text:
    (No. 2010 —
    John Kramer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 5, 1933.

    G. Bat Sbnift and Joseph V. Toohill, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, John Kramer, employed as a laborer on State Highway No. 98 claims damages in the amount of Two Thousand Dollars. On the 11th day of July, 1932, while so employed, he alleges that he was ordered by his foreman to lift and propell a wheelbarrow so heavily loaded with dry gravel that a hernia and rupture of the right groin was produced. Because of this injury, it is claimed that an operation was necessary and that he became liable for medical services and attention in the aforesaid sum.

It has been stipulated and agreed by and between the claimant, by his attorneys, Senift and Toohill, and the State of Illinois, by Otto Kerner, Attorney General, that the cause be dismissed.

It is therefore dismissed, as per the motion to dismiss filed in this court on March 9, 1933.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (Nos. 1746-1748, Consolidated —
    James Bailey, No. 1746, Littrell Clark, No. 1748, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 2, 1933.

    Murray Miller and Batner, Chapman & Batner, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant James Bailey filed his declaration with the Secretary of State on March 26, 1931, alleging that he received an injury while driving a car on a public highway under the custody and control of the State of Illinois, at Wauconda, Lake County, Illinois, on the 8th day of February, A. D. 1931. This was State Boute 176. The accident occurred at about nine o’clock p. m., while he was approaching a curve in the outskirts of Wauconda. The claimant alleges that he was forced off the concrete onto the shoulder of the road by the action of bright headlights of an oncoming car. Pie further alleges that the State of Illinois caused to be placed on the outside of the curve, a series of wooden posts sunk into the ground and standing three or four feet above the ground in a row; that they were unlighted and unpainted and he further alleges that agents of the State of Illinois caused to be placed on the road adjacent to the series of posts above described, a large wooden spool of wire which was to be strung between the posts; that the spool of wire weighed fifteen hundred pounds and was extended three feet in towards the center of the road from the posts, and that neither the posts nor the wire was guarded at the time mentioned and no warning lights indicated their existence, and that the same constituted a hazard to persons traveling along and upon the highway. He further alleges that by reason of having been forced off the road, his Cadillac automobile collided with the spool of wire and caused the automobile to turn over four times and was damaged to the extent of Nine Hundred Dollars, and the claimant was injured, taken to a hospital at Libertyville and was compelled to pay out large and divers sums of money for doctor bills, hospital bills, and lost a considerable sum of money by virtue of the fact that he was unable to follow his usual occupation, and claims that he will be permanently disfigured, and has lost the partial use of the fingérs of his right hand; that he sustained five broken ribs and miscellaneous glass cuts.

No averment is contained as to the amount of t money paid out on account of doctor bills and hospital bills, but there is a general claim of damages in the sum of Seventy-five Hundred Dollars.

At the time of the alleged injury, one Littrell Clark was with James Bailey, and he has also filed a claim for damages on the same date that Bailey filed his claim for damages. He alleges that he was a passenger in the car of James Bailey on a highway in the custody and control of the State of Illinois, at Wauconda, Lake County, Illinois, on Route 176; that he was in the exercise of all due care and caution for his own safety; that the car in which he was riding being driven by James Bailey, was forced off the concrete onto the shoulder of the road by the action of bright headlights of an oncoming car.

Both claimants alleged that they had never driven over Route 176 before and the averment of negligence alleged by Clark were approximately the same as those alleged by Bailey.

Claimant Clark alleged that he sustained a broken leg and has an open ulcer of the leg, concussion of the head, lacerations and glass cuts of the scalp, permanent partial loss of use of the left leg and permanent disfigurement. He was taken to a hospital at Libertyville, spent large sums of money in hospital and doctor bills and lost a large sum by reason of being unable to follow his usual occupations, and sustained damages in the sum of Ten Thousand Dollars.

The two claims were consolidated by the Attorney General in the statement, brief and argument, for the reason that the facts involved in the two cases were the same, the only difference being that Bailey was the owner and driver of the automobile, while claimant Clark was the passenger. The Attorney General takes the position that there was no evidence in either case of the roll of wire belonging to the State of Illinois, nor that which is more important — that any employee or worker for the State of Illinois placed the wire in the position where it was struck by these claimants.

Bailey and Clark each filed separate briefs, contending that the injury was caused by the carelessness of the State employees who were engaged in constructing a fence along a curve in the road. From the deposition of Clark, it appears that he had traveled that road before; that Bailey was traveling from thirty-five to forty miles an hour; that he was riding with Bailey; that he was not paying á great deal of attention to Bailey’s driving. Another car was coming from the opposite direction with very bright lights and he “kind of pulled over,” saying “got to give this guy plenty of room”; that they were going around a slight curve in the road and hit something, and that was all he knew until he woke up in the hospital; that he averaged One Hundred Seventy-five Dollars a week in his earnings and was here claiming One Hundred Fifty Dollars a week for nine weeks; that he was fairly sure of his, salary but not at all sure of commissions; that his suit and overcoat were damaged and it cost him One Hundred Fifty Dollars.

On cross examination, Clark said that he was not watching the driving of the car at all. On re-direct, he was asked by his counsel if there was anything about Mr. Bailey’s driving that would cause him to be ill at ease, and he answered “no,” and he was again asked if he was using all due care and caution for his own safety, and he answered that he was. These latter questions call for conclusions on behalf of the witness and he could only testify to facts.

Complainant offered Exhibit 8, which was a letter from C. R. French on the stationery of the Department of Public Works and Buildings, Division of Highways. French signed his name by typewriter as Superintendent of Construction, and in his letter stated that the guard fence being constructed on Route 176 near Wauconda was being done by the State day labor forces under French’s supervision. The deposition of Bailey was also taken and offered in evidence, and stated that on the 8th day of February, 1931, he was at Riverside Park Subdivision, seven miles from McHenry, Hlinois; that his home was in Chicago and he was returning there that evening on Route 176; that near Wauconda, while driving at a rate of speed of forty to forty-five miles an hour, a car with very bright lights approached him from the opposite direction coming around the turn; that he edged over to the side of the road; that the other man was traveling at about in the center of the road; that the lights of the approaching car blinded him; that he finally drove over to the shoulder of the road and came in contact with a spool of wire while just approaching the curve, and the next thing he recalled was when he woke up about five minutes later in a nearby field. He stated that there was no. guard light as a warning on the wire, and that the spindle of wire protruded out of the road three feet, or possibly three and one-half feet; that he did not see it until he was right upon it, too close to make a turn. He did not know whether his car could be repaired or not; that he had not seen his automobile since the accident. On cross examination, he stated that he did know what the object was that he hit; that it protruded out on the right hand side of the road perhaps two and one-half or three feet from the extreme right hand side of the road on the dirt shoulder. He also stated on cross examination that this protruding object was about the width of an automobile, perhaps five or six feet from the edge of the road; that the lights of his car were burning; that he had bright lights on his car, but it does not appear from the evidence whether the bright lights or the dimmers were on.

There was considerable medical testimony on behalf of both of these claimants. Other evidence was produced to show that the road in question was built by the State of Illinois and that some construction work was being done on the road; that the posts had been put in, but the wire had not been attached thereto; that the wire was all on the spindle; that the posts had been “knocked to pieces.” A week later the wire was still there but outside of the ditch and that the spindle of wire was two and one-half feet from the pavement; that the wire and posts had been there about two weeks and a half before the accident.

A witness was produced who stated that he thought it was a State truck, but did not know; that it hauled the wire to the place in question; that the materials had been there for some little time. Other evidence was produced to show that the spool of wire weighed 1,530 pounds; that the wire stood from 40 to 45 inches high and was about 26 or 27- inches in diameter.

Inasmuch as both claimants were injured in the same accident, and under the same state of facts, and are represented by the same counsel, we have elected to consider these cases together, and while it may be inferred from the testimony and all the facts that the roll of wire was placed in the position it was at the time of the accident by agents of the State of Illinois, yet, under the view we take, that is immaterial.

It clearly appears from the evidence that the roll of wire was not upon the usual travelled portion of the highway, but was off the concrete from two and one-half to three feet. Certainly, the State of Illinois could not be expected by any reasonable person to keep the whole road from property line to property line, free of obstruction. The very nature of the facts prohibit this, but it clearly appears from the evidence that the cause of the injury to both claimants was the bright lights of an oncoming car in the middle of the pavement which forced Bailey from the pavement.

If several persons jointly commit a tort, some or all may be sued, jointly or one separately, a tort being in its nature, the separate act of each. But one is never liable for the tort of another, unless they act in concert; and several will not be held to the acts of one without cooperation, or their conduct naturally produced the acts which resulted in injury. Where the acts of different persons are entirely distinct and separate as to any aid, advice, counsel or countenance, from one to the other, there can be no joint liability.

Chicago & Northwestern Ry. Co. vs. Scales, 90 Ill. 586.
Yeazel vs. John T. Alexander, et al. 58 Ill. 254.

Nothing appears in the evidence that the driver of the approaching car toward claimants was either in the employ of the State or in any way connected with the State of Illinois, and nothing appears in the evidence other than that the acts of those who were putting in the improvement for the State and the driver of the oncoming car, were separate and distinct and not in any way connected and there could not be joint or separate liability.

The evidence does not disclose the name of the driver of the car which was being operated with bright lights.

The maxim-of the law here applicable is that in law the immediate and not the remote cause of any event is regarded. In other words, the law always refers the injury to the proximate, not the remote cause.

22 R. D. L. Proximate Cause, Section 3.
Braun vs. Craven, 175 Ill. 401.

Manifestly the bright lights on the car approaching the claimants were the proximate cause of the injury.

The petition, therefore, of both claimants for damages will be denied.


text:
    (No. 1903 —
    Nannie L. Davis, Administratrix of the Estate of Eli Davis, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 2, 1933.

    Mask C. Keller, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

A declaration was filed in the case with the Secretary of State on May 9, 1932, alleging that the deceased, Eli Davis, during his lifetime, was in the employ of the State of Illinois as a night policeman at the Dixon State Hospital, and received compensation therefor in the sum of One Hundred Three Dollars per month, and one meal a day; that he had been employed in such capacity approximately three years, and that on June 14, 1931, he was attempting to arrest Elizabeth Dunn and Nathaniel Moten, who were aiding and abetting one Cleo Long, a patient lawfully committed and confined in the said State Hospital, to escape therefrom, and that Elizabeth Dunn shot and killed said Eli Davis near the entrance of the grounds to the hospital.

The declaration further alleges the arrest, trial and conviction of Elizabeth Dunn, who is now serving her sentence in the State Reformatory for Women at Dwight, Illinois. The declaration avers that decedent left him surviving, Nannie L. Davis, his widow and William F. Davis, a nineteen year old son, and alleges damages in the sum of Ten Thousand Dollars.

The Attorney General filed a statement in this cause on the 21st day of April, 1933, stating facts substantially in accord with the averments of the declaration. The Attorney General has examined the record of the trial court and we are furnished with a stipulation of facts, together with the verdict of the Coroner’s Jury.

Although claimant has filed her claim averring damages as at common law, in the sum of Ten Thousand Dollars, her brief filed in support thereof is asking an award under the Workmen’s Compensation Act.

The Attorney General recommends that the claimant be awarded a sum not to exceed Thirty-seven Hundred Fifty Dollars under the Compensation Act.

The claimant has filed numerous decisions in the Court of Claims in support of her contention, but none of these cases are, as we view the case, of any assistance to the court. The court has repeatedly said that each case must be decided according to the facts involved in the case. Practically all of the decisions cited in this court are based upon the ‘ ‘ equity and good conscience rule.”

Section 6 of the Act of 1917 creating the Court of Claims, gives jurisdiction to this court “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with rules prescribed in the.Act commonly called the ‘Workmen’s Compensation Act.’ the Industrial Commission being hereby relieved of any duty relative thereto.” It is therefore mandatory that the liability of the State must be determined in accordance with the rules prescribed in the Compensation Act shall apply automatically and without election to the State and other municipalities therein named, and to all employers and all their employees engaged in any department where certain enterprises mentioned by the statute are declared to be extra-hazardous. The deceased is described as having been a “watchman” and “night policeman.” The facts before the court do not set forth specifically what deceased’s duties were, except what he was doing at the time he received his fatal injury, which we think fairly brings him within the intent and meaning of the extra-hazardous occupations mentioned in the Act, unless as exempt by further provisions of the Act.

Section 4 of the Act provides that the term “employer” shall be construed, among other things, to mean the State, and Section 5 provides that the term “employee” as used in the Act shall be construed to mean every person in the service of the State and other municipalities therein mentioned, under appointment or contract of hire, express or implied, oral or written, except any totally blind person, any official of the State or of any county, etc.

The question for us to determine then is whether or not deceased was an official of the State, in accordance with the rule announced by the Supreme Court, in the case of the City of Chicago vs. Industrial Commission, 291 Ill. 23, where a policeman in the City of Chicago was accidentally killed while attempting to restore a lamp post to its position, wherein it was held that the deceased in that case was an official, and denied compensation, or whether the deceased in the case before us was not an official. Neither counsel has aided us in this regard.

The office of watchman or night policeman was unknown to the common law and does not exist in this State by statute, and Bullis vs. City of Chicago, 235 Ill. 472, it was held that the office of police patrolman was unknown to the common law.

At the time deceased, Eli Davis, was employed in the Dixon State Hospital at 1 ‘night policeman” or 11 watchman,’’ there was no statute in effect creating the office. There being no office, it follows that Davis was not an officer de jure. A public office can exist only by force of law and there would be a misapplication of terms to call one an officer who holds no office.

While there is some authority to the contrary, the great weight of authority is to the effect that there can be no officer de jure or de factor where there is no office to fill. People vs. Knopf, 183 Ill. 410. People vs. Welch, 225 Ill. 364. Norton vs. County of Shelby, 118 U. S. 425.

We therefore conclude that Davis was not an officer of the State of Illinois, and is entitled to compensation under Paragraph A of Section 7 of the Act, and adopt the recommendation of the Attorney General,- and an award is hereby made in the sum of Thirty-seven Hundred Fifty Dollars, ($3,750.00).


author: Mr. Justice Vause

text:
    (No. 2071 —
    Sol Raskin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 2, 1933.

    Meyek L. Cheek as, for claimant.
    Otto Kebneb, Attorney General; Cask Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim filed by Sol Baskin seeking to recover damages for injuries received from being struck by an automobile in a public street in the City of Chicago. The declaration in the case sets forth that Baskin was a pedestrian crossing’ a public street in the City of Chicago and while doing so was struck by an automobile being driven by a police officer _of the State of Illinois, and that such police officer was at the time and place of the accident acting in the line of duty in the management and control of the said automobile as a police officer of the State of Illinois.

To this declaration the Attorney General has filed a demurrer. In addition, a stipulation of facts on the part of the attorneys for the plaintiff and the Attorney General has also been filed.

Neither the declaration nor the facts show any liability on the part of the State. It is well settled that the State is not liable for injuries caused by the negligence of its agent or employees, while in the exercise of their governmental duties.

The demurrer is therefore sustained, claim denied, and the case dismissed.


text:
    (No. 1732 —
    John Kranc, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    William B. McCabe, for claimant.
    Otto Keener, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim for compensation arising from accidental injuries alleged to. have been suffered by the claimant while an employee of the State of Illinois.

The record shows that the alleged injury was suffered on the 24th day of June, 1929. Claim for compensation for these injuries was filed in this court on March 4th, 1931. The Attorney General has filed a motion to dismiss the.claim because application for compensation was not filed within the time required by the terms of the Workmen’s Compensation Act.

Chapter 37, Paragraph 432, Smith-Hurd’s Statutes, 1931, defines the powers and duties of this court. This section provides among other things the following:

“(6) To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the act commonly called the "Workmen’s Compensation Act’ the Industrial Commission being hereby relieved of any duty relative thereto.”

Under the power and duty granted by the foregoing section, the determination of the liability of the State in this class of cases must be made in accordance with the rules prescribed in the Workmen’s Compensation Act. Section 24 of the Workmen’s Compensation Act provides among other things:

“Provided that in any case unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation the right to file such application shall be barred.”

This limitation is binding upon this court in the determination of the liability of the State for accidental injuries under Paragraph 432, of Chapter 37, above quoted.

There is no claim made in this case that any compensation has been paid by the State on account of this injury and the record affirmatively shows that application for compensation was filed with this court more than one year after the date of the alleged injury.

The motion of the Attorney General to dismiss the claim is therefore allowed and the claim is ordered dismissed.


author: Mr. Justice Yause

text:
    (No. 1738 —
    Earl Harper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    William R. McCabe, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Yause

delivered the opinion of the court:

This is a claim for compensation arising from accidental injuries alleged to have been suffered by the claimant while an employee of the State of Illinois.

The record shows that the alleged injury was suffered on the 31st day of July, 1929. Claim for compensation for these injuries was filed in this Court on March 18th, 1931. The Attorney General has filed a motion to dismiss the claim because the application for compensation was not filed within the time required by the terms of the Workmen’s Compensation Act.

Chapter 37, Paragraph 432, Smith-Hurd’s Statutes, 1931, defines the powers and duties of this court. This section provides among other things the following:

“(6) To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by an employee of the State, such determination to be made in accordance with the rules prescribed in the act commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duty relative thereto.”

Under the power and duty granted by the foregoing section, the determination of the liability of the State in this class of cases must be made in accordance with the rules prescribed in the Workmen’s Compensation Act. Section 24 of the Workmen’s Compensation Act provides among other things:

“Provided that in any case unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation the right to file such application shall be barred.”

This limitation is binding upon this court in the determination of the liability of the State for accidental injuries under Paragraph 432, of Chapter 37 above quoted.

There is no claim made in this case that any compensation has been paid by the State on account of this injury and the record affirmatively shows that application for compensation was filed with this court more than one year after the date of the alleged injury.

The motion of the Attorney General to dismiss the claim is therefore allowed and the claim is ordered dismissed.


author: Mr. Chief Justice Holleeich

text:
    (No. 1750 —
    Grant Tire Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    Michael Ekstein, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holleeich

delivered the opinion of the court:

Claimant is engaged in the retail automobile tire and accessory business in Springfield, Illinois, and claims the sum of One Hundred Twenty-six Dollars and Eighty-five Cents ($126.85) for merchandise purchased from it by the Department of Public Welfare, and for services rendered by claimant in making repairs on automobiles used by the said department, as shown by an itemized bill of particulars attached to the declaration.

The merchandise furnished and services rendered covered a period of time from August 10th, 1927 to December 22nd, 1928. All purchases were made by and services rendered at the instance of E. W. Ide, then Director of the Department of Public Welfare, or his authorized representative. On. January 22nd, 1929, Mr. Eodney H. Brandon succeeded Mr. Ide as the director of such department.

Claimant’s declaration was not filed until March 30th, 1931. After the filing thereof, the Attorney General requested an investigation and report from the Department of Public Welfare. Hon. Eodney Brandon, then director of such department, advised “that a search of the records of this department does not disclose any reference to the items mentioned in this claim. There are no requisitions or invoices on file which refer to the items listed, and we are unable to check the invoice numbers. The dates mentioned are all prior to my appointment as director. ’ ’

' The evidence fails to show that any requisition for the merchandise and services in question was ever issued by the Department of Public Welfare, and fails to explain why the claim was not presented in due time, and paid out of the proper appropriation. Claimant was charged with notice of the fact that appropriations are made by the General Assembly to cover the expenditures of each department for a period of only two years, and that all claims should be presented before the appropriation made for the payment thereof has lapsed. If the items in question constituted a proper claim, they should have been paid by the department from its 1927-1929 biennial appropriation, which appropriation did not lapse until September 30th, 1929. There was, therefore, a period of over nine months in which payment of the whole account could have been made by the department, but so far as the record shows, no effort was made to secure an adjustment of the account, or even file a claim therefor, until the filing of the declaration on March 30th, 1931.

Public policy requires that claims of this character be presented within a reasonable time in order that they may be checked by the proper officials, and in order that they may be paid out of the proper appropriations made for that purpose. By its delay in presenting its claim, the claimant in this case has put the State in a position where it is unable to check the same and determine from the records of the proper department whether the merchandise in question and the services claimed to have been rendered were actually received by the State.

It appears from the record, therefore, that the claimant has been guilty of such laches as will bar it from maintaining its claim at this time, and the claim is therefore dismissed.


text:
    (No. 1956 —
    George F. Miner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    Arthur L. Israel, for claimant.
    Otto Keener, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

The stipulation entered into between counsel for the claimant and the Attorney General shows the following to be the material facts in this case. About December 14, 1914, the claimant was certified and appointed to the position of Chief Clerk in the office of the State Food Commissioner (since 1917 Division of Foods and Dairies, Department of Agriculture) and held such office and performed the duties thereof until March 14, 1932. On this date claimant was given a discharge notice by the Director of Agriculture on the ground that he was physically unable to fulfil the duties of the position, but within five (5) days thereafter, claimant filed with the Civil Service Act, a petition for a hearing on the dismissal charges; that a hearing was held by the Civil Service Commission on April 19,1932, and on May 10, 1932, the Commission rendered an official opinion that the claimant had been discharged for political reasons and ordering claimant reinstated to his position and ordering the Director of the Department of Agriculture and the Superintendent of the Division of Foods and Dairies to cause all back salary to be paid to the claimant; that a copy of the proceedings before the Civil Service Commission was received by the claimant on May 20, 1932, and he reported on that date for work as chief clerk, and continued until July 9, 1932; that claimant has not received from the State or any department thereof his salary as chief clerk for the months of April and May, 1932; that the salary of chief clerk in the Division of Foods and Dairies was fixed by the regular biennial appropriations for ordinary and contingent expenses of the Department of Agriculture by the Fifty-seventh General Assembly at Three Thousand Dollars ($3,000.00) per annum, and that claimant received his salary at the rate of Two Hundred Fifty Dollars ($250.00) per month prior to April 1, 1932, and subsequent to June 1, 1932; that a verbal demand was made by claimant for such back salary upon the Department of Agriculture; that the Director of the Department of Agriculture on July 1, 1932, sent to the claimant copy of an opinion of the Attorney General which showed that a voucher was issued by the Department of Agriculture, payable to the claimant for salary for the months of April and May, 1932, from the department’s appropriation for extra help, and the Attorney General’s opinion was that payment of such back salary could not be made from a departmental appropriation for extra help; that no further claim was ever presented or any other demand made for the payment of such back salary except as made by the filing.of the declaration in this cause.

The chief clerk’s salary for the months of April and May, 1932, having been exhausted and the director having no ap: propriation from which to pay the back salary for the months of April and May, 1932, it was found impossible to comply with the order of the Civil Service Commission requiring payment to claimant of the back salary for the months of April and May, 1932. Under these facts it is the opinion of the court that the claim of the claimant in the sum of Five Hundred Dollars ($500.00), under the facts and circumstances presented in this case, should be allowed, and claimant is therefore awarded and allowed the sum of Five Hundred Dollars ($500.00).


text:
    (Nos. 1994-2002, Consolidated —
    Charles J. Sinn, Administrator, No. 1994, Margaret Beal et al., No. 2002, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    Mansfield & Cowan, for claimants.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The facts in the above entitled cases, except as hereinafter noted, being the same, we will consider the cases together. Both claimants seek to recover compensation under the Military and Naval Code of Illinois for the death of Private Marshall Beal, aged twenty-four, a member of Company “E”, 130th Infantry, National Guard, Peoria, Illinois, and Private Richard J. Sinn, aged thirty, member of the same Company and Infantry, both residing at Peoria, Illinois.

On Sunday morning, July 31, 1932, about 8:00 a. m. both Private Beal and Private Sinn, with certain other members of the Peoria guard units voluntarily assembled, pursuant to custom, at the armory on North Adams Street, Peoria, for the purpose of journeying to the target range for instruction in rifle fire. Certain members of the guard who owned automobiles were requested to carry as passengers, other designated members. Both Beal and Sinn were directed to ride with Private Roland Streitmatter, who was driving his car. Other members of the guard in the same car were Privates Victor Faust and Virgil Meissenlieimer. The target range was located at about six miles northwest of the City of Peoria, and while enroute thereto, an accident occurred when Streitmatter drove his car at a high rate into the rear of another car on the same mission which had stopped. The road was narrow and very dusty, and the accident happened at the approach of a sharp curve about a quarter of a mile from the ‘range.

The facts are not in dispute and the Adjutant General of Illinois, C. E. Black, under date of November 2nd, 1932, made the following report to the Attorney General:

“Dear Sir: In reply to your inquiry of October 20th, regarding the facts contained in the declaration of Arthur Beal, Admr., et al. vs. State of Illinois, No. 2002, in the Court of Claims, you are informed that on July 31, 1932, Private Marshall Beal, a member of Company “E”, 130th Infantry, while on his way to the rifle range, sustained an injury, due to an automobile accident, which resulted in his death.
The record of the Board, which reported the accident, indicates that several cars were proceeding in convoy to the rifle range. As the leading car approached a steep hill, it was met on a sharp turn by another car, which was headed in the opposite direction. The driver of the leading car of the convoy turned his car out in order to avoid a collision. In so doing, his car was forced into the bank on the right side of the road. On account of a cloud of dust, caused by the first car overturning, the cars in the rear of the convoy were unable to avoid piling into the bank. The last car, in which the soldier Beal was riding, crashed into the cars in front of it. It was badly wrecked and the collision resulted in serious injury to three (3) members of Company “E”, one of whom was Private Marshall Beal, who suffered a fractured skull and fractured right wrist, from the effects of which he died at 11:05 A. M., August 2, 1932.
The expense for hospitalization and medical care of this soldier has been defrayed by appropriated funds made to this Department.”

A similar report was made concerning Sinn, except the Adjutant General included in that report, the recommendations of the board to the effect that upon filing declaration in the Court of Claims for damages for the death of claimant’s son, there should be paid to the claimant, the sum of Fifty Dollars ($50.00) per month for each and every month until June 30, 1933.

The expense for hospital and medical care in both cases had been defrayed by appropriated funds made to Adjutant General’s Department. It appears from the evidence that the sum of $50.00 per month had been paid by the Adjutant General from Ms emergency fund covering the period from October 1, 1932, to June 30, 1933; the payment for June not having as yet been made, but it is the intention of the department to make the same.

In the Sinn case, therefore, the sum of $450.00 in full would have been paid by July first.

In the accident, Soldier Sinn suffered a fractured skull, from the effects of which he died at 6:05 p. m. on the day of the accident. .

By virtue of Section 11 of the Military and Naval Code, this court has jurisdiction to hear and determine any claim made by the heirs of an officer or enlisted man of the National Guard, killed while performing his duty. The claim in both cases arising against the State is for financial aid or assistance * * * as the merits of each case may demand. It appears from the evidence that both soldiers were in line of duty on authorized detail at the time of the accident resulting in their deaths. They were both therefore performing their duties as guardsmen in pursuance to orders of the Commander-in-Chief of the Illinois National Guard, and in such cases, this court looks to the Illinois Compensation Act as a basis for fixing the amounts allowed.

In the Beal case, the record shows that the deceased had been gainfully employed at the Keystone Steel and Wire Company of Peoria over a period of several years prior to his death and that he contributed from $40.00 to $50.00 per month to the support of his widowed mother. - He left insurance in the sum of $2,000 which was paid to her and therefore emergency payments were not paid to the mother as in the Sinn case. The record shows that his mother, Margaret Beal, aged 63 years, had no independent means at all of any kind or character from which to support herself prior to her son’s death and that she was solely dependent upon her son for assistance. There were other children in the family but they had contributed little and most irregularly. The mother owned no property and had lived upon the proceeds of the life insurance policy paid her at the time of her son’s death up to the hearing.

The Attorney General recommends that in the Beal case, the claimant be awarded a sum not to exceed $4,000.

In the case of Sinn, it appears that he had been gainfully employed as an accountant and book-keeper with various Peoria firms for about four years prior to his death, earning from $18 to $20 per week, and had contributed to the support of his parents. In this case, the sum of $50.00 per month had been allowed for eight months and another $50.00 would be paid by the Adjutant General’s office on July first to take care of emergency needs.

We make the same finding in the Sinn case as we do in the Beal case, with the exception that we deduct the sum of $450.00 from the sum of $4,000, and recommend that an appropriation be made in the Beal case of $4,000 and that an appropriation be made in the Sinn case of $3,550.00.


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    (No. 2084 —
    Herbert B. Jamison and Caroline G. Jamison, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 15, 1933.

    Jack, Irwin & Seidenberg, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim for the allowance of damages for the death of claimant’s son, Thomas G. Jamison while in line of duty as a private of Company “E”, 130th Infantry, Illinois National Guard.

It has been stipulated between the attorneys for the claimants and the Attorney General that the evidence taken on the hearing before the Military Court, which has been duly transcribed and certified to this court, may be duly considered in lieu of depositions which might be lawfully taken and considered in the final determination and decision of this case upon its merits.

In the statement filed by the Attorney General, it is admitted that the claimant in his statement, brief and argument properly states the facts and circumstances surrounding the cause of death.

The undisputed evidence of record discloses that Private Jamison, as member of Company “ E ”,,130thInfantry, Illinois National Guard, at the time of his death on February 8, 1933, was with his Company on active mine strike duty in Christian .County, Illinois, pursuant to orders from the Governor of Illinois duly transmitted to the Adjutant General of the State; that while on such duty he was shot and instantly killed by the accidental discharge of an automatic rifle in the hands of another private of the same Company; that at the time of his death private Jamison was where his general orders required him to be and was under the direct orders of his superior officers and was in line of active military duty under such orders. This court under such circumstances has jurisdiction by virtue of Section 11 of the Military and Naval Code of Illinois to adjust such a claim as the merits of the case may demand.

Considering the evidence and the stipulation of the facts in the above entitled cause, we are of the opinion that the claimants are entitled to an award in this case and that under the circumstances in evidence a reasonable award would be Four Thousand Dollars ($4,000.00).

It is therefore the judgment of this court that claimants are awarded the sum of Four Thousand Dollars ($4,000.00).


author: Mr. Chief Justice Hollerich

text:
    (No. 1752 —
    J. B. Bruns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Walter E. Lindgren, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 12th day of October, A. D. 1929, the claimant was employed as an attendant at the Elgin State Hospital, Elgin, Illinois. He claims that on said date, while in the performance of his duties, he sustained an injury to his right hand by coming in contact with a rusty screen wire, resulting in an infection which necessitated several incisions and resulted in a ninety per cent (90%) loss of the use of such hand; and makes claim for compensation under the provisions of the Workmen’s Compensation Act.

The injuries in question were sustained on October 12th, 1929, and the evidence fails to show that any claim for compensation was ever made. The declaration was filed in this Court on March 31st, 1931.

The Attorney General has filed a motion to dismiss the claim for want of jurisdiction on the following grounds, to-wit:

1. The failure of the claimant to make claim for compensation within six months after the accident.

2. The failure of the claimant to file a declaration or application for compensation'within one year after .the date of the injury; as required by the terms and provisions of Section Twenty-four (24) of the Compensation Act.

The same question was presented in the case of Elbert J. Crabtree vs. State, No. 2046, decided at this term of court, and a similar motion was presented by the Attorney General. The question involved was thoroughly considered by the court in that case and the court there held that the terms and provisions of the Workmen's Compensation Act, so far as they are applicable, must be considered in cases of this character, the same as though such terms and provisions were incorporated bodily in the Court of Claims Act; and that a compliance with the aforementioned terms and provisions of Section Twenty-four (24) of the Compensation Act is a condition precedent to the right of the claimant to maintain his proceeding in this court.

The court in the decision of this case must be governed by the same principles of law.

The claimant having failed to make claim for compensation within six months after the accident, and having failed to file his application or declaration in this court within one year after the injury, or within one year after the date of the last payment of compensation, this court is without jurisdiction to proceed with the hearing.

It is Therefore Ordered, That the motion of the Attorney General to dismiss be sustained, and the claim is hereby dismissed.


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    (No. 1781 —
    Lyman Phillips, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Charles F. Fitzgerald, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed his claim with the Secretary of State, August 22,1932, alleging that on the 3rd day of August, 1929, he was a member of the Tank Company, 33 Division, Illinois National Guard, and on that date was on duty as a member of the Illinois National Guard with a convoy of trucks on the way to Camp Grant from Maywood, Illinois; that they were travelling west on Route 5 in the vicinity of Bartlett, Illinois, when one of the trucks of the convoy stalled on the highway. Claimant and the Sergeant in charge, went back to repair the stalled truck. The truck was parked on the northerly side of said road, facing west and the claimant and the Sergeant parked their car on the south side of the road facing east. After repairing the truck, the claimant started to walk across the cement road and was struck by a car driven by a civilian. He was taken to St. Joseph’s Hospital, Elgin, Illinois, suffering from a slight concussion and abrasion of right ear and face, right hip, left shoulder, posterior fractured tibia, and right at the junction of middle lower third; fractured fibula, right upper third and lower third had Blebb’s abrasions, covering area of six inches long and four inches wide over area. This report was signed by Major Stett and by Captain Arthur W. C. Hollings. Four days later he was taken to St. Anthony’s Hospital, Rockford, Illinois, where he remained for about ten months. After leaving the hospital in Rockford, he was returned to Chicago and placed under the care of Dr. Benedict Aron, and from thence on, he was under Dr. Aron’s care. Dr. Aron testified as to the extent of the injuries. His record shows that on August 3, 1929, he saw the claimant at St. Joseph’s hospital, Elgin, Illinois, the accident having occurred about 6:30 o’clock a. m. near Bartlett. He was discharged by the doctor on June 30, 1932, various operations having been considered necessary.

Claimant did not bring any action against the civilian who ran into him, and not enough facts were set forth in the evidence to determine whether or not there would be any liability on the part of the civilian. No question arises about the facts.

To the declaration, the Attorney General, on April 20, 1933, filed a statement, and included therein, that the following payments had been made to the claimant in this case:

By the Federal Government:
St. Joseph’s Hospital, Elgin, 111................. $ 36.75
Pay to Private Phillips during hospitalization... 165.00
Total ...'................................... $201.75
By the State of Illinois:
Medical services................................ $ 979.00
Hospital services........:....................... 1,234.00
Pay ........................................... 329.25 .
Total ...................................... $2,542.25

This claim for compensation arises under Section 11, Article XVI of the Military and Naval Code of the State of Illinois, which in part provides that in every case where an officer or enlisted man of the National Guard ‘ ‘ shall be injured, wounded, or killed while performing his duty * * * in pursuance of orders from the Commander-in-Chief, said officer or enlisted man * * * shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the marita of such case may demand.” (Par. 143, Chap. 129, Cahill’s Ill. Rev. Stat. 1931.)

It appears from the evidence that in civil life, the claimant was employed by the Public Service Company, in the capacity of a collector, and received $35.00 per week as compensation therefor. At the time his deposition was taken, he was back in the employ of the Public Service Company at the same wages.

His doctor gives as' his opinion that the claimant has a permanent partial loss of the use of his right leg to the extent of 40 per cent. During the performance of his duties prior to the accident, the claimant testified that he used an automobile part of the time. He has an actual deformity of the right leg by a shortening of two and one-half inches; a turning in of the right foot to the extent of twenty-five degrees inwards, due to an improper alignment of the bones at the time of re-setting the leg, and a bulging outward at point of fracture, and it is not possible to obtain any adjustment or corrective appliance to overcome the existing condition, except a higher heel possibly a thicker sole on his shoe. No claim is made for temporary total incapacity during the time claimant was recovering from the effects of the injury. He had already received from the Government under the provisions of Section 10, Article XVI of the Military and Naval Code, the sum of $494.25 in full for temporary total disability. Claimant received $1.00 per day while on active duty. He admits having received compensation both from the Federal Government and from the State of Illinois for medical services, hospital services, and loss of time while unemployed. He is claiming compensation under the Illinois Compensation Act on a basis of $35.00 per week, the amount that he was receiving in private employment. The Assistant Attorney General recommends that he be awarded a sum not to exceed $1,140.00 as full compensation for permanent disability.

In this case the claimant is asking for the sum of $5,000.00 as damages. This claim for compensation arises under Section 11, Article XVI of the Military and Naval Code of the State of- Illinois, which in part provides that in every case where an officer or enlisted man of the National Guard ‘1 shall be injured, wounded, or killed while performing his duty in pursuance of orders from the Commander-in-Chief, said officer or enlisted man * * * shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.” There can be no question here but what the claimant was in the performance of military duty and acting under proper orders at the time of the accident. He was confined to the hospital for a period of ten months following the accident and all of his hospital and medical expenses totalled $2,249.75. This amount was paid by the State Federal Government. If claimant had received the same injury while in private employment, the Workmen’s Compensation Act would have controlled. A member of the National Guard in the performance of his duty, is in fact a State employee.

We, therefore, by analogy use the Compensation Act as the measure of damages in this instance, and under the terms of Section 8 (e) 15 of the Workmen’s Compensation Act, the claimant would be entitled to $15.00 per week for a period of 76 weeks or a total compensation of $1,140.00 for 40 per cent loss in the use of his right leg.

We Therefore, Recommend that an appropriation be made in the sum of $1,140.00 in favor of Lyman Phillips.


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    (No. 1885 —
    Alice Bixler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Jerome R. Finkle, for claimant.
    Otto Keener, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim for the allowance of compensation for an injury received by the claimant while operating an electric power driven food cutting machine containing rotary knives. She was injured on July 6,1931, while employed as an attendant at the Alton State Hospital, Alton, Illinois, an institution operated by the State of Illinois through its Department of Public Welfare.

The Attorney General has made a motion to dismiss this case because no claim for compensation was made within six (6) months from the date of the alleged accident and injury. The claimant filed a verified declaration in this court on March 4, 1932 in which it is alleged that the accident from which the injury resulted, happened on the 6th day of July, 1931. It is further alleged on page 2 of the declaration as follows:

“Your petitioner further represents to the Court that she has never presented this claim to any State Department, or State Officer of the State of Illinois, or to any person, corporation, or tribunal, of any kind or character, and. that she has not, nor has any person for her received any payment on account of such claim, and there are no other persons who have any interest in said claim.
“Your petitioner further avers that she is damaged in the sum of One Thousand ($1,000.00) Dollars on account of the injury received by her herein set forth, and therefore she brings this suit, etc.”

In the case of City of Rochelle vs. Industrial Com., 332 Ill. 386 on page 391, it is said:

“Cahill’s Stat. 1925, p. 1190; Smith’s Stat. 1925, p. 1292; provides that no proceedings for compensation under the Act shall be maintained unless claim for compensation has been made within six months after the accident. The making of a claim for compensation is jurisdictional and a condition precedent to the right to maintain a proceeding under the Compensation Act.”

We are not justified, in deciding cases in this court, in overruling decisions of the Supreme Court on the ground of social justice and equity of any other pretext.

Accordingly the demurrer of the Attorney General is sustained, the claim is denied and the suit is dismissed.


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    (No. 1941 —
    Glenn Bond, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Victor Hemphill, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to, and on the 9th day of October, A. D. 1931, the claimant, Glenn Bond, was employed by the State of Illinois in connection with the construction of durable hard-surfaced roads, and on said date, while he was greasing one of the pumps used in connection with such work, the fingers of his right hand became entangled in the gears, and were severely crushed, and in consequence thereof it became necessary to amputate the thumb at the first joint, and the first finger at the second joint. He remained in the hospital for about a week and under the doctor’s care until November 29th, 1931, at which time he was discharged. All physicians ’ bills and hospital bills were paid by the respondent.

At the time of the accident, his wages were at the rate of Twenty-fonr Dollars ($24.00) per week, and after the accident he was paid compensation for temporary total disability at the rate of Twelve Dollars ($12.00)’ per week from the time of the accident to the date of his discharge.

The work in which claimant was engaged was extra-hazardous within the meaning of Paragraph one (1) or Section three (3) of the Compensation Act (City of Rock Island vs. Ind. Com., 287 Ill. 76), and he is therefore entitled to compensation under the Act for such loss of use of the thumb and first finger of his right hand, as may be shown by the evidence, provided he has brought himself within the requirements of such Act.

The Attorney General has filed a motion to dismiss the claim for want of jurisdiction on account of the failure of claimant to make claim for compensation within six months after the date of the accident, as required by Section twenty-four (24) of the Compensation Act.

Since the entry of such motion and pursuant to leave of court, the claimant has introduced additional evidence proving conclusively that claim for compensation was, in fact, made within six months from the time of the accident in accordance with the requirements of Section 24 of the Compensation Act. The motion to dismiss is, therefore, overruled and denied.

The Attorney General having submitted the case for hearing on the merits, and the State having failed to plead, a general traverse of the declaration is considered filed under the rules of this court.

Under the facts as hereinbefore set forth, and pursuant to the provisions of Section 8E, Paragraphs one (1), two (2) and six (6), the claimant is entitled to compensation at the rate of Twelve Dollars ($12.00) per week, for thirty-five (35) weeks for the loss of the first phalange of his thumb, and for forty (40) weeks for the loss of the second phalange of the. first finger, to-wit: the total sum of Nine Hundred ($900.00) Dollars.

Award is, therefore, made in favor of the claimant for the sum of Nine Hundred ($900.00) Dollars.


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    (No. 2009 —
    Alice Cavender, a Minor, by Chester L. Cavender, her Father and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Chester E. King and Carl N. Weilepp, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Vause

delivered the opinion of the court:

This is a claim made for damages arising from a personal injury to Alice Cavender, age five years, resulting from burns to her left leg when she accidentally stepped into an expansion joint four inches wide and nine inches deep filled with hot liquid asphalt, which had been deposited and left uncovered and entirely pnguarded by the maintenance men of the Division of Highways, Department of Public Works and Buildings of the State of Illinois, while completing construction of a hard surfaced road, on November 9, 1931, on State Bond Issue Route No. 48, which road adjoined the farm home of claimant and her parents. The work was done about 1:30 p. m. of that day and about 3:00 p. m. of the same day, claimant, accompanying her mother, was walking over this road on the way to the house of a neighbor and accidentally stepped into the expansion joint. The ankle of the left leg was burned completely around and burns extended up some distance toward the knee. A portion of the burns were second degree burns. Daily medical treatments were required from the date of the injury to February 11, 1932. Total medical expenses incurred amounted to One Hundred Fifty-eight Dollars ($158.00). The burns have completely healed, leaving scar tissue which is sensitive. This limb is somewhat smaller at the place of the injury due to sloughing away of the tissues. In the opinion of the only medical witness this condition is a permanent one.

This court has repeatedly held that the State is not liable for injuries resulting from the negligent acts of its employees, agents or servants in the exercise of governmental functions. This court has also recognized an exception to this rule in certain exceptional cases. In order to bring a claim within this exception the injuries must be directly attributed to the grossly negligent, reckless or wanton acts of an agent of the State and the claimant must be free from all contributory negligence in reference to the injury. The undisputed facts as disclosed by the record in the instant case at bar are sufficient to bring the case within the exception.

One of the claims for compensation made is on behalf of Oma Cavender, the mother of the injured child, for care and nursing of her injured daughter subsequent to the injury. In performing that service she was performing .her duty as a mother for her child who had met with an unfortunate accident. That feature of the claim is without merit and will be denied.

Another claim is for reimbursement of the father, Chester Cavender, on account of loss of time incurred in taking his daughter to the doctor for medical treatment and for the costs of this transportation. This portion of the claim also is denied.

It is therefore the opinion of this court that the claimant, Alice Cavender, be awarded the sum of One Thousand Dollars ($1,000.00), payment thereof to be made to her legal guardian, duly appointed by the proper court with satisfactory proof of such appointment and qualification.


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    (Nos. 2017-2018-2083-2040, Consolidated —
    Harry A. Atwell, No. 2017, Western Newspaper Union, No. 2018, Wirth Sales Book Company, No. 2083, Town Center Building Corp., No. 2040, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Claimants, pro se.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

These claimants all appeared for themselves and we have consolidated the claims, for the reason that they arise as expenses incurred by a temporary body created by an Act of the Fifty-seventh General Assembly, approved June 26, 1931, to be known as the Illinois George Washington Bi-Centennial Commission. The purpose of this commission, consisting of fifteen members appointed by the Governor and serving without pay, was to cooperate with the United States Commission in celebrating the two hundredth anniversary of the birth of George Washington.

The Act creating' the commission provides that “Such commission shall receive no compensation for this service but shall be allowed the actual expenses incurred in carrying out the provisions of this Act.” The sum of Five Thousand Dollars ($5,000.00) was appropriated for such expense. (L. 1931, p. 41.)

After the declarations were filed, the Attorney General requested an investigation and report concerning each claim and received from William C. Thon, chairman of said commission, substantially the following report:

“Dear Sir: I beg to acknowledge receipt of your letter in reference to the above claims and in reply wish to state that I have carefully investigated our Bi-Centennial Commission records as to the correctness of each item claimed to be due. I find balances remaining due and unpaid as follows:
To Harry A. Atwell, for photographic service.............. $ 17.90
To Western Newspaper Union, for printing of the State program of the Commission................................ 57.65
To Wirth Sales Book Co,, for typewriter rental............ 18.00
To Town Center Bldg. Corp., for office rental of Commission 178.95

The above items are for goods, services and rental ordered and received by the commission. They were all contracted for by the commission before its appropriation became exhausted; however, the bills covering the above balances were not presented for payment until subsequent to that time and hence could not he paid. The claims are all fair and reasonable and I trust they may be allowed.”

When these services were contracted, there was undoubtedly a sufficient unexpended balance still remaining in the appropriation, but before the bills could be presented, the appropriation had become exhausted. Unquestionably these bills are proper, and the Attorney General recommends that each claimant be awarded the amount of his claim in full settlement.

We, therefore, make an award to Harry A. Atwell, for photographic service, the sum of $17.90.

To Western Newspaper Union, for printing of the State program of the Commission, the sum of $57.65.

To Wirth Sales Book Co., for typewriter rental, the sum of $18.00.

To Town Center Bldg. Corp., for office rental of Commission, the sum of $178.95, and recommend that an appropriation be made for the respective amounts.

Respectfully submitted.


author: Mr. Chibe Justice Hollerich

text:
    (No. 2019 —
    Charles F. Curtis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Parker, Cox & Eagleton, for claimant. .
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerich

delivered the opinion of the court:

For more than three years prior to, and on the 22d day of June, A. D. 1932, the claimant, Charles F. Curtis, was in the employ of the Division of Highways, Department of Public Works and Buildings, State of Illinois, as maintenance patrolman, and on the last mentioned date was working on Section 732, S. B. I. Route No. 33, Jasper County. WMle in the performance of his duties, and while engaged in making repairs on the concrete roadway with a liquid asphalt preparation called “Colos”, a portion thereof splashed into his right eye, causing severe burns which eventually resulted in the total loss of the vision of such eye. All medical attention was furnished by the respondent.

It is admitted by the Attorney General that the work upon which the claimant was engaged at the time of the injury was of such a nature as to bring him within the terms and provisions of the Workmen’s Compensation Act of this State, and he is therefore entitled to compensation in accordance with the terms and provisions of such Act.

His salary at the time of the injury was One Hundred Twenty-five Dollars ($125.00) per month, or Twenty-eight Dollars and Eighty-five Cents' ($28.85) per week, and he had three children under the age of sixteen years at the time of the accident.

From the evidence it appears that the period of temporary total disability was fourteen (14) weeks, and that claimant sustained the total loss of the sight of his right eye. During the period of disability he received his full salary of Twenty-eight Dollars and Eighty-five cents ($28.85) per week, which sum must be deducted in computing the amount of his award.

Claimant is therefore entitled to compensation at the rate of Eighteen Dollars and Seventy-five Cents ($18.75) per week for the period of one hundred thirty-four (134) weeks, for temporary total disability and for specific loss as herein-before set forth, in accordance with the provisions of Paragraphs B and E of Section eight (8) of the Compensation Act, less the salary paid him as hereinbefore set forth; such amount to be commuted to an equivalent lump sum in accordance with the provisions of Section nine (9) of the Compensation Act. As we compute it, the net amount due the claimant after commutation to a lump sum as aforesaid, is Two Thousand Seventy-seven Dollars and Forty-four ($2,577.44).

It is Therefore Ordered, That claimant be awarded the sum of Two Thousand Seventy-seven Dollars and Forty-four Cents ($2,077.44).


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    (No. 2020 —
    Mary E. Kotter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    Helm & Helm, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant, Mary E. Hotter, as Administratrix of the Estate of Otto F. Hotter, deceased, filed her claim in this court on the 25th day of November, 1932. On motion of the Attorney General the title was amended so that Mary E. Hotter should appear as claimant for the reason that on payments in the Compensation Act the law contemplates that payment shall be made to the beneficiary and not to an estate and thereby subjecting the award to the debts of the estate, if any.

The claimant alleges that Otto F. Hotter was, during his life time and at the time of his death, an employee of the Division of Highways, Department of Public Works and Building’s of the State of Illinois and was employed as a laborer cutting grass and weeds along the shoulders of a hard-surfaced State Highway known as S. B. I. Route 1 of the State of Illinois. He was using a scythe and working with two other State employees.

It appears that he, with the other employees, had gone to the truck for a drink of water and while returning to his work and while walking along the highway, partly on the cement and partly on the shoulder on the easterly edge of the cement highway, facing southerly, a Ford automobile running at a very high rate of speed and driven by one Charles Miller, twenty-one years old, in a southerly direction, overtook Hotter and struck him with great force, knocking him from twelve to fifteen feet away onto the pavement and running-over his body. He died on the same day, the first day of June, 1932.

It appears from the evidence that he had been employed infrequently as a maintenance laborer in District No. 9 by the Division of Highways. At the time of the accident he received $3.60 per day or $21.60 per week. At different times in the past six years he had been employed at various occupations as laborer, watchman and inspector. On some of those jobs he had earned $24.00 per week. None of his employment had been steady. The average weekly wage, as shown by the record, is $3.80 per day or $22.80 per week. There is no evidence before us to show how many days Otto Hotter was actually employed as a laborer annually. He was only on this job about three or four days. We must then, figure on the minimum wage per day for 200 days or a total of $760.00 per annum. On this basis, under Section 7(a) of this Act, claimant would be entitled to $3,040.00 as compensation.

Three and one-half months after the death of Otto Hotter a child was born to his wife. Claim is made for the sum of $3,390.00 under the provisions of Section 7 (h-2) of the Compensation Act. The essential condition of the right of any person named in said Section 7 to compensation therein provided is that such person must be actually totally dependent upon the earnings of the deceased employee at the time of the injury. We, therefore, hold that inasmuch as this post-humus child was not born at the time of the injury and death of Otto Hotter, additional compensation cannot be allowed for that reason. Inasmuch as a payment must be made on a lump sum basis the sum of $3,040.00 must be commuted in accordance with the statute. We estimate that if the Legislature follows the decisions of this court and makes an appropriation for this claim that such appropriation will be ready for payment on or about August 1,1933. From the time of the injury until this last mentioned date sixty (60) weeks will have elapsed. No weekly payments have been made and no reduction should be made because of that fact. The balance of the sum will be commuted pursuant to statute and an award of $2,801.66 will be made and an appropriation thereof recommended.


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    (No. 2032 —
    Mabel Epple, Administratrix of the Estate of John A. Epple, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

    W. F. Hawthorn, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant .Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on, to-wit, the 17th day of September, A. D. 1932, John A. Epple was employed as a trades helper or carpenter at the Manteno State Hospital, Manteno, Illinois, by the Department of Public Welfare, and on the last mentioned date, while engaged in setting wooden forms for concrete curb gutter on one of the roads in the hospital grounds, was accidentally struck on the head by a blow from a sledge hammer in the hands of one Eugene Griswold, a patient at the institution, who, together with another patient, was assisting in the work in which Epple was then engaged. As the result of such blow, Epple sustained a fracture of the skull, accompanied by a brain hemorrhage which resulted in his death on the same day. There is no question but what the injuries sustained by Epple were accidental, and that they arose out of and in the course of his employment.

Epple had been employed at the State Hospital continuously from January 5th, 1931 until the date of his death, and his compensation was approximately Thirty-six Dollars ($36.00) per week. He left him surviving his widow, Mabel Epple, who was thereafter appointed administratrix of his estate and as such administratrix has filed her claim for compensation under the terms and provisions of the Workmen’s Compensation Act of this State, claiming the sum of $3,750.00. There after, on motion of the respondent it was ordered that Mabel Epple in her individual right be substituted as claimant.

It is admitted by the Attorney General that the work in which Epple was engaged at the time he received the injuries which caused his death, properly comes within the provisions of Paragraph one (1), Section three (3) of the Workmen’s Compensation Act, and the widow is, therefore, entitled to compensation under the terms and provisions of such Act.

It is Therefore Ordered, That the claimant, Mabel Epple, in her individual right, be awarded the sum of Thirty-seven Hundred Fifty Dollars ($3,750.00).