text:
    (No. 2697
    Pete Stanley, Administrator of the Estate of Billie Roe Stanley, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, December 14, 1937.

    D. L. Duty and Gordon Franklin, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On July 10th, 1935 Pete Stanley, as Administrator of the Estate of Billie Roe Stanley, deceased, filed his complaint herein, in which he alleges in substance as follows:

1. That prior to and on May 16th, 1935 the respondent through its Department of Public Works and Building’s, was engaged in the construction, maintenance and repair of hard-surfaced roads, and particularly State Highway No. 147 extending in a northerly and southerly direction through the Village of Q-oreville, in Johnson County.

2. That on said date and for a long time prior thereto, respondent permitted an old abandoned well to exist on the right-of-way of said State Highway No. 147, adjacent to the thickly settled portion of the Village.

3. That such well was ten (10) or fifteen (15) feet deep and five (5) or six (6) feet in diameter; that the earth surrounding the well was caving into the same; and that a rotten and dilapidated barricade or curb was permitted to stand on the surface of the earth surrounding the well.

4. That such well was attractive to children of tender years, who had long’ been permitted to congregate and play in the vicinity of such well.

5. That all of such facts were known to the respondent, or by the exercise of reasonable care, might have been known to it.

6. That it was the duty of the respondent to keep and maintain such highway in good and safe repair and condition, and free from holes and pitfalls, and to safely barricade said well; that the respondent carelessly and negligently permitted said highway to be and remain in a dangerous and unsafe condition, and permitted said well to be and remain open and uncovered and with a dilapidated curb or barricade around the same.

7. That on the day aforesaid, plaintiff’s intestate, Billie Roe Stanley, was an infant of the age of six (6) years, and lived close to the aforementioned well.

8. That on said day said child was attracted to such open, exposed and unguarded well, and while at play about the same, and as a direct result of the negligence of the respondent in maintaining such well on said highway, and the further negligence of the respondent in failing to safely guard and enclose the same, said child unavoidably fell into the water which had accumulated in such well and thereby came to his death.

9. That the conduct of the respondent as hereinbefore set forth, was wilful and wanton; and that the death of said child was not the result of any want of care,either on the part of such child, or on the part of anyone charged with his care.

10. That said decendent left him surviving his father and mother; that his father, Pete Stanley, was duly appointed administrator of the estate of said decedent, and as such administrator prosecutes this suit, in which he seeks to recover the sum of $10,000.00 on account of the death of said decedent.

The Attorney General has moved to dismiss the case for the reason that there is no liability on the part of the State under the facts set forth in the complaint. The claimant, has moved to strike the respondent’s motion to dismiss.

For the purpose of the motion to dismiss, the allegations of fact as set forth in the complaint must be taken as true.

Claimant bases his right to an award on either of the following grounds, to-wit:

1. Equity and good conscience.

2. Notwithstanding the general rule that the respondent, in the exercise of its governmental functions, is not liable for the carelessness and negligence of its servants and agents, yet the State should be held liable where the acts and conduct of the servants and agents are wilful or wanton and there is no contributory negligence on the part of the injured party.

In the case of Crabtree vs. State, 7 C. C. R. 207, after a careful consideration of the previous decisions of this court, we held that the law creating the Court of Claims did not create any new liability against the State, nor increase or enlarge any existing liability; that the liability of the State is limited to cases in which the State would be liable either at law or in equity, if the State were suable; and that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

In the case of Titone vs. State, decided at the January Term, 1937, the question here presented was again raised. The authorities were again reviewed, additional citations given, and the rule laid down in the Crabtree case was reaffirmed. Such rule has been applied in thirty (30) cases which are reported in Volume 8 of the Court of Claims Reports, as well as in numerous other cases since decided which have not yet been published.

We have repeatedly held that the State in the construction and maintenance of its hard-surfaced roads is engaged in a governmental function, and that in the exercise of such functions, is not liable for the negligence of its servants and agents in the absence of a statute making it so liable; that the liability, if any, rests upon the negligent servant or agent, and not upon the State.

Counsel for claimant admit that such is the general rule, but contend that an exception to the general rule exists in cases where the acts and conduct of the servants and agents of the State are wilful or wanton, and where there is no contributory negligence on the part of the injured person.

Some years ago such an exception was recognized in several cases, but the court in subsequent decisions has refused to follow such rule, and it is no longer recognized by this court.

In the opinion denying a rehearing in the case of George Franklin Garbutt, Admr. vs. State, No. 2246, filed at the September Term, 1937, the question here under consideration was directly before the court, and we there held:

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

The law as laid down in the Garbutt case was re-affirmed in the case of Durkiewiecz vs. State, No. 2484, decided at the same term.

Under the law as above set forth, there is no liability on the part of the respondent.

The departmental report of the Division of Highways referred to in claimant’s statement, indicates that the well was to be filled by the contractor, but that the sub-contractor for personal reasons failed to fill the same. As to whether there is any liability on the part of the contractor or subcontractor, we express no opinion. In any event, there is no liability on the part of the State.

The motion of the claimant to strike is denied, and the motion of the Attorney General to dismiss is sustained.

Case dismissed.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 3070
    Hans Beresford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Earle A. Klostbr, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On the 3d day of September, 1936 the claimant was in the employ of the respondent as a laborer in the Department of Public Works and Buildings, Division of Highways, and was engaged in repairing a bridge on U. S. Route No. 34, about three miles east of Gulfport, in Henderson County. While engaged in the performance of his duties a heavy cement test beam fell on his right hand, crushing the index finger thereof so badly that it had to be amputated above the second joint.

From the stipulation of facts herein, we find as follows:

1. That claimant and respondent were, on the 3d day of September, 1936, operating under the provisions of the Workmen’s Compensation Act.

2. That on said day the claimant sustained accidental injuries which arose out of and in the course of his employment.

3. That notice of the accident was given to said respondent, and claim for compensation on account thereof made within the time required by the provisions of said Act.

4. That claimant was in the employ of respondent for less than one year preceding the accident; that the annual earnings of persons of the 'same class in the same employment and same location, during the year preceding the accident, were Eight Hundred Dollars ($800.00); and the average weekly wage was Fifteen Dollars and Thirty-eight Cents ($15.38).

5. That claimant at the time of the injury was a single man.

6. That necessary first aid, medical, surgical and hospital services have been provided by respondent.

7. That claimant was temporarily totally disabled from the date of his injury as aforesaid, to November 12th, 1936, and has been paid in full for such temporary total disability.

8. That claimant has sustained the loss of the index finger on his right hand.

9. That claimant is therefore entitled to have and receive from the respondent the sum of Seven Dollars and Sixty-nine Cents ($7.69) per week for forty (40) weeks, as provided in Section Eight (8), Paragraphs E-2 and E-7 of the Workmen’s Compensation Act, as amended.

10. That all of such compensation has accrued prior to this date.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Seven Dollars and Sixty Cents ($307.60).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937, (Session Laws of 1937, Page 83), is, by the terms of such Act, subject to the approval of the Governor, and upon such approval is payable from the Road Fund, in the manner provided by such Act.


author: Mr. Justice Yantis

text:
    (No. 3071
    Rubinelli-Rocca, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

      Rehearing denied December 14, 1937.

    William Jerome Caponigri, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion, of the court:

Claimants, after making application in the usual manner, obtained from the State of Illinois a license as a manufacturer of alcoholic liquors, under the provisions of,the Illinois Liquor Control Act, Chapter 43, Illinois State Bar Statutes, 1935. Such license was issued on the 25th day of August, 1934, and claimants paid the required fee of Five Hundred ($500.00) Dollars therefor.

Claimants now seek a refund of such license fee, claiming that they never were able to avail themselves of the privileges granted by such license, due to the fact that they were subsequently unable to obtain a further license from the Federal Liquor Control Commission, and were therefore unable to engage in the business for which they had obtained the Illinois permit. They further state that the Illinois Liquor Control Commission has approved their claim for refund.

A motion to dismiss the complaint has been filed by the Attorney General, on the ground that such refund is sought for a tax paid voluntarily without protest and without duress.

The contention of the Attorney General is supported by the pleadings. Claimants voluntarily paid the required fee for the license which they desired to obtain from the State of Illinois. In so doing they are charged with knowledge of the statutory provisions of the Act governing the issuance of the license so desired. There is no provision or authority of law for a refund of such license fee in case of the mere non-user of such license, regardless of the reasons therefor, except as contained under Section 26 of Chapter 43, Illinois State Bar Revised Statutes, 1935. The Statement, Brief and Argument, filed by claimants herein, discloses that the reason they failed to obtain from the Federal authorities the necessary authority to operate was that claimants had prior thereto- been convicted for violation of the Liquor Laws, in the United States District Court. Such condition of facts does not take this case out of the usual rule, to-wit:

“Where Claimant voluntarily pays a tax or license fee without protest, and. not under duress or compulsion, no refund will, in the absence of statute, be made.”
Modern Laundry Co. vs. State, 8 C. C. R. 36.
Block vs. State, No. 2971, Court of Claims Opinion filed May 12, 1937.
Oppenheimer & Co. vs. State, 6 C. C. R. 465.
Ill. Glass Co. vs. Chicago Telephone Co., 234 Ill. 535.
The Arundel Corp. vs. State, 8 C. C. R. 506.

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


author: Mr. Chief Justice Hollerich

text:
    (No. 3052
    William Behenke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.
    Diadul & Sakelson, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 25th day of July, A. D. 1936 claimant was in the employ of the respondent as a highway maintenance patrolman, and was engaged in such work as is usually incident to the maintenance of hard-surfaced highways.

On Saturday, July 25th, 1936, while in the course of his employment and while engaged in fighting a forest fire, he stumbled and fell, and thereby bruised and skinned a portion of his left leg.

First aid treatment was given and claimant returned to work on the next Monday morning and worked regularly until October 1st, 1936, when he ceased working for the respondent.

After the accident he was told to take it easy, and was assigned to the work of driving the truck, which was less arduous than the work he previously performed. He kept his leg bandaged, and after waiting a long time for authority to be treated at a State hospital, finally consulted his family physician on September 14th, 1936.

He now claims that his left leg is permanently disabled ; that he has a hernia on the right side; that both such conditions resulted from the aforementioned accident; and that he is entitled to compensation for his present disability under the Workmen’s Compensation Act of this State.

The respondent contests liability on several grounds, only one of which is necessary to be considered.

One of the defenses urged by the respondent is that no claim for compensation was made within the time required by Section 24 of the Workmen’s Compensation Act. Such section provides, among other things, that “no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident.”

Claimant does not contend that any claim for compensation was made prior to the filing of the complaint herein, to wit, on January 27th, 1937, being more than six months after the accident.

Our Supreme Court has held in numerous cases that a claim for compensation within the time required by the Act is jurisdictional, and is a condition precedent to the right to maintain proceedings under such Act. City of Rochelle vs. Ind. Com., 332 Ill. 386; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262; Haiselden vs. Ind. Board, 275 Ill. 114.

Under the decisions of our Supreme Court above referred to, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 3125
    Rholand E. Duncan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Claimant, pro se.
    Otto Kebnee, Attorney General; Muebay F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

The complaint in this case alleges that on the 21st day of May, A. D. 1937 claimant’s Chrysler sedan was properly parked at a filling station on S. B. I. Route 126 just west of Litchfield, Illinois; that while said car was so parked, one of the employees of the respondent in the Division of Highways, backed an Illinois highway maintenance truck into the same, thereby cutting a hole through the metal right rear door and otherwise damaging such car to the extent of $35.70, for which amount he asks an award.

The Attorney General has moved to dismiss the case on the ground that the State is not liable under the doctrine of respondeat superior for the acts of its servants and agents.

We have repeatedly held that the State in the maintenance of its hard-surfaced roads-is engaged in a governmental function, and that in the exercise of such functions, the State is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

This rule has been stated so often in the decisions of this court that the citation of authorities would seem unnecessary. Numerous authorities are cited in the following cases which support the proposition above announced. Braun vs. State, 6 C. C. R. 104; Ryan vs. State, 8 C. C. R. 361; Durkiewiecz vs. State, No. 2484, decided at the September term, 1937; Garbutt, Admr. vs. State, No. 2246, also decided at the September term, 1937.

The rule of law which makes a private employer responsible for the negligent acts of his servants and agents in the performance of their duties, does not apply to the State while engaged in the exercise of any of its governmental functions, in the absence of a statute creating a liability for such acts.

This rule is of general application and has' been recognized for many years. The liability, if any, rests upon the negligent servant and agent, and not upon the State.

The motion of the Attorney General must therefore be sustained.

Motion allowed. Case dismissed.


author: Me. Chief Justice Holleeich

text:
    (No. 3120
    Benson Price and Marie Price, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Nathan Bennett and Joseph L. Mack, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court: •

The complaint herein alleges that on the 28th day of June, A. D. 1937 the claimant, Benson Price, was the owner of a certain automobile; that on said date, about five 0 ’clock p. m., the claimant, Marie Price, was driving said automobile in a southerly direction on Canal Street in the City of Blue Island, Illinois; that said Benson Price was then riding as a. passenger in said automobile; that both claimants were in the exercise of all due care and caution; that the claimant Marie Price brought her car to a stop preparatory to crossing the intersection of said Canal Street and- Chicago Avenue in said City of Blue Island; that the respondent through one of its employees in the Division of Highways then and there so carelessly and negligently drove and operated a certain Ford automobile owned by said respondent, that it ran into and collided with the automobile of the claimant, Benson Price, whereby said automobile was demolished and both of the claimants sustained personal injuries; for all of which they ask an award in the sum of $900.00.

The Attorney General has moved to dismiss the case on the ground that the State is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

We have repeatedly held that the State in the construction and maintenance of its hard-surfaced highways is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. Chumbler vs. State, 6 C. C. R. 138; Braun vs. State, 6 C. C. R. 104; Ryan vs. State, 8 C. C. R. 361; Durkiewiecz vs. State, No. 2484, decided at the September term, 1937.

Numerous other authorities are given in the cases cited, and it would serve no useful purpose to repeat them here.

The motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Linscott •Mb. Justice Yantis

text:
    (No. 2231
    Standard Felt Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March. 13, 1935.

      Rehearing denied December 14, 1937.

    Gibson, Dunn & Crutcher and Henry B. Ely, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed August 10, 1933 for the sum of One Hundred Eighty-seven Dollars and Forty-two Cents ($187.42). The claimant is a corporation organized under the laws of the State of California having its principal office in the City of Alhambra, California.

The declaration alleges that on January 22, 1927 the claimant applied to the Secretary of State of the State of Illinois for a certificate of authority to transact business in Illinois, and a certificate was duly issued by the Secretary of State, and that continuously since that time the claimant has complied with all the laws of this State in relation to the right of foreign corporations to transact business in Illinois, and that claimant is engaged in the sale of felt goods within this State.

At the time of the application for certificate of authorization to do business in this State the claimant informed the Secretary of State that its issued stock was Eight Hundred Fifty Thousand Five Hundred Dollars ($850,500.00) consisting of Four Hundred Twenty-five Thousand Five Hundred Dollars ($425,500.00) of One Hundred Dollar ($100.00) par value common stock and Four Hundred Twenty-five Thousand Dollars ($425,000.00) of One Hundred Dollar ($100.00) par value preferred stock; that between February 1, and June 15, 1927. the Secretary of State notified claimant of an assessment for the annual franchise tax for the year of 1927, which assessment was computed on the entire capital stock of claimant, and upon the proportion thereof actually employed in the State of Illinois, and this assessment was the sum of Sixty-three Dollars and Fifty-four cents ($63.54) which was duly paid by the claimant.

It is further alleged that on December 31, 1927 the claimant retired five hundred shares of its preferred stock of a total principal value of Fifty Thousand Dollars ($50,000.00) or as claimant puts it, Fifty Thousand Dollars ($50,000.00) of the principal stock of the claimant corporation was, in accordance to the claimant’s Articles of Incorporation providing for the redemption of its preferred stock, retired by the claimant, thus reducing its issued capital stock; that notice was given to the Secretary of State of this- reduction of issued stock in claimant’s annual report filed with the Secretary of State of Illinois, about the 10th day of February, 1928 pursuant to the law of Illinois relating to the determination and assessment of annual franchise tax.

It is also alleged that before the 15th day of June, 1928, the claimant was notified by the Secretary of State that the assessment for its annual franchise tax for the year 1928 was the sum of Seventy-six Dollars and Twenty-five Cents ($76.25) and that it was an over-assessment in the sum of Four Dollars and Forty-eight Cents ($4.48); that the last mentioned sum was paid to the defendant by mistake, due to the above mentioned error of the Secretary of State of the State of Illinois.

Averments similar in principal were made for the following years: 1928 wherein it was alleged the sum of Twelve Dollars and Ten Cents ($12.10) was overpaid; 1929 wherein it was alleged the sum of Forty-eight Dollars and Forty Cents ($48.40) was overpaid; 1930 wherein it was alleged the sum of Forty-two Dollars and Seventy-seven Cents ($42.77) was overpaid; 1931 wherein it was alleged the sum of Forty-one Dollars and Eighty-six Cents ($41.86) was overpaid, and 1932 wherein it was alleged the sum of Thirty-seven Dollars and Eighty-one Cents ($37.81) was overpaid.

It is further averred also that demand was made on account of such overpayments upon taxes levied by the Secretary of State of the State of Illinois for the above mentioned years, and the Secretary of State was requested to review these payments and correct the same and refund the monies paid by mistake to the Secretary of State and the Secretary of State advised the claimant that he would not refund the money so paid and referred the claimant to this court.

And because the claimant had reduced its issued capital stock on successive dates, different amounts for the different years are claimed as overpayments, and that each one of the years the Secretary of State was notified of the reduction but did not, in figuring the tax, take into consideration these successive reductions when he computed the franchise tax for those years, and that for the year 1929 an increase of capital stock over the original amount was considered, and the claimant contends that had the Secretary of State used the actual issued stock figure of which he had notice, there would have been no increase in capital stock tax due in 1930 and reliance is had upon Sections 105 and 106 of Chapter 32, of Cahill’s Statutes for 1929. Said Section 105 provides that “each corporation for profit, including railroads and except insurance companies, * * * shall pay an annual license fee or franchise tax to the Secretary of State of five cents on each one hundred dollars of the proportion of its issued capital stock * *

And Section 106 provides that “In ascertaining the amount of the issued capital stock represented by business transacted and property located in this State, the sum of the business of any foreign or domestic corporation transacted in this State and the total property of such corporation located within this State shall be divided by the sum of the total business of the corporation, and the total property of the corporation wherever situated. ’ ’

Nowhere in the declaration is it alleged that such payments by claimant were made under duress or protest. Other provisions of the statute are cited and relied upon by the claimant and several of the opinions of this court are cited and ¡relied upon and more particularly the case of The Caledonia Co. vs. State of Illinois, 6 Ct. Cl. 176, 178 (1929) wherein this court said: “This court has held in numerous cases that when the facts show that a franchise tax was paid through an error in computation, or where the franchise tax was erroneously paid that the claimant is entitled to a refund of the franchise tax which was in excess legally due the State. ’ ’

The declaration is not signed by counsel.

The Attorney General contends that the claimant did not discover the error hereinbefore referred to until about February 3, 1933 on which date the claimant made complaint to the Secretary of State for the overpayments in 1928, 1929, 1930, 1931 and 1932; that since the Secretary’s attention has been called to the error of the reduction of the capital stock, the Secretary of State has acceded to claimant’s request and did correctly base the franchise tax for the -year 1933 on the issued capital stock of Four Hundred Twenty-five Thousand Five Hundred Dollars ($425,500.00).

It also appears from the file that the notice that was sent out annually by the Secretary of State suggested that if the claimant had any objection to the assessment that it should take the matter up with the Secretary of State Department within ten days, but no objections were ever made.

It seems that in the past this court has held that where it appears from undisputed facts that a franchise tax in excess of the amount due was paid through mutual mistake of fact an award will be made. (Commercial Nat’l. Bank & Trust Co. vs. State, 7 C. C. R. 122.)

This court also has held that where the amount of franchise tax is computed and collected by the Secretary of State in accordance with the law based upon information submitted by claimant, a claim for rebate of a part thereof alleged to have been excessive on account of error in information furnished by the claimant, will be denied. (Seth Seiders, Inc. vs. State, 7 C. C. R. 9.) (William Wrigley Jr. Co. vs. State, 7 C. C. R. 153.)

Section eighty-five of Chapter 32 of the Corporation Act then in force provides that each foreign corporation admitted to do business in this State under the provisions of this or of any other section in addition to a copy of its charter, shall keep on file in the office of the Secretary of State, a duly authenticated copy of each instrument amending its charter.

While it is alleged in the declaration that the Secretary of State was in each instance notified of the reduction of the capital stock of the claimant, the provision of the statute last above mentioned does not appear to have been given consideration. The exact question before the court does not seem to have been heretofore presented to the court.

In the case of Henry Yates, Insurance Superintendent, vs. Royal Insurance Company, 200 Illinois 202, in the Supreme Court of this State, said on page 206:

“The mere fact that the Act under which the money was paid was unconstitutional, and the tax for that reason illegally laid, is not sufficient to authorize an action to recover back the amount paid. This principle has received the assent of the courts and law writers generally. Mr. Cooley, in his work on Taxation, (2d ed. p. 809), says: ‘That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial, in such a case, that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back.’ ‘Money voluntarily paid to another under a mistake of the law, but with knowledge of all the facts, cannot be recovered back.’ (18 Am. & Eng. Ency. of Law, — 1st ed. — 223.) This court has declared this same doctrine in numerous cases, among them being Elston vs. City of Chicago, 40 Ill. 514; People vs. Miner, 46 id. 374; Swanston vs. Ijams, 63 id. 165; Union Building Ass. vs. City of Chicago, 61 id. 439; Walser vs. Board of Education, 160 id. 272; Otis vs. People, 196 id. 542.
“Judge Dillon, in his work on Municipal Corporations, (3d ed. see. 944), in discussing this question, states the law to be: ‘Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license or fine, cannot, there being no coercion, no ignorance or mistake of facts, but only ignorance or mistake of the law, be recovered back from the corporation, either at law or in equity, even though such tax, license, fee or fine could not have been legally demanded and enforced.’ And in Section 946: ‘Where there is no mistake or fraud, a voluntary payment cannot be recovered on the mere ground that the one party was under no legal obligation to pay and the other had no right to receive. Where the party would recover back taxes which it is under no legal obligation to pay, the payment must be compulsory.”

There having been no compulsory means used to collect the taxes in question and complainant having failed to comply with Section 85 above referred to, we therefore hold that claimant is not entitled to recover in this instance, and the cause is dismissed.

Additional Opinion on Petition Fob, Rehearing.

•Mb. Justice Yantis

delivered the opinion of the court:

Following the denial of an award in the above entitled cause by the opinion of the court, filed March 14, 1935, a Petition for Rehearing was filed. The original opinion was partly based upon claimant’s purported failure to comply with the provisions of Section 85 of Chapter 32 of the Illinois Corporation Act, wherein corporations are required to file in the office of the Secretary of State, duly authenticated copies of amendments to their charters. Claimant’s Petition for Rehearing calls attention to the fact that it was a foreign corporation, authorized by its original Articles of Incorporation to retire its stock without amendment, and that it had in fact filed notice with the Secretary of State of Illinois of its retirement of stock.

The claim presented a question which so far as the court is informed has not heretofore been passed upon in this State, i. e. as to whether capital stock of a corporation which is “retired” without an amendment of its charter is subject to a franchise tax'? Assuming that Section 85 does not apply, the court is of the opinion that the further reasons assigned in the original opinion for denial of an award are sufficient. Section 112 of Chapter 32 of the GENERAL CORPORATION ACT, State Bar Statutes of 1929, provided that upon notice being given by the Secretary of State, notifying corporations of the amount of franchise tax assessed against them for the year next ensuing, that objections, if any, to such assessment would be heard, etc., upon request within ten days thereafter, with the further proviso for a continuance of such hearing for cause shown.

This court has held that neglect and failure upon the part of a corporation to observe such preliminary right of objection will preclude this court from making an award. The record herein fails to disclose any objections as contemplated by such section, having been made by claimant, and the Petition for Rehearing is denied and the claim is dismissed.


text:
    (No. 3114
    John Munsch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint filed in this case is as follows:

“Complaint of payment of State Liquor License twice in 1934-
May 16, 1934, Application No. 15969, License No. E16791.
July 16, 19334, Application No. 22164, in favor of John Munsch, 3401 Armitage Avenue, Chicago, Illinois.”

The Attorney General has moved to strike the complaint for the reason that the same does not comply with the rules of this court.

Rules Four (4) and Five (5) of this court have reference to the form of complaint, and provide as follows:

“Rule 4. (a) Such complaint shall state concisely the facts upon which the claim is based and shall set forth the address of the claimant, the time, place, amount claimed, the State department or agency in which the cause of action originated and all averments of fact necessary to state a cause of action at law or in equity.”
“Rule 5. (a) The claimant shall state whether or not his claim has been presented to any State department or officer thereof, or to any person, corporation or tribunal, and if so presented, he shall state when, to whom, and what action was taken thereon; and, he shall further state whether or not he has received any payment on account of such claim and, if so, the amount so received.
(b) The claimant shall also state whether or not any third person or corporation has any interest in his claim, and if any such person or corporation has an interest therein the claimant shall state the name and address of the person or corporation having such interest, the nature thereof, " and how and when the same was acquired.”

There is no disposition on the part of this court to he technical or exacting in matters of form, particularly when a claim is filed by the claimant pro se. Nevertheless, there must be a substantial compliance with the requirements of the foregoing rules so that the respondent may know the nature of the claimant’s demand, in order to make a proper defense thereto, and in order to enable the court to intelligently pass upon the questions involved. Wolfe vs. State, 5 C. C. R. 18; Lewson vs. State, 5 C. C. R. 80.

From the complaint as above set forth, it is impossible to ascertain the nature of the claimant’s demand or the amount claimed. Furthermore, no attempt is made to comply with the requirements of Buie 5. The complaint is materially defective both in form and substance, and does not comply with the rules of the court.

The motion of the Attorney General must therefore be sustained.

Motion allowed. Complaint stricken.


author: Mb. Justice Yantis

text:
    (No. 2027
    Spencer Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Vernon G. Butz, for claimant.
    Otto Keener, Attorney General; Carl Dietz and Murray F. Milne, Assistant Attorneys General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein, Spencer Anderson, seeks an award under the terms of the Illinois Workmen’s Compensation Act for injuries received by him on June 2, 1931 while employed as head baker at the Kankakee State Hospital. He originally filed his application for compensation with the Industrial Commission on June 2, 1932. He later dismissed same, and thereafter, on December 10, 1932, filed his application for an award with the Court of Claims. Respondent contends that such application was not filed within the limitation of one year after the date of the injury, or within one year after the date of the last payment of compensation, and that therefore his action is barred under the terms of the Workmen’s Compensation Act, Section 24. Claimant contends that inasmuch as the Compensation Act expressly provides that claims arising under the Act must be filed with the Industrial Commission, claimant has fulfilled his duty, by having actually filed his application with the Industrial Commission as directed by Section 24 of the Act. In making this contention claimant disregards the language contained in the Act to create the Court of Claims, etc., approved June 25, 1917 as amended. In Section 6 (6) thereof, the Court of Claims is given jurisdiction ‘‘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. ’ ’

It is apparent from the foregoing that the entire consideration of a claim by a State employee is to be before the Court of Claims and must be filed therein, nothing pertaining thereto being left within the jurisdiction of the Industrial Commission. In reaching its determination as to the merits of such applications the Court of Claims is governed by the various rules laid down by the Workmen’s Compensation Act.

Fortunately for claimant herein, his mistake was discovered in apt time, and his application was filed with the Court of Claims on December 10, 1932. The last payment resulting from claimant’s employment by the State was paid to him, according to the record, on the 24th day of December, 1931, being for wages for 13 days’ employment and for additional unproductive time when not able to work, being seventeen days in all during June, 1931, for which he was paid. The injury occurred on June 2, 1931 and he worked off and on during the following days until the 13th day of June. He received full pay for the month of July, in the sum of one hundred seventy-four ($174.00) dollars, that being his regular monthly wage. His sworn statement of claim is for temporary total disability of four hundred forty-five and 86/100 ($445.86) dollars, and for medical care and attendance of forty-seven and 50/100 ($47.50) dollars, or a total of four hundred ninety-three and 36/100 ($493.36) dollars. In the reply brief filed by his counsel on September 15, 1937, claimant agrees with a computation made by counsel for respondent that the total amount of recovery due him for temporary total incapacity should be four hundred three and 50/100 ($403.50) dollars, with the further contention therein made by claimant that he should receive an additional award of twenty-eight and 80/100 ($28.80) dollars for the expense incurred in taking evidence in this cause. This latter contentention is without merit and there is no basis for same under the terms of the W. C. A.

The proof herein supports the claim for compensation and shows that the accident in question arose out of and in the course of claimant’s employment by the State; that both claimant and respondent at the time were operating within the terms of the Workmen’s Compensation Act; that claimant sustained an accidental injury on June 2, 1931 when he slipped on the tile floor in the bakery at the Kankakee State Hospital, striking his left shin against the sharp corner of a wooden step causing an abrasion and bruise thereof. The injury was reported to Dr. Francis J. Sullivan, a member of the Kankakee State Hospital staff. He thereafter received treatment from Dr. Sullivan and another attendant, and as the leg began to swell he was confined to his home. About the middle of August claimant worked for approximately three weeks at Walnut Grove as a chef, but as the wound reopened and the leg again began to swell he was unable to work until April 1, 1932.

Compensation' at the rate of fifteen ($15.00) dollars per week for the period between June 13,1931 and April 1,1932 — • thirty-eight and one-half (38%) weeks (omitting the three weeks that claimant worked in August) figures five hundred seventy-seven and 50/100 ($577.50) dollars. From this should be deducted one hundred seventy-four ($174.00) dollars compensation heretofore paid, leaving a balance of four hundred three and 50/100 ($403.50) dollars for temporary total disability as claimed. An award is hereby made in favor of claimant for the latter sum.

This award being subject to the provisions of an Act entitled, “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 3, 1937 (Sess. Laws 1937, p. 83) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 2982
    Jennie C. Holderby, Mother of Joseph C. Holderby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    Crow & Loeff, for claimant.
    Ctto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges that prior to and on the 21st day of May, 1935, Joseph 0. Holderby was in the employ of the respondent as a member of the Illinois State Highway Police; that on said date he sustained accidental injuries which arose out of and in the course of his employment, and which resulted in the death of said Joseph C. Holderby on the 17th day of September, A. D. 1935; that the claimant is the mother of said decedent; that she was solely dependent upon him for her support; — and asks for compensation under the provisions of the Workmen’s Compensation Act of this State.

The Attorney General has moved to dismiss the case on the ground that it does not appear that claim for compensation was made within six months after the accident, nor does it appear that application for compensation was filed within one year after the date of the injury, or within one year after the date of the last payment of compensation, as required by Section 24 of the Compensation Act.

For the purposes of this motion, the allegations of fact as set forth in the complaint must be taken as true.

From such complaint it appears that claimant’s intestate was injured on May 21st, 1935, and that he died on September 17th, 1935. The complaint herein was filed September 16th, 1936.

Section 24 of the Workmen’s Compensation Act provides as follows:

“No proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, 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.”

The complaint alleges that notice of the accident was given immediately, but it is not alleged in the complaint, nor is it contended by the claimant, that any claim for compensation was made by or on behalf of the claimant’s intestate or by or on behalf of the claimant, at any time prior to the filing of the complaint herein, to wit, September 16th, 1936.

It is contended on behalf of the claimant that the claim for compensation required by Section 24 is required only in cases of “injuries” which do not result in death, and that claim for compensation is not required in cases where such injuries result in death.

Claimant also contends that her right to compensation did not accrue to her until the death of said Joseph C. Holderby on September 17th, 1935, and that therefore she.had one year from that date in which to file her application for compensation, and that she was not required to file the same within one year after the date of the injury.

. We cannot agree with such construction of the statutory provisions. Claim for compensation is required not only for the protection of the employee, but also in order that the employer may have an opportunity to investigate the case. In considering this question, Angerstein in 1 ‘ The Employer and the Workmen’s Compensation Act of Illinois,” page 906, says:

“From the standpoint of the employer prompt claim should he made so that he will know whether compensation is claimed, may promptly determine if it is a meritorious case, and so that he may pay compensation if the case is meritorious, or prepare to protect his interests if it is not.”

The question as to the proper construction of the provisions of Section 24 was before our Supreme Court in the case of Central Car Works vs. Ind. Com., 290 Ill. 436, and the court there said, page 439:

“The statute of this State refers to the accident as fixing the date from which the time shall run. Even if the injury may be regarded as occurring only after the effects of the accident have become apparent, we would not be justified, where the express language of the statute requires the claim to be made within six months after the accident, in extending the time to await the development of the injury. The legislature has seen fit to fix the time for making claim for compensation at six months after the accident. By another section of the statute provision is made for reviewing the award and for re-establishing, increasing, diminishing or ending the compensation if the disability of the employee shall have recurred, increased, diminished or ended. These provisions are within the domain of legislative power and the court is without authority to modify them. If they operate unjustly the remedy is in the amendment of the law.”

Our Supreme Court has held in numerous cases that the making of claim for compensation -within the time required by the statute is jurisdictional, and is a condition precedent to the right to maintain a proceeding under the Compensation Act. City of Rochelle vs. Ind. Com., 332 Ill. 386: Inland Rubber Co. vs. Ind. Com,, 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262; Haiselden vs. Ind. Board, 275 Ill. 114.

Such court has also held that where application for compensation is not filed within one year after the date of the injury, or within one year after the date of the last payment of compensation, the claim is absolutely barred. DuQuoin School District vs. Ind. Com., 329 Ill. 543; Chicago Board of Underwriters vs. Ind. Com., 322 Ill. 511.

The law as thus laid down has been applied in numerous eases decided by this court.

Claimant’s intestate was injured on May 21st, 1935 and died on September 17th, 1935, and therefore had nearly four months in which to make claim for compensation for the injuries so sustained by him, and to file application therefor, had he desired to do so. On the other hand, claimant also had ample time to comply with the requirements of Section 24, to wit, over two months, to make claim for compensation, and over eight months to file application for compensation.

Claimant having failed to comply with the requirements of the statute, we have no authority to allow an award, and the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mb. Justice Linscott

text:
    (No. 1984
    William Lepski, Administrator of the Estate of Orilla Garwood, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

    William G. Thon and David G. Stone, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claimant brings this suit in this court as Administrator of the Estate of Orilla Garwood, deceased, and seeks an award of $18,000.00, alleging that in the construction of a highway, the State caused damage to her property in that sum.

In July, 1931, deceased was the owner of a tract of land described as follows, to-wit:

Beginning 296.8 feet Bast of the Northwest corner of the Northeast quarter of Section Fourteen (14) Township Forty-six (46) North, Range (9) East of the Third Principal Meridian; thence South fourteen degrees East 588 feet; thence South 510 feet and being the Southwest corner of real estate conveyed to Harmon A. Garwood by deed dated March 19, 1912 and recorded in the Recorder’s office of Lake County, Illinois, in Book 181 of Deeds on page 601; thence East from said point of beginning 290 feet along the South line of said real estate of Harmon A. Garwood; thence South 226 feet; thence West parallel with the North line 290 feet; thence North 226 feet to the place of beginning; situated in the County of Lake and State of Illinois (except that part North of State Route Highway Number 173.

At that time, the land was bisected by a gravel road. Some four acres of land lay north of the road, and some two or three acres of this land were submerged, and some six acres lay south of the road. The State built Eoute 173 in 1931 and the road seems to have been relocated and claimant’s intestate conveyed a right of way for highway purposes to the State for $150.00. The State proceeded with the construction of the highway on the right of way so acquired.

From the testimony it would appear that the grade of the new roadway was some four feet higher than the grade of the old gravel road. The strip of land deeded to the State was some 290 feet long and the grade in front of the house, about eight and one-half feet, we assume, above the level of a nearby lake, and as one proceeds westerly this grade increases so that on the west line, it is several feet higher. No claim is made for the property so deeded. The adjoining lake is known as Channel Lake.

Owing to the great variance in the testimony of the witnesses for the State and the witnesses for the claimant, this court went to the premises in question, and viewed the roadway, the premises and adjacent property.

It is contended by claimant that she had sold approximately four acres abutting Channel Lake, being the north four acres of the tract, and also being north of the highway, for the sum of $7,000.00, and because of the increase grade in the highway built by the State, the south part of the land, consisting of approximately six acres had been greatly damaged.

We found a very uneven tract of land oh the south side of the road grown up with weeds, with a sign located therein advertising “Worms for Sale.” The claimant no longer has any interest in the land north of the road. There were some trees on the premises; a part of the premises had been used as a sand or gravel pit, and an old dilapidated house, barely fit for human habitation, was located on the south six acres.

It would serve no purpose to review the evidence in detail. A part of this six acres, and a comparatively small part, had been used for gardening, and it is contended that the highway built and known as Route 173 cut off the drainage of this land, and also cut off a view of the lake from the house, being a story and a half high. It is also contended that the approach driveway from the highway onto the premises was short and steep, and people were reluctant to drive with automobiles or other vehicles down onto the premises. From a view of these premises, it would appear that there were not many occasions when one would find it convenient or necessary to drive down upon the six acre tract. The sand and gravel pit it appears, has been abandoned.

We have, however, carefully examined the testimony of Francis S. Baker, a Chicago realtor, a witness for the claimant. He testified that he had known the property for two years prior to 1931, and that before the highway was built, the value of the six acres lying south of the road was $2,800.00 per acre and that after its construction, the total value was $5,000.00, and that he had considered the future use of the property, that is, the six acres in fixing this value.

It appeared to the court, as we viewed the premises in question, and the surrounding territory, that there were not many homes in either direction in close proximity to the house in question, and the testimony of Mr. Baker is not persuasive as to value.

Claimant herself testified that at one time she had been offered $25,000.00 for all of the premises, and that this offer had been made by an ice man, and it also developed that he was related to her. Like Mr. Baker’s testimony, that also was not convincing to the court.

A witness for the State, Mr. Robert C. Abt, a man who had a vast amount of experience in real estate business for a period of fifteen years in that vicinity and who knew the property in question, and had seen it many, many times, both before and after the construction of the highway, testified that the house was about sixty-five years old and in a poor state of repair; that the six acres of land, prior to the construction of the highway, that is prior to July 1, 1931, had been used for a gravel pit; that the elevation of the premises on the six acres in question, had been materially changed; that the entire property consisted of holes where sand and gravel had been removed; that there was always an incline at the point of approach to the new highway; that there is adjoining the property, ninety acres of a subdivision to the east and south of these six acres, about three per cent of which had been sold and improved prior to the construction of the highway for summer cottages; that the highest and best use of that portion of the Garwood property before construction was for a gravel pit and that after construction, the highest and best use, was the same; that neither before or after construction, was the property in question desirable for subdivision purposes; that the cost of putting the property in condition would not justify the expense; that the fair cash market value immediately prior to the construction of the highway was $250.00 per acre and that the fair cash market value immediately after the construction, was $250.00 per acre; and this in the main is the testimony of Mr. Meinersmann, a real estate man with vast experience in selling real estate in that vicinity, with possibly the exception that he was of the opinion that the building of the highway had improved the property.

In Lampp vs. State, 6 C. C. R. 349, and in Baber vs. State, opinion filed by Court óf Claims December 11, 1935, and rehearing denied February 9,1937, this court held that a claimant is not entitled to an award for damages to land not taken where compensation has been paid for land taken; in a voluntary conveyance of a right of way over land to the State it will be conclusively presumed that all damages were included in the consideration paid for such conveyance the same as an assessment of damages in a condemnation suit would be presumed to embrace.

The claimant had testified that she had discussed the change of grade with three men from Waukegan. Presumably, they were representatives of the Highway Department, and she was told by them that the grade would not be changed more than four feet, and presumed that she meant four feet higher than the old gravel road, and a fair construction of the testimony is that the old gravel road had a grade of about four feet higher than the surrounding land.

This court and other courts are committed to the rule that where damages are allowable for property not taken, the measure of damages is the difference in the fair cash market value of the property before and after the construction; said value being based on the highest and best use for which the property was and is so immediately available as to affect the fair cash market value.

The Attorney General argues that the claimant in this case is not entitled to an award for the reason that she has been paid for the land actually used, and for the reason that it must be conclusively presumed that all the damages were included in the consideration paid her for her conveyance the same as an assessment of damages on a condemnation would be presumed to embrace, and cites Lampp vs. State, 6 C. C. R. 349 and Baber vs. State, opinion filed by Court of Claims December 11, 1935, rehearing denied February 9, 1937.

The fair cash market value is the price which a given piece of property will bring if sold on the market under ordinary circumstances, for cash, assuming that the owners are willing to sell and the purchaser is willing to buy. Phillips vs. Town of Scales Mound, 195 Ill. 353.

The Attorney General argues that the claimant has no right to recover in this case because of the conveyance and dedication to the State by claimant’s intestate, which has the same effect as a judgment in a condemnation proceeding, and bars the claimant from a recovery, and cites C. R. I. & P. Ry. Co. vs. Smith, 111 Ill. 363, wherein the court said:

“We regard the deed from Burcky, for the public use of this railroad, as having the same effect upon the rights of the parties, with respect to lot 11, that a condemnation of the same land for such public use would have had, —the one being a voluntary conveyance made for a public use, and the other amounting to a statutory conveyance for such use. Had this right-of-way been acquired by condemnation, Burcky would have had made to him compensation for the value of the' strip of land one hundred feet wide taken, and also an assessment of all the damages to the residue of lot 11 to result from the operation of the railroad. The rule is, that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain, Sec. 216, and cases cited; Chicago and Alton R. R. Co. vs. Springfield and Northwestern R. R. Co., 67 Ill. 142; Keithsburg and Eastern R. R. Co. vs. Henry, 79 id. 290.”

It follows that had the State condemned this right-of-way as against claimant’s intestate, who was the owner of the land at and prior to the time of the construction of Route 173, no recovery could have been had for the damages here sued for. Such damages would have been included in the assessment of damages made on the condemnation, and whether in fact included or not, they would have been conclusively presumed to have been included. The same result, we conceive, follows from claimant’s intestate’s voluntary conveyance of the right-of-way.

In Atterbury vs. C. I. & St. L. Ry. Co., 134 Ill. App. 330, the court held that:

“where a right-of-way for a railroad is conveyed by deed it will be conclusively presumed that all damages resulting to the balance of the grantor’s land from the proper construction and operation of the railroad were included in the consideration paid therefor.”

To the same effect is Lewis on Eminent Domain, Volume 2, Second Edition, page 702, section 293.

In the case of Glenbard Golf Club, Inc. vs. State, 8 C. C. R. 651, wé held that:

“The burden is upon the petitioner to show the fair cash market value of the property, and alleged injury must be based upon lawful and proper elements of damage and not upon conjecture or speculation.”

After a careful analysis of the testimony of the several witnesses for the claimant, we feel that their testimony is based upon conjecture and speculation.

In the case of the City of Chicago vs. Lord, 276 Ill. 571, the Supreme Court said at page 575:

“In ascertaining the compensation to be made to the owner of property appropriated for a public use he is entitled to its value for the most profitable use for which it is available. This availability, however, does not refer to a future possibility but to a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value. ‘Possible or imaginary uses are to be excluded, nor can the owner show the probable future use of the property.’ (Chicago, Burlington and Quincy Railroad Co. vs. City of Chicago, 149 Ill. 457.) ‘Nothing should be allowed for imaginary or speculative damages or such remote or inappreciable damages as the imagination may conjure up and which may or may not occur in all the future.’ (Jones vs. Chicago and Iowa Railroad Co. 68 Ill. 380; Peoria and Pekin Union Railway Co. vs. Peoria and Farmington Railway Co. 105 id. 110; Chicago and Northwestern Railway Co. vs. Town of Cicero, 157 id. 48; Chicago, Burlington and Quincy Railroad Co. vs. Reisch & Bros. 247 id. 350.”

The Attorney General points out that there is nothing in the record that shows any reasonably expected demand in the immediate future for subdivision of the property in question; that on the contrary, the record shows that this property is adjoined on the east and south by a 90 acre tract subdivided in 1927 in which only 3 or 4 per cent of the lots have been disposed of by the subdividers and built upon. He also points out that despite these facts claimant’s evidence as to value is predicated upon the use of the six acres for subdivision purposes.

In Phillips vs. Town of Scales Mound, 195 Ill. 353, at page 362, the Supreme Court held:

“The only criticism made upon the first instruction is the use of the following words: ‘And they are further instructed that they are not to consider the' price which the property would sell for under special or extraordinary circumstances, but its fair cash market value if sold in the market, under ordinary circumstances, for cash, and not on time, and assuming that the owners are willing to sell and the purchaser is willing to buy.’ It is sufficient to say in regard to this instruction, that this court has approved of an instruction, containing the same language.” Authorities were cited herein.

Claimant has filed a brief, a supplemental brief and a reply brief to the Attorney General’s brief and it is not claimed that the opinions of the Supreme Court herein quoted or the opinions of this court have been in any way modified .or changed. As a matter of fact no comment is made thereon although counsel for claimant have been very diligent in citing authorities but this court has heretofore held that where private property is not taken but is damaged for public use, the property owner is entitled to recover, and the proper measure of damages is the difference in the fair cash market value of the property before and after the construction; said value being based on the highest and best use for which the property was and is so immediately available as to affect the fair cash market value, but in none of these cases cited by claimant, is it contended that the owner of the premises had, for a valuable consideration, conveyed the property taken.

As we view the facts herein, no award can be allowed in this case because of the conveyance by claimant’s intestate to the State of the right-of-way, that having the same effect as a condemnation of the same land for such public use would have had, the one being a voluntary conveyance made for public use and the other amounting to a statutory conveyance for public use, the rule being that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce.

An award, therefore, is denied.


author: Mr. Jtjstice Yantis

text:
    (No. 2735
    Peter J. Frieders, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Plain & Plain, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Jtjstice Yantis

delivered the opinion of the court:

No apparent dispute exists as to the facts herein. Claimant, Peter J. Frieders, had been hired by the Division of Highways of Illinois to cut grass and weeds along the S. B. I. Highways in DuPage and Will Counties. He furnished his own team and mower, and went to such points as directed by bis superiors in the Highway Department. On October 10, 1934 he had been cutting grass along State Route No. 59 just south of the Will County line. Along this particular road he had a stretch of nine miles on both sides of the highway, and had been mowing along this section for several days. He took the mower from his home and left it at the scene of his labors, but drove his team back and forth daily, using a spring wagon in which to ride to and from his work. On the date last above stated he had finished his work about 5 o ’clock p. m., and as there would be no other work at this point during the remainder of the year, he tied his wagon behind the mower and started home by the best available route and over the usually traveled way. He proceeded along Route No. 59 for a certain distance, then along a two and one-half mile graveled road to‘ Route No. 65, then over Route No. 65 until he was a short distance west of Frontenac. At that point a man named Bray, driving an automobile owned by one Curtis Middleton, ran into claimant from the rear, causing a wreck and a runaway and throwing claimant to the ground, resulting in a spiral fracture of the neck of the Femur of the left leg, with a displacement of certain boney structure. He was confined to the hospital for six weeks and was then removed to his home, where, after walking with the aid of crutches for about three months, he begun the use of a cane. He was totally disabled until April 15,1936. At the present time his left leg is about one and one-half (1%) inches shorter than the right leg, and he has suffered an apparent loss of power and function in the left leg of twenty-five (25) per cent.

At the time of the accident claimant was married and was the father of eight children then under sixteen (16) years of age. As a result of the injury he incurred a doctor’s bill of One Hundred Three ($103.00) Dollars, due Dr. W. H. Schwingel, of Aurora, Illinois, and a hospital bill of One Hundred Twenty-nine and 90/100 ($129.90) Dollars, due St. Charles Hospital of Aurora, neither of which has apparently been paid. The record further discloses that claimant attempted to collect damages from Curtis Middleton, the owner of the automobile which struck him, but that said Curtis Middleton is insolvent; that the fixtures in the tavern operated by bim are mortgaged and the automobile in question has a lien against same; that the driver Milton Bray is financially irresponsible and was using the car for his own personal purposes at the time of such accident.

Claimant was receiving Fifty (50) Cents per hour for the work in which he was engaged, and during the year next preceding the accident had received Two Hundred Fifty-nine ($259.00) Dollars, being employed during the whole or part of sixteen (16) weeks, making an average weekly wage of Sixteen and 13/100 ($16.13) Dollars per week. The weekly minimum wage upon which an award would be computed is increased from Seven and 50/100 ($7.50) Dollars to Fourteen ($14.00) Dollars per week, under the provisions of Section 8 (j)2, by reason of four children then and there under the age of sixteen (16) years. Temporary total disability, if any is due, amounts to Three Hundred Seventy ($370.00) Dollars for the twenty-six and three-sevenths (26 3/7) weeks of total disability; permanent partial specific loss of twenty-five (25) per cent of the use of the leg, under the provisions of Sections 8 (e), 15 and 17 of the Act, being one-fourth (%) of one hundred ninety (190) weeks, or Six Hundred Sixty-five ($665.00) Dollars.

Respondent contends that the accident did not arise out of and in the course of the employment, for the reason that claimant was not actually engaged in the operation of mowing at the time of the injury, and that the accident occurred while claimant was enroute to his home after completing the task in which he had been engaged.

The general rule stated in the Shegart case, i. e.:

“That an employment does not begin until the employee reaches where he is to work and does not continue after he has left the place of employment,” (Shegart vs. Ind. Com., 336 Ill. 223),

is modified by a number of other decisions. Incidentally, in the Shegart case the claimant had never yet entered the employ of the prospective employer.

In the Vincennes Bridge case cited by respondent, the court held:

“An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.”
(Vincennes Bridge Company vs. Ind. Com. 351, Ill. 444.)

In the Onion Starch Gompcmy case, also cited by respondent, the court held:

“That an accident to be compensable must result from a risk incident to the employment, and that the employee at the time of the accident must be doing that which he is reasonably required to do within the time of his employment and at a place where he reasonably may be expected to be while discharging the duties of his employment.”

The court there further said,

“Whether the exact hour of seven o’clock (when employee’s work began) had arrived or whether it was a few minutes either before or after seven is not material so long as a substantial and reasonable compliance with the employer’s requirements is shown.”
(Union Starch Co. vs. Ind. Com., 344 Ill. 77.)
In another case a prospective employee of a railroad had received transportation on Friday, and on that day traveled on one of respondent’s trains from Decatur, Illinois to a railroad siding near Monticello, where a bunk-car had been placed for the use of employees as living quarters. A few minutes after arrival, this, individual was struck by a train and killed. He had performed no duties and had no duties to perform until the next day, and he was not to begin work until the next day. The Court held that he was not in the employ of respondent at the time of the accident, and that his death did not arise out of and in the course of his employment.
(B. D. & C. R. R. Co. vs. Ind. Board, 276 Ill., 239.)

The facts recited in the foregoing case distinguish it from the case at bar.

In Mueller Construction Company vs. Ind. Board, 283 Ill. 148, the foreman of a construction crew, in order to properly perform his duties was in the custom of arriving at the building where the construction work was being done from twenty to thirty minutes before the other workmen, in order to look over the ground work, make preparation for the day’s labor and to order materials. He was paid by the hour from 8 to 12 and from 1 to 5, and received no extra pay for reporting in advance of the other men. No telephone had been installed where the work was in progress, and during the three or four months they had been at work on the building in question he had used some telephone in the vicinity when the necessity of ordering material arose. On the day of the accident he arrived at the building about 7:30 a. m. He opened the doors in the basement where the tools were kept, and then started to go to a telephone in order to ’phone a Lumber Company for material necessary in the day’s work. He went a block north and started to cross the street when he was struck by an automobile and severely injured. In denying liability the defendant contended: First, that the period of employment had not commenced at the time of the accident, and therefore such accident did not occur in the course of his employment; second, that the injury received in crossing a public street was not one arising out of his employment, but arose from a hazard common to all people who use the public streets. In considering these contentions the Court said:
“The words ‘arising out of’ refer to the origin or cause of the accident and are descriptive of its character, while the words ‘in the course of’ refer to the time, place and circumstances under which the accident takes place * * * as a part of defendant’s duties he was required to order materials as needed, and it may fairly be said, as an incident to such employment, that he would have occasion to use, and did use, a telephone. As none was provided, he would go to some nearby place as occasion required. In going to and returning from such place we think he was as much in the course of his employment as he would have been in going to and returning from a telephone if one had been installed on the premises * * * he was on his way to telephone about a matter which was a part of his employer’s business in the usual course of his employment. Under these facts there can be no serious question but that the accident occurred in the course of the employment. That it occurred before the actual time for the commencement of work is not controlling. Too great stress cannot be placed on the exact time when the earning of wages commenced and ended, but a reasonable time must be allowed before and after such time and included within such period of employment where the employee is at a place where he might reasonably be expected to be at such time and is injured in the course of the duties of his employment. What would be a reasonable time in such case must to a large extent depend upon the particular facts and circumstances of each case.”

In Munn vs. Ind. Board, 274 Ill. 70, the Court held:

“An injury sustained by an employee an hour after his usual quitting time, by inhaling gas while attempting to put out a fire in the coal in and about the boiler and engine room on the employer’s premises, arose out of and occurred in the course of his employment.”

We believe the Mueller case is applicable to the present case upon the question of the time of the accident. In the former case the employee was injured about thirty minutes before his work for the day was to begin, and in the present case claimant was injured about forty minutes after his actual mowing operations on the highway ceased. During those forty minutes claimant had been continuously engaged in removing from the scene of his actual labors the mowing machine and team necessarily used by him in such work. Whether the accident arose out of the employment or from any special risk or hazard peculiar to it or incidentally connected therewith, is a further1 question. Again quoting the Mueller case (supra p. 155) we read, that “ a risk is said to be incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.” It is difficult to reconcile the decisions in cases where employees have been injured while in public places but the gist of the decisions seem to be that there must be some special risk incident to the particular employment which imposes a greater danger upon the employee than upon other persons using the streets. The test however seems not to be that other persons are exposed to the same danger, but rather that the employment renders the workman peculiarly subject to the danger, that is did the circumstances of the employment require the employee to incur some special risk in using the highway? It was necessary in order to mow the grass and weeds along Highway No. 52 that the team and mover be brought to that location,, and that they be removed after such work was finished. The removal of same was a natural incident of the work, and the injury suffered by claimant by being run into on the highway while so removing his machinery and team resulted from a risk incident to the employment, and the employee at the time of the accident, was doing that which he was reasonably required to do within the time of his employment and at a place where he reasonably might be expected to be while discharging the duties of his employment, and the facts herein apparently come within the rule of the Union Starch Company case (supra) as hereinabove stated. It was a part of claimant’s duties to drive the mower to the point where the grass and weeds required cutting, and to remove it from the scene of such operations when the work was finished. Again considering the rule as stated in the Vincennes Bridge Company case (supra,) we believe that “upon consideration of all the circumstances a causal connection is apparent between the conditions under which claimant’s work was required to be performed and the resulting injury; that the injury can be seen to have followed as a natural incident of the work and could have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, ’ ’ i. e., the moving of machinery and equipment over the highways to and from the place of work. We therefore find that the injuries to claimant arose not only in the course of, “but out of his employment,” and that he is entitled to compensation under the terms of the Workmen’s Compensation Act. An award is therefore hereby made in favor of claimant Peter J. Frieders, for temporary total disability for twenty-six and three-sevenths (26 3/7) weeks from October 10,1934 to April 15,1935, in the sum of Three Hundred Seventy ($370.00) Dollars, and for twenty-five (25) per cent permanent partial specific loss of nse of the left leg, in the sum of Six Hundred Sixty-five ($665.00) Dollars, making total compensation of One Thousand Thirty-five ($1,035.00) Dollars, and the further sum of One Hundred Three ($103.00) Dollars payable to claimant for the use of Dr. W. H. Schwingel, and the further sum of One Hundred Twenty-nine and 90/100 ($129.90) Dollars to claimant for the use of St. Charles Hospital, making a total award of One Thousand Two Hundred Sixty-seven and 90/100 ($1,267.90) Dollars.

On the basis of Fourteen ($14.00) Dollars per week minimum payments, the total amount of such award has heretofore been earned, and claimant is therefore entitled to payment thereof in full at this time.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937, p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3045
    Dennis Brothers Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks a refund for a truck license paid December 6, 1935 for Twenty-four ($24.00) Dollars; their contention being that the law under which such license fee was collected “was not enforced and that therefore they are entitled to a refund for the amount paid. ’ ’ The claim is not sworn to as required by Buie 2 (a); it fails to comply with Bule 5 (a) and Buie 5 (b), and contains no bill of particulars as provided bj^ Buie 6 (a), of the Court of Claims.

Neither does it inform the court as to any particulars in regard to the law under which the refund is sought to be obtained.

It appears however, from the statement of the Attorney G-eneral, filed in support of the latter’s motion to dismiss the complaint, that the Motor Vehicle Act of July 9, 1935 which was in force at the time claimant applied for a license, provided as part of Paragraph 21, Section 20, Chapter 95 (a), Motor Vehicle Law, Ill. State Bar Statutes, 1935 as follows:

“If, under the laws of such city, state, foreign country or province, territory or Federal district, motor vehicles or motor bicycles owned by residents of this State, operating upon the highways of such city, state, foreign country or province, territory or Federal district, are required to pay the registration fee and carry the license plates or pay any other fee or tax to such city, state, foreign country or province, territory or Federal district, the motor vehicles or motor bicycles owned by residents of such city, state, foreign country or province, territory or Federal district, and operating upon the highways of this State shall comply with the provisions of sections 8, 9, 9b, 9c, 9d, 9e, 9f, 9g, 9h, 91, 9j, 9k, 10, 14, 17 and 27 of this Act.”

Paragraph 9 of the Act provided in part that the applicant “shall pay to the Secretary of State for each calendar year from and after January 1, 1936 for the use of the public highways of this State, a license fee of Five ($5.00) Dollars for each such vehicle,” and such section also contained the following, “Vehicles having a gross weight of more than eight thousand (8,000) pounds and not more than ten thousand (10,000) pounds, including the weight of the vehicle and maximum load — $19.00. ’ ’

Claimant’s truck, as shown by the license No. C-623, was licensed under these provisions.

Prior to March 30, 1936 no reciprocal agreement had been entered into between the State of Illinois and the State of Iowa, and no such agreement being in effect, the license fee in question was due and payable, and was in fact paid by him voluntarily and without protest. The fact that after March 30, 1936 a reciprocal agreement was entered into and that Illinois fees were not thereafter required, could not entitle claimant to a refund.

Not only, therefore, because of the fact that the claim is not presented in proper form but because under all the facts apparent, no refund would be allowed. The motion of respondent to dismiss the claim is granted and the claim is hereby dismissed.


text:
    (No. 3128
    Vera Nordstrand, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Frederick R. Nyberg, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Fifty-eight and 33/100 ($58.33) Dollars, alleging that on May 1, 1936 her agent paid that sum to the Illinois Liquor Control Commission for the issuance of a license, to retail alcoholic liqudrs at a restaurant then owned and operated by her and known as “A Bit of Sweden,” at 1011 Rush Street, Chicago, Illinois; such license being apparently for the fourteen (14) months’ license period of 1936-1937. Upon payment of such sum claimant’s agent was given a receipt by the commission, numbered 13,010, showing that the commission had received of Mrs. Vera Nordstrand (A Bit of Sweden), of 1011 Rush Street, Chicago, Illinois, the sum of Fifty-eight and 33/100 ($58.33) Dollars.

The complaint further recites that subsequently, on May 26, 1936, claimant not knowing of the action by her agent in paying the deposit of license fee aforesaid, made a further payment of Fifty-eight and 33/100 ($58.33) Dollars to the Illinois Liquor Control Commission for a state license as retailer of alcoholic liquors for the address in question, and upon payment of such sum by her, was given a receipt by the commission, numbered 19,242, and which recited that the commission had received from Mrs. Vera Nordstrand (A Bit of Sweden), the sum of Fifty-eight and 33/100 ($58.33) Dollars as a deposit of license fee for the address in question at 1011 Rush Street, Chicago.

Claimant sought a refund from the Illinois Liquor Control Commission which was refused on June 7, 1937, and the claim was herein filed on October 4, 1937, seeking a refund for the money paid by claimant to the State for a license, for which she had already through her agent previously paid.

It is the opinion of the court that it was the intention of the legislature when it passed the Liquor Control Act for Illinois, that those desiring to engage in the sale of such liquors should pay a license fee therefor, but it was certainly not the intention of the legislature then, nor is it the interpretation of the court of decisions cited by respondent that the State should be paid twice for the issuance of a license for the privilege of engaging in such business. Except for the numbers noted on the two receipts in question, and the variance of dates (one being May 1, 1936 and the other May 26, 1936), the two receipts are exact duplicates.

A license for the location in -question was duly issued on the first application, and as no action was apparently taken upon the second or duplicate application, except the issuance of a receipt for the money paid, the results so far as such second application are concerned are the same as if a denial of license had been made thereon.

Paragraph 146, Chapter 43, Ill. Rev. Statutes, 1937 provides in part as follows:

“All applications — shall be accompanied by the deposit of the full amount of the license fee to be paid for the kind of license applied for, which fee shall be returned to such applicant if such application is denied.”

There is nothing in the law that contemplates or justifies payment being made twice for the license in question, and claimant is apparently entitled to a refund.

The motion to dismiss the complaint is denied, and as no further question of fact appears to be involved, an award is hereby entered in favor of claimant, Vera Nordstrand, for the sum of $58.33.


author: Mr. Justice Yarttis

text:
    (No. 3104
    Bertha S. Errion, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Charles Gr. Dickman and London Middleton, for claimant.

      Otto Kerrter, Attorney General; Glertrt A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yarttis

delivered the opinion of the court:

As no conflict of facts could apparently exist in this cause, a stipulation has been entered into between claimant and respondent, wherein it appears that Oscar Errion had been employed by the State of Illinois from December 21, 1935 up to the time of his death as a laborer in the Division of Highways; that during the period from January 29, 1936 to January 29, 1937 he was steadily employed and received as total wages, the sum of Nine Hundred Ninety-two ($992.00) Dollars; that on the latter date he was working with a maintenance crew repairing the highway known as U. S. Route No. 24 in the Village of Bartonville, Illinois; that while working inside of the barricades adjacent to one-way traffic and while engaged in applying a patent asphalt patch to the pavement, the flames therefrom flared up and as deceased stepped backwards he slipped and fell beneath a hot asphalt kettle trailer, which was being pulled by another state truck along the one-way traffic lane. The dual wheels of the trailer passed over his body from the right knee upward and over the right shoulder. The injured employee was removed to his home and from there to the St. Francis Hospital at Peoria, where he remained until he died on February 22, 1937. Dr. Trewyn, in making a formal report of the patient’s condition, stated, “Nature of injury, ‘comminuted fracture right Clavicle with large hematonia fracture, right Clavicle, with large hematonia fracture, right Ischium — Cerebral Emboli, 2/8/37, from which patient did not recover. Died, February 22,1937.’ ”

¡Respondent paid all hospital and doctor hills amounting to Five Hundred Twenty-one and 36/100 ($521.36) Dollars.

The deceased employee was married but had no children . under the age of sixteen years at the time of his death. If an award is due it is conceded that under Section 7 (a) of the Workmen’s Compensation Act the amount wpuld be a sum equal to. four times the average annual earnings of the employee, but not less in any event than Two Thousand Five Hundred ($2,500.00) Dollars, and not more in any event than Four Thousand ($4,000.00) Dollars, which in this case would entitle her to Three Thousand Nine Hundred Sixty-eight ($3,968.00) Dollars.

As the claim was filed on June 1, 1937, being within six months of the date of the accident, the only question that is presented by the record is, did deceased’s death result from such accident? The medical report, referred to in the stipulation, shows that ten days after the accident of January 29th, Oscar Errion had a Cerebral Emboli, from which he did not recover. Such report also shows the various fractures and injuries which at the time necessitated his presence in the hospital, and it further shows that he died February 22, 1937. The record discloses that the wheels of the truck crushed and fractured the employee’s right pelvic bone, his right collar bone and that he suffered internal injuries. Nothing appears in the record to indicate in any way that the injured employee was suffering from any other ailment or physical condition that might have contributed to his death, and medical experience has shown conclusively that Emboli frequently results in the case of a fracture and consequent injury to the circulatory system. There is no doubt in the court’s mind that claimant is entitled to an award, under the terms of the Workmen’s Compensation Act. Such conclusion is supported by the ruling in the Lunighi Coal Co. case, wherein the court held:

“Where an employee receives injuries to his chest, fractures a rib and the sternum, soon develops pneumonia and dies before his injuries heal, an award in favor of the dependents for the full amount allowed by statute is proper, although the attending physicians testify that the injuries alone would not have produced death.” The Lunighi Goal Co. vs. Industrial Commission, 305 Ill. 475.

Claimant, Bertha S. Errion, is the surviving wife of said Oscar Errion. An award is hereby made in her favor for a sum equal to four times the average annual earnings of said Oscar Errion or Three Thousand Nine Hundred Sixty-eight ($3,968.00) Dollars, being four times the average annual earnings which the injured employee received as wages during the year next preceding his injury, as provided under Section 7 (a) of the Workmen’s Compensation Act. On the basis of his annual earnings, claimant’s average weekly wage amounted to Nineteen and 07/100 ($19.07) Dollars, and payments of Fifty (50) Per Cent thereof would entitle the recipient to the sum of Nine and 53/100 ($9.53) Dollars per week. The amount of Four Hundred Thirty-eight and 38/100 ($438.38) Dollars has accrued as earned compensation for forty-six (46) weeks from the date of the injury to the 17th day of December, A. D. 1937, and claimant is therefore entitled to payment at this time in the sum of Four Hundred Thirty-eight and 38/100 ($438.38) Dollars with future monthly payments to be made to her on the basis of Nine and 53/100 ($9.53) Dollars per week for three hundred seventy (370) weeks until the further sum of Three Thousand Five Hundred Twenty-six and 10/100 Dollars has been paid to her, with an additional final payment of Three and 52/100 ($3.52) Dollars, making a total of Three Thousand Nine Hundred Sixty-eight ($3,968.00) Dollars for which an award is hereby entered in favor of claimant, Bertha S. Errion; such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937, p. 83) and being, by the terms 'of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


author: Mb. Justioe Linscott

text:
    (No. 3041
    Andrew Bubatz et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Butz, Hutchinson, Nutt & Murphy, for claimant.

      Otto Kebneb, Attorney General; Muebay F. Milne, Assistant Attorney General, for respondent.
   Mb. Justioe Linscott

delivered the opinion of the court:

The surviving heirs of Thomas Bubatz, deceased, petition this court for an award, alleging that the death of Thomas Bubatz was a result of a disease contracted in line of duty as a member of the Illinois National Guard. The files of the office of the Adjutant General show that Thomas A. Bubatz was a private in Company E, 108'th Combat Engineers and was on duty at the Second Army Maneuvers with his organization from August 8-22,1936 at Camp Custer, Michigan. It appears that he reported at camp hospital on August 17 and complained of stomach pains and dysentery. He was examined on that date by Captain Malcom Kemper, M. C. of his regiment, who diagnosed the case as acute gastroenteritis. He was not hospitalized but returned to duty. The report of the board on his sickness indicates the disease was incurred in line of duty. He returned to his home with his command on August 22, 1936. On August 26 he consulted Dr. B. C. Buboltz of West 43rd Street, Chicago and complained of having had dysentery with severe abdominal pains on Monday, August 24. Dr. Buboltz examined him at that time and there was no evidence of appendicitis and treated him for acute dysentery. He responded, supposedly, to the medication and felt much better on Tuesday. The doctor contemplated calling on Tuesday but the doctor’s call was cancelled by Bubatz’ family. On Wednesday the doctor was called again and after a careful examination he diagnosed the case as acute appendicitis. This soldier was taken to the German Deacon hospital at 54th and Logan Street, Chicago, where he was operated on and found to have an acute gangrene ruptured appendix with the abdominal cavity filled with pus. He died August 29. The doctor testified that on August 26th he took this soldier to the hospital and performed an operation. The operation disclosed the entire gastro-intestinal tract was infected with general peritonitis; that in his opinion infective dysentery had been present for a week or more; that the dysentery had caused an acute gangrenous appendix which had ruptured. The appendix was removed but the entire abdominal cavity was filled with pus and the deceased died on August 29, 1936. The doctor further testified that in his opinion death was a result of dysentery or gastro-enteritis contracted during the encampment. The record discloses that the claimant left his father, Andrew Bubatz, his mother, Josephine Bubatz, who appears to have been entirely dependent upon him. The deceased was an employee of the International Harvester Company and earned Fifteen ($15.00) Dollars a week. It appears from the record that he turned practically this entire sum over to his mother weekly. He was a young man about 20 years of age. From the examination of the testimony of the record, we conclude that the death of Thomas Bubatz after an operation which disclosed a ruptured gangrenous appendix, was caused by dysentery or gastro-enteritis contracted in line of duty. We have heretofore held in accordance with the following:

“Where it clearly appears that member of Illinois National Guard contracted disease while in the performance of his duties, resulting in his death, an award may be made to his dependent under the provisions of the Military and Naval Code.
Casey vs. State, 8 C. C. R. 754.
The State Court of Claims shall act on and adjust such claims as the merits of each case may demand.
Chap. 129, Art. 16, Sec. 11, Par. UfS, Illinois State Bar Statutes, 1935.”

After considering the age of claimants’ intestate, his illness, burial expenses, etc., we are of the opinion that the father, Andrew Bubatz and mother, Josephine Bubatz were practically entirely dependent upon this deceased soldier and we recommend to the legislature an award in this case in favor of the said father and mother in the sum of Five Thousand ($5,000.00) Dollars.