author: Mr. Justice Yantis Mr. Justice Yantis :

text:
    (No. 3425
    Amy Brokmyer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1940.

      Supplemental opinion filed December 10, 1940.

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

delivered the opinion of the court:

The claimant in this case, Amy Brokmyer, resides at Shawneetown, Illinois, and is the widow of Cecil Brokmyer.

The latter was first employed by the State of Illinois, Division of Highways, as a highway maintenance police officer on March 17, 1933. His salary after January 1, 1936, was $175.00 a month, the latter being his rate of pay at the time of his death. Throughout his employment he was assigned to District 13 of the Bureau of Police, with headquarters at DuQuoin.

On the night of November 15, 1939, Officer Brokmyer and Officer Fred Helper were on duty and received information from the city police of Harrisburg that a robbery had been committed by Willard Shockley in Harrisburg. Immediately they began a search for Shockley.

■ The officers learned that Shockley was inside a gas station at the north limit of Carrier Mills, Illinois, with his automobile awaiting repairs. Officer Brokmyer opened the large garage door, entered the garage, approached Shockley, and Shockley shot him.

Officer Brokmyer was transported to the Lightner Hospital at Harrisburg, where he was attended by Drs. N. A. Herrmann and G. R. Johnson of Harrisburg. Officer Brokmyer died November 19, 1939.

At the time Cecil Brokmyer was shot the claimant was dependent upon him for support. At the time of the accident he had a son, William, 22 years of age, who had suffered infantile paralysis during Ms infancy, wMch affected Mm physically and has left Mm at the present time a mental incompetent, and who was totally and permanently dependent on the claimant. The affliction and deficiency of the young man are obvious to a casual observer.

Cecil Brokmyer was paid full salary at the rate of $175.00 a month from the timé of the accident on November 15 until the time of Ms death on November 19, and all hospital and medical expense in connection with this case in the sum of Two Hundred Forty-six Dollars and Eleven Cents ($246.11) has been paid by the Highway Division.

Upon consideration of the facts in the record we find the following:

That on November 15, 1939, claimant’s intestate and re-' spondent were1 operating under the provisions of the Workmen’s Compensation Act of this State'; that on said date Cecil Brokmyer sustained accidental injuries which arose out of and in the course of his employment from which he died November 19, 1939; that notice of such accident was given to respondent and claim for compensation on account thereof was made within the time required by the provisions of the Workmen’s Compensation Act.

That the necessary first aid medical, surgical and hospital services were provided by respondent and wages in full paid to date of death.

That at the time of the accident in question claimant was forty-eight years of age and that his wife, the claimant herein, and their son, William Brokmyer, were both totally dependent upon him for support.

That the earnings of the claimant during the year next preceding Ms injury were Twenty-one Hundred Dollars ($2,100.00) and Ms average weekly wage was Forty Dollars and Thirty-eight Cents ($40.38).

That under the provisions of Section 7 (a) of the Workmen’s Compensation Act claimant is entitled to receive from respondent payment of a sum equal to four times the annual wages of her husband, but not to exceed $4,000.00; that payment thereof shall be made in weekly installments which are increased, under the provisions of Section 8, Sub-section 1, of the Act (as amended) to a maximum of Sixteen Dollars and Fifty Cents ($16.50) per week. That Twenty-six (26) weeks have elapsed between November 19, 1939, and May 13, 1940, and the sum. of Four Hundred Twenty-nine Dollars ($429.00) has accrued therefore, to which claimant is entitled at this time.

An award is therefore made in favor of claimant, Amy Brokmyer, by reason of the dependency of herself and adult dependent son, William Brokmyer, in the sum of Four Thousand Dollars ($4,000.00), of which Four Hundred Twenty-nine Dollars ($429.00) is payable instanter and the balance of Three Thousand Five Hundred Seventy-one Dollars ($3,571.00) is payable in weekly installments of $16.50 per week, commencing as of May 20, 1940.

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

Supplemental Opinion.

By

Mr. Justice Yantis :

This matter now again comes before the court upon the petition of Ella May Phillips, Conservator of William Brokmyer, incompetent, and it appearing to the court that an award in the sum of $4,000.00 was hereinbefore entered in this cause on May 15, 1940, in favor of Amy Brokmyer, by reason of the dependency of herself and adult son, William Brokmyer. And it further appearing that of said award $429.00 was payable instanter and the balance of $3,571.00 was payable in weekly installments of $16.50 per week, commencing as of May 20, 1940, and further that the aforementioned claimant, Amy Brokmyer, subsequently on September 10, 1940, died, leaving said physically and mentally incompetent son, William Brokmyer, surviving. And it further appearing that said petitioner herein, Ella May Phillips, has been duly appointed Conservator of said William Brokmyer by the County Court of Gallatin County, Illinois.

And it further appearing that said award originally entered herein was granted for the benefit of both the surviving widow and incompetent and dependent child of Cecil Brokmyer, the court now finds that said payments of $16.50 per week should be continued for the benefit of said William Brokmyer under the provisions of Section 7 (a) of the Workmen’s Compensation Act of Illinois.

It is Therefore Hereby Ordered that the payment of $16.50 per week heretofore payable for the use of Amy Brokmyer and William Brokmyer, be resumed and continued to Ella May Phillips as Conservator for the said William Brokmyer, for the use of the said William Brokmyer.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 3469
    Edith Roberts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1940.

    Joseph Sam Perry, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Mrs. Edith Roberts, claimant in this case, resides at 504 Kenilworth Street, Villa Park, Illinois. She is the widow of Eugene R. Roberts, who died February 18, 1940. At the time of his death, Mr. Roberts had the claimant and three children dependent on him for support. One of the children at that time Eugene Roberts, Junior, was 16 years of age. The two other children, Joyce Roberts and Russell Roberts, were 10 years and 14 years of age, respectively, at' the time of Mr. Roberts death.

Eugene Roberts was first employed by the Division of Highways as an Illinois State highway maintenance police officer on August 5, 1937. He was employed in that capacity from that date until the date of his death at a salary of $175.00 a month.

February 17, 1940, Police Officers Eugene Roberts and Joseph K. Baker were engaged in weighing trucks at a scale station of the Division located on U. S. Route 34 two miles east of S. B. I. Route 47 about 6:55 p. m. The officers found a truck as over weight. While Officer Baker was preparing a ticket in the scale house, a west bound truck stopped near the scale house on the west bound lane and Officer Roberts stood at the south side of the truck on the inside of the pavement adjacent to the east bound lane and conversed with the driver of the truck. As the truck drove away, Officer Roberts walked on to the east bound lane, where he was struck by an automobile being driven by Mr. Alexander Certik, who resides at the Y. M. C. A. in Galesburg, Illinois. Mr. Certik stated that he reduced speed from about 50 miles an hour to about 40 miles an hour immediately before his automobile struck the officer.

Officer Roberts was transported by ambulance to St. Joseph Hospital in Aurora, where he remained under the care of Dr. Purvey. February 20, Dr. Purvey reported to the Division:

“Skull fracture probably in frontal or temporal regions. Fractures of both bones of lower right leg — comminuted. Compound fracture of both bones of left lower leg. Treated for shock and cerebral edema. Never regained consciousness. Expired 3:16 A. M., February 18.”

From the record we find: that on February 17th, 1940 claimant’s intestate and respondent were operating under the provisions of the Ilinois Workmen’s Compensation Act; that on said date said Eugene Roberts sustained accidental injuries which arose out of and in the course of his employment, from which he died February 18, 1940.

That necessary first aid and hospital care were given by respondent and the latter has paid all wages due to date of death.

That at the time of said accident, said employee was the father of Joyce Roberts, 10 years of age; Russel Roberts, 14 years of age, and Eugene Roberts Jr., 16 years of age, all of whom, together with his wife Edith Roberts were dependent upon said employe, Eugene Roberts. That his earnings for the year imediately preceding’ said accident were Twenty One Hundred Dollars ($2100.00) and his average weekly wage was Forty Dollars and Thirty-eight Cents ($40.38).

That under the provisions of Section 7 (a) of the Workmen’s Compensation Act claimant is entitled to receive from respondent payment of a sum equal to four times the annual wages of her husband but not to exceed Forty Eight Hundred Dollars ($4800.00) as per section 7 (h) 3 of the Act, there being two dependent children under 16 years of age; that payment thereof shall be made in weekly installments which are increased under the provisions of Section 8- subsection 1 of the Act as amended and under Section 8 (j) 3 to a maximum of Seventeen Dollars and Sixty Cents ($17.60) per week.

That Twelve weeks have elapsed between February 18, 1940 and May 13, 1940, and the sum of Two Hundred Eleven Dollars and Twenty Cents ($211.20) has accrued to the latter date, to which claimant is entitled at this time.

An award is therefore made in favor of claimant, Edith Roberts by reason of the dependency of herself and her three children above named, in the sum of Forty Eight Hundred Dollars ($4800.00), of which Two Hundred Eleven Dollars and Twenty Cents ($211.20) is payable instanter and the balance of Four Thousand Five Hundred Eighty-eight Dollars and Eighty Cents ($4588.80) is payable in weekly installments of Seventeen Dollars and Sixty Cents ($17.60) per' week commencing as of May 20, 1940.

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 Moneys Hntil 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 terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.'


author: Mr. Justice Linscott

text:
    (No. 2472
    Orchard Theatre Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1940.

    John L. Smith, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant alleges that on or about May 21, 1934 it paid to the Secretary of the State of Illinois the sum of $10.00 in payment of Franchise Tax for the period beginning July 1, 1934. It also alleges that it was duly incorporated under the laws of the State of Illinois; and that on June 27, 1934 the Secretary of State issued a certificate of voluntary dissolution of this corporation. It is also charged that all taxes legally levied against it have been fully paid and claims the sum of $10.00 paid to the Secretary of State for its Franchise Tax which is payable in advance and was not due until July 1, 1934. Payment was made on May 21, 1934 and on June 27 following, it voluntarily surrendered its charter and the Secretary of State issued a voluntary dissolution certificate. In a former opinion we held with the claimant and thereafter granted the State of Illinois petition for rehearing. We find we are in error; in the former opinion. The claim is predicated on the theory that where a person natural or artificial, pays a license fee, franchise or privilege tax during the time payable but before the period during which such license runs and thereafter and prior to the actual license period shall change its mind and decides not to avail itself of the privilege or right granted, that a refund is legally due such person. We have been unable to find any statute authorizing such payment and none is cited by claimant and neither is any authority cited by claimant. We have heretofore frequently held that taxes voluntarily paid cannot be recovered back unless there is a statute providing for such recovery. For this reason claim will be denied.


text:
    (No. 2036
    Maurice Riechman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 12, 1940.

    Jos. B. McGlynn, for claimant.
    John E. Cassidy, Attorney • General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this case seeks damages for injuries sus-' tained by him while in the performance of his duties as a State Highway Patrolman for the State of Illinois.

It appears from the complaint that on August 21, 1931, claimant was riding a motorcycle north on State Route No.

112 near the junction of that route with State Route No. 160 near Edwardsville, Illinois, being on his way to Springfield, Illinois, under orders to perform his duties as patrolman at the State Fair. Claimant alleges that he was traveling between twenty and twenty-five miles per hour while making a turn off of Route No. 112 onto Route No. 160; that a Buick Sedan being driven south on Route No. 160 approached the intersection with Route No. 112 as claimant made the turn; that the claimant swerved to the left side of the road; that in an attempt to avoid a collision with the automobile, which was being driven by a man named Meyer, claimant swung his motorcycle sharply to the right, and in doing that, his right foot-board struck the concrete, tipping claimant back to the left and throwing his motorcycle directly in the path of Meyer’s car.

It further appears from the complaint that the Buick car struck the rear part of claimant’s motorcycle turning the motorcycle over on claimant’s left leg, causing claimant to sustain a compound fracture of Ms left leg, causing both pelvic bones to be broken and the left Mp and sacrum to be fractured. Claimant charges that as the result of the injury he was totally and permanently prevented from following Ms former occupation of shoe-worker, and that he is permanently and partially disabled from following any other occupation for life.

Claimant states that no other claim on account of said injuries has been made to any State Department or State Officer or to any person, corporation or tribunal; that he has not received any payment from any person, firm or corporation of any sum whatsoever for or on account of said injuries so sustained; that no person, firm or corporation other than claimant has any interest whatsoever in this claim. Claimant claims damages in the sum of Five Thousand Dollars ($5,000.00).

This court has repeatedly held that State patrolmen, such as claimant, come under the Compensation Act.

TMs claim was filed on December 28, 1932, and it is alleged that the injuries were received on August 21, 1931. Testimony was taken at various times on up to 1937. The State, by and through the Attorney General filed its Brief and Argument on November 15, 1939. This court has entered an order requiring claimant to file a brief, but he has seen fit to ignore the order.

From the depositions taken, and the State records, it is apparent that claimant’s injuries arose out of, and in the course of Ms employment, and that tMs court has jurisdiction, and it appears that the State had notice of the accident. It also appears from a report of the Division of Highways dated January 11,1933 that claimant was paid his salary during his temporary total disability. It appears from the evidence that claimant received $175.00 per month as compensation for his services. The claimant himself testified (Trans, of Jan. 7, 1933, Page 8 and Trans, of July 9, 1933, Page 4) that he had been paid Ms salary in the amount of $175.00 per month from the date of his injury to the date when he was able to return to Ms work, about October 1, 1932. We have heretofore held that such payments for non-productive time should be considered as payments of compensation, and payments of compensation constitute a waiver of claim within six months, so it appears that the jurisdictional requirement of Section 24 of the Compensation Act is complied with. The accident occurred on August 21, 1931 and the claimant’s temporary total disability continued until approximately October 1,1932. The claim was, therefore, filed within one year after the last payment of compensation, having been filed December 28, 1932.

This court has held that highway maintenance patrolmen or policemen are entitled to the benefits of the Workmen’s Compensation Act. See Church, et al. vs. State, 7 C. C. R. 256; Lightner vs. State, 8 C. C. R. 354 and Ferguson vs. State, 8 C. C. R. 589.

It is admitted that claimant was paid at the rate of $175.00 per month during the entire period of his disability, and after he was able to return to work. The evidence shows that the claimant had been employed in the same capacity and at the same rate of pay for more than a year immediately prior to the time of his accident; and that he had one child under the age of sixteen years at the time of the accident. (Trans, of testimony dated Jan. 7, 1933, Page 5.) The proper compensation rate to the claimant would be $15.00 per week. Prom August 21, 1931, the date of the claimant’s accident, to October 1, 1932, which was about the date that claimant returned to work, is a-period of 58 weeks. Compensation for temporary total disability for a period of 58 weeks on a basis of $15.00 per week amounts to $870.00, which is the sum which should have been paid to the claimant. Prom August 21, 1931, the date of the injury, until he returned to work on October 1, 1932, a period of 13% months elapsed, for which claimant received $2,318.75. Deducting the sum of $870.00, which is the proper amount of compensation payment for the period, from the sum of $2,318.75, leaves a balance of $1,448.75 over-payment to the claimant for temporary total disability.

This court has also held that the amount of over-payment for temporary total disability is allowable as a credit to the employer when called upon to pay specific loss or partial dr total permanent disability. Blanton vs. State, 10 C. C. R. 302, and Johnson vs. State, 10 C. C. R. 87. In Wetherby vs. State, opinion rendered September 13, 1939, we held that the overpayment for non-productive time is allowable as a credit both as against specific loss and medical bills paid by the employee.

It also appears from the record (Page 6, Trans. of Jan. 7,1933) that the State has paid the hospital bills necessitated by the claimant’s injury; that it paid the sum of $268.30 to the hospital located in Granite City, and the sum of $284.25 to the hospital located in Belleville. It also appears that the State paid Dr. Berry the sum of $95.00 and Dr. Furguson the sum of $125.00 for services rendered to the claimant resulting from the accident in question. The claimant testified that the bill of Dr. Klinefelter and Dr. McKelvey in the amounts of $200.00 and $100.00 respectively had not been paid to his knowledge and Dr. McKelvey verified such non-payment, but it now appears that this detail has been taken care of as shown by the claimant’s testimony (Tran. Page 6, dated July 9, 1935). In this regard, the State paid out the sum of $1072.55, for hospital and doctors’ bills.

The law in effect at the time of claimant’s injury provided: for the loss of a leg or the permanent and complete loss of its use, 50 per centum of the average weekly wage (or $15.00, which is the maximum,) during 190 weeks. In this case the weekly payments would amount to $15.00 per week, and the total compensation for the loss of use of the leg would amount to $2850.00. The claimant was, therefore, over-paid slightly more than 50% of the amount payable for permanent and complete loss of the use of his leg. Dr. S. W. McKelvey testified that he had suffered a 33-1/3 per cent disability, and thought that this disability would be lessened 10 per cent, with the resulting disability 23 per cent. Dr. John Patrick Murphy testified to a 30 to 35 per cent disability in claimant’s left leg, with a 10 to 15 per cent disability in his back, based principally on the limitations of flexion in the back. Any disability in the back is not payable on a basis of specific loss but is payable on a basis of partial permanent disability, which is computed within the statutory limits, as 50 per cent of the difference in the injured employee’s earning power before and after the injury.

We do not find sufficient evidence upon which to base any award for partial permanent disability.

From the testimony of the doctors, it is obvious that claimant did not receive a 50 per cent disability to his leg, and the testimony of Dr. Murphy in regard to claimant’s back, should be disregarded. The claimant has actually received an over-payment which would equal more than 50 per cent disability to Ms leg. Even if the 15 per cent disability of the claimant’s back would be computed on the same basis as the leg, and were added to the disability of the claimant’s left leg, still the 15 per cent plus the 35 per cent would only amount to 50 per cent. It would appear that the claimant has received all the benefits to wMch he would be entitled.

For the foregoing reason, an award will be denied.


author: Per Curiam:

text:
    (No. 3490
    Helen R. Messenger, Claimant, vs. State of Illinois, Respondent.
    Opinion filed July 17, 1940.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Per Curiam:

Claimant herein is a professor of education in the Northern Illinois State Teachers’ College at DeKalb, Illinois. During the fiscal year July 1, 1938 to June 30, 1939, she taught classes in Extension under.the direction of the College, at Arlington Heights, and in Geneva. At that time she owned and operated a 1938 Studebaker coupe, wliich she drove to and from her class work. In addition to her pay as a teacher, she was allowed compensation in accordance with the “Revised Instruction to Travelers of the State of Illinois, effective June 1,'1933” but for some reason her expense statement for her trips for the following dates: December 5, 12, and 19, 1938, and January 2, 9, 16, and 23, 1939 to Arlington Heights, Illinois and for December 1, 8, and 15, 1938 and January 5, 12, and 19, 1939 to Geneva, Illinois was not approved and vouchered for payment.

Claimant seeks an award for the total sum of $63.95. In addition to her sworn statement of claim the record contains a report by John J. Hallihan, Director of the Department of Registration & Education, which confirms claimant’s statement and approves payment thereof; also a statement by E. C. 0. Beatty, Director of Extension of the College at DeKalb, approving the account.

Dr. Messenger legally incurred the expenses as stated, in the course of the performance by her of her duties as an employee of respondent, and has not been paid for same.

No opposition is made to the payment of the claim and the latter seems to be within the rule that where the facts are undisputed that the State has received services or supplies lawfully contracted for by it, and payment not having been made before the lapse of the appropriation out of which it could have been paid, an award is proper. (“The Kerber Packing Company, a Corporation, vs. State, 9 C. C. R. 109.”)

The claim is hereby allowed and an award made in the sum of $63.95, in favor of claimant, Helen R. Messenger.


author: Mr. Justice Tantis

text:
    (No. 3483
    Everett K. Broker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    Smith & Arnold, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

During the calendar year 1937, claimant was sole proprietor of a service station in Mt. Pulaski, Illinois. At the request of the Department of Public Works and Buildings, Highway Division of Illinois, he made various sales and deliveries of gasoline and oil to that Department through its representative and agents. Duplicate invoices of the several sales are attached to the original bill of claimant, and amount to $43.35.

Claimant represents that his account has never been paid and that there is now due him from the State of Illinois the said sum of $43.35. A report from the Division of Highways recites that, “Through a lack of understanding by the claimant of the procedure prescribed and required by the division of highways for payment of bills, his bills were not paid from money then available in the 60th bennium- appropriation. The quantities are correct, the prices are as agreed upon,, and the supplies were furnished as claimed.”

No objection is made by respondent to the allowance of the claim as submitted.

We have held in numerous cases that where materials or supplies have been furnished to the State but the bill therefor Avas not approved and vouchered for payment before the lapse of the appropriation from which it was payable, Avithout negligence on the part of the claimant, an award will be made, if, at the time the expense was incurred there were sufficient funds remaining unexpended in the appropriation to pay for same. This claim is within the requirements, and an award is therefore entered in favor of claimant for the sum of $43.35.


author: Me. Chief Justice Hollerich

text:
    (No. 2934
    Wilson F. Choate, Executor of the Last Will and Testament of William E. Bauer, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    McCarthy & McCarthy, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

At the May Term, 1938 of this court an award was entered in favor of William E. Bauer for the sum of $1,829.93, payable as follows: $1,107.89 at the time of the entry of the order, and the balance of $722.04 in seventy-seven weekly payments of $9.31 each, commencing May 18th, 1938, and one final payment of $5.17. Such award was made under the provisions of the Workmen’s Compensation Act of this State for disability resulting from accidental injuries sustained by said William E. Bauer which arose out of and in the course of his employment by the respondent, and embraced the following items, to-wit: temporary total incapacity for thirteen weeks, and 190 weeks ’ compensation for the permanent and complete loss of the use of claimant’s left leg.

The said William E. Bauer died June 21, 1938, and on August 23,1938 Wilson F. Choate was appointed Executor of the Last Will and Testament of William E. Bauer, deceased, by the Probate Court of Kane County, Illinois.

On October 8,1938 said William F. Choate as Executor of the Last Will and Testament of William E. Bauer, deceased, filed his petition in this court setting forth that the death of said William E. Bauer occurred as the result of the injury for which compensation had theretofore been allowed as above set forth; that said William E. Bauer left him surviving John A. Sterling, his brother; Elizabeth Parsell, his sister; Mrs. Charles Tallmadge, his sister; and certain nephews and nieces, as his only heirs at law; that such heirs at law were entitled to compensation under Section 7 of the Workmen’s Compensation Act of this State; that there had been paid on the aforementioned award at the time of the filing of said petition the sum of $1,163.75; and asking that said petitioner be substituted as claimant herein, and that said petitioner be awarded additional compensation in accordance with Paragraph (g) of Section 7 of the Workmen’s Compensation Act of this State.

It was stipulated by and between the parties hereto by their respective counsel that the claim of said Executor for an additional award be submitted upon the evidence as to dependency already in the record.

Section 7 of the Workmen’s Compensation Act specifies the amount of compensation which should be paid for an injury resulting in death, and provides for thd payment of compensation to specified beneficiaries as follows:

“a) If the employee leaves any widow, child or children, whom he was under legal obligations to support at the time of his injury,” then a specified sum.
“b) If no amount is payable under paragraph (a) of this section, and the employee leaves any parent, husband, child or children who at the time of injury were totally dependent upon the earnings of the employee,” then a specified sum.
“c) If no amount is payable under paragraph (a) or (b) of this section, and the employee leaves any parent or parents, child or children, who at the time of injury were partially dependent upon the earnings of the employee,” then a specified sum.
“d) If no amount is payable under paragraphs (a), (b) or (c) of this section, and the employee leaves any grand-parent, grand-child or grand-children, or collateral heirs dependent at the time of the injury to the employee upon his earnings to the extent of fifty percentum or more of total dependency,” then a specified sum.
“e) If no amount is payable under paragraphs (a), (b), (c), or (d) of this section, a sum not to exceed $150.00 for burial expenses,” etc.

The rights of the petitioner, if any, arise under and must be determined by the provisions of the Workmen’s Compensation Act of this State. Section 7 of such Act is the section which provides for the amount of compensation to be paid for an injury resulting in death, and the beneficiaries entitled to compensation must be determined in accordance with the aforementioned provisions of Paragraphs (a), (b), (c), (d) and (e) of said section.

Under the facts set forth in the petition, the said William E. Bauer left only collateral heirs, and consequently petitioner’s right to an award must be determined in accordance with the provisions of Paragraph (d) of said Section 7. Such paragraph, however, provides for compensation only when such collateral heirs are ‘1 dependent at the time of the injury to the employee upon his earnings to the extent of fifty percentum or more of total dependency”.

The only evidence in the record referring to the question of dependency is the testimony of William E. Bauer who, at a hearing held on March 1, 1938, stated that he had lived at the Elgin State Hospital ever since the accident in question, and who in reply to questions asked him, answered as follows:

“Q. You have made this your home ever since employed here?
“A. It is the only home I’ve got.
. “Q. You had no children under the age of 16 years at the time of the injury?
“A. No, no family.”

There is no testimony whatsoever as to any contributions having been made by said William E. Bauer to any of his relatives or with reference to dependency of any such relatives upon him. Under the provisions of said Paragraph (d), no award can be made unless the collateral heirs of said William E. Bauer were dependent at the time of his injury upon his earnings to the extent of fifty per cent or more of total dependency, and the burden is upon the petitioner, or such heirs, to show such dependency. Upon the record before us we have no authority to allow an award under said paragraph, and there is nothing in such record which would authorize an award under any other paragraph of said section.

The petitioner in his petition bases his right of recovery on Paragraph (g) of said Section 7, which provides as follows:

“(g). The compensation to be paid for injury which results in death, as provided in this section, shall be paid to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective shares to be in the proportion of their respective dependency at the time of the injury on the earnings of the deceased: Provided,” etc., etc.

This paragraph merely specifies the manner of payment, provided there are beneficiaries entitled- to payment under the provisions of Paragraphs (a), (b), (c) or (d).

In considering this section, Angerstein in “The Employer and the Workmen’s Compensation Act of Hlinois,” page 464, section 247, says:

“It is to be noted particularly that under the provisions of Paragraph (g) of Section 7, that compensation shall be paid to the persons who formed the basis for determining the amount of compensation to be paid by the employer. In other words, compensation is to be paid direct to the beneficiaries or to such persons as the Commission orders or awards, and payments should be made in accordance therewith. * "• * As the law is now effective, the Act requires payment to be made to the beneficiaries, except that upon order of the Commission a child’s compensation may be paid to the parent or grand-parent. A payment to the personal representative, that is, to the administrator or executor of the deceased employee, is not provided for or contemplated except where the persons entitled to compensation live outside of the United States.”

Under the provisions of said paragraph, if any compensation were payable it would have to be paid directly to the beneficiaries specified in said Section 7, and no award could be made to the Executor. However, under the record before us, and as previously stated, we have no authority to enter an award even if the heirs of the deceased employee and not his executor had made application therefor.

For the reasons above set forth, the prayer of the petition must be denied. Award denied. Petition dismissed.

Inasmuch as the original claimant has departed this life, and the record discloses no right either on the part of the executor of his estate, or on the part of the heirs of said original claimant, to the unpaid balance of the original award, It Is Further Ordered that no further payments be made pursuant to the award so made to said William E. Bauer at the May Term, 1938, of this court, as aforesaid.


author: Mr. Chief Justice Hollerich

text:
    (No. 3468
    Leonia J. Cram, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    Wolf & Love, for claimant.
    John E. Cassidy, Attorney General; Maurice J. Walsh, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From the complaint filed herein on March 14th, 1940, it appears that in November, 1938, claimant filed her information for a fugitive warrant in the Municipal Court of Chicago for one Henry Kinsey Brown who then resided in Detroit, Michigan; that it became and was necessary to cause a messenger representing the State of Illinois to go to Detroit for the purpose of bringing said Henry Kinsey Brown back to this State; that for that purpose one Stephen Leddy, a police sergeant of the City of Chicago assigned to the office of Thomas J. Courtney, State’s Attorney of Cook County, was sent to Detroit as a messenger with the fugitive warrant issued by the .Governor of this State; that said Thomas J. Courtney, State’s Attorney, required the claimant to deposit $150.00 for the expense involved in sending such messenger to Detroit; that such monies were advanced by the claimant upon the promise of the office of said Thomas J. Courtney that if said Henry Kinsey Brown was duly prosecuted by the claimant in the Criminal Court of Cook County, said sum of $150.00 would be returned to her; that thereafter said Leddy made several trips to Detroit in connection with the extradition of said Henry Kinsey Brown; that the latter ultimately waived extradition and returned to Cook County; that upon such return he was indicted in the Criminal Court of Cook County and was arraigned upon such indictment; that claimant has requested the refund of said sum of $150.00 so advanced by her as aforesaid, but was informed by the office of said Thomas J. Courtney that such office is without funds out of which to make reimbursement to the claimant; — wherefore she requests payment of said sum to her by the State of Illinois.

The Attorney General has moved to dismiss the complaint for the reason that there is no liability on the part of the State under the facts set forth in the complaint.

It is impossible to determine from the complaint or from any of the other papers filed in the case, whether claimant bases her claim upon the provisions of “An Act to Revise the Law in Relation to Fugitives from Justice, ’ ’ approved February 16th, 1874, as amended (Illinois Revised Statutes, 1939, Bar Assn. Ed. Chap. 69), or whether she bases the same upon the promise of the State’s Attorney, independent of the Fugitive from Justice Act; hence we will consider the claim from both angles.

Section 11 of said Fugitive from Justice Act deals with the matter of expenses in extradition cases, and provides as follows:

“When the punishment of the crime shall be the confinement of the criminal in the penitentiary, the expenses shall be paid out of the State treasury, on the certificate of the Governor and warrant of the auditor; in all other cases they shall be paid out of the county treasury of the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the state on whose Governor the requisition is made, and not exceeding twelve cents per mile for all necessary travel in returning such fugitives. Before such accounts shall be certified by the Governor, or paid by the county, they shall be verified by affidavit, and certified to by the judge of the county court wherein the crime is alleged to have been committed.”

Under the provisions of such section the expenses therein specified will be paid out of the State Treasury when the punishment for the crime is confinement in the penitentiary, and in all other cases such expenses shall be paid out of the county treasury wherein the crime was alleged to have been committed.

In all cases based upon the provisions of such section, it is therefore necessary for the claimant to allege and prove that the crime in question was punishable by confinement in the penitentiary. The complaint makes no allegation whatsoever with reference to the nature of the crime, or the punishment provided therefor. It is to be noted also that the expenses provided for by statute are specifically enumerated, and before the same shall be certified by the Governor or paid by the county, they are required to be verified by affidavit and certified to by the Judge of the County Court of the county wherein the crime is alleged to have been committed. The complaint does not set forth the fees paid to the officers of the State of Michigan, or the mileage of the messenger, which are the only expenses provided by the statute, nor is there any certification by the Judge of the County Court of the county wherein the crime was committed, as required by the statute. For the reasons above set forth, the complaint does not state a cause of action against the State under the provisions of the aforementioned statute.

The right of the claimant to recover from the State money advanced to the State’s Attorney of any county pursuant to an agreement made with him in connection with a pending case, presents an entirely different question.

Although the State’s Attorney represents the People of the State of Illinois in all criminal proceedings in his county, yet he is not considered a State officer. In the case of Cook County vs. Healy, 222 Ill. 310, the court, on page 316, in considering the status of the State’s Attorney of Cook County, said:

“The State’s attorney is a county officer, and his status, as such, is fixed by the Constitution which creates his office. He is elected for and within a county to perform his duties therein and is not distinguished in any manner from the clerks of the courts, the sheriff, coroner, and other officers connected with the administration of justice within the county.”

The Healy case was quoted with approval in the case of The People vs. Newcomer, 284 Ill. 315, where the court, on page 324, citing the Healy case, said:

“The State’s attorney is a county officer elected for and within a county to perform his duties therein and is by statute charged with certain duties.”

The State’s Attorney being a county officer, the mere fact that money was advanced to him for expenses in a criminal case, even under a promise to return the same, doés not give a right of action against the State. If any right of action exists, it is against the officer who received the money and promised to return the same.

The complaint does not state a cause of action against the State and the motion of the respondent must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3456
    Muntz & Lea Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    Charles D. Page, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Between August 8, 1938 and June 20, 1939, claimant sold to the respondent through the Division of Highways at Elgin, Illinois, nine invoices of merchandise, amounting in all to $90.15. Invoices therefor were forwarded to the Division of Highways of the respondent on February 1, 1940, and thereupon claimant was advised that the Department could not pass same for payment for the reason that the appropriation out of which payment should have been made lapsed on September 30, 1939, and was further advised that its only recourse was to file its claim in this court.

It is admitted that the merchandise was received by respondent on the dates claimed; that same was as represented by claimant, and that the prices charged therefor are the prices agreed upon when the merchandise was received. Claimant did not delay unreasonably in presenting its claim, and in numerous similar cases we have held that claimant is entitled to an award. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Metropolitan Electrical Supply Co. vs. State, 10 C. C. R. 346.

Award is therefore entered in favor of the claimant for the sum of Ninety Dollars and Fifteen Cents ($90.15).


text:
    (No. 2771
    Myrtle Phillips, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    Charles G. Seidel, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For more than six years eontinnonsly prior to December 21, 1934, claimant was in the employ of respondent as an attendant at Elgin State Hospital, Elgin, Illinois. On the last mentioned date, while in the course of her employment and in the performance of her duties, she slipped on a wet floor and sustained a wedge-shaped fracture of the right leg at the junction of the middle and lower third of the tibia. She was immediately removed to the institution hospital and remained there under the care of the physicians on the staff of such hospital until September 14, 1935. Callus formation was very slow in developing, and claimant was given vitamins, calcium, other medication, and physiotherapy to aid new bone formation, and repeated X-ray examinations were made. She was sent to the Illinois Research Hospital on five occasions for consultation and advice as to further treatment. Her condition gradually improved and an examination of the injured leg on November 5th, 1935 by Dr. George A. Wiltraikis of the Elgin State Hospital revealed a good union, but also showed some lateral angulation and some persistent edema of the right ankle.

Claimant returned to her regular work as an attendant on November 7th, 1935 and performed all of the duties of her employment regularly thereafter, being still engaged in the same employment at the time of the hearing herein on July 27th, 1937. Although there is testimony that the injured leg still bothers her some, yet there is no testimony in the record which will sustain an award for partial permanent disability.

Claimant seeks an award for temporary total disability from the date of her injury to the date she returned to her duties as aforesaid; for the amount expended by her for certain medication, and for the expenses incurred by her in connection with the five visits to the Illinois Research Hospital at Chicago. However, there is nothing in the record to indicate the amount of the last mentioned expense, and consequently no allowance can be made therefor.

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

1. That on December 21, 1934 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

2. That on said date claimant sustained an accidental injury which arose out of and in the course of her employment.

3. 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.

4. That claimant’s annual earnings during the year next preceding the injury were $936.00, and her average weekly wages were $18.00.

5. That claimant at the time of the injury was forty-seven years of age, was married, and had no children under the age of sixteen years at the time of her injury.

6. That all necessary first aid, medical, surgical and hospital services have been provided by the respondent except for certain cod liver oil tablets and a plaster cast which were provided by the claimant at a cost of $6.00.

7. That claimant was temporarily totally disabled from December 21, 1934 to November 7, 1935.

8. That the sum of $72.00 has been paid the claimant to apply on the compensation due her.

. 9. That claimant is entitled to have and receive from respondent the sum of $9.00 per week for 45 5/7 weeks, that being the period of temporary total incapacity as aforesaid, together with $6.00 to reimburse her for the amount paid for cod liver oil tablets and plaster cast as aforesaid, in all, the sum of $417.43, less the sum of $72.00 heretofore paid to her as above set forth; making a net amount due claimant of $345.43; which amount is payable in weekly payments of $9.00 per week commencing December 22, 1934.

The total amount of compensation payable as above has accrued at this time, and claimant is therefore entitled to the payment thereof in a lump sum.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Forty-five Dollars and Forty-three Cents ($345.43).

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 Assn. Ed., Chap. 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


text:
    (No. 3403
    Dominic Pianfetti, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 21, 1940.

    Josef T. Skinner, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant states in his petition that he was a common laborer employed by the State Highway Department of Illinois on State Route No. 71 near Hennepin, Illinois; that on May 8, 1939, he was engaged with other men in loading a six hundred pound mixer skip on a truck, and while so employed, the glove which he was wearing on his right hand, caught and became entangled between the skip and the truck; that the index finger on his right hand was caught and crushed to the middle phalangeal joint of such finger.

He was immediately taken to Dr. Philip V. Hall at Bureau, Illinois by the 'foreman in charge of the work, and his hand was dressed by Dr. Hall, who continued to treat him from May 8,1939 until May 22, 1939, when he was discharged by the physician. He was also treated by Dr. Horace Dunn at Granville, Illinois on July 17, 1939. X-ray pictures were taken and appear in the record.

Claimant suffered his accident on May 8 and returned to work on May 11. As there were less than 8 days loss of time, no temporary disability was paid to him. He was paid Ms regular wages and continued to be employed until about August 15, during wMck period he received wages in the total amount of $319.53.

Dr. P. V. Hall reported that there was no permanent disability, but Dr. Dunn, who apparently has had extensive experience, testified that the finger is definitely enlarged throughout its entire length, and its circumference is 40% more than the corresponding finger on the left hand; that there is a lateral angulation of 20%. The distal phalange has lost the ability to be extended fully and claimant has an immobile phalange, due to the total loss of the extensor tendon at the base of the distal phalange. He cannot completely flex the finger down on the palm of the hand. The tip of the finger can be flexed only to within 1% or 2 inches from the palm in passive motion. The doctor testified that the condition described is permanent, and that in his opinion claimant has suffered 55 or 60% loss of use of his finger as a result of the accident in question.

Claimant was receiving pay at the rate of 75c an hour for 8 hours a day, and the labor division in which he was classified was employed less than 200 days a year. For the total loss of use of an index finger an employee would be entitled to 50% of the average weekly wage during 40 weeks, and for the permanent partial loss of use, that proportion of 40 weeks which the partial loss of use bears to the total loss.

While Dr. Hall’s report shows that when claimant was discharged from Dr. Hall’s care, there was no permanent disability, Dr. Dunn’s testimony definitely establishes that some partial disability did result. This is supported by an examination of the X-ray pictures that were submitted in evidence.

From an examination of the record the court finds that claimant has suffered a permanent partial disability of 55% loss of use of the index finger on Ms right hand; that his average weekly wage was $11.54, and that he is therefore entitled to an award in the sum of $253.88.

An award is therefore hereby made in favor of claimant, Dominic Pianfetti, in the sum of $253.88.

As the entire amount due has heretofore accrued, such award is payable in full at the present time.

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


text:
    (No. 3334
    Catherine Blazwich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1940.

    Thomas A. Murphy and Frank R. Eagleton, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On June 29, 1938 one Joseph Blazwich was in the employ of the respondent as a. laborer in the Division of Highways, Department of Public Works and. Buildings. His wages were fifty cents (50c) per hour for an eight-hour day and for not to exceed forty-eight (48) hours per week. On the last mentioned date said Joseph Blazwich, together with three other men, constituted a maintenance crew whose work for the day was cutting weeds on U. S. Route 51 and S. B. I. Route 179. They had completed the work cutting weeds on Route 51 near Wenona, about eight-thirty A. M. and were driving in the Division truck to the point on Route 179 where they were to continue their work. After they had proceeded about a mile, said Blazwich fell off the truck onto the pavement and was seriously injured. He was immediately taken to the office of Dr. Gr. T. Love in Wenona. The doctor found the patient in a critical condition, in deep shock, bruised on the right side of the skull, and paralyzed on the right side. The doctor ordered supportive treatment and had the patient removed to-his home as his condition was too critical at that time to move him to the nearest hospital. The doctor called to see him twice again on that date and on the second day had him removed to St. Mary’s Hospital at Streator, Illinois, where he grew progressively worse and died on July 3, 1938.

The only medical testimony in the case is that of the attending physician, Dr. Love, who stated that in his opinion that there was a direct causal connection between the injury and the death.

Said Joseph Blazwich left him surviving the claimant Catherine Blazwich, his widow, and six children, two of whom are minors, to-wit, Margaret who was born December 31,. 1921 and Agnes who was born September 28, 1923.

The principal question in dispute relates to the basis upon which compensation is to be computed. The claimant contends that compensation is to be computed in accordance with paragraph (d) of section 10 of the Workmen’s Compensation Act, which provides as follows, to-wit:

“As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings, in such computation; ”

and that inasmuch as the annual earnings are not determinable from the evidence, the computation must be made upon the basis of 300 times the average daily earnings.

Respondent contends that the compensation must be computed in accordance with the provisions of Paragraph (e) of said Section 10, which provides as follows, to-wit:

“As to employees in employments in which it is the custom to operate for a part pf the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings: Provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200;”

and that the annual earnings must be computed upon the basis of 200 times the average daily earnings.

The determination of the question at issue involves the construction of the aforementioned. Section 10 of the Compensation Act. Blazwich was in the employ of the respondent for less than one year prior to the date of his injury, and although the work of maintenance of highways is one in which it is the custom to operate throughout the working days of the year, yet the particular employment in which Blazwich was engaged at the time of his injury, to-wit, the cutting of weeds, is an employment in which it is the custom to operate for a part of the whole number of working days in each year.

In the case of Stellwagon vs. Ind. Com., 359 Ill. 557, the employer was engaged in the real estate business and although such business apparently operated all of the working days of the year, yet the employee who did odd jobs and repair work for his employer, was engaged only in part-time work. In that case the court said:

“The employment of defendant in error was such that it would customarily engage him only a part of the whole number of working days, depending upon the weather and circumstances. In such case Section 10-e applies, and the award was properly based on a daily wage of $8.00 multiplied by the two hundred day minimum to determine the average annual earnings.”

The identical question here involved was before this court in the case of Kehoe vs. State, No. 3203, decided at the November Term, 1939, of this court. In that case the deceased employee was also employed as a laborer in the maintenance department of the Division of Highways and on the date of his injury was engaged in painting a bridge on the highway. In, that case, as in this, the work of painting in which the employee was engaged at the time of the accident, was an employment in which it is the custom to operate for a part of the whole number of working days in each year, although the work ,of maintenance continued throughout the working days of the year. The question involved was carefully considered in that case and the decisions of our Supreme Court on the question were reviewed. After a review of the authorities, we said:

“Although the work of some of the divisions of the Highway-Department continues throughout the working days of the year, yet the work in which claimant’s intestate was engaged at the time of his death operated less than 200 working days during the year.
“Claimant’s intestate was not engaged in the employment of the State for the full year immediately preceding the accident, and the annual earnings during such period, of persons of the same class, in the same employment and same location, does not appear from the record.
“Considering said Section 10 as a whole, and considering also the aforementioned decisions of our Supreme Court construing the meaning of such section, and considering the facts in the record, we conclude that the annual earnings of the claimant’s intestate must be ascertained by multiplying his daily wage, to-wit, Four Dollars ($4.00), by the two hundred (200) day minimum.”

The law as laid down in the Kehoe case is decisive of the question here involved.

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

1. That said Joseph Blazwich and the respondent were on June 29,1938, operating under the provisions of the Workmen’s Compensation Act of this State; that on said date said Joseph Blazwich sustained accidental injuries which arose out of and in the course of his employment and which resulted in his death on July 3, 1938; that notice of said accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act; that the earnings of said Joseph Blazwich during the year next preceding the injury were Eight Hundred Dollars ($800.00), and his average weekly wage was Fifteen Dollars and Thirty-eight Cents ($15.38); that the necessary first aid, medical, surgical and hospital services were provided by respondent; that said Joseph Blazwich left him surviving Catherine Blazwich, his widow,- and six children; that said widow and two of said children, to wit, Agnes, who was born September 28, 1923 and who was fourteen years of age at the time of the death of her father, and Margaret, who was bom December 31, 1921 and who was sixteen years of age at the time of the death of her father, were each totally and equally dependent upon the earnings of said Joseph Blazwich for their support and maintenance.

2. That under the provisions of Section 7-a and Section 7-H-2 of the Workmen’s Compensation Act, the amount of compensation to be paid by respondent on account of the death of said Joseph Blazwich is Thirty-five Hundred Fifty Dollars ($3,550.00), subject, however, to reduction when the said Agnes Blazwich arrives at the age of eighteen years, to wit, on September 28, 1941, provided she is then physically and mentally competent; — in accordance with the provisions of Section 7-a of the Workmen’s Compensation Act; that said compensation is payable in weekly installments of Eleven Dollars ($11.00) commencing on July 4,1938.

3. That the share of such compensation which otherwise would be payable to said Agnes Blazwich should be paid to her mother, Catherine Blazwich, for the support of said child.

4. That said Catherine Blazwich is entitled to have and receive from the respondent the sum of Twelve Hundred Fifty-four Dollars ($1,254.00), being* the amount of compensation which has accrued from July 4, 1938 to September 9, 1940.

It is Therefore Ordered that the share of such compensation which otherwise would be payable to said Agnes Blazwich shall be paid to her mother, Catherine Blazwich, for the support of said Agnes Blazwich.

It is Further Ordered that an award be entered in favor of the claimant, Catherine Blazwich, for the sum of Thirty-five Hundred Fifty Dollars ($3,550.00); subject, however, to reduction when said Agnes Blazwich arrives at the age of eighteen years, to wit, September 28, 1941, provided she is then physically and mentally competent; — in accordance with the provisions of Section 7-a of the Workmen’s Compensation Act.

It is Further Ordered that such award be payable as follows: the sum of Twelve Hundred Fifty-four Dollars ($1,254,00), being the amount of compensation which has accrued from July 4, 1938 to September 9, 1940, shall be paid forthwith; and the balance of such compensation shall be payable in weekly installments of Eleven Dollars ($11.00) per week commencing September 16, 1940.

It is Further Ordered that this cause be continued until the first session of this court to be held after the said Agnes Blazwich arrives at the age of eighteen years, to wit, after September 28, 1941, for the entry of such further orders with reference to the amount of the aforementioned award, or the reduction thereof, as may be in accordance with the provisions of the Workmen’s Compensation Act; and that in the meantime compensation be paid by the respondent as hereinbefore provided.

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


author: Mr. Justice Yantis Pee Cubiam:

text:
    (No. 3431
    Joe Perona, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1940.

    Paul D. Perona, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein was first employed by the Division of Highways of Illinois in 1934. On September 5, 1939 he was working with a gang of laborers of the Division, placing plank on the guard rail on U. S. Route No. 51 at Rochelle, Illinois. In attempting to fit a plank to a post, claimant struck a steel chisel with a hammer and a piece of steel from the hammer struck him in the left eye. He was taken to St. Mary’s Hospital in LaSalle and was then moved to the Silver Cross Hospital in Joliet, where Dr. H. W. Woodruff of Joliet removed the piece of steel by the use of a giant magnet. Claimant left the hospital September 10, 1939 and was taken to his home in Standard, Hlinois. Thirteen trips thereafter were made from his home to LaSalle, claimant being attended by Dr. Sellett, and the expense being borne by the State. On October 10, 1939 and February 10, 1940 claimant went to Joliet and to Chicago where he was examined by Dr. Wood-ruff and Dr. E. K. Findlay, Professor of Ophthalmology at the University of Illinois, College of Medicine. Dr. Findlay’s report shows normal vision 20/20 of the right eye and vision of the left eye 20/200. There was a dense opacity about 4 mm. in length and 1 mm. in width near the center of the lens of the left eye. Such opacity or traumatic cataract may remain unchanged for years or the entire lens may become opaque and an operation on the cataract necessary. Dr. Findlay further stated it would not be advisable to attempt any operation at present and nothing can be done to improve the sight of the left eye. The Doctor further reported that the claimant could return to his work at any time. Dr. Findlay further reported on February 15, 1940 that “The opacity on the capsule of the lens is just in front of the pupil — when the pupil is dilated the vision is increased to nearly 20/70, but only when a proper glass or lens was placed before the eye— even if an operation were performed his vision would not be improved unless a good strong glass or lens was placed before the eye.”

On February 10, 1940 Dr. Woodruff reported to the Division. He stated that an operation was not advisable. That the vision in the left eye is 10/200 and with a lens such vision is improved to 20/60, due to the fact that there is only a partial cataract. Dr. Woodruff further stated that claimant would have no more vision if an operation was performed and that glasses are not advisable.

From the findings of Dr. Findlay and Dr. Woodruff and the Highway Departmental Report, we find that claimant has suffered a total loss of use of his left eye. If the use of cor-rooting glasses or lens was recommended we might conclude that claimant could have some slight restoration of vision in his left eye, but neither of the medical men recommend either an operation or the use of glasses at this time.

At the time of the accident claimant was married but had no child dependent upon him for support. He was being paid a salary of $30.00 per week. Under Section 8 (1) of the Workmen’s Compensation Act, where an accidental injury occurs on or after July 1,1939 compensation due the employee shall be computed according to the provisions of said paragraph, and after being so computed shall be increased ten per centum.

Claimant was paid compensation for temporary disability at the rate of $16.50 per week for the period from September 6, 1939 to October 18, 1939, amounting to $101.36. Medical and hospital bills were also paid by the Highway Division in a total amount of $280.23.

Under the provisions of Section 10, Subsection (a) and (i) and Section 8, Subsection (1) and (e) 16, claimant is entitled to an award for the specific total loss of use of his left eye in the amount of $1,980.00 payable in weekly installments of $16.50 per week. Payment for fifty-three (53) weeks has matured to the 13th day of September, 1940, making $874.50 payable as of September 13, 1940. The balance of the award or $1,105.50 is payable in weekly installments at the rate of $16.50 per week commencing September 20, 1940. In accordance with the above findings an award is hereby made in favor of claimant Joe Perona for the specific total loss of use of the left eye, in the sum of $1,980.00 payable as follows: $874.50 as of September 13, 1940 and the balance, i. e. $1,105.50 payable in weekly installments of $16.50 commencing September 20, 1940.

In view of the report by Dr. Findlay of September 12, 1940 wherein he stated, “Through time there may be a still greater improvement in claimant’s vision and I advise that he be examined again in about three months to note what further changes take place,” It Is Ordered that this award is made subject to any modification that may hereafter be made in accordance with the. provisions of the Workmen’s Compensation Act.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay7- 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 (Sess. Laws 1939, Page 117); and being, .by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.

SuPPLEMENTAB OPINION.

Pee Cubiam:

This cause again coming before the court for further consideration upon its own motion, and it appearing that an award was herein entered in favor of claimant, Joe Perona, for the total loss of use of claimant’s left eye, as the result of an accident arising out of and in the course of his duties as an employee of respondent; and it further appearing that such accident occurred on September 5, 1939, and that the Workmen’s Compensation Act of Illinois effective as of that date, contains the following proviso, i. e.—

“In every case of loss of, or permanent and complete loss of use of one eye, one foot, one leg, one arm, or one hand, the employer in addition to the compensation as provided for in this section shall pay into the special fund provided for in Section 7, Paragraph (e), the sum of Two Hundred Twenty-five Dollars, if the accidental injury occurs between July 1, 1939, and July 1, 1941, both dates inclusive.”

(Sec. 8 (e) BO.)

And it further appearing that under the provisions of said Section 7 (e) above noted, that the State Treasurer of the State of Illinois is made custodian of moneys paid by reason of the foregoing provisions, the disbursement thereof being under the further terms of said Act;

And it further appearing to the court that the term ‘ ‘ employer” as used in said Section 8 (e) 20 includes the State of Illinois as defined under Section 4 of the Workmen’s Compensation Act;

It is Thebefobe Obdebed that a supplemental and additional award be entered herein in the sum of Two Hundred Twenty-five ($225.00) Dollars, to be paid by respondent to the State Treasurer of the State of Illinois as Ex-officio Custodian of the Workmen’s Compensation Special Fund, to be disbursed in accordance with the provisions of said Workmen’s Compensation Act.

This supplemental 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 (Sess. Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Mr.. Justice Yantis

text:
    (No. 3484
    Hardware Mutual Casualty Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 8, 1940.

    Dilley, Bjork, Blair & Munnecke, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr.. Justice Yantis

delivered the opinion of the court:

Claimant corporation is an Insurance Company licensed to transact business in the State of Illinois and engaged in writing Workmen’s Compensation Insurance.

The firm of Klein & Heckman, Inc., was a plumbing and heating contractor, and had received a sub-contract for the plumbing work on certain construction at the Illinois State Hospital for the Insane, owned and operated by respondent at Manteno, Illinois. Claimant herein, on September 17, 1938 and September 17, 1939, had entered into written contracts with Klein & Heckman to insure the latter from claims by the latter’s employees arising under the Workmen’s Compensation Act of Illinois.

Klein & Heckman and various employees, including Eddie Allen, a laborer, and Urban P. Zoph, a plumber’s apprentice, commenced work on its Manteno plumbing project during the month of July, 1939. Claimant herein alleges that it was the duty of respondent to supply good pure and wholesome water upon the hospital premises for the use of all persons thereon, including the Klein & Heckman employees working there; but that notwithstanding such duty, “said respondent and its agents, servants, superintendents, and State Welfare Director A. L. Bowen, carelessly and negligently permitted typhus germs from the sewage disposal system to contaminate the water supply system in said hospital, resulting in an epidemic of typhoid fever. That while so employed on said project the said Eddie Allen and Urban P. Zoph drank water from said system and thereby contracted typhoid fever.” The complaint further avers that respondent impliedly warranted to Eddie Allen and Urban P. Zoph that the water from the regular supply system of the hospital was at all times pure, free from germs and contamination and fit for human consumption, but that on the contrary such water contained typhus germs. Complainant further states that the two employees, Allen and Zoph, drank from the regular drinking supply in the kitchen of the hospital and thereby contracted typhoid fever; that Eddie Allen, as a direct result thereof, died on September 19, 1939, leaving his widow,' Mrs. Gramet Allen, surviving him. That during his illness he incurred hospital and medical expense of Two Hundred Eighty-five and 40/100 ($285.40) Dollars, which claimant paid under its contract of insurance; that in addition Mrs. Garnet Allen filed claim with the Illinois Industrial Commission, being Case No. 273023, which resulted in a settlement between this claimant and Mrs. Garnet Allen for the sum of Four Thousand ($4,000.00) Dollars.

Claimant further states that Urban P. Zoph, as a result of his illness, incurred medical, hospital and nursing bills amounting to One Thousand Ninety-seven and 20/100 ($1,097.20) Dollars, which claimant by reason of its contract of insurance was obliged to pay, and that it has in addition paid to Zoph under the terms of the Workmen’s Compensation Act, the sum of Sixteen and 50/100 ($16.50) Dollars per week for the period of nineteen (19) weeks from September-20, 1939, through January 30, 1940, in a total sum of Three Hundred Thirteen and 50/100 ($313.50) Dollars.

Claimant states that it was legally liable under the terms of the Workmen’s Compensation Law of Illinois to make the foregoing payments under its contract of insurance, and that by reason thereof it has been subrogated to the rights of said employees Eddie Allen and Urban P. Zoph, and of Klein & Heckman, Inc., as the insured, against the State of Illinois to recover said items above set forth.

Claimant contends that “it acquired such rights by subrogation, by contract, and by operation of law,” and seeks an award in the sum of Five Thousand Six Hundred Ninety-six and 10/100 ($5,696.10) Dollars.

The Attorney General, on behalf of the respondent, has filed a motion to dismiss the claim, on the grounds that same does not set forth a demand which the State as a sovereign commonwealth should discharge and pay; that no obligation by subrogation, contract or operation of law is set forth upon which the State could be legally held to respond in damages.

In its Brief, claimant contends that the supplying of water by the State of Illinois at the State hospital was a private and corporate duty and not a governmental function, and that the Doctrine of Bespondeat Superior therefore applies; also that the respondent negligently failed to comply with the statutes of the State of Illinois, thereby directly causing damage to claimant herein. We cannot agree with these contentions. The rule is well established that—

The State, in the maintenance of its charitable institutions is engaged in a governmental function, and that the State, in the exercise of its governmental functions, is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

In 13 R. C. L. 944, Section 8, the rule is stated as follows:

“Strictly public institutions created, owned and controlled by the State or its subdivisions, such as State asylums for the insane, city hospitals, reformatories, etc., are not liable for the negligence of their agents. The doctrine of respondeat superior does not apply. They are held to be governn mental agencies brought into being to aid in the performance of the public duty of protecting society from the individual unfortunate or incompetent in mind, body or morals, and the rules applicable to municipal corporations and public offices generally are applied.

The furnishing of water at the State Hospital at Manteno was an integral part of the maintenance of such institution. There is no existing law in Illinois making the State liable for the negligence, malfeasance or misfeasance of its officers or employees in the management or maintenance of its institutions.

Petitioner’s claim is based upon such alleged negligence.

As there is no statute making the State liable under the facts alleged in this case, and no contract is shown by which any implied warranty could attach to the State for the benefit of claimant as herein contended, an award could not be legally granted herein. This ruling is recognized and applied in the cases of—

Herman Perry vs. State, 10 C. C. R. 503 ;
Lillian Pelli vs. State, 8 C. C. R. 324;
Tollefson vs. City of Ottawa, 259 Ill. 134; and
Minear vs. State Board of Ayr., 259 Ill. 549.

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


author: Mb. Justice Yantis

text:
    (No. 3523
    Flora E. Maddox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 8, 1940.

    Stanley L. Pogue, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein is the widow of Cress Maddox. An original complaint was filed June 20, 1940, and an amendment thereto was filed August 13, 1940, whereby an award of Four Thousand Thirty ($4,030.00) Dollars is sought by claimant under the terms of the Workmen’s Compensation Act of Illinois, because of the death of the said Cress Maddox resulting from the accidental injuries suffered while in the employ of respondent.

Under a stipulation of facts and reports submitted by the Secretary of State, the following facts are agreed upon:

That Cress Maddox was, on August 23, 1939, employed as a licensed investigator in the Automobile Department of the Office of the Secretary of State of Illinois at a salary of Two Thousand One Hundred ($2,100.00) Dollars per annum; that he resided in Springfield, Illinois, and worked out of the Office of the Secretary of State, and his duties consisted of driving an automobile owned by the State over the various highways therein where investigation might be in order by him; also in driving various officials and employees of said office to various points in Illinois in connection with the work of said office; also to carry and transport auto license plates and other supplies from the storehouse in the Capitol to the branch offices in the State. He was further charged with the duties of investigating and reporting violations of the Motor Vehicle and Traffic Laws of Illinois, under the immediate direction of the Chief Automobile Investigator and other ranking employees in said office.

On said date Cress Maddox drove to Chicago to deliver such supplies, and while on his return to Springfield was struck by another automobile on U. S. Highway No. 66, a short distance north of Joliet, Illinois, thereby receiving injuries from which he died an hour or so later in St. Joseph’s Hospital in Joliet.

Immediate notice of the accident was given that night to the Secretary of State, and on September 1,1939, claimant as the widow of said employee, made claim in person from the Secretary of State for compensation under the Workmen’s Compensation Act of the death of her husband. The latter left surviving Ms widow, the claimant, but no child or children under the age of sixteen years at the time of said accident. Claimant expended Thirty ($30.00) Dollars in payment of first-aid and hospital fees at the time of said accident, for which she has not been reimbursed. As said employee died within a few hours after said accident, no question of temporary disability compensation arises. If an award is made herein, the rate of salary of the deceased employee would justify the maximum weekly payment of compensation of Fifteen ($15.00) Dollars per week, which would be increased under Section 8 (1) of the Illinois Workmen’s Compensation Act as now amended, to the amount of Sixteen and 50/100 ($16.50) Dollars per week. The total award would he a sum equal to four times the average annual earnings of such employee but not less in any event than Four Thousand ($4,000.00) Dollars (Section 7, Workmen’s Compensation Act). A detailed statement by the Secretary of State appears in the record, showing that the latter supervises, operates and maintains the State Capitol Building, the Centennial Building, Archives Building and Power Plant at Springfield. That under his direction are operated steam boilers, generators, passenger and freight elevators and steam heating plants ; that for the purpose of servicing such equipment respondent maintains an electrical shop, plumbing shop, carpenter shop, and machine shop, in which are used tools incident to such trades, such as saws, hammers, hatchets, knives, chisels and other sharp-edged instruments. Said official is also charged with the administration of the Motor Vehicle Laws of Illinois, and in connection therewith has paper-cutting machines at his Springfield office, with blades approximately eighteen (18) inches in length, which aré hand-operated. The deceased employee, husband of claimant, was employed as Investigator and was supplied by respondent with an automobile and had the power of a constable and police officer in the enforcement of the Automobile Law of the State. We have held that such duties bring the employee within the terms of the Workmen’s Compensation Act of Illinois.

The record does not disclose any fact as to the nature of the accident other than that claimant was struck by another automobile. No facts appear as to what, if any, recovery is being sought against third parties or as to their liability.

The record does disclose, however, that said Cress Maddox was on the 23rd day of August, A. D. 1939, an employee of respondent; that he was injured in an accident which arose out of and in the course of his employment on the 23rd day of August, A. D. 1939; that he was married and that claimant herein survives him as his widow; that he had no child or children under the age of sixteen (16) years at the time of said accident; that immediate notice of the accident was given to his employer ;■ notice of claim for compensation was made and application for award filed within the time prescribed by the Workmen’s Compensation Act of Illinois; that claimant’s wages during the year preceding said accident amounted to Two Thousand One Hundred ($2,100.00) Dollars ; that his average weekly wage was in excess of Sixteen and 50/100 ($16.50) Dollars, and that four times the average annual earnings would be in excess of Four Thousand ($4,000.00) Dollars.

An Award is Therefore Hereby Made in favor of claimant, Flora E. Maddox, as the surviving widow of Cress Maddox, deceased, for the sum of Four Thousand ($4,000.00) Dollars, payable at the rate of Sixteen and 50/100 ($16.50) Dollars per week from the 23rd day of' August, A. D. 1939. Of said sum, Nine Hundred Fifty-seven ($957.00) Dollars has accrued to the 4th day of October, A. D. 1940, and is payable at the present time. The balance of Three Thousand Forty-three ($3,043.00) Dollars is payable in one hundred eighty-three (183) weekly payments of Sixteen and 50/100 ($16.50) Dollars each and one final payment of Twenty-three and 50/100 ($23.50) Dollars. In addition to the foregoing, a further award is hereby made to claimant of the sum of Thirty ($30.00) Dollars in payment of first aid and hospital services rendered to said injured employee.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Ill. Revised Statutes, 1939, Bar Association Edition, 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 (Sess. 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. 2844
    Zelma Ruby Parish, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 8, 1940.

    Charles G. Seidel, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant’s Statement, Brief and Argument in this cause was not filed until August 29, 1940, but the claim was filed February 15, 1936. It is represented therein that claimant was employed at the Elgin State Hospital as an attendant; that in the course of her employment on or about January 31, 1935, while attempting to prevent one Edith Woods, a patient at such institution, from escaping, claimant had her left knee pushed against a door jamb, thereby spraining her knee and dislocating the knee cap. The evidence discloses that Mrs. ICerley, a supervisor at the institution, was called. The latter sent claimant to the hospital at the institution, where her knee was examined by Dr. Wiltrakis of the institution staff. The patient’s knee was bandaged and she was sent back to work. She received infra red light treatments for two and one-half weeks and her knee was bandaged for about ten weeks, under the care of Dr. Wiltrakis, after which the patient was given an elastic bandage to wear. The patient continued in her regular occupation. On October 28, 1935, she was employed in evening duty in a ward on the first floor of the building known as B-l North. Claimant testifies that, “After we had completed our work we were supposed to amuse the patients. I was dancing with a patient named Ruby Donald. I started to turn around when my knee cap slipped and I fell. I told the supervisor and Dr. Wiltrakis. The next day I reported to the hospital and the doctor put a splint on my knee, which I kept on until the 2nd of December, 1935. I continued to attend to all my duties until December 29,1935. Three times during the morning of that, day my leg just folded up. As soon as I got off duty Í reported to Dr. Wiltrakis and remained in bed for two weeks from December 29th to January 12, 1936.” ^

Claimant stated that she was put on the sick list for about two weeks, and then she and her husband left on their vacation. She received her pay for December and twenty-eight (28) days in January, then she was paid fqr twelve (12) days in February and for two (2) days in March, all on the basis of Fifty-four ($54.00) Dollars per month. She further received her maintenance allowance at the institution until April 18th. She reported back for duty on March 2nd or 3rd, but was not accepted for work because of her statement that she would be unable to climb stairs. She was requested by Dr. Reed of the institution staff, on or about March 10, 1936, to sign a six months’ leave of absence. She stated she was ready to go back to work if she didn’t have to climb stairs. She declined to sign the leave of absence blank and has not been employed at the institution since that time.

Claimant testified that in March, 1936, she could have gone back to work if they had assigned her to duties on the ground floor so she would not have to climb stairs any more than necessary; that she was able to work from and after July, 1936 (Tr. p. 7).

Claimant further testified that, “In July, 1936, Miss Leonard (of the institution staff) again sent the leave of absence blank to me to sign. I told her I was ready to go back to work.” When asked, “Were you ready for unqualified service?” claimant replied: “Outside of the violent wards I could have gone ahead. The greater part of my work had been on the first floor in the main building.” She found new employment from January 4, 1937, at a garment factory. At the time of the accident claimant was married, but had no children. Claimant was first employed at the institution December 16, 1934. Her first accident occurred January 31, 1935. Those similarly employed received pay covering the first year of their employment at the rate of Forty-five ($45.00) Dollars for six months and Fifty-two ($52.00) Dollars the following six months, plus maintenance, as in her case, of Eighteen ($18.00) Dollars per month (Tr. p. 10), which would make Seven Hundred Ninety-eight ($798.00) Dollars annual earnings, or an average weekly wage of Fifteen and 35/100 ($15.35) Dollars, or a weekly compensation rate of Seven and 67/100 ($7.67) Dollars.

We have previously held that temporary total disability need not follow immediately after the accident in order to justify an award for later disability. In this case the first accident occurred January 31, 1935. She lost no time from her regular occupation until after October 28, 1935, when she had a further accident. Claimant was not off active duty until December 29,1935, a period of two months. The record shows she was then absent from work and remained in the hospital infirmary for a period of two weeks until January 12, 1936. She was paid for the balance of December and for twenty-eight (28) days in January for non-productive time and further for twelve (12) days in February and two (2) days in March for non-productive time; all of such non-productive time payments being on the basis of Fifty-four ($54.00) Dollars per month. According to claimant’s testimony, she could have returned to work and performed all the duties required of her in the ward where she was accustomed to work, after .January 1, 1936. It further appears (Tr. p. 18) that from her own statements she would have been able to return to unqualified service except in a violent ward on July 18, 1936. At another time, as above noted, she testified that she could have performed her duties in general after the first of January, 1937.

From a consideration of the entire record the court finds: That claimant herein and respondent are shown to be within the purview of the Workmen’s Compensation Act; that claimant suffered an accident which arose out of and in the course of her employment and thereby sustained accidental injuries, resulting in, temporary total disability; that such temporary total disability extended from December 29, 1935, to July 18, 1936. From such period is to be deducted the two weeks in the latter part of February and the forepart of March for which claimant received her regular wages during a vacation period. This leaves a balance of twenty-seven (27) weeks for which temporary total disability is due at the rate of Seven and 67/100 ($7.67) Dollars per week, or Two Hundred Seven and 09/100 ($207.09) Dollars. There should be deducted, however, from the latter amount the over payment made to her for non-productive time for the period from December 28th to January 28, 1935, or thirty (30) days, during which she received pay at the rate of Fifty-four ($54.00) Dollars per month. Such computation leaves as the amount due claimant for an award herein the sum of One Hundred Fifty-three and 09/100 ($153.09) Dollars.

An award is therefore hereby made in favor of claimant, Zelma Ruby Parish, for temporary total disability in the sum of One Hundred Fifty-three and 09/100 ($153.09) Dollars. As the full amount has heretofore accrued, same is payable instanter.

This award, being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Ill. Revised Statutes, 1939, Bar Association Edition, 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.