text:
    (No. 4039
    Effie May Burton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Roy A. Ptacin, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

On September 18, 1947, claimant, Effie May Burton, filed her complaint for an award aggregating $4,627.70 under the provisions of the Workmen’s Compensation Act because of injuries alleged to have been sustained in an accident arising out of and in the course of her employment by respondent.

The transcript of the evidence was filed January 14, 1948.

On May 10, 1947 claimant classified as Cook I was employed in the Department of Public Welfare at the Chicago State Hospital. Her gross earnings for the preceding year totaled $1,980.00 and for May and June, 1947, $165.00 and $132.00, respectively.

Mrs. Burton testified that on May 10, 1947, she was working in the officers’ kitchen of the hospital. While carrying a receptacle of grease, she slipped on grease previously spilled on the floor. She could not get up because of the severe pain and was assisted to her feet by two patients. She lived.in the employees’ dormitory on the premises and was taken to the room she occupied with her husband who was also employed at the hospital.

Her husband called' Dr. Hurwitz, a physician not connected with the hospital. He visited claimant four times. Treatment was confined to the application of cold packs and later heat. She did not see any other physician until June 7th when she was examined and X-rayed by Dr. Benjamin Cohen, one of the hospital staff physicians. Later she was examined by Dr. J. M. Gillespie and Dr. W. W. Ritchey in Marion, Illinois, and Dr. Albert C. Field in Chicago.

Upon reaching her room immediately after the accident she was placed in bed. She experienced pain in her knee, it was swollen and was still swollen a month later when she saw Dr. Gillespie.

Dr. Campbell, the Assistant Superintendent enforcing a rule at the institution requiring non-working personnel to relinquish their room, requested claimant to leave, and a few days later on June 7, 1947 she moved to Marion, Illinois, returning to Chicago in November.

Before the accident she could walk normally but since then she has been unable to walk, her knee still pains her and is stiff and swollen. She has not been gainfully employed since the accident.

Claimant further stated that she never personally requested any medical or hospital treatment from the officials at the Chicago State Hospital. Hr. Hurwitz had previously attended her husband and as far as she knew was voluntarily called by the latter to furnish her medical attention.

C. M. Weesner, the chief dietician and claimant’s immediate superior, testified that Mr. Burton called him and told him about the accident the following day, but he had known about it before, having scheduled someone else to replace Mrs. Burton.

Dr. Albert C. Field, called as an expert witness, examined claimant three or four times and took x-rays. On October 25, 1947 he fomid her left knee enlarged; held in flexible limitation of extension about 45 degrees from normal with flexion limited to 90 degrees or about half of normal. Each side of patella as well as the capsule were thickened; there was excess fluid in the joint; the knee was discolored; swollen and pitted on pressure indicating impaired circulation.

When he examined her again on January 6, 1948 she showed slight improvement in that she lacked only 25 degrees extension; there was no pit on pressure and no excess fluid in the joint. He interpreted the x-rays as showing an inflammatory condition in the articulating surface of the patella; and an injury to the externa] condyle of the femur and upper border plateau of the; tibia; a displacement of the lateral condyle of the tibia as the result of an impacted fracture. In his opinion owing to the synovitis due to the trauma at the time of the accident and that now caused by walking; the loss of weight — bearing surface; instability caused by the depressed or one-sided condition of .the fracture; the circulatory disturbance and limitation of extension and flexion, she has about 35% normal function of. the leg but should show a little improvement With an ultimate permanent impairment of 50%.

The record supports a finding that the parties were operating under the provisions of the Workmen’s Compensation Act; that the accident arose out of and in the course of claimant’s employment and that notice of the accident and claim for compensation were made within the required statutory time.

Claimant obtained her own medical attention and makes no claim for the same.

The evidence discloses that claimant sustained temporary total disability for 34 5/7 weeks from May 10, 1947 to January 8, 1948 and a permanent partial loss of use of her left leg. The medical testimony on behalf of claimant that she will ultimately recover not more than 50% normal use of the leg is based upon definite findings. This testimony is not impeached and stands without contradiction.

Commissioner Blumenthal before whom the testimony was taken and who observed the claimant agrees with the findings of the medical testimony and recommends an award as above set forth. We find that claimant is entitled to an award in the sum of $2,334.86 from which must be deducted the sum of $271.30 representing payments by respondent to her for unproductive time during May and June 1947.

On the basis of this record an award is hereby entered in favor of claimant, Effie May Burton, in the sum of $2,334.86._ This sum represents 34 5/7 weeks for temporary total compensation and 50% partial permanent loss of use of her left leg. This award is payable to her as follows:

The sum of $792.00 has accrued to her since the injury. Since claimant was paid $271.30 for non-productive time, this sum must be deducted leaving an accrued sum of $520.70 which is payable forthwith. The remainder of said award amounting to the sum of $1,542.86 is payable in weekly installments of $18.00 per week beginning March 14, 1948, for 85 weeks with one final payment of $12.86, as provided under the provisions of Section 8(e) of the Workmen’s Compensation Act, as amended.

A. M. Rothbart, court reporting service, was employed to take and transcribe the testimony for which they made a charge of $68.70. We find that this charge is fair, reasonable, and customary.

An award is therefore entered in favor of A. M. Rothbart, Chicago, Illinois in the sum of $68.70.

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.”


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

text:
    (No. 4045
    Lucille Hayward, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Oliver A. Clark, for Claimant.
    George F. Barrett, Attorney General, for Respondent.
   Eckert, C. J.

The claimant, Lucille Hayward, is the widow of Henry Hayward, deceased, a former highway maintenance worker employed by the respondent in the Department of Public Works and Buildings, Division of Highways. On June 24, 1947, while helping to load a kettle of hot tar onto a truck, at the intersection of Sacramento Boulevard and Taylor Street, in Chicago, the kettle tipped over, throwing the decdent to the pavement. The molten bituminous material in the kettle ran over the pavement where decedent lay, coating his back and portions of his legs, arms, and head. He was immediately taken to Mount Sinai Hospital in Chicago and placed in charge of Dr. Joseph T. Gault, who reported to the respondent on July 18, 1947 that the decedent had suffered second and third degree burns. Dr. Gault also stated that the areas had become infected, and that treatment consisted of dressings, penicillin, plasma blood transfusions, vitamins, and a high protein diet.

Since the bums did not readily respond to treatment, the decedent was transferred on August 2, 1947 to St. Luke’s Hospital, Chicago, and placed in care of Dr. H. B. Thomas, Professor Emeritus of Orthopedics, University of Illinois Medical College. Dr. Thomas reported an extensive infection of the burned areas, and decedent’s condition became rapidly worse. He died on August 18, 1947. Claimant, as widow of the deceased employee, now seeks an award under the provisions of the Workmen’s Compensation Act.

At the time of the accident which resulted in the death of Henry Hayward, the employer and employee 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 decedent’s employment.

During the year immediately preceding the accident which caused the death of Henry Hayward, his earnings totalled $2,060.00, so that his average weekly wage was $39.62, and his compensation rate was the maximum of $15.00 per week. Since the injury occurred subsequent to July 1, 1945, this must be increased 20%, making a compensation rate of $18.00 per week. The decedent had no children under sixteen years of.age dependent upon him for support at the time of his death.

Claimant is entitled to an award under Section 7a of the Workmen’s Compensation Act in the amount of $4,000.00. The death having occurred as a result of an injury sustained after July 1, 1945, this amount must be increased 20%, or $800.00. The decedent, however, was paid for the period from June 25, 1947 to August 18, 1947, for non-productive time, the total amount of $260.29, which must be deducted from any award made in this case.

An award is therefore made in favor of the claimant, Lucille Hayward, in the amount of $4,800.00, less the sum of $260.29 paid to the decedent for non-productive time, or the sum of $4,539.71 to be paid to her as follows:

$ 297.71, which has accrued, is payable forthwith;
$4,242.00, is payable in weekly installments of $18.00 per week beginning March 23, 1948 for a period of 235 weeks with an additional final payment of $12.00.

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

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


author: Damron, J.

text:
    (No. 4046
    Louise J. Sippel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Claimant, Pro Se.

    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

The record consists of the complaint, report of Division óf Highways, stipulation in lieu of evidence, waivers of briefs of claimant and respondent.

The stipulation shows that on the 18th day of July, 1947, John Sippel, an employee in the Division of Highways sustained an accidental injury which arose out of and in the course of his employment ; that notice of the said injury was given to the respondent and claim for compensation on account thereof was made within the time required under Section 24 of the Workmen’s Compensation Act, as amended, and the complaint was filed within apt time under the Statute.

It is further stipulated that the said John Sippel was employed as a common laborer and that at periods his. team and mower were also hired to mow vegetation alón <r State highways, and on these occasions he was paid an additional amount for the use of his team and mower.

The Departmental report shows that Mr. Sippel was first employed by the Division of Highways in June 1942 as a common laborer at a wage rate of $ .50 per hour. He was intermittently employed by the Division from that date until July 18, 1947. During the Spring of 1947 he agreed to mow vegetation with his team and mower for the Division and for these services beginning June 16, 1947 he was to receive $1.60 an hour. He began mowing vegetation on that date and worked regularly until July 18, 1947 when he received the injuries which subsequently resulted in his death. The Departmental report further shows that common laborers such as was Mr. Sippel received $ .90 an hour during the period just prior to and on the date of his injury, eight hours constituted a normal working day. They worked less than 200 days a year.

On July 18, 1947 he had been assigned to mow weeds on 127th Street in Cook County, east of the village of Palos Park, and at about 3:30 o’clock that afternoon he was found unconscious in the north ditch of 127th Street about two blocks west of Harlem Avenue.

The Cook County Highway Police were notified, who secured an ambulance which took him to Mary Hospital in Evergreen Park where Dr. Edward M. Murphy was placed in charge of the case. He reported to the Division that Mr. Sippel fell off the mower holding to the lines; the horses backed up causing the wheels of the mower to pass over his body. Dr. Murphy diagnosed his injuries as contusion of the abdominal wall, ruptured liver, and retroperitoneal hematoma. He was placed in bed, blood transfusions were given together with penicillin. X-rays were made.

Dr. Murphy secured the services of Dr. R. H. Lawler as a consultant who assisted in the treatment of the patient. On August 1, 1947 he was released from the hospital to convalesce at home. On September 3, 1947 the Division had him removed by ambulance to St. Luke’s Hospital in Chicago where he was treated by Dr. H. B. Thomas, Orthopedic surgeon. He did not respond to treatment under Dr. Thomas and on September 18,1947 he died as a result of this injury.

From this record we made the following findings: that on the 18th day .of July 1947, the decedent John Sippel received injuries which arose out of and in the course of his employment for the respondent which resulted in his death on the 18th day of September 1947; that his annual wages for one year next preceding his injury amounted to the sum of $1,440.00. At the time of his death he was 67 years of age and left surviving him his widow, the claimant, Louise J. Sippel. There were no children under 16 years of age dependent upon him for support. We find that his average weekly wages based on the fact that he was a part time employee amounted to $27.69, therefore his weekly compensation rate is $18.00 since the injury and death occurred subsequent to July 1, 1947.

An award is therefore entered in favor of the claimant, Louise J. Sippel, in the sum of Five Thousand Two Hundred ($5,200.00) Dollars, as provided under Section 7 (a) of the Workmen’s Compensation Act, as amended.

From the date of the death of Mr. Sippel to the 11th day of March, 1948 the sum of $450.00 has accrued representing 25 weeks, which is payable to her in a lump sum. The remainder of said award, amounting to Four Thousand Seven Hundred and Fifty ($4,750.00) Dollars, is payable to her at $18.00 per week for 263 weeks with one final payment of $16.00, payable ont of the Road Fund.

The record shows that the Division of Highways forwarded to claimant check No. 133260, for $113.14 and .check No. 137166, for $43.71 payable to decedent for total temporary disability which were received by claimant after Mr. Sippel’s death. It further shows that these checks were returned to the Division of Highways by the claimant but were thereafter returned to her with instructions to cash them. This award does not take into consideration the amounts paid to her'"through these checks and they must be returned to the Division of Highways by her for cancellation otherwise the amount of $156.85 must be deducted from the award.

The future payments before referred to, being subject to the terms and provisions of the Workmen’s Compensation Act, jurisdiction of this cause is hereby retained by this Court for the purpose of making such further orders as may from time to time be necessary herein.

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: Bergstrom, J.

text:
    (No. 4051
    Larue Lane, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Claimant, Pro Se.

    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant filed his claim on December 2, 1947 for compensation under the Workmen’s Compensation Act, for injuries which he suffered on September 19, 1947, while employed by respondent.

He was employed by respondent in the Department of Public Works and Buildings, Division of Highways, as a highway patrolman. On September 19, 1947 claimant’s group of men were cleaning a sewer on S.B.I. Route No. 97, near Dearborn and Promade Streets, in Havana, Mason County, Illinois. This was done by feeding a cable through the tile from one manhole to another. A drag was attached to one end of the line and a winch was used to pull the drag through that portion of the sewer. On the aforesaid date, while operating the winch, claimant placed his right hand on an exposed cogwheel of the winch. His right index finger was caught in the cogs and crushed. Claimant Went to the office of Dr. William E. Northland in Havana, who gave first aid immediately after the accident. On the following day Dr. Northland sent claimant to the Deal Clinic at Springfield, Illinois, for subsequent care.

It was necessary to amputate his right index finger'' at the distal joint. The X-rays show no injury to the remainder of the finger. Except for sufficient time to call on his doctor, claimant continued work throughout his treatment period. Respondent paid the medical expenses incurred in connection with this injury.

At the time of the accident in. which the claimant, Larue Lane, was injured, employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State. 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 claimant’s employment.

Claimant had no children under sixteen years of age depending upon him for support. For the year preceding his injury his earnings totaled $2,258.03. His compensation rate, therefore, would be $15.00 per week. However, as the injury was incurred after July 1, 1947, this must be increased 30%, making his compensation rate $19.50 per week.

Claimant is entitled to an award for one-half the loss of his right index finger. Under Sec. 8, Par. E, this would be twenty weeks at $19.50 per week, or $390.00. An award is therefore made in favor of claimant, Larue Lane, in the amount of $390.00, all of which has accrued and is payable forthwith.

Hugo Antonacci, court reporter, 502 Illinois National Bank Building, Springfield, Illinois, was employed to take and transcribe the testimony, for which he made a charge of $5.55. We find that this charge is fair, reasonable and customary.

An award is therefore entered in favor of Hugo Antonacci, Springfield, Illinois, in the" sum of $5.55.

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.”


text:
    (No. 4026
    Malcolm MacLeod, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Earl Little, for Claimant.
    George F. Barrett, Attorney General; William.L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

The complaint in this case was filed on May 23, 1947. It is a claim under the Workmen’s Compensation Act, and alleges that the above named claimant was injured on February 22, 1947 while employed by the respondent as a janitor in the State Northwest Armory in Chicago. It seeks an award for permanent total disability.

The evidence was taken on the 14th day of November, 1947 before Commissioner Blumenthal.

Claimant testified that on February 24, 1947 he was ordered by one Joseph Salemme, a fellow employee, to move some chairs, and while going down ap inner stairway from the second floor of the Armory he fell over 'the balustrade for a distance of about 16 feet striking his head against the cement floor. He testified he lost consciousness for a short time, and then was taken by an ambulance to Alexian Brothers’ Hospital. The Departmental reports filed in this cause show that he was discharged from the hospital on March 26, 1947. On the date of the hearing he testified that he did not feel well; his head ached; his back was painful; he could not stand up; and that he was dizzy all the time, and if he walks a short distance he falls down.

On cross-examination he testified that the accident occurred about 1:15 P. M., and that the balustrade over which he fell was about 4 feet high. No one witnessed his fall. He further testified that after leaving the hospital he went to his room and could not walk down the stairs for aboút 2 months. He was unable to leave his room alone until some time in June and rested thereafter to September. Previous to his employment by the respondent/he testified that he had worked four years at the Bible Institute in Chicago, but had quit there about one month prior to going to work at the Armory, because the work was too hard for him.

In support of his complaint Doctor Albert C. Field was called and testified that he examined the claimant on October 9, 1947 finding claimant to be unsteady on bending test with a tremor of the extended fingers and tongue; restricted movement of the spine; roughened breathing sounds; a somewhat rapid heart; a blood pressure of 180/90; urine specific gravity sp. 1018; with a trace of sugar; reflexes present, equal and somewhat exaggerated; marked nervous instability; and arteriosclerosis of the heart. Dr. Field testified that he took X-rays of the claimant which revealed a healed fracture of the 9th rib. He expressed an opinion that was based on his examination that claimant was unable to perform duties such as sweeping, dusting and arranging chairs; that his disability was permanent and that the fall, testified to by claimant, probably had a tendency to aggravate his existing condition. That in his opinion the arteriosclerosis was probably due to his age but there could be a causal connection between the concussion and the claimant’s tremors, diabetic condition, arteriosclerosis and positive findings of the Lasuege and Kernig tests.

The respondent called Louis J. Schutt, custodian of the Armory, who testified he had found the claimant lying at the bottom of the stairs alongside of two push-brooms. He further testified that the stairway in question is entirely enclosed with a handrail on both sides; that the flight comprised about 16 steps; and that it was not possible for claimant to have fallen over the balustrade. He further testified that as far as he knew claimant had no reason to be going down the stairs, and further that Joseph Salemme, who claimant ha’d testified had ordered him to move some chairs, was not arranging any chairs, nor was any furniture moved that day in the Armory. Salemme was not called as a witness by the respondent.

It was stipulated by and between the parties that if Dr. William E. Dyko were called as a witness in this case and were sworn, he would testify that he was the treating and attending physician and surgeon of the claimant, and that he would testify as follows:

“That claimant was discharged as a patient on March 26, 1947; that he had recovered from the injuries sustained on February 24, 1947, consisting of contusions and abrasions to his head, arms, elbows, wrists, back, cerebral concussion, fracture of the 9th rib, and partial collapse of the base of the left lung. These injuries were complicated by arteriosclerotic heart disease, with first degree arterio-ventricular block and decompensation, diabetes, and hypertension having been brought under control. While these conditions were aggravated by the accident they were neither caused by nor did they result therefrom.”

The Supreme Court of this State and this Court has held on numerous occasions that when a person has a pre-existing disease and that disease is aggravated or accelerated in the course of the employment by accidental means it is compensable. Finkler vs. State, 11 C.C.R., 55; Cameron, Joyce & Co. vs. Ind. Com, 324 Ill. 447; Marsh vs. Ind. Com., 386 Ill. 11; C. & A. Ry. Co. vs. Ind. Com., 310 Ill. 506; Muir vs. State, 14 C.C.R., 191. However, in order to recover an award it has been held by this Court that the burden is upon claimant to establish by a preponderance of the evidence his right to compensation, and no award can be based upon speculation, surmise or conjecture. Sprague vs. State, 14 C.C.R, 116; and cases cited thereunder.

Viewing the record as liberally as possible so as to accord the claimant every benefit of the Workmen’s Compensation Act, as amended, we are unable to conclude that claimant has proven that the accident sustained by him on the 24th day of February, 1947 aggravated or accelerated his previous unstable condition of health. His claim for permanent total disability must be denied.

We find from the evidence, however, that claimant was temporarily, totally disabled from the date of his injury, to-wit February 24, 1947, to the 14th day of November, 1947, representing 37 4/7 weeks, and based on his weekly compensation rate of $17.30 this would amount to the sum of $649.98.

An award is therefore hereby entered in favor of claimant, Malcolm MacLeod, in the sum of $649.98 for temporary total disability for the period above indicated, from which must be deducted the sum of $145.60 paid to him for the last five days of February and all of March, 1947 for unproductive time, leaving a net award in the sum of $504.38, which has accrued and is payable forthwith.

The record discloses that A. M. Rothbart, Court Reporting Service, has filed a bill amounting to the sum of $50.15 for the taking and transcribing of the evidence. We find this charge is fair and reasonable, and it is hereby allowed.

An award is-hereby entered in favor of A. M. Rothbart in the sum of $50.15.

These awards are subject to the approval of the Governor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”


text:
    (No. 4032
    Forrest G. Lamb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    H. Ogden Brainard, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Forrest G. Lamb, filed his complaint on July 3, 1947 for compensation under the Workmen’s Compensation Act for injuries he sustained on October 4, 1946 while in the employ of respondent.

He was employed by the Department of Public Works and Buildings, Division of Highways, as an equipment operator. On October 4, 1946 he was removing temporary barricades placed to protect pavement patches on U. S. Route 45 north of Mattoon in Coles County. About 1:15 P. M. and ápproximately two miles north of Mattoon on this date a barricade frame which was thrown into the truck fell on claimant’s right middle and ring-finger crushing them between other material in the truck and causing compound comminuted fractures of both terminal phalanges. The Division of Highways took Mr. Lamb to Dr. F. B. Lloyd of Charleston, who treated the injuries. Due to necrosis, it was necessary, on December 19, 1946, to amputate the terminal phalanx of the right third or ring finger. Claimant lost three days from his employment, for-which he was paid full salary in the amount of $16.45. His medical bills, amounting to $115.00, were paid by respondent.

The employee and employer were operating under the provisions of the Workmen’s Compensation Act, and we find that claimant was injured out of and during the course of his employment. We also find that respondent had immediate notice of the accident and that claim was filed in apt time to meet the jurisdictional requirements of Sec. 24 of the Act.

The evidence shows that claimant’s right ring or third finger was amputated at the proximal end of the terminal phalanx, and the right middle or second finger was left stiff in the first joint and crooked from the first joint to the tip, and that there was permanent injury to the nail. Both fingers also show a drawing by the flexor tendons. Counsel for claimant contends because of this and the fact that three cysts have formed on the ligaments in the palm of the right hand, claimant should be awarded compensation for the permanent and complete loss of the use of both fingers, or, in the alternative, an award for the partial loss of use of the right hand. Dr. Lloyd testified that, in his opinion, there would be 60 to 75 per cent loss of function of the two fingers in question. Sub-paragraphs 3 and 4 of paragraph (e) of Sec. 8 of the Workmen’s Compensation Act state — For the loss of a finger or the permanent and complete loss of its use * * * Sub-paragraph 6 reads “The loss of the first or distal phalanx of the thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb or finger.”. Commissioner Jenkins, who heard the testimony and personally viewed the injured fingers, recommended an award based upon 50 per cent loss of both the second and third fingers. From the evidence, and the plain wording of the applicable provisions of the Act, the Court concurs in his finding.

Claimant was absent only three days from his employment, so he is not entitled to any compensation for temporary incapacity; accordingly, the sum of $16.45 paid to bim for unproductive time must be deducted from the award. He had. no children under 16 years of age. His earnings for the year preceding his injury totaled $2,040.00. The compensation rate would, therefore, be $15.00 per week, which must be increased 20% .or to $18.00 per week, the accident having occurred after July 1, 1945. He is, therefore,' entitled to an award under Sec. 8 (e) 3 for 17% weeks at $18.00 per week or $315.00 based on 50% loss of use of his second finger, and to an award under Sec. (e) 4 for 12% weeks at $18.00 per week or $225.00 based on 50% loss of use of his third finger, or a total award of $540.00, from which must be deducted the sum of $16.45 paid claimant for unproductive time.

An award is therefore made to claimant, Forrest G. Lamb, in the sum of $523.55, all of which has accrued and is payable forthwith.

Helen Bell, Court Reporter, charged $13.50 for taking and transcribing the testimony. We find the amount charged is fair, reasonable and customary, and should be allowed.

An award is therefore made to Helen Bell, Box 188, Charleston, Illinois, in the sum of $13.50.

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.”


text:
    (No. 4048
    Grover C. Boston, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Tolliver and Bayler, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On August 18, 1947, claimant, Grover C. Boston, an employee of the respondent in the Department of Public Works and Buildings, Division of Highways, while making adjustments to a mixer of bituminous materials at the Division’s storage yard near the village of Flora, Illinois, caught the fingers of his left hand between the mixer blades and the inside of the metal mixer drum. . Claimant’s left middle, ring, and little fingers were severely lacerated and mangled.

Claimant was immediately taken to the office of Dr. Howard Tillman and Dr. H. D. Fehrenbacher, at Flora, where he received first aid. He was then taken to the 01-ney Sanitarium, where Dr. Frank Weber amputated the left ring finger and gave surgical áttention to the other fingers. Claimant returned to work on August 23, 1947, but continued under the care of Dr. Weber, who reported to the Division on November 2nd that claimant’s permanent disability was the loss of his third finger and the complete loss of use of his fourth or little finger.

At the time of the accident, the 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. The claimant had no children under sixteen years of age dependent upon Mm for support at the time of Ms injury.

Claimant has sustained the loss of the third finger of Ms left hand and the permanent and complete loss of use of the fourth finger of his left hand. For the loss of a tMrd finger claimant is entitled to fifty per cent of Ms average weekly wage for twenty-five weeks, and for the permanent and complete loss of use of his fourth finger, claimant is entitled to fifty per cent of Ms average weekly wage for twenty weeks. Claimant’s annual earnings in the year preceding Ms injury were $1,823.71. His average weekly wage was $35.07,. one-half of wMch is $17.54. Claimant’s compensation rate is thus the maximum of $15.00 per week. The injury having occurred subsequent to July 1, 1947 this must be increased 30% or $4.50, making a compensation rate of $19.50 per week.

An award is therefore entered in favor of the claimant, Grover C. Boston, in the total sum of $877.50 to be paid as follows:

$682.50, accrued, is payable forthwith;
$195.00, payable in weekly installments of $19.50 per week beginning April 20, 1948 for a period of 10 weeks.

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.”


text:
    (No. 4049
    Robert B. Zimmerman, in his individual capacity and as next friend and natural guardian Robert B. Zimmerman, JR., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Charles M. Kenney, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

On November 21, 1947, Robert B. Zimmerman, in his individual capacity and as next friend and natural guardian of Robert B. Zimmerman, Jr., filed Ms complaint for compensation under the Workmen’s Compensation Act because of the death of Mary Faye Zimmerman, the wife of claimant and the mother of Robert B. Zimmerman, Jr.

The decedent, Mary Faye Zimmerman, was employed by respondent on June 23, 1947 in the Department of Public Welfare, CMld Welfare Division. On October 20, 1947, while returning by automobile from an assignment in Taylorville and Pana to Springfield, her automobile accidentally collided with another automobile at approximately ten miles south of Springfield on U. S. Route 66. She was badly injured and immediately taken by ambulance to St. John’s Hospital, Springfield, Illinois, where, as a result of her injuries, she died on October 22, 1947.

At the time of the accident the 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. We find that the accident arose out of and in the course of the employment.

There remains, however, the question to be determined as to whether Robert B. Zimmerman, Jr., the son, was partially dependent upon the earnings of his mother, Mary Faye Zimmerman, at the time of the latter’s fatal injury, within the contemplation of paragraph (c) of Sec. 7 of the Workmen’s Compensation Act. This paragraph provides:1 '

“If no amount is payable under paragraph (a) or-(b) of this Sec- - tion, and the employee leaves any parent or parents, child or children, who, at the time of the accident, were partially dependent upon the earnings of the employee, then such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less in any event than one thousand dollars, and not more in any event than three thousand seven hundred fifty dollars.”

Whether there is a dependency under paragraph (c) of the Act is a question of fact to be established by the claimant. Wedron Silica Co. v. Industrial Commission, 312 Ill. 118; Peterson v. Industrial Commission, 315 Ill. 199. The pertinent facts on the question of dependency, based on the evidence, are: that the deceased was employed by respondent from June 23, 1947 to the date of her death, earning $180.00 per month; the father, Robert B. Zimmerman’s annual earnings, commencing in September 1947, were $5,800.00; the son earned $502.00 the preceding year, most of it earned as a lifeguard during the summer months; that the' son, at the time of his mother’s death, was attending Junior College in Springfield; his tuition and expenses at school were paid by his parents; he lived in the home of his parents, and the cost of his food, lodging and clothing were paid for by his parents. The father testified that the home was owned jointly by deceased wife and himself, and that their earnings were deposited in a joint bank account, against which they would both draw checks for family expenses. He further testified he was unable to figure what expenses were paid out of his wife’s earnings and what were paid out of his earnings, as they were all lumped together and came out of common funds.

The law applicable to the question of dependency is well summarized in the case of Air Castle, Inc., vs. Industrial Commission, 394 Ill. 62, where our Supreme Court said, on page 66:

“Principles applicable to the factual situation presented are firmly established. Dependency, as| the term is employed in the Workmen’s Compensation Act, implies a present existing relation between two persons, where ¡one is sustained by the other, or looks to or relies on the aid of the other for support or for reasonable necessities consistent with the dependent’s position in life. (Weil-Kalter Mfg. Co. v. Industrial Com., 376 Ill. 48; France Stone Co. v. Industrial Com., 369 Ill. 238; Bauer & Black v. Industrial Com., 322 Ill. 165.) The decisive test, it is settled, is whether the contributions'were relied upon by the applicant for his means of living, judging by his position in life, >and> whether he was to a substantial degree supported by the employee at the •time of the latter’s death. (Weil-Kalter Mfg. Co. v. Industrial Com., 376 Ill. 48.) The statute awards compensation where there is actual dependency at the time of the) injury although such dependency might after-wards ceaée or even, propably would cease in the future. (Wasson Coal Co. v. Industrial Com., 312 Ill. 241.) Furthermore, the Workmen’s Compensation Act receives a practical and liberal construction, particularly, in determining questions of dependency. (Waechter v. Industrial Com., 367 Ill. 256.) This being so, courts should not interfere with the finding of the Industrial Commission on fact questions relative to the exist ence and extent of dependency, if there he evidence to sustain the finding. France Stone Co. v. Industrial Com., 369 Ill. 238; General Construction Co. v. Industrial Com., 314 Ill. 58; Novak, v. Industrial Com., 339 Ill. 292.
Plaintiffs in error have never contended that they were entirely dependent upon their son’s earnings, their contention being, instead, that they were partially dependent, at the time of William LaTour’s death, upon, his contributions to them. A child contributes to the support of his parents, within, the purview of the Workmen’s Compensation Act,, ichen he contributes a substantial sum to the support of the family, although this sum is less than the actual cost of his support and maintenance where the child is a minor or is in a position to demand legal support, as here, from his parents. (Chicago, Wilmington & Franklin Coal Co. v. Industrial Com., 303 Ill. 540.) As pertinently stated in General Construction Co. v. Industrial Com., 314 Ill. 58, ‘The parents’ income, their mode of living and} the application of the boy’s earnings, tat least partially, to- the maintenance of the home were of such a character as to• justify an award on the ground of partial dependency. Partial dependency may exist even though the claimant could have subsisted without the deóedent’s contributions. The test is whether the contributions were relied on by the dependent for his means of living as determined by his position in life.’ Peterson v. Industrial Com., 331 Ill. 254, is to the same effect.”

Applying the principle of law above quoted to the facts present in the record before us we find that the son, Robert B. Zimmerman, Jr., was partially dependent on his mother, Mary Faye Zimmerman, for support at the time of her death. However, we are unable to determine with any degree of accuracy the percentage of such dependency. As the burden of proving this is upon the claimant, we must necessarily restrict any award to the minimum amount allowed under Section 7 (c), or One Thousand Dollars, increased by thirty (30) per cent under Section 7 (1) to Thirteen Hundred Dollars.

The record also shows that claimant, Robert B. Zimmerman, the father, paid $119.50 to St. John’s Hospital, $90.00 to the Springfield Clinic for medical services, and $10.00 to Kirlin & Egan for ambulance service, a total of $219.50, all necessarily incurred as a result of the injuries sustained by decedent from the accident in question. The evidence also shows that Mrs. Edna Zimmerman, Supervisor in Charge of the Division of Child TV elfare, where the decedent was employed, visited the hospital within twenty-four hours after the accident and assured claimant that respondent would pay the hospital and doctor bills; and we find that claimant is entitled to be reimbursed for the amount expended of $219.50.

Respondent paid decedent a salary of $180.00 per month, or on the basis of $2,160.00 per year, which was the annual earnings paid persons employed in the same class. Under Section 10 (c), the compensation rate would be $15.00 per week, which must be increased thirty (30) per cent or to $19.50, the accident having occurred subsequent to July 1,1947.

An' award is therefore made to Robert B. Zimmerman in the sum of $219.50 for hospital and medical bills, which is payable forthwith.

An award is also made to Robert B. Zimmerman, for the use and benefit of his son, Robert B. Zimmerman, Jr., in the sum of $1,300.00 payable as follows:

$507.00', which has accrued, is payable forthwith; and $793.00, shall be payable in weekly installments of $19.50 commencing April 28, 1948 and continuing for 40 weeks, with a final payment of $13.00.

Hugo Antonacci, Court Reporter, charged $30.00 for taking and transcribing the testimony. We find the amount charged is fair, reasonable and customary, and should be allowed.

An award is therefore made to Hugo Antonacci, 502 Illinois National Bank Building, Springfield, Illinois, in the sum of $30,00.

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


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    (No. 4052
    Jeannette Fesser, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Dan McGlynn, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent,
   Eckert, C. J.

On August 6, 1947, the claimant, Jeannette Fesser, an employee of the respondent in the Department of Public Welfare at the Alton State Hospital, while working as a laboratory technician, sustained a fracture of her right wrist when a dry sterilizer exploded. At the time of the injury 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.

Claimant seeks an award for twenty-five weeks temporary total disability, for the permanent loss of use of her right hand, and for medical services, amounting to $75.00. Since claimant was temporarily totally disabled only from August 6,1947 to October 1,1947, and since her wages for unproductive time during August and September 1947 equal the compensation to which she would otherwise be entitled, no award can be made for temporary total disability. Likewise no award can be made for the $75.00 medical bill of Dr. John Patrick Murphy, since claimant elected to secure his services at her own expense.

From the testimony of Dr. Murphy, who examined claimant on October 20, 1947, and from the report of Commissioner Jenkins, who made a personal examination of claimant’s right hand and wrist, the court finds that claimant has sustained a sixty per cent loss of use of her right hand. She is, therefore, entitled to 50% of her average weekly wage for 102 weeks. Since claimant’s annual salary was $1,680.00, and since claimant had two children under sixteen years of age dependent upon her for support at the time of the accident, her compensation rate is $16.00 per week. The injury having occurred subsequent to July 1, 1947 this must be increased 30% or $4.80, making a compensation rate of $20.80 per week.

An award is therefore entered in favor of the claimant, Jeannette Fesser, in the amount of $2,121.60, to be paid to her as follows:

$ 603.20, accrued, is payable forthwith;
$1,518.40, is payable in weekly installments of $20.80 per week beginning April 21, 1948, for a period of 73 weeks.

This award is subject to the approval of the Grover-nor as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees.”

Henry P. Keefe was employed to take and transcribe the evidence at the hearing before Commissioner Jenkins. Charges in the amount of $15.65 were incurred for these services, which charges are fair, reasonable, and customary.

An award is therefore made in favor of Henry P. Keefe in the amount of $15.65, payable forthwith.


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    (No. 4053
    Alden Messersmith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Harry C. Heyl, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On May 13, 1947, the claimant, Alden Messersmith, employed by the respondent as a laborer in the Department of Public Works and Buildings, Division of Highways, while flagging traffic on S.B.I. Rt. 88, Peoria County, Illinois, was struck by an endloader and knocked to the pavement. One of the wheels of the endloader ran over his left foot and onto his left chest and shoulder before the endloader was stopped. Claimant was immediately taken by ambulance to St.. Francis Hospital in Peoria and placed under the care of Dr. Hugh Cooper.

The following day, Dr. Cooper reported that claimant had sustained multiple fractures in his left foot and ankle; contusion of his chest and left shoulder; and subconjunctival hemorrhage due to the crushing of the chest. On June 19th Dr. Cooper further reported that the injuries of the shoulder and chest were relatively simple and had healed without disability; that claimant had multiple fractures in his left foot, with a dislocation of the cuboid bone; that on May 19th a closed reduction of the tarsal fractures was done, traction pins were put through all the toes, and elastic-traction was applied with the foot in a corrective cast; that pins were also placed through the lower end of the tibia and the oscalcis to gain fixed traction.

Claimant left the hospital on May 28th, 1947, but returned on June 10th for removal of the elastic-traction. He returned home immediately. On August 26, 1947 claimant again reported to Dr. Cooper who found the fracture in the fibula then completely healed in good alignment, the fractures of the metatarsal bones healed in good alignment, and considerable comminution of the fragments at the calcan-ocuboid joint. He stated that claimant was not yet able to return to work.

On November 5, 1947 Dr. Cooper submitted his final report as follows:

“Mr. Alden Messersmith was brought to me at the St. Francis Hospital on May 13, 1947 with severe fractures and contusions about the body. The shoulder and chest lesions have cleared up without any disability. The fracture of the left fibula has healed solidly and in satisfactory alignment. The left foot was the site of the chief damage. It had fractures of the distal ends of the shafts of the second and third metatarsals, a fracture of the oscalcis, a dislocation of the cuboid in its relation to the scaphoid and in the relation of the cuboid to the cuneiform bone. The mid-tarsal region is somewhat disorganized so that it is rather difficult to give an accurate statement of the actual displacements.
“A fairly satisfactory reduction of the fractures and dislocations were carried out, and the man has a fairly good walking foot. There is, however, a marked loss of pronation and supination of the subastragaloid joint. Healing of the fractures and dislocations has left considerable thickness and rigidity through the tarsal region of the foot. The man is able to do fairly active work, as of my last examination on October 25th, and should get along fairly well. I believe the combination of these fractures has given him approximately 50 per cent permanent loss of function on this foot. No further treatment will be required.”

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.

Claimant was temporarily totally disabled as a result of the injury from May 13, 1947 to October 31, 1947. Compensation, however, at the rate of $13.85 per week, and in the aggregate amount of $338.36 was paid by respondent to claimant, so that claimant has been fully compensated for his temporary total disability. Medical and hospital expenses, in the amount of $339.60, have also been fully paid by the respondent.

Claimant, however, has sustained a fifty per cent loss of use of his left foot. At the time of the injury he had been employed by the respondent for less than a month, at a wage rate of $6.00 per day. He had no minor children dependent, upon him for support. Employees engaged in a similar capacity worked less than 200 days per year. Claimant’s compensation rate, based on annual earnings of $1,200.00 is, therefore, $13.85 per week. For a fifty per cent permanent loss of use of his left foot he is entitled to $13.85 a week for a period of 67% weeks, or the total sum of $934.88.

The record discloses that Mary I. Reynolds has submitted a statement of $26.40 for taking and transcribing the testimony before Commissioner Jenkins. This charge is fair and reasonable.

An award is therefore made in favor of the claimant, Alden Messer smith, in the amount of $934.88 to be paid to him as follows:

.$346.25, accrued, is payable forthwith;
$588.63, is payable in weekly installments of $13.85 per week, beginning April 23, 1948 for a period of 42 weeks with an additional final payment of $6.93.

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.”

An award is also entered in favor of Mary I. Reynolds in the amount of $26.40 for taking and transcribing the testimony before Commissioner Jenkins, payable forthwith.


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    (No. 4061
    Lawrence H. Newman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1948.

    Edward C. Mack and Angell and Garretson, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

The original complaint in this case was filed on January 12,19.48; thereafter an amended complaint was filed herein on April 7, 1948.

In the amended complaint; claimant alleges that he has been damaged in a sum in excess of $2,500.00 due to the negligence of the respondent, through its agents, servants, or employees. The alleged damages are founded upon personal injuries and property damages sustained by the claimant, Lawrence H. Newman, in an automobile accident on State Bond Issue Route No. 10 near Hamilton, Illinois. The accident is alleged to have occurred on January 31, 1943 at about 2:30 A. M. at which time claimant alleges he was driving his automobile in an easterly direction about one mile east of Hamilton, Illinois, on said Route 10. That said highway was in a state of construction, the shoulders not having been filled in left a drop of 14% inches from the edge of the slab, into which the right wheels of his automobile fell causing it to turn over.

Claimant charges that the failure to place warning signs or markers along said drop-off at the, edge of said highway constitutes negligence on the part of the respondent. The amended complaint further alleges that at the time and place of said accident the claimant was in the exercise of due care and caution for his own safety.

This claim occurred January 31, 1943 while the Court of Claims Act of 1917 was in full force and effect and it must be decided on that statute.

The case of Turner et al. vs. State, 12 C.C.R. 265, involved a case somewhat parallel upon the facts of the case at bar.

About 7 :30 P. M. of October 5, 1940 on State Route 39, between Mahomet and Champaign, Illinois, a collision occurred between cars driven by claimant Turner and one McCleary. A six inch depression in the concrete pavement, which had existed for more than three weeks prior to the accident and of which the State had notice, caused the Turner car to swerve to the right and then to the left across the black line in the center of the highway. It crashed into the oncoming McCleary car. There was no sign, no barricade, no light to warn motorists of this defect in the pavement.

A claim was filed based on the negligence of the agents and servants of the respondent seeking awards amounting to $23,000.00.

In denying an award this Court held that the State exercises a governmental function in the construction and maintenance of public highways and it is not liable for damages caused by either a defect in the construction, or failure to maintain same in a safe condition for travel.

Following the Court of Claims Act as it existed until repealed in July 1945, we held that awards are limited to cases in which claimant would be entitled to redress against the State either at law or in equity if the State were suable. The Court quoted Crabtree vs. State, 7 C.C.R., 207, and held that the doctrine of respondeat superior had no application to the State in the exercise of its governmental functions. Kelly vs. State, 9 C.C.R., 339.

All claims for damages based on the alleged negligence of State employees prior to July 1, 1945 are controlled by the Turner case. Prior to the enactment of the present Court of Claims Act, claimants could not recover an award based on the negligent act of the agents or servants of the State.

The respondent, through its Attorney General, files a motion to strike and dismiss said complaint's for the reason that any possible cause of action upon the facts alleged is barred by the statute of limitations contained in Section 22 of the Court of Claims Act (1945).

In view of the position we take regarding, the laws applicable to the claim, the motion of the Attorney General need not be considered.

Award denied.


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    (No. 4057
    Marine Transit Company, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1948.

    Seago, Pipin, Bradley and Vetter, for Claimant.
    George P. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On October 12, 1947 the claimant, Marine Transit Company, a corporation qualified and doings business in Illinois, was in the exclusive possession as charterer of the diesel towboat “A. L. Nash”, which it operated in - its business as a common carrier barge line on the Illinois River and Waterway. Under the terms of its charter agreement, the claimant was responsible for the maintenance and repair of the boat.

About 11:45 that morning, the1 towboat, with a barge, was proceeding upstream in a northerly direction. As it approached the Ninth Street Bridge at Lockport, Illinois, across the Illinois Waterway, the bridge was open. Before the towboat could complete its passage through the opening, however, the bridge swung backward toward its closed position, striking and damaging the towboat. The bridge was maintained, operated, owned, and controlled by the respondent. The following is a statement of the accident made by Arthur GK Stander, Bridge Engineer of the Department of Public Works and Buildings :

“On October 12, 1947, at 11:40 A. M. two private cruisers and the towboat A. L. Nash with one barge of gravel, traveling upstream, signaled for an opening of the Ninth Street Bridge in Lockport. The bridge was swung upstream, that is, the east end of the bridge traveled north and came to a stop when it was parallel to the stream. The bridge tender completed the operation of opening the bridge. A submarine was docked about 1,500 feet north of the bridge on the east bank of the channel adjacent to what is known as the Butterfly Dam.
“The navigable channel at the Ninth Street Bridge is to the east of the center pier of the bridge, and due to the fact that the submarine was occupying the channel to the east of the dam it was necessary for a ship traveling upstream to cut across the channel from the east side to the west side to negotiate the Butterfly Dam. When the towboat A. L. Nash with barge of gravel was apparently clear of the bridge the bridge tender began to close the bridge, but as he had misjudged the location of the towboat, the bridge struck the after port quarters of the towboat.”

On the hearing before Commissioner Blumenthal, Ben Suva, the bridge tender on duty when the accident occurred, testified that two cruisers came upstream preceding the “A. L. Nash”; that he opened the bridge to allow them to pass, and thinking the towboat would be clear, started to close the bridge; that the towboat, however, swung to the west, and foreseeing the risk of a collision, he went to the control room to shut off the power; that the wind blew the power house door shut, thereby delaying him, with the result that the bridge crashed against the boat.

On cross-examination, Suva stated that he started to close the bridge before the towboat was clear. He admitted that there was no fault on the part of the “ A. L. Nash”. He stated that when the bridge is swung upstream only a part of a passing tow can be seen from inside the power control house, and to get a clear view, the bridge tender must go about ten feet outside on the roadway of the bridge on the opposite side of the control room. He further testified -that his attention was diverted to the highway by the tooting of horns of automobiles waiting to cross the bridge.

The court finds that the collision of the bridge structure with claimant’s towboat, and the damage thereto, was caused by the negligence of the bridge tender in charge of the bridge. He knew that the control mechanism was so housed that it might be necessary to step out on to the bridge deck to have an unobstructed view of the entire vessel passing through the open draw. He also knew, or in the exercise of ordinary care should have known, that the presence of the surfaced submarine on the east bank about 1,500 feet upstream of the bridge would necessitate a vessel travelling upstream to sheer towards the west across the channel and take such a course the towboat actually took. He should have foreseen the consequences which followed and was negligent in attempting to close the bridge before the towboat had a reasonable opportunity to pass beyond and safely clear the arc of the closing bridge structure.

Such acts of bridge tenders in operating draw bridges constitute negligence. Lehigh Valley Trans. Co. vs. Chicago, 237 Ill. 581. The fact that the bridge tender was harassed by the persistent clamor of autoniobile horns sounded by impatient and irritable motorists delayed for a few minutes on the highway constitutes no excuse in endangering a vessel by imprudently hastening to close the bridge. The right of a vessel properly navigating a waterway to proceed safely on its course is paramount to that of motorists on the land highway.

As a result of this negligence the deck house of the towboat, “A. L. Nash” was badly bent and crumpled, steel plating was buckled, stanchions, deck rail, scuppers, pipes and interior sheathing and stove canopy were broken, two steel cables were broken and required renewal, and other incidental damage occurred. To repair and rehabilitate the towboat the claimant paid the following charges: To Calumet Shipyard & Drydock Company for labor and materials $1,905.67, to Upson-Walton Co. for two steel cables, $91.41, to Walker & Noonan, marine surveyors, for survey and preparation of reports, $81.00. Claimant also has established as a reasonable charge for loss of use of the towboat pending repairs" the sum of $700.00, making total damages sustained by the claimant in the amount of $2,778.08.

An award is therefore made to claimant, The Marine Transit Company, in the sum of $2,500.00, the maximum which this court can allow in such cases.


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    (No. 4062
    Minnie Ayers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1948.

    Frank M. Ozinga, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

- This complaint was filed on January 16, 1948 by Minnie Ayers, sister of Walter F. Schultz, deceased, for an award under the Workmen’s Compensation Act.

The record consists of the complaint, departmental report, transcript of evidence, waiver of claimant’s brief, waiver of respondent’s brief, commissioner’s report and ■ reporter’s bill.

It was stipulated between claimant and respondent by their respective attorneys, upon the hearing on April 2, 1948 before the Commissioner, that the Departmental Report of the Division of Highways, Department of Public Works and Buildings, filed herein on February 11, 1948 would constitute the record in this cause as to the fact's set forth therein.

It appears from the Departmental Report that Walter F. Schultz on November 12, 1947 was 52 years of age and unmarried. -The deceased was regularly employed by the Division of Highways from May 22, 1942-to the date of his death. On the latter date he was classified as foreman, at a salary of $220.00 a month and for the year preceding his death his earnings totaled $2,856.00.

Early on the afternoon of November 12, 1947 the deceased left the Division Highway garage in Oak Forest, Illinois, in a State owned automobile for the purpose-of inspecting the work of various maintenance groups. While driving south on Crawford Avenue across the intersection of 167th Street his automobile collided with the automobile of one Thomas Kalina traveling west on 167th Street. The decedent was thrown from the automobile by the impact and sustained a fracture of the skull and other serious .injuries. He was taken to the Oak Forest Infirmary where he died a few hours later.

No jurisdictional question is presented for determination, the parties were operating under the Workmen’s Compensation Act and the injuries resulting in the death arose out of and in the course of decedent’s employment.

The claimant, Minnie Ayers, sister of the deceased, testified on her own behalf that she had resided with her brother, Walter Schultz, at his home for about seven years preceding his death. He paid for all her clothing, food, board and keep. She had been in ill health during this entire period and had no earning capacity. At present she is an invalid. She had been a widow for twenty-four years. No one other than her brother had contributed to her support or livelihood during five years preceding her brother’s death; she had no independent means or income of her own; and during this period of seven years and up to the time of his death she was totally dependent upon the deceased. This evidence was uncontradicted.

It is provided by Section 7 (d) of the Workmen’s. Compensation Act that where no amount is payable under paragraphs (a), (b), or (c) to a surviving spouse, child or children or parent and the employee leaves collateral heir dependent at the time of the accident" to the employee upon his earnings to the extent of fifty per centum or more of total dependency then the amount, of compensation shall be such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not more than $3,750.

It is also provided in Section 7 (1) of the Act that where death occurs to an employee as a result of an accidental injury sustained to an employee on or after July 1, 1947, compensation as provided in paragraphs (a), (b), (c), (d) and (k) of this section shall be computed according to the provisions of this section exclusive of this paragraph, and after so computed shall be increased thirty per centum (30%).

From a careful consideration of this record we find that claimant, Minnie Ayers, at the time of the accident was a collateral heir of Walter F. Schultz, deceased, and was wholly dependent upon him for support and is entitled to an award as provided by Section 7 (d) and (1) of the Workmen’s Compensation Act. We further find from the evidence that deceased at the time of the accident which resulted in his death, earned the sum of $2,856.00 for the year preceding the accident; that his. average weekly wage amounted to the sum of $50.76, making his compensation rate amount to the sum of $19.50.

An award is hereby entered in favor of Minnie Ayers in the sum of $4,875.00. Of this amount the sum of $507.00 has accrued as of May 12, 1948. The balance of said award is payable to her at $19.50 each week for 224 weeks commencing May 19, 1948.

Future payments of this award being subject to the terms of the Workmen’s -Compensation Act, including right of subrogation to which respondent might be entitled under Section 29 of the Act, jurisdiction is hereby retained for the purpose of making such future orders-as may be necessary in this cause.

The record discloses that A. M. Bothbart and associates court reporting services was employed to report and transcribe the evidence in support of this claim, making a charge therefor in the sum of $16.80. We-find these charges to be fair, reasonable and customary in the community where the services were rendered.

An award is therefore entered in the sum of $16.80 for the use of A. M. Eothbart and associates court reporting service.

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


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    (No. 4066
    Harry J. Domianus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1948.

    Edward R. Farrar, for Claimant,
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Harry J. Domianus, filed his complaint on January 22, 1948 for compensation under the provisions of the Workmen’s Compensation Act of this State for injuries sustained between May 25, 1946 and June 5, 1946 while in the course of his employment with the Division of Highways of the State of Illinois.

.The complaint shows on its face that no compensation was paid to claimant and that respondent did not furnish any medical, surgical and hospital treatment. The complaint also shows on its face that approximately one year and eight months elapsed between the date of the injury and the filing of the complaint.

The Attorney General filed a motion to dismiss for the reason that the cause of action is barred by the statutory limitation contained in Sec. 24 of the Workmen’s Compensation Act. This court has repeatedly held that - it has no jurisdiction to hear a claim under the provisions of the Workmen’s Compensation Act where the claimant fails to file his claim within the time set by Sec. 24 of said Act. Stuenkel v. State, 16 C.C.R. 34; Stallard v. State, 16 C.C.R. 78; Benner v. State, 16 C.C.R. 104; Britt v. State, 16 C.C.R. 114; Rathje v. State, 16 C.C.R. 177; Clifton v. State, 16 C.C.R. 298.

For the reasons stated, the motion of the Attorney General to dismiss the complaint is hereby allowed.

Complaint dismissed.


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    (No. 4060
    Frank H. Breed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1948.

    John R. Kinley, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Frank Breed, “filed his claim January 9, 1948 for. compensation for complete and permanent disability, including pension, under the provisions of the Workmen’s Compensation Act.

Claimant was employed by respondent in the Department of Public Works and Buildings, Division of Highways, as a common laborer. On September 6, 1946, while so employed, he was one of a group of men assigned to pavement center striping operations on S. B. I. Route 2 in Winnebago County. Following the luncheon period that day the group and its equipment, a Walters cab-over-engine truck and a center. striping machine, were driven to the southern limits of Rockton where the afternoon’s work began. Claimant was riding in the cab of the truck. The truck was proceeding down the highway a short distance ahead of the striping machine to serve as a warning to traffic and protection to the striping machine. At approximately 1 P.M. the truck reached its position and reduced speed to approximately ten miles an hour. Claimant jumped from the moving truck to the pavement, and in doing so he stumbled and fell, suffering fractures of the right hip joint. He was then removed to his home in Durand, and the group foreman called Dr. C. A. Sattler of Drs. Robert McCulley and C. A. Sattler, Associates, Pecatonica. They then removed claimant by ambulance to Deaconess Hospital at Free-port. Claimant remained in the Deaconess Hospital until December 8, 1946, and was under observation and treatment until February 25, 1948. On March 2, 1948, Dr. McCulley submitted his final report with respect to claimant ’s condition, to the Division of Highways, as follows:

“Intertrochanteric fracture of the right femur. Treatment — A double Kirschner wire was placed in the lower end of the right femur. Patient was placed on Albee table and a double spica cast applied about the hip girdle and extending to both knees. The right femur was held in a position of external rotation and abduction by this procedure. This was carried out under general anesthesia. X-rays — Intertrochanteric of the right femur. Remarks — Walking caliper applied to right leg on February 18, 1947. Date patient was discharged — Feb. 25, 1948. Permanent disability — Permanently unable to return to manual labor.”

We find that at the time of the accident the employer and employee 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. We also find that the accident arose out of and in the course of claimant’s employment.

Claimant had no children under sixteen years of age dependent on him for support, and his earnings from the Division of Highways in the year preceding his injuries totaled $841.50. His wage rate was 75c per hour and he earned $6.00 per day, based on an eight-hour day. Employees engaged in a capacity similar to that of claimant ordinarily worked less than 200 days a year, so that his compensation rate would be computed under Section 10, Par. (e) of the Workmen’s Compensation Act. This would be $11.54 per week, increased by 20% or to $13.85 per week, the accident having occurred after July 1, 1945.

Claimant was paid compensation for total temporary disability in the amount of $1,151.99, based on 64 weeks at $18.00 per week, for the period from September 7, 1946 to and including November 29, 1947. He should have been paid on the basis of $13.85 per week, or a total of $886.40, so that he has been overpaid the amount of $265.59 for total temporary disability. Respondent also paid the sum of $953.31 for medical, hospital and ambulance service.

With respect to the permanent extent of claimant’s injuries, Dr. McCulley testified on May 1, 1948, that he examined claimant on April 30, 1948, and that such examination disclosed the following facts with respect to claimant’s condition:

“He had half an inch of. shortening of the right leg, which was partially compensated for by having about a quarter inch lift put on the heel and sole of the right shoe. When he is lying on his back there is very marked limitation of rotation of his right hip joint. The rota-ti on is limited to about ten degrees, whereas in the left leg he had seventy-five degrees of rotation. When he is standing this same rotation is limited to about forty-five degrees on the right, whereas he still had a good seventy-five degrees of rotation on the left. There is a little limitation of motion on what we call the straight leg raising test. In other words, flat on his back, his right leg comes up to about seventy degrees and his left leg to eighty degrees. With him on his abdomen, he is able to extend his left leg the normal amount of around twenty degrees, but the right leg will not come back beyond the one hundred eighty degree angle. In other words, it is just right straight down. At all times the right knee is held in mild flexion, and can only be forcibly extended, and it immediately assumes its partially flexed position. I estimated the angle there about one hundred seventy degrees as compared with the normal of one hundred eighty. His right knee flexes to an angle of seventy-five degrees with the thigh, whereas the normal, or left side, flexes completely to an angle of only thirty degrees. There is no swelling of the leg and no circulatory disturbance. There is very little, if any, muscle atrophy.”

He further testified that, in his opinion, this condition was permanent. Upon cross examination, when asked the degree of permanency, he considered it approximately sixty to seventy-five per cent loss of use of the right leg. None of his testimony was controverted and, from the record, we are of the opinion that claimant is entitled to an award based on sixty per cent permanent and complete loss of the use of his right leg, which would be computed on the basis of one hundred fourteen weeks at $13.85 a week, or a total of $1,578.90, from which must be deducted the overpayment of $265.59 for total temporary incapacity, leaving him entitled to a net award of $1,313.31.

An award is therefore given to claimant, Frank Breed, in the sum of $1,313.31, to be paid to him as follows:

$387.80 accrued, is payable forthwith;
$925.51 is payable in weekly installments of $13.85 beginning on June 19, 1948, for a period of 66 weeks, with an additional final payment of $11.41.

Alice V. Dickinson, Court Reporter, Court House, Rockford, Illinois, was employed to take and transcribe the evidence in this case and has rendered a bill in the amount of $24.00. The Court finds the amount charged is fair, reasonable and customary, and an award is hereby made to the said Alice V. Dickinson in the sum of $24.00.

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


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    (No. 4065
    Auto Electric Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1948.

    Claimant, Pro Se.

    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

The claimant, Auto Electric Company, of Mattoon, Illinois, is engaged in the sale of automotive supplies. From April 14, 1947 to June 23, 1947 the claimant supplied materials to the respondent at the request of the Division of Highways, Department of Public Works and Buildings. The various items were delivered to the Illinois Highway Garage, at Effingham, Illinois.

From the report of the Division of Highways, which forms a part of the record, it appears that the Division has made purchases continuously during the past several years from the claimant. Previously there had been no difficulty in the scheduling of invoices for payment, but in this instance the original invoices were apparently mislaid by the Division office. The report states that the División believes the materials were furnished by the claimant as alleged in its complaint, and that the prices charged are the usual, customary, and reasonable prices for such materials and are consistent with prices paid claimant by the Division for the same kind of materials, both before and after this claim accrued. The claim is in the amount, of $331.03.

Claimant furnished properly and duly authorized materials to the respondent, for which it has not received payment.- When the charges were incurred there remained a sufficient unexpended balance in the appropriations from which payment could have been made. Claimant submitted its invoices to the respondent within a reasonable time and the non-payment of such invoices is not due to the fault of the claimant. Claimant is therefore entitled to an award. The Texas Company vs. State, 16 C.C.R. 55.

An award is, therefore, entered in favor of the claimant in the amount of $331.03.


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    (No. 4070
    Anton Nowak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1948.

    D. W. Johnston, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent,
   Bergstrom, J.

Claimant, Anton Nowak, filed Ms complaint on February 2, 1948 for compensation under the provisions of the Workmen’s Compensation Act.

The record before us consists of the Complaint, Departmental Beport, Transcript of Evidence, Claimant’s Waiver of Brief and Bespondent’s Waiver of Brief.

The evidence, wMch consists of claimant’s testimony, Departmental Beport and Beport of Dr. George A. Teller, shows that on January 31,. 1947 wMle claimant was dressing after taking a shower at his place of employment, wMch was in the State Power Plant at Springfield, Illinois, he was accidentally shoved wMle sitting on a stool, causing Ms middle toe to Mt the sharp corner of a metal locker-room door, cutting the toe. He worked until February 3, 1947, and on the mormng of February 4th noticed Ms foot was swollen. It was black and there were red streaks going up Ms leg, and he could not stand on his foot. He then called on three doctors in Springfield, and as they were not in, asked the taxi driver to take him to the power plant. When he arrived at the power plant, which was about 8:30 in the morning, he showed Ms foot to Earl Johnson, CMef Engineer of the plant, and told him that he was going home to Hillsboro and try to get into the hospital at that place. When he arrived there, he called Dr. George A. Telfer of Hillsboro to his home, who treated claimant’s foot until about Hay 18, 1947.*

Claimant further testified, on April 15, 1948, at the time of the hearing before the Commissioner, that the condition of Ms foot was such that he was unable to do any hard work, and that about four hours is all he can stand on it after wMch Ms foot starts running across the joints and his ankle swells. He also testified that he is unable to wear new shoes without first cutting them, and that he has not worked since the day of his injury due to the condition of Ms injured foot.

At the time of the accident, the employer and employee 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 claimant’s employment.

Claimant’s earnings for the year immediately preceding the injury were $2,799.84. His compensation rate therefore, is $15.00 per week, wMch must be increased 20% or to $18.00 per week, the accident having occurred after July 1, 1945. Claimant was paid $699.96 by respondent for unproductive time. He was married and had no children under 16 years of age.

Commissioner Jenkins, who heard the evidence in tMs matter, personally viewed the foot at the time of the hearing, April 15, 1948, and made the observation that the left foot was swollen, somewhat discolored; that the tMrd toe, counting the large toe as No. 1, is discolored and has an apparent stiffness, and that under the foot of the toe described there is an apparent thickemng. He recommended an award based on 52 weeks temporary total disability, and a 20% loss of use of the left foot. The record is not very clear with respect to the extent of claimant’s temporary total disability, inasmuch as • the doctor’s report is silent on tMs matter. Claimant testified that he has not worked anywhere since the injury. • He also testified that Ms foot finally healed on July 10, 1947, and the record justifies the conclusion that although he was probably incapable of doing hard work like that of a coal passer or miner, still his period of temporary total disability ceased on or about that date. We concur in the findings of the Commissioner, except that the period of temporary total disability is 23 weeks instead of 52 weeks.

An award is ' therefore made to claimant, Anton Nowak, for temporary total disability in the sum of $414.00 based on 23 weeks at $18.00 per week, and a further sum of $486.00 for 20% total loss of the use of the left foot based on 27 weeks at $18.00 per week, or a total award of $900.00, from which must be deducted $699.96 paid claimant for unproductive time, leaving a balance due him of $200.04, all of which has accrued and is payable forthwith in a lump sum.

From the evidence, we must conclude that claimant elected to secure his own physician. Under Sec. 8, Par. (a) of the Act, this service, under such conditions, necessarily must be at his own expense, and an award for medical expense in the sum of $98.00 is hereby denied.

Hugo Antonacci, Court Reporter, 502 Illinois National Bank Building, Springfield, Illinois, was employed to take and transcribe the evidence in this case, and has rendered a bill in the amount of $27.30. The Court, finds the amount charged is fair, reasonable and customary, and said claim is hereby allowed.

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


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    (No. 4078
    Jeanne Kraft, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1948.

    Roy A. Ptacin, for Claimant.
    George F. Barrett, Attorney General; William Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

On October 11, 1947, the above named claimant, while employed as hydrotherapist at the Chicago State Hospital, sustained an accidental injury. The evidence shows that she was employed at the State institution from 3:00 to 11:00 P.M. on said date and while walking from the Diagnostic Building where she was working at about 11:00 P.M. she stepped into a three foot hole along the curb within the grounds of said institution causing her to sustain a comminuted fracture involving the proximal heads of the metatarsal bones of the left foot. She was assisted by two men who lifted her from the hole in the ground there and was taken to the hospital on the grounds where Dr. Fenyes, of the institution, administered first aid. On the following day she was attended by Dr. Louis Cisman, a surgeon connected with the Chicago State Hospital, who had her foot X-rayed, later her foot was placed in a cast.

Due to the injury to her left foot, claimant was temporarily totally disabled from the date of the accident to December 25, 1947.

It is stipulated by and between the parties, hereto/ that her gross earnings for the year next preceding the injury were $2,216:29; that the accidental injury arose out of and in the course of her employment by respondent on the premises of Chicago State Hospital; that first aid and medical aid were furnished by the respondent. The claimant was paid for the month of October 1947, $210.00; for November 1947, $140.00; and for December 1947, $127.36 for unproductive work. It is further stipulated by and between the parties, hereto, that claimant at the time of the injury was forty years of age and was the mother of two minor children, namely Donald Kraft, age fourteen years, and Paul Kraft, age twelve years'.

Dr. Albert C. Field was called on behalf of the claimant and testified that he examined her on February 24, 1948 and found her left foot was somewhat enlarged by the flattening of both arches; X-rays disclosed a healed fracture of second and third metatarsal with an irregularity in the distal end of the first metatarsal and at the posterior border of the oscalcis. That in his opinion, claimant had a disability of thirty-five per cent of the left foot which condition was permanent.

Dr. Louis Olsman, surgeon of the Chicago State Hospital staff, was called as witness on behalf of the respondent and testified that he examined claimant on the day following her admission to the hospital, October 12, 1947, and thereafter treated her; that X-rays indicated a comminuted simple fracture involving the proximal heads of the metatarsal bones of the left foot. He expressed an opinion that there was a good probability that she would have a certain degree of discomfort and limitation and in view of her obesity and a pre-existing* osteo-arthritis agreed that Dr. Field’s opinion as to loss of use of her left foot was reasonable:

The commissioner who heard the testimony files Ms report and agrees that there is a permanent partial loss of use of claimant’s left foot of tMrty-five per cent.

Claimant testified that she experiences pain across the arch of her left foot since the injury; that it is deformed in that it has a lump across the instep wMch prevents her from wearing certain type of shoes. That when she is on duty for eight hours and after she has been on her feet a couple hours that the foot starts bothering her by experiencing pain and that it aches. She further testified that she is unable to wear an ordinary house slipper on the left foot and that she has a limp when she walks.

On the basis of tMs record we make the following finding: That at the time of the accident, on October 11, 1947, the claimant and respondent were operating under the Workmen’s Compensation Act and that claimant is entitled to benefits arising therein. That the respondent had actual notice of the accident as required by Section 24 of said Act, that all medical, and hospitalization was furmshed by the respondent. That the claimant’s injury arose out of and in the course of her em-o ployment. That at the time of the injury, claimant was forty years of age and was the mother of two dependent, minor cMldren under the age of sixteen years. That her weekly compensation rate is $20.80; that she was temporarily totally disabled from the date of the injury to the 25th. day of December 1947, amounting to 10 5/7 weeks amounting to the sum of $222.85; that she has suffered a thirty-five per cent permanent partial loss of use of her left foot for which she is entitled to 47% weeks at $20.80 a week, amounting to the sum of $982.80, making a total award of $1,205.65.

The record discloses that from the date of the injury to the 26th day of December 1947, the respondent paid to claimant the sum of $477.36 salary for unproductive time during her disability which must be deducted from the above sum, leaving a net award of $728.29 all of which has accrued and is payable forthwith.

An award is therefore hereby entered in favor of claimant Jeanne Kraft in the sum of $728.29, payable in a lump sum forthwith, as provided under Section 8 (e) of the Workmen’s Compensation Act.

A. M. Rothbart, Court Reporting Service of Chicago, was employed to take and transcribe the evidence in this case, and has rendered a bill in the amount of $45.00. The Court finds the amount charged is fair, reasonable and customary.

An award is hereby entered in favor of A. M. Rothbart, Court Reporting Service of Chicago, in the sum of $45.00.

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


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    (No. 4050
    Nelson Potter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1948.

      Motion of Claimant to set aside Opinion denied September 21, 1948.

    Messrs. Fearer and Nye, Attorneys for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

The complaint of Nelson Potter, filed November 28, 1947, .alleges that claimant paid fines totaling $150.00, and court costs totaling $27.60, or a total of $177.60, in three cases wherein complaints were brought by an employee of the State of Illinois, Department of Conservation, for violation of the game laws of the State of Illinois. It is further alleged that appeals were prosecuted to the Circuit Court of Ogle County, bearing the docket numbers 3048, 3049 and 3050, and that in each case, on motion of the defendant, the court found that a cause of action was not stated against the defendant, that the complaint and warrant failed to properly charge the defendant with violation of the game laws of the-State of Illinois, and therefore ordered the fines and costs paid returned to the defendant, Nelson Potter, claimant herein. •

Claimant further alleges that the fine and costs in-each case were forwarded by the justice of the peace to the State Treasurer of the State of Illinois for the Department of Conservation, and have not been returned to him.

This case is now before us on motion to dismiss made by the Attorney General on the ground that the moneys paid by claimant were paid voluntarily and not under any mistake of fact. The complaint does not set up which provisions of the game law the claimant Avas charged with violating, his plea thereon, and the fact shoAving' the perfection of his appeal; nor does it state said fines were paid under a mistake of fact, and why.

Under Sec. 8 of the Game Code (Ch. 61, Par. 142, Illinois Revised Statutes 1947), it was the duty of the justice of the peace to remit the said fines to the Department of Conservation thirty (30) days after their collection, or be subject to severe penalty for his failure to do so; and Sec. 19 of the Game Code (Ch. 61, Par. 153, Illinois Revised Statutes 1947) provides that the said fines shall be deposited Avith the State Treasurer, to be used for the purposes in said statute provided.

When claimant paid his fine to the justice of the peace, it became his duty to immediately dispose of it as by statute provided. However, there is no reason why the claimant should have paid his fine and costs in vieAv of the fact that the record shows that he appealed the decision of the justice of the peace to the Circuit Court of Ogle County. The statute plainly gives him this right of appeal (Ch. 79, Par. 173, Illinois Revised Statutes 1947); and upon his filing of appeal bond it provides that the justice of the peace shall suspend all proceedings in the case (Ch. 79, Par. 116, Illinois Revised Statutes 1947). The filing of an appeal, and approval of the appeal bond, operates as a supersedeas.

Claimant is charged with knowledge of his rights provided by law, and payments made under such circumstances cannot be said to have been made under a mistake of fact. The law does not require a defendant who takes an appeal from a justice of the peace to pay either the costs or the fine imposed by the justice of the peace, but if the said cost or fine is paid, it cannot be recovered upon a subsequent acquittal. McArthur v. Artz, 129 Ill. 352; Anderson v. Shubert, 158 Ill. 75; and where a fee or tax is paid voluntarily, with knowledge of the facts, the same cannot be recovered back, in the absence of a statute authorizing recovery. American Can Co. v. Gill, 364 Ill. 254; Cooper Kanaley & Co. v. Gill, 363 Ill. 418; Warren v. State, 14 C.C.R. 84; Orchard Theatre Corp. v. State, 11 C.C.R. 271; Whiting Paper Co. v. State, 13 C.C.R. 136.

It is apparent that claimant herein was not required to pay either the fine or the costs, and we must conclude that he voluntarily paid the said moneys to the justice of the peace with knowledge of the facts, which the justice forwarded to the Department of Conservation as the statute requires, and which the Department has deposited in the Treasury of the State of Illinois. The claimant had knowledge of his right to appeal, as evidenced by his subsequent action, and he should have had knowledge that he was not obligated to pay the fine or costs while his appeal was pending. To have made such a payment, even though it may have been by inadvertence on Ms part, nevertheless was mistake or error on Ms part, wMch the law under such circumstances, considers as a voluntary payment. The rule is the saíne where such payment is made under a mistake of law.

In the case of Furgeson v. Butter County, 247 S. W. 795, the Missouri court said:

“If plaintiff in the instant case had been imprisoned for failure to pay the excessive fine imposed upon him, he would be entitled to his discharge therefrom under a writ of habeas corpus, but the payment of the excessive fine was made in full knowledge of all the facts and by mutual agreement and without duress. The- payment was made under a mistake of law. The general rule is that recovery cannot be had under such circumstances.”

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

Case dismissed.