text:
    (No. 2660
    Joseph Rider, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 8, 1941.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim was filed by claimant for the sum of One Hundred Fifty-nine and 48/100 ($159.48) Dollars for medical and hospital services furnished to him, and which he has paid or obligated himself to pay in connection with injuries suffered by him as an employee of respondent.

As a clerk in the store room of the Corporation Department of the Secretary of State’s office in the Capitol Building at Springfield, among other duties required of him was the opening of packages, boxes and crates containing supplies for such Department. These packages, boxes and crates weighed up to six hundred (600) pounds, and in opening them it was necessary that he use various carpenter’s tools, to wit: Chisels, knives, saws, crow-bars, hammers, hatchets and scissors. On January 18, 1935, a large box containing annual reports slipped and fell, crushing his left foot, and making it necessary for him to go to the hospital to receive medical attention. He was off duty for twenty (20) days, after which time he returned to his place of employment. Claimant was compelled to pay out and become liable for the payment of Seventy-four and 48/100 ($74.48) Dollars to St. John’s Hospital, and for Eighty-five ($85.00) Dollars medical bill to Dr. Charles H. Delano, or a total of One Hundred Fifty-nine and 48/100 ($159.48) Dollars. Ho claim is made for temporary or permanent disability, but claimant seeks an award in reimbursement of the medical and hospital expense incurred by him because of such accidental injury.

The Attorney General contends that inasmuch as claimant" was paid his regular salary during the twenty days he was absent from his duties, such, payment was for non-productive time, and that he was only entitled, under the terms of the Workmen’s Compensation Act, during such time to one-half his average weekly pay; that he would not be entitled to compensation or pay the first eight of such twenty days, and that he would only be entitled to one-half of his regular pay for the remaining twelve days he was absent from his duties; that the amount of his full pay for eight days and one-half for twelve days should be set off against any award for doctor and hospital bills which might-be allowed to him. At the time of his injury he was receiving One Hundred ($100.00) Dollars per month, or an average of Twenty-three and 11/100 ($23.11) Dollars per week. Fifty (50) per cent thereof would be Eleven and 55/100 ($11.55) Dollars. Under the decisions of our courts we believe the contention of, the Attorney General to be correct. Claimant received Sixty-six and 60/100 ($66.60) Dollars for non-productive time during the twenty days he was absent from duty. He would have been entitled during said period to Nineteen and 80/100 ($19.80) Dollars temporary total disability. The difference or over payment is Forty-six and 80/100 ($48.80) Dollars. Claimant’s duties were such as to bring the accident within the provisions of the Workmen’s Compensation Act, and he is entitled to reimbursement for hospitalization and medical care required as first aid and to relieve him from the effects of such accidental injuries. The case is somewhat analogous to the case of Alfred W. Evans vs. State, C. C. R. No. 3087, wherein an award was granted March 12, 1941, for injuries and medical expense incurred by claimant Evans while employed as a janitor custodian in the Attorney General’s office. In the course of his duties he tripped on a chair and his left hand was thrust into a moving fan, breaking the bones and tearing the ligaments of his fingers. An award was allowed therein for such accidental injuries and medical care.

Another analogous case is that of Dorothy C. Lynch, 9 C. C. R. 290, in which claimant while employed as a file clerk in the Automobile License Department of the Secretary of State’s office, was injured by a fall from an iron stairway leading from the main floor to a balcony in the office where she was employed. Because of the use of sharp-edged cutting tools employed in that office and of municipal regulations applying thereto, the court there held that the enterprise in which claimant was employed at the time of the accident in question was an extra hazardous enterprise within the meaning of those words as used in Section 3 of the Workmen’s Compensation Act. In the Lynch case application for compensation not having been filed within the time required by Section 24 of the Act, no award for disability was allowed, but it appearing therein that claimant had incurred medical, surgical and hospital bills to a large amount in being cured of the effects of the injury, an award was entered under Section 8 of the Workmen’s Compensation Act in payment of such medical and hospital bills, the court there holding that “Inasmuch as Section 8 of the Compensation Act provides that furnishing by the employer of medical, surgical or hospital services shall not be construed as the payment of compensation, the requirements of Section 24 do not apply to claims within the Act for medical, surgical or hospital services as distinguished from claims for compensation for injuries.”

From the record we find that claimant suffered an accidental injury while an employee of respondent which arose out of and in the course of his employment; that he is entitled, under the terms of the Illinois Workmen’s Compensation Act, to reimbursement for moneys expended for hospitalization and medical care in the total sum of One Hundred Fifty-nine and 48/100 ($159.48) Dollars; that there should be deducted, however, from said amount the sum of Forty-six and 80/100 ($46.80) Dollars over payment heretofore paid to him by respondent for non-productive time, and that he should have an award for the balance remaining in the sum of One Hundred Twelve and 68/100 ($112.68) Dollars.

An award is therefore made in favor of claimant, Joseph Eider, for medical and hospital expense incurred, in the sum of One Hundred Twelve and 68/100 ($112.68) Dollars.


source: Caselaw Access Project

author: Mr. Justice Tantis

license: Public Domain

text:
    (No. 2796
    Joseph Argento, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

    Claire I. Bosen, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

The claim filed by claimant, Joseph Argento, recites that on January 16, 1935, while employed by the State of Illinois as an oil inspector in the Department of Finance, he was driving his antomobile on Lake Shore Drive in Chicago; that he was struck by another automobile and he suffered injuries thereby; that his duties were to go from one concern to another taking samples of gasoline and kerosene therefrom to the State office for proper tests.

Claimant states that his earnings were One Hundred Fifty ($150.00) Dollars per month; that he is married and had two children at the time of the accident under sixteen years of age; that he has received no compensation on account of his accidental injuries, and that medical services incurred as a result thereof were not paid for by the State, but were paid by claimant.

The complaint contains no averment as to what injuries were suffered by claimant, what medical expense was incurred or what, if any, time he lost as a result of the accident. No bill of particulars is attached to the complaint, as required by Court of Claims Rule 6 (a), and the claim is insufficient under the requirements of Rule 4 (a) for the determination of any award.

The Attorney General has filed a motion to dismiss the claim, and the motion is hereby allowed and the claim dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3233
    Chicago Park District, a Body Politic and Corporate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

    John 0. Rees, 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 facts in this case have been stipulated by the parties hereto and are substantially as follows:

The claimant, Chicago Park District, is a body politic and corporate organized and existing pursuant to the provisions of an Act entitled “An Act in relation to the Creation, Maintenance, Operation and Improvement óf the Chicago Park District, ’ ’ approved July 10, 1933, in force May 1, 1934, hereinafter referred to as the “Park Act.”

Prior to May 1, 1934, The Commissioners of Lincoln Park was a park district existing within the territory now included within the Chicago Park District, and is one of the park districts superseded by the Chicago Park District. The title to all lands, property and funds of every description of the superseded The Commissioners of Lincoln Park is now vested in the Chicago Park District.

Pursuant to the provisions of Paragraphs 232 to 250.9 inclusive, Chapter 105, Illinois Revised Statutes, 1939, The Commissioners of Lincoln Park issued bonds which, prior to their delivery to purchasers, were registered in the office of the Auditor of Public Accounts of the State of Illinois.

Subsequent to the issuance and registration of such bonds, the Auditor of Public Accounts annually levied and collected a direct ad valorem tax upon all the tangible property within the district known as The Commissioners of Lincoln Park sufficient in amount to pay the bonds and interest maturing during each next ensuing year thereafter.

The State Treasurer, between April 13, 1912, and July 30, 1937, received a total of $13,828,310.47 in such taxes so levied and collected by the Auditor of Public Accounts, and during said aforementioned period the Auditor of Public Accounts and the State Treasurer deducted from said tax monies the total sum of $70,412.14, said deductions being • shown on the books of the Auditor of Public Accounts and State Treasurer as fees for the collection of said tax monies.

Attached to and made a part of the complaint is an itemized statement showing (a) the amount of tax monies received by the State Treasurer between the specified dates and the total amount of such receipts; (b) the amounts deducted from such receipts by the Auditor of Public Accounts and the State Treasurer, the date of said deductions and the total amount thereof; (c) the distribution of the amounts deducted by the Auditor of Public Accounts and the State Treasurer except with respect to the deductions made on November 10, 1915, September 27, 1917, September 28, 1918, October 22, 1919, and June 25, 1920, on which, information concerning said distribution, if any, is not ascertainable.

In each and every instance the aforementioned amounts of monies deducted were taken from surplus proceeds of such annual levies over and above the amount required in each instance to pay the bonds and interest which had matured.

Said monies so deducted from the taxes collected were ordered and paid on the dates of said deductions into the General Revenue Fund of the State of Illinois.

Neither The Commissioners of Lincoln Park nor the Chicago Park District has ever received said sums so deducted by the Auditor of Public Accounts or the State Treasurer, or any part thereof.

On June 26,1937, the Chicago Park District presented its claim for the return of said monies deducted by the Auditor of Public Accounts and said State Treasurer to said Auditor of Public Accounts and said State Treasurer, and claimant was advised by said State Treasurer to file its claim with the Court of Claims of the State of Illinois.

The claimant contends that there was no authority either under the statutes of this State or under the common law for the deductions so made by the Auditor of Public Accounts and the State Treasurer, and that therefore it is entitled to a refund of the several amounts so deducted.

None of the Acts authorizing the issuance of the bonds in question by The Commissioners of Lincoln Park contained any provision whatsoever authorizing the Auditor of Public Accounts or the State Treasurer to collect any fees whatsoever, other than the registration fee required to be paid to the State Auditor at the time of the registration of the bonds, which registration fee is not involved in this case. .

The only legislative enactments in this State of a nature similar to those authorizing the issuance of bonds by The Commissioners of Lincoln Park, to which our attention has been called, are the following, to wit:

1. An Act entitled “An Act to Enable Counties, Cities, Towns, Townships, School Districts and other Municipal Corporations to Fund, Betire and Purchase their outstanding Bonds and other Evidences of Indebtedness, and to provide for the Eegistration of New Bonds or other Evidences of Indebtedness in the office of the Auditor of Public Accounts,” approved and in force February 13, 1865.

2. An Act entitled “An Act to provide for the Drainage for Agricultural and Sanitary Purposes, and to Eepeal Certain Acts therein named,” approved June 27, 1885, in force July 1, 1885.

3. An Act entitled “An Act authorizing all Drainage Districts to Issue Bonds, and providing for the Eegistration and Payment thereof,” approved and in force July 15, 1895.

The Act first above referred to provides for the payment of a registration fee of twenty-five cents, and also contains the following provision, to wit:

“When the bonds' * * * shall be so registered, the Auditor of Public Accounts shall annually ascertain the amount of principal and interest due and accrued and to accrue, for the current year, on all said bonds and evidences of indebtedness so registered in his office and shall upon the basis of the certificate of valuation of the property to be transmitted to him * * * estimate and determine the rate per centum upon the valuation of said property requisite to meet and satisfy the said interest, or the interest and principal, as the case may be, together with the ordinary cost to the State, of the collection and disbursement of the same to be estimated by the Auditor and State Treasurer. * *
(Ill. State Bar Stat. 1935, c. 113, par. 5).

The other Acts above referred to contain substantially similar provisions.

It will be noted that in each of the Acts above referred to the Legislature specifically provided for the ordinary costs of the collection and disbursement of the tax money, and that no provision of a similar import is found in any of the Acts authorizing the issuance of bonds by The Commissioners of Lincoln Park.

We must therefore assume that the Legislature did not intend that the State Treasurer or the State Auditor should have authority to make any deduction for the collection and disbursement of such monies; — otherwise they would have made specific provision therefor, as they did in the other Acts hereinbefore mentioned.

The Attorney General contends, however, that the claimant is not entitled to an award for any deduction made more than five years prior to the filing of the Complaint herein.

Section 10 of the Court of Claims Act (Ill. Rev. Stat. 1939, Chap. 37, Par. 436) provides as follows:

“Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the secretary of the court within five years after the claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrues two years from the time the disability is removed.”

The Complaint herein was filed March 26th, 1938, and the claimant therefore is limited in its recovery to the deductions made as aforesaid by the State Treasurer and State Auditor during the period of five years prior to the filing of the Complaint herein as aforesaid.

A computation shows that the amount of the deductions made by the State Treasurer and the State Auditor as aforesaid during the period of five years prior to the filing of the Complaint herein is Fifty-Three Thousand Nine Hundred Fifty-eight Dollars and Four Cents ($53,958.04), and an award is hereby entered in favor of the claimant for such amount.


author: Mr. Justice Linscott

text:
    (No. 3053
    The County of Cook, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

    Thomas J. Courtney, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

In its complaint, the County of Cook, through its State’s Attorney, claims the sum of $97,889.00 from the State on the grounds that it is a county by virtue of “An Act to revise the law in relation to counties,” approved and in force March 31, 1874, Revised Statutes of 1874, page 302, and that under the law of Illinois, it was claimant’s duty to furnish relief to mothers residing therein in the nature of mothers’ pensions, in accordance with Sections 350 to 369, both inclusive, of Chapter 23, “Charities” of the Illinois State Bar Statutes for 1935; that Cook County furnished relief and paid out to various persons entitled thereto as and for mothers’ pensions for a period from January 1st, 1933 to June 30, 1933, the moneys in question. It is further alleged that in accordance with Section 366 (1) of Chapter 23 of the Illinois State Bar Statutes for 1935, it became and was the obligation of the General Assembly of the State of Illinois to appropriate to the Department of Public Welfare money to be paid to counties giving relief under the provisions of the Act; that money was appropriated by the legislature to the respondent for that purpose. The complaint further alleges that of said sum of money so appropriated by the General Assembly, the County of Cook became and was entitled to an amount of $48,139.00 from the equalization fund and $49,750.00 from the general fund appropriated to Public Welfare, making a total of $97,889.00. It is further charged that this last sum of money, under and by virtue of the provisions of the Act, became and was payable to the claimant for relief given by the claimant for the period from January 1st, 1933 to June 30, 1933, on the ground that claimant had met the standards of administration set out by the Department of Public Welfare, and that each and every thing necessary to be done by the claimant to entitle it to said fund had been done, except that during the period above set out, the claimant was operating under financial stress due to an unprecedented failure of tax collections; that the payrolls of the employees of the claimant and bills for services rendered and materials furnished to claimant were not met or paid promptly and in man;*- instances were delayed for a period of as much as eight months.

It is further charged that during that period mothers’ pension checks payable to pensioners from that fund were likewise delayed, and in some cases'were not given out until several months after the period for which the pension check was payable; that the checks were distributed and paid out for that period after that period,. in accordance with payrolls submitted by the claimant to the Department of Public Welfare, to which payrolls the claimant asked the State of Illinois to look for verification.

It is also charged that due to this delay the amount of money appropriated by the General Assembly as to the proportionate share of the claimant of said total appropriation was not claimed by the claimant herein until such a time as the above proportionate share was transferred back by the respondent from the fund for mothers’ relief pension to the general fund of the respondent. Claimant further states that it was informed by the respondent, through its Department of Public Welfare, that this claim must be filed with this court.

A stipulation of facts was entered into which provided as follows:

“The 57th General Assembly of the State of Illinois appropriated to the Department of Public Welfare of the State of Illinois the sum of $1,000,000.00 for the 1931-1933 biennial to be paid to counties giving relief to mothers under the provisions of an Act entitled “An Act to provide for the partial support of mothers, and for the probationary visitation, care and supervision of the family for whose benefit such support is provided,” approved June 30, 1913, as amended. (Stipulation, pages 1 and 2.
“Thereafter, pursuant to said statute-, the Department of Public Welfare, from said appropriation, apportioned and allocated to the County of Cook, claimant, for the period between January 1, 1933 and June 30, 1933, the sum of $97,889.00. ($48,139.00 from the Equalization Fund and $49,750.00 from the General Fund.) (Stipulation, page 2, paragraph 3.)
“In conformity with the standards of administration set by the Department of Public Welfare, the County of Cook gave relief to mothers under the said statute for the period from January 1, 1933 to June 30, 1933, in the sum of $485,697.50, but did not make such payments until after September 30, 1933, due to the inability of the County of Cook to collect taxes due it. (Stipulation, page 2, paragraphs 4 and 5.)
"In December, 1933, itemized statements of the moneys paid out by the County of Cook under said statute were certified to the State Department of Public Welfare for the quarter commencing January 1, 1933 and ending March 30, 1933, and for the quarter commencing April 1, 1933, and ending June 30, 1933; said statements show a total expenditure of $485,697.50 by the County of Cook for the period from January 1, 1933 to June 30, 1933; the said statements meet all the requirements of the State Department of Public Welfare. (Stipulation, page 2, paragraph 6.)
“On September 30, 1933, the appropriation to the State Department of Public Welfare lapsed, and on that date there was remaining in the said appropriation an unexpended balance of $166,001.09. (Stipulation, page 3, paragraph 7.)
“The amounts allocated to the claimant under the provisions of the above statute for the quarters ending March 30, 1933, and June 30, 1933, (i. e., the period from June 1, 1933, to June 30, 1933) did not exceed fifty per cent, of the expenditures of. the County of Cook for each quarter respectively; and the total amount allocated to the County of Cook for the period from January 1, 1933, to June 30, 1933, did not exceed fifty per cent, of the total amount expended by the County of Cook for said period. (Stipulation, page 3, paragraph 8.)
“No warrant was, or has been, issued to the County of Cook, and no payment has been made to the County of Cook of the said sum of $97,889.00, or of any part thereof. (Stipulation, page 3, paragraph 9.)

The pertinent provisions in the Act of 1913, as amended, found in Section 16a thereof (Chap. 23, Sec. 338a, Illinois Revised Statutes, are as follows:

“The County Treasurer * * * shall certify to the Department of Public Welfare an itemized statement * * * of the money paid out in accordance with the provisions of this act during each quarter" etc.

We construe the word “during” as used in this connection, to mean “for”. From the stipulation of facts it would appear that the County of Cook had done all that it was required to do, and but for the financial stress prevailing, the County of Cook would have collected its taxes, paid the mothers’ pensions in the normal course, and applied for and received contributions from the State before the lapse of the appropriation; that pursuant to the statute, the State Department of Public Welfare allocated to the county of Cook the sum of $97,889.00, and it was through no fault of anyone that the payment was not made prior to the lapse of the appropriation.

The Attorney General does not dispute nor deny this claim, and pursuant to the stipulation entered herein, and because the County of Cook had done all that it was required to do, an award is recommended to the Legislature in the sum of Ninety-seven Thousand Eight Hundred Eighty-nine Dollars ($97,889.00) in favor of the County of Cook, to repay to it a sum it was justly entitled to.


author: Mb. Justice Yantis

text:
    (No. 3565
    Harry J. Laughlin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

    Karns & Bandy, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

The complaint herein represents that claimant while he was employed by respondent as an Illinois State Highway Maintenance Policeman on December 11, 1938, was called to the scene of an accident on U. S. Route No. 40 between East St. Louis and Collinsville; that while engaged with others in the task of removing a wrecked automobile, he was struck by another car driven along the highway at an excessive rate of speed by one Henry Paoli. The complaint further recites that claimant sustained a fractured left thumb, cuts- upon the face and head and a fractured left knee and leg resulting in an almost total impairment in the use of such leg; that hospitalization and medical treatment have been furnished by respondent; that claimant has made investigation and has found that Henry Paoli is financially insolvent and carried no liability insurance at the time of the accident in question.

Claimant does not attempt to conform to the recitals necessary to afford redress under the terms of the Workmen’s Compensation Act of Illinois, but asks for an award of Seven Thousand Five Hundred ($7,500.00) Dollars from respondent, in equity and good conscience. No Bill of Particulars is attached to the complaint.

The complaint was filed December 9, 1940.

The Attorney General has filed a motion on behalf of respondent to dismiss the complaint and supports such motion with an affidavit signed by Mr. M. K. Lingle, Engineer of Claims, of the Department of Public Works and Buildings. The affidavit discloses that following claimant’s accident on December 11, 1938, claimant was paid full salary during his periods of temporary total disability, the payment for the tenth and last period being made on August 15, 1939, being for the period ending August 6, 1939; that claimant returned to work on August 7, 1939 and was not absent from duty as a result of such injury at any time during the succeeding year following August 7, 1939.

There is no provision of law under which the Court of Claims could justify an award to claimant except under the terms of. the Workmen’s Compensation Act. Claimant fails to bring himself within the terms of the latter act, and there is therefore no basis upon which an award in his favor can be made for the injuries of which he complains. Recovery for injuries suffered by one while actively engaged in the performance of his duties as an employee of the State, is provided for under Section 6 (6) of the Act creating the Court of Claims (Laws 1917, page 325). Awards .made under such authority are to be made in accordance with the rules prescribed in the Workmen’s Compensation Act. Section 24 of that Act provides that notice of claim for damages must be given to the employer within six months, and that application for compensation or award must be filed within one year after the accident complained of or within one year after the last payment of compensation that has been made by the employer for injuries sustained in such accident.

The complaint herein filed is insufficient on its face, and the recitals therein and the date of filing such complaint show no award could be made under the terms of the Workmen’s Compensation Act.

The motion of the Attorney General is therefore allowed and the claim dismissed.


text:
    (No. 3435
    W. E. Snyder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

    Sumner & Lewis, 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:

On September 20th, 1939 and for several weeks prior thereto, the claimant W. E. Snyder, was employed by the respondent as a laborer in Unit C of the day labor organization of the Bureau of Construction, Department of Public Works and Buildings, Division of Highways.

On the last mentioned date, while in the course of his employment, the claimant went to the repair shop of Unit C in the city of Lawrenceville for the purpose of grinding a chisel with which he had been working. There was a box of dynamite caps either on a work bench in the shop, or on a shelf above the bench. Claimant plugged in an electric cord leading to the grinder, and as soon as the grinder began operating, touched the chisel to the grinder. At that instant the dynamite caps exploded through some unknown cause, and the claimant sustained the injuries for which he seeks compensation in this case.

He was immediately taken to the office of Dr. Kirkwood in Lawrenceville who administered first aid, and was then taken in an ambulance to the Olney Sanitarium Clinic at Olney, where he was attended by Dr. Lawrence F. Weber and Dr. H. N. Fisher, both of Olney. He remained in the Sanitarium until September 28th, when he returned to his home in Lawrenceville but remained under the care of the Sanitarium doctors until November 27th, on which date he was discharged.

Claimant’s wages were fifty cents (50c) per hour for not to exceed forty (40) hours per week. In the employment in which he was engaged it was customary to operate for a part of the whole number of working days in each year.

As the result of the explosion, the claimant sustained numerous small puncture and burn wounds of the entire face, arms and hands, the right side of his body, and the right thigh. Both eyes had small pieces of foreign bodies in them. There were several lacerations about one-fourth inch long on the right side of the face and neck, with pieces of metal from the exploding caps protruding. There was also a laceration of the right forearm and pieces of metal were protruding from many of the wounds.

On November 30th Dr. Weber reported as follows:

“All pieces of foreign bodies removed that were found. Wounds cleansed with soap and water. Larger lacerations bandaged. 1500 units antitoxin serum with perfringene given and another in 24 hours. Put to bed under tent with lights. Dr. Fisher called to see eyes. Each day and at subsequent office visits as further foreign bodies were found they were removed. On some! it was necessary to use local anaesthetic. There still remain some buried foreign bodies of the hands and arms, but in my opinion they cause little further .trouble. He also has some limitation of flexion of the index finger of the right hand. There will be some permanent scars of the hands' and face, but do not believe there will be any permanent disability.”

Although claimant originally contended that as the result of the accident in question, he had sustained a loss of the sight of the right eye, he now admits that there is no evidence in the record to sustain such contention, and concedes that he is not entitled to any compensation for the partial loss of the sight of the right eye, and limits his claim to compensation for temporary total incapacity, permanent partial loss of the use of the index finger, compensation for disfigurement, and reimbursement for expenses necessarily incurred in going to and returning from the hospital at Olney, Illinois for medical attention.

Claimant personally appeared in court for examination relative to the nature and extent of the disfigurement sustained by him.

Upon consideration of all of the evidence in the record, we find as follows:

That on September 20th, 1939 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, that on said date claimant 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 the claimant for the year preceding the accident, computed in accordance with the provisions of Section 10 of such Act, were $800‘.00, and his average weekly wage was $15.38; that claimant at the time of the injury was 43 years of age, and had no children under the age of sixteen years; 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 his injury as aforesaid to and including November 27th, 1939, to wit, for a period of nine and five-sevenths weeks; that he also suffered the permanent loss of five per cent (5%) of the use of the index finger of his right hand; that he has also sustained serious and permanent disfigurement to the hand, head, face and neck; that he was compelled to and did expend the sum of Eleven Dollars ($11.00) for traveling expenses in going to and returning from the hospital at Olney for medical attention; that the sum of Eighty Dollars and Fifteen Cents ($80.15) has been paid by the respondent to apply on the compensation due the claimant as aforesaid.

We further find that the claimant is entitled to have and receive from the respondent the sum of Eight Dollars and Forty-six Cents ($8.46) per week for nine and five-sevenths (9 5/7) weeks’ temporary total disability, in accordance with the provisions of paragraphs (b) and (L) of Section eight (8) of the Workmen’s Compensation Act; also the further sum of $8.46 per week for a period of two weeks for the permanent loss of five per cent (5%) of the use of the index finger of the right hand, in accordance with the provisions of paragraph E-2 of Section eight (8) of such Act; also the further sum of Three Hundred Fifty Dollars ($350.00) for serious and permanent disfigurement to the hand, head, face and neck; also the sum of $11.00 in repayment of the amount expended by him for traveling expenses as aforesaid — making in all the sum of Four Hundred Sixty and 10/100 ($460.10) Dollars, from which must be deducted the sum of $80.15 heretofore paid by the respondent as aforesaid, making a net amount remaining due the claimant of Three Hundred Seventy-nine and 95/100 ($379.95) Dollars.

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

Award is therefore entered in favor of the claimant, W. E. Snyder, for the sum of Three Hundred Seventy-nine and 95/100 ($379.95) Dollars.

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 1st, 1939 (Session Laws 1939, page -117); and being, by the 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. 3332
    Catherine Burzych, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 8, 1941.

      Rehearing denied May 12, 1941.

    Max J. Becker, for claimant.
    George F. Barrett, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant alleges that on the 13th day of April, 1938, and for some six or seven years prior thereto, she was employed as an attendant at the Chicago State Hospital, and on that date, while taking care of a patient, she was kicked in the abdomen resulting in an operation by which a fibroid tumor and a Group 3 cancer of the cervix were removed and subsequent x-ray treatments were given her for the cancerous condition, and she finally returned to work on July 11, 1938. She also complained of burns on her legs received in the course of treatment which caused certain injuries described in claimant’s statement. The testimony showed that she was employed in an occupation which comes under the Workmen’s Compensation Act. The claimant contends that she reported the accident to her immediate superior, Miss Stell Oxford, but Miss Oxford’s testimony was very vague and indefinite. Claimant went to her home the day after the accident and for some time thereafter was treated by a physician not connected with the Chicago State Hospital, and to whom she paid $18.00 for six visits. It was reported to the hospital on April 19, 1938 that claimant was ill from uterine bleeding. She did not return to work until May 23, 1938, but was paid her regular-monthly salary of $52.92 for the month of April, and it was agreed by counsel on the taking of the testimony that of this sum $23.92 was paid her for that part of April during which she did not work. Claimant returned to work on May 23, 1938, and worked until June 15, 1938, when she was admitted to the employees’ hospital at the Chicago State Hospital on her complaint 'of vaginal bleeding and abdominal pain of several months ’ duration and her statement that she had been kicked on April 13, 1938.

Claimant was paid for the period during which she worked from May 23rd to the time of her admission to the hospital.

Claimant’s contention is that on the day she was injured she went to take care of a patient, and was kicked in the abdomen by the patient who was lying on a bed; that said kick sent claimant reeling backward for twenty feet.

Dr. Arthur H. Schoenwetter. testified that he examined the claimant on January 24, 1939. Dr. Scheffler also testified.

Claimant is asking for compensation for 25% loss of use of each of her feet, which is equivalent to $621.68 plus $530.22, which represents compensation during the 402 days that she did not work because of her incapacity, plus $18.00 for ointments, or a total of $1,169.00. Of this sum $23.92 has been paid, leaving a balance of $1,145.08.

Considering the record in its entirety, we are of the opinion that the State had due notice and proper demand for compensation has been made. The medical testimony as to the tumor and cancer is not at all satisfactory.

A lengthy hypothetical question was propounded to each of the doctors. Dr. Schoenwetter in response to the hypotketical question as to whether he had an opinion concerning the facts presented on the question, testified that he did have such an opinion based upon a reasonable degree of medical certainty. He testified and said: “Well, an injury to a tumor causes hemorrhage into that tumor; hemorrhage and swelling of any part. As the hemorrhage and swelling aggravate it, it becomes enlarged, and becomes larger, because there is hemorrhage into the tumor from bleeding. Immediate pain, and immediate vaginal hemorrhages will also aggravate the cancer of the cervix, due to the fact that bleeding, intra-uterine bleeding comes into the cervix. The cancerous cells cause more destruction to the part from time to time, and in that region, trauma, plus a factor of a weakened condition, and hemorrhage would make it more susceptible.” This doctor also stated that the trauma described in the hypothetical question might or could aggravate the fibroid tumor, and this physician was of the opinion that this fibroid tumor and cancer were in existence on April 13, 1938.

The claimant sustained injuries because of burns received while she was in the hospital after she had been operated on for the removal of the cancer and the tumor, and compensation is sought for this reason. It is a well known fact that a tumor and a cancer are ailments which are progressive in their nature.

Dr. Scheffller also testified and he positively stated that her illness after April 13, 1938 was the result of the fibroid of the uterus and the carcinoma of the cervix and not due to the kick. The lesion which was found in the operation had evidently been there for a period of at least months or a year. The kick was purely incidental in bringing attention to the presence of such lesion, and the bleeding was caused by a fibroid tumor in the uterus.

The medical testimony is not sufficient upon which an award could be based.

In addition to this, there is a certificate of Dr. Edward F. Dombrowski, Managing Officer of the Chicago State Hospital, given under date of December 22,1938. He quoted from the history obtained from the claimant herself at the time of her first admittance to the hospital, and said that she had stated that about three months prior to the admittance she was struck in the abdomen by an inmate of the institution, but there is no record of any injury report having been made at that time. Following this injury she went off duty and was under the care of a private physician for a period of time not known to this doctor and until the "bleeding stopped. Without any further injury, the bleeding commenced again in May. This report states that at the time of the admission of the claimant to the hospital, an examination revealed the presence of a large fibroid uterus and a lesion of the cervix of the uterus, suggesting the possibility of a cancer; that there was no visible evidence of trauma to the abdominal wall. On August 6,1938, the operation was performed, and a tumor of the uterus was removed, and a Group 3 cancer of the cervix was found, and because of the patient’s weakened condition, she was given several transfusions, and was discharged from the hospital on October 24, 1938.

The medical testimony in this case on the question of cancer and tumor is not sufficient upon which we can base an award. Therefore, nothing can be allowed for the ointment that she purchased and nothing can be allowed for the burns to her legs, which were caused by the treatment of the tumor and the cancer. We feel, however, that the State did have sufficient notice for claim for compensation for the seven weeks that elapsed following the time that she went to her home and left her employment. We, therefore, make an award for seven weeks at $9.21 per week, being one-half of her weekly wage of $18.42, or $64.47, plus the sum of $18.00, being the amount she paid to a private physician, or a total award of $82.47, less $23.92, an overpayment, or $58.55.

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 lr 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 Revenue Fund in the manner provided by the foregoing Acts.


text:
    (No. 3293
    Tillman Braddy, by Amanda Angelmire, His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1941.

      Rehearing denied May 13, 1941.

    Lee Ensil, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant, a minor, thirteen years of age, by Amanda Angelmire, his mother, and next friend, filed his complaint in this court asking for the sum of $10,000.00 in damages fdr personal injuries.

In brief, the complaint charges that on January 30, 1938, the claimant, was on U. 8. Highway 30 near Joliet, Illinois; that he was standing on the right-hand side of an automobile and was about to enter the same; that his mother was at the steering-wheel; that a car owned by the State of Illinois, Department of Conservation, was negligently and carelessly operated so as to strike the claimant, bruising him severely. The claimant suffered a fracture of his right leg. He was taken to a hospital and remained in a cast for six weeks. _ He also, charges a permanent injury to this leg, and that he has expended the sum of $131.04 in hospital and .doctor bills on account of this injury.

The claim is predicated upon the theory that the State of Illinois is liable for the negligent acts of its agents.

This court has repeatedly held that the doctrine of respondeat superior does not apply to the State and the State is not liable for injuries to the person caused by the negligent or wrongful acts of its officers, agents or employees.

Harmon vs. State, 9 C. C. R. 26;
Curry vs. State, 9 C. C. R. 6;
Boyd vs. State, 9 C. C. R. 79;
Cavatio vs. State, 9 C. C. R. 249;
Powell vs. State, 9 C. C. R. 314;
Jenkins vs. State, 9 C. C. R. 439;
England vs. State, 9 C. C. R. 59.

This court has also held that it has jurisdiction to recommend an award only where the State would be liable in law or in equity in a court of general jurisdiction, if it were suable.

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

The Attorney General has filed a motion to dismiss and for the reasons herein announced that motion must be sustained. Cause dismissed and award denied.


text:
    (No. 2568
    Alvin G. Caesar and Stella Caesar, as Joint Tenants and Not as Tenants in Common, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1941.

    F. J. Tbcklenburg, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Since September 30, 1929, the claimants, Alvin G. Caesar and Stella Caesar, have been the owners as joint tenants of the following described property, to wit: Lot Six (6) in Block Six (6) in “Twelve Oaks”, in the City of Belleville, County of St. Clair and State of Illinois, according to the plat thereof recorded in the Eecorder’s Office of said St. Clair County (except a small triangular tract along the south side thereof).

On December 4, 1926, the Board of Supervisors of St. Clair County adopted a resolution selecting a system of State-Aid roads in said County, which said resolution was approved by the Department of Public Works and Buildings of the respondent on January 7, 1927.

Thereafter said Board of Supervisors selected as a part of said State-Aid system, a certain highway which extended in an easterly and westerly direction along the south property line of the claimants ’ property, and which was laid out over a tract of land which had been previously owned by the Southern Traction Company, but was not being used for right-of-way purposes.

On December 20, 1933, the said Department of Public Works and Buildings awarded a contract for the construction of that part of said State-Aid Road which extended along the south line of claimants’ lot, which said road thereafter was known as S. B. I. Route No. 13.

Said S. B. I. Route No. 13 was constructed in 1934, and in the construction thereof, there was a grade separation over the tracks of the Illinois Central Railroad Company. In connection with such grade separation, a viaduct was constructed over such tracks, with an embankment leading thereto, which started at grade near the center of Fifteenth Street and rose gradually to meet the west end of the viaduct, at which point the elevation was 22 feet above the level of the natural ground. At the east end of the claimants’ lot the elevation was 11.3 feet above the level of the natural ground.

The highway right-of-way is 50 feet in width and the surface of the embankment consists of a concrete slab 20 feet in width together with clay shoulders approximately four feet in width adjoining the concrete slab. The embankment slopes at a steep angle to the southerly line of the claimants’ lot.

Claimants’ loti has a frontage of 50 feet on Fifteenth Street, which street extends in a northerly and southerly direction. Such lot is 130 feet in length and there is an alley at the rear thereof. The lot is improved by a five-room frame bungalow with bath, basement and furnace, with a garage near the rear of the lot.

Prior to the construction of the improvement in question, the garage was reached by way of the alley at the rear of the premises, but access to the alley was cut off by the embankment and at the the time of the construction of the highway improvement, the garage was turned around and raised! approximately two feet, doors were cut in the west side thereof and a driveway constructed from the front of claimants’ property along the southerly line thereof to such garage. The cost and expense of raising and turning the garage as aforesaid, amounted to $259.45 and was paid by the respondent.

The paved portion of the highway is approximately thirty feet from claimants’ house. Claimants contend that the fair cash market value of the property has been depreciated by reason of interference with the access thereto, by reason of the discharge of water, debris and mud from the highway thereon, by reason of the vibration resulting from the traffic, which caused the cracking of the walls of the house; by reason of noise and dust; and by shutting off the light, air and view from their premises; — and also contended that they had been put to additional expense in filling up their lot and digging up various flowers and shrubs, and had also suffered the loss of certain grape vines and fruit trees.

The case of Jesse L. Eule, et al, No. 2570, decided at the present term of this court, involved damages to property in the same vicinity, and damaged by the same improvement. The facts in that case are much the same as in the case at bar and what we said in that case with reference to the legal questions' involved, applies with equal force to the present case. In the consideration of that case, we said:

“Claimants’ right of recovery is and must be based upon the provisions of Section 13 of Article 2 of the Constitution of this State which provides that private property shall not be taken or damaged for public use without just compensation.
, “It is well settled that in cases of this kind, that is, in cases where private property is not taken, but is damaged for public use, the proper measure of damages is the difference between the fair cash market value of the property unaffected by the improvement and the fair cash market value thereof as affected by it. Brand vs. Union Elevator Co., 258 Ill. 133; Dept. of Public Works vs. Caldwell, 301 Ill. 342; Dept. of Public Works vs. McBride, 338 Ill. 347.
“It is also well settled that the aforementioned constitutional provision was not intended to reach every possible injury that might be occasioned by a public improvement, and that to warrant a recovery it must appear that there has, been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. Rigney vs. City of Chicago, 102 Ill. 64; I. C. R. R. Co. vs. Trustees of Schools, 212 Ill. 406; Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538.
“Also, in order to warrant a recovery, the damage must be different in kind from that sustained by the people of the whole neighborhood. If it differs only in degree from that suffered in common by the people of the whole neighborhood, the injury is not within the provisions of the Constitution.. City of Winchester vs. Ring, 312 Ill. 544.
“Also, that the opinions of witnesses must be based on such elements as form a proper basis for the establishment of a depreciation in the fair cash market value of the property, and remote speculative or contingent injuries cannot be considered, as such elements are not recognized by the law as elements entering into the damages which may be allowed. That is to say, depreciation in market value will not sustain a claim for damages to land not taken unless such depreciation results from a cause which the law regards as a basis for damages. Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538; Rockford Electric Co. vs. Brownian, 339 Ill. 212.
“Also, that in cases involving damage to land not taken the burden of proof is upon the property owner to prove the damages claimed.
Illinois Power & Light Corp. vs. Barnett, 338 Ill. 499;
East St. Louis Light Co. vs. Cohen, 333 Ill. 218;
Illinois Power & Light Corp. vs. Talbott, 321 Ill. 538.
“In this case there is no question but what the property of the claimant has been depreciated in 'value as the result of the construction of the improvement, and the only question for our determination is the extent to which the property has been depreciated as the result of elements which the law recognizes as proper elements in cases of this kind.
“The following have been recognized as proper elements of damage, to wit:
1. Interference With the Eight of Access.
Rigney vs. City of Chicago, 102 Ill. 64;
Barnard vs. City of Chicago, 270 Ill. 27;
Lydy vs. City of Chicago, 356 Ill. 230.
2. Interference With the Natural Drainage, and Casting Mud and Water Upon the Premises.
Nevins vs. City of Peoria, 41 Ill. 502;
City of Bloomington vs. Brokaw, 77 Ill. 194;
City of Bloomington vs. Pollock, 141 Ill. 346;
Fleming vs. E. J. & E. Ry. Co., 275 Ill. 486.
3. Interference With the Eight to Have Light and Air From the Public Highway Unobstructed By Any Encroachment.
Field, et al. vs. Barling, 149 Ill. 556;
Barnard vs. City of Chicago, 270 Ill. 27;
Gerstley vs. Globe Wernecke Co., 340 Ill. 270.
“In a number of railroad cases our Supreme Court has held that as to abutting property owners, the noise and vibration of passing trains; and the casting of smoke, dust, ashes and cinders upon the premises- in a considerable amount, are proper elements of damage.
Nix vs. C. P. & St. L. Ry. Co., 137 Ill. 141;
C. M. & St. P. Ry. Co. vs. Darke,. 148 Ill. 226;
C. P. & St. L. Ry. Co. vs. Leah, 152 Ill. 249;
I. C. R. R. Co. vs Turner, 194 Ill. 575;
Calumet, etc. Dock Co. vs. Morawitz, 195 Ill. 398;
I. C. R. R. Co. vs. Trustees of Schools, 212 Ill. 406.
“In the case of Aldrich vs. Metropolitan, etc., Elevated Railway Co., 195 . Ill. 456, the railroad did not abut upon the plaintiff’s property, and although some of the counts of the declaration stated a good cause of action, the court held that the evidence failed to show any direct physical disturbance of any right, public or private, which the plaintiff enjoyed in connection with her property, and that the damages which she sustained were of the same kind as those sustained by the general public, and that therefore she was not entitled to recover therefor.
“Our attention has not been called to any case in which noise, fumes or dust arising from the usual automobile traffic upon a State Bond Issue Route have been considered proper elements of damage; — and under the evidence in this case we do not consider them such.”

Three witnesses testified as experts on behalf of the claimants, and stated that in their opinion the fair cash market value of the claimants ’ property prior to the construction of the improvement was $4,275.33; that the fair cash value of the property after the construction of the improvement was $3,500.00; and that the property depreciated in value as the result of the construction of the improvement in question, to the extent of $775.33. No testimony was offered by the respondent on the question of the extent of the damage to claimants’ property.

. The court viewed the premises and we believe that the evidence in the record supports the opinions of the claimants ’ witnesses that the property was depreciated in value as the result of the construction of the improvement in the amount of $775.33.

The evidence shows that the property in question is encumbered by a mortgage to Belleville Savings Bank, Trustee, dated September 30, 1929, securing one note in the principal sum of $3,500.00; that on September 30, 1939, there was due the full amount ojf the principal of such mortgage, and interest in the amount of $105.00; that said mortgage on November 19, 1929, was assigned to Eleanor M. Gundlach, R. F. D., Belle-ville, Illinois, and that she is now the legal holder and owner of said note and the mortgage securing the same.

Award is therefore entered in the amount of Seven Hundred Seventy-five Dollars and Thirty-three Cents ($775.33), payable to Alvin G. Caesar, Stella Caesar, and Eleanor M. Gundlach.


author: Mr. Justice Yantis

text:
    (No. 3370
    William J. Howard, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1941.

      Petition for rehearing denied May 13, 1941.

    Francis C. Blair, for claimant.
    George F. Barrett, Attorney General ; Maurice J. Walsh and Murray F. Milne, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

William J. Howard, Inc., an Illinois corporation with principal offices in Chicago, filed its claim April 8, 1939 seeking an award of Seven Hundred Sixty-six and 12/100 ($766.12) Dollars for alleged loss and damages due to delayed performance in the painting of bridges alleged to have resulted through the fault of respondent.

The claim represents that on February 2, 1937 it entered into a contract with the Department of Public Works and Buildings of Illinois for the painting of four bridges; that the contract contained the following provision under the heading of “Special Provisions”, “Order of Work. No bridge shall be painted until the contractor for Section 2-D has completed the concrete floor slab.”

That the said floor slab so specified in Section 2-D was officially completed by the contractor on August 3, 1938; that prior to the official completion of such floor slab, claimant was informed by letter on July 9, 1938 that the contractor had completed the floor slab on three of the bridges of said project and expected to finish concreting the fourth bridge on July 16, 1938, and that claimant might start its paint crew any time thereafter.

That subsequent to the execution of its contract and after receiving the above letter, claimant began its work on July 25, 1938 and complied with all the terms thereof, and that all the work called for under the contract was completed by it on October 5, 1938; that it thereupon submitted its bill to respondent for Two Thousand Three Hundred Forty-four and 73/100 ($2,344.73) Dollars; that respondent has paid the sum of Two Thousand One Hundred Ten and 26/100 ($2,110.26) Dollars, leaving a balance of Two Hundred Thirty-four and 47/100 ($234.47) Dollars, which has been tendered to claimant, but which the latter has rejected .until its claim for damages and loss under the contract has been determined by the court. The admitted balance of Two Hundred Thirty-four and 47/100 ($234.47) Dollars is not involved in this claim.

Claimant further contends that although its contract provided for no certain date upon which the preliminary work or concrete slab work on bridges should be completed, that nevertheless on October 2, 1936, at which time bids for the several types of work including the painting were submitted and opened, said bids for said sections each contained a stated number of days during which time work covered by each section was to have been completed, to-wit: Section 2-B, 150 days, Section 2-B, 70 days, and Section 2-D, 95 days, or a total of 215 days (approximately seven months); that based upon these statements of time so specified by respondent within which the work to be done prior to the painting was to be completed, claimant was led to believe that respondent proposed to and would accept such bids and would see that such preliminary work prior to the painting was started and progressed in accordance with stipulated time periods, so that all slab structure and concrete slab work would be completed in ample time for claimant to begin its work under Section 2-P not later than October 1, 1937 and might thus complete its painting work during that year.

Claimant further contends that at the time of the execution of the contract and claimant’s completion thereof, the union scale of Journeymen Painters in the Springfield District was $1.25 per hour, and that claimant’s contract price was figured on that basis; that at the same time the rate in the Chicago District was $1.66 2/3 per hour; that during the month of January, 1938, a new rule was adopted by such union that regardless of local affiliation, no journeyman painter would be permitted to work in excess of thirty (30) hours per week and in accordance with the rules adopted by the union to work within the United. States, and that contractors would have to pay the highest scale provided by the local union nearest the site of the work or within whose jurisdiction the contractor’s main office was located. That on November 27, 1936 respondent rejected the bids previously submitted on substructure work (Section 2-B), and that new bids on such substructures were not received by respondent until January 8th, 1937, and the contract therefor was not executed until January 18, 1937, thereby causing a delay of over three and one-half (3%) months in the commencement of such substructure work; that claimant did not know of such new bids and the resultant delay, until long after its contract for painting had been accepted by respondent; that such substructure work was not actually begun until March 8,1937 and was not completed until November 15, 1937, being a period of two hundred fifty-three (253) days from the commencement of the work and ninety-eight (98) days after the time granted by extension; that such delay was caused by respondent’s failure to secure the necessary right-af-way for the completion of such work.

The claim further recites that claimant is- informed and believes that the instructions given by respondent to the contractor for substructure work specifically provided that the respondent should not be liable in damages to the contractor for any delay or failure to secure proper right-of-way necessary for the commencement or completion of his section of the work, but that no such instructions or reservation was given or made by respondent in accepting* the bid of claimant or others on other sections of such project; that because of the delay to secure right-of-way, your claimant although at all times ready and willing during the year 1937, could not commence its work under Section 2-P of said project until July 25, 1938, being a period of six hundred sixty-one (661) days (1 yr. 10 months.) after the opening of the bids, on said project, and a year and six months after such contract was awarded to claimant; that such lapse of time was unnecessary, and unreasonable and not intended or contemplated by claimant or respondent at the time its contract was entered into, and that such delay resulted in the damages stated; that the delay which, prevented claimant from commencing its work until July 25, 1938, compelled it to pay $1.66 2/3 per hour for Union labor employed instead of $1.25 per hour; that in addition, it was allowed to work its men only six hours per day instead of eight hours as had been the rule of the Union prior to January, 1938; that the delay in time also compelled claimant to employ men from the Springfield District, who, because of their lack of training', had to be trained by claimant on the job.

The Bill of Particulars recites the specific damage as the difference between $1.66 2/3.per hour and $1.25 per hour for 1,527 man hours — $636.25. Insurance and Social Security on $636.25 increased wages — $129.87—total amount of claim, $766.12.

Respondent’s position is that there was no undue or unreasonable delay in the prior construction work; such delays as took place were provided for by the contract and that there is no proof in the record establishing that the greater expenses incurred by claimant were caused by any delay which did take place; and further that claimant should have protected himself against such damage as now complained of by insisting on a provision in the contract to protect it.

Before claimant could perform the painting work, required under its contract, it was necessary that all construction and concrete work should be finished. The preliminary contracts for the latter work had protecting provisions therein against delays in obtaining right-of-way. No commencement or final date was fixed for the commence of work by claimant under its contract, other than the following provision: “Order of work. No bridge shall be painted until the contractor for Section 2-D has completed the concrete floor slab.”

It appears from the record that claimant was notified when the preliminary work was out of the way and the time had arrived at which claimant could begin his work. There was no provision in the contract by which he could anticipate protection against the raise in wage incident to a change of union scale of pay or union change in working hours. Any damage which claimant suffered resulted directly from such changes, and not from any violation of the terms of the contract by the State.

“Where a contract provides that certain contract work shall not commence until a preceding contractor has progressed to a certain point in construction, the subsequent contractor cannot claim damages caused by delay in erection where the State did not cause the delay.”
O’Keefe vs. The State, 10 C. C. 480.

An award is denied and the claim is hereby dismissed.


text:
    (No. 3584
    Insurance Exchange Building Corporation, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1941.

    Pam, Hurd & Reiohmann, for claimant.
    George F. Barrett, Attorney General; James W. Breen, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant filed its claim herein on February 7, 1941, alleging that under date of July 1, 1937 claimant and respondent, through the office of Hon. C. E. Black, then Adjutant General of Illinois, entered into a written lease for certain premises known as 1560 Insurance Exchange Building, Chicago, for a term of two years from date, at an annual rental of Seven Hundred Nine and 50/100 ($709.50) Dollars, payable monthly, with option for renewal and privilege of cancellation by respondent on thirty days’ notice. The Lease was renewed for two years, beginning July 1, 1939 and was cancelled as of December 16, 1940. In the final settlement of accounts, it appears from a report by Hon. Leo M. Boyle, now Adjutant General of Illinois, that the monthly rental for the period of July, 1937 in the sum of Fifty-nine and 13/100 ($59.13) Dollars was not paid, and that a bill of Seven and 65/100 ($7.65) Dollars for electricity furnished said quarters at the latter’s expense, also remains unpaid; that the appropriation out of which said payments might have been made has lapsed; that the State of Illinois received the benefit thereof under duly authorized contracts and that the claimant is entitled to payment therefor.

An award is therefore hereby made in favor of Insurance Exchange Building Corporation, claimant herein, in the sum of Sixty-six and 78/100 ($66.78) Dollars.


text:
    (No. 2569
    Alfred H. Oetting, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1941.

    F. J. Tecklenburg, 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:

From the complaint and the amended complaint herein, it appears that claimant is the owner in fee of Lot Sixty-six (66) in Abend’s South Belleville Subdivision in and adjoining the City of Belleville, St. Clair County, Illinois; that said lot is just outside of the city limits of said City of Belleville; that pursuant to a resolution adopted by the Board of Supervisors of St. Clair County at the December, 1926 meeting* of said Board, the public highway adjoining* the aforementioned lot, on the south was designated as a part of the system of State Aid Roads in said County; that thereafter said route was duly accepted by the Department of Public Works and Buildings of the respondent and was known as S. B. I. Route No. 13; that on, to: wit, December 20, 1933, the respondent entered into a contract with certain contractors for the grading of said highway and the construction of a hard-surfaced roadway thereon, as a Federal Aid Project; that in the construction of said hig'hway, the grade thereof along the south side of claimant’s lot was lowered seven (7) feet, and the soil was removed to within one foot of the south property line of said lot; that prior to the time of the grading of said street, same was on a level with the surface of said lot, and that as the result of such grading, the said lot became inaccessible from said street; that the respondent after lowering the grade of the street along the south line of claimant’s property, also lowered the grade and surface of the street on the east side of said lot; — ■ as a result of which the usual means of ingress and egress to and from said lot is obstructed; that the embankment along the north line of said S. B. I. Route No. 13 is being gradually washed away by the rains, and claimant’s property will be further damaged unless a retaining wall is constructed without delay; — all to the damage of the plaintiff in the sum of Two Thousand Dollars ($2,000.00).

The evidence shows that the aforementioned lot of the claimant is located at the northwest corner of the intersection of two highways, one originally known as Eleventh Street, but now known as S. B. I. Route No. 13 (and sometimes as the South Belt Line), and the other known as Charles Street; that said S. B. I. Route No. 13 (Eleventh Street) extends in an easterly and westerly direction along the south side of claimant’s lot; that Charles Street extends in a northerly and southerly direction along the east side of said lot; that there is an alley along the west side of said lot; that claimant purchased said lot in 1928; that such lot is improved by a two-story brick dwelling house which was built over sixty-five years ago and is situated on a hill or knoll; that along claimant’s south property line, at a point fifteen feet west of the house, there are two coal sheds, and at a point twenty feet west of said coal sheds there are four frame garages which extend in a westerly direction to the alley which constitutes the west boundary line of the property.

The residence of the claimant fronts on Charles Street, but the entrance to the coal sheds and garages is from Eleventh Street.

The buildings are so constructed that the south side of the house, as well as the south side of the coal- sheds and garages, are immediately adjoining the property line, that is to say, the house, coal sheds and garages are so constructed that the south side thereof is right up to the north line of S. B. I. Route No. 13.

The evidence relative to the grade of said street prior to the construction of the hard-surfaced roadway thereon, and the extent of the lowering of the grade of such street does not substantiate the allegations of the complaint, but shows that in the construction of said S. B. I. Route the grade of the center line of said street was made one and two-tenths feet lower than it previously had been; that the travelled portion of the roadway was widened, however, and the embankment was extended to within a point four feet south of the claimant’s house, being eight to ten feet closer than it previously had been, so that it appeared that the grade had been lowered considerably more than it actually had been.

The evidence also shows that the grade of Charles Street was lowered to the extent necessary for it to meet the lower grade of said S. B. I. Route.

There is no question but what the construction of said S. B. I. Route interfered to a certain extent with the access to claimant’s property.

The evidence also shows that prior to the construction of said State Bond Issue Route, the claimant received approximately $25.00 per month rent for the residence, whereas subsequent to the construction of said route he received but $18.00 per month; also that prior to the construction of said improvement, each of said garages rented for $2.00 per month, and that subsequent thereto claimant was unable to rent the same.

There was some testimony to the effect that the vibration resulting from the heavy traffic on such State Bond Issue Route caused some damage to the dwelling, and rendered it less desirable for renting purposes.

Claimant’s right to an award is based upon the provisions of Section 13 of Article 2 of the Constitution, which provides that private property shall not be taken or damaged for public use without just compensation. Our courts have held in numerous cases that where property is not taken but is damaged for public use, the correct measure of damages is the difference between the fair cash market value of the property unaffected by the improvement and the fair cash market value thereof as affected by it. (Department of Public Works vs. McBride, 338 Ill. 347; Department of Public Works vs. Caldwell, 301 Ill. 242; Brand vs. Union Elevator Co., 258 Ill. 133.)

Also that depreciation in market value will not sustain a claim for- damages to land not taken, unless it is from a cause which the law regards as a basis for damages. (Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538; Rockford Electric Co. vs. Browman, 339 Ill. 212.)

There is no question but what interference with the means of access to the property, and a decrease in the income derived from the property are elements- to be considered in determining whether there has been a decrease in the fair cash market value thereof. However, the existence of such elements is not conclusive of the right of the claimant to an award, for the reason that notwithstanding the existence of such elements, there may have been no reduction in the fair cash market value of the property. If the construction of the improvement in question has resulted in an increase of the market value of said property, or if the market value thereof remains the same, the plaintiff is not entitled to an award for the reason that the property has not been damaged within the meaning of that word as used in the constitutional provision.

Prior to the construction of the improvement in question, claimant’s property was used for residence purposes only, and it requires no stretch of the imagination to envision a condition where the property as the result of the improvement might produce less income for residence purposes-, but become more valuable for business purposes; — and the controlling factor in this case is whether there has been a decrease in the fair cash market value thereof as- the result of the construction of the improvement.

Claimant produced two witnesses who testified as experts on the question of damages. One witness gave it as his opinion that the property was worth $2,300.00 prior to the construction of the highway, and $1,000.00 after the construetion thereof. Such witness, however, stated that the principal reason for such depreciation in value was the necessity of constructing a retaining wall and fence on the south side of the premises and the moving of the garages and sheds so that access could be had thereto, and stated also that he did not take into consideration the rental value of the residence subsequent to the construction of the highway, as he did not consider that a material point.

The other witness testified that in his opinion the property was of the value of $1,800.00 prior to the construction of the improvements and $1,000.00 subsequent to the construction thereof, and apparently based his opinion largely upon the necessity of constructing a retaining wall.

The respondent produced three witnesses who testified as experts on the question of the valuation of the property prior to and immediately after the construction of the improvement in question. Each of such witnesses gave it as his opinion that prior to the construction of the improvement in question, the property was worth $1,600.00, and that immediately after the construction of such improvement, it was of the same value, that is, that there had been no depreciation in the market value of the property as the result of the construction of such improvement. One of such witnesses had at one time owned the property, and testified that he purchased it and sold it for $1,600.00.

The court viewed the premises, and considering all of the evidence in the record, the testimony of the several witnesses as to values, and the several elements considered by them in arriving at their respective opinions, we cannot say that the claimant has sustained the burden of proof that his property has been damaged as the result of the construction of the highway in question, • and award must therefore be denied.


text:
    (No. 2570
    Jesse L. Rule and Francis M. Rule, as Joint Tenants and not as Tenants in Common, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1941.

    F. J. Tecklenbtjrg, 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:

At the time of the filing of the complaint herein, the claimants, Jesse L. Rule and Frances M. Rule, his wife, were the owners, as joint tenants, of the following described property, to wit: Lot numbered four (4) of block numbered six (6) of “Twelve Oaks,” in the City of Belleville, County of St. Clair and State of Illinois, according to the plat thereof recorded in the Recorder’s Office of said St. Clair County. Such lot has a frontage of fifty (50) feet on Fifteenth Street (which extends in a northerly and southerly direction), is One Hundred Thirty (130) feet in length, and has an alley at the rear thereof.

' On August 2, 1939 the claimants conveyed the above described property by warranty deed to Elizabeth Roedesheimer, but in the deed of conveyance the claimants specically reserved their claim against the State of Illinois for damage to said premises on account of the construction of the highway and embankment described in the complaint herein. Consequently, any award which may be made herein must be made to the claimants, notwithstanding the aforementioned conveyance to Elizabeth Roedesheimer.

On December 4, 1926 the Board of Supervisors of St. Clair County adopted a resolution selecting a system of State-aid roads in said County, which said resolution was approved by the Department of Public Works and Buildings of the respondent on January 7, 1927. Thereafter said Board of Supervisors selected, as a part of said State-aid system, a certain highway which extended in an easterly and westerly direction along the north property line of the claimants’ property, and which was laid out over a tract of land which had been previously owned by the Southern Traction Company but was not being used for right-of-way purposes.

On December 20, 1933 the said Department of Public Works and Buildings awarded a contract for the construction of that part of said State-aid road which extends along the north line of claimants’ lot, which said road thereafter was known as S. B. I. Route No. 13.

Said S. B. I. Route No. 13 was constructed in 1934, and in the construction thereof, there was a grade separation over the tracks of the Illinois Central Railroad Company. In connection with such grade separation, a viaduct was constructed over such tracks, with an embankment leading thereto, which started at grade near the center of Fifteenth Street and rose gradually to meet the west end of the viaduct, at which point the elevation was twenty-two (22) feet above the level of the natural ground. At the east end of the claimants’ lot the elevation was 11.3 feet above the level of the natural ground.

At a point on the highway about fifty-six (56) feet east of the east line of Fifteenth Street a concrete retaining wall was constructed by the respondent. Such retaining wall was approximately fourteen (14) inches in height at the west end thereof and increased in height to eight (8) feet at the east line of the claimants’ lot extended in a northerly direction.

The foundation for the retaining wall approximately coincides with the north property line of claimants’ lot. The main body of such retaining wall is from twenty-two (22) to twenty-four (24) inches north of claimants’ north property line, and extends in an easterly direction to a point twenty (20) feet east of the east lot line, being to the east side of the alley at the rear of claimants’ property, as a result of which access through the alley is entirely obstructed.

Claimants’ lot is improved by a frame five-room-and-basement bungalow, having a bathroom, but no fixtures therein. At the rear of the lot there is a chicken house and outdoor toilet. The dwelling house was constructed in 1924, is located about 8.3 feet south of the north property line; is 38 feet long and 28 feet wide, and has a 7%-foot porch which extends across the entire front of the house. The house is in good condition and is equipped with furnace, electricity, gas and water, and is situated about 24 feet from the concrete pavement.

Claimants contend that by reason of the construction of the improvement in question, access to their premises has been interfered with, the foundation walls of the house have been cracked, whereby the water seeps through; the walls of the house have become cracked as the result of vibration from the traffic; water, slush and mud wash onto the claimants’ premises in wet weather; and in dry weather dust from the highway blows onto the premises and requires them to keep the windows closed, and that by reason thereof, the fair cash market value of their property has decreased Fifteen Hundred Dollars ($1,500.00).

There is little dispute about the facts in the case, and the principles of law covering such facts have been quite well established by repeated decisions of our courts. Claimants’ right of recovery is and must be based upon the provisions of Section 13 of Article 2 of the Constitution of this State which provides that private property shall not be taken or damaged for public use without just compensation.

It is well settled that in cases of this kind, that is, in cases where private property is not taken, but is damaged for public use, the proper measure of damages is the difference between the fair cash market value of the property unaffected by the improvement and the fair cash market value thereof as affected by it. (Brand vs. Union Elevator Co., 258 Ill. 133; Department of Public Works vs. Caldwell, 301 Ill. 342; Department of Public Works vs. McBride, 338 Ill. 347.)

It is also well settled that the aforementioned constitutional provision was not intended to reach every possible injury that might be occasioned by a public improvement, and that to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. (Rigney vs. City of Chicago, 102 Ill. 64; 1. C. R. R. Co. vs. Trustees of Schools, 212 Ill. 406; Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538.)

Also, in order to warrant a recovery, the damage must be different in kind from that sustained by the people of the whole neighborhood. If it differs only in degree from that suffered in common by the people of the whole neighborhood, the injury is not within the provisions of the Constitution. • (City of Winchester vs. Ring, 312 Ill. 544.)

Also, that the opinions of witnesses must be based on such elements as form a proper basis for the establishment of a depreciation in the fair cash market value of the property, and remote speculative or contingent injuries cannot be considered, as such elements are not recognized by the law as elements entering into the damages which may be allowed. That is to say, depreciation in market value will not sustain a claim for damages to land not taken unless such depreciation results from a cause which the law regards as a basis for damages. (Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538; Rockford Electric Co. vs. Browman, 339 Ill. 212.)

Also, that in cases involving damages to land not taken the burden of proof is upon the property owner to prove the damages claimed. (Illinois Power & Light Corporation vs. Barnett, 338 Ill. 499; East St. Louis Light Co. vs. Cohen, 333 Ill. 218; Illinois Power & Light Corporation vs Talbott, 321 Ill. 538.)

In this case there is no question but what the property of the claimant has been depreciated in value as the result of the construction of the improvement, and the only question for our determination is the extent to which the property has been depreciated as the result of elements which the law recognizes as proper elements in cases of this kind.

The following have been recognized as proper elements of damage, to wit:

1. Interfereince With the Right of Access.
Rigney vs. City of Chicago, 102 Ill. 64;
Barnard vs. City of Chicago, 270 Ill. 27;
Lydy vs. City of Chicago, 356 Ill. 230.
2. Interference With the Natural Drainage, and. Casting Mud and Water Upon the Premises.
Nevins vs. City of Peoria, 41 Ill. 502;
City of Bloomington vs. Brokaw, 77 Ill. 194;
City of Bloomington vs. Pollock, 141 Ill. 346;
Fleming vs. E. J. & E. Ry. Co., 275 Ill. 486.
3. Interference With the Right to Have Light and Air Prom the Public Highway Unobstructed By Any Encroachment.
Field, et al. vs. Barling, 149 Ill. 556;
Barnard vs. City of Chicago, 270 Ill. 27;
Gerstley vs. Globe Wernecke Co., 340 Ill. 270.

In a number of railroad cases our Supreme Court has held that as to abutting property owners, the noise and vibration of passing trains and the casting of smoke, dust, ashes and cinders upon the premises in a considerable amount, are all proper elements of damage.

Nix vs. C. P. & St. L. Ry. Co., 137 Ill. 141;
G. M. & St. P. Ry. Co. vs. Darke, 148 Ill. 226;
C. P. & St. L. Ry. Co. vs. Leah, 152 Ill. 249;
I. C. R. R. Co. vs. Turner, 194 Ill. 575;
Calumet, etc. Dock Co. vs. Morawitz 195 Ill. 398;
I. C. R. R. Co. vs. Trustees of Schools, 212 Ill. 406.

In the case of Aldrich vs. Metropolitan, etc. Elevated Ry. Co., 195 Ill. 456, the railroad did not abut upon the plaintiff’s property, and although some of the counts of the declaration stated a good cause of action, the court held that the evidence failed to show any direct physical disturbance of any right, public or private, which the plaintiff enjoyed in connection with her property, and that the damages which she sustained were of the same kind as those sustained by the general public, and that therefore she was not entitled to recover therefor.

Our attention has not been called to any case in which noise, fumes or dust arising from the usual automobile traffic upon a State Bond Issue Route have been considered proper elements of damage; — and under the evidence in this case we do not consider them such.

Three witnesses testified as experts on behalf of the claimants and stated that in their opinion the claimants’ property was damaged as the result of the construction of the improvement in the amount of $1,206.59. Three witnesses also testified as experts on behalf of the respondent and gave their opinion that the property had depreciated as the result of the construction of the improvement in the amount of $700.00.

The court viewed the premises, and considering such view and the testimony of all the witnesses, and the elements considered by them in arriving at their several opinions, we believe that the property of the claimants was depreciated in value as the result of the construction of the improvement in the amount of Seven Hundred Dollars ($700.00), and an award is therefore entered in favor of the .claimants for such amount.


text:
    (No. 3337
    Harry E. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1941.

    George W. Dowell, 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:

For some time prior to and on October 28, 1938 claimant was in the employ of the State of Illinois as a guard at Security Hospital, Menard, Illinois, an institution for the incarceration and treatment of the criminal insane, and was working in the ward known as the violent ward. For more than a year prior to the last mentioned date he was paid $118.75 per month, and in addition thereto was furnished room and board which are considered of the value of $24.00 per month.

On the last mentioned date, about 8:30 o’clock A. M., while the claimant was taking a patient to his cell, the patient turned and struck him forcibly in the face and knocked him against the bars of a cell. The patient was about thirty years of age, over six feet tall, and of powerful build, and the claimant was struck so hard that he was rendered unconscious for about an hour and a half. He was taken to the doctor’s office and was first treated by Dr. Goldstein, a patient at the institution. Thereafter Dr. Dick and Dr. McManus, institution doctors, took over the case. About 11:30 o’clock A. M. claimant was taken to the prison for ah X-ray examination. Claimant was then permitted to go home, and upon his arrival at home, his wife took him to Dr. S. I. Wald who examined him and sent him home to bed, where he remained for five days. He was then taken to see Dr. McManus relative to an operation, but Dr. McManus refused to consent to the operation and said that it was dangerous and might result in more trouble.

Claimant was off duty three months and then went back to work and was given outside work at his former pay.. He was paid in full during the time that he was off duty as aforesaid. On March 25th he was taken sick with the flu and went home and remained in bed until May 2. He was then transferred to Joliet, but his physical condition was such that he was unable to do the work. He gave out on the second day and had to quit. On September 12, 1939 he started work for the WPA at $42.00 per month.

From a report filed by Rodney H. Brandon on March 28, 1941 it appears, however, that during January, 1940 claimant again began work at Menard and continued to work and receive his full pay of $118.75 per month for all of the time up to and including February, 1941, except that he only worked twenty-two days during the month of April, 1940. From claimant’s statement in open court it appears that he is still in the employ of the respondent.

Claimant complains of pain, dizziness in the head, headaches, nervousness and a numb feeling about the point or place of injury to the face, and claims that lifting or stooping* over bothers him, and that he is unable to do the work he was able to do prior to the injury.

Claimant filed his complaint herein on December 27, 1938 and an amended complaint on February 7, 1939. In such amended complaint he asks for compensation under the provisions of the Workmen’s Compensation Act for the following, among other items, to wit: fifty per cent (50%) loss of hearing of the left ear; fifty per cent (50%) loss of sight of the left eye; partial paralysis of the left side of the face; and serious and permanent disfigurement to the head and face.

Claimant’s only right to recover in this case is under the terms and provisions of the Workmen’s Compensation Act, and the only disabilities for which compensation can be paid are those specified in the Act. The evidence fails to show that claimant has sustained the loss of 50% of the hearing* of his left ear, but even if the evidence did disclose such fact, there is nothing in the Compensation Act which authorizes an award for such disability, nor does such Act authorize the payment of compensation solely for a partial paralysis of the face.

The Compensation Act does provide for compensation for the loss of the whole or any part of the sight of an eye, but the evidence in this case does not show any loss of vision and consequently no allowance can be made to cláimant on that account.

Claimant was temporarily totally disabled for three months, but during that time he received payments of salary aggregating the sum of $260.49, which was in excess of the amount he was entitled to receive under the provisions of the Compensation Act.

Aside from the temporary total disability as aforesaid, and for serious and permanent disfigurement to the face, the only disability for which claimant can claim compensation is for permanent disability, either total or partial. There is no claim for permanent total disability, and there is no evidence in the record upon which we can base an award for permanent partial disability.

Section eight (8), Paragraph (d) of the Compensation Act provides as follows:

“If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line ■of employment, he shall, except in the cases covered by the specific schedule set forth in Paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in Paragraphs (b) and (h) of this section, equal to fifty percentum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.”

From the record it appears that for approximately a year prior to March 1, 1941 claimant has earned the same amount which he was earning prior to the accident. The record does not disclose his physical condition during such period, and consequently there is nothing in the record upon which we can base an award for permanent partial incapacity.

Claimant testified in open court and appeared for examination as to the nature and extent of the disfigurement to his face.

Such examination disclosed a sunken left cheek bone, known in medical parlance as a Zygomatic arch, resulting in a marked flatness or depression of that portion of the face; also a scar approximately two' inches in length extending across the left eye brow diagonally down to the left cheek bone.

The aforementioned injury has resulted in an intermittent twitching of claimant’s left eye lid and the muscles of the left side of his mouth, which accentuate the disfigurement.

Upon consideration of all of the facts in the case, we find as follows:

That on October 28, 1938 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant 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 the claimant for the year preceding the accident were $1,713.00, and his average weekly wage was $32.94; that claimant at the time of the injury was forty-eight years of age; and had one child under the age of sixteen years; that all necessary first aid, medical, surgical and hospital services were provided by the respondent, except as to the services furnished by Dr. S. I. Wald; that claimant was temporarily totally disabled from the date of his injury as aforesaid to January 28, 1939, to wit, for a period of thirteen (13) weeks; that he has also sustained a serious and permanent disfigurement of the head and face; that he was compelled to and did incur expenses in the amount of $56.50 for medical services; that the sum of $260.49 has been paid by the respondent to apply on the compensation due the claimant as aforesaid.

We further find that the claimant is entitled to have and receive from the respondent the sum of Fifteen Dollars ($15.00) per week for thirteen (13) weeks’ temporary total disability, in accordance with the provisions of Paragraph (b) of Section eight (8) of the Workmen’s Compensation Act; also the further sum of Six Hundred Sixty-seven and 50/100 Dollars for serious and permanent disfigurement to the head and face, payable in weekly installments' of $15.00; also the sum of Fifty-six Dollars and Fifty Cents ($56.50) for medical services of Dr. S. I. Wald as aforesaid, making in all the sum of Nine Hundred Nineteen ($919.00) Dollars; — from which must he deducted the sum of Two Hundred Sixty Dollars and Forty-nine Cents ($260.49) heretofore paid by the respondent as aforesaid, making a net amount remaining due the claimant of Six Hundred Fifty-eight and 51/100 ($658.51).

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

Award is therefore entered in - favor of the claimant, Harry E. Jones, for the sum of Six Hundred Fifty-eight and 51/100 ($658.51) Dollars, payable as follows:

To the claimant, Harry E. Jones, the sum of Six Hundred Two and 01/100 ($602.01) Dollars.

To the claimant, Harry E. Jones, for the use of Dr. S. I. Wald, the sum of Fifty-six and 50/100 ($56.50) Dollars.

Total, Six Hundred Fifty-eight and 51/100 ($658.51) Dollars.

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 Revenue Fund in the manner provided by the foregoing Acts.