Brougham v. State of Illinois

Claimant filed his claim herein on May 9, 1933 representing that on March 3, 1933 while employed by the State of Illinois as a mason laborer under the Department of Public Welfare; that on that date while in the course of his employment he was riding on a construction elevator from the upper levels of a building then under construction at the State Prison at Joliet (Stateville); that the brake of such elevator failed to hold and the elevator dropped with a crash, resulting in "A fracture of the middle third of the Os Calcis and a fragment being detached from the Navicular bone of the ankle"; that a temporary disability resulted, from which claimant at the time he filed his claim expected to lose about four months work. An award in the sum of One-thousand Dollars, ($1000.00) was requested. A Transcript of the evidence taken in said matter has been filed and counsel for claimant and respondent have both waived the filing of Abstracts, Briefs and Arguments. They have also filed a Stipulation as to what the evidence indicates, but as it is the duty of the court to determine what the facts are as disclosed from the evidence, its decision is based thereon, rather than on the Stipulation. [*22]

From the testimony in the record it appears that claimant resided in Joliet, Illinois and was on the 3rd day of March, 1933, and intermittently prior to said time, employed by the Department of Public Welfare as a laborer. His wages were $6.00 per day for five and one-half days a week. On the day in question while employed in the construction of the new hospital at the Joliet Prison, and in the course of his duties, he went up to the third floor after some scaffolding on a construction elevator. One of the inmates was operating the engine-apparently the brake failed to work and the elevator hit the bottom with considerable force, throwing the claimant over backwards. According to his testimony he was carried to the hospital and a Prison Doctor, named Dr. Chmelik made an X-ray examination, then told claimant to go home and put ice on his injured right heel and ankle. Ten days later claimant went to Dr. Chmelik and asked about his fracture or dislocation, and the Doctor informed him there was none. Four weeks later he again called on the Doctor, who took a second X-ray and again told him "everything was all right." Two and one-half weeks later claimant, on advice of counsel, consulted Dr. Arthur Schreffler, at Joliet, Illinois.

The report of Dr. Schreffler appears in the record as "Exhibit A" and shows that, "He sustained a fracture of the middle third of the Os Calcis, with no displacement of the fragments." The Doctor, in that same report, dated April 18, 1933, further states "It will be another eight or ten weeks before he will be able to do much work."

After Dr. Schreffler had made the X-ray examination and the above report-Dr. Chmelik, under date of April 21, 1933, made a report of his X-ray examination of March 3, 1933, appearing in the record as "Exhibit B" in which he states: "There is a fracture of the Os Calcis in its middle third; there is also a fragment detached apparently from the Navicular bone. Both are in good condition. Healing is proceeding in accordance with the lapsed time. In my opinion Mr. Brougham will be disabled until about May 10, 1933."

Under date of January 29, 1934 Dr. Chmelik made a further report stating the nature of the injury to be "Fracture of the Os Calcis in its middle third, fragment detached apparently from the Navicular bone, both are in fair condition.

Right Knee: Evidence of Periostitis involving the shaft of the Femur eight inches above the joint. Posterior surface." [*23]

Dr. Chmelik further states in said report that ''There is a permanent disability''; that ''there is considerable atrophy of disuse of the small bones''; and that the case in his opinion was ''properly and adequately treated.'' The report is typewritten. Someone has also written in ink at a different time and with ink of a different color from the ink used in the signature the following ''75% of leg,'' referring doubtless to the per cent of disability.

The statement by Dr. Chmelik that the case was adequately treated is apparently denied by the claimant's testimony as above detailed. Neither does the evidence as a whole satisfactorily prove any partial permanent disability.

The claimant, according to the evidence, was unemployed because of said accident, from March 3, 1933 to July 17, 1933.

He has been re-employed in the same occupation and at the same wages from the latter date. The evidence shows that he still suffers some pain in his right leg, especially in going down stairs, and that ''his right leg is swollen, to a certain extent more than his left leg.'' Under general medical experience where there is no displacement of fragments in a break of the Os Calcis or Heel, and the latter is properly mobilized, the foot should heal with no permanent disability.

In this case Dr. Schreffler reported that there was no displacement as evidenced by his X-ray examination six weeks after the date of injury.

The record discloses that claimant, at the time of the injury, was the father of three children under the age of sixteen years. Under his wage scale of Thirty Three Dollars ($33.00) per week he would be entitled to a maximum of Eighteen Dollars ($18.00) per week by virtue of the three children under sixteen years of age, such compensation extending over a period of nineteen weeks, or a total of Three Hundred Forty Two Dollars ($342.00). From the record we believe the claimant was justified in availing himself of additional medical care, the cost thereof being stated by claimant to be One Hundred Dollars ($100.00). There is no sufficient showing in the record to justify an allowance for partial permanent disability. An award is therefore made to claimant for temporary total disability for nineteen weeks in the sum of Three Hundred Forty Two Dollars ($342.00); for additional expense incurred One Hundred Dollars ($100.00)- total award Four Hundred Forty Two Dollars, ($442.00). [*24]

OPINION ON REHEARING.

Mr. JUSTICE YANTIS delivered the opinion of the court: On February 13, 1935 an award of Three Hundred Fortytwo ($342.00) Dollars was allowed claimant for temporary total disability for nineteen (19) weeks on a maximum allowance of Eighteen ($18.00) Dollars per week, and an award for partial permanent disability was denied for lack of sufficient showing in the record to justify same. From the evidence appearing in the record, the court held that claimant was justified in availing himself of personally selected medical care, and a further award was allowed him therefor in the sum of One Hundred ($100.00) Dollars, making a total award of Four Hundred Forty-two ($442.00) Dollars. A petition for rehearing was filed February 27, 1935. On March 13, 1935 claimant's attorney appeared in person before the court to support orally his petition for rehearing. At that time he requested leave to file an additional medical report and an x-ray picture that had been made prior to the time of the original hearing but not introduced. Allowance was given to introduce these new exhibits, and thereupon the entire record, including the two additional exhibits, were carefully considered on the petition for rehearing. On April 9, 1935 the petition for rehearing was denied and the award of Four Hundred Forty-two ($442.00) Dollars was re-affirmed. Claimant's counsel thereafter contending that he understood he was to have been given an opportunity to take still further testimony, the court in order to remove any question of misunderstanding, vacated the order denying the petition for rehearing and thereupon granted claimant leave to take further evidence.

Such additional evidence was filed on May 16, 1935 and the entire record is now before the court for final consideration.

The court has carefully rechecked the record and finds that it did not in its original opinion, as contended by claimant in his petition for rehearing, disregard the stipulation of facts entered into by the parties, but did decline to be governed by the conclusions and suggestions which counsel drew from the facts in evidence; that court did not, contrary to the evidence, assume that the claimant suffered no displacement of fragments as a result of the fracture of the Oscalcis, but based its conclusion as to such fact from all the evidence in the record. Dr. Shreffler in a report dated April 18, 1933 cer[*25]titled to an examination of plaintiff, and therein stated as follows: "I find that he sustained a fracture of the middle third of the Oscaleis with no displacement of the fragments." Since filing his petition for rehearing, counsel for plaintiff has submitted another report by Dr. Shreffler of an examination of plaintiff made on July 28, 1934, and an examination of that report shows that Dr. Shreffler was, on July 28, 1934, still in accord with the report made by him on April 18th, for in answer to Question 5 as to the location, nature and extent of injury, he states "Fracture through mid-portion of right Oscaleis." In the Sixth (6th) clause of plaintiff's petition for rehearing counsel purports to quote the court as having said "In this case Dr. Shreffler reported that there was no displacement as evidenced by his X-ray examination six weeks after the injury." Counsel mis-states the opinion. The court therein said "After Dr. Shreffler made the X-ray examination and the above report-Dr. Chmelik, under date of April 21, 1933, made a report of his X-ray examination of March 3, 1933, appearing in the record as 'Exhibit B.'" This is a correct statement of the facts in the record and the petition for rehearing confuses the same. In plaintiff's testimony (Page 4) he stated, "He (Dr. Shreffler) gave me a complete examination." Exhibit A is Dr. Shreffler's report of that examination. The next day, April 19, 1933, Dr. Shreffler examined the X-rays. On April 21, 1933 Dr. Chmelik made a report of the examination made by himself on March 3, 1933, which appears in the record as "Exhibit B." The latter report is in direct conflict with what claimant testified Dr. Chmelik had repeatedly told him, to-wit: "That there was no fracture or dislocation." In the supplemental testimony of Dr.

Chmelik, filed May 16, 1935, he was asked "So far as the X-ray shows the heel bone is properly healed is it not?"

Answer-"yes." Question-"With reference to the Oscaleis -Where is this other bone that was fractured, the Navicular?" Answer-"It was above the Oscaleis (looks at X-ray.)

I just can't say. I am not familiar with it." Question"Was it fractured at the near junction to the heel bone?- Can you tell by looking at the X-ray?" Answer-"Don't know whether it's the nearest part to the heel bone or farther away."

The record as now found, including the supplemental evidence contains some proof of permanent lameness and par[*26]HARMON ET AL. v. STATE OF ILLINOIS. tial disability of claimant's foot, but the medical evidence taken at different times is so conflicting that the court does not consider itself justified in changing the conclusion heretofore reached. As above stated, an additional award of One Hundred ($100.00) Dollars was originally allowed for medical expense, based upon claimant's testimony that he had not received adequate medical attention from the doctors furnished by respondent and the record as it now stands does not appear to justify a reversal of that award.

The award heretofore allowed is hereby affirmed in favor of claimant in the sum of Four Hundred Forty-two ($442.00) Dollars.

This award being subject to the provisions of an Act entitled, "An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof," approved July 2d, 1935 (Sess. Laws of 1935, p. 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the General Revenue Fund in the name provided for in such Act. (1799 and 1806, consolidated-Claims denied.)

MARY HARMON, ADMINISTRATRIX OF THE ESTATE OF PATRICK T. HARMON, Deceased, No. 1799 and MARY HARMON, INDIVIDUALLY, No. 1806, Claimants, vs. STATE OF ILLINOIS, Respondent.

Opinion filed March 12, 1935.

Rehearing denied November 12, 1935.

ROY J. EGAN, for claimants.

OTTO KERNER, Attorney General; CARL DIETZ, Assistant Attorney General, for respondent.

PERSONAL INJURY, SUSTAINED ON PUBLIC HIGHWAY-WHEN STATE NOT LIABLE FOR. The State is not liable for personal injuries sustained on public highway alleged to have been caused by negligence of servants or agents of the State in failing to maintain highway in safe condition.

HIGHWAYS-MAINTENANCE OF, GOVERNMENTAL FUNCTION. The State exercises a governmental function in the construction and maintenance of public highways and is not liable for damages caused by either a defect in the construction or failure to maintain same in safe condition.

NEGLIGENCE-RESPONDENT SUPERIOR. The doctrine of respondent superior does not apply to a State in the exercise of purely governmental functions. [*27]

SAME-contributory negligence. If one by using their faculties with ordinary and reasonable care in looking out for danger could have avoided the injury, but negligently fails to do so and thereby contributed to their injury, then no recovery can be had.

Mr. JUSTICE LINSCOTT delivered the opinion of the court: Mary Harmon, as administratrix of the estate of Patrick T. Harmon, deceased, and also on behalf of herself individually, filed her declaration in this court on July 11, 1931 and July 16, 1931 respectively. Both cases grow out of the same state of facts and for that reason are consolidated.

It appears that on the 22nd day of July, 1930, she, together with her husband and Dr. E. Thomas Brand, were on their way from Crystal Lake, Illinois to the City of Chicago, Illinois where Patrick T. Harmon was engaged in business.

They were riding in a Packard automobile over a highway known as Northwest Highway, located in Main Township, County of Cook, over a concrete road built by the State of Illinois. The deceased, Patrick T. Harmon was driving.

Claimant alleges that it was the duty of the State of Illinois to keep this highway in such a state of repair that it would be safe to travel thereon but neglected its duty in this regard and negligently suffered the same to be and remain in an unsafe condition and as a direct and proximate result thereof and by means whereof, claimant's decedent who was driving the automobile, necessarily and unavoidably drove into holes in the highway which caused the automobile to turn over and capsize, and Patrick T. Harmon was so severely injured that in consequence thereof he died on the day he received the injuries, and damages in the sum of $10,- 000.00 is asked.

Substantially the same averments are made concerning the cause of the accident in the cause that Mary Harmon filed.

Mary Harmon testified that on the day in question her husband, Patrick T. Harmon, was driving the car, which was a new Packard, about thirty days old; that they had left their home that morning in Crystal Lake, Mr. Harmon driving, Mrs. Harmon sitting to his right and Dr. Brand was sitting in the rear of the car; that Mr. Harmon was driving about thirty-three or thirty-five miles an hour, and that she and Dr. Brand were talking casually. She testified that they seemed to strike a rut in the road; that it was a terrible jolt, [*28] and that is about the only thing she could remember as to what happened. This occurred near Desplaines. Mrs. Harmon was rendered unconscious and "came to at quite a distance from the car in sort of a prairie, and the ambulance was there." Both she and Mr. Harmon were placed upon stretchers and taken to the Desplaines Hospital in Desplaines, Illinois. Mr. Harmon died about three hours after that.

From the time of the accident until his death, Mr. Harmon was in sort of a semi-conscious condition. Mrs. Harmon testified that Mr. Harmon promoted athletics in connection with the Chicago Stadium Corporation, and Mrs. Harmon testified that he earned from $24,000.00 to $28,000.00 per year. He left an adopted son twenty-eight years old and a daughter, Patricia Harmon, three years of age. Mrs. Harmon did not remember of seeing any other traffic as they drove east on the fatal morning, and had not noticed any warning signs or red flags of any description. She received a very badly lacerated left hip and thigh, the flesh being torn almost to the bone over an area of eight or nine inches square, according to the testimony of Dr. E. Thomas Brand, who was her attending physician. He attended her from the day of the injury which was the 22nd day of July, 1930 up to the 8th or 9th of July, 1931. His bill for professional services is the sum of $1,183.00, no part of which has been paid. Mrs. Harmon also testified she incurred a bill for medicine in the sum of $83.40. She further testified that it was necessary for her to employ a nurse from the day of the injury until sometime in the following May when she tried to get along without a nurse for a week or two, but suffered a very nervous condition and called the nurse back after a few days time and kept her up until July, 1931, at a salary of $49.00 per week.

One Thousand Four Hundred Dollars has been paid on her salary, out of a total of $2,451.00. There was also a charge for nurse's board of $343.00. The total amount of her expenditures was $4,459.00. Mrs. Harmon was only in the hospital a day and a night. The hospital bill, though small, was not paid because she considered it too large.

Mrs. Harmon testified that she did not think her husband lost control of the car after striking the so-called bump.

It seemed that he just held on to the steering wheel and the car swerved first to the left and then to the right,-the car swerved back and forth and finally left the pavement. Mrs. [*29]

Harmon could not say whether the car travelled in this manner a city block or not, and she could not describe this socalled rut that the car struck which caused the accident. Mrs.

Harmon did not suffer any fractures or broken bones because of the accident. She was confined to her bed about thirty days as the result of the accident, and then was in a wheel chair for about thirty days, and after sixty days was unable to stand up longer than five or ten minutes at a time; after that she was able to walk about on crutches. It was about the first of October, 1930 before she was able to walk alone.

Edward J. Geiger, Sporting Editor of the Chicago American also testified that he was not an eye witness to the accident, but went to the scene of the accident after he heard of it and took photographs, which were offered in evidence, he being there within two hours after the accident. Claimant's Exhibit 1 is a picture of the concrete road in question. While it shows that the road is not absolutely level, there is nothing in the picture that would indicate any dangerous condition to the road and this is true of Exhibits 2 and 3.

Dr. Brand, who was also present, testified that he was sitting directly behind Harmon; that just before the accident happened, there was a very rough spot in the highway, and it threw the front wheel off to the right, down on the ground on the side of the road off of the concrete; that he, (meaning Harmon) immediately tried to adjust the car and when he did the car shot back over the pavement and over to the opposite side, and the last that Dr. Brand could remember was the car turning over the third time before he became unconscious. He also testified that he could not see the speedometer, but was of the opinion that the car was going about thirty-five miles per hour and there was no other traffic on the road. He testified that at the place where the accident happened, there was a depression in the road where a piece of the concrete was broken out: that it was about two and a half feet long and about two feet wide. The pictures, however, taken within a couple of hours after the accident show that this had been filled in with concrete, and it appears to be ordinary material used to repair concrete highways.

This court must be both judges of the law and the facts in causes of this kind, and nowhere in the record is there such a description of the concrete rut wherein we could say that by the greater weight of the evidence it appears that the [*30] road was in such a state of repair as to render it unsafe for an automobile to be driven over it at thirty-five miles per hour. The evidence contains no measurements that would throw any light upon the depth of the alleged rut, and from the circumstances surrounding the accident, we cannot convince ourselves that at the time of the accident and immediately prior thereto, the driver was free from contributory negligence. It appears from the testimony of Dr. Brand, that at least a part of the car got off on to the shoulder of the road and then shot across the road and turned over at least three times. Insofar as the record is concerned it was broad daylight and the road was dry and there was nothing to obscure vision, and we do not feel that the averment of the declaration, that the deceased was in the exercise of due care and caution, is borne out by the evidence, and giving this testimony the most favorable consideration to support the view of the claimant, we are unable to say that the deceased has been free from contributory negligence, which he must be before she could recover, and the claim on account of the death of Patrick J. Harmon will be dismissed.

We will now consider the claim of Mrs. Harmon who was riding with her husband.

It is the rule that the negligence of the owner and driver of a vehicle cannot be imputed to a person who is riding with him, in case of a collision between the vehicle and another, and we consider this rule as being the same in the case at bar.

Mrs. Harmon testified in substance that she was not paying attention to the road; that she was engaged in casual conversation with Dr. Brand. She did nothing. If she, by using her faculties with ordinary and reasonable care in looking out for danger, could have avoided the injury, but negligently failed to do so, and thereby contributed to her injury, then she cannot recover.

It is a fair inference from the evidence that the alleged hole in the road was 60 or 75 feet from the point where the deceased's car went off the road and into the field. This depression or hole in the pavement was on the right side of the road for traffic headed in the direction the deceased was traveling and it was about 100 feet diagonally from this depression southeast that the Harmon car left the road and went into the field to the point where it stopped. This ap[*31]pears from the testimony of Edward J. Geiger, and there is no direct testimony that the Harmon car struck this particular depression.

E. F. Aderman of the State Highway Department investigated on the following day. He found skid marks plainly visible, and made a sketch which is a part of the record, showing the location, direction and length of the skid marks, and the location of the rough pavement. According to his report this car turned over and rolled about eighty feet. There is no evidence of the car skidding sideways until it passed the ditch.

We have gone into the facts in this case at length. There are other reasons why there could not be a recovery in this case.

It is a well-established rule of law that the doctrine of respondent superior does not apply to a State in the exercise of purely governmental functions. The Supreme Court of the United States in the case of Seymour vs. VanSlyck, 8 Wend. 403; 422; United States vs. Kirkpatrick, 9 Wheat. 720, 723, laid down this rule: "The government itself is not responsible for the misfeasances, or wrongs or negligences, or omissions of the duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties and losses, which would be subversive to the public interests; and, indeed, laches are never imputable to the government."

This court said in Hinschsliff vs. State, 2 C. C. R. 159, decided in November, 1931: "It is * * * a well established rule in this and all other courts that the State is not liable for the negligence, torts, misfeasances or omissions of duty of its officers, agents or servants, for it does not guarantee the fidelity of the agents or officers it employs to carry on its governmental functions." and this rule has been applied and followed by this court in so many instances where claims have arisen as the result of alleged negligence of officers or servants of the State that a citation of cases is hardly necessary. In each instance such claims were denied for the reason that the State cannot be held liable for the negligent acts of its agents.

Without unduly extending this opinion, it is sufficient to say that enough has been set forth to show that there is no liability in this case, and both claims will, therefore, be denied. Cases dismissed. [*32]

OPINION ON REHEARING.

Per Curiam: After a careful consideration of the petition for a rehearing and the record in the above entitled cases, we find nothing therein that was not carefully considered and passed on by the court in the original opinion in these causes.

The decision heretofore rendered is found to be in accordance with the law and the facts and is hereby affirmed, and the petition for rehearing is denied.