text:
    (No. 4412
    Walter Jackson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    Sidney Lyon, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, Walter Jackson, filed his claim in this Court seeking to recover for injuries sustained by reason of being struck in the left ankle by a bullet discharged from the gun of one Elmer Johnson, a State employee, which incident occurred on November 6, 1950 at the Giles Avenue Armory in the City of Chicago, Illinois.

On the evening of November 6, 1950, the Armory was rented or leased to the Taxicab Owners and Chauffeurs Association for the purpose of holding a mass meeting for Congressman William L. Dawson, the meeting being of a political nature. The testimony shows that about 10:45 P.M. an announcement was made that free refreshments would be served in the southwest corner of the Armory, and immediately the crowd became excited and disorderly, and rushed toward the refreshment stand. The Departmental Report filed in this case, signed by Leo M. Boyle, the Adjutant General, states:

“Elmer Johnson, the Armory watchman on duty, observing the crowd was excited and acting disorderly and behaving in such a manner, which would break down the refreshment stand and cause damage to State property......”

There is no dispute in the testimony that the Armory watchman, Elmer Johnson, was wearing a gun at the time, and that he tried to restore order. There is no question that he drew the gun; and that the gun was discharged, and struck the claimant in the left foot. The evidence, without contradiction, shows that the commanding officer knew that the watchman carried a gun, since on several previous occasions the Armory had been broken into.

The report of Colonel William O. R. Bourne, Armory Custodian, which was made a part of the Departmental Report, shows that the Armory was rented for the purpose stated, and that it was the duty of Elmer Johnson, the janitor, to be present at all meetings, military and civilian, and to keep the premises clean and orderly at all times. The statement of Elmer Johnson, the watchman, attached to and made a part of the Departmental Report, sets out the fact that the crowd became very disorderly when free refreshments were announced, rushed toward the lunch stand, and it was evident that the property of the State was in danger of being damaged, because he was unable to keep the crowd back and restore order. After observing the crowd was disorderly, and State property was in danger of being damaged, he went to his locker to get his pistol, or revolver, in order to help discipline the crowd; and, that, while the pistol was in his possession, and-he was attempting to preserve order, it was discharged, either accidentally or otherwise, and struck claimant in the foot.

A Supplemental Departmental Report was filed in this Court on June 5, 1951, which report was dated May 14, 1951, signed by Leo M. Boyle, the Adjutant General, in which it was stated that Elmer Johnson, the watchman, was not required or authorized" to carry a revolver or pistol in connection with his duties as a watchman.

The pertinent question for the Court to determine in this case is whether or not the relationship of Master and Servant exists between the State of Illinois and Elmer Johnson, the Armory watchman, at the time of the alleged incident. It is pertinent to note on this phase of the case that the State admitted it was the duty of Elmer Johnson, the Armory watchman, to be present at the time of the political meeting, and further admitted that it was the duty of said watchman to keep the place orderly. Under such a situation, it is the Court’s opinion that where the facts stand uncontradicted, as they do in this case, that Elmer Johnson, the Armory watchman, was in the performance of his duties in attempting to restore order, and to save State property, and that the claimant was injured as a result thereof.

There is nothing in the record to indicate that claimant, outside of the fact that he was part of the crowd, did anything to provoke or bring about the assault upon him by the watchman, Elmer Johnson.

In the case of Metzler vs. Layton, 373 Ill. 88, the Court, on pages 91 and 92, held:

“An office manager has the duty of protecting the property and business of his employer placed under his control, and that duty, by the very character of his position, is more comprehensive than is the duty of a mere employee or special servant. His employer is responsible for his acts done in safeguarding its property, even though the manager acts unwisely. In Central Motor Co. vs. Gallo, 94 S.W. (2d) 821, the Court said: “The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury on a third person.”

There is no dispute from the admission by the State that the duties of the watchman were to protect State property, and to'preserve order. There is no dispute in the evidence that Elmer Johnson, the Armory watchman, was attempting to restore order, and to protect State property. It is the opinion of the Court that this brings the case directly within the rule announced in the case of Metzler vs. Layton, supra.

The medical testimony shows that the claimant sustained a comminuted fracture of the cuneiform bone of the left foot. The record shows that the claimant was in the Cook County Hospital, where he was taken from the Michael Reese Hospital, and remained there for twenty days; that the claimant had his left foot in a cast for three weeks; that the bullet hit the bone in claimant’s foot and emerged from the bottom thereof; and that the claimant was incapacitated for a month after the incident. The claimant offered in evidence a bill of the Cook County Hospital in the amount of $180.00, which apparently he became responsible for, although the testimony does not show that the bill was paid, nor was there any testimony that it was a reasonable and customary charge in the area. There was no testimony about loss of earnings, nor any disability with reference to the foot, other than when the claimant stands too much on his leg, .it swells; or, when he does some heavy work, it hurts the bottom of his foot.

It is apparent from the record that the claimant suffered no really serious disability as the result of the incident in question, and that his only actual expense as a result of the accident was his hospital bill in the amount of $180.00.

From all of the testimony and the record in this, case, it is apparent to the Court that the claimant was injured by an employee of the State of Illinois, when said employee was in the course of his employment, and while said employee was protecting the property of the State. For the reasons assigned, the claimant is entitled to an award.

An award is entered in favor of the claimant in the amount of Five Hundred Dollars ($500.00).


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4466
    Prince Harrison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    John H. Searing, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Prince Harrison, filed his complaint on July 23, 1951, wherein he alleges damages for the years he was compelled to serve in the Illinois State Penitentiary in violation of his constitutional rights.

On October 24, 1951, respondent filed its motion to strike claimant’s complaint, and dismiss this cause. Thereafter, claimant filed his motion to strike respondent’s motion to dismiss.

We have held in the case of James Montgomery vs. State, No. 4264, that for this Court to have jurisdiction of subject matter of this type the Legislature, by express provision, would have to create an act providing for such a remedy.

The motion of respondent to strike and dismiss this cause is hereby sustained.

Case dismissed.


text:
    (No. 4493
    Homer Garrott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    Paul D. Reese, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Homer Garrott, claimant, filed his claim herein on February 11, 1952, alleging that on February 27, 1951, he was employed by the Department of Public Works and Buildings, Division of Highways, as a flagman. On that day, claimant was struck by an automobile on U. S. Highway No. 51, approximately one-half mile south of the Village of Cobden, Illinois, and sustained serious injuries, as a result thereof.

The record consists of the complaint, motion of respondent to dismiss filed on February 15, 1952, and objections or suggestions of claimant in opposition to the motion of respondent to dismiss.

This cause now comes before the Court on a motion of respondent to dismiss by the Attorney General, who alleges that the Court has no jurisdiction, since it is Apparent upon the face of the complaint that the claimant is basing his cause of action upon the Workmen’s Compensation Act.

Claimant bases his claim upon House Bill No. 900, which was an Act to amend certain sections of the Court of Claims Act, passed by the Sixty-Seventh General Assembly of the State of Illinois, and approved on the 16th day of July, 1951, which reads as follows:

“Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 1. Sections 2 and 8 of “An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named”, filed July 17, 1945, are amended to read as follows:
2. Upon the expiration of the terms of office of the incumbent judges the Governor shall appoint their successors by and with the consent of the Senate for terms of 2, 4 and 6 years commencing on the third Monday in January of the year 1953. After the expiration of the terms of the judges first appointed pursuant to the provisions of this amendatory Act, each of their respective successors shall hold office for a term of 6 years and until their successors are appointed and qualified.
8. The Court shall have jurisdiction to hear and determine the following matters:
A. All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency.
B. All claims against the State founded upon any contract entered into with the State of Illinois.
C. All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against the Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of 87,500.00 to or for the benefit of any claimant. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.
D. All claims against the State for personal injuries or death arising out of and in the course sof the employment of any State employee and all claims against The Board of Trustees of the University of Illinois for personal injuries or death suffered in the course of, and arising out of the employment by The Board of Trustees of the University of Illinois of any employee of the University, the determination of xyhich shall be in accordance with the substantive provisions of the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act, as the case may be.
E. All claims for recoupment made by the State of Illinois against any claimant.”

House Bill No. 1078, a further amendment to certain sections of the Court of Claims Act, passed by the Sixty-Seventh General Assembly of the State of Illinois, and approved on July 11, 1951, contains the following:

“Be it enacted by the People of the State of Illinois, represented in the General Assembly:
Section 1. Section 8 of “An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named”, filed July 17, 1945, is amended to read as follows:
8. The Court shall have jurisdiction to hear and determine the following matters:
A. All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workmen’s Compensation Act or the Workmen’s Occupational Diseases Act.
B. All claims aganist the State founded upon any contract entered into with the State of Illinois.
C. All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against The Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $2,500.00 to or for the benefit of any claimant. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.
D. All claims for recoupment made by the State of Illinois against any claimant.
2. This amendatory Act of 1951 shall not affect any action or claim pending in the Court of Claims at the time it takes effect and all such actions or claims shall be disposed of in the manner provided for before such effective date.”

The claimant contends that where two or more amendments to the same section of the Statute, or subject, are passed at the same session of the General Assembly, which are inconsistent or repugnant, the amendment last passed prevails, and is the law, as it is the last expression of the Legislature, which is given effect.

In the Illinois Supreme Court case of People ex rel Schlaeger, County Collector vs. Mattes, decided on January 22, 1947, 396 Ill. 348, 71 N.E. (2d) 690, Justice Fulton said:

“It is well settled that where acts are passed at the same session, containing conflicting provisions, the whole record of the legislation will be examined in order to ascertain the legislative intent, and in all cases the primary question is the intention of the Legislature, rather than the technical priority of the passage of the acts.”

The Court feels that it was the intention of the Sixty-Seventh General Assembly to remove claims arising under the Workmen’s Compensation Act and the Occupational Diseases Act to the Industrial Commission and that it no longer has jurisdiction to determine claims, which fall in these categories.

For the reasons stated, the motion of the Attorney General to dismiss must be sustained.

Cause dismissed.


text:
    (No. 4496
    Graceland Cemetery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    Graceland Cemetery, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Graceland Cemetery, filed its complaint on February 19, 1952, alleging non-payment of bills in the sum of One Hundred Twenty Dollars ($120.00) for cartage and the erection of twelve Government headstones for soldiers buried in Graceland Cemetery.

The record consists of the complaint and Departmental Report. From the Departmental Report, it appears that the statement of claimant was not presented for payment before the appropriation and funds from which these invoices were payable had lapsed.

Where properly authorized headstones were erected, and a statement submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriations from which it is payable, an award for the reasonable value will be made.

An award is, therefore, entered in favor of Graceland Cemetery for the sum of One Hundred Twenty Dollars ($120.00).


author: Lansden, J.

text:
    (No. 4498
    Public Service Company of Northern Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    K. J. Owens, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Public Service Company of Northern Illinois, seeks to recover from respondent the sum of $39.36 for electric service furnished respondent.

All of the facts in the case have been stipulated, and such stipulation is hereby approved.

Seven traffic lights were put in operation on January 6, 1951 on McCormick Road in Cook County, which is part of the State Highway System. For some unknown reason, claimant neglected to submit its voucher for such electric service for the month of January, 1951 to the Division of Highways until November, 1951. By that time the appropriation to pay same had lapsed, although until the lapse there were ample funds to pay it. Therefore, claimant’s sole recourse is in this Court.

Respondent admits it owes claimant, and concedes that the billed charge of $39.36 is in accordance with the rate for such service approved by the Illinois Commerce Commission.

An award is, therefore, entered in favor of Public Service Company of Northern Illinois for the sum of $39.36.


text:
    (No. 4283
    Barney Robertson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Hickman and Hickman; and, Pfeifer, Fixmer and Gasaway, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Barney Robertson, was employed by the State of Illinois, Department of Public Welfare, at the St. Charles School for Boys intermittently from 1937 until May 11, 1949. On the latter date, he was injured while performing his duties as a Cottage Parent II.

Shortly after 3:00 P.M. on May 11, 1949, claimant was getting onto a farm wagon, when the team pulling the wagon ran away, and he was thrown over a woven wire fence into a field, and rendered unconscious. He was removed to the hospital where it was found that he had fractures of the second, third, fourth, fifth and sixth ribs, and also a fracture of the right clavicle. The claimant alleges that he is totally and permanently disabled due to the accident.

The record in this case consists of the complaint, Departmental Report, transcript of evidence, abstract of evidence, statement, brief and argument of claimant, motion of respondent for an extension of time in which to file its brief, statement, brief and argument of respondent, motion of claimant for leave to reopen proofs for purpose of introducing additional testimony, motion. of claimant for an extension of time in which to file reply brief, petition of claimant for rehearing, additional transcript of evidence, and the oral arguments of counsel for the parties hereto.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

Dr. Richard M. Johnson, in his testimony, was asked, "Would it be true, Doctor Johnson, that part or some portion of his physical condition would be due to the accident of which you have had a history?” Dr. Johnson answered this question as follows, “I would say a part of it is due to the accident, and part of it is not.”

Dr. James T. Donosky testified that he had examined claimant on December 27, 1952, and found him suffering from a condition known as “Freidmann’s post concussion syndrome, a permanent condition caused by the brain concussion he received as a result of the accident.” Dr. Donosky testified that “post concussion syndrome is not an organic disturbance. In other words, if we were to go and examine this man’s brain, we would find nothing wrong with it, but, functionally, there is something wrong.” The symptoms of post concussion syndrome are headaches, dizziness, getting tired easily, and emotional instability. Claimant has all of these symptoms. Dr. Donosky also found that claimant did not have a perfect union when his fractured collar bone was repaired, and that the present fibrous union causes pain with the raising of the arm and shoulder. Claimant was also said to have a pulsating mass in the right side of the neck, just above the right sterno travicular joint, at the time of Dr. Donosky’s examination. Further testifying, Dr. Donosky stated that claimant is now unable to earn a living for himself by manual labor.

Claimant testified he was unable to work on his 20 acre farm, or engage in any other kind of gainful employment since his injury.

From the additional medical testimony, we are of the opinion that claimant is permanently disabled, and has not been able, and is not able to do work of any kind.

We conclude, therefore, after a careful consideration of the record, that the claimant is entitled to an award for permanent total disability.

Claimant was 63 years of age, and had no children dependent upon him for support. He returned to work for respondent on August 3, 1948, and worked until he was injured. At the time of his accident he received $175.00 per month, and employees in the same classification earn more than $1,560.00 per year. His compensation rate would, therefore, be the maximum of $15.00. Since the injury occurred subsequent to July 1, 1947, this must be increased 30%, making a compensation rate of $19.50 per week.

All medical, hospital, and other expenses have been paid by the respondent.

The claimant is, therefore, entitled to an award of $5,200.00 less the sum of $572.16, which sum was paid to claimant for temporary total disability, or a total award of $4,627.84, payable as follows:

$3,136.68, which has accrued from May 12, 1949 to June 11, 1952, from which must be deducted the sum of $572.16, making a sum of $2,564.52, which is payable forthwith;
$2,063.32, to be paid in weekly installments of $19.50 per week, beginning June 18, 1952, for a period of 105 weeks with a final payment of $15.82; thereafter a pension for life in the sum of $416.00 annually, payable in monthly installments of $34.66.

Rose Ferando was employed to take and transcribe the evidence at the hearings before Commissioner Summers. Charges in the amounts of $35.50, $50.00 and $26.75 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Rose Ferando in the amount of $112.25, which is payable forthwith.

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


text:
    (No. 4287
    Terry Lee Dudley, a minor, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    John E. Carlson and Sidney Davidson, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

On June 12, 1949, First Lieutenant Leo F. Dudley, Jr., an officer in the Illinois National Guard, while under competent orders, was killed in an airplane crash at the airport at Quincy, Illinois.

Claimant, Terry Lee Dudley, who was born on January 18, 1947, was the only child and dependent of decedent, and seeks to recover from respondent under one section of the Military and Naval Code, Ill. Rev. Stat., 1947, Chap. 129, Sec. 143, which reads as follows:

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

Betty L. Dudley is the mother of Terry Lee Dudley, and on June 1,1949 she and decedent were divorced. Mrs. Dudley was awarded the custody of Terry Lee, but was allowed no alimony. Decedent was, by the decree of divorce, ordered to pay Mrs. Dudley the sum of $15.00 per week for the support of Terry Lee, and also to take care of all medical bills for his son.

Decedent’s earnings at the time of his death averaged $75-$80 per week in his employment as a printer.

At the time of the hearing of this case, Terry Lee Dudley was receiving $156.10 per month from three sources: (1) $55.10 per month as the beneficiary of his father; National Service Life Insurance policy, (2) $43.00 per month from the Federal Security Agency, as a minor child entitled to Social Security Act benefits, and (3) $58.00 per month from the Veterans Administration, as a minor child and dependent of a National Guard officer killed in line of duty in training or active duty under the National Defense Act, as amended, within the purview of Public Law 108, 81st Congress, 1st Session, approved June 20, 1949; 32 U.S.C. Sec. 160 a-c.

Public Law 108 was retroactive to August 14,1945, and extended to members of the U. S. Naval Reserve, U. S. Marine Corps Reserve, Army of the United States, Air Force of the United States, National Guard of the United States, both ground and air, and the federally recognized National Guard of the several States, the same benefits and pension rights as were afforded members of the Regular Navy and Marine Corps, Regular Air Force and Regular Army, if at the time of disabling injury or death members of such reserve components of the armed forces were in line of duty, and engaged in any type of training or active duty under certain specified sections of the National Defense Act, as amended.

Officers and enlisted men of the Illinois National Guard are members of both the National Guard of the United States, and the federally recognized National Guard of the several States.

It is, therefore, obvious an Illinois National guardsman is covered in most instances by both Federal and State legislation in the event of disabling injury or death, and this Court for the first time is called upon to determine the impact, if any, of Public Law 108 upon the Ill. Rev. Stat., 1947, Chap. 129, Sec. 143.

One of the primary purposes of both Public Law 108 and the applicable section of the Military and Naval Code is to render more attractive to potential members service in the National Guard, and to afford protection to members thereof in activities, which concededly are often extremely dangerous. In other words, both statutes serve as stimulants to voluntary military service, which service is of utmost importance to the safety, welfare and protection of the Nation and the State.

The State of Illinois has since 1909 provided, through awards of this Court, financial help or assistance to guardsmen injured, or the heirs or dependents of guardsmen killed while performing their duties in the Illinois National Guard under competent orders.

Although not as broad in its coverage as the applicable provisions of the Military and Naval Code, Public Law 108 does cover most activities of national guardsmen in a duty status.

That the United States has now seen fit to legislate for the benefit of Illinois National guardsmen does not mean that the State of Illinois cannot do likewise.

We, therefore, hold that payments under Public Law 108 by the United States do not preclude payments by the State of Illinois under the applicable section of the Military and Naval Code.

The section of the Military and Naval Code, under which claimant is proceeding, does not set up a scale of payments. Previously we have used the Workmen’s Compensation Act as a guide. Hall vs. State, 12 C.C.R. 464; Quigley vs. State, 17 C.C.R. 27. But, in so doing, we have not considered the Workmen’s Compensation Act to be either a ceiling over or a floor under our awards. However, we do in this case conclude that the amounts now being received by claimant under Public Law 108 should operate to reduce the amount that might otherwise be awarded.

By the divorce decree above referred to, it was determined that decedent should pay to his former wife the sum of $15.00 per week for the support of claimant. This amounts to $780.00 per year. In addition, decedent was required to pay all medical bills. Payments to claimant under Public Law 108 amount to $696.00 per year. The insurance and Social Security payments now being received by claimant should, we feel, be disregarded, as they would be under the Workmen’s Compensation Act.

Furthermore, as we understand it, payments under Public Law 108 will cease when claimant reaches 18 years of age. Vet. Reg. No. 10, Part VI, foll. Chap. 12, Title 38 U.S.C.

Since claimant will attain his majority approximately 18½ years from the date of his father’s death, and the amount now being received under Public Law 108 is less than provided in the decree of divorce, we believe that the merits of claimant’s case indicate a need for financial help, and we conclude that claimant is entitled to an award of $2,000.00.

An award is, therefore, entered in favor of claimant, Terry Lee Dudley, payable to Betty L. Dudley, his mother, next friend and legal guardian, in the sum of $2,000.00.


text:
    (Nos. 4337-4338
    Antoinette Sommer, et al, No. 4337, and Alvin Friederich, et al, No. 4338, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Meryl T. Schroeder and Herbert F. Lill, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

In case No. 4338, the claimants are Alvin Friederich, his wife, Ethel, his minor children, James and Carol Jean, his brother-in-law, Vernon Middendorf, and his wife, Delores. The State Farm Mutual Auto Insurance Company of Bloomington, Illinois is a claimant, as subrogee to Alvin Friederich.

Shortly after midnight on May 31, 1950, the claimants were riding in a 1946 Model Chevrolet Tudor Sedan driven by Alvin Friederich. They were returning to Mascoutah, Illinois from a church picnic at St. Libory on a State Highway marked Routes Nos. 43 and 460. At a point approximately three and one-half miles east of Fayetteville, Illinois, Alvin Friederich turned off of the paved portion of the road onto the shoulder in order to avoid two cars, which were coming toward him abreast. A collision was avoided, but, as Friederich attempted to return to the pavement, he lost control of his car, which went across the pavement and into a ditch, severely damaging the car and injuring the claimants.

In Case No. 4337, the claimants are Antoinette Sommer, her husband, Lawrence Sommer, and her minor children, Eileen and Raymond Sommer. The State Farm Mutual Auto Insurance Company has expended certain sums on behalf of these claimants, but asserts no rights in this claim.

On June 28, 1950, at approximately 1:30 P.M., Antoinette Sommer was driving a 1947 Model Chevrolet Tudor Sedan, owned by her husband, Lawrence Sommer, and was accompanied by her minor children, Eileen, Raymond and Jerry. Claimants were driving from their home to Albers, Illinois on Highways Nos. 43 and 460, between Fayetteville and St. Libory. At a point near the place where the Friederichs’ accident occurred, Antoinette Sommer drove off of the pavement, and, in attempting to return to it, lost control of the car, which went across the road off of the shoulder, turned over, went across a ditch, and came to a stop . with its wheels headed in the opposite direction from which it had started. The car was severely damaged, and all of its occupants, except Jerry Sommer, were injured.

The claimants in each of these cases contend that the State of Illinois was negligent in maintaining the highway, marked Routes Nos. 43 and 460 between Fayetteville and St. Libory, in such a manner that the shoulder was lower than the paved portion, and they seek to recover for the injuries sustained in the respective accidents.

The respondent contends that, although the claimants were licensed and privileged to use the public highways, they used them subject to the restrictions legally placed upon such use, and that the statutes required the vehicles in these cases to be driven upon the right half of the pavement, and as the vehicles in these cases were not so operated, the claimants cannot recover herein. The respondent further contends that the fact that the shoulder was depressed, so that it was lower than the pavement along the highway where the accidents complained of herein occurred, merely created a condition, and the subsequent acts of a third person caused the injury.

The record consists of complaint in Cases Nos. 4337 and 4338, amended complaint in Case No. 4338, transcript of evidence, claimants’ exhibits Nos. 1 - 13, inc., respondent’s exhibits A and B, abstract of evidence, brief and argument of claimants, statement, brief and argument of respondent, reply brief of claimants, and oral arguments of all of the parties concerned herein.

Vehicles upon highways, which are paved, are required to be driven upon the right half of the pavement, except in certain situations.

(A). Section 54 of the “Uniform Act Regulating Traffic on Highways” provides as follows:

“Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
1. When overtaking and passing another vehicle proceeding in the same direc- ' tion under the rules governing such movement;
2. When the right half of a roadway is closed to traffic while under construction or repair;
3. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
4. Upon a roadway designated and sign posted for one way traffic.
5. Whenever there is a single tract paved road on one side of the public highway and two vehicles meet thereon, the driver on whose right is the wider shoulder shall give the right-of-way on such pavement to the other vehicle."
Par. 151, Chap. 95M, HI. Rev. Stat., 1949.

(B). The terms “roadway” and “improved highway” are defined by Section 12 as follows:

“(d) Roadway. That portion of a highway improved, designed, or ordinarily used for vehicular travel.
(e) Improved highway. Whenever the term ‘improved highway’ is used in this Act, it shall be construed to include roadways of concrete, brick, asphalt, macadam and gravel.”
Par.. 109, Chap. 95H, IU. Rev. Stat., 1949.

Both of the cases before this Court present the question of the duty of the respondent, the State of Illinois, in the maintenance of the shoulder of its highways.

We do not feel respondent has a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off onto the shoulder, for whatever their purpose might be, and then attempting to return to the roadway, while traveling at the same speed. We do not feel that the State of Illinois is bound to the same degree of care in the maintenance of its highways as required by a city in the maintenance of its streets.

A close examination of the record does not show negligence on the part of the respondent, the State of Illinois, and for the reasons assigned, the claims must be denied, and the causes of action herein dismissed.


text:
    (No. 4370
    Annie L. Marshall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Sidney S. Schiller, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Annie L. Marshall, seeks to recover from respondent under the Workmen’s Compensation Act for injuries, which resulted from an accident that arose out of and in the course of her employment as an attendant at the Chicago State Hospital, operated by the Department of Public Welfare. No jurisdictional questions are involved.

On November 13, 1951, an opinion was filed in this case giving claimant a substantial award. On December 7,1951, respondent filed a petition for rehearing, which was granted on January 8, 1952, and the case was remanded to Commissioner Anderson for the taking of further testimony, after a physical examination of claimant by a doctor of respondent’s choosing. The final hearing was had in this case on April 4, 1952. Over twice as much testimony was heard on rehearing as at the original hearing on June 7, 1951.

On July 17, 1950, claimant was assisting in the bathing of a patient, and, when lifting the patient, weighing around 200 pounds, she injured her back by reason of which she was hospitalized thirteen days at the institution’s hospital. After returning to work, claimant again injured her back on August 12, 1950, when she slipped and fell on a wet floor.

From the record there is no serious dispute between claimant’s and respondent’s doctors-. By objective and subjective symptoms, and X-Rays, an agreed diagnosis of acute aggravation of pre-existing arthritis in the lumbar region was arrived at. The permanency of such condition of ill being is conceded, and that such condition has rendered claimant permanently and partially disabled is apparent.

Claimant is, therefore, entitled to an award under Section 8 (d) of the Workmen’s Compensation Act. In arriving at the amount thereof, the reduced earning capacity of claimant must be determined. Franklin County Coal Co. vs. Ind. Corn., 398 Ill. 515.

Prior to her accident, claimant earned $135.00 per month, or $1,620.00 on an annual basis. Subsequent to her accident she worked in a candy store, but the record discloses that she was able to work only about three quarters of the time she was supposed to. Her average weekly earnings subsequent to her accident were $27.00 per week, or $1,404.00 on an annual basis. The annual differential in her earning capacity is, therefore, $216.00, or $4.15 per week.

On the date of her accident, claimant was 34 years of age, married, and had four children under 18 years of age dependent upon her for support. The names and ages of such children are Sidney McKennie, 16, Herbert Marshall, Jr., 15, Jesse Marshall, 13, and Delores Marshall, 12. The legitimacy of any of these children is immaterial. Marshall vs. Ind. Com., 342 Ill. 400.

Medical services and appliances were furnished, and paid for only in part by respondent. Claimant paid Dr. S. I. Weiner, Chicago, Illinois, the sum of $25.00 for X-Rays and treatments in an attempt to be cured and relieved of the effects of her injuries, but she still owes Dr. Weiner the sum of $65.00.

During her period of hospitalization, claimant was paid her full salary, which in this case exactly equals her rate of compensation of $30.00 per week. However, such payment of $58.50 will have to be credited against the award hereinafter made.

William J. Cleary' & Co., Court Reporters, Chicago, Illinois, was employed to take and transcribe the testimony at the hearings before Judge Delaney and Commissioner Anderson. Charges in the amounts of $60.80 and $138.80, respectively, were incurred, which charges are reasonable and customary. An award is,, therefore, entered in favor of William J. Cleary & Co. for $199.60.

Under Section 8 (d) of the Workmen’s Compensation Act, an award may not exceed a death award, or extend for more than 8 years, or 416 2/7 weeks. Since claimant’s differential in earnings per week is $4.15, one-half is, therefore, $2.08, which must be increased by 65%, making a weekly rate of $3.43. Payments for 8 years will not equal a death award, and, therefore, payments hereunder must cease at the end of 8 years.

An award is entered in favor of claimant, Annie L. Marshall, under Section 8 (d) of the Workmen’s Compensation Act for permanent partial disability in the amount of $1,427.86, less the sum of $58.50 already paid, or a net award of $1,369.36. In addition, claimant is entitled to awards of $25.00 and $65.00, lespectively, for medical expenses paid or incurred by her. These awards are payable as follows:

$25.00, which is payable forthwith to claimant for medical expenses;
$65.00, which is payable forthwith to claimant for the use of Dr. S. I. Weiner for medical expenses;
$340.06, less payments of $58.50 already made, or the sum of $281.56, which has accrued, and is payable forthwith;
$1,087.80, which is payable in weekly installments of $3.43 per week, commencing on June 18, 1952, for a period of 317 weeks, plus one final payment of $0.49.

Jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1949, Chap. 127, Sec. 180.


author: Delaney, J. Delaney, J.

text:
    (No. 4413
    Sylvia Pulley, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1951.

      Supplemental opinion filed June 11, 1952.

    R. W. Harris, and Powless and Winters, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Sylvia Pulley, widow of Guy Pulley, deceased, Marvin Pulley, a minor, Yvonne Pulley, a minor,

Robert Pulley, a minor, Margaret Pulley, a minor, and Wesley Carrol Pulley, a minor, by Sylvia Pulley, their mother and next friend, filed their complaint on March 26, 1951 for compensation under the provisions of the Workmen’s Compensation Act.

The record consists of the complaint, Departmental Report, original stipulation filed in lieu of evidence, containing various exhibits, and copy of the stipulation filed in lieu of evidence.

Mr. Pulley was first employed by the Division of Highways on March 14, 1949 as a common laborer at a salary of ninety cents an hour. On July 1, 1949, his wage rate was increased to one dollar an hour; and, on May 1, 1950, Mr. Pulley was appointed to the job of highway section man with a salary of $224.00 a month.

Mr. Pulley worked continuously during his period of employment with the Division of Highways', and earned a total sum of $2,428.00 in the year preceding his injury. Mr. Pulley had five children under 18 years of age dependent upon him for support at the time of his accident. The Division has paid no compensation for temporary disability.

On January 30, 1951, Mr. Pulley worked at his regular maintenance duties. At approximately 4:00 P.M. on that date, snow began to fall in the area of his maintenance section. Mr. Pulley and a fellow employee, Mr. Jeff Cagle, attached a blade snow plow to the truck assigned to Mr. Pulley, and began to plow snow from a section of the highway assigned to him for maintenance. Mr. Pulley’s assistant, Herman Pratt, was instructed by a superior to go home and get some rest, and relieve Mr. Pulley later during the evening. At approximately 10:25 P.M., Mr. Pratt and Mr. Pulley met at the Division of Highways’ maintenance shed on the west side of S.B.I. Route No. 166 about four miles south of S.B.I. Route No. 13 in Williamson County. Mr. Pratt had stopped his car on the driveway leading to the maintenance shed. Mr. Pulley was plowing snow in a northerly direction on S.B.I. Route No. 166. As he came to Mr. Pratt’s car, he drove the truck partially off the paved portion of the highway, and stopped parallel to the centerline of the highway. Mr. Pratt came from the west side of the highway, preparatory to taking charge of the truck. There were no obstructions of any kind to traffic in the west lane. As the change of drivers was taking place, Mr. Pratt noticed headlights of a vehicle approaching from thé north. The changing of position of the headlight beams suggested to Mr. Pratt that the south bound vehicle was not entirely under control. As a measure of safety, Mr. Pratt ran across the pavement to the west shoulder of the highway. Mr. Pulley elected to stand on the left running board of the Division truck. As the south bound vehicle, a truck loaded with coal, was about to pass the Division truck, it swerved or skidded into the left side of the Division vehicle, crushing Mr. Pulley between the vehicles.

Mr. Pulley suffered severe crushing injuries of his left arm, chest, and head. Immediately following the accident, a third truck, which was also approaching from the north, was flagged to a stop. Mr. Pulley was placed in the third truck, and taken to the Holden Hospital at Carbondale, where Dr. Ben Fox attended him. Death occurred at approximately 12:05 A.M., January 31, 1951, shortly after Mr. Pulley was brought to the hospital.

Dr. Ben Fox submitted the following report to the Division of Highways:

“Nature-of injury — Crushing injury, left chest; partial avulsion, left hand. Treatment — Patient moribund on admission. X-Ray — None made. Date patient was discharged — Expired 1/31/51 — 12:05 A.M.”

Decedent’s compensation rate will, therefore, be $30.00 per week.

Claimants are entitled to an award of $8,500.00 under Section 7, Paragraphs (a) (h) (3) of the Workmen’s Compensation Act.

An award is, therefore, made to claimant, Sylvia Pulley, as widow of Guy Pulley, and as mother and next friend of Marvin Pulley, a minor, Yvonne Pulley, a minor, Robert Pulley, a minor, Margaret Pulley, a minor, and Wesley Carrol Pulley, a minor, in the sum of $8,500.00, payable as follows:

$1,221.43, which has accrued, is payable forthwith;
$7,278.57, payable in weekly installments of $30.03, commencing on November 23, 1951 and continuing for 242 weeks, with a final payment of $18.57.

All future payments being subject to the provisions of the Workmen’s Compensation Act, jurisdiction is hereby reserved in this cause for the entry of such further order or orders as may from time to time be necessary.

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

Supplemental Opinion

Delaney, J.

On November 13, 1951, an award was entered by this Court in favor of claimants in the sum of $8,500.00, under Section 7, Paragraphs (a) (h) (3) of the Workmen’s Compensation Act.

Subsequent thereto, respondent filed a petition to modify said award by reason of an action in the Circuit Court of Williamson County, Illinois, No. 22-51, entitled Edgar L. Pulley, Administrator of the Estate of Guy Pulley, Deceased, Plaintiff vs. George W. Phillip's, Defendant, wherein a judgment was entered in favor of Edgar L. Pulley, as Administrator of the Estate of Guy Pulley, Deceased. Said judgment was satisfied in full on June 29, 1951, and a copy of the release has been filed in this cause. Sylvia Pulley, the widow, received the sum of $1,985.33 as a result of the settlement, and five of deceased’s children under 16 years of age, namely, Marvin Pulley, Yvonne Pulley, Robert Pulley, Margaret Pulley and Wesley Carroll Pulley, received the sum of $305.43 each as a result of the settlement, or a total settlement of $3,512.48.

The proceedings in the Williamson County Circuit Court for the injuries resulting in the death of decedent; Guy Pulley, arose out of the same accident for which the action was brought in this Court.

From the award granted herein on November 13, 1951 must be deducted the sum of $3,512.48. The total award granted claimants, Sylvia Pulley, Marvin Pulley, Yvonne Pulley, Robert Pulley, Margaret Pulley and Wesley Carroll Pulley, is, therefore, $4,987.52.

The settlement received from the death claim in the Williamson County Circuit Court equals approximately 117 2/5 weeks. 117 2/5 weeks from the day after the accident in January of 1951 is April 26, 1953. Considering Leap Year, no further compensation payments can be made claimants until April 26, 1953.

An award is, therefore, entered in favor of claimants, Sylvia Pulley, Marvin Pulley, Yvonne Pulley, Robert Pulley, Margaret Pulley and Wesley Carroll Pulley, payable as follows:

$4,987.52, payable in weekly installments of $30.00 per week for 166 weeks commencing May 3, 1953, with one final payment of $7.52.

The future payments hereinabove set forth being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction in this cause is hereby retained for the purpose of making further orders that may from time to time be necessary.

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


text:
    (No. 4451
    Robert Isham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    D. F. Rumsey, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Robert Isham, claimant, filed his complaint on June 28, 1951, seeking an award under the provisions of the Workmen’s Compensation Act for an injury to his left foot, as the result of an accident arising out of and in the course of his employment at the Southern Illinois University, Carbondale, Illinois.

On December 28, 1950, claimant, employed by respondent as a guard, stepped on a mat inside the school canteen. The floor was highly polished. The mat slipped, causing claimant to fall, and his left leg hit the wall and baseboard. His left leg and ankle were broken in three places.

Claimant was treated by Dr. John S. Lewis. Respondent has paid the following medical and hospital bills for claimant: Dr. John S. Lewis, $176.50; hospital bill of $71.50, and ambulance service of $15.00.

No question has been raised by respondent as to the compliance by claimant with all the jurisdictional requirements of the Workmen’s Compensation Act, and from the record in this case all such requirements have apparently been complied with.

At the . time of the accident, claimant had no children under 16 years of age dependent upon him for support, and the earnings of claimant during the year immediately preceding his injury amounted to $2,316.00. His compensation rate would, therefore, be the maximum of $15.00. Since the injury occurred subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $22.50 per week.

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, and transcript of evidence.

Examination by Commissioner Summers of this Court of claimant’s left foot, at the time of the hearing showed the ankle to be completely immobile, and increased in size, which had not been reduced by treatment.

' Neither the claimant nor the respondent produced á medical report of claimant’s treatment by Dr. Lewis. In the absence of this report, it is the opinion of our Commissioner from his examination of claimant’s left foot that he has suffered a 50% loss of use of his left foot, as a result of the injury he received December 28; 1950. •

We find that claimant is entitled to an award for a 50% permanent loss of use of his left foot, under Section-8, Paragraph (e) (14), Workmen’s Compensation Act, for 67}^ weeks. Therefore, claimant is entitled to 67^2 weeks at $22.50 per week, or the sum of $1,518.75.

.-. ■ . Claimant was entitled to temporary total disability from December 28, 1950 to March 5, 1951, a total of 9 3/7 weeks, at his compensation rate of $22.50 per week, or the sum of $212.13. The evidence shows that during the period of temporary total disability the claimant was paid the sum of $454.92, or his full salary. From the total award must be deducted the sum of $242.79, representing an overpayment of money paid by respondent to claimant for temporary total compensation, leaving a balance of $1,275.96.

An award is, therefore, entered in favor of claimant, Robert Isham, in the sum of $1,275.96, all of which has accrued, and is payable forthwith.

An award is also entered in favor of Nina Lee Patton for stenographic services in the amount of $12.45, which is payable forthwith. The Court finds that this is a fair, reasonable and customary charge, and said claim is allowed.

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


author: Schuman, C. J.

text:
    (No. 4470
    Ernest E. Frost, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Louis Rockwell, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant, Ernest E. Frost, seeks to recover for one month’s wages in the amount of $226.00 by reason of a ruling of the Civil Service Commission reinstating him to his position.

Claimant was employed as a House Father at the Illinois State Training School for Boys, and entered the classified Civil Service on July 13, 1939.

On September 8, 1949, claimant was dismissed under an alleged suspension, and suspended for a period of thirty days from September 9, 1949 to October 8, 1949. A suspension notice, dated September 8, 1949, was served on claimant, and the reason given, as set • out in said notice, was “On April 4, 1949, the Institutional doctor declared that you are unable to carry out the duties of a Cottage Parent II due to physical incapacity. On April 9, 1949, an electro-cardiograph examination also indicated a physical incapacity to cope with the duties involved in the position of Cottage Parent II, both physical and emotional. It is therefore necessary to dismiss you.” (Emphasis supplied). This suspension notice was offered and admitted in evidence as claimant’s exhibit No. 1.

On October 7, 1949, a hearing was had concerning this matter before Guilford R. Windes, hearing officer of the State Civil Service Commission.

A letter, dated January 31, 1952, from Fred K. Hoehler, Director, addressed to Honorable Ivan A. Elliott, Attorney General, containing excerpts from the finding of the State Civil Service Commission, was offered and received in evidence as claimant’s exhibit No. 2. A copy of the decision of the State Civil Service Commission was offered and received in evidence as claimant’s exhibit No. 3. On page 9 of said decision, there appears “it is the decision of the hearing officer that the written charges of inability to carry out the duties of Cottage Parent due to physical incapacity were not sustained by the evidence submitted.” On pages 9 and 10 of said decision, there also appears “the Commission finds that said hearing officer was duly appointed; that the hearing conducted by said hearing officer was public; that the employee was present in person, represented by counsel, and called witnesses in his own defense, and the Commission, after considering the record in this cause, and the findings and decision of the hearing officer, hereby approves said findings and decision, and certified them to the Director of Public Welfare for action in accordance herewith. Dated at Springfield, Illinois, the 22nd day of November, 1949.” Restoration of claimant to the payroll was effective as of October 9, 1949.

There was no question raised about the willingness and availability of claimant to work, nor any other defense by a pleading. There was no dispute as to the earnings of the claimant being $226.00 a month.

The Civil Service law was amended in 1949, and the pertinent amendment is as follows (Sec. 14, Chap. 24)4 S.H. Rev. Stat.):

“No officer or employee in the classified service of the State who shall have been appointed under said rules and regulations and after said examination-shall be removed or discharged or suspended for a period of more than thirty (30) days except for cause.”

The above statute apparently gives an appointing officer the right to remove, discharge or suspend an employee for thirty days, but, if for longer, a hearing must be had by the Commission.

The State is correct in its contention that the Act of 1949 did not provide for payment of compensation in the event the Commission ordered a reinstatement.

However, the Act was amended in 1951 to correct this situation, and it now reads as follows (Sec. 14, Chap. 24½ S.H. Rev. Stat.):

“If the Commission certifies a decision that an officer or employee is to be retained in his position and if it does not order a suspension for disciplinary purposes, the officer or employee shall receive full compensation for any period during which he was suspended pending the investigation of the charges.”

If the claimant had been suspended for thirty days, there could be no question that he could not recover. However, a suspension of thirty days was not contemplated, as his notice of suspension was a dismissal. For all practical purposes, claimant was dismissed as of September 9, 1949, and written charges were preferred against him.

The statute provides that, where an employee is discharged for more than thirty days, a hearing is required by the Civil Service Commission within thirty days from the date of the suspension. There are no other written charges that appear in the record, other than the notice of suspension. This notice was, therefore, the written charge for cause.

On the hearing before the Civil Service Commission, the Commission ordered claimant restored to his position, finding that there was not sufficient cause for his discharge. For this reason, claimant was unlawfully discharged.

Under the repeated decisions of this Court, claimant is entitled to an award.

Claimant’s salary at the time of his discharge was $226.00 per month. He is entitled to payment of this salary from and including September 9, 1949 to and including October 8, 1949, or one month.

An award is, therefore, entered in favor of the claimant in the sum of $226.00.


text:
    (No. 4471
    Alta Frost, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Louis Rockwell, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant, Alta Frost, seeks to recover wages for forty-seven days by reason of a ruling of the Civil Service Commission reinstating her to her position. The amount claimed is $306.00.

This case is controlled by the opinion in the Ernest E. Frost case. Claimant, Alta Frost, and Ernest E. Frost are husband and wife, and apparently are employed together as house parents, and the removal or discharge of one involves the other.

There is one exception in this case. The first suspension notice was for a period of seventeen days, and did not involve or require a hearing before the Commission, and was not a discharge as she admittedly was paid in September for eight days. Her discharge was effective by the second suspension notice, setting forth a suspension from September 9,1949 to October 8,1949. For this reason, the suspension being for less than thirty days, no recovery can be had for this period of seventeen days, being the period from August 15, 1949 to August 31, 1949.

Claimant, however, is entitled to an award for her unlawful discharge covering the period of thirty days from September 9, 1949 to October 8, 1949 in the amount of $204.00.

An award is, therefore, entered in favor of the claimant in the amount of $204.00.


text:
    (No. 4490
    J. W. Curran and World Fire and Marine Insurance Company, a Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1952.

    Morey C. Pires, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

These claims are based upon Sec. 372a, Chap. 23, Ill. Rev. Stat., 1951 entitled “An Act concerning damages caused by escaped inmates of charitable, penal and reformatory institutions over which the State has control”, reading as follows:

“372a. Claims for damages caused by escaped inmates of charitable, penal and reformatory institutions.] § 1. Whenever a claim is filed with the Department of Public Welfare or the Department of Public Safety for payment of damages to property, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal or reformatory institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare or the Department of Public Safety, as the case may be, shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department may recommend to the Court of Claims that ah award be made to the injured party, and the Court of Claims shall have power to hear and determine such claims. As amended by act approved Aug. 2, 1951. L. 1951, p. 1892, S.B. No. 535.”

The above quoted statute and Section 8 A of the Act creating the Court of Claims, Ill. Rev. Stat., 1951, Chap. 37, Sec. 439.8, specifically confer jurisdiction upon this Court to determine the claims herein involved.

This Court has made awards under the statute prior to its amendment in 1951 when it related only to damages done by escaped inmates of charitable institutions, Carls vs. State, 15 C.C.R. 26-29; Johnson vs. State, 15 C.C.R. 126; Hassell vs. State, 18 C.C.R. 199.

The record in this case consists of the complaint, Departmental Report, transcript of evidence, commissioner’s report, and stipulation waiving briefs of both parties, an examination of which discloses the following:

On October 9, 1951, one Stanley Pastewski, then an inmate of Dixon State Hospital, Dixon, Illinois, escaped from the institution, and wandered into an area nearby, known as Riverview, Assembly Park, Dixon, Illinois.

Although he did not own the land upon which it was located, claimant, J. W. Curran, owned a four-room frame dwelling in Assembly Park, upon which claimant, World Fire and Marine Insurance Company, had issued a fire insurance policy in the amount of $500.00.

Pastewski entered the dwelling, found a match and some paper, started a fire upstairs, and then carried some burning paper downstairs, where he ignited an old piece of furniture and more paper. He then went outside, sidled off, watched the fire trucks arrive, and the firemen put out the blaze, and then strolled on until apprehended, and returned to the institution. Pastewski “liked to see” fires.

Claimant, Curran, promptly made claim to the Department of Public Welfare. An investigation was conducted, and the liability of respondent established. Said Department has recommended to this Court that the extent of claimant’s damages be determined.

As to claimant, World Fire and Marine Insurance Company, an award will be entered for $500.00, since the company paid claimant, Curran, the full amount of its fire policy, and Curran executed a subrogation receipt to such company for such amount.

Manifestly, claimant, Curran, is also entitled to ' an award, but from the evidence and the law we must determine the amount thereof. It should be borne in mind that there is in this case no question of damages to land, because Curran did not own the land upon which the house rested.

In 1945 Curran bought the house for $1,000.00, when it was at least 20 years old. During the next 6 years, he expended $500.00 to $600.00 for improvements, consisting of wiring, plumbing, roofing, papering, and exterior and interior painting. From 1945 to October, 1951, there was a general appreciation in value of all buildings, which were properly maintained, as was Curran’s house.

Curran paid $56.00 per year as rent for land upon which the house was located, and had received $25.00 per month in rent until September, 1951, when the house was vacated, because Curran was going to move it approximately 3 miles to another location, since the landowner needed the lot for a subdivision development.

. Although Curran sought to establish a value considerably higher, the insurance man, who wrote the $500.00 fire policy, testified he would have insured the structure for $2,000.00. Pictures introduced in evidence showed the size, type of construction and general condition of the house.

We, therefore, conclude that just before the fire Curran’s house was worth $2,000.00.

Evidence was also introduced that it would cost $3,285.00 to restore the house to its former condition.

Although Curran is entitled to the benefit of the rule of law "that that valuation should be adopted, which will be most beneficial to the injured party, as he is entitled to the benefit of his premises intact”, Richards vs. Gundlach, 245 Ill. App. 264, 267, no measure of damages can ever be applied, which would give anyone a profit from a casualty.

It is, of course, proper to consider the cost of restoration, Fitz Simons vs. Braun, 199 Ill. 390, but when the cost of restoration exceeds the value of the property, the value of the property becomes the ceiling on the amount of damages recoverable, especially when the building is old. McCormick on Damages (Hornbook Series) 1935, Sec. 126, pp. 482-484; Cf. Chicago & N.W. Ry. Co. vs. Davis, 78 Ill. App. 58. Certain Illinois cases indicate that this is the rule to apply in this case, for they permit the measure of damages to be the cost of restoration, if such can be done readily and at a relatively modest expense. Clark vs. Public Service Co., 278 Ill. App. 426, 447, and cases cited therein; Cooper vs. Kankakee Elec. Light Co., 164 Ill. App. 581, 586.

The question of the value of the salvage is somewhat troublesome. The Departmental Report fixes it at $500.00. Curran, and others, testified that he had advertised the salvage for sale at $250.00, and found no bidders; and that the labor to dismantle the remainder of the house would exceed the value of the salvage. Commissioner Anderson, who viewed the damaged house, and whose complete description of the structure has been of great value in the preparation of this opinion, expresses an opinion that the salvage is worth $300.00. The pictures in evidence corroborate Commissioner Anderson, and we, therefore, conclude that the salvage should be valued at Commissioner Anderson’s figure.

Curran has, therefore, been damaged to the extent of $1,200.00, which is the value of the building, $2,000.00 less insurance received of $500.00, and salvage worth $300.00.

An award is, therefore, entered in favor of claimant, J. W. Curran, for $1,200.00.

An award is also entered in favor of claimant, World Fire and Marine Insurance Company, for $500.00.


text:
    (No. 4068
    Henry C. Moore, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 9, 1951.

      Petition of Respondent for rehearing denied April 10, 1951.

      Petition of Respondent to reconsider its petition for rehearing denied July 8, 1952.

    John R. Snively, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; James C. Murray, A. Zola Groves, William J. Colohan, William H. Sumpter, and Robert J. Burdett, Assistant Attorneys General, for Respondent.
   Lansden, J.

Claimant, Henry C. Moore, seeks to recover from respondent for its negligence, while claimant was a convict at the so-called “Old Prison” of the Illinois State Penitentiary, Joliet, Illinois.

On October 6, 1945, claimant began to serve a sentence for larceny at such penitentiary. His cause of action arose on January 30, 1946. On October 2, 1946, claimant was transferred from the Old Prison to the Stateville Branch, and on October 30, 1946, he was released on parole. On March 13, 1947, he was returned to said place of confinement under a new sentence, and also as a parole violator.

Claimant filed his case on January 27, 1948, while confined in the penitentiary, and the hearing of the case was held at the penitentiary.

We have previously held that a convict can maintain an action in this Court, and that a conviction for a felony does not bar a convict from prosecuting a claim before this Court, while in such status.

In McElyea vs. State, 7 C.C.R. 69, we said:

“The law of this State gives unto a prisoner serving a sentence in any penal institution the right to sue or be sued in the Courts of this State during the period of such confinement. A convict does not lose his personal rights because of his imprisonment although he is deprived by law of certain rights of citizenship. Therefore, as he possessed said personal rights the claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary.”

In Robertson vs. State, No. 4211, opinion filed February 14, 1950, we followed the McElyea case.

Claimant can, therefore, maintain his action. See also Gordon vs. Garrson, 77 F. Supp. 477.

Prior to the 1945 Court of Claims Act, no convict could recover for negligence from respondent, because it was held that the operation of penal institutions was a governmental function, and, therefore, the doctrine of respondeat superior could not be applied. Monohan vs. State, 10 C.C.R. 10; Hewlett vs. State, 13 C.C.R. 27.

However, Section 8 C of the 1945 and present Court of Claims Act reads as follows:

"All claims against the State for damages in cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against The Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $2,500.00 to or for the benefit of any claimant. The defense that the State or The Board of ' Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.”

We have held that such Section constitutes a complete waiver by the State of its immunity from liability in tort for the negligent exercise of a governmental function, and that the doctrine of respondeat superior can be applied against respondent in an action based on negligence. Rickleman vs. State, No. 4195, opinion filed October 20, 1949.

We shall hereinafter refer to said Section 8 C of the 1945 Court of Claims Act as it applies to another phase of the case, but, at this point in our opinion, we merely observe that said Section affords claimant an opportunity to have his claim heard, and to obtain an award, if the facts of the negligence of respondent are established.

Claimant’s amended complaint contained three counts. Respondent’s answer thereto amounted to a general denial, and no affirmative defenses were set forth therein.

All of these counts seek substantial damages for personal injuries sustained by claimant, who, as an inmate performing duties in the general kitchen at the State Penitentiary at Joliet, sustained serious injuries by reason of his left hand being caught by the worms of a food grinding machine. Count I charged respondent with negligence in permitting grease, oil, soap, water and other slippery material to accumulate on the floor of the kitchen on which claimant slipped and lost his balance. Count II charged respondent with negligence in that (a) it assigned him to work under unsafe conditions, (b) failed to give claimant proper instruction in the use of the grinder, or warn him of the dangers thereof, (c) failed to provide adequate or proper safeguards for the grinder, (d) operated the grinder without adequate or proper safeguards, and (e) failed to furnish adequate help or assistance to operate the grinder. Count III charged respondent with violation of a rule adopted by the Industrial Commission pursuant to the Health and Safety Act, which provides that meat, fish and other food grinders shall be provided with a hopper of such size and arrangement that the operator’s fingers cannot come into contact with the cutting or feeding knives or worm.

As to Count I, we shall not set forth the evidence in detail. There is some conflict therein, but, in our opinion, the greater preponderance of the evidence discloses that the floor of the kitchen was comparatively dry, and that all reasonable steps had been taken to remove any slippery substances therefrom. Claimant cannot, therefore, prevail as to Count I of his complaint.

As to Counts II and III, about the only fact not in dispute is; that a hopper was not attached to the food grinder at the time claimant’s left hand was caught in the worm thereof, and so badly mangled that most of his first, second and fourth fingers, and all of his third finger had to be amputated. There were crushing injuries to the palm and tendons of claimant’s hand, and one metacarpal bone was fractured.

On the day of the accident, claimant and others assigned to work in the kitchen reported for work after breakfast. First claimant with some other convicts scrubbed, mopped and dried the kitchen floor. Then claimant was directed by Officer R. L. Palmer, Assistant Steward of the institution, to break macaroni. Upon completion of this task, Officer Palmer directed claimant to prepare a relish of pickles and tomatoes, which required use of the electrically operated food grinder.

The knives and worm of the food grinder were kept under lock and key. Officer Palmer got them out, and assisted claimant in assembling the machine.

Once the grinder was assembled, claimant began dipping pickles, dill, tomatoes and liquid out of a can with his right hand, and poured them into the mouth of the grinder with his left hand. He used a wooden mall or chuck that fitted into the oval-shaped mouth of the grinder to tamp the unground food toward the worm to insure and accelerate the grinding process.

After processing some of the relish, which came out of the end of the grinder and dropped into a can, claimant slipped, or stumbled, and his left hand, which was wet, slipped from the chuck, went down the mouth of the grinder, and there his fingers were caught by the worm, as a result of which he suffered the above described injuries.

The principal dispute in the record involves the availability of a hopper to be placed over the mouth of the grinder, so that an accident of this kind could absolutely be prevented from happening.

The evidence tends to show that a hopper was provided for the grinder, but the Departmental Report on file herein makes no mention of a hopper.

Officer Palmer testified that near the grinder there was a sign posted, which stated: “Do not put your hands in the grinder; always use the wood chucks.” Claimant testified that the sign was not put up until after his accident happened. Whether the sign was posted before or after the accident is immaterial, since the wording thereof corroborates the conclusion, which we draw, that the use of the hopper was not insisted upon, or required.

Testimony in the record as to instructions given to claimant further substantiates the conclusion that the use of the chuck was mandatory, but the hopper not, and specific instructions were limited to the chuck in connection with its use with the grinder. The absolute safety afforded by the use of the hopper was not included in the instructions, and it is apparent tha¡t the failure of such instructions to include the mandatory use of the hopper was most significant in this case.

Count III is predicated solely on the violation of a rule of the Industrial Commission relating to hoppers for food grinders made pursuant to the Health and Safety Act. Ill. Rev. Stat., 1945, Chap. 48, Sec. 137.1, et. seq. By Section 137.5 such rules have the force and effect of law.

However, the principal question is whether claimant, as a convict, is in a position to claim the benefits of such statute.

Section 137.2 makes said statute applicable “to all employees engaged in any occupation, business or enterprise in this State, and their employees” with certain exceptions not applicable herein.

Statutes similar to the Health and Safety Act have been on the statute books of this State for many years. Some, such as Laws 1909, page 202, antedated the Workmen’s Compensation Act, and were statutory steps leading to the passage of the latter Act. These statutes were construed to apply to the ordinary relationship of employer and employee, and divested employers of the defenses of assumed risk and contributory negligence in actions brought by employees thereunder. Streeter vs. Western Scraper Co., 254 Ill. 244.

With the passage of the Workmen’s Compensation Act, certain employments became subject to that statute rather than the previous laws.

This Court has held that a convict is not an employee of the State within the meaning of the Workmen’s Compensation Act. Tiller vs. State, 4 C.C.R. 243. Such holding is consistent with similar holdings from other jurisdictions. Greenes Case, 280 Mass. 506; Lawson vs. Travelers’ Ins. Co., 39 Ga. App. 85. The basis of such cases is that the employment relationship contemplated by the statutes is a voluntary one for wages, which relationship is terminable by either party. A convict cannot meet such a test.

We, therefore, conclude that claimant has no right of action under the Health and Safety Act, since he cannot be considered as an employee within the contemplation thereof.

As to Count II, we have a different situation. Count II stated a cause of action for the specified acts of negligence. The failure of respondent to test the sufficiency of such allegations of negligence by a motion to dismiss, impliedly, if not expressly, concedes that, if proven, claimant should recover.

Claimant has, in, our opinion, proven that he was ordered and assigned to work under unsafe conditions, and that he was not instructed as to the proper use of the food grinder, and warned of the dangers thereof. Such omissions on the part of respondent amount to actionable negligence.

Although we have held that claimant cannot sue for a violation of the Health and Safety Act, the fact that respondent itself, acting through the Industrial Commission, has determined that food grinders not mandatorily equipped with hoppers are dangerous to those using them, is an express recognition by respondent that food grinders should be equipped with hoppers to be rendered safe.

We will not create an anomaly by holding that a food grinder without a hopper used by private persons is dangerous, while a similar unequipped grinder used by respondent is not dangerous. Respondent should in this case be held to the same standards, as it by law compels others to abide by.

Furthermore one of the cardinal tenets of the prison system in this State is that convicts should, if not incorrigible, be trained, so that upon release they can enter industry. Ill. Rev. Stat., 1945, Chap. 108, Secs. 10, 74, 76. Although the use of power driven machinery is held to a minimum in penitentiaries, Ill. Rev. Stat., 1945, Chap. 108, Sec. 78, training in the; use of approved safety devices would seem to be one phase of' rehabilitating a convict to enter honest employment upon release from imprisonment.

Respondent, however, seeks to invoke the doctrine, of assumed risk and contributory negligence against-claimant. We do not feel that either defense is available, in this case.

Claimant, as a convict, was required to take orders, and carry them out. To refuse to do so would subject him to disciplinary action, and the forfeiture of his limited privileges, including prompt consideration for parole. Thus, he did not occupy a position of independence, which a person outside a penitentiary occupies. His choice of action being limited, he, therefore, kept silent and did as he was ordered. In fact, he did; not possess, under the circumstances in this case, the freedom of choice inherent in the doctrines of assumed risk and contributory negligence. We do not, however, hold that such doctrines can never be asserted against a convict, but merely conclude that they do not apply; in this case.

The suggestion has been made that, if we grant an award in this case, other convicts will be encouraged; to inflict injuries on themselves, and then sue the State-for damages. . ¡

However, the New York Court of Claims has; granted awards to convicts based on negligence of the agents and servants of that State, and an examination of the reported cases 'does not disclose any such disposition on the part of convicts since the initial award; was made to a convict. Robinson vs. State, 273 N.Y.S., 465; Bhullar vs. State, 289 N.Y.S. 41; Revelant vs. State, 300 N.Y.S. 1186; Scarnato vs. State, 298 N.Y. 376.

Since this is a case of first impression in this State, we have carefully considered all questions raised, and discussed most of them. We conclude that claimant is Entitled to an award.

As to damages, Section 8 C of the Court of Claims Act limits recovery in cases sounding in tort to $2,500.00.

Claimant’s injuries were undoubtedly extremely painful. He was hospitalized for over a month. He has lost about 75% of the use of his left hand. In civilian life he was a truck driver, and earned $50.00 to $70.00 per week. We conclude that claimant is entitled to an award of $2,500.00, 46 A.L.R. 1230, 1294, 1304.

An award is, therefore, entered in favor of claimant, Henry C. Moore, in the sum of $2,500.00.


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    (No. 4364
    Anthony Hroma, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

    George W. Mc Gurn, Burton H. Young and John J. Riordan, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

This claim is brought by Anthony Hroma, who was injured while confined at the Illinois State Penitentiary, Pontiac Branch.

The undisputed facts show that claimant was assisting in slaughtering a cow under the supervision of Oscar Wilmeth, dairy manager, on May 17, 1950, and suffered an injury, which resulted in the amputation of his right finger.

There is some dispute as to who struck the blows in an attempt to kill or stun the cow. Claimant testified Wilmeth did, and Wilmeth testified some other inmate did the striking. There is no dispute that a sledge hammer of the ordinary variety was used, and that the cow was struck at least four times. The third blow broke the sledge hammer, and the cow fell to the floor under a door where it could slide into the slaughtering room. Claimant assisted in holding the door on the cow, and Wilmeth left to secure another sledge hammer. Upon his return he ordered the door opened, and struck the cow. The blow caused the head of the cow to jerk and strike the door, and claimant’s finger was caught thereby.

Claimant states he had no previous experience in slaughtering operations. Wilmeth testified claimant had observed slaughtering operations. All agree that claimant was performing duties under orders and instructions of his overseers.

John Bussa, an expert in “knocking cattle”, testified that the type of hammer used by Wilmeth, or some other person, would only daze the animal, and not kill it; and that the reason for a smaller surface hammer is to hit the “brain box”, a particular spot on the animal’s forehead, for the purpose of killing; and, the “brain box” being such a small area, the type of sledge hammer used on the occasion in question would diffuse the blow, and not kill the animal.

The evidence shows Wilmeth was an overseer of slaughtering for 17 years; that when he struck the cow it flounced and hit the door; that Wilmeth did not strike the three original blows, but that they were struck by inmates. There was no evidence to show what experience the inmates had, and, after striking the cow three times, Wilmeth ordered them to strike-it again, whereupon he was informed the sledge hammer had broken.

The evidence shows that proper equipment for slaughtering was not used. According to Wilmeth he could not see the knocking operation, and, after the animal had been hit several times, he, himself, ran and got a sledge hammer, but there is no testimony that he warned claimant, or observed the position of his hands.

This manner of slaughtering a full grown cow created a highly dangerous situation. The claimant was trying to help in subduing the cow, and was injured by acts of persons beyond his control. It is the Court’s opinion that it was negligence on the part of the State in the method and 'equipment used. The claimant, under the circumstances, could not be guilty of contributory negligence. He did what he was told to do, and was thereby injured.

The medical testimony shows an impairment of the function of the hand. It shows that claimant was hospitalized for eleven days, suffered a good deal of pain, and that, when he strikes the stump of the finger, it causes a shock in his arm, and his grip is impaired; and, that the injury has interfered with his work as a brick mason. One of the doctors testified that further removal of the finger stump should be made to relieve pain from an exposed nerve.

To deny a recovery to this claimant would be to say that he could be placed in an enclosure of danger created by the acts of the employees of the State; and, that claimant was guilty of contributory negligence, because in holding down an infuriated cow he had his finger in the wrong place.

From the facts in this case, claimant is entitled to recover.

An award, is, therefore, entered in favor of claimant in the amount of $1,500.00.


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    (No. 4422
    William Williams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

      Petition of Claimant for lump sum settlement denied July 8, 1952.

    Robert J. Saunders, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

William Williams, claimant, filed his claim herein on April 11, 1951, wherein he alleges that on September 6, 1950 he was employed by the respondent at Grand Marais Park, St. Clair County, Illinois, as a watchman. On the aboye date, in the course of his employment and while inspecting garages, he slipped on a round piece of wood and fell. As a result of the fall, he fractured his left leg at the hip.

The record consists of the complaint, Departmental Report, transcript of evidence, claimant’s X-Ray exhibits Nos. 1 and 2, reporter’s bill, motion of claimant for an extension of time in which to file abstract of evidence, order of Chief Justice granting claimant an extension of time in which to file abstract of evidence, abstract of evidence, motion of claimant for leave to reopen proofs for purpose of introducing additional testimony, order of Chief Justice granting claimant’s motion for leave to reopen proofs for the purpose of introducing additional testimony, Supplemental Departmental Report, original transcript of additional testimony, containing claimant’s exhibit No. 3, copy of transcript of additional testimony, and statement, brief and argument of claimant.

No jurisdictional .question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment. Respondent furnished complete surgical, medical and hospital treatment.

The question to be considered is the extent of permanent disability suffered by Mr. Williams.

Mr. Williams was a widower, and did not have any children dependent upon him for support. He was first employed by respondent on December 31, 1949, and received a salary of $8.00 per day, well in excess of $1,560.00 per year. His compensation rate would, therefore, be the maximum of $15.00; since the injury occurred subsequent to July 1,1949, this must be increased 50%, making a compensation rate of $22.50 per week.

Claimant returned to work on February 15, 1951, and answered telephones to relieve another employee, who was going on vacation. Claimant was brought to and from work. On November 7, 1951, Mr. Ray Hubbs, Park Superintendent, wrote Mr. Williams as follows:

“You can understand, I am sure, that in a park as large as Grand Marais, it is necessary to have men who are strong and physically active. As a result of your broken hip, it was, of course, not possible for us to use you in your capacity as night watchman, or in any other active employment. For these reasons, when the season slackened, we felt it advisable to discontinue your employment.’’

The final date of claimant’s employment was September 15, 1951.

Dr. Robert E. Shea testified at the hearing of this cause as follows:

“The physical examination, revealed a well developed, well nourished, elderly white male, who walked with a decided limp in his left leg, and complained particularly of pain after climbing the flight of stairs to my office. The physical examination was essentially negative except for the lower back and left leg. The lower back showed a moderate degree of muscle spasm in the lumbar-sacro region involving the post vertebral erector muscle. This seemed to be compensatory in nature and due to the fact that Mr. Williams is required to bear most of his weight on the right leg in order to prevent pain from developing in the left hip because of weight bearing on that limb. Upon measuring the length of the legs, it was found that there is approximately two and a half centimeters, or one inch, foreshortening of the left leg, and a compensatory pelvic tilt making up somewhat for the shortening of the left leg. He was wearing a shoe at the time that was built up approximately two centimeters to aid the compensation of the foreshortening. The hip joint itself was limited in all directions, probably by virtue of an arthritic condition resulting from the fracture within the joint itself. All functions of the trunk and hip joint are limited more than fifty percent, probably due to the arthritic condition of the healing process along with the spastic state of the muscles and ligaments about the joint and the effect of the foreshortening of the leg in the healing process. There was approximately sixty percent disuse atrophy of the quadratus femoris muscle groups of the left leg resulting from the long application of traction and disuse. Any function, such as bending, stooping, sitting, or rising from a sitting position, bending the trunk laterally from one side to the other, are markedly decreased in function because of the result of the healing process of the fractured site. Reflexes in the left leg decidedly depressed and patient is melancholy in attitude.
I thought the man was permanently and totally incapacitated insofar as gainful employment is concerned for the future where any industry or corporation is involved, although he is able to get about in a rather clumsy fashion with the aid of a cane. I do not believe he will ever reach a state where he may be able to hold a job to allow him to maintain himself at the present cost of living. I doubt seriously if there will be any improvement in the condition of this patient, and, if'anything, I believe there will be greater foreshortening of the leg because of the healing process, and another build up of his shoe will be required to make up for the foreshortening. If this is not done, a curvature of the back with a rotary displacement of the vertebral column in the region of the lower extremities will develop and the patient will have a permanent sclerosis — curvature of the back.
If this callous increases in size continuously, the man is going to have shortening and loss of any function of the hip joint. He is going to develop a painful joint which may require further surgery. The pelvic tilt will become more aggravated due to weight bearing. The lower back is going to develop curvature or sclerosis, and the man is going to be an invalid. If, after a period of a year, this process is continuous, be must be declared totally and permanently disabled.
He will have no use of that limb at all, and pain of the joint itself will make him an invalid. He is not far from that right now.”

Dr. Frank Bihss testified as followed:

“The exhibit 1 reveals an oblique projection of the hip. The oblique projection in this means the patient is turned at approximately a forty-five degree angle and having his right hip overlying the left in order that you can visualize the back portion of the left hip in this particular case. This reveals a healed intertrochanteric fracture. That is part of the femur, which is between the base of the neck and the shaft, and the trochanteric are the greater and lesser. The greater trochanteric is pronounced on the outer portion of the shaft where the muscles insert, and the lesser trochanteric is the smaller boney protuberance present on the inner portion of the shaft, and the fracture right at that junction therefore is described as an intertrochanteric fracture. It is healed with a coxa vara deformity. The normal angle has been somewhat impaired and giving an adduction type of deformity. We call that a coxa vara deformity. In other words, here, with some impaction. The lesser trochanteric is displaced immediately upward and you can see a large amount of callous in the lesser trochanteric. That is the oblique projection.”

From the undisputed medical testimony, and other evidence in the record, it is shown that the claimant is permanently disabled, and is not able to do work of any kind, and that his physical condition will become progressively 'worse. We feel his unsuccessful attempt at returning to work to answer telephones shows his inability to gain employment.

Claimant purchased a pair of built-up shoes for the sum of $25.00, and he should be reimbursed for this amount.

We conclude, therefore, that the claimant is entitled to an award for permanent total disability.

The claimant is, therefore, entitled to an award of $6,000.00, plus reimbursement of $25.00 for built-up shoes, making a total of $6,025.00, less the sum of $1,072.00, which was paid for non-productive time, or a total award of $4,953.00, payable as follows:

§1,998.57, which has accrued from September 7,1950 to May 13, 1952 from which must be deducted the sum of §1,072.00, making a sum of $926.57, which is payable forthwith; $4,026.43 to be paid in weekly installments of $22.50 beginning May 20, 1952 for a period of 178 weeks with a final payment of $21.43; thereafter a pension for life in the sum of $480.00 annually, payable in monthly installments of $40.00.

An award is also made to Henry P. Keefe for stenographic services in the amount of $67.60, which is payable forthwith. The Court finds that this is a fair, reasonable and customary charge.

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


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    (No. 4448
    Neva T. Combs, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

    Hanagan and Hanagan, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Robert S. Hill and Charles H. Evans, Assistant Attorneys General, for Respondent.
   Delaney, J.

This complaint was filed on June 19, 1951 by claimants, Neva T. Combs, widow of Virgil L. Combs, deceased, and Lynn Darlene Combs and Michael Lee Combs, minor children of Virgil L. Combs, deceased, by Neva T. Combs, their mother, natural guardian, and next friend, seeking an award under the provisions of the Workmen’s Compensation Act.

The record consists of the complaint, motion of respondent for an extension of time in which to file pleadings, order of Chief Justice granting respondent an extension of time in which to file pleadings, Departmental Report, and transcript of evidence.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

Deceased, Virgil L. Combs, was first employed by the Division of Motor Carriers as a motor carrier inspector on May 25, 1949, and had been so employed to the date of his death on June 9, 1951. The record shows deceased left two children under 18 years of age. His earnings for the year prior to his death were $3,059.00.

The record further shows that on the afternoon of June 9, 1951 deceased started from his home at West Frankfort, Illinois to deliver some ST-1 cards to the Matt & Dalton Garage at Christopher, Illinois, and, about three miles west of the city limits of West Frankfort, his car left the pavement, and went into a ditch on the side of the highway. Within a short time thereafter Mr. Combs died due to a subdural hemorrhage caused by an injury to the meningeal artery.

Deceased’s compensation rate would be the maximum of $15.00. Section 8 (j-3) of the Workmen’s Compensation Act provides for a weekly maximum payment of $16.00 in the case of two minor children, and, since the injury occurred, subsequent to July 1, 1949, this must be increased 50%, making a compensation rate of $24.00 per week.

The claimants are entitled to an award under Section 7 (A-H-3) of the Workmen’s Compensation Act. in the amount of $7,500.00, payable as follows:

$1,350.86, which has accrued from June 10, 1951 to July 8, 1952, is payable forthwith;
$6,149.14, to be paid in weekly installments of $24.00 beginning July 15, 1952 for a period of 256 weeks, with a final payment of $5.14.

Marguerite Holman was employed to take and transcribe the evidence at the hearing before Commissioner Frank M. Summers. Charges in the amount of $50.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Marguerite Holman in the amount of $50.00, which is payable forthwith.

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

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