text:
    Catherine Morrissey v. State of Illinois.

      Opinion filed November 19, 1914.

    1. Contributory Negligence — when claimant not chargeable with. Where a claimant, who in passing over a bridge has no knowledge of any of its defects, he will not be chargeable with contributory negligence.
    2. Notice of Defect — what is. An examination of the bridge by an employee of the Illinois and Michigan Canal Commission, after notice of a defect in the bridge, is notice to the State.
    • 3. Constructive Notice — what constitutes. The evidence in this claim also shows, that the defect in the bridge had existed for such length of time as would constitute constructive notice.
    4. Municipal Officers — duty as to bridges, etc. A duty is imposed upon municipal officers to use ordinary care in keeping the bridges, culverts, etc., of such municipality in safe condition for public travel, and this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences. (City of LaSalle v. Porterfield, 138 Ill., 114; Sherwin v. City of Aurora, 257 Ill., 458.)
    5. Acceptance — what will not constitute* The replanking of the bridge by the corporate authorities of the Village of North Utica, following an offer by the Canal Commissioners to turn the bridge over to such authorities, will not amount to an acceptance of such bridge by the corporate authorities of North Utica.
    6. Governmental Function — Business Enterprise — where State exercises former no liability attaches — but in case of latter liability does attach. Where the State exercises a governmental function only, no liability attaches, whereas, if it is engaged either wholly or partially in a business enterprise, and the exercise of the governmental function cannot be disassociated from the business enterprise, liability attaches.
    7. Holmes v. State — overruled. The case of Holmes v. State, 1 Court of Claims Rep., 324, overruled.
    8. State — -maty act how. The State may act in a governmental way along the same lines that an individual may act.
    9. Same — not a corporation. The State of Illinois is not a corporation in any sense.
    10. Cities — may be liable when township or school district would not be. A city may be liable in damages in case where a township or school district would not be.

      11. Same — no liability where it acts governmentally. Where a city exercises a governmental function, no liability in tort attaches.
    12. Canal Commissionebs — not a corporation — are what? The Canal Commissioners are not a body corporate. Such commissioners and their employees are public servants under the exclusive control of the State, and they derive their powers solely by virtue of the statutes of the State.
    13. Liability op State — rests on statute. Where the State has assumed liability for injuries to those in its service, such liability is assumed by virtue of some statute of the State.
    14. Governmental Function — conduct of University of Illinois is, exercise of. The State in conducting the University of Illinois acts in a governmental capacity, and is not liable in tort. (Jones v. State, supra), and the penitentiaries in the manufacture of goods and wares act governmentally, and are not liable in tort. (Taylor v. State, supra). The cases of Minear v. State Board of Agriculture, 259 Ill., 549; Hern v. Iowa State Agricultural Society, 91 Ia., 97; Berman v. Minnesota State Board of Agriculture, 93 Minn., 125; Trustees of Illinois Industrial University v. Board of Supervisors of Champaign County, 76 Ill., 184, and Chicago v. Williams, 182 Ill., 135, cited by the Court.
    15. Jurisdiction — Act creating Court did not increase liability of State. The Act creating this Court did not increase or enlarge the State’s liability.
    16. State — where stockholder in corporation — liable. Where a State becomes stockholder in a corporation, it divests itself, for the purpose of the business, of its sovereign capacity and liability attaches.
    17. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State.
    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimants:
    The canal is a business enterprise.

      Holmes v. State of Illinois, 1 C. of C. R., 324.
    The State is liable to individuals for the misfeasance, laches, acts or neglect of its officers, agents and servants, when such officers, agents and servants, in what they do, are not proceeding in the mere carrying out of the purely governmental policy or functions of the State, but are doing those things, which have relation to the management of corporate or private concerns of the State conducted for profit, as a business enterprise.

      Bank of U. S. v. Planters Bank of Ga., 9 Wheaton, 904; Hand v. Brookline, 126 Mass., 324; Scott v. Manchester, 1st Hurlstone & Norman (English, case), p. 59; Scott v. Manchester, 2d Hurlstone & Norman, 208; Oliver v. Worcester, 102 Mass., 489; Hill v. Boston, 122 Mass., 344, 358, 359; Western Saving Fund Society et al. v. Philadelphia, 31 Penn. St., 185, 189; Bailey v. Mayor, etc., 3d Hill (N. Y.), 531, 539; City of Chicago v. Williams, 182 Ill., 135; Barnard & Co. v. County of Sangamon, 190 Ill., 116; City of Chicago v. Sexton, 115 Ill., 230; County of Cook v. Harms, 108 Ill., 151; City of Chicago v. Selz, etc., 202 Ill., 545; Culver v. City of Streator, 130 Ill., 238.
    The State of Illinois not only collects toll for passage over the canal, of boats and barges, but receives rent from the real estate owned in connection with this canal. Also sells ice and water to institutions along its banks, and further derives considerable revenue from water power.
    Section 8 of the statute creating the canal, specifies certain revenues not at all compatible with the mere use of the canal as a means of communication by water.
    Section 12 of said Act requires the commissioners of the canal to make quarterly statements, and to “pay into the State treasury the balance of all moneys in their hands, except such sums as shall be necessary to be retained by them for the purpose of making repairs upon said canal, locks and dams. ’ ’
    Sections 15 to 24, both inclusive, comprise a system of fines and penalties, and section 27 disposes of the fines, by directing them to be paid into the State treasury.
    A quasi corporation may, however, by its own voluntary act, become something more than the mere governmental instrumentality, that the State originally made it and intended it to be, and may thus assume a new character. Such a change of character may be brought about, it seems, by the assumption and performance of some special duty, undertaken for its own private advantage which has beeñ either imposed upon it by the legislature with its own consent, expressed or implied, or conferred upon it by the legislature, at its request, or voluntarily assumed without any action on the part of the legislature. When a quasi corporation assumes in any one of these ways, the performance of duties for its own private advantage, it thereby ceases to be a pure quasi corporation, and becomes to that extent a municipal corporation proper. With such, a change in character, comes also a change in the rule of liability, and such corporation is held to be responsible to the same extent as a municipal corporation proper, under like circumstances.

      Thompson v. Polk, 38 Minn., 130 (1888), 36 N. W. Rep., 267; Schussler v. Hennepin County, 67 Minn., 412 (1897), 70 N. W. Rep., 6; Rowland v. Kalamazoo County, 49 Mich., 553 (1883), 14 N. W. Rep., 494; Moulton v. Scarborough, 71 Me., 267 (1880); Hand v. Brookline, 126 Mass., 324 (1872); Coburn v. Mateo County, 75 Fed. Rep., 520, 537 (1896); Williams on Municipal Liability for Tort, Chap. 1, p. 3-7; Tollefson v. City of Ottawa, 228 Ill., 134.
    The State by its own Act created the canal, and for over seventy-six years has operated it, maintaining and rebuilding bridges at this particular intersection, during all that time, except such temporary repairs as were made by the village of Utica.
    A municipal corporation acting in its private capacity having the lawful power to do the act, may be estopped the same as an individual. This distinction is clearly set forth in State v. Illinois Cent. R. R. Co., 246 Ill., 188. At page 234 the Court denies that the State’s charter to the defendant, made the arrangement a partnership and a private business enterprise, and therefore subject to the doctrine of estoppel, and declaring the proper application of estoppel as follows, viz: “That the rule (Estoppel of the State) invoked by appellee on this point, applies only to contracts, where the State goes into business as a partner with individuals, or in competition with her citizens.” The Court then quotes with approval Barnard Co. v. Sangamon, 190 Ill., 116, and Chicago v. Sexton, 115 id., 230 which were cited by the Court of Claims decision in the Holmes case.

    The provision for fines for fast driving was for the purpose of preventing injury to the property owned by the State and the State, and not local municipalities wherein the bridges were located, received the fines collected therefor. Constructing bridges over the canal is prevented under penalty, the fine to be paid to the State, the State thereby declaring that it has the sole power over the bridges.
    Cities have authority to construct bridges and make public improvements by authority generally delegated by the State, but where the State specifically restrains everybody from in any manner interfering with bridges, repairing, or building new bridges over the canal, the care and maintenance, and the duty of building bridges remains entirely within the sovereign power of the State.
    Canal Act. Hurd’s Rev. Stat., Chap. 19; Rouse v. Somerville, 130 Mass., 361.
    When constructed by public authority, they are in law regarded as public highways, with the right of tolls attached.

      Rogers et al. v. Bradshaw, 20 Johns, 735; Riddle v. Props, of Locks 7 Mass., 169; Commonwealth v. Fisher, 1 P. & W. (Penn.), 462; Cooper v. Williams, 4 Ham. (Ohio), 253; 1 Wait’s, Actions and Defenses, 736; Rex v. Kent, 13 East., 220.
    The fact that the village of North Utica may have been guilty as joint tort feaser with the canal authorities, will not relieve the State of its liability to claimants.
    The partial assumption of control of a bridge by a municipality, does not deprive the Canal Commissioners of their rights, or relieve them from the duties and liabilities in respect thereto. The statute imposed certain duties on the city of Marseilles. It was a charter duty imposed upon the village to repair bridges and the fact that the township authorities assumed control of the bridge, did not relieve the village from its duties.

      Village of Marseilles v. Howland, 124 Ill., 547; Rouse v. Somerville, 130 Mass., 36.
    Where private persons cut a canal across a public highway for their benefit held bound to erect and maintain a bridge over same.

      Phoenixville v. Phoenix Ins. Co., 45 Penn. St., 135.
    Claimant was not guilty of contributory negligence .

      Jones v. Shelby Co., 100 N. W., 520 (Ia.); St. Louis Bridge Co. v. Miller, 138 Ill., 465.
    The State was bound to use ordinary diligence, and is liable for want of ordinary care on the part of its servants.

      Weisenberg v. Winneconne, 56 Wis., 667; City of Chicago v. Major, 18 Ill. 349; City of Chicago v. Hesing, 83 Ill., 204; City of Aurora v. Dale, 90 Ill., 46; Aurora v. Hillman, 90 Ill., 61.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel) for State:
    The rule of respondeat superior does not apply.

      Moody v. State Prison, 128 N. C., 12, 53 L. R. A., 855; Murdock Parlor Grate Co. v. Comm., 152 Mass., 28, 8 L. R. A., 399; Gibbons v. U. S., 8 Wall., 269; Town of Waltham v. Kemper, 55 Ill., 346; Hedges v. County of Madison, 1 Gilm., 567; White v. County of Bond, 58 Ill., 297; Symonds v. County of Clay, 71 Ill., 355; Hollenbeck v. Winnebago County, 95 Ill., 148; Elmore v. Drainage Comrs., 135 Ill., 269; Town of Odell v. Schroeder, 58 Ill., 353; Nagle v. Wakey, 161 Ill., 387; Kinnare v. City of Chicago, 171 Ill., 332; Belt v. State, 1 Ct. Cl. Rep., 266; Wallace v. State, 1 Ct. Cl. Rep., 268; Balsley v.
      State, 1 Ct. Cl. Rep., 295; Hatfield v. State, 1 Ct. Cl. Rep., 225; O’Donnell v. State, 1 Ct. Cl. Rep., 255; Schmidt v. State, 1 Ct. Cl. Rep., 76; State Bank of Chicago v. State, 1 Ct. Cl. Rep., 158; Ross v. State, 1 Ct. Cl. Rep., 175; Johnson v. State, 1 Ct. Cl. Rep., 208; Alexander v. State, 1 Ct. Cl. Rep., 214; Brewster v. State, 1 Ct. Cl. Rep., 215; Harper v. State, 1 Ct. Cl. Rep., 322.
    In constructing, operating and maintaining the Illinois and Michigan Canal, the State is exercising its sovereign political functions.
    One of the chief cares and imperative duties of all governments is the aid, encouragement, stimulation and promotion of intercourse, trade and commerce. This duty is universally recognized, and in its exercise, the State is discharging its sovereign functions.

      Denning v. State, 123 Cal., 316; Sharples v. Mayor, 21 Pa. St., 147; Rubottom v. McClure, 4 Black (Ind.), 505; L. S. & M. S. v. Ohio, 173 U. S., 285; 1 Farnham, Water & Water Rights, Sec. 98, p. 443.
    It was the exclusive duty and obligation of the village of North Utica to repair and maintain the bridge. No duty on the State to' build or maintain bridges .

      People ex rel. v. Canal Trustees, 14 Ill., 402.
    The rule of estoppel cannot be invoked, the State being a sovereignty.
   On July 4, 1910, claimant, Catherine Morrissey, was walking across a bridge at North Utica, over the Illinois and Michigan canal. There were several people congregated on the bridge with the purpose of witnessing a tubrace, which was to be held on the canal as a part of the Fourth of July celebration, then being held in the village. When claimant had reached a point about the middle of the bridge, the bridge suddenly collapsed, and she was caught in the wreckage and her left leg was broken between the ankle and knee, and she received injuries to the back.

The injuries to the leg were very severe, consisting of a compound fracture of both bones between the knee and ankle, the skin being broken and bones protruding. The tibia was broken into fragments. Claimant remained in a hospital at Ottawa from July 5 to August 10, and the leg was kept in a cast until December 1, and an X-ray examination at that time disclosed that the fibula had united irregularly and that there was no bony union of the tibia. She used crutches until May 1, 1911, and after that time used one crutch until November, 1911. Since that time she is unable to walk without the use of a brace, and never will be able to use the leg without using a brace. The leg is one inch shorter than the right leg, and the prognosis is bad; in addition ishe sustained nervous disturbances.

Prior to the injury she was a seamstress, but since then has been unable to work. The testimony shows that she has been put to an expense of about $1,100.00. The nearest bridge to the bridge in question, in either direction across the canal, is at a distance of five miles. North Utica, at the time of the accident, had a population of about one thousand, and this bridge was used considerably by farmers hauling grain, by the Fire Brick Company which hauled clay, by pedestrians and for divers other uses. The canal at the point in question runs due, east-and .west. The street upon which the bridge was located, was, prior to the establishment 'Oi'tlie village and the construction of the canal, a public highway, connecting the old village of Utica, which lay along the Illinois River, about one mile south of., the present village, with the country north. Since the construction of the canal, the old village of Utica has gone out of existence.

The bridge was erected in 1901, being of the type known as the “Knock Down Bridge.” It was built by and under the direction of the Canal Commissioners, and was of a type common along the canal. It was a truss bridge, constructed with two top chords and with perpendicular beams or rods, which ran down from the top chords to the timbers beneath. The top chords were supported on slanting chords called ell chords, which in turn rested on iron shoes, which rested upon piers on either bank of the canal. The shoes were likewise connected with each other by a succession of iron rods, which ran the length of the bridge, to prevent them from spreading. The perpendicular rods, connected with timbers running crossway of the bridge, called needle beams, upon which were laid stringers, and across which in turn was laid- the floor of the bridge.

The weight of the bridge was first supported by the top chords, and in turn by the ell chords and shoes resting on the piers. The bridge was calculated to sustain from fifty to seventy-five tons without danger.

In the summer of 1908, a sidewalk was put upon the west side of the bridge by the village of Utica. It was bolted to the timbers underneath the bridge, but its construction in no way weakened the structure. The Canal Commissioners had knowledge of the fact that this sidewalk was there.

On the day of the accident in question, there were perhaps one hundred people on the bridge, but the evidence shows, that this bridge had at many times previous, supported a far greater weight of clay wagons and teams, traction engines, droves of cattle, etc.

At the time the bridge collapsed, there was no warning in the way of cracking of timbers, so that the people could get off the bridge. There was no sign or notice of danger on the bridge.

It is evident that the southwest ell chord was rotten, and several of the exhibits in the case were pieces of the various chords which were rotted.

About two months before the accident, the superintendent of the canal made an examination of the bridge at the request of the village authorities, which examination consisted of rapping the timbers with a wrench and using his knife. It is apparent that it was but a very superficial and cursory examination, as a thorough examination would have undoubtedly shown the defective condition of the structure.

Claimant contends, that she herself was in the exercise of ordinary care; that the bridge was the property of, and under the control of the State; that the State was negligent; that the State, in the conduct of the canal, was not exercising a governmental function, but was conducting purely a business enterprise; that if there is any liability on the part of the village, it is concurrent with that of the State.

The evidence further shows, that the Canal Commissioners, by resolution, attempted to turn the bridge over to the village of North Utica, but there is no evidence of any acceptance by the village, and while there is evidence, that the village exercised some jurisdiction over the bridge, at the same time, the Canal Commissioners also exercised some jurisdiction, and the fact has crept into the evidence, that the bridge to replace the fallen structure, was constructed by, and at the expense of the State, through the Canal Commissioners.

There is no dispute as to the principal facts in the case, i. e., the accident and its cause, the injury and the extent thereof; and the questions involved are very largely purely questions of law.

We will discuss first, the question as to claimant’s care or lack of care, and the negligence of the defendant :

Claimant had no knowledge of any defects in the bridge, or of any danger incident thereto. She was walking across the bridge when it collapsed. The mere statement of these facts, gives evidence, that claimant was not in any way negligent.

Applying the common rule as to notice on the part of the State of defect in construction, assuming for the time being, that the State owed a duty, we are of the belief, that the State had notice of the defects and danger.. An examination was made by an employee of the canal commission about two months before the accident. The examination was purely superficial, but it was made after the receipt of notice of defect. From the testimony in the case, and from the examination of the exhibits, it must be evident, that this examination was indeed entirely superficial, and in no sense thorough, else the defects complained of, would have been discovered. In this particular, the State, by its employee, charged with the duty, was negligent. Aside from these facts, this defect must have existed for such a length of time, that the rule of constructive notice would apply. •

In the City of LaSalle v. Porterfield, 138 Ill., 114, quoted with approval in Sherwin v. City of Aurora, 257 Ill., 458, the Supreme Court said: “* * * It is the duty of municipal officers to use ordinary care in keeping its bridges, culverts, etc., in a safe condition for public travel, and this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences * * This statement of the law is in like manner, applicable to the State, if it maintained the bridge, not in a governmental capacity.

We naturally now turn to the consideration of whether or not the State exercised any ownership or control of the bridge in question.

The evidence on this phase of the case is quite voluminous, and there is some conflict. In an endeavor, however, to reconcile the somewhat contradictory evidence of the parties, and to apply the law thereto, we will first briefly state our conclusions on the facts.

At the time of the accident, the State had operated the canal upwards of seventy-five years, and during that time had maintained a bridge at this particular highway crossing. The highway crossing at this point was in existence before the canal was built, and the building of the canal was necessarily subject to the rights of the public in the highway, and in recognition of this fact, bridges have been built and maintained at this point of crossing. On November 7,1902, the Canal Commissioners served a notice upon the village of Utica, wherein, after stating that the law would not impose any duty upon them to build, maintain or keep in repair any bridges over the canal, but that such duty rested upon the village, the commissioners notified the village, that they would not build any bridges across the canal, that they would not thereafter maintain or keep any of the bridges over the canal in repair, and, that as soon as said bridges became in need of repair, the commissioners would be compelled to close or remove them, unless some other arrangements were made. This was followed in the same notice by the statement, that the Canal Commissioners “hereby offer to deliver to you, and transfer to you, the ownership of all bridges,” which were built by the State, upon proper terms to safeguard and protect the canal.

This notice was received by the village board of North Utica on December 2, 1902, and referred to the village attorney. On December 1, 1903, the village board ordered the planking of the canal bridge.

There is no evidence of any actual acceptance by the village of the bridge, unless it be the fact, that the village board ordered the planking of it. The Canal Commissioners evidenced having had no faith in the efficacy of their notice, as the record shows that the State offered evidence, that at a meeting of the Canal Commissioners, held on July 12, 1910, it was voted to erect a new bridge in place of the one that was destroyed, and a new bridge was erected by the Canal Commissioners. We do not believe, that the mere fact that the village board replanked the bridge, was an acceptance of the bridge by the village from the State. It is undoubtedly the fact, that this work was done by the village because the condition of the bridge was such, due to the negligence on the part of the Canal Commissioners, that the work had to be done.

The evidence leads us to believe, that the commissioners themselves, did not take the notice, which they served upon the village, in any way seriously, nor did they consider, that they had parted with the ownership of the bridge. On receipt of a letter from the village president, a few weeks prior to the accident, the Canal Commissioners sent an inspector to make an inspection, and after the collapse of the bridge, the canal authorities cleared away the wreckage, evidencing the ownership of the structure by the State, by removing the timbers to Lockport.

The most that can be said in favor of the State’s contention as to the ownership of this bridge, would be, that the village exercised some jurisdiction over it and might be jointly liable with the State, in a proper case, for damages.

We do not agree with counsel for the State in their contention, that there is no evidence that the highway of which this bridge was a part, existed prior to the building of the canal. The evidence of John L. Clark, a man eighty years of age, who resided in the Township of Utica from 1834 to 1883, establishes, this fact.

Up to this point it may be said, that if the status of the State, in the case at bar, was the same as that of an ordinary body corporate or an individual, the duty of this Court, with reference to determining the liability of the defendant, would be clear, but we are now called upon to determine the status of the State with reference to the manner of its control of this canal. If the State exercised governmental function only, then there can be no liability, as has been repeatedly held by this Court, and courts of last resort generally. If, on the other hand, the State was engaged in a private enterprise, we will say to the extent if it was but partially so engaged, and the exercise of governmental function could not be dissociated from the private, then, of course, a liability would attach.

We are asked by the State to decide this case squarely contrary to the opinion of this Court, in the case of Holmes v. State, 1 C. of C. R., 334, and likewise contrary to the opinion of our immediate predecessors in office, who passed upon a demurrer filed by the State on which this, and other questions were raised. In the Holmes case, the facts were materially the same as in the case at bar, and the Court in that case found for the claimant. On a demurrer in this case, decided June 15, 1912, as before stated, the contention of the State was overruled.

If we are to be guided solely by the precedent established by this Court, in this particular instance, we might again .say our course would he clear, but we deem it our duty to consider the precedents of courts of last resort, and to give to the opinions of our own Supreme Court, far greater weight than to the precedents established by this Court.

An examination of the cases leads us irresistibly to the conclusion, that the test of the capacity in which the State acts is, not what its agents may have been doing, but, it is to be determined under what authority or law the agents were acting, and whether or not the State retains sole control of the agency involved. It cannot be said, that the State cannot act governmentally along exactly the same lines, that a private individual may act. We can readily appreciate, that the leasing of privileges to cut ice or power privileges may be, in their nature, private enterprise, yet on the other hand, it cannot be said that the State in the exercise of governmental function, cannot do these very things. The State is not a corporation in any sense of the word. A city is subject to liabilities, to which a township or a school board or a state are not liable, because it has a qorporate entity. In those acts which are enjoined by law on a city, a city acts governmentally, and no liability attaches for negligence of omission or commission by its officers or agents. In this case, the Canal Commissigners are not in any sense a body corporate. If they were, this action would be brought against them as such body, and not against the State. The State, in the discretion of its legislature, may change the official organization of the canal commission at will, and the Canal Commissioners and their employees are, in every sense of the word, public servants, under the complete control and direction of the State. Whatever of authority is vested in the commission or its employees, is either specifically provided for by statute, or is necessarily incidental thereto. The conduct of the canal, is solely within the control of the State, and measured by the test, as heretofore stated, it would appear, that in the conduct of the canal, the State acts solely in a governmental capacity.

The Holmes case is practically sui generis, with respect to the holding of this Court in the past, in holding that the State entered into a private business enterprise. There are cases, wherein the State has assumed responsibility for injuries sustained, even when the defense of the exercise of governmental function might have been interposed, but this is done only by statute, and the State clearly has the right to do that; for instance,. in the Military and Naval Code, it is provided, that one in the service injured while on duty shall be compensated therefor, so the State could have enacted that one injured through negligence of the State, on the canal, should be compensated, but the difficulty confronting the claimant is, that there is no statute that so provides, and in the absence of such statute, it is the opinion of this Court that the finding in the Holmes case should not be followed.

The State of Illinois, in many of its institutions and branches of government, does things which private individuals likewise do. For instance, at the University of Illinois, tuition is charged, students are employed in various capacities, and the same, things are done in other universities, privately owned, yet, this Court has repeatedly said, that the State in the conduct of the university exercises a governmental function, and we have held, in Jones v. State, October Term, 1918, that there can be no recovery arising in tort at the university.

The penitentiaries, surely governmental in their nature, have in the past made and sold large quantities of goods of various kinds, undoubtedly at a profit, but persons injured while at work, whether convicts or employees of the State, have been denied a recovery because of the nature of the institution. Taylor v. State, October Term, 1913. The Supreme Court of Illinois, in Minear v. State Board of Agriculture, 259 Ill., 549, in its opinion filed October 28, 1913, which it will be noted is subsequent to the decision on the demurrer in this case by our predecessors, discusses a question similar to the one in the case at bar. At the Illinois State Fair, plaintiff paid admission to the grounds, and while on an elevated seat was, due to the breaking of the stand in which he was seated, thrown to the ground and injured. The case has many points of similarity with the one under consideration with respect to the legal questions involved. Plaintiff in that case, sued the State Board of Agriculture, under the section of the statute authorizing the board to be sued. Under the statute the State Board of Agriculture is authorized to hold its fairs. Persons holding fairs can and do act in private capacities, but this is no reason why a state cannot do the same thing. It was argued by plaintiff in the Minear case, that the State Board of Agriculture acted both govemmentally and privately, but the Supreme Court held that it “was created as an arm or agency of the State for the purpose of managing and conducting a department of the State, and all the powers conferred and duties enjoined upon the board were for the purpose of enabling it to manage the department in such manner as to best promote the objects of its creation.” In the case of Hern v. Iowa State Agricultural Society, 91 la., 97, is a statement quoted in the Minear case. “The only question for us to determine is as to the liability of the society for the acts complained of, and at the outset it is important to have in mind that the society is in no sense a corporation for pecuniary profit. It is an agency of the State. It exists for the sole purpose of promoting the public interests in the business of agriculture. Its public character more fully appears when we consider that its 'organization is provided for by statute; that it has no stockholders; that by law the president of each county agricultural society in the State, or other delegate therefrom, duly authorized, is made a member of the board of directors; that said board is required to make annual reports to the Governor, which are to be distributed throughout the State; that the powers of the board are prescribed by statute. * * * Not being a corporation for pecuniary profit, the defendant society’s liability is not controlled by the rules of law applicable thereto. The society is an arm or agency of the State, organized for the promotion of the public good and for the advancement of the agricultural interests of the State. It would be manifestly wrong to permit its funds to be used to pay damages arising out of the commission of wrongful acts by its officers and. servants and which are in no wise connected with the object and purpose of the society’s creation.”

In the case of Berman v. Minnesota State Board of Agriculture, 93 Minn., 125, cited in the Minear case, the Court held, that the defendant was a department of the State, and said “the necessary result of this conclusion places the society directly under the exclusive authority of the State, which may change its officers or its organization and provide for different regulations for the government of the fair, as the best interests of the public may, in the judgment and wisdom of the legislature, hereafter determine. Hence for such injuries as plaintiff claims to have sustained an appeal to the legislature furnishes the only redress, and we must assume that it will be granted if deserved.”

And the Minear case, the Court, in holding that the State Board of Agriculture is a branch of the government, held that it could not be sued in tort. We cannot see any difference in principle between that case and the case under consideration.

In the case of Trustees of Illinois Industrial University v. Board of Supervisors, 76 Ill., 184, an attempt was made to tax the lands of the Illinois Industrial University, and our Supreme Court held that a tax could not be levied, as the university was property of the State. On page 187 the Court said: “* * * it will be observed that the State retains the power of appointing its trustees, and, no doubt, has power, through agents other than the trustees, to sell and dispose of the property of the institution, or they may, at pleasure, amend or even repeal the charter, as public policy or the interest of the university may require.” It would appear, that the Supreme Court then had in mind, that the test of a State’s liability to pay taxes would be whether or not the State retains sole management and control.

In Chicago v. Williams, 182 Ill., 135, on page 138 the Court said: * * where acts are done by the officers of towns and cities in their public capacity in the discharge of duties imposed by the law for the public benefit and for the promotion and preservation of the public welfare, no private action lies unless the right to bring it is expressly conferred.” It must be conceded in this case, that all lawful acts done by, or omissions of the Canal Commissioners, or their agents, are the acts and omissions of public officers, acting in their public capacities for which there can be no recovery in tort, and for wrongful acts of such officers there can certainly be no recovery because the doctrine of respondeat superior does not apply to the State, and it is not liable for malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. Ross v. State, 1 C. of C. R., 175, and many other cases decided by this Court, holding to the same rule.

It is not contended by claimant that such statute exists, and this Court has repeatedly held, that the statute which creates this Court does not increase or enlarge the liability of the State, but provides only the forum, wherein claims may be adjudicated according to the principles of equity and justice, except as otherwise provided by law.

We have seen cases where a state has become a stockholder in a corporation, and the holding that it thereby divests itself for the purposes of the business of that corporation, of its sovereign capacity, but such cases are clearly distinguishable from cases like the one at bar, and those above cited, wherein the State retains sole management and control. When we consider that the State Board of Agriculture, when it charges admission to the State fair, is held not to he engaged in private business enterprise, but to be carrying out solely the purposes of the agricultural department of the State, and exercising governmental functions only, we cannot agree with the ruling in the Holmes case:

This appears to be a harsh rule, but we do not make the law and can only interpret it as we find it, and much as we would like to find a judgment for the claimant in this case, considering the facts as they are, we must reject this claim with the statement, however, that if it were in our power to make an award, we would in this case award to the claimant the sum of $7,500.00. The only negligence in this case was the negligence of servants of the State. Claimant herself was in the exercise of reasonable care for her own safety, and had no reason to suspect that there was any danger in going upon the bridge.

This claim is accordingly rejected, but without prejudice to the claimant, and the judgment of this Court herein shall not be considered as a bar to her right to present her claim to the legislature.


source: Caselaw Access Project

license: Public Domain

text:
    Ida Ackerman v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State—Morrissey v. State ante followed. This case is controlled by the decision of the Court in the case of Morrissey v. State, supra.

    CMpperfield & CMpperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimants.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases.

The facts in this case and the law applicable thereto are essentially the same as in the Morrissey case, except that claimant was standing on the bridge at the time it collapsed. She was on the west sidewalk wMch had been attached to the bridge by the village authorities. When the bridge fell, because of the defective condition of the supporting timbers, the sidewalk fell with it. Claimant was rightfully on the sidewalk, and the proximate cause of the accident was the falling of the bridge. No negligence of the claimant in any manner contributed to cause the accident.

As a result of the accident, claimant received injuries to her back that confined her to her bed for about two weeks, and was unable to attend to her household duties for about a month. She also received some slight injuries to the ankle.

Her doctor bills for the attendance of two doctors was ten dollars. Her injuries are apparently not very severe.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of two hundred dollars.


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    Mons Anderson v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of States—Morrissey v. State ante followed. This case is controlled hy the decision of the Court in the case of Morrissey v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibhs, of Counsel), for State.
   The facts in this case and the law applicable thereto are, excepting as to the degree of injury, the same as in the case of Morrissey v. State of Illinois.

Claimant was walking over the bridge when it collapsed. He fell into the water, was rendered unconscious and remained in the hospital seventeen days. Previous to the accident his right leg had been amputated, and as a result of the accident he received lacerations on the stump of the leg, his left knee and ankle were sprained, he received a bruise on the right side of the body, and claims nervous breakdown. He admitted that he had nervous trouble and headaches prior to the injury.

On the authority of the Morrissey case, it is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present his claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of five hundred dollars.


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    Margaret Farmer, Administratrix of the Estate of Rose Farmer, Deceased, v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State ante followed. This claim is governed by the decision of the Court in Morrissey v.State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases.

The principal facts in this case and the law applicable thereto are essentially the same as in the Morrissey case, except that decedent was under the bridge at the time it fell. It appears that the tow-path running under the bridge, had been used as a thoroughfare for upwards of thirty years. This roadway along the canal was, to all intents and purposes, a public way. It led from Clark street to the canal dock, and had been used by the public generally and very largely so by teams from an elevator.

The accident to decedent did not result from any negligence on her part, and the only defense that could be urged against her was that she was a trespasser. In our view of the case, decedent was rightfully under the bridge. The place was entirely open and unobstructed, and had been used for so great a length of time, that if no prescriptive right had attached, the invitation to use same was extended. In view of the fact that the Canal Commissioners had actual notice of the dangerous condition, and that their negligence in not remedying this condition approached such a degree as might be said to be gross, we would be inclined to hold that claimant is entitled to recover, were it not for the reasons announced in the decision of the Morrissey case. The point where decedent was standing was within the limits of the highway, which existed prior to the time of the construction of the canal.

Decedent was sixteen years of age, a high school graduate, and had a music and school teacher’s certificate» She left surviving her, her mother, two sisters and one brother. At the time of her death, she was working in a telephone office, earning pay at the rate of $1.50 per day.

It, is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to ¡claimant the sum of thirty-five hundred dollars.


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    Pearl Bauman v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability op State—Morrissey v. State and Farmer v. State ante followed. This case is controlled hy the decisions of the Court in the cases of Morrissey v. State, supra, and Farmer v. State) supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant. j
    P. J. Lneey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State. >
   This is one of the so-called Utica bridge cases, and its decision is controlled by the decisions of the Morrissey and Farmer cases.

The attending physician testified that there was a laceration of the scalp with no other injury. Claimant complains of headaches, and says she cannot do heavy work.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to prey sent her claim to the legislature, and with the state - ment, that if it were within our power, we would award to claimant the sum of one hundred dollars.


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    Isabelle Bennett v. State of Illinois.

      Opinion filed November 19, 1914.

    Now-liability of State — Morrissey v. State ante followed. This case is controlled by the decision of the Court in the case of Morrissey v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur B. Boy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   The facts and law applicable thereto are essentially the same as in the Morrissey case.

Claimant was seven years old at the time of the accident, and was walking across the bridge. When the bridge collapsed, her ankle was caught, as a result of which, she had a Potts fracture, the tibia being broken on the inside and the fibula on the outside. There has been a very good and complete recovery.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of seven hundred fifty dollars.


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    John Godwin, Administrator of the Estate of Inez Godwin, Deceased, v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability op State — Morrissey v. State and Farmer v. State ante followed. This claim is governed by the decisions of the Court in the cases of Morrissey v. State, supra, and Farmer v. State, supra.

    CMpperfield & Clnpperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and its decision is controlled by the decisions of the Morrissey and Farmer cases.

Decedent was under the bridge at the time of the accident. She was twelve years old, and left surviving her, her father, mother and five brothers and sisters. She sustained a compound fracture of a leg and tetanus set in, as a result of which she died fourteen days after the accident.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present his claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of three thousand dollars.


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    George Hanson v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability on State — Morrissey v. State and Farmer v. State ante followed. This claim is governed by the decisions of the Court in the cases of Morrissey v. State, supra, and Farmer v. State, supra.

    Chipperfield & Chipperfield, Browne & "Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hihhs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and the decision is controlled by the decisions of the Morrissey and Farmer cases.

Claimant, at the time of the accident, was ten years old. He sustained cuts around the right eye and a comminuted fracture of the skull, beginning about one inch above the eye socket and extending back about four inches, and downward under the eye and in toward the nose. Crushed bones were removed and he lost about a teaspoonful of brain tissue. His expression is like that of a person devoid of intellect. The size of the right eye is affected, being smaller than the left, and the nerves, controlling the right side of the face, are impaired. Claimant exhibits involuntary facial contortions, his mental powers have been depleted. In the opinion of the attending physicians, he will undoubtedly become an epileptic in the. later years of his life, and they do not believe him to be of sound mind. Three physicians testified, and in their opinion the prognosis is very bad.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present his claim to the legislature, and with the statement, that if it were within our power, we would award claimant the sum of ten thousand dollars.


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    Joseph Herrick v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State and Ackerman v. State ante followed. This claim is governed by the decisions of the Court in cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    CMpperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and excepting as to injuries sustained, is the same as the Morrissey and Ackerman cases.

Claimant was on the west sidewalk when the bridge fell. A big beam fell across his back and shoulders, and as a result, he was in bed for eight weeks with pain in his back, and he coughed up blood, had pain for six or eight months, and two and a half years later had not entirely recovered. He had been earning $3.50 a day at machinist and blacksmith work. Since the accident, he has been working as an oiler at $3.00 per day.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present his claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of seven hundred fifty dollars.


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    George W. Kelley, Administrator of the Estate of Verne Kelley, Deceased, v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State ante followed. This claim is governed by the decision of the Court in Morrissey v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   The facts and law applicable thereto, in this ease are essentially the same as in the Morrissey ease.

Deceased was a son of George W. Kelley, and with his father, mother, brother and sister was walking across the bridge at the time it collapsed. He was fourteen years of age. He died within twenty-four hours after the accident from symptoms indicating death from rupture of the intestines.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant, as administrator of decedent, to present his claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of three thousand dollars.


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    Vivian Kelley v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State ante followed. This claim is governed by the decision of the Court in Morrissey v. State, supra.

    CMpperfield & Chipperfield, Browne & "Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lueey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, (Stead, "Woodward & Hibbs, of Counsel), for State.
   The facts and law applicable thereto, are essentially the same as in the Morrissey ease.

Vivian Kelley, at the time of the accident, was eleven years of age. She was a daughter of George W. Kelley, and together with her father, mother and two brothers was walking across the bridge.

As a result of the accident she sustained a fractured rib on the left side, and injuries to her lungs, and at the time her testimony was taken, some two and a half years later, still complained of pain.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of seven hundred fifty dollars.


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    Nels Munson v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-tjability of State — Morrissey v. State and Ackerman v. State ante followed. This case is controlled by the decisions of the Court in the cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and its decision is controlled by the decisions in the Morrissey and Ackerman cases.

Claimant was a concrete contractor, and did masonry work prior to the time of the accident. His attending physician testified that claimant will not be able to do hard work again. He suffered no broken bones, but received a rupture of the spinous ligaments at the middle of the lower lumbar regions, likewise an injury to the liver. There has not been a good recovery.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present his claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of twenty-five hundred dollars.


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    Catherine Payne v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State and Farmer v. State ante followed. This case is controlled hy the decisions of the Court in the cases of Morrissey v. State, supra, and Farmer v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases and its decision is controlled by the decisions in the Morrissey and Farmer cases.

Claimant sustained a fracture of the right forearm below the elbow in the upper third. Both bones were fractured, the arm was in splints for about four or five weeks and is now a trifle crooked.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award the claimant the sum of five hundred dollars.


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    Norma Payne v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability op State — Morrissey v. State and Farmer v. State ante followed. This case is controlled by the decisions of the Court in the cases of Morrissey v. State, supra, and Farmer v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases and its decision is controlled by the decisions in the Morrissey and Farmer cases.

Claimant was eight years of age at the time of the accident, and was underneath the bridge. A part of the bridge fell upon her, her left leg was fractured near the hip. She was in bed eight weeks, and used crutches for a month. There is a shortening of about an inch with a limited motion in the flexing of the knee. Claimant is lame.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of twenty-five hundred dollars.


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    Mollie Ramenofsky v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State and Ackerman v. State ante followed. This case is controlled by the decisions of the Court in the cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   The facts and law applicable thereto, are essentially the same as in the Morrissey and Ackerman cases.

Claimant was standing on the sidewalk at the time the bridge collapsed. At the time of the accident, claimant was twenty-three years of age, and as a result of the accident was in the hospital three weeks attended by two physicians, was then home for eight weeks, and had a trained nurse, used a wheel chair several weeks, and testified, that it was nine months before she was able to do anything, that she was not entirely recovered two and a half years after the accident. Her left arm was broken, face cut, neck cut and wrenched, bruised all over the body and injured on her spine. She had been earning forty dollars a month. Her actual expenses were two hundred seventy-nine dollars, and she claims loss of clothes, jewelry, etc., at two hundred eighty-three dollars. Her attending physician testified, that in his opinion, claimant is a neurasthenic as a result of the injury.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of fifteen hundred dollars.


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    Ethel Steele v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability op State — Morrissey v. State and Ackerman v. State ante followed. This claim is governed by the decisions of the Court in the cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and its decision is controlled by the decisions of the Morrissey and Ackerman cases.

Claimant sustained as injuries, the breaking of both bones of the left leg above the ankle, and she could not use the leg normally for about five months, but since that time has had no difficulty. There is no ¡shortening of the leg, and no limp.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of seven hundred fifty dollars.


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    Nettie Steele v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State and Ackerman v. State ante followed. This claim is governed by the decisions of the Court in the cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    Chipperfield & Chipperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), foréstate.
   This is one of the so-called Utica bridge cases, and the facts in this case and the law applicable thereto are essentially the same as in the Morrissey and Ackerman cases.

Claimant sustained as injuries, bruises to her right side, and was confined to bed for two months. She suffered pain for a considerable time after that.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of two hundred dollars.


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    Lillian Sumberg v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State—Morrissey v. State and Ackerman v. State ante followed. This claim is governed hy the decisions of the Court in the cases of Morrissey v. State, supra, and Ackerman v. State, supra.

    Chipperfield & CMpperfield, Browne & Wiley, Duncan, Doyle & O’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lucey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   This is one of the so-called Utica bridge cases, and its decision is controlled by the decisions of the Morrissey and Ackerman cases.

Claimant sustained injuries as a result of the accident, the tearing of the ligaments of the right leg near the hip. There were no broken bones. She was in bed three weeks and walked on crutches three months. She also sustained a cut on the left leg, and an injury across the back. She suffered intense pain, and two and a half years after the accident, there was a stiffness in the left knee, and she cannot flex the leg. She is permanently lame. Her physician testified that he believes her injuries are permanent.

It is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to claimant the sum of two thousand dollars.


text:
    Margaret Woodbury v. State of Illinois.

      Opinion filed November 19, 1914.

    Non-liability of State — Morrissey v. State ante followed. This case is controlled by the decision of the Court in the case of Morrissey v. State, supra.

    CMpperfield & CMpperfield, Browne' & Wiley, Duncan, Doyle & 0 ’Conor, Howard H. Bayne, George P. Hills, Gleim & Colwell, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, (Stead, Woodward & Hibbs, of Counsel), for State.
   The facts in this case are essentially the same as in the Morrissey case.

Claimant was walking across the bridge when it fell. After the accident, she was confined in bed for three weeks and then to a chair for about a month. She was unable to do anything for over three months. A part of the bridge struck her below the breast bone. There were no bones fractured, but there was a tearing of the intercostal muscles, and a tearing away of the attachment of the diaphragm on the left side.

She is a neurasthenic as a result of the accident, and has sustained injuries to the kidneys.

It is the judgment of the Court, that claimant be denied her claim, but without prejudice to her right to present her claim to the legislature, and with the statement, that if it were within our power, we would award her the sum of one thousand dollars.


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    Beatrice Alice Poole Souberbielle and Adrien Souberbielle, Administratrix and Administrator with the Will Annexed of the Estate of Mariano Edouard Souberbielle, Deceased, v. State of Illinois.

      Opinion filed November 19, 1914.

    Inheritance Tax — facts showing right to refund. Claimants, in order to secure the transfer of certain shares of stock owned by-decedent, a resident of New York, in the Pullman Company, an Illinois corporation, and to protect the State of Illinois in the collection of an inheritance tax from the estate of decedent, deposited with one of the Chicago banks an amount sufficient to cover said tax. After the fixing of the tax by the county judge, the bank paid the tax as fixed, after which an appeal was prayed to the county court, which court reduced the amount of the tax. Held, that claimants are entitled to a refund of the tax erroneously paid.
    Burry, Johnstone & Peters, for Claimants.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   ' The claim in this case is for a refund of inheritance tax, claimed to have been erroneously and excessively paid to the county treasurer of Cook County, on the 17th day of October, A. D. 1913, and is made under provisions of section 10 of an Act entitled, “An Act to tax gifts, legacies, inheritances, transfers, appointments and interests in certain cases and provide for the collection of same, and repealing certain Acts therein named,” approved June 14, 1909.

The claim in question discloses, that decedent died testate on August 17, 1912, and on July 3, 1913, claimants were duly appointed administrators with the will annexed of the estate of said deceased by the surrogate’s court of the county and State of New York, and were duly qualified and acting as such administrators.

That among the assets of the estate of said deceased, were six hundred shares of stock of the Pullman Company, a corporation, incorporated under the laws of the State of Illinois; that claimants as administrators made application in Illinois in the usual manner for the appointment of an appraiser and for the entry of an order fixing the amount of inheritance tax on said shares of stock, and to secure the payment of any tax that might be assessed against said interests, claimants deposited with the Peoples Trust & Savings Bank of Chicago, to the credit of the inheritance tax official, the sum of $1,750.00; that an appraiser was appointed, who filed his report with the county judge of Cook County, who in turn entered an order on October 17, 1913, fixing the cash value of the several estates, gifts, transfers, etc., in the said Illinois property and assessing the total inheritance tax thereon, in the sum of $1,580.56. On October 17, 1913, the Peoples Trust & Savings Bank paid to the county treasurer of Cook County, out of said deposit, the sum of $1,691.20, being the amount of the tax fixed by the order of the county judge, with interest thereon, at six per cent for one year and two months; all the money paid to the county treasurer of Cook County was by the said county treasurer transmitted to the State Treasurer of the State of Illinois.

On December 11, 1913, an appeal was taken to the county court of Cook County, from the said order of the county judge, fixing the tax as aforesaid, and an order was entered in the county court finding that the order of the county judge approving the appraiser’s report was erroneous. The court assessed the total tax to which the several interests were liable at $611.89, to which should be added interest at 6 per cent for one year and two months, amounting to $42.83.

Thereupon, claimants made application to the county treasurer of Cook County, for a refund of the amount of the inheritance tax, erroneously paid by them, and were notified that it had been paid to the State Treasurer, and on December 12,1913, they made application to the State Treasurer for a refund, but were informed that no appropriation was available for that purpose.

"We find that claimants have paid to the State an erroneous and excessive tax; that they have in all respects complied with the law to secure the refund; and that they are entitled to have returned to them by the State the sum of $1,036.48.

We, therefore, accordingly award to claimants, the sum of one thousand thirty-six and 48-100 ($1,036.48) dollars.


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    The Culver Construction Co. v. State of Illinois.

      Opinion filed November 19, 1914.

    1. Statute of Limitations — unliquidated claims — when filed. Unliquidated claims must be filed within two years from the date the cause of action accrues.
    2. Same — Act of 1847 not repealed. The limitation Act of 1847 has not been repealed.
    3. Liquidated Claim — defined (Clark v. Button, 69 Ill., 521, 523.)
    James H. Matheny, for Claimant:
    This statute — the Limitation Act of 1847 — has a curious history. The latest and best compilations and editions of the statutes of Illinois do not appear to regard it as in force.
    This Act is not in the official revision of 1874.
    R. S. Ill. 1874, chap. 83, pages 673-676.
    It is not in the compilation by Starr. & Curtiss.
    II Starr & Curtiss Statutes, 2d Edition, chap. 83. pages 2588 to 2645.
    It is not in the very late and elaborate edition of the “Illinois Statutes Annotated” by Jones & Addington, so far as the volumes have been issued.
    See Vol. iv., chap. 83, Title “Limitations.”
    This Act is not in Gross’ Compilation of 1869.
    Gross’ Statutes 1869, chap. 66.
    It is not in the edition compiled by Gross of the statutes as revised in 1872, 1873, and 1874, chap. 66.
    Statutes of Illinois, Gross 1871-2, page 256-259; Statutes of Illinois, Gross 1872-3, page 270.
    In the compilation of the statutes edited by Hurd and published by the Chicago Legal News Company, this Act was omitted in the several editions up to and including that of 1899. It appears in that of 1903 and subsequent issues. We have not had access to Hurd’s edition of 1901. Its application should not be extended by construction.
    Liquidated claim defined. Trickle v. State, 1 Court of Claims Rep., 103, 104; Cooper v. Coates, 21 Wall., 105.

      • P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State:
    “Any person having unliquidated claims against the State, who do not prove the same up, and file them as above, shall not he entitled to have them considered after that date; and hereafter all unliquidated claims against the State shall be proved up and filed as above, within two years from the time such claim may have arisen; and any claim not presented and proved up as above, and filed, shall he forever barred from payment by the State.”
    Hurd’s Stat. 1912, p. 1496, chap. 83, par. 31.
    “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall he commenced within five years next after the cause of action accrued.”
    Hurd’s Stat. 1912, p. 1494, chap. 83, par. 15.
    What Constitutes a Liquidated Claim—Clark v. Dutton, 69 Ill., 521, 523; 8 Words and Phrases, 7195.
    The limitation law of 1847 with reference to claims against the State has not been repealed and is now in full force and effect.

      Fairbanks v. State, 1 Ct. Cl. Rep., 1; Schultz v. State, 1 id., 19, 20; Stilt v. State, 1 id., 25; Barton v. State, 1 id., 27; Turkington v. State, 1 id., 113; Hitt v. State, 1 id., 182, 184; Palmer v. State, 1 id., 343, 345; Reeves v. State, 1 id., 346, 361, 362; Crissey v. State, 1 id., 365, 368.
    Hurd’s Revised Statutes 1912, pp. 2269-2271, contains the Acts of the legislature of 1847 which are repealed in the revision of 1874. The limitation Act with reference to the Court of Claims is not included in this list.
    The general statutes of limitation all refer to commencing actions at law or suits in equity, while the Act of 1847 is neither an action or suit, hut is with reference to bringing claims against the State.
    Hurd’s Stat. 1912, p. 1492, 1496, chap. 83.
   The claimant in this case has filed a claim against the State to recover seven hundred twenty-five and sixty-eight hundredths ($725.68) dollars, for labor and fnaterial furnished the State in connection with certain repairs made on the Lincoln Monument at Springfield, Illinois, during the months of October and November, A. D. 1904.

No written contract of any kind between claimant and the State is in evidence, although it appears from the records of the Lincoln Monument Commission, under date of April 22, 1903, that James S. Culver, deceased, at that time the president of the claimant company, was, together with Architect S. A. Bullard and Major Johnson, requested to recommend a plan to prevent leakage in Memorial Hall.

It is not disputed, that the repairs were needed nor is it questioned, that the services and material were furnished by claimant in a proper manner. In fact, it does appear from the evidence, that the claimant proceeded with the work with the knowledge and approval of the various members of the Lincoln Monument Commission.

After finishing the work, claimant, on November 26, 1904, notified the secretary of the commission that the work was completed and enclosed its bill for same.

On April 16, 1907, claimant addressed a further letter to the secretary of the commission, in which it enclosed copies of bills and vouchers in connection with the work, for which it now seeks to be remunerated, and at a meeting of said commission, which was held at the office of the Governor of Illinois, on the 4th day of August, 1907, it was decided to advise the claimant company to prepare a bill covering the amount due it, and submit the same to the legislature, and that the trustees of said commission would aid in securing its passage.

Not having received a settlement for the work, claimant filed its claim in this Court, and we are asked to make an award in its favor for the amount herein above set forth.

It is contended by the State, that while this may be a meritorious claim, and that claimant should be compensated, yet under the Statute of Limitations, relative to claims of this kind, claimant is debarred from recovering an award in this Court; and in support of their contention cite (Hurd’s 1912 Revised Statute, chap. 83, par. 31), which is as follows:

“Any person having unliquidated claims against the State, who do not prove the same up and file them as above, shall not be entitled to have them considered after that date; and hereafter all unliquidated claims against the State shall be proved up and filed as above, within two years from the time such claim may have arisen; and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.”

It is also urged by the State, that claimant is also barred from recovery by the five (5) year limitation statute, relative to actions on unwritten contracts, etc., (Hurd’s Statute, 1912, page 1494, chapter 83, paragraph 15), on account of the fact that it did not file its claim in this Court until February, 1912, which was more than five years after the completion of the work.

. We have given careful consideration to claimant’s contention, that this is a liquidated claim and that the Statute of Limitations first above referred to, does not apply, because it has reference to, and is intended only to cover cases of unliquidated claims. While we are of the opinion, that claimant rendered valuable services to the State, for which it should be compensated, we are forced to the conclusion, that this is an unliquidated claim and is barred by the Statute of Limitations requiring claims of this character to be filed within two years from the time such claims may have arisen, and the claim is therefore denied.

However, in view of the circumstances in this case, which incline us to the firm belief, that the claimant should be remunerated to the extent of its claim, our refusal to make an award in this Oourt does not preclude it from seeking a recovery from the legislature.


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    A. C. Campbell v. State of Illinois.

      Opinion filed November 19, 1914.

    1. Bailment — law of, where a horse is bailed. Where a horse is hired, the bailee is required to pay the expense of caring for it, use it moderately, and as carefully as a person of common discretion would use his own animal, and supply it with suitable food.
    2. Same — presumption of negligence. When a horse, in good condition, is placed in the hands of a bailee, and is later returned in damaged condition or not returned at all, an action will lie in favor of.the bailor, and the law in such case will presume negligence on the part of the bailee, and will impose on him the burden of showing that he exercised such care as was required by the bailment. (Funkhouser v. Wagner, 62 Ill., 59; Cumins v. Woods, 44 Ill., 416; Bennett v. O’Brien, 37 Ill., 250.)
    Heydecker & Heydecker, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   This claim is for the death of a horse rented by Captain A. V. Smith from claimant, for the use of Battery “C” of the Illinois National Guard, during its. annual tour of duty, from July 17 to July 27, 1909.

The evidence shows that the horse in question was in fair condition when delivered to Captain Smith, and was worth about $60.00. The tour was made during the hot days of July, 1909, and several of the horses, during the journey, would lie down and were almost exhausted from the heat and the hard trip, which they were making, and when claimant’s horse was returned to him, it was suffering from exhaustion, and died a' few days afterwards.

We realize the law to be, that when a man hires a horse, “he is bound to pay the expense of keeping it, use it moderately, and treat it as carefully as any man of common discretion would treat his own animal, and supply it with suitable food, and if the horse when placed into the hands of a bailee is in good condition and it is returned in a damaged state or not returned at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter and impose upon him the burden of showing that he exercised such care as was required.by the bailment.”

Funkhouser v. Wagner, 62 Ill., 59;

Cumins v. Wood, 44 Ill., 416;

Bennett v. O’Brien, 37 Ill., 250.

We hold, that under the law and the evidence in this case, that the claimant is entitled to an award, and it is the judgment of this Court, that the claimant be atid is hereby awarded, the sum of sixty ($60.00) dollars.


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    Henry C. Allen v. State of Illinois.

      Opinion filed December 17, 1914.

    Non-liability of State — State not liable for acts of third parties. Where property of claimant is destroyed by the acts of third parties, the State cannot be held liable therefor.
    Edmund P. Nischwitz, for Claimant.
    P. J. Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant in this case while an employee of the Game and Fish Commission of the State of Illinois, was directed by one of the officers of the commission, to use his launch in connection with the work in which he was engaged in and around Havana, Illinois.

Claimant’s launch was used in this line of work for some time and when not in use was placed in a boathouse near Havana, together with several other launches belonging to the State.

On the night of August 27, 1913, the boat house was destroyed by fire and the claimant’s launch, together with several other launches belonging to the State, was destroyed.

The State filed a general demurrer to claimant’s declaration wherein claimant seeks to recover two hundred fifty ($250.00) dollars.

We do not believe the State was bound to exercise any greater care of claimant’s property than was exercised in this case, and the State can not be held liable for the loss of claimant’s property, as the record discloses, that the same was destroyed by the act of third parties, who were not in any manner under the control of the State.

We are of the opinion that the demurrer should be sustained.


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    Charles Alling v. State of Illinois.

      Opinion filed December 17, 1914.

    Non-liability of State — State not liable for acts of third parties. The State is not liable to respond in damages to its employees who are injured at the hands of third persons, while in the service of the State.
    Thomas F. Burke, for Claimant.
    P. J. Lueey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, for State.
   The claimant in this case was the legal representative of the State Board of Health with office at Chicago, and in the course of his duties he instituted proceedings against one Frank Klimek, who was charged with practicing medicine without a license, in violation of the laws of this State.

He secured a judgment against the said Klimek in the municipal court at Chicago, which judgment was afterward affirmed in the Appellate Court.

While this case was pending it appears, that the said Klimek persisted in carrying on the practice of medicine in violation of the statute, and claimant caused a second suit to he instituted against him and secured a second judgment against him.

It appears from the evidence, that on December 24, 1913, the said Klimek came to the office of the claimant for the purpose of adjusting the judgments that were rendered against him, and while claimant and his assistant, Peter Schwaba, were consulting with him about the manner in which the litigation might be determined, the said Klimek, without any provocation, deliberately pulled a gun from his pocket and shot claimant and the said Schwaba.

The assailant, immediately after the shooting left the office of claimant, and committed suicide. As a re-suit of this murderous assault, which was evidently the act of an insane mind, the sight of claimant’s right eye was completely destroyed, and it was necessary for him to have an operation performed in order to protect the socket so that he might afterward be able to wear an artificial eye.

Claimant has also suffered a severe nervous shock which has rendered him incapable of transacting his usual and ordinary duties of his legal profession. He has also, incurred an expense of about two thousand ($2,000.00) dollars for medical treatment and otherwise, on account of the injuries received by him.

Claimant filed his claim in this Court for $22,015.00 on account of the injuries received, and we are asked to make an award to him for this amount.

"While there is no doubt in our minds, that claimant was in no way to blame for the injuries received, yet, we are unable to see wherein the State should be held liable in this case.

The State-had no control over the actions of Klimek, who was neither an officer or employee, and there was nothing the State could do to prevent this unfortunate occurrence.

It is urged by counsel for claimant, that under some of the prior decisions of this Court, we would be justified in making an award in favor of claimant for the injuries sustained, and our attention has been directed to the cases of Scanlan v. State, 1 C. C., 128, and Green v. State, 1 id., 173, wherein awards were allowed persons engaged in the military service of the State.

Since these cases were decided, special statutes have been enacted covering cases of those injured while engaged in the military service of the State, and while the above cases were decided prior to the enactment of these statutes, it seems that they were based upon the theory that such statutes were in existence. We know of no statute covering cases similar to the one before us.

We do not believe tbe State is liable to its employees for injuries received by them on account of tbe acts of third persons, over which the State has no control.

The State can not be held to be an insurer of its employees, and to hold that it is liable for the aets of the assailant in this case would bind it to that extent.

This claim is accordingly rejected.


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    James T. Anyon, Samuel H. Lever, Allen R. Smart and Edward E. Gore, a co-partnership, doing business under the firm name and style of Barrow, Wade, Guthrie & Co. v. State of Illinois.

      Opinion filed December 17, 1914.

      Contracts — when laic will imply promise on part of State to pay. Where a duty is imposed by law upon an officer, and moneys insufficient in amount are appropriated for the performance of the duty, the officer is justified in performing the duty, and expenses incurred thereby, are a proper charge against the political body choosing such officer.
    Glenn B. Plumb, for Claimants.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimants allege in their declaration, that on the 11th day of August, 1913, they were engaged and employed by the State of Illinois, through Paul Matthews, then acting as Department and Institution Auditor of the State of Illinois, to audit and verify the possessions, character and amount of the securities on deposit with the Superintendent of Insurance at the close of the business on the 9th day of August, 1913; and to list, inspect and report the amount of each item thereof, and to audit the disbursements of funds appropriated for the use of the office from the first day of January, 1911, to the 9th day of August, 1913, and to audit the income of the insurance department and verify the dispositions made thereof from the first day of January, 1911, to the 9th day of August, 1913, and to report to the Superintendent of Insurance the results of their work when fully completed.

Their employment was concurred in by Eufus M. Potts, then Superintendent of Insurance of the State of Illinois, and by the State Auditor through W. H. Eubanks, then chief clerk in the office of the State Auditor, who had the authority to execute and approve contracts by and on behalf of the State Auditor. Claimants by the arrangement of employment were to receive as the consideration for their services, payment upon a per diem basis, together with their traveling and hotel expenses.

The evidence shows, that claimants duly and faithfully performed all the services as per terms of their contract, and made and rendered to the Department and Institution Auditor and the Superintendent of Insurance their audit reports and accounts in accordance with the terms of their employment, and presented their claim to the Department and Institution Auditor and to the Superintendent of Insurance for the State, for their services rendered, in the sum of $3,293.89; the same was approved by the Institution Auditor and the Superintendent of Insurance as being in accordance with the terms of their employment, and just and reasonable in all respects.

Claimants have not received any payment on account of their claim, and the reason this claim has never been paid is, that there was no appropriation available out of which it could be paid. We award claimants the sum of three thousand two hundred ninety-three dollars and eighty-nine cents ($3,293.89).


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    Emma Bartholomae v. State of Illinois.

      Opinion filed December 17, 1914.

    1. Inheritance Tax — when tax erroneously paid may be recovered. Where the county judge fixes an inheritance tax at a certain amount, which amount is paid, after which an appeal is taken from the decision of the county judge to the county court, which court reverses the decision of the judge fixing the tax, and from which decision of the county court no appeal is taken, a recovery may he had.
    2. Same — demand necessary. Claimant, in order to recover an inheritance tax erroneously paid, should make demands for the return of the same from the county treasurer and State Treasurer.
    Taylor and Lundahl, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   George Bartholomae, a resident of Heidelberg, Germany, died testate on June 12, 1912. Letters testamentary were issued in Cook County, Illinois, to Henry Bartholomae and Rudolph Brand.

On December 12, 1912, the county judge of Cook County fixed the values of the estates of the deceased in Cook County and assessed the inheritance tax on the several estates at $7,947.75.

For the purpose of saving five per cent under the statute, the executors paid the tax less five per cent on December 12, 1912, to the county treasurer of Cook-County. This payment amounted to $7,550.36, and a receipt for this amount was taken from the county treasurer, countersigned by the State Treasurer. This money, without deduction for collection charge, was transmitted by the county treasurer to the State Treasurer.

The executors appealed from the order of the county judge to the county court of Cook County, and on November 6, 1913, that court found that the inheritance tax was improperly assessed, in that, taxes had been levied on estates which were not in fact taken by the legatees and devisees, and the tax was fixed by the county court at $2,136.29.

Demand was made upon the State Treasurer and county treasurer for the return of the difference, $5,414.07, this being the amount which the county court in its order found should be returned. This likewise, is the amount that claimant asks in this ease.

For the purpose of facilitating the settlement of the affairs of the estate, the claim for refund was assigned by the executors to the widow of decedent and the estate was closed. This claim is prosecuted by the assignee.

It would seem that, inasmuch, as this erroneous tax was paid within the period whereby the five per cent discount was secured, that a like discount should be allowed upon the correct tax as fixed by the county court, this being included in the money already paid, but the county court has apparently disregarded this fact, as has also claimant, in that, in the demands made on. the county treasurer and State Treasurer, the discount to which she would apparently be entitled has not been included.

Claimant has in every way fulfilled all requirements of the law to entitle her to a refund of the amount demanded, and it is the judgment of this Court, that she be awarded the sum of $5,414.07.


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    Arthur E. Folger v. State of Illinois.

      Opinion filed December 17, 1914.

    Military Service — when award will be made for injuries received in. A member of the Illinois Naval Reserve, who is injured in the service of the State under orders from the Commander-in-Chief, is entitled to an award in the Court of Claims.
    Page & Page, for Claimant.
    P. J. Lucey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, for State.
   The claimant in this case was a young man at the time of the accident, and was regularly enlisted in the Illinois Naval Reserve, a part of the organized military force of the State, and was under the rules and regulations covering military bodies. He was required to render obedience to all orders of his superior officers, and a part of the Naval Reserve consisted in taking cruises in small steam boats, called steam launches, to put to practical test instructions given on land.

On July 3 and 4, 1912, he was ordered by the Captain of the Fifth Division of the Illinois Naval Reserve, which he was enlisted with as a machinist, to go on one of the steam launches owned by the State, and in the capacity of a machinist, was in charge of the engine on the steam launch, while the same was in Lake Michigan near the United States Training Station bound for Chicago. There was considerable sea running on Lake Michigan, which caused the steam launch to rock and roll with considerable violence. He was required to work in close proximity to the crank shaft of the engine, and it was a part of his duties to oil certain parts of the engine. While he was so engaged, and using due care for his own safety, the launch gave an unusually heavy roll and lunge, causing his right foot to slip and be projected under the revolving crank shaft, and as a result of which, his foot was injured to the extent that it became necessary to amputate his great toe.

At the time of his injury, he was earning $18.00 per week; he was prevented from following his business from July 4, 1912, to September 16, 1912, and was obliged to lay out the sum of $135.00 for doctor bills.

The State admits all the facts alleged in claimant’s declaration, and admits that claimant under the law of the State of Illinois, as cited in the brief, is entitled to a recovery, but contends that claimant should not be awarded a large amount or the amount he claims, to-wit: three thousand dollars ($3,000.00).

Considering the injury and the amount of expense incurred by reason thereof, and the manner in whieh the same was sustained, we are of the opinion that claimant is entitled to an award. An award is therefore made to claimant in the sum of seven hundred dollars ($700.00).