Standard Oil Company (indiana) v. State of Illinois

The claimant is a foreign corporation duly authorized to engage in business in the State of Illinois. An award in the amount of $18.11 is sought for goods sold and delivered to the respondent by the claimant.

The record consists of the complaint, the report of the Division of Highways and the waiver of statement, brief and argument by both claimant and respondent.

The record discloses that the claimant through its agents furnished the respondent with the following items: On April 12, 1943, 16 gallons gasoline priced at $2.98, on May 27, 1943, 20 gallons gasoline priced at , $3.50, on May 22, 1943, 15 gallons gasoline priced at $2.62, bn May 27, 1943, 35 gallons of Perfection Oil priced at $4.39, on May 17, 1943, 10 gaJlons gasoline and one quast-of Polarine Oil priced at $2.00, and on May 13, 1943, 15 gallons gasoline priced at $2.62. The total 'charge for the above items is $18.11.

[*810] The report of the Division of Highways acknowledged receipt of the supplies, that they were used in the equipment designated in the exhibits, that the quantities were correct and that the amounts charged were as previously agreed between the Division and the claimant's dealers. The report further shows that the item of 16 gallons of gasoline delivered on April 12, 1943, for which the charge of $2.98 was made was paid by the Division of Police on June 15, 1943. The payment of this item has been acknowledged by the claimant which . leaves the amount of $15.13 unpaid.

It further appears from the record that an appropriation existed from which the above items were payable, but that payment was not made because the appropriation lapsed before the bills were approved and vouchered. It has been repeatedly held by this court that an award may be made for supplies furnished the State when an unexpended appropriation therefor has lapsed preventing payment; and when the bills have been presented within a reasonable time.

An award is, therefore, made to the claimant in the amount of $15.13. .

- (Nos. 3847, 3848 and 3849 Consolidated-Claimant Marie McAsey awarded $5,306.00.)

MACIE MCASEP, ADMINISTI~ATRIXO F THE ESTATE O F EDWAnD J. MCRSEY,DECEASED, CARL F. J ESSE ANI) JAMES n. CARPENTER, . Claimants, z's. STATE OF Immors, Respondent.

Opinion filed Jicne 12, 1945.

PENCE B. ORR, for claimant.

GEORGE F. BARRETT, attorney General; I~ILLIAM L. AIORGAN AND C . ARTHUR NEBEL,Assistant Attorneys General, for respondent.

[*211] WORKMEN’S C O M P E N S A T I O N ACT-GuardS at IlliTlOzS State Pen’lteTk tiary within provzsions of-hen award may he made. Where it appears that claimant was in good health prior to the accident and that he sustained severe injuries while attempting to prevent a prison break, while in the performance of his duties as a guard at the Illinois State Penitentiary, and the medical testimony discloses that the injuries received did cause or at any rate aggravate the condition from which he subsequently died, his death was the result of injuries sustained during the course and within the scope of his employment and an award may be made therefor in accordance with the provisions of the Workmen’s Compensation Act.

SAME-degree and extent of znjul-ies. In order to be entitled to an award, it is encumbent upon claimants to establish by competent evidence the exact extent and degree of the injuries complained of and for which compensation is sought.

FISHER, 5.

Edward J. McAsey, Carl F. Jesse and James R. Carpenter were injured in the course and within the scope of their employment as Guards at the Illinois State Penitentiary, Joliet Branch, on May 4, 1943. Claims were separately fiIed on May 1, 1944, and, for the purpose of hearing and determination were, by stipulation, consolidated.

Claimant, Edward J. McAsey, died intestate on December 26, 1944, and, by order of this Court, Marie McAsey, Administratrix of the Estate. of Edward J. McAsey, Deceased, was substituted as claimant.

On the morning of May 4, 1943, two prisoners attempted an escape from the Joliet Penitentiary (Old Prison) and, in the attempt, viciously assaulted Edward J. McAsey, Carl F. Jesse and James R. Carpenter, all of whom, in preventing the escape, were severely injured. The facts are not denied and no question arises as to the jurisdiction of the Court of Claims. Respondent agrees that “the only question to be considered by the Court is the extent and the permanency, if any, of the injury to the claimants.”

[*212] Claimants and respondent were operating under the provisions of the Workmen’s Compensation Act, and the ‘ claimants are entitled to the benefits provided by this Act.

The record of these claims consists of the following: Copy of Complaint in each case.

Stipulation to Consolidate.

Departmental Report.

Original Transcript of Evidence.

Abstract of Evidence.

Exhibit No. 1 in Case No. 3847.

X-ray Exhibits Nos. 1, 2 and 3 in Case No. 3849.

Statement, Brief and Argument of Claimants.

Suggestion of death of Claimant, Edward J. McAsey, in Case No. 3847.

Copy of Death Certificate and Letters of Administration.

Statement, Brief and Argument of Respondent. .

Reply Brief of Claimants.

Amendment to Complaint in Case No. 3847.

Waiver of Respondent‘s Answer to Claimants Reply Brief.

Answer of Respondent to Claimants Amended Complaint in Case No. 3847.

At the time of the injury, Edward J. McAsey did not appear to be seriously injured. He was not hospitalized.

He had been struck, knocked down and kicked about the body by one of the prisoners. A short time later he complained of pains in his back; a lump developed in his right side; and he lost considerable weight. He called Dr. Charles J. Carlin of Joliet, Illinois, in July, 1943, who, after an examination, recommended surgery. Mr.

McAsey was taken to Hines Veterans Hospital, where his right kidney was removed and found to be cancerous.

He died on December 26, 1944, from “metastatic carcinoma of right kidney.” He was in good health prior’to the injury on May 4, 1943. Dr. Carlin testified $hat if the injury that Mr. McAsey had received did not actually cause the condition from which he died it did aggravate the condition and hasten his death. Also, on cross exam[*213]’ ination, Dr. Carlin testified “in my opinion the injury which Mr. McAsey received during the riot may have been the cause of the cancer, or, if not the cause, it is my opinion that the injury aggravated his condition and did shorten his life for a number of years.” Such an injury falls within the provisions of the Workmen’s Compensation Act, and is compensable. Finkler vs. State, 11 C. C. R. 55 ; Marsh vs. Industrial Commission, 386 Ill. 11.

There is much evidence as to the injury of Mr. McAsey, the cause and effect, and from all the evidence we conclude and find that Mr. McAsey came to his death as a result of injuries sustained during the course and within the scope of his employment. At the time of his death he left his wife, him surviving, an9 two children under the age of 16 years, dependent upon’him for support.

The deceased, to relieve from his injury, during his lifetime advanced $26.00 for medical services, for which sum his estate is entitled to be reimbursed. The average weekly wage of decedent d u r h g his lifetime was $38.37 per week.

An award, in accordance with the provisions of the Workmen’s Compensation Act, will be entered in favor of Marie McAsey, for herself and for the benefit of her two children.

Claimant, Carl I?. Jesse, is mar”ried and has three children under 16 years of age dependent upon him for support at the time of the injury. He seeks an award for serious and permanent disfigurement to his head and face and for permanent disability. He was hospitalized at the time of the injury and all hospital and medical expenses were paid by respondent. He suffered no loss in salary and now earns as much and more than he did during the injury. Under the Workmen’s, Compensation -4ct, no award can be made to him for temporary or [*214] permanent disability. There is no doubt that Mr. Jesse was severely beaten about the face and head. His injuries, however, to be compensable, must fall within some provision of the Workmen’s Compensation Act. - There is testimony that his vision has become impaired as a result of the injury, but the evidence is insufficient upon which to base an award. The degree of impairment to his vision is not shown. The burden is upon the claimant to make proper proof of his claim, and in the ‘absence of proof showing the degree that his vision has been impaired, we cannot grant an award. There is also much testimony as to the disfigurement to his face; the nasal bone and frontal bone on the right side of his face . were fractured, as well as the septum, which was severely shattered inside. It was testified that “his nose was spread all over his face.” Disfigurement is a matter of appearance, and deformity as ,it appears after medical attention and treatment, must be described in some detail in order that just and fair compensation migh’t be determined. There is evidence that his nose is deformed, but we are unable to determine the extent of this deformity. On the evidence before us, we cannot grant an award for disfigurement. However, we retain jurisdiction of this claim for such further evidence and consideration as may be proper.

For the reason stated, the claim of Carl F. Jesse must be denied.

Claimant, James R. Carpenter, is married and had one child under the age of 16 years at the time of his injury. He seeks an award for injuries to his head and face, for partial loss of vision and for disfigurement.

Claimant was struck about the head and face with a hammer by one of the prisoners, fracturing claimant’s jaw and inflicting other serious and painful injuries to [*215] his head and face. He was paid his salary during his temporary disability, and thereafter returned to his former position at the same salary. There is no claim for temporary or permanent disability. Dr. Howard N. Flexer testified for claimanto as follows : “* * 8 James R. (Carpenter sustained a compound fracture of the left cheek bone, the fracture being both of the depressed type and linear. The linear fracture extended from the second molar tooth on the left side, upper, up to and into the left lower side of external orbital fossa wall. The depressed fracture was just below the orbit on the left side, in the anterior surface of the malar bone. His injuries caused him hemorrhage into the posterior orbit, causing double vision for about one month, and then single vision only after eye strain for another month. He had too, severe subconjunctival hemorrhage of left eye from the force of the blow * * *” From the evidence, it appears that James R. Carpenter sustained no injuries .that are compensable under the Workmen’s Compensation Act, -except possible impairment of his vision and such dental charges as may be necessary to relieve him from the effects of his injury.

He testified that he paid some dental charges of a p proximately $45.00, and Dr. Eugene J. Drenning testified that some teeth must be pulled-and replacements made that will cost about $200.00. In order to recover medical and dental charges, claimant must show the exact amount of the costs or charges, and the same must be shown to be reasonable. It is not sufficient to approximate the amount of such costs or charges that are necessary to relieve from the effects of an injury. -There is evidence that claimant’s vision has become impaired, but the degree of impairment is not shown. Under the evidence, no award can be made to claimant, James R. Carpenter. It is evident, however, that he has sustained some compensable damages, the exact amount of which , we cannot determine from the evidence, and jurisdiction [*216] r - 21 6 of this claim is, therefore, retained for such further consideration as additional evidence may require.

The claim of Carl F. Jesse is denied.

The claim of James R. Carpenter is denied.

Under the Workmen’s Eompensation Act, Section 7, paragraphs H3-K-G, claimant, Marie McAsey, is entitled for herself and on behalf of her ’minor children, to have and receive from respondent the sum of $5,280.00, plus advancements of $26.00 for medical expenses, making a total of $5,306.00.

An award is therefore entered in favor of claimant, Marie McAsey, in the sum of $5,306.00, payable as follows : $448.40, which is accrued up to June 12, 1945, and is payable forthwith; $4,857.60, payable in weekly payments of $17.60 each, beginning June 19, 1945.

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. ” .

(.No. 3855-Claimant awarded $1,350.00.)

HARRY J. FLANDERS, Claimant, vs. STATE O F ILLINOIS, Respondent.

Opinion filed Jun; 12, 1945.

JOH N W. FRIBLEY, for claimant.

GEORGE F. BARRETT, Attorney General; C. ARTHUR NEBEL,Assistant Attorney General, for respondent.

FEES A N D SALARIES-fhlUrieS Of City Judges- how fiXe&-h%Zte auditor cannot use census figures to decrease salary of judge during .. term for which he was elected. Where it appears that a City Court has been duly established in accordance with the provisions of Section 21, and the salary fixed in accordance with Section 23 of “An Act in Rela[*217]217 c tion to Courts of .Record in Cities”. (Chapter 37, Illinois Revised Statutes) a judge elected to such Court is entitled to receive his full salary during the term of office for which he was elected. A subsequent decrease in the population during his term of office, cannot be used for the purpose of decreasing his salary or eliminating the Court during the term of office for which he was elected.

J. FISEER, Claimant asks for an award in the sum of $1,350.00, being his salary as a Jqdge of the City Court of the City of Eldorado, Illinois, for the months of July, August, Septe‘mber, October, November and December of 1941 and January, February and March of 1942, at $150.00 per month.

The material facts in this case, as alleged in the complaint, are admitted by stipulation.

The record consists of the Complaint, Answer, Stipulation, and Statement, Brief and Argument by claimant and respondent.

Claimant is a duly elected Judge of the City Court of the City of Eldorado, Illinois, having been elected to that office in 1933 for a term of six years, and re-elected on October 3, 1939, for a term of six years, and is now, and has been since his first election the duly elected, qualified and acting Judge of the said City Court of the City of Eldorado, Illinois.

The compensation or salary of a Judge of a duly established City Court is fixed by Section 23 of “An Act In Relation to Courts of Record in Cities,” as amended, and fixes the salaries of Judges of City Courts having a population of at least 5,000 and not less than 8,000 at thesum of $1,800.00 per annum, payable from the Treasury of the State of Illinois. In cities having less than 5,000 inhabitants and not less than 3,000 inhabitants, the compensation or salary is fixed at $800.00, payable out of the ’ City Treasury.

[*218] The 62nd General Assembly of the State of Illinois made an appropriation for the payment of salaries of Judges of City Courts of the State of Illinois during the biennium period from July 1, 1941, to June 30, 1943, and authorized and directed the Auditor of Public Accounts to draw warrants on the State Treasurer for amounts due Judges of City Courts as salaries for their respective offices.

The question that presents itself for determination here isWas the State Auditor justified in using the latest available census to reclassify and determine the class in the graduated scale into which each City Judge fell after such Judge had been elected, or was he required to use a census beforceach Judge was elected?

Section 23 of “An Act In Relation to Courts of Record in Cities ” (Ch. 37 Illinois Revised Statutes), pyovides that in cities having a population of over 5,000 inhabitants and not less than 8,000 the salary shall be $1,800.00 per year, and in cities having a population in excess of 8,000 and not exceeding 15,000 the sum of $2,250.00 per year, and in cities having a population of more than 15,000 a graduated scale of compensation based upon the population of the city. It is the applica-’ tion of this section that must be determined here. -It seems to have been the practice of the Auditor of Public Accounts to reclassify Judges of City Courts according to the latest available census. Respondent contends that . the Auditor of Public Accounts is required to do this in order to comply with said Section 23.

Claimant contends that the salary, or rate of compensation for a Judge of a City Court, is determined at ,the time of his election and is not subject, during his ’ term of office, to revision according to population changes. This Section (23), makes no reference to the ?

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taking of a census, but merely provides the salary of a Judge having been elected to office and bases the salary on the population of such city. However, Section 21 of the same Act, provides for the establishment of City Courts in cities having at least 3,000 inhabitants wbenever the City or Common Council shall adopt an ordinance and such ordinance be subsequently approved by the voters of such city. It further provides, that such Court may be established consisting of one or more Judges, not exceeding five, and not exceeding one for each 50,000 inhabitants. It further provides that “the number of inhabitants shall be determined by reference to the Federal census, or a census taken by the city authorities. )’ ~ The exact question presented here for determination does not appear to have been passed upon by the Courts of this State.

The respondent presents a forceful and exhaustive brief and argument, contending that said Section 23 requires the Auditor of Public Accounts to adjust the salaries of Judges of City Courts in accordance with the last available census, and reasons that under Section- 21 the Auditor could use the Federal census to the exclusion of any other census in determining the population of a city and the resulting salary of a Judge of the City Court. In the present case it is admitted that a Federalcensus was taken in 1930, prior to the election of claimant herein, and ,again in 1940, both of which showed the population of Eldorado City to be less than 5,000, and that a census was taken by the City authorities in 1933, and again in 1942, both of which showed the population to be in excess of 5,000 inhabitants. As the Statute referred to related to a “Federal census, or a census taken by the City authorities, ” it could be as logically reasoned [*220] That the Auditor of Public Accounts could take the cenEUS taken by City authorities to the exclusion of a Federal census. During all the time that claimant held the office of Judge of the City Court of Eldorado City the population was in excess of 5,000, as disclosed by a census taken by the City authorities ; a census was taken in 1933, and again in 1942, both of which showed the population to be in excess of 5,000.

A Federal census was taken in 1930, and again in 1940, showing the population io be less than 5,000 inhabitants. It does not appear reasonable to us that the \ Legislature ever intended that the State Auditor of Public Accounts should have the discretion of determining what the salary or compensation of a Judge of a City Court should be. In a borderIine case, a census taken by the Federal authorities and a census taken by the City authorities could, very reasonably, vary to the extent that by using one or the other it would increase or decrease the salary of a Judge who had been elected prior to the taking of such census. To protect himself, the Auditor, it appears, has used the latest census in determining salaries to be paid. This practice can, and has in this case, resulted in confusion. In this particular case, at the time claimant was elected there was in existence the result of a Federal census showing a population of less than 5,000, and a later census taken by the City authorities showing a population in excess of 5,000 inhabitants. His salary at the time of his election was, thereupon, properly fixed at $150.00 per month, the salary for such office in cities having a population in excess of 5,000 and less than 8,000. Shortly after his reelection, a Federal census was taken, showing the population to be 4,987, and the payment of his salary was, thereupon, discontinued by the State Auditor. Less than [*221]

I

two years thereafter, a census was taken by the City authorities, showing the population to be 5,190, and his salary was, thereupon, re-established, and the Auditor of Public- Accounts thereafter issued warrants in the regular manner.

We think this confusion would be eliminated by construing the said Sections 21 and 23 of the Statute as: Section 21 providing for the establishment of City Courts and election of such number of Judges as authorized by this section in accordance with the population as disclosed by the latest census that has been taken. Upon such election, the salary of the Judge or Judges is, thereupon, established in accordance with Section 23 of the Statute, and such salary should be continued during the term for which such Judge or Judges had been elected.

This construction is supported by Section 21, which provides that a City can discontinue and disestablish such Court in the same manner by which it is established, but such Court once having been established a discontinuance or disestablishment shall not take effect u&l at the - expiration of the term of office of the Judge of said Court.’ If it was intended that the compensation or salary of a Judge would fluctuate according to the population disclosed by a census taken from time to time during the term of office of a Judge, then the provisions against discontinuing the Court, effective during the term of a Judge elected thereto, would be meaningless, as a decrease in population would eliminate the salary of the incumbent Judge, and the office, to all intents and purposes, would thereby be eliminated. It surely was not the intention when a provision was made limiting the effective date of discontinuing a Court, that the salary should be eliminated and the Judge continue to serve without compensation. It does not seem reasonable to \ [*222] believe that the Legislature ever intended to, or would, specifically prohibit the discontinuance of a Court during the term of a Judge elected thereto and, at the same time, direct the payment of the salary of such Judge to be discontinued -during his term of office. It would rather seem to have been the purpose that a Court be created in accordance with said Section 21, and, upon such creation, a salary be paid to the Judge or Judges in accordance with the provisions of Section 23 of the Statbte, and thereafter continue during the term of office for which such Judge or Judges have been elected.

The City Court of Eldorado City having been duly established in accordance with the provisions of Section 21 of the Statute above referred to, and the salary fixed in accordance with Section 23 at the time of his election, it is our opinion that he was entitled to receive this salary during his term of office. He is, therefore, entitled to payment of his salary which has been withheld. . An award is therefore entered in favor of claimant, Harry J. Flanders, in the sum of Thirteen Hundred Fifty Dollars ($1,350.00).