author: Me. Chief Justice Hollbkich

text:
    (No. 2853
    William L. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1940.

    Chables E. Lee, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Teevob, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollbkich

delivered the opinion of the court:

Claimant was injured August 12th, 1935, while in the employ of respondent as a laborer at the Griffin Gravel Pit in Moultrie County. He was immediately removed from the scene of the accident to the office of Dr. Stephen Ambrose in Lovington, and from there to St. Mary’s Hospital in Decatur where he was X-rayed, and where he remained for treatment until August 18th when he was returned to his home and remained in bed until September 9th.

The X-rays showed no fracture of the skull, no fracture of the ribs, and no evidence of fracture to the bony part of the chest, but revealed an old arthritic condition in the knee joint, and a floating cartilage that apparently had lodged in the tendon above the knee cap.

At the time Dr. Ambrose first examined claimant, he complained of pain in his head, chest and knee. Apparently the head and chest gave him no further trouble at that time, but he continued to suffer considerable pain from the knee injury. At the suggestion of Dr. Ambrose, claimant was given .a treatment by Dr. Stewart Wood, an orthopedic surgeon of Decatur, and also was given diathermy treatments by Dr. Scaggs of Lovington for about eight weeks.

The knee continued to bother claimant, and at the suggestion of the Department of Highways, claimant was taken to Chicago and placed under the care of Dr. Henry B. Thomas, an orthopedic surgeon, who removed the floating cartilage on May 23d, 1936. Thereafter claimant was given physiotherapy treatments under the direction of Dr. Thomas, and later returned to his home. The date of such return does not appear in the evidence, but apparently at that time claimant was able to do some light work. His condition improved, and from the evidence in the record it appears that so far as the injury to his knee is concerned, claimant had fully recovered from the effects of the injury, and was able to resume his former work on September 1st, 1936.

The record "discloses that claimant had suffered a previous injury to his knee, and had the floating cartilage since 1928, but apparently it did not interfere with the performance of any of his duties. Inasmuch as there was no previous disability, and inasmuch as the accident of August 12th, 1935 aggravated the pre-existing condition, and thereby produced the disability in question, claimant is entitled to recover therefor under the provisions of the Compensation Act. Rockford City Traction Co. vs. Ind. Com., 295 Ill. 358; Ohlson vs. Ind. Com., 357 Ill. 335.

Claimant had been working for respondent for about a week prior to the injury, and his wages were fifty cents (50c) per hour. At the time of the accident he was forty-seven (47) years of age, was married, and had one child under the age of sixteen years. Compensation payments therefore must be computed on the basis of Eleven Dollars ($11.00) per week, in accordance with the provisions of the Compensation Act.

From all of the evidence in the record, there is no question but what the claimant, as the result of the injury to his knee, was temporarily totally disabled, from the date of the accident, to-wit, August 12th, 1935, to September 1st, 1936. The respondent paid all medical and hospital bills and also paid claimant the compensation due him to October 19th, 1935. There remains due to claimant for "temporary total disability as aforesaid, compensation at the rate of $11.00 per week from October 19th, 1935 to September 1st, 1936, to-wit, Four Hundred Ninety-five Dollars ($495.00).

The complaint which was filed on February 29th, 1936, was apparently based upon the injury to claimant’s knee and leg, and no mention is made of a disability resulting from claimant’s coronary condition. At the hearing, and in counsel’s Brief and Argument, the claim is made that in addition to the disability resulting from the injury to his knee, claimant is completely and permanently disabled by reason of a coronary disease resulting from the accident of August 12th, 1935.

In the case of Madison Coal Co. vs. Ind. Com., 320 Ill. 65, the employee in his application made claim for temporary total disability as well as for partial disability, but made no claim for total permanent disability. Upon the hearing before the Industrial Commission, award was made for total permanent disability, and on review it was contended that the application was not sufficient to sustain the award. In that case the Supreme Court said:

“We do not regard it essential to a proper statement of claim for compensation for the applicant to state specifically the amount of compensation claimed. It is essential that he state informally the time, place, manner and character of the accident so that the employer will be advised of the nature of the claim and can properly prepare his defense. * * *
Under section 12 of the Act the employee is required to submit himself for medical or surgical examination when requested by the employer. The question for the Commission to determine was the amount of compensation due under the provisions of the Act, and no useful purpose could be served by requiring the employee to determine that question in advance and to state his conclusion in the application for adjustment of claim.”

Claimant therefore is not limited to the disability alleged in his complaint, but is entitled to show any and every disability which he has sustained as the result of the accident in question.

■ It therefore becomes necessary to determine from the evidence in the record whether the claimant is completely and permanently disabled, as contended by him, and if so, whether such disability is the result of the accident of August 12th, 1935.

When the claimant was first examined by Dr. Ambrose on the day of the accident, he complained of pain in his head, chest and knee. From that time until after he returned to work about September 1st, 1936, very little appears in the record as to any complaint relative to claimant’s heart condition.

In the fall of 1936 claimant took up work of different kinds, cutting broom corn, working in soy beans, driving a truck, and engaged in trapping, but the time he commenced or completed any of said work, or the time he was engaged therein, does not appear in the record. During the trapping season in the fall of 1936 claimant went to Dr. Ambrose’s "office, complaining of pain in his chest and arm, and stated that when he walked too long or too fast against a strong wind, he would have to sit down and rest. This was the first time the pain in his chest was severe enough to cause him to seek the services of a physician, and he had never previously said anything to Dr. Ambrose to cause the Doctor to believe that he had any coronary condition.

Dr. Ambrose at that time made a diagnosis of coronary thrombosis and stated that it was his impression that the condition came on spontaneously. He also stated that in his opinion claimant was permanently disabled at that time (October 14th, 1937), and that as a general thing, that type of heart condition does not improve.

Dr. Ambrose was again called as a witness on July 19th, 1938 and testified that he had been attending claimant professionally since testifying in 1937; that the treatments consisted mainly of rest and tablets supposed to ward off angina attacks, of which the patient was complaining; that he also treated claimant for spitting up of blood; that in his opinion the accident of August 12th had nothing to do with claimant’s present heart and lung condition; that in his opinion claimant was not wilfully misrepresenting or malingering but was suffering from what he termed a traumatic neurosis, in which he could not keep himself from feeling ill; and further gave it as his opinion that when a settlement was made, claimant would show considerable improvement in his condition. The Doctor further stated that from any examination he was able to make, he was unable to find anything wrong with claimant’s heart; that there were no objective symptoms, but that claimant described beautifully the subjective symptoms of coronary trouble.

Dr. Scaggs testified that he first discovered a heart condition called angina pectoris in the fall of 1936; that in giving a history of .the case, claimant said that as soon as he started husking corn he got a pain in his heart and had to quit; that every time he took any exercise he would have this pain. Dr. Scaggs stated that in his opinion the claimant’s heart condition is a result of his accident of August 12th, 1935; and that it is doubtful if claimant will ever be able to do manual labor.

Dr. Stanley, a heart specialist, stated that he made an examination of claimant January 5th, 1937, and took his history, examined his heart by the usual methods' of physical examination, and took an electro-cardiograph; that findings z were essentially negative throughout; that he could come to no conclusion from his examination, but from claimant’s history, he was convinced that claimant had angina pectoris, but the electro-cardiograph did not show any such condition; that taking the history into consideration, it was his opinion that claimant’s heart condition could have been a result of the injury of August 12th, 1935; that claimant is totally disabled from doing any type of manual labor; that angina pectoris is much more prevalent in persons having mental worry and great responsibility than in the laboring class; that it is a disease more among business and professional men than laboring men; that hardening of the arteries usually manifests itself in the fifth and sixth decades of life.

Dr. E. S. Moore, for fifteen years Superintendent of Illinois Research Hospital, Emeritus Associate Professor of Medicine, University of Illinois, and heart specialist for thirty-five years, examined claimant at the request of Dr. Thomas to see if claimant had a normal heart or was suffering from angina pectoris. Dr. Moore obtained a personal history, made a physical examination of claimant’s chest and abdomen, and took electro-cardiographs and X-rays. As the result of such examination, Dr. Moore stated that he found claimant’s heart was of normal size, the rate was regular, tones clear, no adventitious sounds, i. e. no sounds other than normal; that claimant had a tender point on the left side at the nipple line; that this tender point is rarely seen in organic heart disease but is frequently present in nervous- neurotic persons without heart disease; that there was no evidence of coronary sclerosis; that patient’s condition was significant; that he was emotionally disturbed, cried freely, hands trembled; that he broke out in perspiration and the water ran down his sides; that he showed great anxiety and expressed fear that his attacks would return; that his heart beat was regular; that there were no objective symptoms of any coronary disease which would account for the pain described by claimant; that the frequency, the type of radiation, the unusually constant long periods of discomfort as stated by claimant, are not the customary characteristic picture of angina of organic origin; that in his opinion claimant did not have angina pectoris, based on any organic lesion; that in a man who was emotionally unstable generally, to be told that he had angina pectoris would make a profound impression and might account for the condition in which claimant was at the time of his examination.

The evidence in the record satisfactorily shows that' at the time of the last taking of testimony, to-wit, July 19th, 1938, the claimant was wholly incapable of performing any manual labor. That, however, is not sufficient to entitle him to an award. He must also show that his condition is the result of the accident of August 12th, 1935. As said in the case of Rittler vs. Ind. Com., 351 Ill. 338-353:

“The claimant has the burden of proving not only that an accident happened but also that the accident was the proximate cause of the injury suffered or the condition of incapacity for which compensation is sought — that is, he must prove the causal connection between the accident and the condition of the incapacity which constitutes his claim for compensation.”

In considering a somewhat similar case, our Supreme Court in the case of American Smelting Co. vs. Ind. Com., 353 Ill. 324, said:

“The Workmen’s Compensation Act was enacted for a beneficient purpose by requiring the employer to bear a part of the burden sustained from occupational diseases contracted or injuries sustained by the employee while in the service of the employer and while in the discharge of his duties as such employee. However, before an employee is entitled to recover an award under the provisions of this Act he must bring himself within the provisions of the statute.”

Also, on page 328:

“The liability cannot rest upon imagination, speculation or conjecture but must be based on facts established by a preponderance of the evidence, neither can "it rest upon a choice between two views equally compatible with the evidence.”

This statement of the law was previously announced in numerous cases. Illinois Bell Telephone Co. vs. Ind. Com., 325 Ill. 102; Byram vs. Ind. Com., 333 Ill. 152; Rittler vs. Ind. Com., 351 Ill. 338.

In determining the question here involved, consideration must be given to the following:

1. Claimant had no trouble in his chest of sufficient importance to cause him to seek the services of a physician, for more than a year after his accident.

2. The first doctor that examined the claimant on account of his heart condition (Dr. Ambrose) diagnosed his condition as “coronary thrombosis”, and was of the opinion that the accident of August 12th, 1935 had nothing to do with such heart condition.

3. The next doctor that examined the claimant on account of heart condition (Dr. Scaggs) diagnosed his condition as “angina pectoris”, and was of the opinion that such condition was the result of the accident in question.

4. The next doctor that examined the claimant on account of his heart condition (Dr. Stanley) stated that he could come to no conclusion from his examination, but from claimant’s history he concluded that claimant had angina pectoris, and gave it as his opinion that such condition could have been the result of the accident.

5. The next doctor that examined the claimant on account of his heart condition (Dr. Moore) found no objective symptoms of any coronary disease which would account for the pain described by claimant, and also stated that “in a man who was emotionally unstable generally, to be told that he had angina pectoris would make a profound impression and might account for the condition in which claimant was at the time of his examination”.

6. None of the medical men who. examined claimant found any objective symptoms of any coronary disease, and the electro-cardiograph indicated nothing abnormal.

7. The testimony of Edward Kirby who was a patient at St. Luke’s Hospital when claimant was there, and who was staying at the Y. M. O. A. Hotel in Chicago at the same time claimant was there. He stated that claimant on one occasion said he got hurt in a gravel pit and if there was any chance at all he felt like he wanted something out of it. Kirby also stated that claimant “had a crutch and a cane when he was sent to the Y. M. C. A. Hotel from the hospital, but he discarded the crutch, shoved it under his bed in his room”; also that on one occasion between June 14th and June 20th, 1936 they walked from the Y. M. C. A. Hotel to the new Outer Drive Bridge, then to 30 North Michigan Avenue, and from there back to the Hotel, then, after dinner, walked from the Hotel to the Illinois Research Hospital and back, a total of ten or eleven miles, at which time claimant requested Kirby not to let the nurses or Dr. Thomas “know but what he used his cane all the time, as he thought that it would hurt him in getting anything out of his claim, and he said he could walk fairly well without it”.

We conclude from a consideration of all of the evidence in the record that the claimant has failed to establish by the greater weight of the evidence that the coronary condition of which he now complains is the result of the accident of August 12th, 1935, and award for any disability on account of such condition is denied.

Claimant is entitled to an award for temporary total disability resulting from injury to his knee as hereinbefore set forth.

An award is hereby made in favor of claimant, William L. Smith, for temporary total disability to his right knee as hereinbefore set forth, in the sum of Four Hundred Ninety-five Dollars ($495.00).

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


source: Caselaw Access Project

author: Mb. Justice Yantis

license: Public Domain

text:
    (No. 3262
    Nina Youngman, Administratrix of the Estates of John Youngman, Deceased and Robert Youngman, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1939.

      Rehearing denied March 14, 1940.

    Harold J. Dalton, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

On June 18, 1936 Robert Youngman, aged ten years, and John Youngman, aged twelve years, were drowned in Pine Creek at White Pines State Park, Oregon, Illinois; the latter being a park established and operated by the State of Illinois. The complaint filed by Nina Youngman, as Administratrix of the children’s estates, alleges that there was a concrete slab across Pine Creek which was formerly used by cars, but was no longer so used; that the waters of the creek passed over it in a shallow manner, and that the surface of the slab had become overgrown with moss; that it was attractive to children of tender years who were in the habit of wading upon the slab; that the waters of the Creek on each side of the slab were approximately fifteen feet deep, making it a dangerous place for children to play.

The complaint further alleges that it was the duty of respondent to exercise such care in the control and management of the slab that children of tender years who were attracted thereby would not be injured or killed; that the respondent negligently and carelessly failed to remove the slab or to provide a fence or protection for same, and permitted children to play thereby and thereon, and that as a result of such negligence the two children while wading on the slab slipped off the slab and were drowned.

The Attorney General has filed a motion to dismiss the complaint for the reason that the right to damages claimed therein is predicated upon the alleged negligence of the respondent through its agents and servants.

The Doctrine of Respondeat Superior does not apply to the State, and in the absence of a statute so providing, the State is not liable for death or injuries resulting from the negligence of its agents, officers or employees. (Trombello vs. State, 8 C. C. R. 56; Cavatio vs. State, 9 C. C. R. 245; Wilson vs. State, 8 C. C. R. 72.)

The establishment and maintenance of a park is a governmental function. (Trombello vs. State, supra.)

It further appears that the two children above named were drowned June 18, 1936. The complaint was filed herein on May 19, 1938, being considerably more than one year after the children’s death. The Attorney General contends that Paragraph 2, Chapter 70, Ill. Rev. Statutes, 1937, provides that every action for recovery of pecuniary damages resulting from death shall be brought "within one year after the death of such person, and that therefore the claim in question would be barred under the statute.

Claimant contends that inasmuch as the Court of Claims Act provides that every claim filed herein shall be barred unless filed within five years after the claim first accrues, that the one year limitation under the Injuries Act does not apply. To this, we cannot concur. It does not follow, that since no claims can be filed in the Court of Claims after five years from the time the right of action accrued that all other limitations of statute are nullified so far as the filing or hearing of claims in the Court of Claims are concerned.

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


author: Mr. Chief Justice Hollerich

text:
    (No. 3459
    Ivan E. Brouse, M. D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

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

delivered the opinion of the court :

On February 17th, 1939 one Franklin Story, an employee of the Division of Highways of the respondent, sustained an accidental injury which arose out of and in the course of his employment, and was treated therefor by Dr. F. A. Norris.

On March 27th, 1939, with the approval of the Division of Highways, said Franklin Story was referred by Dr. Norris to the claimant herein for X-ray pictures of his dorsal and cervical spine, and for an interpretation of such pictures. Claimant made the pictures as requested, and gave his interpretation thereof, and on December 4th, 1939 rendered a bill therefor to the respondent in the amount of $20.00. Payment was refused on the ground that the appropriation from which same was properly payable had lapsed, and claimant was advised that he would have to seek payment through the Court of Claims.

No question is raised as to the value of the services rendered, nor is it claimed that there were not sufficient unexpended funds in the proper appropriation at the time of the rendition of such services. Under similar circumstances we have repeatedly held that the claimant is entitled to an award. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Metropolitan Electrical Supply Co. vs. State, No. 3270, decided at the September Term, 1938, of this court.

Award is therefore entered in favoi; of the claimant for the sum of Twenty Dollars ($20.00).


author: Mr. Chief Justice Hollerioh

text:
    (No. 3422
    Winifred Burroughs and Charlotte N. Burroughs, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

    Warnock, Williamson & Burroughs and Brown, Hat & Stephens, for claimants.
    John E. Cassidt, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of ' the court:

The complaint herein alleges in substance that on November 6th, 1937, the claimant, Winifred Burroughs, was driving an automobile in a northerly direction on S. B. I. Route No. 4 (U. S. Route No. 66), at a point about three miles north of the Village of Hamel, in Madison County; that the claimant, Charlotte N, Burroughs, was riding as a guest in said automobile; that at the same time one John D. Owens, Assistant Engineer of the respondent, in the course of his employment was driving an automobile in a southerly direction upon said S. B. I. Route No. 4 and was approaching the Burroughs car; that a heavy fog prevailed and the visibility was poor; that the pavement was damp and wet; that said Owens was driving his automobile at a high and dangerous rate of speed, and while passing another vehicle proceeding in the same direction, and while the foggy condition of the atmosphere was so dense that it was impossible to see more than fifty (50) feet, drove his automobile over the center line of said highway, directly in the path of the Burroughs car, whereby the two automobiles collided head on; that as a result thereof the Burroughs automobile was demolished and claimants sustained serious and permanent injuries, for which the claimant, Winifred Burroughs, asks an award in the amount of $6,800.00, and the claimant, Charlotte N. Burroughs, asks an award in the amount of $6,000.00.

The complaint further alleges that the claimants were in the exercise of all due care and caution prior to and at the time of the accident, and that said John D. Owens was guilty of wilful and wanton misconduct in the operation of his automobile, and that therefore the respondent is liable for the injuries and damages sustained by them.

The Attorney General has filed a motion to dismiss on the grounds that the State is not liable for the carelessness and negligence, or for the wilful and wanton misconduct of its employees.

The claimants contend that under the provisions of Section 6 of the Court of Claims law, the court has jurisdiction to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, in equity and good conscience should discharge and pay; and that in this case the State in equity and good conscience should pay the claimants the damages sustained by them.

The question raised in this case has been before this court in numerous cases, and was carefully considered in the case of Crabtree vs. State, 7 C. C. R. 207. In that case, after atL exhaustive review of the previous decisions of this court, we said:

“We conclude, therefore, that Section Four (4) of Paragraph Six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defines the jurisdiction of the Court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this Court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this Court has no authority to allow any claim unless there is a) legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the Court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.
“The claimant having failed to bring himself within the provisions of the law entitling him to an award, there is nothing this Court can do but deny the claim.”

In the case of Garbutt vs. State, No. 2246, an opinion denying an award was filed at the January Term, 1935. That case involved the question of the liability of the respondent for the negligence of the maintenance patrolman on S. B. I. Route 172, and we there held, following the case of Crabtree vs. State, ante, that there was no liability.

Thereafter a rehearing was allowed on the petition of the claimant, and upon such rehearing the claimant contended that the servants and agents of the respondent were guilty of gross and wanton negligence, and that under such circumstances an exception exists to the general rule that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior. In that case we held:

“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants or agents in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this Court.”

The question as to the liability of the State on the grounds of equity and good conscience was again fully considered by the court in the case of Titone vs. State, 9 C. C. R. 389, in which the authorities in this and other States were again considered and reviewed, ■ and the decision in the Crabtree case was adhered to.

The rule as laid down in the Crabtree, Garbutt and Titone cases has been recognized and applied in New York, Massachusetts, and numerous other States. In the case of Smith vs. State, 227 N. Y. 405, the New York Court of Appeals said:

“It is true, as- urged, that the section confers upon the Court of Claims jurisdiction of the broadest character. The State, under the terms of the Section, must be treated, as having waived its immunity against actions as to all private claims. * ® * But it is thoroughly established that by consenting to be sued the State waives its immunity from action, and nothing more. It does not thereby concede its liability in favor of the claimant, or create a cause of action in his favor which did not theretofore exist. It merely gives a remedy to enforce a liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. Roberts vs. State, 160 N. Y. 217, 54 N. E. 678. Immunity from an action is one thing. Immunity from liability for the torts of its officers and agents is another.”

The ease of Burroughs vs. Commonwealth, 224 Mass. 28, involved a statute which gave the Superior Court “jurisdiction of all claims against the Commonwealth whether at law or in equity,” and in that case the court, on page 39, said:

“It has been held that while the terms of the statute now embodied in R L. C. 201 are ‘full and comprehensive, it is not to be interpreted as imposing any new obligation upon the Commonwealth, or as creating a new class of claims for which a sovereignty never has been held responsible, but .... ‘to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized, although the satisfaction of them have been usually sought by direct appeal to the sovereign, or in our system of government, through the Legislature’ ”. Nash vs. Com,., 174 Mass. 335, 54 N. E. 865. In view of this decision, the statute cannot be stretched to include damages for an ordinary tort, committed by an officer or employee of the Commonwealth in the performance of duties prescribed by law.”

Under the law as above set forth we have no authority to allow an award, and the motion of the Attorney General must be sustained. Motion to dismiss allowed. Case dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 3447
    Continental Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

On February 21, 1939 the claimant furnished to the respondent for its Bureau of Maintenance, Roadside Planting and Landscaping, District No. 4, certain merchandise of the value of $1.73, and on March 4, 1939 furnished similar merchandise in the same amount.

Claim therefor was properly presented for payment in April, 1939, but apparently the same was mislaid. Another claim was filed on November 17, 1939, but payment was refused for the reason that the appropriation out of which the same was properly payable had lapsed.

No question is raised as to the receipt of the merchandise, or the value thereof, nor is it contended that there were not sufficient unexpended funds in the proper appropriation at the time the merchandise in question was purchased.

We have held in numerous cases that under such circumstances claimant is entitled to an award. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Metropolitan Electrical Supply Co. vs. State, No. 3270, decided at the September Term, 1938, of this court.

Award is therefore entered in favor of the claimant for the sum of Three Dollars and Forty-six Cents ($3.46).


author: Mr. Justice Linscott

text:
    (No. 3099
    Edith Crews, Howard Crews and Wayne Crews, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

    Parker, Bauer & Parker, for claimants.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The petitioners are the wife and heirs at law of the decedent.

The complaint consists of two counts. The first count alleges that the deceased was driving his automobile in a southerly direction on Schyler Avenue in the City of Kankakee, Illinois, at the rate of ten miles per hour; that he was an employee of the State, being an attendant at the State Institution for the Insane at Kankakee; that he desired to turn west at the intersection of Schyler Avenue and River Street; that there is located there a strip of land, immediately south of River Street, belonging to the park district of the City of Kankakee, which strip of ground borders on the North side of the Kankakee River; that he was in the exercise of due care and caution for his own safety and the safety of his automobile; that while in the exercise of due care and caution for himself and property at about 5:30 in the morning of January 8, 1937, the weather being misty, foggy and the visibility very bad, and he being an experienced driver, for the lack of proper guards and barricades, he drove off the highway for some seventy or seventy-five feet into the river and was drowned. This count charges that it was then and there the duty of the State to erect sufficient barricades to prevent one from driving into the river. It might be said that this count attempts to charge negligence under the common law.

The decedent’s work had to do with milking at the Kankakee State Hospital, and he supervised others doing that kind of work. He had been working there since 1934, and it appears that on the morning in question, he had taken a grandchild and daughter-in-law to catch an early conveyance. These relatives had been visiting the decedent’s family at Kankakee and. were about to return home, and they had stopped for an early morning breakfast. The evidence shows that he was on a regular, approved, customary route from the restaurant to the State Institution or the place where he was employed, and it is contended that he had a right to go around about way if he so desired “as long as he was on his way to work.” The evidence does not disclose that this particular part of the road over which decedent rode was under a state of repairs, or was in any way other or different than it had been for sometime, and was not in a good state of repair.

It appears from the record that on the morning in question a very dense fog prevailed along this particular highway .which was probably due to its close proximity to the river. One witness, a driver of a delivery truck, had met the deceased at the restaurant and discussed with deceased the matter of the heavy fog and this driver of a delivery truck stated that it was almost impossible to see; that in a short distance he had been required to stop several times so that he might ascertain if his vehicle was on the street, and that he had been unable to drive it at a greater speed than five miles per hour.

There were no eye witnesses and consequently no evidence as to the rate of speed, but as we regard- this question, the rate of speed is not a controlling factor.

It has been thorough established that the doctrine of respondeat superior does not apply to this State and the State is not liable for injuries to the person or damages to property caused by the negligence or wrongful acts of its officers, agents or employees.

In the case of Minear vs. State Board of Agriculture, 259 Illinois, 549, our Supreme Court held that the State Board of Agriculture is not liable in an action for damages for an injury received by the collapsing of the elevated seats or bleachers provided for spectators of the races at the State Fair, even though the board may have been guilty of negligence in not discovering the defective condition of said seats or bleachers. In this case the negligent act charged is the failure of the State to erect suitable barricades to prevent one from driving into the river from Schyler Avenue. We know of no statute requiring any officer of the State to erect such barricades, and, of course, there is nothing under the common law creating a duty on behalf of the sovereign power to erect barricades, and the deceased never had the right, under the common law, to sue .the State. In the Minear case above referred to, our Supreme Court, discussed a similar question, quite thoroughly, and much of the reasoning applied in that case, would apply with equal force to the case at bar.

In a much more recent case, that of Gebhardt vs. Village of LaGrange Park, 354 Ill. 235, decided in 1933, our Supreme Court held that the principle upon which freedom from liability for damages occasioned by servants of a municipality in performing governmental functions is based rests on the fact that the duty of the municipality is owed to the public, and though the neglect causing the injury may prove of damage to the individual affected, the benefits of the discharge of the duty to the public generally is deemed an outweighing consideration and so justifies immunity to the municipality. In this same case the court said that in determining the application of the rule of respondeat superior, the question whether a municipality, at the time in question, was performing a governmental function or was engaged in a proprietary enterprise is to be determined not only by the question whether or not the function was voluntarily assumed but also from the nature and effect of the duty discharged or the act done, and if the duty involves a general public benefit as distinguished from the interest of the municipality in a corporate or business undertaking, the function is governmental whether the duty is directly imposed or voluntarily assumed.

In view of these authorities and others and the many decisions of this court, we must hold that the doctrine of respondeat superior does not apply and there is no liability insofar as Count 1 is concerned.

Count 2 is based upon the same state of facts, but no where therein does it directly charge that the deceased was drowned or killed as the result of the accident, but that fact may be reasonably inferred from the other allegations contained in the Count. The deceased was employed by the State on State property. He supervised the milking of cows and probably did other work pertaining thereto. He had driven his own car in aiding relatives to return to their homes. It appears that the conveyance that they boarded was on the opposite side of the river to both the decedent’s home and the State Institution. It is charged that the said “James Cash Crews, at the time of the accident aforesaid, was on his way to the State institution located at Kankakee, Illinois; that he was driving said automobile with due care and caution; that he was then and there taking the usual customary and regular route in going to the said State institution.” This count was apparently attached for the purpose of bringing the deceased within the terms and provisions of the Workmen’s Compensation Act. It does not charge that the decedent was on his way from his home on the usual, customary and regular route, to the institution: it does not aver that the decedent had any business on behalf of his employer upon the street in question or in that vicinity, at that time or any other time, and it does not aver that he was in the performance of his duties.

The question for us to determine is: Did the deceased receive an injury that arose out of and in the course of his employment and was he under the Compensation Act at the time of his death! It appears from the record that his car had run from the street into the river and that he was drowned, and it further appears that he had some few bruises in addition to the drowning. It is generally conceded that every employment under the State is not under the Compensation Act.

In London vs. Industrial Com., 341 Ill. 51, the employee, Cleary, and three other truck drivers were returning to Chicago and the rear truck which Cleary was driving, went into a ditch. In a telephone conversation, the employer instructed them to leave the truck and also instructed the other drivers to return their trucks to the garage and for Cleary to return home. Cleary had the option of riding to Chicago in one of the other trucks but he rode part way in an automobile and was then overtaken by the truck and without the knowledge of the driver, climbed into the rear end and then endeavored to climb around the side of the truck to the cab and fell and was injured. The court held that Cleary was in the course of his employment but that the accident did not arise out of the employment because he incurred a hazard or danger not incident to the employment. The language of the court in the Landon case throws much light upon the instant case. Therein the court said:

“Whether an employee, when injured in going to or from his work, is in line of his employment depends upon the facts and circumstances of the particular case, but as a general rule a man’s employment does not begin until he reaches the place where he is to work and does not continue after he has left the place where he works. (Dambold vs. Industrial Com., 323 Ill. 377.)
The cases which hold that an employee injured while going to or coming from his work is within the course of his employment have been cases decided upon the ground that the employment required the particular route to be traveled or the route followed was the only one open to the employee. Where the employee is left to his own choice as to the method .of reaching his place of employment or in going home and selects a dangerous route when he could have selected a safe one, his act in so doing is not incident to the employment. (Lumaghi Coal Co. vs. Industrial Com., 318 Ill. 51; Dambold vs. Industrial Com., 323 Ill. 377.)
An employee must not unnecessarily increase the risk of injury to himself beyond that contemplated in his contract of service or choose an unnecessarily dangerous place for the doing of the act which is claimed to be incident to the employment. (Weiss Paper Mill Co. vs. Industrial Com., 293 Ill. 284.)
Where an employee chooses to go to a dangerous place where his employment does not necessarily carry him, and thus increases a danger of his own choosing altogether outside of any reasonable requirement of his work, such risk is not incident to the employment. (St. Louis and O’Fallon Coal Co. vs. Industrial Com., 325 Ill. 574; Terminal Railroad Ass’n vs. Industrial Com., 309 id. 203; Nelson Construction Co. vs. Industrial Com., 296 id. 632; Lumaghi Coal Co. vs. Industrial Com., supra.)
In United Disposal Co. vs. Industrial Com., 291 Ill. 480, the employee was killed while going to his employment. He chose- a route not provided by his employer but one which better suited his convenience. It was held that in so doing he voluntarily accepted unnecessary risk and that the injury which he received did not arise out of his employment."

All employees of the State of Illinois are not under the Compensation Act.

Mr. Walter Cleveland Peters, Chief Clerk of the Kankakee State Hospital testified that the deceased at the time of his death earned “$83.00 pins $6.00 per month commutation.” It may be argued that the deceased was receiving compensation for traveling to and from his work. It does not appear in this case that the deceased had any duties to perform away from the Kankakee Institution, and even if $6.00 per month was allowed for transportation purposes, we fail to see how that can change the situation. That was not payment for compensation; at the most, it was merely an allowance for his expense in getting to and from his home.

His employment in this instance had not as yet commenced. From the evidence it appears that he was not on the regular route from his home to the institution, and that he had no duties to perform on Schyler Avenue whatsoever.

In the case of Public Service Company of Northern Illinois vs. Industrial Com., 370 Ill. 334, the arbitrator and the Industrial Commission awarded compensation to the widow of the deceased employee and the superior court of Cook County confirmed the Commissioner’s award. The award was based upon a finding that death was due to accidental injury arising out of and in the course of the employment. The Supreme Court reversed the judgment of the superior court and the award of the Industrial Commission. The facts, as stated by the court in its opinion, were:

“Beckman, was employed by the plaintiff in error about twenty-five years. At the time he died he was a foreman in its gas-generating and pumping department. He worked in Blue Island where he lived, until he was transferred to the company’s new plant at Niles Center. He continued to live in Blue Island, but was allowed sixty-seven cents per day to cover the cost of his transportation. The same arrangement was made with another employee, Habenicht, who took turns with Beckman in furnishing an automobile to drive to work. Habenicht was driving and the two were on their way home from work when Beckman was killed in an automobile collision. Beckman had no duties, except those he performed at the plant in Niles Center.”

The Court then stated:

“Plaintiff in error contends that Beckman was through work and that his death did not occur in or arise out of his employment. In Fairbank Co. vs. Industrial Com., 285 Ill. 11, 13, we said: ‘when work for the day has ended and the employee has left the premises of his employer to go to his home the liability of the employer ceases, unless after leaving the plant of the employer the employee is incidentally performing some act for the employer under his contract of employment.’
“The defendant in error relies on our holding in Irwin-Neisler & Co. vs. Industrial Com., 346 Ill. 89, and cases therein cited. The facts of that case bring it within the latter part of the rule quoted from the Fail-bank Co. case. The employee, there, had been directed to make a business call in LaFayette, Indiana, while he was returning from a vacation, and was hurt when his automobile overturned. We held that although an employee may regularly be employed only at the plant or place of business, yet he will still be in the course of his employment, if he is directed' to perform other or even unusual duties elsewhere. In the case before us, Beckman is not shown to have had any duties to perform away from the plant. Whether the sixty-seven cents was wages or expense money is immaterial. His death did not arise out of or in the course of his employment, and his employer, is, therefor, not liable.”

And so it is in this ease. Whether the $6.00 per month was wages or expense money is immaterial.

The Attorney General had made a motion to dismiss this case. Much evidence was introduced. The claimants have been ably represented but we must hold that the deceased’s death did not arise out of and in the course of his employment, and the motion of the Attorney General, therefore, must be sustained.

The petition for compensation will, therefore, be dismissed.


author: Mr. Justice Yantis

text:
    (No. 3443
    Victor Eickolz, Cletis Yates, Dorothy Yates, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

    Robert H. Chase, for claimants.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimants herein allege that on October 12, 1939«Victor Eickolz was the owner of a certain Ford truck which was then and there being driven on an Illinois public highway described as U. S. Highway No. 45. That the owner’s employee Cletis Yates was driving the car and was accompanied by his wife Dorothy Yates.

That an employee of the Illinois Division of Highways, named Ralph Snyder, was driving* a State Highway truck and was engaged in attempting to pull another truck onto the highway; that in disregard of his duties Ralph Snyder negligently drove the State trucks onto the highway in such a manner as to obstruct both lanes of travel without warning to other trucks and cars, and that as a result, Cletis Yates-while in the exercise of due care drove the Eickolz truck over the brow of a hill and struck the State trucks, resulting in damage to the Eickolz truck in the purported sum of $435.00 and personal injuries and damages to Cletis Tates in the sum of $200.00, and personal injuries and damages to Dorothy Tates in the sum of $200.00 plus an additional claim of $52.00 for medical expense.

The Attorney General has filed a motion to dismiss the demand of each of said claimants, for the reason that it is predicated upon an alleged liability of respondent for the negligent action of an employee of the State.

Respondent’s contention is correct. The doctrine of respondeat superior does not apply to the State, and in the absence of a statutory provision the State is not liable for the negligence or misconduct of its officers, agents or employees. Schultz vs. State, 9 C. C. R. 96; Kelly vs. State, 9 C. C. R. 339; Crank vs. State, 9 C. C. R. 379.

In the exercise of its governmental functions, the State is not liable for the negligence of its servants or agents in the absence of a statute making it thus liable. Baumgart vs. State, 8 C. C. R. 220.

This court has had occasion to hold many times that the State in the construction and maintenance of its hard-surfaced highways is engaged in a governmental function. The employee in question is alleged to have been operating one of the State highway trucks at the time of the injury complained of. No award can properly be entered against the State for his alleged negligence. This does not relieve him from any tort liability for which he individually might be liable. The motion of the Attorney General is allowed and the claim as to each of said claimants is dismissed.


text:
    (No. 3400
    Carl K. Gerdes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

   Mr. Justice Yantis

delivered the opinion of the court:

Claimant, Carl K. Gerdes, seeks an award of Seventeen Thousand ($17,000.00) Dollars under a complaint which alleges that on July 28, 1937 the State of Illinois had constructed a State highway known as Route 29 which was then under the supervision and control of the Department of Public Works and Buildings, and in so doing had built a culvert including an abutment on each side of the hard road eighteen inches in height. That these abutments were concealed by a growth of weeds some three feet in height; that about one hundred feet south of the abutment there was a large amount of dirt, sand and gravel which had been packed upon and across the highway by trucks hauling, dirt, sand and gravel under respondent’s supervision in the course of constructing a fill for a new hard road connection that was being built at that point; that the sand, dirt and gravel had been spilled by the trucks and had become packed into two ridges, one-half foot wide and eight or nine inches high; that on said date claimant was traveling in a northeasterly direction upon said Route 29, that his car struck the ridges of dirt causing the car to leave the cement slab; that there was considerable traffic and he was compelled to drive his car upon the right-hand earth • shoulder for a considerable distance, and while so driving he ran into the eighteen-inch abutment above mentioned. That as a result of the accident he suffered serious injuries and expended large sums for hospital bills and medical care.

The Attorney General has filed a motion to dismiss the claim for the reason that same is predicated upon alleged liability of respondent for injuries alleged to have been caused by the failure of respondent to properly maintain in a reasonably safe condition for public use, a highway under respondent’s control and jurisdiction.

Reluctant though the court may be to deny Plaintiff a recovery we have no choice but to allow the motion. We have been repeatedly called upon to recognize the rule that the doctrine of Respondeat Superior does not apply to the State, and that the State in the absence of a statute so providing is not liable for injuries resulting from the negligence or failure of its employee to properly maintain its highways.

The State, in the construction and maintenance of its highway system, is engaged in a governmental function, and in the absence of a statute expressly so providing, is not liable for personal injuries or damages to property that may be occasioned by its failure or negligence to maintain its highway in a safe condition. (Harman et al. vs. State, 9 C. C. R. 29; Wentworth vs. State, 9 C. C. R. 240.)

The Court of Claims will make awards only in cases Avhere the" State would be liable in law or equity if it could be sued in a court of general jurisdiction. (Crabtree vs. State, 7 C. C. R. 207.)

Motion is allowed and claim dismissed.


text:
    (No. 2777
    Charles Hamilton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

    Joseph W. Koucky, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Charles Hamilton has made a claim against the State of Illinois for compensation to be awarded him pursuant to the Workmen’s Compensation Act, on account of an injury which he received. Claimant states that he resides at the Chicago State Hospital, 6400 Irving Park Boulevard, Chicago, Illinois; that on the 2nd day of February, 1935, and for several years prior to that date, he was employed by the State of Illinois as an employee of the Chicago State Hospital, as a landscape gardener; that his duties, among other things, were to look after the lawn, shrubs, etc., and in other ways assist in the maintenance of the grounds of the Chicago State Hospital.

Claimant further charges that while he was working for the Chicago State Hospital, in the City of Chicago, on the date last mentioned, and while in the discharge of his duties, he slipped and fell on the ice, and as the result of the fall he sustained injuries to his left shoulder and arm. (The proof and subsequent amendments to the complaint show this to be the right shoulder.)

Claimant also alleges that notice was given of the accident on or about the same day, and that medical and surgical services were furnished and paid for by the State of Illlinois. Claimant’s compensation was alleged to be $58.00 per month, exclusive of board, room and laundry service, and that his average annual earnings for the year preceding the injury, including board, room and laundry, were $1,200.00. He.also alleges that he has not received any compensation on account of said injury, except his regular monthly salary and maintenance for eight weeks, that being the period of temporary disability, and he asks' for an award under Section 7 of the Illinois Workmen’s Compensation Act.

The proof shows that in 1912 the claimant suffered the amputation of his right hand at about the wrist on account of a shot-gun wound and blood poisoning.

As we construe the proof in the record, he suffered as the result of the injury complained of, fifty per cent loss of the use of his right arm independent of the amputation; that after the amputation and before his injury, he did have considerable use of this arm. He could carry many things by holding them tight to his body and by the use of a hook upon the wrist, he was able to do a number of things. The evidence further discloses that the present condition of his arm is permanent.

At the time of the injury, claimant was working with eight or nine men, presumably inmates of the hospital, and two of them got into trouble. Claimant tried to separate them and in so doing, his right shoulder was broken. Some of these patients are mentally deranged and it was a part of the claimant’s duty to maintain order. Claimant was treated at the hospital at the expense of the State. He testified that lie was treated for six or seven weeks, but the more convincing evidence is that he was back to work in thirty-two days.

Claimant was injured on February 2, 1935. During the year preceding the accident, for two months he received $50.40, for six months $48.60 and for four months $46.80. At the time of the accident his salary was $50.40. It was stipulated that the annual salary for the year next prior to the injury amounted to $795.60 and that the average weekly wage for that period was $15.30 per week.

Claimant lost thirty-two days work on account of the injury. He was in the hospital twenty-six days and it was six days more before he returned to work. Apparently it was a bad fracture and when it healed the arm and shoulder were somewhat stiffened and there was a loss of limitation of 45 to 50%.

The claimant stated that he had received $18.00 per month maintenance and upon that statement, together with the departmental report, it was stipulated between the parties that his salary or wages for the year immediately preceding his injury amounted to $795.60, or an average weekly wage of $15.30. During the thirty-two days that claimant was totally temporarily disabled, he received his full salary on the basis of $50.40 wages and $18.00 commutation, or a total of $68.40 per month, or a total of $72.96 for thirty-two days. Based on the rate of pay for the year immediately prior to the injury, the claimant was entitled to a compensation rate of $7.65 per week for a period of four weeks and four days. This would amount to $34.97. The claimant was therefore, overpaid the sum of $37.99, and this amount should be deducted.

Plaintiff had, prior to this injury, lost the use of his right arm by amputation at the wrist. Both Dr. Adams and Dr. Bell testified, and the prior loss of the hand is admitted.

Section 17% of the Compensation Act provides as follows:

“In computing the compensation to be paid to any employee who, before, the accident for which he claims compensation, had before that time sustained an injury resulting in the loss by amputation or partial loss by amputation of any member, including hand, arm, thumb or fingers, leg, foot, or any toes, such loss or partial loss of any such member shall be deducted from any award made for the subsequent injury, and for the permanent total loss of use or the permanent partial loss of any such member or the sight of an eye shall be deducted from any award made for the subsequent injury, and for the permanent total loss of use or the permanent partial loss of use of any such member for which compensation has been paid, then such loss shall be taken into consideration and deducted from any award .for the subsequent injury.”

The record discloses that the claimant did not receive any compensation for the loss of the hand, and he now contends that for that reason an award should be fixed at the same amount as it would have been had the hand been lost as the result of the accident in question.

Prior to the amendment of the Act by the addition of Section 17% that was the interpretation of the law by the Supreme Court, but we regard the law as now amended as having been amended to prevent a recovery of more than a one hundred per cent loss of an arm, hand, leg, etc., in cases of this kind. As we construe Section 17%, it means that we must take into consideration the permanent partial loss of use of any such member or the permanent total loss of use, and deduct that amount from any reward for the subsequent injury. The question does not depend upon whether or not compensation has been paid, but depends upon whether or not there has been a loss or partial loss by amputation of any member, including arm, hand, thumb, etc., and if such a loss has taken place then the amount which was paid or should have been paid under the Compensation Act must be deducted.

If claimant had suffered the complete loss of his arm, he would have been entitled to 50% of his average weekly wages during 225 weeks, but we cannot allow anything for the loss of the hand because that occurred at another time and at another place, and for the loss of a hand, the statute fixes the amount at one-half of the average weekly wage for 170 weeks. Deducting this 170 weeks from the 225 weeks, we have 55 weeks left, but the proof shows that he only suffered a loss of 50% of the use of the remaining part of the arm. He would, therefore, be entitled to one-half of 50% of his average weekly wage for 55 weeks, or $210.38, less the $37.99, t which he was overpaid, or the sum of $172.39.

We, therefore, make an award in favor of the claimant in the sum of $172.39.

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


text:
    (No. 3451
    Robert Hogue, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1940.

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

delivered- the opinion of the court :

Robert Hogue filed his claim Pro Se on February 6, 1940 asking for balance due on temporary total disability of $19.53, and a further award of $524.00 for the loss of the index finger of the left hand.

A stipulation has been filed whereby a report by M. K. Lingle, State Engineer of Claims, is accepted as a statement of the facts herein. Such report states that Robert Hogue is twenty-five years of age, resides at Metropolis, Illinois and was first employed by the Division of Highways of Illinois on July 19,1939 as a common laborer at the rate of fifty (50) cents per hour. From said date until November 4, 1939 he was paid wages in the total sum of $33.00. On the latter date while engaged in cutting and burning brush along the right-of-way of U. S. Route 45 north of Mermet, Illinois, he lost his footing and fell, and the axe which he was holding in his right hand struck the index finger of his left hand, severing same. He was placed under the care of Dr. J. A. Fisher at Metropolis and the latter, on December 26th, reported as follows: “Completed amputation of first and part of second phalanx of first finger of right hand. Permanent disability. Loss of first and part of second phalanx of first finger of right hand. Able to return to work December 14, 1939.” The reference to the right hand in the above report is an error, as the disability was actually to the index finger of the left hand as recited by claimant and as reported by his Foreman William Fox. Claimant was paid compensation for temporary disability in the total sum of $45.97 for the period from November 5th to December 13,1939.

At the time of the accident claimant had two children under the age of sixteen years and a wife, dependent upon him for support. The Highway Division paid the hospital at Metropolis $42.00 for services rendered and these are all the expenses which arose out of the accident. Employees engaged in similar activities in which the claimant was engaged work less than two hundred (200) days a year.

From the foregoing statement it appears that temporary total disability for a period of 5 3/7 weeks was suffered. His compensation rate under Section 8 of the Workmen’s Compensation Act would be $13.20 per week, by virtue of the dependency shown. Temporary total disability would amount to $71.67 less a credit of $45.97, or a balance of $25.70 remaining due the claimant. In addition thereto, he is entitled to compensation for the loss of the first or index finger of the left hand in an amount equal to fifty (50) per cent of the average weekly "wage during forty (40) weeks, or forty times $13.20, or $528.00. (Sec. 8 (e) 2 Workmen’s Compensation Act.)

An award is therefore hereby made in favor of claimant as follows:

For balance due for temporary total disability...................... $ 25.70
For specific loss ................................................. 528.00
Total................'......................................... $553.70

Claimant was paid for 5 3/7 weeks temporary total disability. He is now entitled to payment of accrued compensation for' 16 4/7 weeks to April 6, 1940 at $13.20 per week or $218.74. The balance of the award or $334.96 is payable at the rate of $13.20 per week commencing April 13, 1940. Award accordingly.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly (S. B. 123 as amended) approved July 1, 1939; — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for by the foregoing Acts.


text:
    (No. 2584
    John W. Grapes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1940.

    Kaywin Kennedy and L. C. Sieberns, for claimant.
    John E. Cassidy, Attorney General; John Kasserman, Assistant Attorney General, for respondent. .
   Mr. Justice Yantis

delivered the opinion of the court:

The complaint herein alleges that on December 1, 1920, claimant was employed by the Secretary of State of the State of Illinois and assumed the duties of an assistant to a clerk; that in 1922 he was promoted to the duties of a clerk in the Secretary of State’s office and handled all correspondence of the Secretary of State in such capacity for a long period of time thereafter; that he received $150.00 per month, which was raised from time to time until he was' receiving $200.00 per month.

That on February 1,1931, he was informed by the Secretary of State that there was a shortage of money in said office, and that he would have to be relieved from duty, and that he was thereupon relieved from duty; that on March 15, 1931, he was reinstated in the same position at the same salary, and continued to work in said position from March 16, 1931, until July 1, 1931, at the said salary of $200.00 per month; that during said period from March 16, 1931, to July 1, 1931, he received only $150.00 upon the total amount due of $700.00. That he made frequent demands upon the Secretary of State for the payment of the salary of $200.00 per month for said period, but that there remains due therefrom the sum of $550.00 and interest at the rate of five (5) per cent per annum from July 1, 1931. Claimant further states that following July 1, 1931, he continued as clerk aforesaid up to September 16, 1933, during which time he received his full salary of $200.00 per month.

Claim was filed January 24, 1935, and seeks an award of $550.00 and interest of $98.54, or a total of $648.54.

Evidence has been introduced from time to time from the 24th day of April, 1935, to February 27, 1940.

A Departmental Report signed by A. C. Millspaugh, Chief Clerk in the Secretary of State’s office, filed January 9, 1940, and identified as Claimant’s “Exhibit 2,” states that claimant’s wages or salary began at $125.00 per month in 1921 and was increased from year to year until in 1929 when it was fixed at $200.00 per month.

That claimant was taken off the payroll February 1,1931, on account of shortage of funds; that on May 15, 1931, he was paid $75.00, and again on June 15, 1931, $75.00; thus making a total of $150.00 paid between March 15 and June 30, 1931. Mr. Millspaugh’s Report further states that there is no record in the Secretary of State’s office showing when or upon what basis claimant was reinstated, but that the records show that he was paid as follows: For May 1st to 15th, $75.00; June 1st to the 15th, $75.00, making a total of $150.00 paid between March 16th and June 30, 1931. Mr. Millspaugh’s Report further states that claimant continued to work from soon after his layoff up to July 1, 1931, when he was again restored to the payroll in the- sum of $200.00 per month.

Claimant contends that when Mr. Stratton, who was then Secretary of State, laid him off, he prevailed upon Gordon W. Childers, who was then a member of the Legislature from the 26th Senatorial District, to go with him to talk to the Secretary of State’s office to obtain his re-employment. That following such call he received a letter identified as claimant’s “Exhibit 1,” signed by William J. Stratton, Secretary of State, dated February 20, 1931, which stated: “After you called at the office yesterday I checked up and find that it will be impossible for me to reinstate Mr. Grapes until March 16th. I have advised him to report for duty on that date.”

There is some confusion in the record as to just what Mr. Grapes’ position was. The complaint, as heretofore noted, alleges that at the time he was relieved of duty on February 1, 1931, he was “a clerk in the Secretary of State’s office, handling all correspondence of said Secretary of State.” Albert C. Larson, A. E. Millard, and Cora Lewis, witnesses produced by claimant, each testified that they and Mr. Grapes were all clerks in the Automobile Department of the Secretary of State’s office; that they worked under the supervision of Mr. Hickey, who was superintendent of that department, Mr. Larson being chief clerk.

Eepresentative Childers testified that he had seen claimant in the performance of his duties many times and that claimant was a file clerk in the Automobile Department.

Miss Lewis stated that claimant had charge of the Index Cards in the Filing Department.

Mr. Grapes, in his testimony on February 27, 1940, in answer to the question, “What was your work in the office at that time (i.e., January, February and June, 1931)?” answered: “I was the head of the department, looked after all the mail and after the information, about complaints and all that.”

It becomes important to consider the status of his employment because the record further discloses that in response to a request from the Attorney General’s office, Hon. Edward J. Barrett, Auditor of Public Accounts, looked up the payroll records in his office for the Automobile Department for the period from March 16, 1931, to July 1, 1931, to see upon what, if any, payroll claimant was carried during that time, and as to whether such payrolls indicated why payment was not made to him regularly. A statement from the Auditor of Public Accounts appears in the record as Despondent’s “Exhibit 1,” and is as follows:

"We have referred to pay-roll records and find from the pay-rolls on file covering the Secretary of State, that Dwight Anderson was in the specified position held previously by John W. Grapes from February 1, 1931 to March 31, 1931. B. H. Kunkler was then transferred to this particular position and was paid from this appropriation from April 1, 1931 to June 30, 1931.
“We do not find that John W. Grapes was paid from any other appropriation during that time, except the $150.00 paid to him for two periods in the-amount of $75.00 each time. After July 1, 1931 we find that John W. Grapes was reinstated to his former position at the rate of $200.00 per month.”

The appropriation to which reference was above made was that found on page 155 of the Session Laws of 1929, wherein appears the item, “Making an Appropriation for One Clerk at $2,400.00 per annum.”

After.claimant went back to work he accepted the two $75.00 Warrants without any apparent objections, and he states that the dates appearing at the bottom of said Warrants, i. e. May 1-15, 1931 and June 1-15, 1931 were not on the Warrants when he received them. The other evidence in the record indicates that he is mistaken in his recollection as to same. Claimant further testified that he never requested any additional, pay from Mr. Stratton, the then Secretary of State, until just before the latter went out of office in January, 1933, at which time Mr. Stratton stated he had no funds with-which to1 pay him. Claimant states that he frequently asked Mr. Millspaugh for'“the checks,” but nothing appears as to any statement by Mr. Millspaugh in regards thereto.

It does not appear from the record that Mr. Grapes was in the classified Civil Service. Neither does there appear to be any question from the record as to his having been employed during the period for which he seeks additional wages, i. e. from March 15, 1931 to July 1, 1931. It further appears however, that the then Secretary of State Stratton discontinued John W. Grapes’ service in February, 1931 and proceeded to place Dwight Anderson and B. H. Kunkler successively on the pay-roll instead of Grapes, and that the appropriation for the clerkship previously held by Grapes was .used during such period to pay the other two employees. No set duties appear to be prescribed for such clerkship, and for the purposes of this record it is immaterial whether the employees Anderson and Kunkler performed the same identical tasks previously performed by Grapes or were assigned to other clerical work. The claimants acceptance of the two $75.00 Warrants indicates that he was reinstated on a temporary basis or capacity until the first of July, 1931, and was placed on a less schedule of pay during such period; that he was again restored to his former clerical position on the payroll in Mr. Stratton’s office on July 1, 1931. This is further borne out by the fact that no complaint was made by him in regard to any shortage in his pay, when the $75.00 payments were made to him, and in fact raised no question as to the reduction in rate of wages from the time he left the service of the State on September 15, 1933 until January 24, 1935. Whether claimant’s superior treated him fairly or not in temporarily laying him off and putting someone else on the payroll in his place and later again employing him at a decreased rate of pay, is' not for the court to comment upon. There is nothing in the record to show that the Secretary of State did not have authority to so do.

Claimant was rehired March 16, 1931. The proof shows he worked until July 1, 1931 and that his scale of pay during that period was on the basis of $150.00 per month; that said period covered a term of 3% months for which he should have received $525.00. He was paid $150.00 and is entitled to an award of $375.00 for unpaid time.

If the two $75.00 warrants delivered to him in May and June 1931, did not bear the dates showing periods for which they were given, we might consider such warrants as having been payment in full for the entire period of employment from March 16th to July 1, 1931, but the warrants do show the dates covered, and we find claimant is entitled to the balance of $375.00.

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall he considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute, in fact, an additional payment for work already performed and for which remuneration had already been made.”
Item 3, Sec. 9, Par. 9, Chap. 127b, State Finances.

The court finds that a sufficient legal basis for the allowance of an award has been shown, and an award is hereby allowed in favor of claimant in-the sum of $375.00.


text:
    (No. 2035
    Martin Petri, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1940.

    Joseph B. McGlynn, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on July 24, 1931, the claimant was in the employ of the respondent as a State highway policeman. On the last mentioned date, while patroling his route, and while driving in a westerly direction on Route 15, at a point about five miles east of Nashville, in Washington County, the motorcycle which he was operating was struck by a Chevrolet sedan which was then and there being driven by one Nettie Hamilton in an easterly direction on said highway. The accident happened at a time when the driver of the sedan was trying to pass a truck proceeding in the same direction in which she was traveling.

As the result of the accident claimant sustained a compound fracture of his left leg, and also claims to have sustained certain injuries to his left knee and shoulder. He was removed to St. Mary’s Hospital at Centralia, where he remained about seven weeks. Thereafter he was confined to his home under the care of his doctor until he was able to return to work about ten months after the accident.

During the time of his temporary disability as aforesaid he was paid his regular salary of $175.00 per month, which, being for unproductive time, _ must be considered as compensation.

The respondent paid doctor and hospital bills aggregating the sum of $668.50.

The accident in question resulted solely from the negligence of said Nettie Hamilton, and thereafter claimant made a settlement of his claim against her and received the sum of $1,400.00, which was in addition to the sum of $600.00 paid to his attorney for his services in that behalf.

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

That on July 24, 1931, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of such accident was given to respondent and claim for compensation on account thereof was made within the time required by the provisions of the Workmen’s Compensation Act.

That the necessary first aid medical, surgical and hospital services were provided by respondent, except an item of $6.00 which claimant paid for an X-ray.

That at the time of the accident in question claimant was forty-one years of age and had four children under the age of sixteen years.

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

That claimant was temporarily totally disabled from July 24, 1931, to May 20, 1932, to wit, forty-three (43) weeks; that he sustained the permanent loss of thirty per cent (30%) of the use of his left leg; that under the provisions of Section Eight (8), paragraphs B and J-2 of the Compensation Act, the claimant is entitled to have and recover from the respondent the sum of Twenty Dollars ($20.00) per week for the period of forty-three (43) weeks, that being the period of his temporary total incapacity for work; that under the provisions of Section Eight (8), paragraphs E and J-2 of such Act claimant is entitled to have and recover from respondent the sum of Twenty Dollars ($20.00) per week for a further period of fifty-seven (57) weeks for the reason that the injuries sustained by him resulted in the permanent loss of thirty per cent (30%) of.the use of his left leg; that under the provisions of Section Eight (8), paragraph A of such Act, the claimant is entitled to have and recover from respondent the further sum of Six Dollars ($6.00), being the amount paid and advanced by him for X-ray pictures; making a total of Two Thousand Six Dollars ($2,006.00).

That the sum of Seventeen Hundred Fifty Dollars ($1,750.00) has been paid by respondent to claimant to apply on the compensation due him; that under the provisions of Section 29 of the Compensation Act, the respondent is entitled to set off against the amount due claimant from it as aforesaid, the amount which he received from the said Nettie Hamilton, to wit, the sum of Two Thousand Dollars ($2,000.00); making a total credit to the respondent of Thirty-seven Hundred Fifty Dollars ($3,750.00).

We further find that the aggregate of the compensation paid by the respondent to the claimant as above, and the amount received by claimant from said Nettie Hamilton as above, is in excess of the amount of compensation to which the claimant is entitled under the terms and provisions of the Workmen’s Compensation Act of this State, and that therefore claimant is not entitled to recover anything whatsoever from the respondent in this proceeding.

Award is therefore denied.


text:
    (No. 2869
    Annie L. Weller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1940.

    A. C. and Ben F. Anderson, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint in this case was filed on March 25, 1936, and alleges that- on the 28th day of September, 1935, the claimant was employed as a geography teacher by the Eastern Illinois St^te Teachers College at Charleston, being a body politic and municipal corporation organized under an Act of the Legislature of the State of Illinois, entitled “An Act to establish and maintain the Eastern Illinois State Normal School,” in force May 22, 1895,' and all amendments thereto; that the said Teachers College under the Acts of the Legislature was and now is a municipal corporation, with power to sue and be sued, and was wholly supported and maintained from revenues received from the State of Illinois, the respondent herein.

It is further alleged that on the said 28th day of September, 1935, claimant was accidentally injured while in the performance of her duties, in the following manner: On that day she was conducting her class enrolled in said Teachers College on a field trip, and while so engaged she took her class to a place located about six miles south of Paris, Illinois, to examine the topography of that place for purposes of instruction of her students; that at said time and place and while so engaged she slipped and fell on a clay bank, and as a result of the fall she received a fracture of the joint of her left knee; that she was removed to the Oakwood Hospital in Charleston, Illinois, for treatment, and from that date until the 10th day of March, 1936, she was totally incapacitated from performing any duties pertaining to her employment, and during that time she was unable to teach her classes, and expended large sums of money to cure herself of her injuries.

It is also charged that said school is a political subdivision of the State of Illinois and has no income or revenue except that received from tuitions and that which is appropriated by the Legislature.

It is further charged that said Teachers College is engaged and was engaged at the time of the injury to the claimant in extra hazardous enterprises and businesses as a part of the operation of said school, in that sharp-edged cutting tools were used by said school in maintaining its said enterprise, and that the said school also maintains a power plant at said college wherein heavy machinery and boilers are used, and is also engaged in such a business and enterprise which are regulated by statutory regulations by the State of Illinois providing certain means and modes of the operation of the said machinery and appliances so used by the college.

Notice was alleged to have been given on the day of the accident or the next day following.

It is also charged that claimant has expended the sum of $1,054.45 on account of medical care, hospital care and attendance necessarily incurred for her cure, which amount has been paid by her.

It is further charged that claimant was permanently and completely disabled for a period of twenty-three weeks, being from the date she sustained her said injury until the 11th day of March, 1936, at which last date she resumed her employment with said Teachers College, but that her fractured knee had not completely recovered and she did not know whether or not it would be a complete recovery.

It is further charged that she was receiving the sum of $87.50 per week, and had been receiving a like sum during the preceding year, and that her annual earnings for one year prior to the accident exceeded $3,600.00.

Claimant charges that she never received any moneys for payment of her doctor and hospital bills paid by her, and that the only moneys that she received from the Teachers College is the sum of $262.50.

Claimant also alleges that she was advised by her counsel to file her claim before the Industrial Commission of the State of Illinois against the Eastern Illinois State Teachers College at Charleston, her employer, which claim was filed prior to the filing of this claim in this court.

Claimant further alleges that she is a single woman and has no dependents and that she is sixty-two years of age.

The undisputed facts are that she is a school teacher employed by the Eastern Illinois State Teachers College at Charleston, Illinois, and that she is the head of the geography department of that college and has been for many years last past. That the Eastern Illinois State Teachers College in Charleston, Illinois, is a school for the training of teachers and is supported and maintained by the State of Illinois, and that the claimant’s salary is paid by the State of Illinois from an appropriation of the Legislature and is paid by the State Auditor. That the claimant’s annual earnings for the year preceding the.injury were $3,850.00. That on the 28th day of September, 1935, the claimant was employed as a teacher of the college, and that on that day, with the consent and approval of Robert Gr. Buzzard, President of the College, she took her class on a field trip to a place south of Paris, Illinois, that being a part of her regular work as a part of the course which she was teaching. That on the trip two of her teachers were with her; the purpose of the trip being to observe the geological phenomena of the region. That they went to the place where the accident occurred in automobiles, and three of the students with Miss Ruby Harris, one of the teachers, went with the claimant in her car. That at the' time of the accident the class was under the supervision of claimant. That at the time of the injury they were observing the rock areas and fossils, and the claimant was proceeding down a hill and slipped and received the injury. An X-ray was taken and claimant was taken to the Oakwood Hospital and remained there ten days, and ivas then taken to the Billings Hospital in Chicago. She was treated by Dr. N. C. Iknayan, her family physician, while in Charleston, and while in Chicago she was treated by Dr. Dragstadt, who is a bone specialist and bone surgeon. An operation was performed in Chicago upon her knee. She had a fracture of the left knee and the knee was cut open about nine inches, near the joint. Part of the cartilage was broken and it had gone in between the parts of the fracture and had to be removed. The bone was wired in place to hold it in position, and she was confined to her bed eight weeks in the Billings Hospital. Treatments were given her knee while at the hospital, under the advice and approval of her physician. She was in the hospital until the second week in January, 1936, approximately three and one-half months. She went back to Charleston the second week of January, 1936, in an automobile. Her knee at that time could not be bent more than ten degrees. She was under the care of her physician, Dr. N. C. Iknayan, upon her return. She used crutches, and used them after she resumed teaching at the school, her knee being then stiff and accompanied with pain. She used crutches until the last of May, 1936. She then used a cane, but could not walk a great distance. Claimant received pay for two full weeks and half pay for two weeks from the college, but has received no other compensation. She filed a claim with the Industrial Commission against the college, but the Attorney General ruled that the college was not liable for the claim. That on the trip she had with her a geological hammer (which was introduced in evidence), which is a sharp-edged tool; that it is standard equipment for teaching geography and used in all geological work. She makes a claim for 25 per cent loss of the use of her leg for 47% weeks compensation and $15.00 a week for 71% weeks, making 24 weeks temporary total incapacity and 47% weeks for 25 per cent use of her left leg, less the amount of $262.50 that she has been paid on account of the injury, the total amount claimed being $1,864.70. An award was allowed her before the Commission for this amount, less $19.75.

No dispute arises as to the nature and extent of claimant’s injury. Dr. N. C. Iknayan testified that she had sustained a loss of 25 per cent of the use of her left leg, and no dispute arises as to that.

After reviewing all the evidence, the court finds that the accident arose out of and in the course of her employment. This court has jurisdiction of the subject matter and the parties. Due notice was given under the law and no question arises as to that. We hold the payments made to her constitute a waiver of the statutory notice.

The amount of compensation which, shall be paid to an employee for an injury not resulting in death shall be: (a) The employer shall provide the necessary first aid, medical and surgical services, and all medical, surgical and hospital services thereafter; limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.

The statute also provides that if the period of temporary total incapacity for1- work lasts more than six working days, compensation equal to fifty per centum of the earnings but not less than $7.50 nor more than $15.00 per week, beginning on the eighth day of such temporary total incapacity and continuing as long as the temporary total incapacity lasts, but not after the amount of compensation paid equals the amount which would have been payable as a death benefit under paragraph (a), Section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving as provided in said paragraph (a), Section 7: Provided, that in the case where the temporary total incapacity for work continues for a period of more than thirty days from the day of the injury, then compensation shall commence on the day after the injury.

Paragraph (e), 15, Section 8, provides that for the loss of a leg, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during one hundred and ninety weeks shall be paid.

The statute further provides: “For the permanent partial loss of use of a member or sight of an eye, but not including the hearing of an ear, fifty per centum of the average weekly wage during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye which the partial loss of use thereof bears to the total loss of use of such member or sight of eye. ’ ’

Compensation shall be computed on the basis of the annual earnings which the injured person received as a salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury. (Par. (a), Section 10, Workmen’s Compensation Act.)

As a matter of precaution the claimant filed a claim for her injury both in the Court of Claims and with the Industrial Commission. The statute is plain that the Court of Claims is the proper forum for the adjudication of the claims of State employees under the Workmen’s Compensation Act, and under the facts in this case we hold that the Eastern Illinois Teachers’ College at Charleston, Illinois, is subject to the Workmen’s Compensation Act.

Dr. Robert G. Buzzard, the president of the Eastern Illinois State Teachers’ College, where the claimant was employed, and who was the immediate superior of the claimant, had notice of her accident the day following the same, as shown by the testimony and according to his report the claimant was paid for four weeks non-productive time, two at the full rate and two weeks at one-half the weekly rate, which payment constitutes a waiver of a demand for compensation within six months, but the claimant did, in addition thereto, make a demand within six months at the office of the Attorney General. The claim was filed within.a year, so no question of jurisdiction arises in this case.

Under the statute, Fifteen Dollars ($15.00) per week is the maximum amount of compensation that she can be allowed. The period of temporary total disability was twenty-three and one-half weeks. In the original complaint twenty-three weeks was averred, and in Claimant’s Statement, Brief and Argument it is claimed that twenty-four weeks was the amount of time. One Hundred and Ninety weeks (190) is the period of time during which compensation is paid for the total and permanent loss of use of a leg. The evidence shows that she has suffered a twenty-five per cent loss of the use of her left leg. On the basis of Fifteen Dollars ($15.00) per week, which is the maximum for an employee having the status of this claimant for one-fourth of one hundred and ninety weeks (190), or forty-seven and five-tenths (47.5/10), the compensation would amount to Seven Hundred Twelve Dollars and Fifty Cents ($712.50). The record also shows that “she may be better or she may be worse, but she will probably be better. ’ ’ This statement was made by her physician. The arbitrator did find a twenty-five per cent (25%) disability of the claimant’s left leg. As to the doctor and hospital bills, there seems to be no question but that claimant is entitled to One Thousand Fifty-four Dollars and Forty-five Cents ($1,054.45).

We, therefore, fix the amount of the award to be made as follows: Seventy-one (71) weeks compensation at Fifteen Dollars ($15.00) per week, to wit: One Thousand Sixty-five Dollars ($1,065.00) plus medical and hospital services, One Thousand Fifty-four Dollars and Forty-five Cents ($1,054.45) less Two Hundred Sixty-two Dollars and Fifty Cents ($262.50) heretofore paid, or a net award of One Thousand Eight Hundred Fifty-six Dollars and Ninety-five Cents ($1,856.95), all of which has accrued and is now payable.

This award being subject to the provisions of an Act entitled “An Act making-an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof” (Illinois Revised Statutes, 3939, Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an A% entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarer after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.