text:
    (No. 4047
    Pauline Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 10, 1948.

      Petition of Claimant for Rehearing denied September 21, 1948.

    Lyourgus J. Conner, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. William L. Morgan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On December 23, 1946, the claimant, wMle visiting her daughter, who was a patient at Kankakee State Hospital, descended a stairway to the basement of a ward building known as No. 4 North to inspect her daughter’s clothing. She fell at the bottom of the stairs.

In her complaint, which was filed in this Court on November 6, 1947, claimant alleges that the negligence of the respondent in the maintenance of this stairway was the proximate cause of her fall and subsequent injury; that the stairway was poorly and insufficiently lighted; that the balustrade along the side of the stairway ended at the next to the last step; that the bottom step was not painted the same color as the other steps, but was painted the same color as the floor of the basement ; that because of this coloring, and because of poor and insufficient lighting, the last step of the stairway appeared to be a part of the basement floor.

Claimant further alleges that as a result of her fall she fractured her right ankle, causing a permanent injury, which has prevented her from following her usual occupation. as a housewife, and which has necessitated the expenditure of large sums of money for the assistance of others to perform her duties; that she has been permanently incapacitated; that she has suffered great physical pain and mental anguish, and will continue to do so in the future; and that she expended large sums of money for medical services. She seeks damages in the amount of $5,000.00.

The stairway upon which the accident occurred, leads from the first floor of the ward building to the basement. It is thirty-nine inches wide, and of wood construction except for the base step which is concrete. It is straight in its course; all steps conform to standard practice in construction, having a seven inch riser and an eleven inch tread. All walls and ceilings are painted in light colors. No claim is made that the stairway was not in good repair.

At the hearing before Commissioner East, the claimant, testifying on her own behalf, stated that she descended the stairs, preceded by a nurse, to inspect her daughter’s clothes; that she held onto the banister; and that “when I turned to loose myself, why I was in mid air.” She testified that the banister did not extend the full length of the stairs; that it stopped at the second step from the floor; that she thought she had reached the floor when she was on the last step; that the color of the bottom step was the same color as that of the floor; that the color of the other steps was different; and that the stairway was dimly lighted. She did not know whether an electric light was lighted or not. She stated that she had gone down the same stairway before, but she did not know how often; that the stairway was not as well lighted on the day of the accident as when she had gone down before.

Dr. George W. Morrow, testifying on behalf of the respondent, stated that the stairway was straight, consisting of fifteen steps leading from the first to the basement floor; that the steps were thirty-nine inches in width, constructed along standard lines, with an eleven inch tread and a seven inch riser; that the stairway was in excellent state of repair; that the first fourteen steps were constructed of wood, and the base step of cement; that the stairway is used by patients and employees, it being their only means of going from the first to the basement floor for meals and baths. Dr. Morrow further testified that a ceiling light, which is about a foot and a half from the center of the stairway, is always kept burning; that there is also light from the dining room shining through the lattice work which separates the stairway from the dining room. He also stated that the stairway was not poorly lighted; that the wooden steps were covered with dark blue linoleum; that the newel post on the bottom stair is about eight inches square and covers a large part of the end of the step; and that the balustrade ends in the newel post.

Ora Trego, testifying on behalf of the respondent, stated that she preceded the claimant down the stairway at the time of the accident; that the stairway was in a good condition of repair, and was well lighted; that the stairway was used by the patients and the employees of the institution; that it is a stairway leading to the door of the dining room, which is on the right; that from the stairway you can see into the dining room through lattice work; that the claimant sustained her fall about two o’clock in the afternoon; that the hall light was on at the time of the accident; that the wooden steps were painted a dark color; that the last step was painted a lighter color, probably a brownish red; and that the stairway was lighted by a 50 or 60 watt bulb.

The report of the Director of the Department of Public Welfare, which forms a part of the record in this case, and the report of the commissioner who carefully examined the stairway, fully substantiate the testimony of Dr. Morrow and Ora Trego.

It is clear from the record that claimant sustained a painful and serious injury as a result of her fall, but it is also clear that claimant has failed to prove any negligence on the part of the respondent. To recover, claimant was required to prove that the respondent permitted this stairway to be and remain in a dangerous and unsafe condition. The evidence is to the contrary. The stairway was in an excellent state of repair; it was well lighted, and equipped with an adequate handrail. The construction of the stairway, and of the handrail, ending as it did on the newel post on the bottom step, was standard, nsnal, and customary. Aside from claimant’s own statement, the record is uncontroverted that the stairway was well lighted. It was not a dark;' seldom used, poorly constructed basement stairway, but a well lighted, well constructed stairway, in constant use by patients and employees of the institution. The 'record is clear that the respondent exercised due care and caution in the maintenance of this stairway, having in mind the welfare and safety of patients, employees, and guests of the institution.

The claimant, having shown no failure upon the part of the respondent to exercise ordinary care in the maintenance of the stairway in question, can not recover. It is unnecessary for the Court, for the purposes of this decision, to determine whether claimant was upon the premises as a mere licensee or by invitation, express or implied. It is also unnecessary for the Court to determine whether or not claimant’s alleged incapacity is a result of the accident.

For the reasons stated, an award is denied.


source: Caselaw Access Project

author: Eckert, C. J.

license: Public Domain

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

      Opinion filed September 21, 1948.

    John W. Preihs, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

Claimant was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a supervisor at the Illinois Soldiers ’ and Sailors ’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell v. State, 11 C.C.R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses incurred from October 22, 1940 to January 1, 1942, in the amount of $1,129.82. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942, to December 31, 1942, in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943, to and including September 30, 1943, in the amount of $853.07. On April 17,1945, a further award was made to claimant for medical and nursing expenses incurred from October 1,1943, to and including February 28,1945, in the amount of $1,955.29. On September 12, 1946, a further award was made to claimant for medical and nursing expenses incurred from February 28, 1945 to and including April 1, 1946, in the amount of $1,646.12. On June 5, 1947 a further award was made to claimant for medical and nursing expenses incurred from April 1, 1946 to and including April 1, 1947, in the amount of $2,108.30. Claim is now made for an additional award of $2,207.80 for medical, hospital, and nursing expenses from April 1, 1947 to and including April 1, 1948.

Claimant remains totally paralyzed from the waist d.own, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over her urine and feces. From April 1,1947 to and including April 1, 1948, she has been required, to relieve her of her injury, and to prevent deformity and to stimulate circulation, and for relief of bedsores, to employ and receive medical services and nursing attention. She remains helpless, requiring the services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four times a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs and to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily and must be rendered in her home.

Claimant has therefore employed a physician on a monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for which she seeks reimbursement, in the total sum of $1,080.00. Claimant also seeks reimbursement, at the rate of seventy-five cents per day, in the total amount of $273.75 for board and room of attending nurses. Such expenditure obviates the employment of both a day and a night nurse. In addition, claimant has expended, for nursing* services, $711.25, and for drugs and supplies, $142.80. She has submitted to the Court, with her verified petition, the original receipts and vouchers showing payment of these respective items.

This Court has heretofore held that under Section 8, Paragraph (a) of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. (Penwell v. State, supra). There has been no change in claimant’s physical condition to justify the denial of an award at this time. The services claimed appear to have been reasonably required and the charges to be reasonable and just.

Award is, therefore, made to the claimant for medical and nursing expenses from April 1, 1947, to and including April 1, 1948, in the sum of $2,207.80, which has accrued and is payable forthwith. The Court reserves for future determination claimant’s need for further medical, surgical and hospital services.


text:
    (No. 4008
    Grace Gammon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    J. Kelly Smith, Attorney for Claimant.
    Hon. George P. Barrett, Attorney General, and Hon. C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On February 24, 1945 the claimant, Grace Gammon, an employee of the respondent in the Department of Public Welfare, while acting as an attendant at Manteno State Hospital, was struck by a patient, and fell against a bench. She was struck at the lower frontal part of the skull near the bridge of her nose; in falling her left breast struck the bench.

Following the injury, claimant went home and consulted a doctor, but she required no further medical attention or treatment until May, 1945. During the period of February 24, 1945 to May, 1945, although, because of pains in the head, she took sedatives, which she got without prescription, she remained on duty at the hospital, excepting for four days from February 24th to February 28th.

From May, 1945 to November 1945, claimant was treated! by Dr. Phipps for these pains, which were practically continuous. On November 25, 1945, at the request of Dr. Phipps, she was given a leave of absence to December 10, 1945 for rest. During that time she took chiropractic treatments.

Claimant returned to work on December 10,1945 and worked until February 4, 1946 when she was granted a further leave of absence until July 25, 1946. During this period her left breast was removed by surgery. When claimant returned to work on July 25th she worked only four days, and from July 29, 1946 until September 15, 1947, she was under the care of Dr. Otis Hudson. She again returned to work on September 15th.

No claim is made for medical or hospital services or for permanent disability, but claimant seeks an award for fifty-three weeks temporary total disability.

At the time of the accident claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; the accident arose out of and in the course of the employment.. During the year immediately preceding the injury, claimant’s annual earnings were $1,074.20. She had one child under sixteen years of age dependent .upon her for- support.

Claimant, however, has not complied with the provisions of the Act. The report of the Department of Public Welfare, which forms a part of the record, states that no report of claimant’s injury is on file in the Department, and Dr. Walter H. Baer, Superintendent of the Manteno State Hospital, finds no evidence of any report submitted on the injury. The physicians of the hospital have no record of treating claimant for this injury.

Furthermore, Mrs. Gammon’s complaint was filed on February 7, 1947, almost two years after the date of the alleged injury. Under the provisions of Section 24 of the Workmen’s Compensation Act, the right to file a claim for compensation is barred unless application for compensation is filed within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid. In her complaint, claimant states that she received no compensation payments. The report of the Department of Public Welfare is to like effect. It is obvious that her claim is barred by Section 24 of the Act. An award must therefore be denied.

The taking and transcribing of the testimony before Commissioner Jenkins was by Grace Moyers, of Mound City, Illinois, who has submitted a bill for her services in the amount of $54.00. The court finds these charges usual, fair, and customary, and an award is therefore made in favor of Grace Moyers in the amount of $54.00, payable forthwith.


author: Damron, J.

text:
    (No. 4054

    College Inn Food Products Company, an Illinois Corp., Claimant, vs State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Sonnenschein, Berkson, Lautmann, Levinson and Morse (Sherman P. Corwin, of Counsel), Attorneys for Claimant.
    Hon. George P. Barrett, Attorney General; William L. Morgan and C. Arthur Nebel, Assistant Attorneys General, for Respondent.
   Damron, J.

The College Inn Food Products Company, an Illinois corporation, filed its complaint on December 17, 1947, to recover an award of $729.16 being the pro rata share of a liquor manufacturer’s license fee for the unexpired portion of the license period ending June 30, 1947.

The complaint alleges that claimant is a wholly owned subsidiary of the Hotel Sherman, an Illinois corporation. Claimant applied for a license to manufacture alcoholic beverages for the license period from July 1, 1946 to June 30, 1947, and its check of $2,500.00 tendered in payment for said license payable to the order of the Illinois Liquor Control Commission was deposited with the State Treasurer. In due course a license was issued to claimant.

The record discloses that in each year from the enactment of the Illinois Liquor Control Act in 1934, until March 15, 1947, College Inn Food Products Company, applied for and was issued a license to manufacture alcoholic liquor by the Illinois Liquor Control Commission, and throughout this same period, Hotel Sherman, Inc., the parent corporation of the claimant, applied for and was issued retailer’s licenses by the Liquor Control Commission.

Subsequently to the issuance of the license to the claimant by the Liquor Control Commission the commission ruled that claimant should discontinue the manufacture and rectification of alcoholic beverages by March 15, 1947. This rule was based on Article VI, Section 5, of the Liquor Control Act, which incidentally has been a part of the law since the enactment of the Act in 1934. Throughout this entire twelve year period it was never suggested to claimant until shortly before March 15,1947 that the operation of the claimant might be contrary to law. Subsequent to the ruling of the Liquor Control Commission that this claimant should cease the manufacture of alcoholic liquor and to surrender its license, Sec. 3 (e) of Art. VI of the Illinois Liquor Control Act was amended, so as to specifically establish that the claimant, as a subsidiary of Hotel Sherman, Inc., a retailer, could not be issued a manufacturer’s license. This amendment became effective in July 1947. The record further discloses that pursuant to the ruling of the Illinois Liquor Control Commission, claimant discontinued the exercise of its license, so notified the commission, surrendered its license, ceased operation, and requested a refund for the pro rata portion of the $2,500 fee it had paid basing its claim on the unexpired portion of the license year, namely, from March 15 to June 30, 1947.

Respondent filed a motion to dismiss the complaint and both parties ; filed exhaustive written statements, briefs, and arguments in support of and in opposition to the motion to dismiss.

Respondent in its brief and argument contended (a) that the payment by claimant was voluntarily made with knowledge of the facts; (b) that the mistake, if any, was one of legal interpretation and (c) that claimant failed to come within any of the enumerated statutory categories which authorized refunds, such as death, insolvency, or bankruptcy.

In support of respondent’s motion to dismiss, it cited American Can Company v. Gill, 364 Ill. 254; Cooper Kanaley and Company v. Gill, 363 Ill. 418; Warren v. State, 14 C.C.R. 84; Chicago Cold Storage Warehouses Company v. State, 13 C.C.R. Ill.; Wright and Wagner Dairy Company v. State, 12 C.C.R. 149; and Orchard Theatre Company v. State, 11 C.C.R. 271.

Claimant contended that the licensee may recover the unexpired portion of the sum paid where it has been denied benefits of license by the same authority which granted it because of facts over which the licensee had no control. Claimant also distinguished the authorities cited by the respondent on the grounds- that in each of these cases the licensee had control over the circumstances which prevented the licensee from enjoying the benefits of the license and voluntarily relinquished the privilege granted by the license. Claimant further contended that specific statutory authority for a refund is required only in the event of a voluntary surrender of the licenses and in support of its position cited 53 C.J.S. “Licenses”, Sec. 57 b (1) Martel v. City of East St. Louis, 94 Ill. 67; People v. McBride, 234 Ill. 146, 84 N.E. 865; Lydick v. Korner, 15 Neb. 500, 20 N.W. 26; Scott v. Board of Trustees, 132 Ky. 616, 116 S.W. 788; Allsman v. Oklahoma City, 21 Okla. 142, 95 Pac. 468; Pearson v. City of Seattle, 14 Wash. 438, 44 Pac. 884; Sharp v. The City of Carthage, 48 Mo. App. 26; Charles Blum Co. v. Town of Hastings, 76 Fla. 7, 79 So. 442; Chamberlain v. City of Tecumseh, 43 Neb. 221, 61 N.W. 632; Roberts v. City of Boise, 23 Idaho 716, 132 Pac. 306; Olympia Brewing Co. v. State, 102 Wash. 494, 173 Pac. 430; Zeglin v. Board of Commissioners of Carver County, 72 Minn. 17, 74 N.W. 901; Hirn v. State of Ohio, 1 Ohio St. 15.

This Court after giving careful consideration to the respective briefs, arguments and the numerous authorities cited therein overruled respondent’s motion to dismiss.

The evidence in this, case was taken in Chicago on May 14, 1948, and substantially establishes the. facts, without dispute, as alleged in the complaint. A witness called on behalf of the respondent testified that a demand was made on the Illinois Liquor Control Commission for payment of refund for the unused portion of the license fee which had been issued to claimant. This witness testified the refund was not given to claimant for the reason the appropriation had elapsed out of which refund could have- been paid.

Where the privilege granted by the license has been revoked by the licensing authority because of some reason other than the fault of the applicant, the courts have consistently allowed the licensee a return of the unexpired portion of the license fee.

The applicable rule is stated in Corpus Juris Secundum (53 C.J.S. “Licenses”, Sec. 57 b (1)):

“The unearned portion of the money paid for a license may he recovered by the licensee, where the license has become inoperative by acts or circumstances over which he had no control and without his volition.”

After a careful consideration of the law applicable to this claim and the evidence submitted to us we hold that claimant is entitled to a refund for the unexpired portion of the license period.

An award is therefore hereby entered in favor of College Tun Food Products Company, Inc., in the sum of $729.16.


text:
    (No. 4063
    Elsie Caufield, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Paulson, Morgan & Jordan (Mr. W. Ben Morgan of Counsel), Attorneys for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. William J. Colohan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On January 20, 1947, Elsie Caufield, an employee of the respondent in the Department of Public Welfare, while working as an attendant at the Elgin State Hospital assisting patients from the dining room at Hirsh cottage, slipped and fell, breaking her right wrist. Immediately thereafter she was hospitalized and the wrist placed in a cast. On February 13, 1947 the cast was removed and the fracture was re-set. Claimant returned to work on April 1, 1947.

On July 14, 1947, while putting patients to bed at the same institution, claimant tripped on a mattress on the floor, fell and broke her left wrist. The wrist was placed in a cast and claimant returned to work on September 1, 1947.

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

Claimant, at the hearing before Commissioner Blumenthal, testifying on her own behalf, stated, in reference to her right wrist, that she cannot hold a paring knife, cannot peel anything, and finds it very difficult to sew or wash; that she has lost strength in her right wrist and hand, and has pains in her right upper arm; that she can not hold anything tightly in her right hand, and cannot close the fingers on her right hand.

Testifying in reference to her left wrist, claimant stated that she suffers pain in her wrist and arm if she pushes or carries anything; that she flexes her fingers with some difficulty, but can flex her fingers of her left hand better than her fingers of her right hand. She stated that she cannot grasp objects firmly with her left hand.

Dr. Lyman Wood Smith, testifying on behalf of claimant, stated that he first examined her in his office on July 14, 1947. The examination disclosed pain and disability of the left wrist. X-rays disclosed a fracture which was reduced under local anesthesia and a cast applied. The cast was changed eleven days later and the forearm and hand were held in an aluminum splint for another two weeks. A subsequent examination by Dr. Smith on December 16, 1947 revealed no limitation of motion in claimant’s left shoulder, left elbow, or in any of the finger joints, but disclosed a marked deformity of the left wrist with considerable shortening of the radius. The wrist was held at 32 degrees of radial deviation, being a deviation of 30 degrees from normal. This examination also showed a one-fourth inch atrophy of the left forearm as compared to the right. Extension of the wrist was 85 degrees but flexion was limited to 35 degrees and these was only 10 degrees of adduction. Dr. Smith also testified that there was tenderness to pressure over the anterior aspect of the radial carpal joint and the grasp of the hand was weak. X-rays taken on this latter examination showed a healed Oolles type of fracture with malunion and complete disruption of the distal radial ulnar joint, and an unhealed fracture on top of the ulnar styloid process. Dr. Smith, after the examination, con-eluded that claimant had suffered a 20% permanent partial! disability of the left wrist.

Dr. Smith also testified that on April 30, 1948 he examined claimant’s right wrist. He stated that the examination disclosed the right wrist to be held at 18 degrees of radial deviation; that motions of the right wrist were: .ulnar deviation 30 degrees; extension 40 degrees; flexion 40 degrees. There was also stiffness in the fingers which could be flexed to- within one inch of the palm. The loss of motion in the fingers was found to be primarily in the interphalangeal joints. Rotation of the forearm was complete and the grasp of the right hand was weak. Dr. Smith testified that X-rays revealed an ununited fracture of the tip of the ulnar styloid process and a complete loss of the normal forward tilt of the radius at the radial carpal joint. Dr. Smith stated that claimant had suffered a permanent partial disability in her right wrist of about five to ten per cent.

Dr. Charles K. Bush, Jr., testifying on behalf of respondent, stated that on January 20, 1947 he examined claimant and found a Colles fracture of the right wrist; that he took X-rays and thereafter applied a plastic cast. The X-rays showed multiple fractures of the distal end of the radius with several fracture lines extending into the wrist joint. There was impaction and slight angulation of the distal fragments. The styloid process showed a transverse fracture with slight separation. Dr. Bush stated that a later examination on February 11, 1947 showed more impaction of the fracture, and a radial displacement of the hand. A re-examination after reposition in the cast on February 24th showed the fragments in good alignment. Dr. Bush stated that in his opinion claimant had suffered a five to ten per cent permanent partial disability of her right hand.

Dr. Bush also testified that subsequent to claimant’s injury on July 14,1947, it was found that she had a Colies fracture of the left wrist; that from his examination of X-rays taken of claimant’s left wrist he found evidence of an old fracture of both bones of the forearm with a separation of the styloid process of the ulna and shortening of the radius, with angulation toward the radial side, and a deformity in which the carpal bones do not make good contact with the end of the ulna. In Dr. Bush’s opinion, claimant has suffered a twenty per cent permanent partial disability of the left wrist.

Claimant’s earnings for the year prior to January 20,1947 were $1479.25 and her earnings for the year prior to July 14, 1947 were $1543.55. Claimant had no children under sixteen years dependent upon her for support. During the period of January 20, 1947 to and including April 1, 1947, claimant received on account of temporary total disability the sum of $306.13. During the period of July 14, 1947, to and including September 1, 1947, claimant received on account of temporary total disability the sum of $240.00.

From the record, and from the report of Commissioner Blumenthal who examined both of claimant’s wrists, the court is of the opinion that claimant has suffered a 10% permanent partial loss of use of her right arm and a 20% permanent partial loss of use of her left arm. Claimant’s weekly compensation rate for the first accident injury is $17.06 and her weekly compensation rate for her second injury is $19.29.

Claimant was temporarily totally disabled for a period of ten weeks from January 20th, 1947 to April 1st, 1947, for which period she was entitled to total compensation in the amount of $170.60. She was paid during this period $306.13, or an over-payment of $135.53.

Claimant was temporarily totally disabled for a period of seven weeks from July 14, 1947 to September 1, 1947, for which period she was entitled to total compensation in the amount of $135.03. She was paid during this period $240.00, or an over-payment of $104.97.

Claimant is entitled to an award for 10% permanent partial loss of use of her right arm for a period of 22y2 weeks at $17.06 per week, or a total of $383.85, from which must be deducted the over-payment of $135.53, leaving a balance of $248.32.

Claimant is entitled to an award for 20% permanent partial loss of use of her left arm for a period of 45 weeks at $19.29 per week, or $868.05, from which must be deducted the over-payment of $104.97, leaving a balance of $763.08.

An award is therefore entered in favor of Elsie Canfield in the aggregate amount of $1,011.40, all of which has accrued and is payable forthwith.

The taking and transcribing of the testimony before Commissioner Blumenthal was by A. M. Rothbart who has submitted a bill for his services in the amount of $43.10. The court finds these charges usual, fair, and customary, and an award is therefore made in favor of A. M. Rothbart in the amount of $43.10, payable forthwith.

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


text:
    (No. 4064
    Alice Cogdill, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

      Ross E. Abmbruster, Attorney for Claimant.
    Hon. George P. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

This is a claim for permanent and total disability.

The record consists of a complaint, departmental report, transcript of evidence, commissioner’s report, claimant’s brief, statement and argument, and respondent’s brief, statement, and argument.

At the hearing the parties hereto entered into a stipulation that the above named claimant was injured on March 1, 1947, while on the institution grounds at the Alton State Hospital, while she was enroute from the nurses’ home where she resided on said grounds to the administration building where she had her office and that the accident arose out of and in the course of her employment where she had her office. It is further stipulated by and between the parties hereto that she earned $3,460.00 during the year immediately prior to her injury and that subsequent to her injury the respondent paid her $1,332.00 “for disability time”; that the respondent had notice of the accident in 30 days; that claim for compensation was made within six months of the injury and that the claimant had no children under the age of 16 years dependent upon her for support.

There is but one question therefore for this Court to determine, that is the nature and extent of her injury and whether or not said injury has caused her to be totally and permanently disabled as defined under the terms and provisions of the Workmen’s Compensation Act of this State. (Section 8, Par. f.)

The claimant testified at the hearing that she was 45. years of age at the time of the injury and was chief nurse at the Alton State Hospital; that she suffered an injury on. said date which involved the coccyx and the lower lumbar spine when she fell on the snow and ice on the grounds of the respondent. She further testified and the record shows that from the date of her injury to the taking of the testimony she had not returned to her employment.

Dr. H. B. McCarroll treated the claimant after her injury but did not testify; however, three letters from him were introduced in evidence being dated March 12, 1947,. May 13, 1947, and March 13, 1948. The letter of March 13, 1948 is as follows:

“This patient has sustained injury to her lower lumbar spine and this may well represent an early intervertebral disc lesion. Her findings are sufficient at present that the present plan of conservative treatment should tie continued indefinitely. I do not think she is able to return to work and whether or not this will be possible in the future, I am unable to state.”

The letter dated March 20, 1947 stated that claimant had pain in the region of the coccyx but that X-rays showed no evidence of fracture and in his letter dated May 15, 1947, he said that “there has been some improvement in these pains” and “that there was no tenderness of the lower lumbar spine, nor muscle spasms and she had good motion in that region. ’ ’

In order for this Court to make an award for permanent and total disability the claimant must show by a preponderance of evidence that she is “wholly and permanently incapable of work.” (Section 8, Par. (f) Workmen’s Compensation Act.) To be entitled to compensation for partial incapacity, claimant must show by a preponderance of evidence, the difference in what she did earn before the injury and the amount she is able to earn after the injury. (Section 8, Par. (d) Workmen’s Compensation Act.)

The medical testimony in this case does not show, as is required by the Act, that the claimant is either totally disabled or partially disabled. While it is true that claimant testified that she is unable to do any type of work and that she suffers pain, yet that is insufficient. Her testimony is to be construed as subjective and under Section 8, Par. (i-3) of the Act she must prove her right to an award by objective testimony and this she has failed to do.

We have repeatedly held and the Supreme Court of this State has held that liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation, or conjecture but must be based on a preponderance of the evidence, Sanitary Dist. vs. Ind. Comm., 343 Ill. 236; Mandel vs. State, 12 C.C.R. 29; Ruddy vs. State, 16 C.C.R. 57, on this record as we find it we are compelled to deny an award to the claimant.

Award denied.

Mrs. William Schmidt transcribed the testimony in the above entitled cause and has made a charge of Twenty-one ($21.00) Dollars for such services. We find that said amount is fair, reasonable, and customary for the services rendered by her.

An award is therefore hereby entered in favor of Mrs. William W. Schmidt, Godfrey, Illinois, in the sum of $21.00.


text:
    (No. 4071
    Mandel & Kaiser, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Harold T. Berg, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

The claimant, Mandel & Kaiser, a corporation, is engaged in the architectural business in the City of Chicago, Illinois. In its complaint filed on February 6, 1948, it alleges that during the year 1947 it received from the Division of Waterways, Department of Public Works and Buildings, of the State of Illinois, a copy of specifications for the building of an animated architectural scale model of the Ruby Street Bridge located in Joliet, Illinois ; that thereafter it submitted a proposal for the construction of such model to Arthur 0. Stauder, bridge engineer, employed in the Division of Waterways, Department of Public Works and Buildings of the State of Illinois; that such proposal was submitted prior to February 15, 1947 as required by the specifications.

Claimant further alleges that its proposal was accepted by W. A. Rosenfield, Director of the Department of Public Works and Buildings of the State of Illinois, on March 12, 1947; that upon acceptance of its proposal claimant obtained aerial photographs of the Ruby Street Bridge, and upon blowing up these photographs to scale, discovered that the specifications provided for a model size too small to make the necessary exhibits as required by the original specification order; that Arthur 0. Stauder, bridge engineer, examined this detail, concurred in the conclusions of the claimant, and ordered that the total size of the completed model, including approaches, be increased to eight by sixteen feet to fit the constructed model to the actual needs of the State.

The claimant further alleges that the increased cost of such modification was to be submitted in a composite statement after delivery and acceptance of the model; that claimant increased the model size as ordered, in the time required; that the model was accepted as satisfactory on July 31, 1947 by Arthur 0. Stauder, bridge engineer; and that said Arthur 0. Stauder was the. authorized agent of the respondent in all of these transactions. Claimant further alleges that the modification necessarily increased the cost of the completed model in the amount of $3,367.55; that after delivery of the model, claimant’s original estimate in the amount of $5,559.00 was paid to claimant by the respondent, but that its claim for the additional amount was refused.

The respondent has filed its motion to dismiss the complaint on the grounds that the claimant’s contract with the respondent was completed in accordance with its terms; that the material provisions of that contract can not be changed or waived by an administrative assistant without power to contract for the respondent; and that the alleged increase o fthe contract price is illegal and in contravention of the Illinois statutes because it is in excess of the funds provided by appropriation.

This Court has frequently held that the powers of a director of a department can not be exercised by an administrative employee of the department. Busekrus vs. State, 13 C.C.R. 59; Richardson vs. State, 14 C.C.R. 3. In the case of L. B. Strandberg and Son Co. vs. State, 13 C.C.R. 49, the Court stated:

“The court is of the opinion that the duties of C. M. Hathaway, the construction engineer, were purely administrative; that his attempt to waive the release provision of the contract was not an administrative act, but was an attempt to exercise the power of the Director of the Department to. contract on behalf of the State of Illinois. To conclude otherwise would enable an employee of a department to contract an indebtedness against the State wholly without authority.”

Nor could the bridge engineer in this case exercise the power of the director of the department to contract. on behalf of the State of Illinois. A contract entered into by the Director of Public Works and Buildings, in accordance with statute, can not be modified at will by an employee of the department. Where .public officers derive their powers from statute, all persons dealing with them are bound to take notice of the statutory limitations, and are bound to see that such officers are acting within the scope of their authority. L. B. Stranberg and Son Co. v. State, supra.

It is not necessary to consider the other contentions of the respondent, because the Court is of the opinion that the modification of the contract in question was without authority binding upon the respondent. The motion of the respondent is therefore granted. Case dismissed.


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    (No. 4073
    Anna Carrano, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Anthony M. Anzalone, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

This is a claim of Anna Carrano against the respondent, the State of Illinois, for personal injury sustained in a fall at the Illinois State Penitentiary at Statesville, on February 26, 1946.

• The complaint alleges that the claimant had obtained permission to and did visit her son on that day and while proceeding down a corridor in said institution, slipped and fell on a waxed floor, thereby sustaining-injuries to her head and right leg.

She files this claim for damages on the theory that the respondent was negligent in having the floor waxed, and highly polished, which by inference rendered it slippery, dangerous,' and unsafe. The complaint further alleges that because of said injuries, the claimant was unable to carry on her duties as a housewife and to render household services to her husband and family, and that she was compelled to expend great sums of money for medical attention due to said injury and is still receiving medical attention for said injury caused by the careless and negligent acts of the respondent through its agents and servants.

A case very similar to this one arose in Mack vs. Woman’s Club of Aurora, reported in 303 App., 217.

In that case the plaintiff filed suit against the club for personal injury sustained by her in a fall on the club room floor of defendant’s building, while she was attending a meeting in the club room, in the city of Aurora. She slipped and fell on a waxed floor, thereby sustaining-a broken hip.

She instituted a suit for damages, claiming that the defendant was negligent in having the floor waxed, which thus rendered it dangerous and unsafe. The ease was tried by a jury, which returned a verdict in favor of the plaintiff for $3,500.

In reversing the judgment, the Appellate Court held that the waxing of floors is a common practice, and too well known a custom to be considered négligence in the absence of evidence tending to prove some positive negligent act or omission on the part of the owner of the premises . . . under such circumstances, the Court held that she must be held to have assumed any risks involved in her walking upon the floor, which were within themselves an incident to such act. There appears to have been no hidden danger. The Court further held:

“We do not consider it was negligent per se for appellant to have the club room floor cleaned and waxed nor that such act served to charge appellant with the duty of anticipating that one in the exercise of ordinary care, would be exposed to danger when using the floor in a manner for which it was intended. Under the circumstances existing herein, we do not consider appellant’s keeping the floor cleaned and waxed to be a condition sufficient to warrant a finding that appellee’s fall was caused by its negligence.”

The respondent through its Attorney General has filed a motion to dismiss the complaint and inasmuch as this claimant has not alleged any facts constituting negligence on the part of the respondent, the motion must be allowed. The law as enunciated in the Mack case, supra, applies with full force to this claim and is controlling.

Complaint dismissed.-


author: Bergstrom, J.

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    (No. 4084
    Wenthe Brothers Co., a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Taylor & Schneiderjon, Attorneys for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant filed its claim on April 19, 1948 for payment of 26,820 pounds of coal delivered to respondent on December 4, 1946 and 71,200 pounds of coal delivered on December 20, 1946, to the Division of Highways at Effingham, Illinois.

The claim consists of the complaint, departmental report, stipulation, claimant’s waiver of brief, and statement, brief and argument of respondent.

The facts, as disclosed by the record, are that claimant submitted a bid to supply respondent an estimated 250 tons of coal at Effingham, Hlinois, at $6.75 per ton net, which bid was accepted by respondent on or about September 9, 1946. Pursuant to this contract claimant delivered 26,820 pounds of coal on December 4, 1946 and 71,200 pounds of coal on December 20, 1946, and at the time the aforementioned deliveries were made a strike of major proportions existed in the coal mining industry, and the mine from which claimant had agreed to supply the coal was closed because of said strike. Claimant, however, delivered coal to respondent from another mine, which was accepted, used and found to be of satisfactory specifications. Shortly after delivery invoices were submitted by claimant, but were returned as being incorrect, and corrected invoices were not received until after the appropriation out of which they could be paid had lapsed. However, at the time said appropriation lapsed, sufficient funds existed to pay claim of the claimant.

In addition to the contract price of $6.75 per ton, claimant contends it is entitled to certain extra charges, incurred by reason of making the deliveries from another mine because of the strike. It is the contention of respondent that claimant is entitled to the reasonable, cash market value of the coal supplied, not, however, to exceed the contract price; that claimant is entitled to receive the sum of $330.82 computed on the basis of $6.75 per ton for 98,200 pounds of coal delivered, instead of the amount of $366.00 claimed.

There is no strike clause in the contract excusing non-performance under such circumstances, and, in the absence of such a clause, we are of the opinion that it does not excuse the non-performance of said contract. It is a general rule of contracts that if a party desires not to be bound in the event of a happening of a contingency, it must so provide in the contract. This, the contract does not do. The manner of contracting for coal and the maximum price which the State may pay therefor is covered by statute, Ch. 127, Pars. 28 and 30, Illinois Revised Statutes 1947, and, under said statute, all contracts for coal are subject to the approval of the Governor, and the maximum price set for the purchase of Illinois coal is $7.00 per ton. ;

The record shows that the deliveries of the coal in question were made at the direction of the district engineer, but the record does not show, nor is it alleged, that a subsequent or modified contract was made covering the increased cost and transportation charges. The district engineer’s orders would have no force and effect, as he had no authority to vary the terms of a written contract entered into by Ms superiors. Under the circumstances, we are of the opinion that all claimant can recover for the coal delivered is at the rate of $6.75 per ton.

With reference to the remaining question of nonpayment because of lapsed appropriations, tMs Court has repeatedly held that where materials or supplies have been properly furmshed to the State, and a bill therefor has been submitted witMn a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, an award of the reasonable value of the supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay the same. Johnson v. State, 16 C.C.R. 96; The Texas Co. v. State, 16 C.C.R. 55; Standard Oil Co. v. State, 16 C.C.R. 85; Northwest Ignition & Radiator Service v. State, 16 C.C.R. 91; and Shell Oil Co. v. State, 16 C.C.R. 257. This case comes within the rule above set forth.

An award is therefore entered in favor of claimant, Wenthe Brothers Co., a corporation, for the sum of Three Hundred Thirty and 82/100 Dollars ($330.82).


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    (No. 4107
    Daniel L. Murphy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 21, 1948.

    Daniel L. Murphy, Pro Se.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

This claim was filed on July 21, 1948 for payment of part of the medical expenses incurred by claimant by reason of an accident which occurred on November 24, 1947.

The record consists of the Complaint, Departmental Report, Stipulation that Departmental Report shall constitute the record, Claimant’s Waiver of Brief and Respondent’s Waiver of Brief.

Departmental Report and statements attached thereto show that claimant was injured in an automobile accident on November 24, 1947, while driving from his headquarters in Peoria, on an assignment for the Illinois Public Aid Commission, to Vermilion County, Illinois. The highway was ice-covered, and an approaching car skidded across the road into the path of claimant’s car. He injured his left knee to such an extent that it was necessary for him to be hospitalized and under medical care for some time. He was paid full salary while under disability, covering the period from November 24, 1947 to March 1, 1948, and no claim is made for temporary total disability.

From the evidence, we find that the accident arose out of and in the course of claimant’s employment, and that the claim was made and complaint filed in apt time to satisfy the jurisdictional requirements, of the Workmen’s Compensation Act, and that the medical expenses incurred were authorized by the Illinois Public Aid Commission. Claimant paid Dr. Edward J. McNulty $4.77 for first aid treatment and $5.75 to Stensel’s Funeral Home for one pair of crutches and one cane. The invoice of St. Francis Hospital, Peoria, Illinois, amounted to $249.10, of which $134.00 was paid by the Illinois Mutual Casualty Company, leaving a balance of $115.10 unpaid; and the invoice of Dr. Hugh E. Cooper, Peoria, Illinois, amounted to $169.00, of which $30.00 was paid by the Illinois Mutual Casualty Company, leaving the unpaid balance $139.00; all of which amounts we find are reasonable' and fair.

An award is therefore made to claimant, Daniel L. Murphy, in the sum of $264.62; $115.10 of this sum for the use of St. Francis Hospital, Peoria, Illinois, and $139.00 of this sum for the use of Dr. Hugh E. Cooper, Peoria, Illinois; and direct' that this award shall be paid out of the funds of the Hlinois Public Aid Commission deposited with the State Treasurer, pursuant to the provisions of Par. 181 (a), Chap. 127, Illinois Revised Statutes.

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


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    (No. 3985
    David F. Malone, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    John F. Gibbons, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, David F. Malone, filed Ms claim for compensation under the Workmen’s Compensation Act for injuries sustained while employed by respondent by the Department of Public Works and Buildings in the Division of Highways.

On June 1, 1943 claimant was one of a group of men removing mud and dirt left on the highway as a result of previous heavy rains. He was using an endloader to clear a landslide from S.B.I. Route 100, about nine miles, north of Grafton. About 1:30 P.M. claimant drove the endloader to the edge of an embankment to dump a load of debris. As he stopped the machine preparatory to releasing the load, the machine began to tilt forward. Thinking it was going to tip over, he jumped and landed in the muck at the side of the pavement, suffering compound fractures of the left tibia .and fibula just above the ankle. The proximal ends of the bones protruded into the muck in which claimant had fallen.

There is no question of jurisdiction raised in the record and we find from the evidence that claimant was injured out of and during the course of his employment.

Claimant was rendered first aid by Dr. Julius Katz of Grafton, who suggested transfer to St. Joseph’s Hospital in Alton. Accordingly, an ambulance was called, and claimant was transported to Alton. While he was enroute, the injury was reported to the Springfield office of the Division of Highways, and orders were given to transfer claimant to Barnes Hospital, St. Louis, and place him in the care of Dr. J. Albert Key, Professor of Clinical Orthopedics, Washington University. That same evening, Dr. Key reduced the fracture and placed the leg in a cast with traction.

Claimant was under the care of Dr. Key from that time until January 16, 1948, on which date Dr. Key made his final examination. Various complications developed with respect to claimant’s injured ankle, and he was confined to the hospital and operated on at six different times. The last operation was performed on March 12, 1947. On January 20, 1948, Dr. J. Albert Key submitted his final report to the Division of Highways, as follows:

“I examined Mr. Malone again on 1-16-48. At this time Mr. Malone complained of pain in the middle of his foot and over the left ilium at the point where the graft was removed. He also complains of tenderness in both scars and states that his left foot and an,kle are stiff in the morning on getting up. On examination the wound over the ilium and the wounds in his leg are all healed. Movement in the ankle is almost normal in all directions. The tibia is firmly united and there is some tenderness on deep pressure over the lower scar over the crest of the ilium. X-rays show that a bone graft from the ilium has taken and has completely obliterated the cavity which was present just above the ankle joint. I do not think that Mr. Malone needs any further treatment.”

Mr. Malone was also examined by Dr. Oscar P. Hampton, Jr. on February 27, 1948, who made a physical and x-ray examination of claimant and reported as his conclusion, in his report under date, of March 1, 1948, as follows:

“The left leg measured three-fourths of an inch shorter than the right. There was a well healed linear scar about 4% inches long over the antero-medial surface of the upper portion of the leg. Palpation revealed a defect in the underlying bone and he complained of some tenderness on pressure over the lower end of this scar. Over the medial surface of the lower third of the leg there was a broad irregular scar attached to the underlying bone and projecting proximally from this scar was a well healed linear scar apparently that of an- operation. No edema was noted about the leg or ankle but there was some thickening of the soft tissues about the ankle. The left calf measured l¼ inches smaller in circumference than the right. There was power in all muscle groups of the left leg and foot and sensation was apparently normal.
The range of motion in the left ankle joint was limited to' about 50% of that on the opposite side. Dorsal flexion was limited at 90 degrees and plantar flexion at 115 degrees. Inversion of the foot was limited to about 50% of normal, but eversion appeared equal to that on the left. There was minimal restriction of motion in the toes of the left foot.
X-RAY EXAMINATION — X-ray films of the lower two-thirds of the bones of his left leg and of his left ankle joint were made in my office. These reveal an old united fracture of the distal portion of'the tibia and fibula. Union of the tibia has occurred with slight posterior angulation.
There is a narrow linear defect in the upper portion of the tibia apparently that created when the bone graft was removed.
CONCLUSIONS — His fracture of the tibia and fibula on the left have solidly united with three-fourths of an inch shortening of the leg, and with about 50% limitation of motion in the left ankle joint. He has a broad, irregular, attached scar over the inner portion of the lower third of the left leg which is of some clinical significance. This scar is susceptible to wounding by relatively minimal trauma. ' The defect in the upper tibia is of little, if any, clinical significance. Any pain or tenderness about the left wing of the ilium is not to be considered disabling. The present condition of his left leg is probably permanent except that there probably will be some rebuilding of the musculature.”

Claimant testified that Ms leg was painful and sore, swollen and cramps a lot; that it was difficult for him to walk or get around with ease,, and that he had about an 80% loss of the use of his leg. Commissioner Jenkins, from an observation of the injured leg, reported that it shows a depression, discoloration and apparent wasting of tissue and muscle above the left ankle bone on the inside of left leg, approximately one-third of the distance to calf of leg. It was his opinion that claimant suffers a 33-1/3% permanent partial loss of the use of his left leg, and from a review of all the evidence we think this is fair and reasonable, and we so find.

At the time of the injury claimant was married and had .one child under sixteen years of age dependent upon him for support. Bespondent paid the sum of $1791.48 for medical, hospital and other services covering treatment of claimant. He, earned a total of $1620.00 for the year immediately preceding his injury. His compensation rate, therefore, would be the maximum of $15.00, increased by 10%, or to $16.50 per week, the accident háving occurred on June 1, 1943. He was paid for his total temporary incapacity for the period of 64 weeks, or until August 22, 1944. The sum paid to him was $1211.21 for this purpose, which was an overpayment of $155.21. His compensation for 33-1/3% permanent partial loss óf the use of his left leg would be 63-1/3 weeks at $16.50 per week, or a total sum of $1045.00, from which must be deducted the overpayment of $155.21 paid to him for unproductive time, leaving a balance of $889.79.

An award is therefore allowed in favor of claimant, David F. Malone, in the amount of $889.79, all of which has accrued and is payable forthwith.

Edith Gamerdinger was employed to take and transcribe the testimony in this case and submitted her invoice in the sum of $6.50, which we find is fair, reasonable and customary. An award is also made in favor of Edith Gamerdinger in the sum of $6.50.

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


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    (No. 4044
    Ruth Spencer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Byron L. Connell, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

This is a suit brought by Ruth Spencer, the widow of Forrest Spencer, in her own behalf and on behalf of her minor children Ruth Beatrice Spencer and Charles Jason Spencer, against the State of Illinois under Section 7a of the Workmen’s Compensation Act. The decedent, Forrest Spencer, was employed by the respondent at the time of his death, and had been so employed for more than a year prior thereto, in the Department of Public Safety, Division of State Police, as a Highway Police Officer.

Shortly after three o’clock in the morning, on October 27, 1946, the decedent received a telephone call at his home reporting an automobile accident on S.B.I. Route No. 37 about %th of a mile north of the Village of Olmstead, in Pulaski County, Illinois. Together with Officer Chesley Warren, the decedent drove to the scene of the accident where he found two trucks parked in the lane for south bound traffic and a passenger car in the ditch on the west side of the highway. The officers parked the police car south of the scene of the accident on the west shoulder of the highway. Officer Warren began an investigation while Officer Spencer, carrying a lighted fuse and flash light, directed traffic from a position at the rear and north of the parked trucks. One of the victims of the accident came to him, stating that her lost purse had been found, and the decedent turned to his left to send word to discontinue - the search. As he turned, a car driven by Coy L. Slack of Brownfield, Illinois, approaching from the north, struck the decedent and crushed him between the car and the rear of the truck. Officer Spencer was killed instantly.

In her complaint, filed in this court on October 25, 1947, the claimant states that as administrator of the estate of Forrest Spencer, she granted a covenant not to sue Coy L. Slack, in consideration of the payment to her as such administrator of the sum of $5,000.00. She alleges that the Director of the Department of Public Safety consented in writing to this settlement, and waived on behalf of the respondent all rights against Coy L. Slack under the Workmen’s Compensation Act. She alleges that the $5,000.00 was received by her as administrator, and that she and each of the children received one-third thereof under the laws of descent.

Claimant further alleges that the State Employees’ Retirement System of the State of Illinois has failed and refused to pay any part of the pension due claimant as a death benefit, of one-half the monthly salary of the decedent, payable to her each month. Claimant requests an adjudication of her rights to such pension, together with a determination of the extent of the legal setoff: which respondent may claim to such pension.

At the hearing before Commissioner Jenkins, a purported release signed by the Director of the Department of Public Safety was offered by the claimant, and received in evidence. On cross-examination, claimant was asked whether or not she had received any sums of money on account of the death of her husband from any parties connected “either directly or indirectly with the cause of his death.” Over objection of counsel, claimant answered that she had received “from certain taverns under-the Dramshop Act” $10,500.00. There is no further evidence regarding the $5,000.00 payment to claimant as administrator, or the $10,500.00 payment made under the Dramshop Act.

At the time of the accident the employer and the employee were operating under the provisions of the Workmen’s Compensation Act of this State and notice of the accident and claim for compensation were made within the time required by Section 24 of the Act; the accident arose out of and in the course of decedent’s employment. During the year immediately preceding his death, decedent’s earnings totalled $2,556.00; any award payable to claimant under the Workmen’s Compensation Act would therefore be in the aggregate sum of $5,760.00.

Section 29 of the Workmen’s Compensation Act provides that if the death for which compensation is payable under the Act was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person not being bound by the act, legal proceedings may be taken against such other person to recover damages, and if an action is brought by a personal representative of a deceased employee, such judgment is obtained and paid, or settlement is made with such other person, either with or without suit,, from the amount received by such personal representative therio shall be paid to the employer the amount of compensation paid or to’ be paid by him to such personal representative.

It is obvious that the claimant in this case has received on account of the death of her husband moneys greatly in excess of compensation payable under the Workmen’s Compensation Act. The court specifically finds: that the amount payable to claimant,under the provisions of the Workmen’s Compensation Act of this State on account of the death of her husband is $5,760.00; that claimant has received, on account of the death of her husband, moneys in excess of that amount; that Section 29 of the Act therefore bars her recovery against the respondent.

Award denied.

Hugo Antonacci was employed to take and transcribe the evidence at the hearing before Commissioner Jenkins. Charges in the amount of $16.50 were incurred for these services,' which charges are fair, reasonable, and customary.

An award is entered in favor of Hugo Antonacci in the amount of $16.50 payable forthwith.


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    (No. 4067
    Eugene Rose, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Ben Morgan, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and William J. Colohan, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint filed January 24, 1948, by Eugene Rose, the above named claimant, seeks compensation for injuries sustained by him on September 8, 1947, by reason of an accident which arose out of and in the course of his employment as an attendant employed by the Department of Public Welfare at the Elgin State Hospital. The evidence was heard July 9, 1948 and transcript thereof filed on July 30, 1948.

It was stipulated that claimant was thirty-seven years of age and had no children under sixteen; that he earned $1,748.00 during the year preceding the accident and was temporarily and totally disabled for a period of three weeks during which time he was paid $108.50, for such period based on a monthly salary of $155.00.

No jurisdictional questions require consideration. The only issue presented is the extent of claimant’s disability, if any, as a result of the accident.

Claimant testified that on September 8, 1947, he and a fellow attendant, Ward Murrie, were supervising about fifty patients in the ward. While watching one of the patients in the bathroom another patient crept up behind the two attendants and stabbed them with a pair of barber scissors. Bose was stabbed in the neck. He bled profusely and was treated by Dr. Charles K. Bush, Jr., staff physician, of the Elgin State Hospital. He was hospitalized a week and returned to duty after three weeks. On June 5, 1948, he left the State’s employ to accept a more lucrative position with the Veterans’ Administration.

Claimant testified that previous to the accident he had no disability but since then he claims to experience pain mostly in his right hand. It is numb and tingles and the back of his forearm above the wrist causes him almost constant discomfort. He lacks strength in his hand and in certain areas he has no sensation and cannot distinguish a sharp instrument such as a pin applied to the arm above the wrist, to the back of the hand, or the inside of the wrist. He cannot judge the temperature of water unless it is extremely hot. There is no loss of function or motion in the arm. The condition has not improved since the accident.

Dr. Charles K. Bush, Jr., the treating physician, at the State hospital testified that on September 8, 1947, he examined claimant and found a puncture wound of the right posterior triangle of the neck about an inch long and 2% inches deep. At the time he surmised an involvement of the brachial plexus — the network of nerves that run from the spinal cord to the neck that supply the arm. He controlled the bleeding; inserted a drain, closed the wound with interrupted sutures and administered gas bacillus, tetanus antitoxin and penicillin. The report of Dr. Erich Liebert, clinical director, described claimant’s sensations of tingling, numbness, etc., and observed that obviously claimant had some vasomotor disturbance. Dr. Bush was of the opinion the point of the shears had penetrated the sensory nerve roots of the seventh cervical and first thoracic spinal nerves and unless sensation is restored he will have a permanent, partial disability confined to the sensory capacity of the arm but not involving the motor function. The impairment of a sense of pain or of heat or cold might in Dr. Bush’s opinion effect the work of certain persons requiring a delicate sense of feeling. In his opinion no further deterioration can be anticipated but inasmuch as it has not regenerated in this period there will be some permanent partial disability.

In addition to the above condition of the arm Commissioner Blumenthal, who heard the testimony and observed the claimant, described for the record that claimant had an irregular shaped scar, starting about 1% inches laterally on the right side of the neck from the mid line, descending for about 1% inches. The upper half of the scar was marked by a white discoloration and scar tissue.

Upon consideration of this record we find no compensation can be awarded claimant for the particular disfigurement noted in this record. It cannot be denied the scar as described on the back of claimant’s neck is visible and permanent. However, this Court held in Tyler v. State, 12 C.C.R. 101, that a disfigurement to be compensable under Sec. 8 (c) of the Workmen’s Compensation Act in addition to being permanent must also be serious. In that case we quoted with approval Sec. 272 Angerstein (1930 Ed.) to the effect that before a disfigurement can be considered serious it must be such as affects a man’s employment.

The Illinois Supreme Court in Superior Mining Co. v. Industrial Commission, 309 Ill. 339, takes a similar view of this question. In that case the Court said;

“The object of workmen’s compensation laws is to compensate for loss of earning power resulting from industrial accidents. While it is not necessary that there should be a showing of an actual loss of earning power before compensation can be made for a disfigurement, (Williams Co. v. Industrial Com., 303 Ill. 352,) the evidence ought to show that the disfigurement for which compensation is sought bears some relation to the capacity to earn and to secure profitable employment. Where a man has suffered serious injuries to his hands, head or face, it is often true that they aré of such a character as to place a man at a decided disadvantage when applying for work, and on that theory it is just and proper that provision should be made for compensation for such disfigurements. The Act does not provide compensation for every mark or scar nor for every disfigurement. A disfigurement is that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, mis-shapen or imperfect or deforms in some manner. Before compensation can be awarded under the Workmen’s Compensation Act there must be a disfigurement, and that disfigurement must be both permanent and serious.”

Claimant is now steadily employed and earning, as an attendant at the Veterans’ Administration, more than he was earning at the time of this accident. In view of his vocation, and the condition and location of this scar, it cannot be reasonably inferred or anticipated that the scar will ever affect claimant’s capacity to earn or obtain employment or that it has seriously disfigured claimant or caused him to appear unsightly or deformed.

It is very difficult on the basis of the evidence to adjudicate the percentage of permanent partial loss of use of claimant’s arm. Although the motor function of claimant’s, arm is not impaired there can be no question that he has lost some sensation in certain areas of his hand and arm. In addition he experiences the discomfort of unnatural numbness and “tingling” — under all the circumstances in our opinion a finding of 10% of permanent partial loss of use of the arm will accord claimant just and reasonable compensation for the injury sustained in this instance. Claimant’s weekly compensation rate is $19.50 and hence a 10% partial loss entitles him to an award of $438.75. Claimant was paid $108.50 during his period of temporary total disability. This is $50.00 in excess of the $58.50 compensation to which he was entitled for the three weeks in question. Deducting this excess from $438.75 entitles claimant to $388.75.

An award is therefore entered in favor of claimant Eugene Bose in the sum of Three Hundred Eighty-eight Dollars and Seventy-five Cents ($388.75), all of which has accrued.

A. M. Bothbart and Associates were employed to report the testimony at the hearings before Commissioner Blumenthal and charged the sum of Thirty-four Dollars and Eighty-five Cents for such services.

We find that the last mentioned amount is fair, reasonable, and customary for the services rendered.

An award is therefore entered in favor of A. M. Bothbart and Associates in the amount of $34.85 which is payable forthwith.

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


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    (No. 4069
    Ward Murrie, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Ben Morgan, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and William J. Colohan, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint by Ward Murrio filed January 30, 1948, for an award under the Workmen’s Compensation Act involves the same accident in the claim of Eugene Rose v. State, No. 4067, opinion delivered at the regular November term of this Court.

On September 8, 1947, while performing his duties as attendant at the Elgin State Hospital, this claimant was stabbed in the neck with a pair of scissors by the same insane patient who at the same time and place similarly attacked and wounded Murrie’s fellow attendant, Eugene Rose.

Claimant was stabbed in the left side of his neck necessitating hospitalization for one week. He was oft duty and totally disabled for two weeks during which time he received his regular pay of $79.33 at the rate of $170.00 per month. He never resumed employment with the State and prior to the hearing had been continuously employed by an electric company earning substantially more on a piece work basis than the wages he earned from the State.

The only claim asserted by claimant is for compensation because of alleged disfigurement evidenced by the scar resulting from the stabbing.

This scar as described in the transcript of the evidence by the commissioner is as follows: Crescent shaped scar about two inches long and % to % inch at its widest point commencing about the center of the left side of the neck at a point two inches below the ear lobe extending diagonally down towards the back of the neck, of light purplish discoloration, slightly raised, one edge of which exhibits scar tissue.

Dr. Charles K. Bush, Jr., stated the stabbing wound healed uneventfully and that the scar would remain in its present condition, neither better or worse.

This case is not distinguishable in any way from the Eugene Rose vs. State, No. 4067, and is governed by the identical reasoning and authorities cited in that opinion, Superior Mining Co. vs. Ind. Com., 309 Ill. 339; Tyler vs. State, 12 C.C.R. 101. The same considerations both factual and legal and the previous decisions which impelled us to hold in that case that the disfigurement was not so serious as to affect claimant’s gainful employment and therefore was not compensable under the pro-, visions of Section 8 (c) of the Workmen’s Compensation Act, necessarily lead to the same conclusion in the instant case. An award denied.

A. M. Rothbart and Associates were employed to report the testimony at the hearings before Commissioner Blumenthal and charged the sum of Twenty Dollars for such services. These charges are fair and reasonable. An award is entered in favor of A. M. Rothbart & Associates in the amount of $20.00 which is payable forthwith.


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    (No. 4074
    Calvin Pippin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Victor Lauridsen, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. Archie Bernstein, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On June 16, 1947, the claimant, Calvin Pippin, an employee of the respondent in the Department of Public Works and Buildings, Division of Highways, while operating a power mower on S.B.I. Route 49,"in the City of Kankakee, Illinois, struck an obstruction which caused the safety catch to release and the cutter bar to swing back 'toward the tractor. Claimant got off the tractor, disengaged the cutter bar and swung it back to mowing position. While swinging the cutter bar forward, the sickle bar moved and severed his right index finger at the second joint.

Immediately afterward claimant was taken to St. Mary’s Hospital, Kankakee, Illinois, where Dr. Charles Allison performed an amputation just below the middle joint.

During the first four weeks of disability, claimant was paid his full salary in the amount of $137.74. Thereafter he was paid compensation in the amount of $15.43. Respondent has paid for all medical and hospital services.

At the time of the accident claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of the employment. Claimant’s earnings during the year immediately preceding his injury totalled $1800.00. He had no children under sixteen years of age dependent upon him for support. Claimant seeks an award for the specific loss of the first finger of his right hand.

Claimant was temporarily totally disabled for a period of 4 and 5/7 weeks. Since his annual earnings were $1800.00, his compensation rate is the maximum of $15.00. The injury having been subsequent to July 1, 1945 this must be increased 20%, making his compensation rate $18.00 per week. Claimant was, therefore entitled, on account of his temporary total disability, to the sum of $84.85. Since he received $153.17, the excess of $68.32 must be deducted from the award in this case.

Claimant having suffered the loss of more than one phalange of the first finger of his right hand, he is entitled to an award for the permanent and complete loss of' the use of this finger, or 50% of his average weekly wage for forty weeks. This aggregates the sum of $720.00, from which must be deducted the overpayment of $68.32 leaving a balance of $651.68.

Frances Regnier, of Kankakee, Illinois, was employed to take and transcribe the evidence at the hearing before Commissioner Young. Charges in the amount of $15.75 were incurred for these services, which charges are fair, reasonable and customary.

An award is, therefore, entered in favor of Frances Regnier in the amount of $15.75, and an award is entered in favor of Calvin Pippin! in the amount of $651.68, all of which has accrued and is payable forthwith.

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


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    (No. 4075
    The Texas Co., a Delaware corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Paul F. Schlicher, Attorney for Claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

During the period from January 27, 1947, to June 30, 1947, the Department of Public Works and Building's of the State of Illinois, Division of Highways, purchased and received under purchase order No. E-36337 various amounts of gasoline, motor oils, transmission, gear, and grease lubricants from the claimant, the Texas Company, a Delaware corporation. A total of forty-four invoices were presented to the various departments and divisions who purchased the' various items, which amounted to $118.73.

It is stipulated by and between the parties hereto that the report of the Department of Public Works and Buildings, Division of Highways, dated April 30, 1948 shall constitute the record in this case.

The report admits that the allegations of the complaint are correct; that the gasoline, motor oil, transmission, gear, and grease lubricants were purchased by and for the various divisions mentioned in said report; that the merchandise was received by the various departments and that all purchases shown in claimant’s bill of particulars were made and delivered but not invoiced ; that the gross value of the purchases is as represented by claimant; that verification has been made that the purchases were by various employees of departments and divisions; that the materials were for and used in the State owned equipment and that the quantities and prices were correct and otherwise in conformity with the purchase order and contract; that the appropriations were in existence and unexpended balance remained in them through. September 30, 1947, for the payments of claimant’s invoices if they had been presented for payment before the last mentioned date at which time the appropriation lapsed.

We find from this record that claimant has furnished supplies for the respondent, the purchase of which was properly and duly authorized; claimant submitted its invoices to the respondent within a reasonable time and has not received payment; such non-payment is due to no fault on the part of the claimant; when the charges were incurred there remained a sufficient unexpected balance in the appropriation from which payment could have been made. Claimant is, therefore, entitled to an award.

The National Refining Co., A Corporation, vs. State of Illinois, 14 C.C.R. 127.

An award is' therefore entered in favor of the claimant in the sum of One Hundred Eighteen Dollars and Seventy-three Cents ($118.73).


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    (No. 4080
    Sarah S. Knox, widow of Harry Knox, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Michael C. Artery, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and Hon. William J. Colohan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

The decedent, Harry Knox, was employed by the respondent in the Department of Public Works and Buildings, Division of Highways, at the time of his death, and had been SO' employed since May 22, 1947. On the evening of August 24, 1947, after assisting in clearing U. S. Highway 20 and 12 near Oak Lawn, Illinois, of glass and debris caused by a previous accident, and while loading his tools into the maintenance truck, the decedent was struck by an automobile. He was immediately taken to the Little Company of Mary’s Hospital at Evergreen Park, Illinois, where he remained until his death on December 23, 1947.

At the time of the accident resulting in the death of Harry Knox, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of decedent’s employment. The claimant, Sarah S. Knox, as widow of Harry Knox, seeks an award in the sum of $5200.00 and medical expenses occasioned by the death of her husband.

The respondent has paid hospital and medical charg-es totalling $1,984.86. There remain unpaid, for medical services furnished to decedent, the following-accounts:

Dr. Clifford P. Sullivan......................$ 25.00
Dr. Chester R. Zeiss......................... 540.00
Dr. Donald G-. Sullivan...................... 2,670.00

Dr. Donald Gr. Sullivan testified on his own behalf in considerable detail. He stated that he first saw the decedent in the emergency room at the hospital on August 25, 1947; that the patient was in a state of extremis; that he had a compound fracture of the left elbow, a severe cerebral concussion with cortical deterioration, a fractured pelvis, an extensive, comminuted fracture of the left tibia, a separation of the sacroiliac joint, fractures of the 5th right lumbar transverse vertebra and right ankle, multiple contusions and abrasions, and internal injuries, and that he was in a state of severe shock. Dr. Sullivan rendered five continuous hours of emergency treatment and first aid, including infusions of plasma, fluids and stimulants for which he charged $300.00.

Dr. Sullivan subsequently administered, or personally supervised, thirteen blood and plasma transfusions, for which he charged $325.00. He also gave, or supervised, sixty intravenous nutritional and saline infusions, for which he charged $900.00.

Dr. Sullivan further testified that he and Dr. Zeiss operated on the decedent’s elbow, an operation which was attended with great risk because of patient’s critical condition. For this operation he charged $150.00. On eleven occasions Dr. Sullivan cut away and cleansed pressure sores and decubitus ulcers, for which he charged $165.00. For three insertions of retention catheters he charged $45.00.

Dr. Sullivan also applied a Thomas splint to support decedent’s leg with traction blocks, applied a Burdick constrictor to the right leg to increase the arterial supply, and oi$ two occasions applied splints. For these services he charged $150.00.

Dr. Sullivan’s charges also include $50.00 for time spent in examining X-rays; $25.00 for preparation of reports requested by respondent, and 140 hospital visits, for which he charged $560.00.

On cross-examination, Dr. Sullivan stated that he made separate charge for the four plasma and blood transfusions and one saline infusion administered during the first aid treatment, which charges were in addition to the $60.00 per hour he charged for that five hour period of service. Many of the intravenous infusions for which he made separate charge were given during the one hundred and forty hospital visits, but he stated that such visits were charged on the basis of physical examinations and minor dressings. The hospital Roentgenologist made X-ray reports, but the doctor said he deemed it advisable to look personally at the film rather than to accept the reports.

There is no question that Dr. Sullivan was required to give extensive and almost constant treatment and attention to a patient in an extremely critical condition. No question can be raised as to his professional ability or devotion. Nevertheless, Dr. Sullivan’s testimony that $2,670.00 is a fair and reasonable overall charge for the services he performed,. carefully and impartially considered, and detailed as it is, is not persuasive. He denies there is any duplication of charges for various treatments, but the cross-examination is not entirely convincing. The court is of the opinion that $1,750.00 is a fair and reasonable compensation for the services which Dr. Sullivan performed.

The charge of Dr. Chester R. Zeiss in the .amount .of $540.00, including $200.00 for surgical reduction of the pubic separation; $150.00. for surgical reduction of the fracture of the left humerus; $100.00 for amputation of the leg, and $90.00 for thirty postoperative hospital visits. The court is of the opinion- that, these are fair and reasonable charges.

Likewise the charges of Dr. Clifford P. .Sullivan in the amount of $25.00 appears entirely reasonable and fair.

At the time of his injury, decedent’s wages were 90c per hour. Eight hours constituted a normal working day. Employees in the same classification as: claimant worked less than 200 days a year. He had no children under sixteen years of age dependent upon him for support. For compensation purposes, claimant’s earnings must be computed on the basis of $1440.00 per year, or $27.70 per week, making a compensation rate of $13.85. Since the injury occurred subsequent to July 1, 1947, this must be increased 30%, making a compensation rate of $18.00 per week.

Under the provisions of the Workmen’s Compensation Act, claimant is entitled to an award in the total sum of $5200.00. The decedent, however, prior to his death,' received the sum of $311.13 on account of temporary total disability. This must be deducted from the award to his widow.

A. M. Rothbart, Reporter, was employed to take and transcribe the evidence at the hearing before Commissioner Blumenthal. Charges in the amount of $74.95 were incurred for these services, which charges are .fair, reasonable and customary.

An award is therefore made to claimant as follows:

$74.95 is payable forthwith for the use of A. M. Rothbart, Reporter.
$1,750.00 is payable forthwith for the use of Dr. Donald G. Sullivan.
$540.00 is payable forthwith for the use of Dr. Chester R. Zeiss.
$25.00 is payable forthwith for the use of Dr. Clifford P. Sullivan.
$5,200.00 less $311.13, or $4,888.87 is payable to claimant as follows: $828.00, which has accrued, is payable forthwith. The balance of $4,060.87 is payable in weekly installments of $18.00 per week, beginning on the 9th day of November, 1948, for a period of 225 weeks with an additional final payment of $10.87.

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

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


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    (No. 4082
    Vern A. Landis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Charles G. Seidel, Attorney for Claimant.
    Hon. George F. Barrett, Attorney General, and William J. Colohan, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Yern A. Landis, filed his claim on April 13, 1948 for compensation under the Workmen’s Compensation Act for injuries he sustained on April 14, 1947 during the course of his employment as a tinner by the Department of Public Welfare, at the Elgin State Hospital.

No jurisdictional questions are presented by the record, and it is admitted by stipulation, that claimant sustained an injury by reason of an accident which arose out of and in the course of his employment on April 14, 1947.

From the evidence, it appears that claimant was removing from an outside, overhead sign at the laundry building, and while engaged in this task the step of a ladder on which he was standing gave way and he fell down, striking the pavement. He was given immediate attention by Dr. Charles K. Bush, Jr. at the general hospital and was removed later the same day to the Sherman Hospital at Elgin. He was hospitalized until May 13th. His leg was placed in traction and he remained at home using crutches and later a cane. He returned to work June 7th. Prior to the accident he was in perfect health, but since then he feels as though he is walking with a, pebble in his shoe; his ankle bothers him, and he has more or less constant dull pain. His leg swells if he makes a misstep. Occasionally he has an acute pain. He cannot run, raise up, climb as well as lie did before, or hold his weight on the foot.

Dr. Charles K. Bush, Jr., physician at the Elgin State Hospital, treated claimant on the day of the accident. X-ray revealed a fracture of the heel bone of the right foot with considerable impaction and flattening of the Boehler angle. Dr. Paul Tobin, the orthopedic consultant, recommended that claimant be taken to a private hospital where he could receive the benefit of orthopedic care and traction. Dr. Bush, on the basis of an examination on the day of the hearing, testified there was an increase in the width of the heel and limitation in eversion and inversion. Later X-rays all show complete healing, but the fragments of the foot are out of proper alignment. Pain on walking- or climbing is to be expected and also limitation of motion. The disability is probably permanent. In his opinion, claimant would not have the ability he previously had in climbing- ladders and involving the use of his foot will probably tire it out quicker than normal.

From the evidence, and personal observation of claimant, Commissioner Blumenthal recommended an award based on 33-1/3% permanent partial loss of the use of claimant’s rig-ht foot. The Court concurs in this recommendation.

Claimant was forty-nine years old and had no children under sixteen years of age. Medical and hospital expenses aggregating $542.00 were paid by respondent. His earnings for the year preceding his accident were on the basis of $304.50 per month. His compensation rate therefore, would be $15.00 per week, increased by 20%, or to $18.00 per week, the accident having occurred after July 1, 1945 and before July 1, 1947.

The period of claimant’s temporary total incapacity was from April 14th to June 7th, 1947, and he was entitled to receive compensation from April 15th to June 7th, 1947, a period of seven weeks and four days, at the rate of $18.00 per week, or a sum of $136.29. For this period he was paid the sum of $373.45 for unproductive time, which represents an overpayment of $237.16.

Claimant is entitled to an award based on 33-1/3% permanent partial loss of the use of his right foot, which would be computed on the basis of 45 weeks,, at $18.00 per week, or $810.00, from which must be deducted the overpayment of $237.16.

Claimant, Vem A. Landis, is, therefore, awarded $572.84, all of which has accrued and is payable forthwith.

A. M. Eothbart, Court Reporter, 120 South LaSalle Street, Chicago, Illinois, took and transcribed the testimony in this case, and the invoice which he submitted for this work of $36.50 we find to be fair, reasonable and customary. An award is also made to A. M. Eothbart in the sum of $36.50.

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


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    (No. 4085
    Sophia Tieman, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1948.

    Charles E. Binkert, Attorney for Claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Sophia Tieman filed her complaint in this cause as the executor of the last will and testament of Leon W. Tieman, deceased.

It is alleged that at the time of his death on December 3, 1947, and prior thereto, Dr. Tieman was employed as a resident dentist at the Illinois Soldiers ’ and Sailors ’ Home, Quincy, Illinois. It is further alleged that at the time of his death Dr. Tieman had earned and was entitled to twelve days vacation pay at the rate of $365.00 per month, less maintenance, or the sum of $121.94.

The claimant further states that she presented her claim, as executor, to'the superintendent of the Illinois Soldiers’ and Sailors’ Home, but that her claim was denied. She further says that, as the executor of the estate of Leon W. Tieman, she is entitled to the aforesaid sum of $121.94 for services rendered by the said Leon W. Tieman.

This now comes before the Court on a motion to dismiss- of respondent, by the Attorney General.

Claimant undoubtedly bases her claim on Paragraph 22, Chapter 127, of the Illinois Revised Statutes, 1947, which says: “Each employee in the several departments shall be entitled during each calendar year to fourteen days, leave of absence with full pay. * * * *

We assume from the record, that the decedent, Dr. Tieman, was paid in full for all his service rendered up to, and prior to, his death, and received his pay warrants for such services. This Court has repeatedly held that where warrants are drawn and cashed for personal services rendered to the State of Illinois, the same constitutes full payment for all services rendered between the dates specified, and no additional payments for such services can be made. Mills v. State, 9 C.C.R. 69; Gholson v. State, 12 C.C.R. 26; Klapman v. State, 13 C.C.R. 139; Angsten v. State, 13 C.C.R. 8; Hollender v. State, 14 C.C.R. 40; Willms v. State, 14 C.C.R. 46; Shields, et al. v. State, 14 C.C.R. 136. In so holding, we have followed the clear intent of Article IV, Section 19, of the Constitution of Illinois, 1870, which reads:

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

Paragraph 145, Subsection 3, of Chapter 127 of the Illinois Revised Statutes 1947, reads:

“(3) Amounts paid from appropriations for personal services of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates 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 on specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

The theory behind claimant’s claim, apparently, is that decedent had rendered services to the State and was entitled to this vacation and, not having taken it, should be compensated instead. To this we cannot agree. If he was paid in full for the time he was employed and then paid again for part of this time, it would be in the nature of additional salary or wages expressly prohibited by the Constitution and by Subsection 3, Paragraph 145, supra.

The Civil Administrative Code, in providing for annual leave, does not make it mandatory that such leave shall be taken, but merely provides a right which an employee may exercise or not at his discretion. This right or privilege is extinguished when his employment ceases by death or otherwise. Similar claims were denied by this Court in the case of Lewis v. State, 10 C.C.R. 136; Tripp v. State, 10 C.C.R. 137; and Emling v. State, 10 C.C.R. 196, where the Court said, on page 198:

“Conceding for the moment, that the commission had authority to give vacations with pay, under authority of the foregoing statute and rule, claimant would still not be entitled to double pay for any portion of time for which she was actually in service, or entitled to any additional pay after her services to the State were terminated, even though she had failed to obtain a vacation which she might have requested.”

For the reasons stated, the motion of the Attorney General to dismiss, is granted, and the claim is hereby •dismissed.