author: FlSHBB, J.

text:
    (No. 3860
    The National Refining Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Covet, Covet & Covet, for claimant.
    Geobge F. Babbett, Attorney General; C. Abthub Nebel, Assistant Attorney General, for respondent.
   FlSHBB, J.

Claimant, a corporation, alleges that between the dates of March 19, 1941, and May 18, 1943, by and through its agent, Arthur Budde, it sold and delivered to respondent, gasoline, kerosene, motor lubricating oil and grease, as specifically itemized in its complaint and amended complaint, in the value of Eight Hundred Thirty-nine Dollars and Fifty-six Cents ($839.56).

The record consists of the Complaint, Amended Complaint, Report of the Division of Highways, Stipulation of Facts, and Waiver of Statement, Brief and Argument by both Claimant and Respondent.

The report of the Division of Highways admits that the allegations of the complaint are correct; that the gasoline, kerosene, lubricating oil, grease and other products were purchased by and for the Division of Highways; that the merchandise was received by the Department; and that “The Division of Highways and Division of State Police records, respectively, show that the items listed on claimant’s exhibits (schedules) are correct as to date of delivery, quantity, price, and equipment or individual to which they were delivered. The records further show that payment' has not been made to claimant for these materials.”

• The report of the Division of Highways further admits that “appropriations were in existence during the periods the materials were purchased and funds available in these appropriations for payment of claimant’s invoices had they been scheduled within the biennium period. ”

It was held, in the case of Shell Petroleum Corporation vs. State, 7 C. C. R. 224, that—

"Where the facts are undisputed that the State has received supplies as ordered by it and that such supplies were legally bought by the State and that a bill therefor was not presented before the lapse of the appropriation out of which such payment could be made, and further that claimant has not permitted an unreasonable length of time to elapse in so failing to present the bill, an award for the amount due will be made by the Court of Claims.”

This rule has been consistently followed.

We find the bills for the merchandise sold and delivered, as alleged, had been submitted within a reasonable time, but that the appropriation had lapsed, without any fault or neglect on the part of claimant; and we further find, that at the time the bills were incurred there remained a sufficient unexpended balance in the appropriation to pay for the same; also that the charge for the said merchandise was fair and reasonable.

An award is therefore entered in favor of claimant, The National Refining Company, a corporation, in the sum of Bight Hundred Thirty-nine Dollars and Fifty-six Cents ($839.56).


source: Caselaw Access Project

author: Chief Justice Dameoh

license: Public Domain

text:
    (No. 3872
    John Rehs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Barrett, Barrett, Costello & Barrett and W. H. Shanner, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Dameoh

delivered the opinion of the court:

On August 28, 1943, John Behs, above named claimant, was a Police Officer in the Department of Public Safety, Division of State Police. On that day he was riding his motorcycle out of the LaSalle-Wacker Oarage at 221 N. LaSalle Street, Chicago, travelling over a wet pavement. As he left the ramp of said garage the motorcycle skidded going out of control and fell to the pavement, pinioning the claimant’s right leg under it. He was immediately removed to St. Luke’s Hospital where he was placed under the care of Dr. H. B. Thomas, Professor Emeritus of the Department of Orthopedics, Hniversity of Illinois College of Medicine. He remained under the care of this surgeon until the 22nd day of April, 1944. On August 4, 1944, he filed his claim for benefits under the Workmen’s Compensation Act.

The claimant’s testimony was taken on the 13th day of December, 1944. At that time a stipulation was entered into by and between counsel and made a part of the record, and is as follows:

That John Rehs, the claimant herein, sustained an accidental injury on August 28, 1943, which did arise out of and in the course of his employment by the respondent, State of Illinois;
That on that date the claimant and the respondent were operating under and subject to the terms and provisions of the Workmen’s Compensation Act;
That claimant gave notice to the respondent of the occurrence of said accident within thirty days thereafter, and that a claim for compensation was made on account thereof within six months, as is required by the provisions of the Workmen’s Compensation Act;
That the annual wage of the claimant for one year next preceding the date of said accident was $2,113.50;
That the medical on account of said accident was furnished by the respondent herein;
That the respondent paid temporary total disability until the claimant returned to work following said injury;
That claimant had three children under the age of sixteen years at the time of the accident;
That all records and files maintained in the regular course of business by any of the - departments, commissions, boards or agencies of the respondent and all departmental reports made by any officer thereof relating to any matter or cause pending before the Court shall be prima facie evidence of the facts set forth therein;
That the only question in dispute is whether or not the claimant is entitled to additional compensation for specific loss of use of his right lower extremity by reason of the injuries, and the proofs in this hearing will be limited to that question.

Claimant testified that a cast was placed on his injured limb and remained there for approximately fourteen weeks; that after it was removed he received physiotherapy treatments at Dr. Thomas’ office and in November he returned to work in the Department of Public Safety as a clerk at Elgin, Illinois, and in March, 1944, he returned to his regular duties as a Police Officer. He further testified that after he had returned to Ms regular work as a Police Officer, he had considerable trouble with the injured limb; that sometimes he would wake up with cramps and the muscles of the leg would tighten, this especially when there was a change in the weather; that he suffered considerable pain and swelling persisted; he further testified that the right foot tired easily and that he was compelled to have an arch built up in Ms right shoe to support the arch; that he experiences pain through the calf of the leg and through the ankle which also involves the whole foot including the toes; that this pain is not constant but is intermittent; that he does not have full functional use of the right foot, that he had prior to the accident and that especially after he does any amount of walking the swelling is very noticeable ; that the leg is not nearly as strong now as it was prior to the accident; that the ankle turns easily if he steps on a small object while walking.

Dr. H. B. Thomas, during the course of treatments rendered the claimant, filed a series of reports with the Department during August, September, October, 1943, January, February, March and April, 1944. These reports are made a part of the Departmental report of the Division of State Police and is prima facie evidence under the rules of this Court.

April 22, 1944, Dr. Thomas submitted his final report which said: “x-ray shows a comminuted fracture of the fibula, 9 cm from proximal end. There is a spiral fracture in the lower % of the tibia. The fragments of tibia were aligned and held with a screw. He had pain over the fracture site and ankle for which. he received physiotherapy. Prognosis good.”

Dr. Hal P. Wells was called to testify on behalf of claimant; he testified he examined claimant at his office in Chicago on the 11th day of December, 1944. He made x-ray films which have been introduced in evidence as claimant’s exhibit one, which shows a fracture of the fibula and the ankle joint. He testified that the x-ray showed the beginning of arthritic changes at the ankle joint particularly on the articular surface of the astragalus joint, also in the tarsal region of the foot which articulates with the tibia in making the ankle joint; that the arthritis was creating an unevenness of the articular surface of the bone; that there were some definite spurs shown in the anteroposterior view upon the articular surface of the tibia; that in reference to the fibula, the x-ray showed it was united in good axis and does not show any particular disability in itself; he further testified that the fracture was a very severe one and was in very close proximity to the ankle joint; this arthritis accounted for the swelling and pain over the site of the fracture in the ankle joint and the foot about which the claimant had testified; that there were injuries to three very important nerves, two of which pass very close to the fracture and must have been involved immediately and during the subsequent convalescent period, when the fibrous tissue was formed. He testified this condition is permanent and that it accounts for claimant’s inability to do much standing or walking, and causes weakness of the right leg and foot.

In response to a hypothetical question he stated that the objective findings about which he had testified, viz., the excessive callus, the permanent swelling, which is fiTbrosis, the broken-down arch, and the arthritis were all caused by the injury and these conditions are permanent.

Under the stipulation filed in this case we find claimant’s annual wage for a year preceding the accident amounted to $2,113.50, his average weekly wage therefore would be $40.64. The record further discloses that at the time of the accident claimant was married and had three children under the age of sixteen years dependent upon him for support; his weekly compensation rate therefore would be $21.15. Claimant was not able to return to work for the respondent until the 4th day of November, 1943, being 9 4/7 weeks, for which he is entitled to temporary total compensation amounting to the sum of $202.44. However, the record discloses that the respondent paid to the claimant the sum of $448.40 as salary during that period for unproductive work, which is an over-payment to claimant by respondent, of $245.96 which must be deducted.

From a careful consideration of all the evidence in this case the Court is of the opinion that claimant has suffered 5Q% permanent loss of use of his right leg. Under Section 8, Par. (e)-15 claimant is entitled to $21.15 for a period of 95 weeks amounting to the sum of $2,009.25 for 50% permanent partial loss of use of his right leg, from which must be deducted the sum of $245.96, leaving the snm of $1,763.29.

An award is therefore entered in favor of claimant, John Rehs, in the sum of $1,763.29. Of this amount the sum of $1,501.65 has accrued to March 14, 1945, and is payable in a lump sum forthwith. The remainder amounting to the sum of $261.64 to be paid to claimant at the rate of $21.15 per week for 12 weeks and one final payment of $7.84.

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


author: Eckert, J.

text:
    (No. 3875
    Paul W. Brookshier, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Ralph Rouse, for claimant.
    George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

During the month of October, 1940, claimant, Paul W. Brookshier, was a student at Eastern Illinois State Teachers College at Charleston, Illinois. While attending classes under Dr. Sidney B. Goff, he was asked by Dr. Goff to act as a subject in the demonstration of a fluoroscope. Claimant was over-exposed to the rays of the fluoroscope and received a severe burn on his back which has not healed. Claimant alleges that he is permanently injured, suffers pain, and is handicapped by the injury in any work which he undertakes. He seeks damages in the amount of $20,000.00.

The respondent has moved to dismiss the complaint, contending that in the operation and maintenance of the Illinois State Teachers College, the State of Illinois is engaged in a governmental function, and while so engaged, is not liable for damages caused by the negligence of its officers, agents, or employees.

Subsequent to the filing of respondent’s motion, claimant filed an additional count to his complaint, alleging that at the time of the injury he had paid tuition to the Eastern Illinois State Teachers College for his instruction, and thereby entered into a contractual relationship with the College; that by reason of such contractual relationship, it became the duty of the College not to hurt or injure the claimant; that because of respondent’s failure to carry out the terms of its contract not to hurt or injure the claimant, the claimant has been injured to the extent of $20,000.00. Respondent thereupon renewed its motion to dismiss claimant’s complaint.

This court has repeatedly held that the doctrine of respondeat superior does not apply to the State of Illinois in the exercise of a governmental function, and that the State is not liable for injuries resulting from the malfeasance, misfeasance or negligence of its officers, agents, or employees. Berg vs. State, 12 C. C. R. 79. The State, in the conduct and maintenance of the Eastern Illinois State Teachers College, exercises a governmental function, and it is not liable for personal injuries suffered by a student and occasioned by the malfeasance, misfeasance or negligence of the officers, teachers, agents, employees or students thereof. Stanford vs. State, 12 C. C. R. 360.

The fact that claimant paid tuition to the Eastern Illinois State Teachers College furnishes no additional support to his claim. A detailed discussion of the distinctions between contractual and tort liability would not aid claimant’s position. The court is of the opinion that the claim rests solely upon the alleged negligence of an agent of the respondent, and must therefore be dismissed.

Case dismissed.


text:
    (Nos. 3882 and 3883 consolidated
    John Shields and Eldon Gruber, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Edward J. Flynn, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

The claimants, John Shields and Eldon Gruber, were employed by the respondent on April 1,1942, as plumbers and steam fitters, and assigned to work at the Illinois State School for the Blind at Jacksonville, Illinois. They allege in their respective complaints that they were entitled to pay at the prevailing rate for such services in the community of Jacksonville, Illinois; that the prevailing rate was the Union scale of wages of $1.70 per hour; that they received $1.25 per hour from April 1, 1942, to July 1, 1942; that they are entitled to the difference between $1.25 per hour and $1.70 per hour for the hours worked during that period; that they worked 530 hours each; and that they are each entitled to additional wages in the amount of $240.00.

Respondent has filed its motion to dismiss on the ground that the complaints do not allege that the claimants performed services for the respondent for which compensation has not been received.

Section 19, Article IV of the State Constitution of 1870, provides as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreement or contracts shall be null and void; Provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.”

Paragraph 145, Sub-section 3, Chapter 127 of the Illinois Revised Statutes 1943, provides as follows:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates speified in the pay roll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

The court has repeatedly held that where an employee of the State receives and accepts regular salary warrants for personal services, such warrants shall be considered full payment for all services rendered between the dates specified in the pay roll, or other voucher, and no additional sum can be paid such employee. Gholson vs. State, 12 C. C. R. 26; Klapman, et al., vs. State, 13 C. C. R. 139.

Bespondent’s motion is therefore granted; claims dismissed.


text:
    (No. 3887
    Wabash Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Carretón S. Hadley and L. H. Strasser, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant is an Ohio corporation, authorized to do business as a common carrier by rail within the State of Illinois. During the month of December, 1942, it transported two cars of bituminous coal, shipped by Silver Creek Coal Company, from Danville, Illinois, to the Chicago State Hospital at Dunning, Illinois. The billing was as follows:

1. Wabash car No. 35772, containing 102,700 pounds of screening coal _ and forwarded on Wabash Railroad Company’s waybill No. 94, December 24, 1942, rate $1.60 per ton, total charge $82.16. 2. Wabash car No. 35234, containing 102,300 pounds of screening coal and forwarded on Wabash Railroad Company’s waybill, No. 109, December 28, 1942, rate of $1.60 per ton, total charge of $81.84.

The aggregate claim of the Wabash Railroad Company is, therefore, the total of these two items, or $164.00.

The rates and charges assessed against these shipments are in accordance with tariffs lawfully on file with the Illinois Commerce Commission. The cars were received by the Chicago State Hospital; and although the mine charges on the two cars • were paid the freight charges were not.

Claimant has performed duly authorized services for the respondent; it submitted its statement of costs and charges to the respondent within a reasonable time and has not received payment; such non payment is due to no fault on the part of the claimant; when the charge was incurred there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is therefore entitled to award. Rock Island Sand and Gravel Company vs. State, 8 C. C. R. 165; City of Kankakee vs. State, 12 C. C. R. 393.

Award is therefore made in favor of the claimant in the sum of $164.00.


author: Chief Justice Damron

text:
    (No. 3893
    Joseph Gentilini, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1945.

    Robert J. Spahr, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant, Joseph Gentilini, seeks an award under a complaint filed on the 8th day of December, 1944, which alleges that on the 1st day of July, 1944, while in the performance of his duties as a laborer for the Highway Department, he was riding on a State Highway truck proceeding in a westerly direction on West Park Avenue at the intersection of Skokie Boulevard in the city of Highland Park, Lake County, Illinois, and that as the truck reached the aforesaid intersection a truck belonging to the Bon Ton Beverage Company, Waukesha, Wisconsin, collided with the state truck injuring the right hand of claimant by crushing it and that it became necessary to amputate the index and part of the other fingers of his right hand. As the result of said injury he claims to have lost the entire use of said hand. The complaint further alleges that the respondent paid him temporary total compensation from July 2, 1944, to September 30, 1944, in the sum of $214.38 at the rate of $16.49 per week. That he was immediately sent to Dr. J. H. Lundstrom by the respondent who rendered first aid and later surgical and medical attention all of which was paid by the respondent.

On February 13, 1945, evidence was taken in this case in Chicago which shows that the material allegations in said complaint are true.

The only question remaining to be decided in this case is the nature and extent of the injury received by claimant.

The record under consideration consists of the complaint, Departmental Report, evidence, claimant’s Exhibits 1 and 2, waiver of brief, statement and argument by claimant and waiver of brief, statement and argument of respondent.

Upon examination of the Departmental report we find that the provisions of Section 24 of the Workmen’s Compensation Act have been fully' complied with by claimant. That at the time of his injury he was seventy-two years of age, had no children under the age of sixteen years dependent upon him for support, that he was first employed by the Division of Highways Department of Works and Buildings on April 27, 1944, as a common laborer at a wage rate of sixty cents an hour and had continued in this classification and at the same rate until the date of his injury. This report also contains reports of Dr. J. H. Lundstrom, the treating physician, dated July 6, 1944; August 4th, 1944, and September 12, 1944. This last report is as follows:

“Right hand badly macerated. Index finger almost completely gone. Multiple lacerations of middle finger and little finger. Complete loss of skin and subcutaneous tissue down to tendons, dorsum right hand. Fracture of little finger. Wound dirty and filled with dirt, oil, and rust. Right ring finger was lost in previous accident. Wound thoroughly scrubbed with green soap and water. Amputation of stump of index finger. Anatomical repair of middle and little finger and hand. Sulfathiazole powder and dressing applied. Patient was discharged September 11, 1944. Date able to work; “Undetermined.” Permanent disability: “Fifty per cent loss of function entire right hand.” Temporary disability when discharged: “Stiffness of right hand.”

The report further shows that the respondent paid the following bills for and on behalf of claimant:

Dr. J. H. Lundstrom, Highland Park.......................;.. $145.00
Highland Park Hospital Foundation, Highland Park........... 48.50
Total ...................................................$193.50

. Upon examination of Exhibit 2 being an x-ray film showing two views of claimant’s right hand, we find that claimant has lost the first and third fingers completely, the second and the fourth fingers are considerably deformed. The evidence shows, however, that at the time of the injury, claimant had but three fingers and a thumb on his right hand; the third finger, commonly called the ring finger, having been lost by amputation some time before the accident of July 1,1944.

Claimant seeks an award for complete loss of his right hand totaling $2,803.30 under the Workmen’s Compensation Act.

In support of his claim the claimant introduces a report of Dr. J. H. Lundstrom, the treating physician (Exhibit 1) dated February 13, 1945, which gives an opinion over the objection of the Attorney General, that claimant had only a 25% remaining functional use of the injured hand.

Upon a full consideration of this record this Court finds: That claimant and respondent were operating

under the provisions of the Workmen’s Compensation Act at the time claimant was injured; that claimant suffered an accident which arose out of and in the course of his employment; that said injuries, resulted in temporary total disability from July 2, 1944, to September 30, 1944, which was paid by the respondent at the rate of $16.49 a week, totaling $214.38.

Claimant had, prior to this injury, lost the third finger of his right hand by amputation and loss of this finger is admitted in the evidence.

If claimant had suffered a complete loss or the permanent and complete loss of use of his right hand, under Section 8, Par. (e) of the Act, he would have been entitled to 50% of his average weekly wages during one hundred seventy weeks, provided he had a complete hand at the time of the injury on July 1, 1944. Under Section 8, Par. (17%), we must deduct twenty-five weeks from any award that is allowed claimant due to the prior loss of the third finger.

The record supports an award of 75% for permanent and complete loss of this hand less the third finger which amounts to one hundred eight and three-fourths weeks, as provided in Section 8, Pars, (e) and (17%) of the Workmen’s Compensation Act, as amended.

The stipulation entered into by and between the claimant and respondent at the time of taking evidence, shows that the annual wage of claimant for the period of one year next preceding the date of said accident was $960.00. His average weekly wages therefore, would be $18.46. And his compensation rate is $10.85 weekly.

The record discloses that the respondent paid the claimant from July 2, 1944, to September 80, 1944, being-thirteen weeks for temporary total compensation at $16.49 per week. This is an over payment based on an erroneous compensation rate. The over payment amounts to the sum of $73.33 which must be deducted from the award.

An award is therefore hereby entered in favor of claimant, Joseph Gentilini, for $1,106.60 for specific loss of use of his right hand. This award to be paid to claimant at the rate of $10.85 per week. Of this amount the sum of $260.40 has accrued to March 17, 1945, which is payable in a lump sum forthwith. The remainder of said award to be paid to claimant at the rate of $10.85 per week for seventy-seven weeks and one week at $10.75.

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: Fisher, J.

text:
    (No. 3896
    Luvia Hinton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1945.

    Philip L. Turner, for claimant.
    George P. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant alleges that on the 26th day of December, 1943, and for several years prior thereto, she was employed by respondent as an attendant at the Lincoln State School, Lincoln, Illinois, and that on the 26th day of December, 1943, while in the discharge of her duties, she slipped and fell and, as a result of said fall, broke her right arm and suffered other grave injuries to her person.

She immediately reported her injury to the Medical Officer on duty at the said Lincoln State School, and first aid was administered, but that no attempt was made to examine the injured arm to ascertain the extent of the injury. That on the 28th day of December she employed a physician who x-rayed the injury and placed the arm in a cast; that the fracture did not make a proper union in knitting and, that by reason of the accident, she has sustained a permanent partial loss of the use of her right arm.

Claimant further alleges “that she has not received any compensation on account of said injury; that she has not presented any claim to any State Department or officer thereof, or to any person, corporation or tribunal; and that she has not received any compensation on account of her claim.”

The Attorney G-eneral has filed a motion to dismiss this complaint for the reason that it does not comply with Section 24 of the Workmen’s Compensation Act.

Section 24 of the Workmen’s Compensation Act provides that—

“No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than thirty days after the accident * * * provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident * * *”

Claimant alleges her injury occurred on or about December 26, 1943, and the complaint herein was filed on December 23, 1944.

The Supreme Court of Illinois has repeatedly held that the requirements of Section 24 of the Workmen’s Compensation Act are jurisdictional and unless complied with a claim for compensation cannot be maintained.

“No proceedings for compensation under the Act shall be maintained unless claim for compensation has been made within six months after the accident. The malting of a claim for compensation is jurisdictional and a condition precedent to the right to maintain a proceeding under the Compensation Act.”
Inland Rubber Company vs. Industrial Commission, 309 Ill. 43.
City of Rochelle vs. Industrial Commission, 332 Ill. 386.
Lewis vs. Industrial Commission, 357 Ill. 309.
' United Airlines vs. Industrial Commission, 364 Ill. 346.

Claimant is required under Eule 5 (a) of the Court of Claims “to state whether or not a claim has been presented to any State Department or officer thereof, or to any person, corporation or tribunal, and, if so presented, he shall state when, to whom, and what action was taken thereon * * * ”

To comply with this rule of the Court of Claims and Section 24 of the Workmen’s Compensation Act, it is not necessary to file a formal written claim, and it is sufficient for a claimant to notify the employer of an intention to claim compensation for the injury.

Claimant, however, states in her complaint ‘ that she has not presented any claim to any State Department or officer thereof, or to any person, corporation or tribunal. ’ ’ Claimant, having made no claim for compensation as required under Section 24 of the Workmen’s Compensation Act, we are without jurisdiction to entertain her claim, and must allow the motion to dismiss.

The motion to dismiss the complaint is allowed, and the claim is dismissed.


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

      Opinion filed April 17, 1945.

    John W. Pbeihs, for claimant.
    George P. Babbett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Pemvell vs. State, 11 C. C. B. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10,1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940, to January 1, 1942. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943, to and including September 30, 1943, in the amount of $853.07. Claim is now made for an additional award of $2,020.53 for medical and nursing expenses from October 1,1943, to and including February 28,1945.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over urine and faeces. From October 1, 1943, to and including February 28, 1945, she has been required, to relieve her of her injury, and to prevent deformity and to stimulate circulation, and for relief of bed sores, to employ and receive medical services and nursing attention. During that period she has moved from her home in the Village of Beecher City, a small rural village in Shelby County, Illinois, to Kirksville, Missouri, where medical services are available and obtainable at a reasonable cost. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs and to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily and must be rendered in her home.

Claimant has therefore employed a physician on a monthly basis at a charge of $75.00 per month, which is a lesser rate than ordinarily charged. During period in question,.claimant expended on account of nursing services $733.00; for drugs and supplies $187.53; and for medical services $1,100.00, totalling $2,020.53. She has submitted to the court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

This court has heretofore held that undér Section 8, paragraph (a) of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell vs. State, supra.) There has been no change in claimant’s physical condition to justify the denial of an award at this time. The award, however, must be confined to such items as are reasonably required. The wheel chair and repairs to wheel chair and lumber for a ramp, as listed in claimant’s itemized statement, do not appear to have been so required. The other services claimed appear to have been reasonably required and the charges to be reasonable and just.

An award is denied as to the following items:

Oct. 31, 1943 Wheel-chair repairs ...........................$16.63
Nov. 20, 1943 W. D. Cornell, wheel-chair..................... 40.36
Dec. 10, 1943 Lumber to make ramp......................... 6.00
May 1944 Truitt Service, wheel-chair repair.............. 1.25
Oct. 25, 1944 R. 0. Cleveland,- chair repair................... 1.00
Total ......................................$65.24

Award is, therefore, made to the claimant for medical and nursing expenses from October 1, 1943, to and including February 28, 1945, in the sum of $1,955.29, which has accrued and is payable forthwith. The court reserves for future determination claimant’s need for further medical, surgical and hospital services.


text:
    (No. 3602
    Thomas Cryder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 16, 1945.

    D. D.. Goodell, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

An award was entered in favor of Thomas Cryder, claimant in the above-entitled case, on November 10,1942 (Thomas Cryder vs. State, 12 C. C. R. 291).

The case now comes before the Court, on a motion in the nature of a petition, stating that the said Thomas Cryder died on November 15, 1944, and requesting that the unpaid balance of the award be ordered paid to Lucy Cryder as Administratrix of the Estate of Thomas Cryder, or as the sole dependent of Thomas Cryder, deceased.

The Workmen’s Compensation Act provides that any right to receive compensation shall be extinguished by the death of the person entitled thereto, except in certain specific instances. Section 21 of the Workmen’s Compensation Act reads, in part, as follows:

* * Any right to receive compensation hereunder shall be extinguished by the death of the person or persons entitled thereto, subject to the provisions of this Act relative to compensation for death received in the course of employment, and subject to the provisions of paragraph (e) of Section 8 of this Act relative to specific loss; Provided, that upon the death of a beneficiary, who is receiving compensation provided for in Section 7, leaving surviving a parent, sister or brother of the deceased employee, at the time of his death dependent upon him for support, who were receiving from such beneficiary a contribution to support, then that proportion of the compensation of the beneficiary which would have been paid but for the death of the beneficiary. * * *”

The award- to Thomas Cryder was for disability as provided in paragraph (f), Section 8 of the Workmen’s Compensation Act. The award to Thomas Cryder does not come within the exceptions of Section 21, and the amount of the said award unpaid and not due at the date of Ms death is, therefore, extinguished.

The Supreme Court of Illinois, in passing upon said provision of Section 21, extinguishing the right to compensation, said in the case of Central Illinois Light Co. vs. Industrial Commission, 359 Ill. 430:

“Provision is made to cover cases where the beneficiary dies whose award was made under Section 7 — the death section. The award under review was made under Section 8. The language of Section 21 plainly says that any right to compensation shall be extinguished by the death of the person entitled thereto. This award was in favor of Willedge himself, and his death extinguished all payments that fell due after those accrued during the first 83 and three-sevenths weeks, and for these alone the administrator can recover.”

It appears that warrants in the amount of $312.70 were received and cashed by Thomas Cryder during his lifetime, and a further warrant in the sum of $58.05 was issued hut not cashed, and is still outstanding. In addition thereto, an amount of $6.64 had accrued and remained unpaid at the time of the death of the said Thomas Cryder.

Lucy Cryder, as the Administratrix of the Estate of Thomas Cryder, deceased, is entitled to have and receive from respondent the amount of compensation accrued and unpaid to Thomas Cryder on the date of his death, November 15, 1944, and nothing further.

An award is accordingly entered in favor of Lucy Cryder, as Administratrix of the Estate of Thomas Cryder, deceased, in the sum of Sixty-four and 69/100 Dollars ($64.69), payable upon' the surrender for cancellation of uncashed warrant issued by respondent to Thomas Cryder in the sum of $58.05.


text:
    (No. 3832
    Bertha Rogers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1945.

    Guy M. Blake, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

The claimant, Bertha Bogers, was certified by the Illinois Civil Service Commission to a position at the Chicago State Hospital on October 2, 1942; she began work at the hospital on October 16, 1942; and she was discharged on November 30, 1942. The discharge was during claimant’s period of probation, and was without the prior consent of the Civil Service Commission. It was rescinded on June 10,1943, and claimant returned to work at the Chicago State Hospital on June 12, 1943. Her salary was $60.00 per month, plus an allowance of $18.00 per month for maintenance. She seeks an award in the amount of $494.00, as follows:

Salary, December 1, 1942, to June 10, 1943, at $60.00 per month $380.00 Maintenance allowance, December 1, 1942, to June 10, 1943, at $18.00 per month.......................................... 114.00
$494.00

Claimant’s discharge during her probationary period was an illegal discharge, and she was wrongfully prevented from performing the duties of the position to which she had been certified. She was diligent in the protection of her own rights, and at all times for which she seeks payment of salary, she was ready, willing, and able to perform the duties of her position, tendered performance thereof, and such tender was refused. Claimant is therefore entitled to payment of her salary from December 1, 1942, to June 10, 1943. (Wilson vs. State, 12 C. C. R. 413.)

An award is therefore entered in favor of the claimant in the amount of $494.00.


author: FlSHEB, J.

text:
    (No. 3879
    Farm Bureau Oil Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1945.

    John S. Gbimes and Alfbed A. Kiltz, for claimant.
    Geobge F. Babbett, Attorney General; C. Abthtjb Nebel, Assistant Attorney General, for respondent.
   FlSHEB, J.

Claimant filed its claim September 18, 1944, alleging therein that it is an Indiana corporation, and qualified, operating and doing business in the State of Illinois, and that the claimant corporation is a duly organized Pipe Line Company engaged in the business of purchasing and gathering crude petroleum and has been so engaged since the year 1941; that, in compliance with the terms of an Act of the State of Illinois commonly known as the Oil Production Act, it deducted 3% of the value of all oil it gathered from production in the State of Illinois after June 30, 1941, and, that after deducting the 2% handling charge allowed to the claimant for making such collection and remittance, the claimant remitted the tax so collected to the State of Illinois. Claimant further alleges that the said Oil Production Act has been declared invalid by the Supreme Court of Illinois, and that claimant has remitted and paid to the State of Illinois, under and in compliance with the said Oil Production Act, the sum of $19,020.40.

Claimant asserts that by reason of the said Act being invalid there is due it from the State of Illinois the sum of $19,020.40 for tax money remitted by claimant to the Treasurer of the State of Illinois under said invalid Act.

The Attorney General, on behalf of respondent, presents a motion to dismiss the complaint, and, as the reason for said motion to dismiss, contends that:

(a) A sufficient cause of action at law or in equity is not stated.
(b) The claimant had an adequate remedy in the courts of general jurisdiction.
(c) Claim is based solely upon a tax voluntarily paid with a full knowledge of all the facts and the same cannot be recovered.

It is a well settled principle of law in this State that where a tax is paid voluntarily with a full knowledge of all the facts, it cannot be recovered in the absence of a statute to the contrary, even though a tax may be illegal or unconstitutional. Among a number of cases applying this principle is the case of City of Oglesby vs. State, 10 C. C. R. 694. It was also concluded in this case, after a full review, that where a full and complete statutory remedy exists, such remedy shall be exhausted before recourse is had to the Court of Claims. The claimant herein had a complete remedy under the statutes of this State to protect its interests, which rights it failed to exercise. Having so failed to exercise its rights, it cannot contend that the tax was paid involuntarily. We have consistently held, that where an adequate remedy exists in the courts of general jurisdiction the Court of Claims has no jurisdiction to pass upon the claim. Among the many cases so holding are:

Central States Distributors, Inc., etc. vs. State, 11 C. C. R. 417.
Baum Packing Co. vs. State, 11 C. C. R. 610.
Knowlton Co. vs. State, 11 C. C. R. 617.
Madera Wineries & Distilleries, et al vs. State, 11 C. C. R. 632.
Equitable Life Inc. Co. vs. State, 12 C. C. R. 200.
U. S. Industrial Alcohol Co. vs. State, 12 C. C. R. 326.

Claimant herein could have secured a refund of the taxes paid under the unconstitutional statute if it had followed the provisions of Chapter 127, Paragraph 172, Illinois Revised Statutes 1943 (State Bar Association Edition). By failing to avail itself of the statutory remedy, the claimant corporation has become barred from securing an award in this claim, for the reason that an adequate remedy existed in the courts of general jurisdiction. '

Claimant has failed to pursue its statutory remedy, and, as the payment is based upon a set of facts and circumstances which this Court has held many times to be an inadequate basis for an award, the motion to dismiss must be allowed.

Claim dismissed.


text:
    (No. 3889
    Francis Hallisey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1945.

    T. V. Houlihan, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for respondent.
   Fisher, J.

Francis Hallisey, in his complaint filed herein on November 15, 1944, alleges, in substance, as follows :

That on or about the first week in October, 1944, the Department of Highway Maintenance, State of Illinois, with headquarters at Elgin, Illinois, sprayed poison along the highway for the purpose of killing weeds along the highway;
That a portion of the road-side so sprayed lies along and adjoining land of claimant in Hebron Township, McHenry County, Illinois;
That this poison was so sprayed as to fall upon adjoining land and upon the grass and crops belonging to claimant;
That thereafter five dairy cows belonging to claimant, as a result of eating the grass so poisoned, became sick, and three died and two became permanently disabled and of no further value;
That claimant was thereby damaged in the sum of $963.00, for which sum he seeks an award.

That Attorney General filed a motion to dismiss the complaint for the reason that “the damages alleged to have been sustained by the claimant are based upon the acts of the employees of the respondent while engaged in a governmental function, and no liability rests upon the State for damages caused by such acts.”

The record of the case consists of the Complaint, Motion to Dismiss, Statement, Brief and Argument on behalf of Respondent in support of the said Motion, and Reply Brief and Argument on behalf of Complaint.

The State of Illinois, as a part of the public highway system, constructs and maintains hard surfaced roads and various other highway improvements. In such construction and maintenance the State is engaged in a governmental function.

Allison vs. State, 11 C. C. R. 420.
Reader, etc. vs. State, 12 C. C. R. 99.
Turner, etc. vs. State, 12 C. C. R. 265.

In the spraying of poison along the highway for the purpose of killing weeds, as alleged by the claimant, the agents or employees of the State were performing acts in connection with maintaining the said highway and were engaged in a governmental function. In the performance of such governmental function the State is not liable for the acta of its officers, agents or employees.

Morrissey vs. State, 2 C. C. R. 254.
Reaber, etc. vs. State, 12 C. C. R. 99.
Turner, etc. vs. State, 12 C. C. R. 265.
Hewlett vs. State, 13 C. C. R. 27.
Minear vs. State Board of Agriculture, 259 Ill. 549.

A claim quite similar was considered by this Court in the case of Herbert E. Cleveland vs. State, 8 C. C. R 346, in which case it was claimed that chemicals sprayed along the highway for the purpose of eradication of Canada Thistles fell within the field of the claimant adjoining the highway, and a number of cattle died as a result of eating grass that had been sprayed with the - said chemicals. The Court held that there was no doubt that the claimant had suffered a substantial loss “but in the absence of some law creating a legal liability against the State, this Court believes itself without jurisdiction to make an award.”

In the case of Kinnars vs. City of Chicago, 171 Ill. 332, the Supreme Court of this State said “When the State acts in its sovereign capacity it does not submit its actions to the judgment of the courts, and is not liable for the torts or negligence of its agents.”

Counsel for claimant contends that the damages to the claimant were caused by the acts of the agents of the State in the performance of their duties and that the claimant should be compensated for his loss, and says that unless the State is responsible claimant has suffered a severe loss at the hands of the employees of the State, and yet is deprived of any right of compensation. Counsel further argues, with considerable force, that if the position of the Attorney General is correct, it leaves the claimant at the mercy of the State to use new, unusual and novel ways for the eradication of weeds on the highway without giving the adjoining property owners any protection for loss that may result therefrom. Claimant contends that this Court has full power to make an award in this claim under paragraph 4, Section 6 of the Court of Claims Act. Section 6 of the Court of Claims Act defines the powers and duties of the Court and is, in part, as follows:

6. The Court of Claims shall have power:
Par. 1 To make rules and orders not inconsistent with law, for carrying out the duties imposed upon it by law.
Par. If To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience discharge and pay.

Claimant asserts that under the cases above cited the words of said paragraph 4 are given no meaning whatsoever. In construing this paragraph (4) it must be remembered that it is the well settled law of this State that the rule or doctrine of respondeat superior is not applicable to the State, and it nowhere appears that it was the intention of the Legislature to go so far as to change this law and to make the State liable for the acts of its agents and employees.

The full meaning of paragraph 4 of Section 6, after much study, was discussed at great length in the case of Crabtree vs. State, 7 C. C. R. 207, in which case it was concluded that this section “merely defines the jurisdiction of the Court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of the Court to claims under which the State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.”

In the case of Peterson vs. State, 6 C. C. R. 77, this Court said:

“It is plain from the language of this statute (The Court of Claims Act) that no claim against the State can be allowed by this Court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State, he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point out any law giving him the right to an award, he cannot invoke the principle of equity to secure the award. Where there is no legal liability, equity cannot create one. (10 R. C. L. Sec. 132.) Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to the high standard of abstract right, regardless of the law.
* * * To give this statute the construction contended for by claimant would result in giving this court the power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far-reaching change in the law when it enacted the statute creating this Court.”

In the ease of Perry vs. State, 6 C. C. R. 81, this Court said :

“Claimant urges, however, that he should be awarded compensation as an act of justice and equity regardless of the principles of, law involved. The jurisdiction of this Court is fixed by law and it has no powers except those given by the Act creating it. Section Six (6) of that Act provides: “The Court of Claims shall have power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay.” It is obvious from the language of this statute that no claim against the State can be allowed by this Court unless there is either a legal or equitable obligation of the State to pay it. If there is either a legal or equitable obligation resting upon the State to pay a claim, then justice requires that the State should pay it. * * * “Claimant’s idea seems to be that equity is used in this statute as nothing more or less than the power of the court to decide each case according to a high standard of morality and abstract right, regardless of the law, such a construction would leave this Court with practically no limitation upon its power to render judgments against the State.
* * * When the Legislature created this Court and clothed it with power to hear claims against the State we do not think it thereby intended to waive the right of the State to interpose any legal or equitable defense it might have to the demands of claimants. * * *

This interpretation of paragraph 4 of Section 6 of the Court of Claims Act we think to be sound, and since the Perry case, and the Crabtree case, supra, it has been persistently and strictly adhered to by this Court. Much as we might like to interpret this section so as to enable us to grant an award in cases such as the case under consideration, we do not feel that we can go beyond the plain interpretation of the law as it is written, and that it is not onr function to attempt to, in effect, legislate by interpretation. Assuming the facts set forth in this complaint to be true, there is no question but that claimant has suffered a material damage, and we regret that we have no authority, under the law, to compensate him for such damages.

The Legislature of this State has long been aware of this limitation and, in an attempt to broaden the authority and jurisdiction to the Court of Claims to consider cases of this kind, the 58th General Assembly passed an Act to amend Section 6 of the Court of Claims Act, which amendment was vetoed by the then Governor, the Honorable Henry Horner, who said in part:

* * * "As phrased, the amended portion of the section seems to make the State liable for all instances where a private person or private corporation would be liable, to exempt the State from liability-under the doctrine of respondeat superior and to make the State liable for the wilful and wanton act or negligence of an employee of the State. Inasmuch as the doctrine of respondeat superior holds a master responsible for negligent acts of an employee committed while he is acting within the general scope of his employment, it could be seen readily that the provisions are directly contradictory and impossible of interpretation. * * * (Veto Messages of Governor Horner on Senate and House Bills passed by the 58th and 59th General Assemblies of Illinois, page 104.)

Again, the 59th General Assembly, amended paragraph 4 of the Court of Claims Act, to read:

“To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should discharge and pay; to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated; ex contractu and ex delicto, in respect to which the claimant would be entitled to redress against the State if the State were suable. Where any person has suffered damage as a result of the performance by the State of any of its governmental functions, the doctrine of respondeat superior shall not- apply; provided, however, that the court shall have the power to hear claims in cases now pending or hereafter brought in said court to recover damages from the state for the death or injury of any person, or for the injury to or destruction of property, caused by the wilful and wanton act or conduct, or the negligence of an employee of the State while acting in the course of his employment, where there is no contributory negligence upon the part of such injured claimant. * * *”

This Act was vetoed by the then Governor, the Honorable Henry Horner, and for one of the reasons for this veto, he said:

“It will be noticed that the first purpose of the bill is to exclude the words ‘in equity and good conscience’ from the present law; that under the next provision the State is made liable in all instances where it would be liable if suable; that under the next provision the doctrine of respondeat superior is said not to be applicable to the State; and that under the next provision the State is made liable for the ‘wilful and wanton act, or conduct, or the negligence of an employee of the State’ if there is no contributory negligence on the part of the claimant.
“The effect of the amendment seems to be, first, to make the State liable in all instances where a private person or private corporation would be liable; second, to exempt the State from liability under the doctrine of respondeat superior; third, to make the State liable (a) for the wilful and wanton act of a State employee and (b) for the negligence of a State employee. This latter provision would again seem to make the State liable in all instances where a private person or a private corporation would be liable. Had there been no reference to the doctrine of respondeat superior and the State had been made liable in all instances where a private person or private corporation would have been liable, the bill might have been constitutional in that respect. With an exemption of the State from the doctrine of respondeat superior and then a provision, the effect of which is to withdraw such exemption, the bill is left in such a state of uncertainty and confusion as to render it impossible of enforcement.” (Veto Message, page 105.)

The 60th General Assembly of Illinois, in a desire to broaden jurisdiction of the Court of Claims, passed an Act to amend Section 6 of the Court of Claims Act, to read as amended:

“To authorize the Court to hear, determine and allow claims against the State for damages on account of death or permanent injury of persons other than employees of the State, when the death or permanent injury is caused by wilful and wanton negligence of an employee of the State while acting in the course of his employment, and when the person killed or permanently injured is guilty of no contributory negligence.”

This Act was disapproved by Governor Horner, who in his Veto Message (Veto Messages, page 56) said:

“* * * The rule is well established that a State is not liable for the negligence of its employees, as the doctrine of respondeat superior does not prevail in such cases. The enactment of this bill into law will certainly be attended with disastrous consequences. No one can estimate the increased financial burden that would be placed upon the State. It is quite probable that the total number of claims filed annually in the Court of Claims against the State would be at least doubled. There is no limitation whatever upon the amount of recovery in case of either death or permanent injury. Not only the general public but also all of the inmates of our penal and charitable institutions would be included in its scope and authorized to file claims and secure awards in case of permanent injury or death caused by the wilful and wanton negligence of an employee of the State. * * *”
“The Court of Claims will, under its usual procedure, be greatly handicapped in passing upon this type of cases.” * * * “If this bill were to become law, it would only be the first step in extending the responsibility of the State for acts of its employees. Next, it would be made liable in cases of simple negligence. Later, it is conceivable that the fact that a State employee was involved in the accident, might be made prima facie evidence of negligence on his part. The State — and particularly the Division of Highways, has been carrying on an extensive and intensive campaign to cause its employee to obey traffic rules and regulations and to exercise caution at all times for their own safety and for that of the public generally. This campaign has produced gratifying results with a greatly reduced number of accidents in which State employees were involved. This bill would tend to remove the feeling of personal responsibility and thereby undo the recent successful work along these lines. In all cases the claimant would charge wilful and wanton negligence and if recovery were secured the employee would escape at least the civil consequences of his act.”

In the case of Lillian Pelli, Administratrix, etc. vs. State, 8 C. C. R. 324, the Court denied an award claimed under the “equity and good conscience” theory and, in doing so, said: “in denying this claim we do so without and prejudice against any other right or procedure which claimant deems advantageous to follow.” Subsequently, the 59th General Assembly passed “An Act Making an Appropriation to the Estate of Adolph Pelli.” This Act made an appropriation of $6,000.00 to Lillian Pelli, as damages for the death of her husband Adolph Pelli, while a patient in the Elgin State Hospital. The appropriatioh was disapproved by the Governor, the Honorable Henry Horner, who, (Veto Message, page 110) said:

“The Court of Claims has heard the evidence in this case and has denied the claim in an opinion, the soundness of which cannot be questioned. The court deals with the claim on legal grounds. It calls attention to the long established policy of this State in such matters . and adds that ‘the State cannot be properly asked to respond in damages for injuries sustained by any inmate of such institutions, whether due to the acts of other inmates or of attendants and employees therein.’ The court refers to its own records and to the decisions of other courts to sustain itself in denial of this claim.
“It discusses the theory of ‘equity and good conscience’ and says that ‘the facts in this case would appeal to the good conscience of any court but public policy has long established and the court is committed to the rule that the State can not be held to respond in damages arising out of the negligent acts of its employees or for injuries suffered by patients in its various penal and charitable institutions.’ The facts in this case do appeal to our sympathy but as the Governor of this State I realize what great danger lies in the establishment of a precedent that will open the State treasury to claims for damages for the ‘negligent acts of the State’s employees for injuries suffered by inmates of its penal and charitable institutions.’ To depart now from the long established policy of the State by approving this claim I should be setting a precedent the consequences of which might be disastrous to our State.
“Attorney General Kernel1 advises me that ‘it seems clear in this case that there is no legal obligation upon the State.’
“I would set a bad precedent if I should approve this bill. Hence, I return it with my disapproval.”

In the ease of Russel Johnson, Assignee, etc. vs. State, 12 C. C. R. 157, we concluded that

“The Legislature has so far determined that the greatest good to the greatest number of citizens of this State is best served by limiting the jurisdiction of this Court to claims stated upon a legal or equitable cause of action against the State. If the Legislature has erred in this respect, arguments of equity and good conscience should be directed to it, rather than to this Court."

While we are reluctant-to dismiss a claim of this kind, yet, in view of the law as it now stands and our consistent interpretation of the law, we have no authority whatsoever to grant an award, and have no alternative but to grant the motion of the Attorney General to dismiss the complaint.

The motion to dismiss is allowed and the claim dismissed.


text:
    (No. 3890
    Sunflower Petroleum Products Corporation, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1945.

    Brown, Hay & Stephens, for claimants.
    George F. Barrett, Attorney General; 0. Arthur Nebel, Assistant Attorney General, for respondent.
   Eckert, J.

The Illinois General Assembly, at its 1941 regular session, passed an Act entitled, “An Act in relation to a tax upon persons engaged in the business of producing oil in this state, and providing for the collection and payment of the tax by persons handling or receiving the oil so produced,” commonly known as the Oil Production Tax Act. It became effective July 1, 1941, and was administered by the Department of Finance (subsequently the Department of Revenue). The Department promulgated rules and regulations and determined what products fell within the definition of “oil” as provided in Section 1. The Act was held unconstitutional and invalid in its entirety by the Illinois Supreme Court on March 21, 1944. (Ohio Oil Co. vs. Wright, 386 Ill. 206.)

The claimant, the Sunflower Petroleum Products Corporation, is an Illinois corporation formed by the merger, on March 30, 1943, of the Sunflower Natural Gasoline Company, and the Sunflower Gasoline Corporation. The name of the Sunflower Gasoline Corporation was "changed, after the merger, to that of Sunflower Petroleum Products Corporation, and the latter company thus became the owner of all the assets of both the Sunflower Natural Gasoline Company and the Sunflower Gasoline Corporation, as well as subject to all the liabilities of the two corporations.

From the effective date of the Oil Production Tax Act, the Sunflower Petroleum Products Corporation, or one of its corporate predecessors, has been engaged in the manufacture of various products from casinghead gas. The Department of Finance ruled that the “producers” subject to tax under the Act, were the persons -- who owned interests in the casinghead gas at the time it came out of the oil wells; that the Sunflower Petroleum Products Corporation was a “receiver” as the term was definód by the Act; and that as such “receiver” it was required to collect the tax imposed by the Act from the persons from whom it purchased the casinghead gas.

In its complaint, the Sunflower Petroleum Products Corporation alleges that because of the rulings of the Department of Finance, and to avoid the severe penalties provided by the Act, the corporation, or its corporate predecessors, applied for, and were licensed and qualified, to act as receiver under certificates issued by the Department,' and that in accordance with the rules and regulations, and to avoid the penalties, it withheld each month, from the amounts payable to the owners for the casinghead gas which it purchased, an amount equal to the oil production tax as determined by the rules of the Department. Paragraphs 18 and 19 of the complaint are as follows :

“18. Said taxes so illegally collected by said Department of Finance and said Department of Revenue from said Sunflower Natural Gasoline Company, Sunflower Gasoline Corporation and Sunflower Petroleum Products Corporation are the property of the following named persons, the aggregate amount due each being given, and said Sunflower Petroleum Products Corporation files this claim on the basis of each and .all of them.
The Texas Company........................$7,791.43
Kingwood Oil Company..................... 605.49
Tex Harvey ................................ 55.46
Swan-King ................................. 8.39
Ohio Oil Company.......................... .07
Fess & Miller............................... 1.34
John Pugh ................................ 23.94
Shell Oil Company.......................... 273.01
H. H. Wegener............................. 104.55
J. W. Menhall.............................. 37.07
C. F. Frazier............................... 23.37
Glenwood Oil Co............................ 2.73
W. C. McBride.............................. 26.82
T. M. Pruett................................ 6.96
W. O. Morgan.............................. 17.21
$8,977.84
“19. Said Sunflower Petroleum Products Corporation files this claim on behalf of each of said persons, and prays that awards be made to each of said named individuals in the amount shown opposite each name.”

Claimant then prays that the court will render awards in favor of the persons named in the amounts stated in paragraph 18.

The respondent has filed a motion to dismiss the complaint on the ground that it is substantially insufficient in law in the following particulars:

“1. A cause of action is not stated upon which the State would be liable if it were suable at law or in equity.
“2. The claim presented is barred for the reason that the claimant had an adequate remedy in the courts of general jurisdiction, as provided in Chapter 127, Paragraph 172, Illinois Revised Statutes 1943.
“3. This claim is made for refund of a tax voluntarily paid with a full knowledge of all the facts, and such a payment may not be recovered in the absence of a statute to the contrary, although the tax is illegal or unconstitutional.”

In support of its motion, the respondent contends that claimant has alleged the payment of a tax under a statute subsequently held to be unconstitutional, but has not alleged the existence of any law giving claimant the right to a refund of the amounts paid under the unconstitutional statute; that unless claimant brings itself within the provisions of a law giving it the right to a refund, the claim must be dismissed; that claimant failed to avail itself of the statutory remedy by which it could have secured a refund in courts of general jurisdiction of the taxes paid under the unconstitutional statute; that a claimant who has a remedy in courts of general jurisdiction may not maintain an action in this court; and that a refund of a tax paid voluntarily, with a full knowledge of all the facts, may not be made in the absence of an authorizing statute, although the tax is found to be illegal or unconstitutional.

The claimant concedes that respondent’s motion would be properly directed to the complaint, and that the arguments in support of the motion would correctly state the law, if the claimant-were a taxpayer attempting to secure an award for taxes paid under a statute subsequently held to be unconstitutional. But'claimant contends it was not such a taxpayer; that, as agent of the State, it collected a tax which it was required to collect by statute and department regulations; that it paid the tax to its principal; and that the tax has now been found to be illegal. Claimant then contends it is contractually liable to those persons from whom it collected the tax, and therefore should be indemnified.

Under the provisions of the Oil Production Tax Act, claimant was clearly not a taxpayer, but an agent of the State to collect the tax. Claimant does not appear in this suit as a taxpayer seeking a refund of taxes paid either under a mistake of law or of fact nor as a taxpayer seeking a refund of taxes illegally paid. There was no provision in the Act imposing any of the burden of the tax on the “receiver,” and the “receiver” was merely the agent of the State to collect the tax. As such, claimant had no adequate remedy in courts of general jurisdiction.

On the other hand, there is nothing in the complaint, except the conclusion of the pleader, that the claimant is liable to the taxpayers for the collection of the illegal tax. Whether or not such liability actually exists is a matter to be determined by courts of general jurisdiction, if the claimant is sued. It must there be determined whether or not claimant has a defense, based, possibly, upon a statute of limitations, or possibly upon the failure of the taxpayers to avail themselves of remedies which they may have had in courts of general jurisdiction, or possibly upon other grounds of which claimant may well have special knowledge.

Claimant has not set up a cause of action; it has not alleged that any liability has been established in a court of competent jurisdiction on account of its collection of the illegal tax. The basis of the complaint is a conclusion that the claimant is liable to its vendors, upon its contracts for the purchase of casinghead gas, for the amounts withheld for the payment of the illegal tax, and that it must respond to them either for breach of contract, or for conversion of their funds. Claimant has suffered no more damage now than at the time it collected the tax, and it admits that at that time it had no cause of action. At best, the claim is prematurely filed. The court will not take jurisdiction of matters pending or undetermined by courts of general jurisdiction. Barrett vs. State, 1.3 C. C. R. 13.

The cases arising under the Motor Fuel Tax Act, cited by both claimant and respondent, are not in point. In the case of Silver Fleet Motor Express, Inc. vs. State, 10 C. C. R. 396, the claimant, as tax collecting agent for the State, was actually out of pocket because of an error in the reports made to the State. The moneys it claimed were its own, owing to it because of a factual error, and were not tax moneys which it had illegally collected from others. The same is true of the case of Mitchell and Hills vs. State, 12 C. C. R. 317. In Breen, Trustee, vs. State, 12 C. C. R. 285, the claimant corporation erroneously failed to deduct the expenses of the tax collection, to which it was entitled under the Act. In each of these cases the claim was for moneys actually due the agent, not for moneys which the agent collected from taxpayers under an unconstitutional statute and for refund of which the agent might or might not be liable.

For the reasons stated, respondent’s motion to dismiss is granted. Case dismissed.


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    (No. 3452
    Ralph Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Sharl B. Bass and Greenberg & Sachs, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant, Ralph. Johnson, was employed as an attendant at the Manteno State Hospital, and while so employed, on August 15, 1939, became ill with typhoid fever. Claimant alleges that as a result of said sickness he incurred expenses for medical and nursing services in the sum of $279.18. Claimant seeks an award for the amount of his expenditures for such medical and nursing services; also for impaired vision, the loss of the use of his legs, and for diminished hearing; all being a result of his said sickness.

The record consists of the Complaint, Stipulation, Deposition, Report of the Medical Examination, and Waiver of Statement, Brief and Argument by both Claimant and Respondent.

At the time of claimant’s illness .an epidemic of typhoid fever existed at the Manteno State Hospital, and claimant was required to care for and attend patients suffering from typhoid fever. We have heretofore held that an employee contracting typhoid fever under such conditions is entitled to the benefits under the Workmen’s Compensation Act. Mary Ade vs. State, 13 C. C. R. 1.

Claimant was examined on January 25, 1945, at the Chicago State Hospital by Dr. Carl Popper, a staff physician, a report of which examination was filed herein on February 16,1945, and discloses that claimant suffered from some disability in his right leg; that his eye sight is normal; and that his hearing is diminished in the right ear. The history of the case is a perforated right ear drum and weakness in the right leg.

Testifying in behalf of claimant, Dr. Alfred H. Mitchell of Chicago, testified that claimant had an involvement of the sensory branch of the spinal nerves which supply the area over the lower surface of the right thigh at its lower half, which he called neuritis. Dr. Mitchell said that in his opinion, this neuritis could be a complication following the attack of typhoid. He said further, “There are cases on record of that particular complication. They are not frequent, but they do occur. ” On cross examination, Dr. Mitchell admitted that “there are several diseases which could cause this thing other than the complication of typhoid fever.”

Dr. Alfred H. Herman, 30 North Michigan Avenue, Chicago, Illinois, testifying in behalf of claimant, said that his right ear showed a drum with markedly distorted land marks. There was a small perforation in the posterior anterior quadrant. When asked if, in his opinion, there was any causal relationship between the loss of hearing at the present time and the attack of typhoid fever, said “there might or could have been some effect on his hearing.” Also, on cross examination, Dr. Herman said that the diminished hearing might have been the result of some other disease.

The evidence is entirely insufficient to support the claim that claimant’s alleged disability is a result of his illness from typhoid fever.

Claimant was required to obtain medical and nursing services at his own expense, and paid $143.00 for nursing services, $2.00 for a test taken at St. Mary’s Hospital, $11.18 for medicine, and $123.00 to Dr. O. H. Phipps— a total of $279.18 — all of which was paid by claimant, and for which he is entitled to be reimbursed.

Claimant’s illness began on August 16, 1939, and he returned to work on December 12, 1939, in the same capacity and at the same salary. He was entitled to receive for total temporary disability during his illness, the sum of $11.04 per week for 17 weeks, or a total of $187.68. He was paid his full salary during the period of his illness, or the sum of $243.87. Claimant thus received $56.19 for unproductive time during his illness, which amount must be deducted from the amount due him, leaving a balance due claimant of $222.99.

An award is therefore made in favor of claimant, Ralph Johnson, in the total sum of $222.99, all of which is accrued.


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    (No. 3583
    Samuel D. Lyman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Shapiro and Lauridsen, for claimant.
    . George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This complaint was filed on the 7th-day of February, 1941. It is for benefits under the Workmen’s Compensation Act.

The complaint states that Samuel D. Lyman, the claimant herein, was on the 30th day of September, 1939,-in the employ of the respondent as a cook at Manteno State Hospital. That on the last-mentioned date, he contracted typhoid fever in said institution and as a result thereof, thrombophlebitis developed in his left leg, following the attack of typhoid fever.

The record consists of the complaint, stipulation, report of the Department of Public Welfare, report of Dr. T. J. Pasqueri, dated April 15, 1943, report of Dr/ Courtland L. Booth, dated March 7, 1945, verified bill of particulars, waivers of statement, brief and argument on behalf of claimant and the respondent.

No evidence was taken in this case and the claimant relies on the verified reports of the two above-named physicians to support his claim for disability.

Claimant is not available for a personal observation by the members of this Court, he now being in the Draft Department of the Oregon Shipbuilding Corporation in the State of Oregon.

Claimant’s bill of particulars sets up items for nurses salaries, drugs, massage treatments, rubber stockings, and bandages, amounting to the sum of $407.50, which he claims to have expended. There is nothing in the record to indicate that these services were necessary and that the charges therefor were reasonable. The report of -the Department of Public Welfare shows that claimant’s wages were paid to him during the period of his illness, amounting to approximately $409.00. It also shows that the respondent paid the claimant’s mother the sum of $119.16 for nurse'hire, and further that all necessary hospital facilities and physician’s services were furnished by the respondent at the Manteno State Hospital.

This record is not sufficient to enable this Court to ascertain, with certainty, whether or not claimant is entitled to an award for any part of the claim he makes in his complaint, or bill of particulars. He is seeking an award as follows :

To doctor bills, nurses bills, special diet, etc. (estimated)____$ 400.00
To medicine, supplies, etc. (estimated)...................... 150.00
To claimant, as provided under the Workmen’s Compensation
Act of the State of Illinois................................ 5,000.00

If this claimant has sustained a permanent injury to his left leg, evidence should be taken, and if the claimant was required to expend monies in the effort to be cured, evidence should be taken in support thereof, and the respondent should have the opportunity to be present at the time of the taking of said testimony.

Where claim is made for compensation for permanent partial disability, the burden of proof is on claimant to show such disability and to establish his right to compensation therefor by a preponderance, or greater weight, of the evidence, and no award can be based upon speculation, surmise, or conjecture. Mandell vs. State, 12 C. C. R. 49.

Where, after giving full credence to the medical and other testimony adduced by claimant, the record fails to show that claimant had suffered and will continue to suffer permanent partial disability, claim for compensation therefore cannot be sustained, and an award must be denied. Eggler vs. State, 12 C. C. R. 386. Cross vs. State, 13 C. C. R. 174.

Claim denied.


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    (No. 3802
    Franklin R. Dove, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    A. L. Yantis, for claimant.
    George F. Barrett, Attorney General; C. Arthur Nebbl, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant is a duly elected, qualified and acting Judge of the Circuit Court of the Fourth Judicial District of Illinois, which position he has held continuously since his election in June, 1922. Since November 7, 1942, claimant has not appointed a regular court reporter and has been required, on numerous occasions, to secure the services of various competent reporters on a day to day basis where such services were required. Claimant has compensated and paid these reporters from his own funds, all in the sum of $1,159.00, to recover which amount as set forth in detail in the verified complaint, claimant seeks an award.

The record consists of the Complaint, Supplemental Complaint, Stipulation, and Statement, Brief and Argument in behalf of respondent.

The facts herein are not in dispute. Due to inability to secure the services of a regular court reporter on and after the 7th day of November, 1942, claimant was required, on numerous and various occasions, to engage the services of a court reporter for the purpose of recording proceedings of the court, and claimant paid these reporters from his own funds, all in the amount of $1,159.00.

“Bach of the several judges of the Circuit, Superior and City-Courts in this State is authorized to appoint one official shorthand reporter, who shall be skilled in verbatim reporting, and who shall have been a bonafide resident of the State of Illinois for one year, and whose duty shall be as hereinafter specified. * * *”
Sec. 163 (a), Chap. 37, Illinois Revised Statutes.

Claimant clearly was authorized to appoint an official court reporter. Compensation for the services of such reporter is provided by appropriations from the Treasury of the State of Illinois.

We have heretofore held, that upon proper showing an award may be made for the services rendered by a court reporter of the Circuit Court.

Shell vs. State, 8 C. C. R. 235.
Cox vs. State, 10 C. C. R. 381.

Claimant, as an officer or agent of the respondent, has secured services which he was authorized to procure by the respondent; respondent has not paid for the services so secured; and claimant has paid for the said services from his own funds in order to carry on the business before the court. Because of the present existing conditions, claimant has been unable to comply with the directory provisions of the statute regarding appointment of a reporter and, therefore, no payment for the said services has been made by the respondent.

It appears that the services of a court reporter were necessary to the claimant and that such services were actually rendered. It further appears that had a regular court reporter been appointed, far greater sums than that now asked by the claimant would have been expended by the respondent for the services rendered. As this court has previously held that an award may be had for the services rendered by a court reporter, and the claimant was authorized by statute to procure said services, for which respondent has not paid, claimant is entitled to be reimbursed for his reasonable expenditures shown to have been made therefor.

An award is therefore entered in favor of the claimant, Franklin R. Dove, in the sum of One Thousand One Hundred Fifty-nine Dollars ($1,159.00).


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    (No. 3803
    Lula Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1945.

    Joseph W. Koucky, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On April 12, 1943, the claimant, Lula Thompson, an employee of the respondent at the Chicago State Hospital, while in the discharge of her duties supervising a group of patients, fell and sustained a fracture of the neck of the left femur with displacement in posterior rotation.

The wage of the claimant for the year next preceding her injury was $1,060.80, or an average weekly wage of $20.40. She had no children under sixteen years of age ; her compensation rate is therefore $10.20, plus 10%, or $11.22. The respondent furnished medical, hospital and surgical services in part only, and paid claimant temporary total disability for a period of six months following the injury. Claim is made for further temporary total compensation, for reimbursement for additional medical, hospital, and surgical expenses paid by claimant, and for permanent loss of use of claimant’s left leg.

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

Immediately after the injury occurred, claimant was. taken to the employees’ hospital unit at the Chicago State Hospital where x-rays were taken, and claimant was placed under the care of Dr. George Procopie, a part time physician and surgeon employed by the respondent. She remained under his care until January 7, 1944.

On April 29, 1943, an operation was performed to reduce the fracture and to insert a Smith-Peterson nail. At the request of the claimant and her family, Dr. Nathan Lans assisted Dr. Procopie in this operation. Claimant paid Dr. Procopie $200.00, and Dr. Lans $80.00 for these services. Claimant also paid a charge of $8.00 for the Smith-Peterson pin, and a charge of $60.00 for a portable x-ray incurred because claimant could not be moved to the x-ray room of the Chicago State Hospital, which had no portable machine.

Following the operation, a union did not occur, and there was some disagreement between Dr. Procopie and Dr. Lans as to further treatment. In January, 1944, claimant told Dr. Procopie that she wanted to go to Grant Hospital to have an operation performed there by Dr. Lans. Dr. Lans notified Dr. Procopie to the same effect on the same day, and claimant was accordingly removed under the direction of Dr. Lans to Grant Hospital. At Grant Hospital, a Schantz Osteotomy was performed on claimant’s left hip, by Dr. Seidler and Dr. Lans. This resulted in a shortening of the left leg. Claimant remained in Grant Hospital for three weeks, and was then returned to the Chicago State Hospital where she was attended by Dr. Lans. Dr. Seidler and Dr. Lans made a charge of $200.00 for the second operation, which was also paid by claimant, and Dr. Lans made a charge of $50.00 for his care subsequent to the second operation. This item remains unpaid. The charges of Grant Hospital were $208.90, and there was a charge of $14.00 for ambulance to return claimant from the Grant Hospital to the Chicago State Hospital.

Claimant .remained in the Chicago State Hospital until June 27, 1944, a period of sixty-three weeks of hospitalization; and continued to be totally disabled for several months after her discharge. Testifying in her own behalf, she stated that her left knee is now very stiff, that she can not bend her hip, that she has difficulty putting .on her shoes and stockings, that she can not bend over far enough to tie her shoe strings, and that her left ankle and knee are both swollen.

Dr. Albert C. Field, called as a witness on behalf of claimant, testified that he first examined claimant on August 3,1944, and that he took x-rays at that time. He stated that from his examination and from the x-rays, he found that claimant’s left knee was swollen, measuring 17% inches, whereas her right knee measured 16% inches; that there was some atrophy in claimant’s left thigh, which measured 16% inches, whereas the right thigh measured 16% inches; that the left knee was held in a flexed deformity; that there was limitation of extension of about twenty-five degrees; that the left knee was “practically ankylozed”; that there was little abduction in the left hip, and a little internal and external rotation. The doctor testified that the condition of the left hip was permanent and that in his opinion claimant had lost all industrial use of her left leg.

Dr. Lans testified that claimant’s left leg is now about an inch and three-fourths shorter than her right leg; that as a result of this shortening, she limps and has difficulty in stooping down; that she suffers no pain, but that the leg is ankylosed in the socket; and that the ankylosis interferes with the movement of the leg in the socket. Dr. Lans also testified that in his opinion, claimant had lost all industrial use of her left leg, and that the condition is permanent.

From a consideration of the medical testimony, from an examination of the x-rays submitted in evidence, and from personal observation of the claimant, the court is of the opinion that claimant has suffered a seventy-five per cent permanent loss of use of her left leg. She is, therefore, entitled to an award of 79% of 190 weeks at $11.22 per week, or $1,598.85 for such permanent injury.

Claimant is also entitled to an award for temporary total disability for a period of not to exceed sixty-four weeks, as provided by Section 8(e) of the Workmen’s Compensation Act, at $11.22 per week, or $718.08. From this amount must be deducted the compensation paid to her during the six months immediately following the injury, or the sum of $291.72, leaving a balance due claimant of $426.36.

Claimant is also entitled to be reimbursed for part of -the medical services incurred and paid by her, to-wit:

For the services of Dr. Procopie.......•......................$200.00
For the use of the portable x-ray............................. 60.00
For the use of the Smith-Peterson pin........................ 8.00
Or a total of............................................$268.00

No other medical, surgical, or hospital services can be allowed, however, because claimant elected to secure her own physician, surgeon, and hospital services at her own expense.

Award is therefore entered in favor of the claimant in the sum of $2,293.21, payable as follows:

1. The sum of $268.00 reimbursement for medical services, payable forthwith.

2. The sum of $426.36, the balance due on account of temporary total disability, payable forthwith.

3. The sum of $493.68 on account of permanent, specific injury, which has accrued, and is payable forthwith.

|Ji 4. The balance of $1,105.17 in weekly installments of $11.22 per week beginning May 8, 1945, for a period of 98 weeks with an additional final payment of $5.61.