Hospital, Manteno, Illinois. On the last mentioned date, while in the line of his employment and while cleaning fish, he ran a fin into the thumb of his right hand. He applied iodine on the wound and continued to work that day and the next day, which was Saturday. He was off work Sunday, and on Monday (Labor Day) the hand began to bother him and he returned from his home in Kankakee to the Manteno State Hospital in order to have the same dressed by the institution' physician. Hot applications were applied and Heine was placed in bed at the institution hospital and remained there until Thursday of that week. Not being satisfied with the condition of his hand, he then consulted Dr. George Irwin of Kankakee who continued to treat him from September 10th to September 23. From September 23d until October 7 he continued with the treatments prescribed by Dr. Irwin. On October 7th he went to see Dr. John Goodwin of Kankakee, and continued under Ms care until March 30th, 1937. On October 8th, 1936 he went to St. Mary’s Hospital in Kankakee where an operation was performed on his hand on October 10th, and where he remained until November 12th. By February 1st, 1937 his hand had improved to such an extent that he could return to work, and on that day he went back to work at the Manteno State Hospital at the same wages that he was receiving prior to the time of Ms injury.

He paid Dr. Irwin the sum of $35.00 for medical services, and also paid St. Mary’s Hospital of Kankakee the sum of $173.30 for hospital services. The bill of Dr. Goodwin for medical and surgical services rendered to Heine was $276.00, which bill has not yet been paid.

Arthur Heine filed his Complaint in this court on April 6th, 1937 and on May 2nd, 1939 he departed this life from other causes than such injury, leaving him surviving, the claimant Elmira Heine, his widow, and no children.

Thereafter Elmira Heine was appointed Administrator of the estate of said Arthur Heine, deceased, by the County Court of Kankakee County, and subsequently, pursuant to leave of court theretofore had and obtained, the Complaint herein was amended by substituting Elmira Heine as Administrator of the estate of Arthur Heine, deceased, and Elmira Heine individually as claimants herein.

There is no conflict in the evidence either as to the period of temporary disability, or the extent of the specific loss sustained by said Arthur Heine. Claimant’s physician and the attending physician at Manteno State Hospital both agreed that Heine sustained the permanent loss of seventy-five per cent (75%) of the use of his right hand.

A question has been raised as to whether the respondent should be required to pay the medical and surgical bills incurred by Heine. The evidence bearing on this phase of the case is somewhat meagre, but from such evidence and the inferences which may fairly and reasonably be drawn therefrom, it satisfactorily appears that Heine did not reside at the institution; that he went to the institution hospital of his own volition, and was treated there by the institution physician from Monday, September 7th, until Thursday of that week; that he left the institution of his own accord and consulted Dr. Irwin and thereafter Dr. Goodwin; that the officers at the institution knew of Heine’s condition and apparently knew that he was under the care and treatment of doctors, outside the institution; that no complaint was ever made by any of such officers with reference thereto, and no request was-ever made by any such officers that Heine return to the State • Institution either for hospitalization or for medical treatment.

In discussing a somewhat similar question, our Supreme-Court in the case of Old Ben Coal Corporation vs. Ind. Com.,. 311 Ill. 35, said:

“In other words, the employer is not given the right, simply because the-employee leaves the hospital to which the employer took him, to avoid all liability for hospital and medical treatment without tendering other services of like character, unless the facts show that the employee, by leaving the-hospital, elected to secure a physician and hospital at his own expense. Whether the plaintiff in error had it tendered competent service of that character after demand for assistance, would have had a right to have the employee treated by the means tendered is not decided, for no such tender was made.”

In speaking on the same subject, Angerstein, in his work “The Employer and the Workmen’s Compensation Act of' Hlinois,” page 478, says:

“Where request for medical and hospital services is made or the employer knows that they are needed, he should promptly furnish the best services, available and the employee should accept them. If the employee has already gone to a hospital or secured his own physician the employer should make a definite and unmistakable tender or offer to provide such services and if the employee refuses to accept them the employer should advise the employee that if he does not accept the servios offered but selects his own the employer will not be liable and that the employee will have to stand the expense. In other words, the employer upon such knowledge or request is required to ■ provide the services and is liable therefor unless the employee elects to select his own services and refuses to accept those offered by the employer. In any such case the employer should make, a definite and positive record of offer and refusal”

' Under the evidence in this case we are of the opinion that the respondent is liable, for the medical and hospital expenses incurred by said Heine .as hereinbefore set forth.

From a consideration of the record in this case, we find as follows:

That on September 4th, 1936 said Arthur Heine and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

That on said date said Arthur Heine sustained accidental injuries which arose out of and in the course of his employment.

That notice of the accident -was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act.

That the earnings of said employee during the year preceding the accident were $1,137.94, and his average weekly wage was $21.88.

That said employee at the time of the injury was married, and had no children under the age of sixteen years.

That all medical and hospital services from the date of the injury to October 10, 1936 were furnished by respondent, and all medical, surgical and hospital services on and after October 10th, were procured by said employee at his own expense, and that the amount incurred therefor is as follows:

St. Mary’s Hospital, Kankakee, Illinois...................... $173.30
Dr. George Irwin, Kankakee, Illinois........................ 35.00
Dr. John Goodwin, Kankakee, Illinois....................... 276.00

that the bills of St. Mary’s Hospital and Dr. Irwin were paid by said employee, and the bill of Dr. Goodwin remains unpaid.

That as the result of such accident said Arthur Heine was temporarily totally disabled from September 7th, 1936 to February 1, 1937, to wit, for the period of twenty-one (21) weeks, and also sustained the permanent loss of seventy-five per cent (75%) of the use of his right hand.

That the sum of Two Hundred Sixty-one Dollars and Thirty-two Cents ($261.32) has been paid to apply on the ■compensation due as aforesaid.

That the claimants are entitled to have and recover from the respondent the following sums (less the sum of $261.32 heretofore paid as aforesaid), to wit:

a) The sum of Four Hundred Eighty-four Dollars and Thirty Cents ($484.30) for medical, surgical and hospital expenses as aforesaid.

b) The sum of Ten Dollars and Ninety-four Cents ($10.94) per week for twenty-one (21) weeks, to wit, the sum of Two> Hundred Twenty-nine Dollars and Seventy-four Cents ($229.74), for temporary total incapacity of said Arthur Heine as aforesaid.

c) The sum of Ten Dollars and Ninety-four Cents ($10.94) per week for One Hundred Twenty-seven and one-half (127%) weeks, to wit, the sum of Thirteen Hundred Ninety-four Dollars and Eighty-five Cents ($1,394.85), for the permanent loss of seventy-five per cent (75%) of the use of Ms rigM hand, pursuant to the provisions of paragraph (e) of Section eight (8) of the Compensation Act.

That all of such compensation has accrued at this time.

That pursuant to the provisions of the Workmen’s Compensation Act, the claimant Elmira Heine as Administrator of the estate of Arthur Heine, deceased, is entitled to receive the compensation which has accrued prior to the death of said Arthur Heine, to wit, the medical, surgical and hospital expenses as aforesaid, the compensation for temporary total disability as aforesaid, and the compensation for 117 1/7 weeks specific loss as aforesaid; — less the sum of $261.32 heretofore paid by respondent as aforesaid; and the claimant Elmira Heine individually is entitled to have and receive the compensation which has accrued subsequent to the death of said Arthur Heine, to wit, the compensation for ten and five-fourteenths weeks specific loss as aforesaid.

Award is therefore entered herein as follows:

To Elmira Heine, Administrator of the estate of Arthur Heine, deceased, the sum of Fourteen Hundred Fifty-eight Dollars and Twenty-six Cents ($1,458.26).

To Elmira Heine, Administrator of the estate of Arthur Heine, deceased, for the use of Dr. John Goodwin, the sum of Two Hundred Seventy-six Dollars ($276.00).

To Elmira Heine, individually, the sum of One Hundred Thirteen Dollars and TMrty-one Cents ($113.31).

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the * approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


text:
    (No. 3571
    Harold J. Riefler, d/b/a State Capital Information Service, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1941.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant Harold J. Riefler operating under the trade name of State Capital Information Service of 404 Leland Annex Building, Springfield, Illinois, claims an award from respondent based upon the following grounds.

That on March 14, 1939 an oral contract was entered into between claimant and respondent by and through Milbum P. Alters, then Superintendent of the Division of Departmental Reports, to supply elective State officers and appointive Division and Departmental heads thereof with a legislative bulletin service; that said contract was entered into at the request and suggestion of Honorable John Stelle then Acting Governor, Lyndon Smith then Director of the Department of Public Works and Buildings, S. L. Nudelman then Director of the Department of Finance and Charles K. Schwartz then Chairman of the Illinois Tax Commission. That under such contract claimant was to be paid $50.00 per week from March 14, 1939 until the close of the regular session of the 61st General Assembly, which in this instance was June 30, 1939.

The claim further recites that claimant faithfully performed all of the provisions of the contract and supplied the elective State officers and Division and Departmental heads with 160 legislative bulletins between the above dates at a total charge of Seven Hundred Seventy-eight ($778.00) Dollars; further that through no fault or negligence of claimant said bill remains unpaid, and that the appropriation out of which same was payable lapsed on September 30, 1939. A Bill of Particulars attached to the claim is duly sworn to by claimant Harold J. Riefler.

In a Statement, Brief and Argument filed by the Attorney General in behalf of respondent counsel submits that in order to justify the allowance of an award in payment of said claim it must appear from the record that there was an appropriation out of which the payments provided for by the contract could be made; that there was a balance remaining in said appropriation out of which such payment might have been made, at the time such appropriation lapsed, and that if such payment was to be made from the contingent fund for reserves provided for by the appropriation contained in an Act making appropriations to the Department of Finance, etc., appearing on page 95 Session Laws 1937, and that compliance with Section 4 of such Act found, on page 105 of said Session Laws is shown.

The Appropriation Act above mentioned contains the following proviso: “Reserves — for audits, examinations and investigations, the necessity for which may develop during the biennium — $50,000.00. ’ ’

Section 4 of the Appropriation Act above referred to provides as follows: “Sec. 4. No contract shall be entered into or obligation incurred for any expenditure from the appropriation herein made for contingencies and for reserves until after the purpose and amount of such expenditure have been approved in writing by the Governor.”

The record herein discloses (Claimant’s Exhibit “A”) a report by Milburn P. Akers former Superintendent of the Division of Departmental Reports from which it appears that while the Honorable John Stelle was Acting Governor of the State of Illinois claimant was called into conference with the latter and with the then Director of Finance, the then Director of the Department of Public Works and Buildings, and the then Chairman of the Illinois Tax Commission, on March 14, 1939 at which time a discussion as to the need of an up-to-the-minute information service for the Governor and Departmental heads was had, and at which time the services of claimant were engaged and contracted for whereby claimant was to examine and investigate the reports, bills and other legislative matters transacted by the General Assembly of the State of Illinois from day to day and to prepare and deliver to the Division of Departmental Reports a report thereof which would be upon the desks of the several officers each morning. Claimant’s- Exhibit “A” further shows that such reports were prepared and were distributed through the Department of Finance to all elective, executive and administrative officers, and appointed Departmental heads located in the city of Springfield. Claimant’s Exhibit “A” further shows that the contract price agreed upon was $50.00 per week, to start as of the date of such contract, i. e. March 14, 1939 and to continue until the close of the regular legislative session of the 61st General Assembly, i. e. June 30, 1939; further that there lapsed in the contingent fund of the Department of Finance out of which this contract was payable the sum of $43,373.58.

A further report appearing herein, signed by A. M. Carter, Director of Finance under date of January 2, 1941 discloses that there is contained in the office of the Superintendent of the Division of Reports, a branch of the Division of Finance, a complete file of the bulletins furnished under the foregoing contract, the first of such bulletins showing date of March 14, 1939 and the last i. e. No. 160 being dated June 30,1939.

A further report signed by Alexander Wilson, Administrative Assistant during the Administration of His Excellency Henry Homer and of His Excellency John Stelle as Governors of Illinois, states that Mr. Wilson Had personal knowledge of the nature of the service rendered by claimant and that such service permitted the Governor’s office to keep advised at all times of the progress of bills in the various committees and on the calendars of the 61st General Assembly, and that such service was timely and accurate.

Compliance with the requirement prescribed by Section 4 of the Appropriation Act above quoted appears in the record as Exhibit “B” in words and figures as follows, i. e.:

"Springfield, Illinois
March 14, 1939
EXHIBIT "B"
For the purpose of examining pending legislative matters and obtaining prompt reports thereon and making same available to the Governor’s office and various departmental heads, approval is hereby given for retaining the services of the State Capital Information Service or such similar agency as may be available for" reporting of such matters, such service to be delivered from this date, March 14, 1939, until the end of this regular session of the legislature at a cost not to exceed Fifty ($50.00) Dollars per week.
(Signed) John Stelle, Acting Q-overnor.”

From a consideration of the entire record the court finds that due authority for contracting the services rendered by claimant existed; that the services for which payment is requested were in fact rendered by claimant to the State of Illinois; that due approval for incurring the expenses of such service was obtained in writing from the then Acting Governor of Illinois, the Honorable John Stelle; that an appropriation out of which such expenses might be paid existed, and that at the time such contract was entered into and at the time such appropriation lapsed, a balance remained therein sufficient out of which such payment could be made. The court further finds that payment for said services has not been made and that claimant is entitled to payment therefor.

Wherefore an award is hereby made in favor of claimant Harold J. Riefler operating under the trade name of State Capital Information Service for the sum of Seven Hundred Seventy-eight ($778.00) Dollars.


text:
    (No. 3280
    Marie Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1941.

    McMillen, McMillen & Garman, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some months prior to November 4, 1937, claimant was employed by respondent as an attendant at the Elgin State Hospital, Elgin, Illinois. . During the time she was so employed she lived in the employees ’ hall and took her meals in the employees’ dining room, both located on the hospital grounds. On the last mentioned date, about 5:35 p. m., she went to the employees’ dining room for her evening meal. After the meal she left the dining room by the regular exit on the east side of the building.

Immediately outside such exit is a platform which ordinarily is lighted by an electric light. On the evening in question, however, no light was burning, and when claimant stepped outside she inadvertently stepped over the edge of the platform and fell to the ground. She was taken to the institution hospital, where a roentgenological examination revealed a comminuted fracture of the upper end of the right humerus involving the head and shaft, associated with displacement. On account of the severity of the fracture claimant was sent to the Illinois Research Hospital on November 6, 1937, where the fracture was reduced and a cast placed on the arm. On November 8, 1937, she returned to the Elgin State Hospital, where she remained until June 4, 1938.

During that period she received considerable physiotherapy and other treatments, and went to the Illinois Research Hospital for further examination and treatment about every two weeks. The cast was removed from the body and arm on March 11, 1938, and' on June 30, 1938, claimant was reexamined by Dr. George A. Wiltrakis of the institution staff.

Claimant personally appeared before the court for examination. ■ From the testimony in the record and the examination in open court, it appears that she has a limitation of abduction and extension of the right arm; some impairment of power of supination of right forearm; some limitation of power flexion of the right fingers and thumb, and a general diminished motor power of the right hand.

From a consideration of the evidence in the record we find as follows:

That on November 4, 1937, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on such date claimant sustained accidental injuries which arose out of and in the course of her employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of such Act; that the earnings of the claimant during the year preceding the accident were Nine Hundred Sixty-eight Dollars and Forty Cents ($968.40), and her average weekly wage was Eighteen Dollars and Sixty-two Cents ($18.62); that claimant at the time of the injury was fifty-six (56) years of age; that all necessary first aid, medical, surgical and hospital services were provided by the respondent; that claimant was temporarily totally disabled from the date of her injury as aforesaid to July 1, 1938, to wit, for a period of thirty-four (34) weeks; that she also suffered the permanent loss of fifty per cent (50%) of the use of her right arm; that the sum of Fifty-six Dollars and Fifty-six Cents ($56.56) has been paid by respondent to apply on the compensation due the claimant as aforesaid.

We further find that claimant is entitled to have and receive from the respondent the sum of Nine Dollars and Thirty-one Cents ($9.31) per week for thirty-four (34) weeks ’ temporary total disability, in accordance with the provisions of paragraph (b) of Section eight (8) of the Compensation Act, and the further sum of Nine Dollars and Thirty-one ($9.31) per week for a period.of One Hundred Twelve and One-half (112%) weeks for the permanent loss of fifty per cent (50%) of the use of the right arm, in accordance with the provisions of paragraph E-13 of Section eight (8) of such Act, less the sum of Fifty-six Dollars and Fifty-six Cents ($56.56) heretofore paid by the respondent.

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

Award is therefore entered in favor of the claimant, Marie Smith, for the sum of Thirteen Hundred Seven Dollars and Thirty-five Cents ($1,307.35).

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


author: Mr. Chief Justice Hollerioh

text:
    (No. 3560
    Frances Cure, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On September 27, 1940, Edmund Cure was in the employ of the respondent in the Division of Highways, and in the course of his employment was mowing weeds with his team and mower along the right-of-way of U. S. Route 54, between 127th Street and Ridgeland Avenue in the City of Chicago. For some unknown reason the team ran away and Cure was thrown to the ground and thereby sustained injuries from which he died on the same day.

From a consideration of the facts in the record we find as follows:

1. That on the 27th day of September, 1940, the said Edmund Cure and the respondent were operating under the provisions of the Workmen’s Compensation Act; that on said date said Edmund Cure sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of said Act; that all necessary first aid, medical and hospital services were furnished by the respondent.

2. That the said Edmund Cure was in the employ of the respondent for less than one year prior to the 27th day of September, A. D. 1940; was working eight (8) hours a day, and was paid sixty-two and one-half cents (62%c) an hour; that in the employment in which he was engaged it was the custom to operate for a part of the whole number of working days in each year; that Cure’s annual earnings, computed in accordance with the provisions of Section 10 of the Workmen’s Compensation Act, were One Thousand Dollars ($1,000.00) a year, and his average weekly wage was Nineteen Dollars and Twenty-three Cents ($19.23).

3. That said Edmund Cure left him surviving the claimant, Frances Cure, his widow, and no child or children under the age of sixteen (16) years.

4. That under the provisions of Section 7 of the Workmen’s Compensation Act, the amount of compensation to be paid by the respondent on account of the death of said Edmund Cure is Four Thousand Dollars ($4,000.00); that under the provisions of Sections 7 and 8 of such Act, such compensation is payable in weekly installments of Ten Dollars and Fifty-eight Cents ($10.58), commencing September 28, 1940.

5. That compensation in the amount of Two Hundred One Dollars and Two Cents ($201.02) has accrued from September 28th, 1940, to February 8, 1941.

Award is therefore hereby entered in favor of the claimant, Frances Cure, for the sum of Four Thousand Dollars ($4,000.00), payable as follows:

a) The sum of $201.02, being the amount of compensation which has accrued from September 28,1940, to February 8, 1941, shall be paid forthwith.

b) The balance of such compensation, to wit, the sum of Thirty-seven Hundred Ninety-eight Dollars and Ninety-eight Cents ($3,798.98), shall be paid in three hundred fifty-nine (359) consecutive weekly payments of Ten Dollars and Fifty-eight Cents ($10.58) commencing February 15, 1941, and one final payment of Seventy-six Cents (76c).

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 3549
    Neva J. Dugger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Edward Pres and Harold Warner, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges in substance that on the 24th day of July, A. D. 1940 the claimant slipped and fell while walking near the west entrance on the first floor of the Capitol Building in the City of Springfield; that it was the duty of the respondent to keep said premises in a safe condition; that the servants, agents and employees of the respondent carelessly and negligently placed upon the floor of said building a certain substance which caused the floor to become very slippery; that by reason thereof the claimant slipped and fell as aforesaid, and thereby sustained injuries to her knee and ankle; that in consequence of said injuries she was compelled to and did incur expenses for doctor bills, medicine, etc., and she therefore asks an award in the amount of One-Thousand Dollars ($1,000.00).

The Attorney General has filed a motion to dismiss for the reason that the claim is predicated upon an alleged liability of the respondent for the negligent and wrongful acts of its officers, agents or employees while engaged in a governmental function, and therefore does not set forth a claim which the State as a sovereign commonwealth should discharge and pay.

The State Capitol is the seat of the legislative and executive branches of the State Government and each of the several departments of the State Government created by • the Civil Administrative Code is required to maintain a central office in such building, of which the Secretary of State is made custodian.

There can be no question but what the State in the maintenance of the State Capitol is engaged in a governmental function. It is a rule of very general application in this and other States that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minier vs. State Board of Agriculture, 259 Ill. 549; Love vs. Glencoe Park District, 270 Ill. App. 117; Stein vs. West Chicago Park Commission, 247 Ill. App. 479; Hendrick vs. Urbana Park District, 265 Ill. App. 102; Gebhardt vs. Village of LaGrange Park, 354 Ill. 235; LePetre vs. Chicago Park District, 374 Ill. 184.

Claimant admits that the general rule is as above set forth, but contends that there is an exception to the general rule in cases where the injuries sustained by the claimant are directly attributable to the gross negligence or wanton misconduct of an agent of the State and are not the result of contributory negligence on the part of the claimant, and takes the position that in such cases the State in equity and good conscience should make payment for the damages sustained.

There is nothing in the record to indicate any gross negligence or wanton misconduct on the part of any agents of the State, but even if such gross negligence or wanton misconduct were shown, there would be no liability on the part of the State.

It is true that this court in some earlier cases recognized an exception to the general rule as contended for by claimant, but the cases recognizing such exception have been overruled and this court has repeatedly held that in all cases where the State is in the exercise of a governmental function, there is no liability on its part for the negligence of its servants and agents.

The question, was squarely raised upon the petition for rehearing in the case of Garbutt vs. State, reported in 10 C. C. R. 37. In that case the same contention was made as in the present case, and upon consideration thereof we said, page 41:

“Even if it be conceded that the facts in the record do show that the servants and agents of the respondent were guilty of gross and wanton negligence, and that the claimant’s intestate was free from contributory negligence, still under the repeated decisions of the court, the claimant is not entitled to an award.
“As stated in the original opinion, during a certain period in the history of this court, awards were made in certain cases in which there was no legal liability on the part of the State. In the earlier cases so decided, the facts appealed very strongly to the sympathies of the court, and the awards there made were attempted to be justified on the grounds of “equity and good conscience.’’
“Thereafter the court apparently recognized the dangerous tendency of such decisions, and the extent to which they were being carried, and gradually began to get back to the earlier decisions of the court, to the effect that this court has no authority to allow an award in any case unless there would be a legal liability on the part of the State if the State were suable.
“In the course of such transition, awards were allowed in certain cases where the claimant was free from contributory negligence, and the servants and agents of the respondent were guilty of gross and wanton negligence, and such awards were attempted to be justified on the ground that such cases constituted an exception to the general rule that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior.
“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it' can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this court.”

The rule above set forth has been adhered to in the following cases since decided, to wit: Durkiewiecs vs. State, 10 C. C. R. 61; Stanley, Admr. vs. State, 10 C. C. R. 146; Sale, Admx. vs. State, 10 C. C. R. 379; Bishop, et al. vs. State, 10 C. C. R. 664.

Under the law as applied by this court in the cases above cited, the motion of the Attorney General' must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3563
    Florence Carnahan Duncan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On the 8th day of November, A. D. 1940, Joseph Duncan was in the employ of the Bureau of Maintenance, Division of Highways of the respondent, and was working at a gravel pit located near S. B. I. Route No. 1, about a half mile northwest of Oliver, Illinois. On that day, while working at the pit, he was caught in a slide of the gravel bank and completely covered thereby. By the time the gravel was removed from the body, said employee was dead.

From a consideration of the facts in the record, we find as follows:

1. That on the 8th day of November, A. D. 1940 the said Joseph Duncan and the respondent were operating under the provisions of the Workmen’s Compensation Act; that on said date Joseph Duncan sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of said Act.

2. That the said Joseph Duncan was in the employ of the respondent for less than one year prior to November 8, 1940, was working eight (8) hours a day, and was paid fifty cents (50c) per hour; that in the employment in which he was engaged, it was the custom to operate for a part of the whole number of working days in each year; that Duncan’s annual earnings, computed in accordance with the provisions of Section 10 of the Workmen’s Compensation Act were Eight Hundred Dollars ($800.00) and his average weekly wage was Fifteen Dollars and Thirty-eight Cents ($15.38).

3. That said Joseph Duncan left him surviving the claimant, Florence Carnahan Duncan, his widow, and no child or children under the age of sixteen (16) years.

4. That under the provisions of Section 7 of the Workmen’s Compensation Act, the amount of compensation to be paid by the respondent on account of the death of said Joseph Duncan is Thirty-two Hundred Dollars ($3,200.00); that under the provisions of Sections 7 and 8 of such Act, such compensation is payable in weekly installments of Eight Dollars and Forty-six Cents ($8.46) commencing November 9, 1940.

5. That compensation in the amount of One Hundred Nine Dollars and Ninety-eight Cents ($109.98) has accrued from, November 9, 1940 to February 8, 1941.

Award is therefore hereby entered in favor of the claimant, Florence Carnahan Duncan, for the sum of Thirty-two Hundred Dollars ($3,200.00), payable as follows:

a) The sum of One Hundred Nine Dollars and Ninety-eight Cents ($109.98), being the amount of compensation which has accrued from November 9, 1940 to February 8, 1941, shall be paid forthwith.

b) The balance of such compensation, to wit, the sum of Three Thousand Ninety Dollars and Two Cents ($3,090.02), shall be paid in Three Hundred Sixty-five (365) consecutive weekly payments of Eight Dollars and Forty-six Cents ($8.46) commencing February 15, 1941, and one final payment of Two Dollars and Twelve Cents ($2.12).

Claimant has asked that this award, or a portion thereof, be paid in a lump sum, in order that she may make payment of her husband’s funeral expenses and a mortgage on the homestead. However, our Supreme Court has held'that in cases where there is a surviving widow and no child or children, there is no authority under the Workmen’s Compensation Act for the commutation of the award to an equivalent lump sum.

Illinois Zinc Co. vs. Ind. Com., 366 Ill. 480.

The rule there announced was followed by this Court in the case of Anna Tull vs. State, 10 C. C. R. 713.

The petition for the payment of the award in a lump sum must therefore be denied.

The award herein made being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an' Act entitled “An Act Malting Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session 'Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Me. Chief Justice Hollebich

text:
    (No. 3415
    Harold Lesch, Son of Charles H. Lesch, Deceased and Samuel H. Shapiro, as Administrator With the Will Annexed of the Estate of Charles H. Lesch, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    Mtllf/r & Shapiro, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollebich

delivered the opinion of the court:

On April 7, 1939, and for a long time prior thereto, Charles H. Lesch was in the . employ of the respondent as a skilled laborer, his duties being to operate an auto patrol grader for maintaining gravel shoulders adjoining the concrete pavement on TI. S. Route 52, from Kankakee northwest. On the last mentioned date he took the grader to the division garage in Ottawa for minor repairs, and was returning same to the regular station in Kankakee pursuant to instructions of his assistant maintenance foreman, and while crossing the tracks of the C. R. I. & P. Railroad at Morris, Illinois, was struck by the train known as the Golden State Limited and was instantly killed.

Thereafter Samuel H. Shapiro was duly appointed Administrator with the Will Annexed of the estate of said Charles H. Lesch, deceased, and said Administrator and Harold Lesch, son of decedent, have filed their joint complaint herein asking for an award under the provisions of the Workmen’s Compensation Act of this State on account of the death of said decedent.

From a consideration of the facts in the record we find as follows:

1. That on the 7th day of April, A. D. 1939, the said Charles H. Lesch and the respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date said Charles H. Lesch sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of said Act.

2. That the annual earnings of said Charles H. Lesch during the year next preceding the accident were Eight Hundred Seventy-three Dollars and Fifty Cents ($873.50) and his average weekly wage was Sixteen Dollars and Eighty Cents ($16.80).

3. That said Charles H. Lesch left him surviving no widow, no child or children under sixteen (16) years of age; no parent; no grand-parent, grand-child or grand-children, collateral heirs or others dependent upon him in whole or in part for their support.

We further find that under the provisions of paragraph (e) of Section Seven (7) of the Workmen’s Compensation Act in force at the time of the accident, the respondent is liable for funeral expenses of the decedent in an amount not to exceed One Hundred Fifty Dollars ($150.00), which amount is to be paid to the person incurring the expense of burial. The evidence discloses that the claimant, Samuel H. Shapiro, as Administrator with the Will Annexed of the estate of said decedent, paid such funeral expenses and that the same exceed One Hundred Fifty Dollars ($150.00). He is therefore entitled to be reimbursed therefor by the respondent to the extent of $150.00.

We further find that pursuant to the further provisions of said paragraph (e) of Section Seven (7) of the Workmen’s Compensation Act, in force at the time of the accident, the respondent is also required to pay into a special fund, of which the State Treasurer is ex-officio custodian, the sum of Six Hundred Dollars ($600.00).

Award is therefore hereby made as follows:

a) To Samuel H. Shapiro, as Administrator with the Will Annexed of the estate of said decedent, in re-payment for funeral expenses advanced by him, the sum of One Hundred Fifty Dollars ($150.00).

b) To the State Treasurer of the State of Illinois as ex-officio custodian of the Workmen’s Compensation Special Fund, the sum of Six Hundred Dollars ($600.00), said sum to be held and disbursed by said State Treasurer in accordance with the provisions of the Workmen’s Compensation Act of this State.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117) ; and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


text:
    (No. 3077
    Evelyn Mathieu, Administratrix of the Estate of Floyd Mathieu, Deceased and George Gardner, Administrator of the Estate of Tommie Gardner, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    George W. Dowell and Carl Preihs, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges in substance as follows:

That for a long time prior to and on the 4th day of August, A. D. 1935, the respondent was the owner of and possessed of a certain bridge known as North Fork Bridge which was a part of S. B. I. Route No. 2 and was located about one and one-half (1%) miles north of the Village of Patoka; that the respondent through its Department of Public Works and Buildings and its Chief' Highway Engineer carelessly and negligently constructed such bridge of a width of sixteen (16) feet, eight (8) inches, being one (1) foot, four (4) inches less than the concrete pavement on either side thereof; that such condition was dangerous to automobiles and trucks meeting or passing on such bridge; that on said 4th day of August, A. D. 1935, about eleven o’clock P. M. one Ross White was driving his truck in a southerly direction on said S. B. I. Route No. 2 over said bridge; that Floyd Mathieu and Tommie Gardner, as well as a number of other persons, were riding as passengers in said truck; that when said truck was near the south end of said bridge, another truck drove upon said bridge from the south and collided with the truck in which the said Floyd Mathieu and Tommie Gardner were riding as passengers; that as a result thereof the said Floyd Mathieu and Tommie Gardner were killed; that thereafter Evelyn Mathieu was duly appointed Administratrix of the estate of said Floyd Mathieu, deceased, and George Gardner was duly appointed Administrator of the estate of said Tommie Gardner, deceased; that the said Floyd Mathieu and Tommie Gardner at the time of the accident were in the exercise of all due care and caution, and that said accident occurred as the result of the carelessness and negligence of the respondent in constructing and maintaining said bridge of the width of one (1) foot, four (4) inches less than the concrete pavement at either end of said bridge; and that each of said claimants seeks an award in the amount of Ten Thousand Dollars ($10,000.00).

The respondent has filed a motion to dismiss the complaint for the reason that it does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

We have repeatedly held that in the construction and maintenance of its system of State highways the State is acting in a governmental capacity. Spurrell vs. State, 10 C. C. R. 74; Tivnan vs. State, 9 C. C. R. 495; McGready vs. State, 9 C. C. R. 63; Baumgart vs. State, 8 C. C. R. 220; Budholz vs. State, 7 C. C. R. 241; Brawn, vs. State, 6 C. C. R. 104.

It has been uniformly held in this State that in the exercise of its governmental functions, the State is not liable for the negligence of its agents or employees, in the absence of a statute making it so liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Parle, 354 Ill. 234; City of Chicago vs. Williams, 182 Ill. 135; Royal vs. State, 9 C. C. R. 67; Ryan vs. State, 8 C. C. R. 361; Wilson vs. State, 8 C. C. R. 72; James H. Wolfe, et al. vs. State, 10 C. C. R. 324; 25 R. C. L. p. 407, see. 43.

Under the law as above set forth, the motion of the respondent must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3063
    Lloyd Owens, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 11, 1941.

    John W. Fribley, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Lloyd Owens, claimant, twenty-seven years of age, married, but having no children under sixteen years of age, was employed by Mrs. Dorothy Kay, in her capacity as Assistant Director of the Department of Public Welfare of the State of Illinois, at the rate of Six Dollars ($6.00) per day, and on the 13th day of August, 1936, while engaged in preparing a booth for an exhibit of the Department of Public Welfare of the State of Illinois, for exhibition to the visitors at the Illinois State Fair, Dorothy Kay and the claimant and another helper, were engaged in removing a lattice fence adjacent to an 18 foot stage. The other worker was underneath the stage with a crow-bar in an attempt to remove the stage, and claimant was assisting in attempting to push the fence and stage. It suddenly came loose and claimant’s wrist and right hand were caught between the fence and the stage. Dorothy Kay was present. Claimant’s wrist was sprained and twisted, and the back of his hand was cut. Dorothy Kay directed him to receive first aid from the Fair Grounds. Claimant went back to work the next day with his wrist bandaged and continued to work for some two or three weeks, but finally called upon Dr. John J. Donovan of Springfield, Illinois.

Claimant claims that he suffered much pain and had a lack of strength in his hand, wrist and fingers. Dr. Donovan made a cast to fit his hand and wrist which went part way up the arm, from which a hrace was made. The State paid for that.

It was Dr. Donovan’s opinion that there was a permanent injury and that there was a twenty-five to fifty per cent disability of the use of his right wrist. No bones were broken, and from Dr. Donovan’s examination some two or three weeks after the injury, he determined that the pain and weakness in the wrist and hand was caused by the annular ligament of the wrist having been partially torn causing an abnormal amount of motion between the ulna and radius, with crepitus of the two bones when the wrist was rotated. Dr. Donovan found that no bones, had been fractured.

Sometime after that, Dr. Paul H. Harmon examined claimant’s wrist. Dr. Harmon is a surgeon, duly licensed to practice'medicine and surgery in the State of Illinois, and specializes in surgery, being employed in the Department of Public Welfare- of the State of Illinois, and being director of the crippled childrens’ services in the State of Hlinois, which includes supervision of the surgeons who carry out this type of work. The field in which Dr. Harmon is engaged concerns itself with the diseases of the bones and joints, muscles and tendons, especially all diseases of the extremities. Dr. Harmon is also engaged in the practice of orthopaedic surgery.

It would thus appear that the claimant had the benefit of examination by two competent medical men. Claimant’s principal injury seems to have been in the wrist joint and the compensation act does not make any specific provision for loss of motion in the wrist joint. From the testimony of Dr. John J. Donovan, it would appear that claimant’s wrist joint was twenty-five to fifty per cent less useful. From the testimony of Dr. Harmon it would appear that there is a twenty-five per cent limitation of the motions of flexion, extension, hyper-extension, ulnar deviation and radial deviation, but that there was practically no limitation of motion to claimant’s right wrist as to pronation and suppination. It would also appear from Dr. Harmon’s testimony that at the time of claimant’s examination, claimant had a disability of about thirty-five per cent of the entire use of his right hand, but that in his opinion if the claimant ceased to use the brace which he customarily wore, that additional motion would be gained by the claimant in the injured wrist.

It appears that the claimant was not working steadily at this job, and therefore, under the Compensation Act, his weekly compensation must be determined on a 200 day year. His annual wages, therefore, must be $1,200.00, and his weekly wage would be 1/52 of that, or $23.08. This would make his compensation rate $11.54 per week since claimant did not have any children under sixteen years of age" at the time of the injury.

We, therefore, find that claimant’s injury arose out of and in the course of his employment; that his superior officer was present at the time of his injury and had notice thereof; that claim was filed within a year.

Considering the testimony of both doctors and harmonizing that testimony, we are of the opinion that the claimant has suffered a ten per cent permanent loss of his whole right arm, and is entitled to the sum of $259.65, being 10% of 225 weeks at $11.54 per week. We also find that Dr. John J. Donovan is entitled to the sum of $75.00 for medical care and attention.

An award, therefore, is recommended to Lloyd Owens, claimant, for the purpose herein mentioned, in the sum of $259.65, and an award is recommended for Dr. John J. Donovan, in the sum of $75.00

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” (Illinois Revised Statutes, 1939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment ■of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.