author: Mr. Chief Justice Hollerioh

text:
    (No. 2028 —
    Elma Pennington, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Babb & Babe, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

For more than two years prior to June 24th, 1932, Elvis Pennington was in the employ of the Division of Highways, Department of Public Works and Buildings, as a maintenance laborer in District No. 1. On the last mentioned date, in company with three other employees, Pennington was engaged in spraying Canadian thistles with chlorate of soda, along the right-of-way of S. B. I. Route No. 71. Chlorate of soda is not inflammable when in a dry state, before having been mixed with water, nor is the solution inflammable when mixed with water; but after the solution dries a chemical change takes place and thereafter it is hig’hly inflammable.

In using the spray, the clothing of the men naturally became saturated with the solution which dried during the course of their work. The four employees had completed their work on one patch of thistles, and were riding to another patch in an automobile, when one of the men, Glenn Biertz, struck a match to light a cigaret. His clothing became ignited and he jumped from the automobile and was rolling around in the grass by his fellow workmen in an attempt to extinguish the flames. Pennington who was riding on the running board of the automobile immediately jumped' off and ran to the assistance of Bierte. As the result of his attempt to aid his co-worker, Pennington’s clothes became ignited and he was very severely burned, and died two days later in the hospital at Aurora as the result of such burns.

Elvis Pennington left him surviving Elma Pennington, his widow, the claimant herein, and no children. His wages were Thirty-three Dollars ($33.00) per week or Seventeen Hundred Sixteen Dollars ($1,716.00) per annum. No question as to the making of claim for compensation arises for the reason that the declaration herein was filed within six months after the date of the accident.

The maintenance of hard-surfaced highways constitutes 1 ‘ the maintaining of a structure ’ ’ within the meaning of those words as used in Section Three (3) of the Workmen’s Compensation Act of this State. (City of Rock Island vs. Industrial Commission, 287 Ill. 76.) The work upon which Pennington was engaged was in fact extra-hazardous, and consequently the claimant is entitled to recover compensation under the terms and provisions of the Workmen’s Compensation Act, provided the injuries which caused the death of Elvis Pennington arose out of and in the course of his employment.

The Supreme Court of this State, in the case of Dragovich vs. Iroquois Iron Co., 269 Ill. 478, said (page 484);

“It is clear that it is the duty of an employed to save the lives of his employees, if possible, when they are in danger while in his employment, and therefore it is the duty of a workman in his employ, when occasion presents itself, to do what he can to save the lives of his fellow employees when all are at the time working in the line of their employment.”

The same rule was announced in the case of Baum vs. Industrial Commission, 288 Ill. 516. It appears therefore, that the injuries which caused the death of the decedent arose out of and in the course of his employment, and his widow therefore is entitled to compensation under the terms and provisions of the Workmen’s Compensation Act. Under the provisions of Section 7A of the Compensation Act, the amount to which the widow is entitled is limited to Four Thousand Dollars ($4,000.00). . Inasmuch as payment is to be made in a lump sum, this amount must he commuted to an equivalent lump sum in accordance with the provisions of section nine (9) of the Compensation Act.

The amount to which the claimant is entitled, as thus commuted, is Thirty-eight Hundred Eighteen Dollars and Ninety-seven Cents ($3,818.97).

It is Therefore Ordered, That an award be entered in favor of the claimant in the amount of Thirty-eight Hundred Eighteen Dollars and Ninety-seven Cents ($3,818.97).


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2029 —
    Marion I. Church, Administratrix of the Estate of Kenneth L. Church, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    William L. Leech, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The declaration in this case sets forth that on the 5th day of December, A. D. 1931, Kenneth L. Church was in the employ of the State of Illinois as a motorcycle highway patrolman, which position he had occupied for about seven years. It was a part of his duties to patrol the highways of the State of Illinois, particularly the highways leading from the City of Dixon, Illinois; that on the said 5th day of December, 1931, he was patroling route number two between the cities of Dixon and Amboy, under orders from his superior officer, and was directing a funeral near the city of Amboy, Lee County, Illinois, and while returning to Dixon, one Burton L. Reed carelessly, recklessly and negligently collided with him while he was riding a motorcycle and the said Kenneth L. Church was thrown upon the ground, from which he received injuries and died at the Dixon Public Hospital about one hour after the injury occurred.

He was thirty-six years of age and left him surviving, his wife, Marion I. Church, and Kenneth L. Church, Jr., a son eleven weeks old at the time of the injury. The said deceased was living with his wife and baby and they were wholly dependent upon him.

The facts are not in dispute. At the time deceased died, he received One Hundred Fifty Dollars ($150.00) per month from the State for his services. There was a small hospital bill and medical bill, which were paid by the State.

This court has held that deceased’s duties, that of a State Highway Maintenance Policeman, are extra-hazardous in fact and of such a nature as to be properly classified as extra-hazardous under the Compensation Act. His duties required him to assist in maintaining the State hard road system and are considered as coming within Section 3 (1) and/or section 3 (3) of the Workmen’s Compensation Act of 1911, as subsequently amended.

Under the provisions of section 7 (2) of the Workmen’s Compensation Act, a widow is entitled to the maximum amount of $4,000.00 on account of the death of her husband. This amount is increased by Paragraph (h) 3 of the same section to $4,450.00 in the case of one dependent minor child under the age of sixteen years at the time of the death of the employee.

If the Legislature should make an appropriation in this case, we estimate it would be available for claimant on or about August 1st, 1933. Therefore, nothing should be commuted upon the payments which should have been made up to that time, and commuting the balance of the payments, pursuant to the Compensation Act, we find that the claimant receive the sum of Four Thousand Two Hundred Eighty-nine Dollars and Eighty-one Cents ($4,289.81).

We, therefore, recommend to the Legislature that an appropriation be made, payable to the order of Marion I. Church, administratrix of the estate of Kenneth L. Church, deceased, in the sum of $4,289.81.


author: Mr. Chief Justice Hollebioh

text:
    (No. 2045 —
    Frank E. Herdman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Heineman, Ronan & Langsett, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebioh

delivered the opinion of the court:

The claimant, Frank E. Herdman, who was awarded the contract for the construction of the Fox River Bridge on S. B. I. Route 173, Section 134-B, in Lake County, filed his declaration in this court on the 9th day of January, A. D. 1933, seeking to recover the sum of Seventy-six Hundred Thirty-eight Dollars and Seventy-three Cents ($7,638.73) as damages which he claims he sustained as the result of delay occasioned by necessary changes made by the respondent in the original plans and specifications for the construction of such bridge.

The original contract between the claimant and the respondent was executed June 10th, 1931, and provided for the construction of three bridges, known respectively as the Fox River Bridge, the Midway Bridge, and the Channel Bridge, all on S. B. I. Route No. 173 in Lake County.

The contract called for completion of the work by October 15th, 1931. Claimant commenced work on the Midway Bridge on June 20th, 1931, and on the Channel Bridge on June 26th, 1931, and arranged and coordinated the work and the distribution and placement of materials, labor and machinery on all bridges to expedite the work and reduce the cost of construction. Claimant also furnished the District Engineer of the Division of Highways, Department of Public Works and Buildings, with a progress chart setting forth the methods by which and the times when the construction of the substructure and super-structure of the three bridges would be made.

Work on the Fox River Bridge was commenced on July 15th, 1931, and it was then ascertained by the respondent that it would be necessary to change the plans and specifications so as to provide for a four-span bridge instead of a three-span bridge at that point. On July 16th, 1931, claimant was instructed by the District Engineer at Elgin, Illinois to discontinue work on said bridge, and to hold up the shipment of materials for the reason that it would be necessary to revise the plans and secure approval thereof by the United States War Department, the Fox River being a navigable stream. Approval of the War Department was thereafter secured, and work was resumed on September 9th, 1931. The work on the other two bridges was completed within the time required, and the work on the Fox River Bridge was completed December 22nd, 1931.

On account of the aforementioned revision of plans, and the delay resulting therefrom, the claimant was required to maintain his equipment and administrative and operative personnel on the work longer than would otherwise have been necessary.

After the filing of the declaration herein, the matter was referred to the Chief Highway Engineer for an investigation and report. Under his direction the claim of the claimant, together wdth his cancelled checks and receipted bills, were checked and audited, and thereafter it was stipulated and agreed by and between the claimant and the representative of the Division of Highways that the claimant is entitled to recover the following items of damages on account of delay caused by the action of the respondent and without any fault on the part of the claimant, to-wit:

Equipment rental....................................... $2,130.71
Salaries and overhead.................................. 2,319.71
Compensation insurance................................. 126.85
Camp and storage expense.............................. 244.15
Total.............................................. $4,821.42

Thereafter, to-wdt, on April 14th, 1933, the claimant filed an amended declaration setting up the items of damages sustained by him as above set forth. On April 28th, 1933, a stipulation was entered into between the claimant and the respondent by Ernest Leiberman, Highway Engineer of the Division of Highways of the State of Illinois which stipulation was filed in this court on the last mentioned date, and which provided in effect that the amount of damages reasonably sustained by the claimant as the result of the delay complained of, was Forty-eight Hundred Twenty-one Dollars and Forty-two Cents ($4,821.42).

The liability of the State to respond in damages in cases of this character, where delay has been caused by the action of the State, and without any fault on the part of the contractor, has been recognized in numerous cases in this court, as well as in the Federal Court of Claims. Hoier vs. State, 6 C. C. R. 130; Henkel Construction Co. vs. State, 6 C. C. R. 222; Carson Co. vs. State, 6 C. C. R. 520; Kellogg Bridge Co. vs. United States, 46 U. S. C. C. 139. There is no dispute as to the facts and no question but what the delay in question was caused by the action of the respondent and without any fault on the part of the claimant; it has been stipulated that the damages reasonably sustained amount to the sum of Forty-eight Hundred Twenty-one Dollars and Forty-two Cents ($4,821.42), and the Attorney General has recommended that an award in that amount be allowed.

It is Therefore Ordered, That the claimant be awarded the sum of Forty-eight Hundred Twenty-one Dollars and Forty-two Cents ($4,821.42) in full of all damages sustained by him.


author: Mr. Chief Justice Hoblerich

text:
    (No. 2070 —
    Robert W. Kennedy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    L. M. Green, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hoblerich

delivered the opinion of the court:

For about three months prior to September 26, 1931, the claimant, Robert W. Kennedy, was employed by the Division of Highways, Department of Public Works and Buildings, as a plant inspector, in connection with the construction of a hard-surfaced highway. On the last mentioned date he was working on S. B. I. Route No. 72, about one and one-half miles east of Stillman Valley. It was a part of his duties to check the weight of certain sacks and split sacks of cement and see that they were accurately weighed. In removing a small shovelful of cement from one sack in order that it might contain the correct weight, a quantity of dry cement got into his eyes, thereby causing him considerable pain. Medical and hospital attention were promptly furnished by the State, and the claimant was removed to the office of Dr. Thiell of Rockford, Illinois and thereafter to the Rockford City Hospital in that city. Dr. Thiell continued to treat him for some time thereafter, and subsequently testified that the temporary total disability ceased on March 14th, 1932. From the evidence it appears that the vision of the left eye is now normal, but that as a result of the accident in question, there is a loss of seventy-five per cent (75%) of the sight of the right eye.

Claimant’s salary at the time of the accident in question was One Hundred Twenty-five Dollars ($125.00) per month, and it was stipulated that the Division of Highways employs inspectors regularly, full time, throughout the year at a rate of wage of at least One Hundred Twenty-five Dollars ($125.00) per month.

The construction of hard-surfaced roads constitutes “the erection of a structure” within the meaning of those words as used in Section three (3) of the Workmen’s Compensation Act of this State. (City of Rock Island vs. Industrial Commission, 287 Ill. 76.) The work on which the claimant was engaged was in fact extra-hazardous, and he is therefore entitled to compensation, provided he has brought himself within the ternas and provisions of the Workmen’s Compensation Act.

The Attorney General has filed a motion to dismiss the case for the reason that claimant failed to make claim for compensation within six months after the accident, and failed to file application for compensation within one year after the date of the injury or within one year after the date of the last payment of compensation.

Counsel for claimant contends that the furnishing of medical aid and the payment for medical services constitutes payment of compensation under the terms and provisions of the Compensation Act, and cites the cases of New Staunton Coal Co. vs. Industrial Commission, 328 Ill. 89; Donk Bros. Coal Co. vs Industrial Commission, 325 Ill. 193; and Imbs Milling Co. vs. Industrial Commission, 324 Ill. 416. All of such cases, however, were decided prior to the enactment of the present Paragraph A Section eight (8) of the Compensation Act which specifically provides that the furnishing of any such services by the employer shall not be construed as the payment of compensation.

In Angerstein’s 1 ‘The Employer and the Workmen’s Compensation Act of Illinois,” 1930 edition, page 925, Section 591, the author states:

“Where there has been a failure to make claim for compensation within six months after the accident so that the employer would have a defense to any proceedings for compensation, a payment of compensation after the expiration of that time would constitute a waiver. See Tribune Co. vs. Industrial Com., 290 Ill. 402. Clearly a payment of compensation within the six-month period would also constitute a waiver of the right to a claim for compensation within the six months’ time but in either event application for compensation would be required within one year after the last payment.”

The evidence discloses that claimant was paid compensation in the amount of Three Hundred Seventy-five Dollars ($375.00). Such payment at the rate which claimant was entitled to receive, to-wit, Fourteen Dollars and Forty-two Cents ($14.42) per week, paid his compensation from the day after the accident to March 27th, 1932. The record shows that the declaration herein was filed in this Court on February 14th, 1933.

It appears, therefore, that payment of compensation was made within six months after the date of the injury and the declaration was filed within one year from the date to which compensation had been paid.

We conclude that under the evidence in this case, the necessity of making claim for compensation by the claimant within six months after the date of the injury, was waived by payment of compensation by the respondent within that time.

The motion of the Attorney General to dismiss is therefore overruled and denied.

The Attorney General having submitted the case for hearing on the record, and having failed to plead, it will be considered under the rules of this court that a general traverse of the declaration has been filed.

From the record in this case it appears that the claimant is entitled to compensation for 114-1/7 weeks at the rate of Fourteen Dollars and Forty-two Cents ($14.42) per week; being 24-1/7 weeks’ temporary total disability, to-wit, from September 27th, 1931 to March 14th, 1932; and ninety (90) weeks specific loss, for the loss of seventy-five per cent (75%) of the vision of the right eye.

After commuting the amount of compensation to which the claimant is entitled, to an equivalent lump sum in accordance with the provisions of section nine (9) of the Compensation Act, and deducting the compensation heretofore paid him, to-wit, the sum of Three Hundred Seventy-five Dollars ($375.00), we find the claimant is entitled to an award in the amount of Twelve Hundred Sixty-nine Dollars and Fifty-four Cents ($1,269.54).

It is Therefore Ordered, That an award be entered in favor of the claimant for the sum of Twelve Hundred Sixty-nine Dollars and Fifty-four Cents ($1,269.54).


author: Mr. Justice Liftscott

text:
    (No. 2093 —
    300 West Adams Street Building Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

    Harry A. Kahn, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Liftscott

delivered the opinion of the court:

The plaintiff, 300 West Adams Street, Building Corporation is in Illinois Corporation, and filed its declaration on March 24, 1933, alleging that on the 18th day of April, 1927, it entered into a lease with the State of Illinois for thirteen thousand square feet on the second floor and two thousand square feet in the bhsement of premises known as 300 West Adams Street, Chicago, Cook County, Illinois, for the use of the Industrial Commission. The lease was to commence on the first day of May, 1927, and expire on the 30th day of April, 1929, with an optional clause on the part of the leasee, the Industrial Commission of Illinois, to renew this lease for two additional periods of two years each, at the same rental, terms and conditions as provided in the lease, a copy of which lease was marked “Exhibit A”, attached to the declaration and made a part thereof. The term rental for the two year period was fixed at Fifty-five| Thousand Dollars ($55,000.00), and was payable in twenty-four (24) monthly installments of Two Thousand One Hundred Sixty-six Dollars and Sixty-seven Cents ($2,166.67) per month for a space on the second floor and One Hundred Twenty-five Dollars ($125.00) per month for space in the basement.

The declaration avers that on the 1st day of November, 1928, the Industrial Commission of Illinois, by William M. Scanlan, as Chairman, notified the president of plaintiff that it had elected to renew the lease then in effect for an additional period of two years from the 18th day of April, 1929. Plaintiff avers that after the making of the lease, the Industrial Commission of Illinois took possession and occupied the premises, in accordance with the terms and provisions of the lease, and averred that the lease had been renewed for a two year period from the 18th day of April, 1929, but that the Industrial Commission of Illinois has not kept its promise and now owes the plaintiff, the sum of Thirty-eight Thousand Nine Hundred Fifty-eight Dollars and Thirty-nine Cents ($38,958.39).

It is agreed that there was a lease dated April 18, 1927, which covered a period of two years from May 1, 1927 to and including April 30, 1929, of premises used as officers by the Industrial Commission, and rent was paid from May 1, 1927, to December 3,1929.

It appears from the facts that the State of Illinois did pay for the full time that the Industrial Commission occupied the premises, in accordance with the terms of the lease. The plaintiff insists that the State should pay for the full period of two years, being the time that the lease was renewed by William M. Seanlan, Chairman of the Industrial Commission.

Nowhere in the evidence does it appear that a confirmation of this renewal was ever made, either by the Director of the Department of Finance or the Director of the Department of Labor.

On December 3, 1929, the premises were vacated by the Commission, at the suggestion of Clarence S. Piggott, a successor to Seanlan, and on or about November 1, 1929, a lease of new quarters in the Engineer’s Building in Chicago was made, and the.Commission moved to the new quarters on December 3, 1929, surrendering possession of the premises at 300 West Adams Street.

No documentary evidence was available on behalf of the State in this case. A stipulation of the material facts has been made. The plaintiff sets forth its case in three propositions :

(1) The renewal of the option in the original lease by Chairman Seanlan of the Industrial Commission operated in view of all the facts and circumstances as a renewal of the lease for an additional two years period from May 1, 1929 to April 30, 1931.

(2) If such option was not legally exercised so as to bind the State, then a lease for one year from May 1,1929, to April 30, 1930, was created by operation of law by the holding over by respondent and the payment and acceptance of monthly rent.

(3) That if a lease for one year was created by operation of law, the- claimant having received no statutory notice of sixty days to terminate said lease, the respondent is liable for sixty days additional rent covering the period from May 1, 1930 to July 1, 1930.

It is a familiar principle of law that one dealing with an agent is bound to know such agent Is authority.

Section 13 of Paragraph 36, Chapter 127, Smith-Hurd’s Illinois Revised Statutes of 1931, gives power to the Department of Finance to make such leases in the following language: “To lease for a term not exceeding two years, office space in buildings for the use of the several departments : ’ ’

We therefore hold that the action of Chairman Scanlan was without authority and a renewal of the original lease for a period of two years was void.

We regard the second proposition as stating a legal proposition and hold that a new lease for a period of one year from May 1,1929, to and including April 30,1929, was created by operation of law. Claimant therefore would be entitled to rent of $2,216.67 per month for the months of December, 1929; January, February, March and April, 1930, the same being the months the State had not occupied the premises nor paid rent therefor, or a total of $11,458.35.

The courts have repeatedly held that where a tenant for years, or a year, holds over after the term fixed in the original lease has expired, without any new agreement, the landlord at his election, may treat such tenant as a trespasser, or as a tenant for another year upon the same terms and conditions set forth in the original lease.

Clinton Wire Cloth Co. vs. Gardner, 99 Ill. 151.
Condon vs. Brockway, 157 Ill. 90.
Streit vs. Fay, 230 Ill. 319.

It is contended by the claimant that no statutory sixty day notice was ever given by the respondent, the State is liable for sixty days’ additional rent beyond the year of the lease created by law.

From the stipulation on file, it appears that the Industrial Commission surrendered possession to the plaintiff five months prior to the expiration of the year lease created by law, and that the owner of the premises had posted rent signs and had attempted to rent the premises immediately following surrender by the tenant.

It also appears, that the plaintiff had protested to the Industrial Commission when the Commission decided to change its location.

We take the view that inasmuch as the owner of the premises had at least five months ’ notice of the abandonment of the premises, that the proposed object of the statute requiring sixty days notice has been complied with. Just as a lease may arise by operation of law, so may the termination of a tenancy be implied from the acts of the landlord and tenant. The landlord has not been hurt by failure on the part of the Commission to give the usual statutory notice. The law created a tenancy for another year after the expiration of the two year period because the Industrial Commission held over the original lease. This lease for one year, by operation of law, is for a time definite and certain and it is unnecessary to give the usual notice to terminate the lease.

We, therefore, hold that the plaintiff is entitled to the sum of $11,458.35 in full settlement of its claim and we recommend that the appropriation be made for that sum.


author: Mr. Justice Thomas

text:
    (No. 1758.)

      Filed May 14, 1931.

    Carl Littlejohn vs. State of Illinois.
    Claimant, pro se.
    Oscar E. Carlstrom, Attorney General and Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $333.32 balance of salary claimant alleges is due him for teaching at the Northern Illinois State Teachers College at the DeKalb for the years 1923, 1924, 1925, and 1926. The declaration was filed April 22,1931. The Attorney General has plead the statute of limitations as to the amounts claimed for all the years except 1926. The statute provides that every claim against the State shall be forever barred if it is not filed within five years after it first accrues. This provision of the law prohibits the allowance of the balance of salary claimed for the years 1923, 1924 and 1925.

There is no evidence in the record to warrant the allowance of the balance of salary claimed for the year 1926. Claimant bases his right to recover on the allegation that it has been the custom to pay teachers for each session of the summer school one-sixth of their salary for the regular school year. In support of this he filed with the declaration a statement of his salary for the years 1923 and 1926 and of the amounts paid him each year for teaching at the sessions of the summer school. This statement shows he was paid $400.00 for each session of the summer school during each of these years or $800.00 per year in addition to his regular salary. The statement further shows that for the year 1926 the payment of $400.00 for each summer session was by special agreement.

It follows he is not entitled to an award, and the claim is denied and the case dismissed.


text:
    (No. 1758.)

      Filed May 3, 1932.

    Carl Littlejohn vs. State of Illinois.
    Oscar E. Carlstrom, Attorney General and Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Thomas

delivered the opinion of the court:

After a careful consideration of the petition for a rehearing in the above case we find nothing in the petition that was not carefully considered and passed on by the court in the original opinion in this case.

The decision heretofore rendered in this case is therefore ■ affirmed and the petition for rehearing is denied.


author: Mb. Justice Linscott

text:
    (No. 2023
    William G. Gettinger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

      Rehearing denied January 9, 1934.

    Parker and Eagleton, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claimant filed his declaration herein on December 2,1932, alleging that he, on the 5th day of November, 1931, was in the employ of the State of Illinois as a State Highway Maintenance Policeman in District No. 12 and while riding a motorcycle near Wheeler, Illinois, an automobile was suddenly driven in front of him and in order to prevent a collision he fell from his motorcycle and was injured. He had been an employee of the State since May 1,1930.

It was stipulated that the accident occurred November 9, 1931. His doctor and hospital bills were paid by the State and John Weishaar, the man who was driving the automobile which drove upon the highway in front of claimant paid claimant $12.00 on the hospital bill. It appears that claimant remained in the employ of the State and on January 15, 1932 returned to his work and was paid his regular compensation up to the time he severed connections with the State, which was February 20, 1933. He was acting under the order of Sergt. Arch LaBaw, who also has a similar claim pending in this court. Claimant is seeking to recover the sum of $2,500.00.

The Attorney General has filed a motion to dismiss and this case is heard upon that motion. The motion to dismiss is based upon the proposition that claimant has not complied with the terms and provisions of Section 24 of the Compensation Act of 1911 as subsequently amended, because no claim or demand appears to have been made upon the respondent by the claimant for compensation within six months after the date of the accident on November 9, 1931. We think that a compliance with the statute is jurisdictional'. The Supreme Court in the case of City of Rochelle vs. Ind. Co., 332 Ill. 386, and in other cases, held that no proceeding’ for compensation shall be maintained unless claim for compensation has been made within six months after the accident. The making of such claim is jurisdictional and unless there is proof of the claim being made there is no jurisdiction. The motion, therefore, to dismiss will be allowed. Case dismissed.


text:
    (No. 2031
    Arch Lebaw, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

      Rehearing denied January 9, 1984.

    Parker and Eagleton, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On April 12, 1933 claimant filed his declaration in this court averring that he had received personal injuries while in the performance of his duties as a State Highway Patrolman. It appears that on the 17th day of August, 1929, while in the performance of his duties in the neighborhood of Salem, Illinois, while riding his motorcycle in a southerly direction a person or persons driving in the opposite direction suddenly turned to the west and ran into the claimant, throwing him to the ground injuring his left arm, left leg and foot. Claimant alleges damages in the sum of $2,500.00.

The Attorney General has made a motion to dismiss because it does not appear that claimant complied with the terms and provisions of Section 24 of the Workmen’s Compensation Act of 1911, as subsequently amended. The statute provides that a claimant for compensation must make a demand within six months after the date of the accident, which in this case was on August 17, 1931. There was no action taken in this case until April 12, 1933. Claimant returned to his work January 20, 1930, in the meantime having been appointed to the position of Sergeant.

The motion to dismiss is based upon the proposition that claimant has not complied with the terms and provisions of Section 24 of the Compensation Act of 1911 as subsequently amended, because no claim or demand appears to have been made upon the respondent by the claimant for compensation within six months after the date of the accident on August 17, 1931. We think that a compliance with the statute is jurisdictional. The Supreme Court in the case of City of Rochelle vs. Ind. Com., 332 Ill. 386, and in other cases, held that no proceeding for compensation shall be maintained unless claim for compensation has been made within six months after the accident. The making' of such claim is jurisdictional and unless there is proof of the claim being made there is no jurisdiction. The motion, therefore, to dismiss will be allowed. Case dismissed.


text:
    (No. 1931
    Herbert E. Shapiro, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 23, 1933.

      Rehearing denied October 11, 1933.

    Altheimeb, Mayeb, Woods & Smith, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Plaintiff filed his declaration in this court on June 21, 1932.

He alleges that he was born on the 22nd day of December, 1915, and on the 29th day of May, 1931, he enlisted in the Illinois National Guard and became a member of the 122nd Field Artillery; that on August 1, 1931, under orders of his commanding officer, with the other members of his regiment, entrained for Camp McCoy, near Sparta, Wisconsin.

The declaration further alleges that he was directed by the proper officers on Augnst 13, to clean up the grounds adjacent to the targets, and while in the performance of his duties he picked up an unexploded shell and accidently dropped the same, and that the shell exploded, and as a result thereof, he was seriously wounded, and lost the thumb, first and second fingers of the right hand. He was removed to St. Mary’s 'Hospital at Sparta, Wisconsin, and remained there for eleven days. He was then removed to St. Joseph’s Hospital in the city of Chicago, and it was necessary to perform a skin grafting operation.

Prior to the time of the accident he was a student in one of the technical schools in the city of Chicago, studying to be a draftsman, and by reason of his injuries had been unable to follow out his profession when he became proficient. He seeks to recover compensation under the Military and Naval Code of Illinois for these injuries.

It appears in the record that on August 13, 1931, he was on duty with his company which was firing French 75 mm. guns on the south target range. He had been detailed to take care of horses for the company’s officers and had been specifically directed prior to the accident along with another private of the Battery to hold five horses which had been ridden by officers to a part of the range. After the officers left to perform their duties, the plaintiff and the other private arranged between themselves that one should hold the horses so the other might go where his fancy dictated. The plaintiff went ont in surrounding territory in disobedience of his orders and began to collect souvenirs.

The findings of the Board of Inquiry are before us. This report is made a part of the record by the stipulation of the counsel representing both sides of this case. The records of the office of the Adjutant General show that the injured soldier was injured while on duty with the National Guard, but the injury did not occur in line of duty.

It appears from this record that on the day in question, Private Shapiro with two other enlisted men, accompanied by Captain Nessler, the Battery commander, were engaged in a problem which was carried out on the south range, at Camp McCoy. All of the party were mounted. At a certain point, the party dismounted and Private Shapiro with several other soldiers acting as horse-holders, was given two horses and sent about 200 feet to the rear by the Battery Commander.

Shortly thereafter, Private Shapiro turned his horse over to another soldier and left the vicinity. He had been gone but a short time when he returned with some loose shrapnel and a nose from an expended 155mm. shrapnel shell. He had found an unexploded 37 mm. projectile and had placed it in his shirt pocket. He saw another one on the ground and reached down to pick it up with his right hand and in so doing, the projectile in his pocket fell to the ground and struck the second projectile, causing an explosion, which resulted in his injury.

It also appears that during the period of training, this soldier, as well as all other members of the Battery, were constantly warned by the Battery Commander, and other officers, and non-commissioned officers, of the danger of handling unexploded projectiles or “duds”, whether on the range or elsewhere.

It also appears that on the line of march to each of the ranges, there are large sign boards warning soldiers of the danger of handling unexploded shells. The signs are placed in such position that they are directly in the path of approaching troops.

It is urged, on behalf of the plaintiff, that the accident happened while in the performance of his duties under the direction of his commanding officer, but there is nothing in the evidence to support that contention. The facts conclusively show that the claimant was entirely outside of his. duties in picking up unexploded shells, and was also at that time acting in direct disobedience of orders of his military officers, and general orders of the camp.

The findings of the military board are set forth largely in the report of the Adjutant General. Section 11 of the Military and Naval Code provides: “Sec. 11. In every case where an officer or enlisted man of the National Guard # * * shall be injured, wounded or killed while performing his duty * * * in pursuance of orders * * * said officer or enlisted man * * * ' shall have a claim against the State. * * *”

It does not appear from the evidence that this soldier had been assigned to clearing the target range of unexploded shells or other debris. The record specifically shows that he ■ had been assigned to the duty of holding some horses, and in disobedience of those orders, he received the injury.

It also appears from the record that this soldier had been warned by his officers not to pick up shells while on the range, as some of them might be unexploded and therefore dangerous.

It further appears that signs were posted near the range warning soldiers against such action, as caused the injury in this case.

We cannot agree with counsel that this injury arose while in the performance of claimant’s duties. Stress is put upon the fact that he was only about 15% years of age at the time of his enlistment and accident, but if that were true, he was probably allowed to join the National Guard upon his representation that he was at least 18 years of age at the time of his enlistment, and he should not now be permitted to take advantage of his own misrepresentation.

As we view the facts in this case, this claimant did not receive an injury while in the performance of his duties, pursuant to orders, but on the contrary, received his injury while in disobedience of his orders. It would not only be contrary to the statute for this court to assume jurisdiction of this case, but it would be positively against public policy to make an award in this case.

The claim is, therefore, dismissed.


author: Mr. Justice Linsoott

text:
    (No. 2008
    John Quillman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1933.

      Rehearing denied November 21, 1933.

    William 0. Edwards, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

This is a claim for compensation. Claimant alleges that on the 4th day of July, 1929, he was employed as a watchman on a hard surfaced road on Route No. 13, three miles west of Pinclmeyville, Perry County, Illinois. The claim arises out of a severe injury which he received when about three or four o’clock in the morning, a car driven by one James Car-man approached a point where the claimant was standing, endeavoring to warn the driver of the automobile of the existence of a barrier protecting a strip of new concrete that had been put in to repair a bad place in the road. Carman, driving apparently in a reckless manner, struck this barrier and the barrier struck the claimant, severely injuring him.

The claim was filed October 31, 1932. This case comes before us on a motion to dismiss by the Attorney General for want of jurisdiction, for the reason that it does not appear from the records that claimant complied with the terms and provisions of Section 24 of the Workmen’s Compensation Act of 1911, as subsequently amended, in this:

(a) No claim or demand appears to have been made upon the respondent by the claimant for compensation within six months after the date of the accident on July 4,1929.

(b) Application for compensation or declaration of claim herein was not filed within one year after the date of the injury or within one year after the. date of the last payment made by the respondent to the claimant of any temporary total compensation payable under the Act.

It appears from the petition filed by claimant that he is seventy-two (72) years of age; that he did not anticipate nor understand that his injury was as serious as it was and would result in a seventy-five per cent (75%) permanent disability; that he did receive Two Hundred Dollars ($200.00) from Carman, the man who injured him.

Claimant objects to the motion to dismiss and sets up seven (7) reasons, and cites former opinions of this court, and urges that the State has waived Section 24 of the Compensation Act, citing authorities.

This court has held that Section 24 of the Compensation Act is jurisdictional and was not waived by the State and is not equivalent to a demurrer at common law.

The facts appear from the evidence taken in the case, and we will consider it the same as a motion made at the close of all the evidence in a suit at law to direct a verdict, for the reason that this- court has no jurisdiction, and the petition will be dismissed.


author: Per Curiam:

text:
    (No. 1717
    Percy Wolff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1933.

   Per Curiam:

This matter coming on to be heard before the court on a motion to reinstate the claim.

From the files it appears that on May 14,1931, an opinion was rendered by this court wherein an award in the sum of $2,416.94 for the payment of hospital bills, doctor bills, and nurses bills, was allowed.

Prior to that time claimant had received $1,472.85 in addition for such purposes, making a total of $3,889.79.

The rule of res adjudicata will apply. This is not a harsh rule, particularly in this case, because it appears from the records of the Division of Highways, Department of Public Works and Buildings, that the claimant actually received $175.00 per month from December 1, 1928* the date of his injuries, to February 13, 1933, and then continued on the State payroll at a salary of $100.00 per month from then until April 17, 1933.

The motion for leave to reinstate, will, therefore, be denied.


text:
    (No. 1982
    Rosa Petersen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1933.

      Rehearing denied January 9, 1934.

    Samuel G. Bautbord, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, Bosa Petersen, filed her declaration on September 9, 1932, stating that on July 24, 1932, the State of Illinois was conducting a military camp and training quarters, known as Camp Logan, situated on the shore of Lake Michigan, at or near Zion, in Lake County, Illinois, and at the time a detachment of the one hundred thirty-second (132nd) Illinois infantry was being quartered and stationed there, and it became and was the duty of the State to post and maintain look-outs in the vicinity of Camp Logan, to warn boats or water crafts rightfully on the waters of Lake Michigan of the danger of coming within the rifle range; that at the time in question, target practice was being held, firing-in the direction of the Lake, and there were no guards, signs or buoys to inform any person or persons happening- to be on the Lake of impending danger, and not regarding its duty in this behalf, the State so carelessly and negligently and without regard for the safety of the plaintiff, conducted said target practice; that at the time and place, the claimant was riding in a boat on Lake Michigan, opposite to Camp Logan, at a distance of approximately one and one-half miles from shore, and was then and there in the exercise of due care and caution for her own safety.

The declaration also charges that the State, which is called the defendant in the declaration, did make an assault upon the plaintiff, and shot off certain fire arms then and there loaded with gun powder and leaden bullets, at and against her, and did shoot and wound her, and she became incapable of following and transacting her affairs and business, and necessarily laid out divers sums of money, and asks the sum of Ten Thousand Dollars ($10,000) as damages.

A statement of her actual expenses is attached to the declaration, totalling Six Hundred Eleven Dollars and Fifty Cents ($611.50), and the balance of the damages asked is for pain, suffering- and mental anguish; the whole sum totalling Ten Thousand Dollars ($10,000).

It appears from the evidence that" on the morning of July 24, 1932, at about 9:00 or 9:30 A. M., the claimant, Eosa Petersen, a resident of Evanston, Illinois, and employed as a stenographer, was a member of a Hiking Club, which club was on its way to Winthrop Harbor. There were twenty of them in the boat, and there were six other members of the party who went by auto. The boat was being operated by its owner, one Wellington Quirk, and was known as the Coast Guard type. It is thirty-six feet long and about six feet high from the water line. They left Waukegan about 9:30 going north. Camp Logan is north of Waukegan. There is a difference in the evidence as to how far from shore they travelled, but the evidence fairly shows that they were at least a mile or more from shore. When opposite Camp Logan bullets commenced to fall around them, and claimant was shot. The boat was brought around from the right and headed back towards Waukegan. The siren of the boat was sounded for from five to ten minutes. It was an electric siren. It took them something over an hour to get back to Waukegan. The claimant was placed in an automobile and taken to a hospital. Quirk, the owner of the boat, had been a member of the Yacht Club for a couple of years and had been an owner of boats for twenty years and navigated them himself. He was familiar with Camp Logan and surrounding waters. It also appears from the evidence that Quirk knew of the existence of the Hydrographic system in Chicago, and knew of their reports which are issued daily during the summer months.

Just prior to the accident, Miss Petersen noticed bullets drop in the water quite a distance away, but just how far does not appear from her testimony. She was quite an outdoor person and familiar with boats. Some comment was had about their being rifle practice at Camp Logan. The claimant heard the owner of the boat state that they were having target practice at Camp Logan. The boat was then turned to the right or east and claimant stated that it seemed as if their boat had been made a target, because bullets were, flying all around them, and claimant testified that none of them expected any danger at that time.

Claimant was struck in both legs; through the calf of her right leg and the left foot. She did not discover the wound in her right leg until afterwards. It appears that she was sitting in the back of the boat with her feet drawn under her when she was shot. The bullet entered the top of the foot over a metatarsal bone, took a course towards the sole of the foot and became turned completely around in its direction probably through glancing contact with the bone, according to the medical testimony. There were scars on her foot that may or may not be painful.

At the time of the accident, Edwin S. Hoops, a retired captain of the United States Army and assigned to the 1.31st Infantry of the Illinois National Guard for training purposes, was on duty. Camp Logan is a rifle range for troops of the State of Illinois and Wisconsin, mostly Illinois troops. The Illinois Guard used this range the whole season. In 1932 this range was used extensively from June 19th to October 15th. There are two firing points there, one in the south range and one in the north range. For this opinion, it is unnecessary to go into the details of these ranges. It is sufficient to state that the firing is made towards the Lake. The ranges are about 600 yards apart and parallel. About 10:30 all the targets were suddenly withdrawn and they received word from the man down in the pits that there was a boat approaching. The targets were supported on butts. When the targets were withdrawn the firing ceased. The firing on that date was at a range of 200 yards. The targets were back some 600 yards from the Lake on the south range and about 200 yards back on the north range. After the bullets had passed through the targets there would be a danger zone at the lake caused by bullets ricocheting, from about five hundred to seven hundred yards. It appears from the evidence that the bullet that struck the complainant was fired from the south range. It appears from the evidence that the Hydrographic Bureau in Chicago, several weeks prior to the time of the injury, had given notice to the various Chambers of Commerce and the various Yacht Clubs that firing would be conducted at Camp Logan, and it is fair to presume that the owner of the boat either knew, or by the exercise of due care and caution should have known of the firing at Camp Logan.

There is some controversy whether bullets fired from a Springfield rifle would have reached the claimant were the boat a mile and one-half from shore, but nevertheless, the facts are that she was shot, and all indications point that she was shot from a bullet fired from a rifle used by the State troops.

Under the view that we take of the case, it will not be necessary to consider whether the claimant was in the exercise of due care and caution for her own safety at the time of the accident. There can be no question about the facts in this case, or the claimant’s injury. That the State of Illinois has the unquestioned right to train and maintain a National Guard for the public welfare, none will deny.

It is well-settled that in organizing training and military camps, the State is exercising a governmental function and acting in its sovereign capacity. The State cannot be sued or made a party defendant in Courts of Record. (Art. IV, Constitution of 1870; Moore vs. School Trustees of Town Three, 19 Ill. 83.)

We do not find that the Supreme Court of this State has ever passed upon the question of whether or not the State is liable for the acts of its officers or agents. However, with reference to public involuntary quasi corporations, such as counties and townships, carrying out governmental functions designated to them by the State, the rule is well recognized and quite analogous to the liability of the State.

Hedges vs. Madison County, 6 Ill. 567.

Hollenbeck vs. Winnebago County, 95 Ill. 148.

City of Chicago vs. Williams, 182 Ill. 135.

This court has quoted the last mentioned case, in the case of Morrissey vs. State, 2 C. C. R. 354, as follows:

“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. Boss v. State, 1 C. of C. R. 176, 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.”

It is a well-established rule that the doctrine of respondeat superior does not apply to a State in the exercise of purely governmental functions. In the case of Seymour vs. VanSlyck, 8 Wend. 403; 422; United States vs. Kirkpatrick, 9 Wheat. 720, 723 and Story on Agency, 9th Ed. Sec. 319, p. 390, this doctrine is stated:

“The government itself is not responsible for the misfeasance, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive to the public interests; and, indeed, laches are never imputable to the government.”

So far as we are able to ascertain, from 1877 when the Commission of Claims was established, down through the creation of the Court of Claims, to the present time, this forum for the adjudication of legal and equitable claims against the State of Illinois has consistently adhered to the general rule, that the doctrine of respondeat superior has no application to. the State.

In Hinchscliff vs. State, 2 C. C. R. 159, it was.held:

“It is ... a well established rule in this and all other courts that the State is not liable for the negligence, torts, misfeasances or omissions of duty of its officers, agents or servants, for it does not guarantee the fidelity of the agents or officers it employs to carry on its governmental functions.”

Many times since then this court has followed this rule. (See Dannewitz vs. State, 6 C. C. R. 142.)

Because of the constitutional provisions against suing the State, this court was established, but the statutes defining the jurisdiction of the Court of Claims does not increase or enlarge the liability of the State. No doubt the intention of the legislature in establishing the Court of Claims was only to provide a forum where claims could be adjudicated according to well recognized principles of law and equity, except as otherwise provided by Statute. (See Morrissey vs. State, 2 C. C. R. 254.)

This court said in Ryan vs. State, 4 C. C. R. 57 that Section four (4) of the Act generally defining the court’s jurisdiction to hear claims against the State, does not increase or extend liability on the part of the State so as to permit an award not based upon well recognized principles of law or equity in the absence of a statute to the contrary, “however much such, cases might appeal to the sympathies of the court. ’ ’

As we view it, the infantry was performing a duty, at the time of this deplorable accident, imposed by the law for the public benefit and for the promotion and preservation of the public welfare, and their acts and omissions are the acts and omissions of public officers, acting in their public capacities, and for such acts there can be no recovery, because the doctrine of respondeat superior does not apply to the State, and the State is not liable for malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.

The claim of the claimant, Bosa Petersen, therefore will be denied and case dismissed.


author: Me. Justice Yantis

text:
    (No. 1865
    Raymond G. Scott, M. D. and Ralph W. Carpenter, M. D., Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 17, 1933.

    Raymond G. Scott, M. D. and Ralph W. Carpenter, M. D., Claimants, vs. State of Illinois, Respondent.
    Otto BZerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The claimants, Raymond G. Scott, M. D., and Ralph W. Carpenter, M. D., filed their claim in this court on December 10, 1931 for medical services in the total amount of One Hundred and Seventy Dollars ($170.00); claimants being practicing physicians and surgeons of Geneva, Illinois. It appears from the evidence that for several years this firm of physicians had been regularly employed by the Department of Public Welfare of the State of Illinois to care for the inmates at the St. Charles School for Boys, a State institution located near Geneva. A demurrer was filed to the complaint but has since been withdrawn.

Rodney H. Brandon, then Director of the Department of Public Welfare, on December 18, 1931, submitted a statement for the record stating “that it (the claim) is entirely just and should be paid along with current bills. Doctors Scott and Carpenter * * * are paid monthly for their services. This bill, somehow or other, was lost in the shuffle, and has never been paid. It is a valid claim against the funds of this department.” The claim as originally submitted was for One Hundred Seventy Dollars ($170.00) for twenty-seven calls to inmates during the month of June, 1931. Subsequently on October 5, 1933, a further and amended claim was filed, supported by affidavit, for the said sum of One Hundred Seventy Dollars, and for a further item of “services rendered Mr. Otto A. Elliott, Superintendent of St. Charles School for Boys in May and June, 1931 in the sum of Forty-one and 50/100 Dollars ($41.50) for a leg fracture sustained by him.” Inasmuch as Mr. Elliott has a personal claim pending in this court under No. 1867 for this same bill, no award is made for same, and no further consideration given thereto in connection with this cause.

The claim for One Hundred Seventy Dollars ($170.00) is admitted by Dr. J. J. McShane, a State physician of the Department of Public Health as reasonable and proper for approval.

In view, therefore, of the circumstances, and upon the recommendation of the State Department, the claim of One Hundred Seventy Dollars ($170.00) is allowed and we recommend that same be paid.


author: Me. Justice Tantis

text:
    (No. 2215
    Charles Thomas Alford, by Henry Alford, his next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 21, 1933.

    Thomas P. Moore and Julius Razovsky, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

The claimant, Charles Thomas Alford, an infant, by his father and next friend, submits by his claim, that while walking upon and along a certain public thoroughfare in the city of St. Louis and while in the exercise of due care for his own safety, was struck by an automobile truck owned by the State of Illinois, then and there carelessly and negligently operated by a servant of the State, thereby breaking his right collar bone and causing other physical injuries set out in his complaint, all to the damage of claimant in the sum of Two Thousand Dollars ($2,000.00).

The State of Illinois, the respondent, has filed its demurrer to this complaint upon the grounds that claimant is barred from maintaining an alleged action for the reason that the doctrine or rule of respondeat superior has no legal application to the Sovereign State in the exercise of its governmental function. There is nothing in the complaint by which it is disclosed to what branch of the State government the truck in question belonged, nor in what manner or for what purpose or by whom it was being used, but regardless of that, the State of Illinois is not liable for the torts of its agents, employees or servants under the rule of respondeat superior. This rule has been almost uniformly followed by this court, and where a demurrer is filed to a claim based upon this rule, the court is in duty bound to recognize the same, unless some reason for an exception can be shown. In the present case, such demurrer is filed and in support thereof the following citations are made.

“The government itself is not responsible for the misfeasances, or wrongs, negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties and losses which would be subversive to the public interests; and indeed, laches are never imputable to the government. Seymour vs. VanSlyck, 8 Wend, 403; 422; United States vs. Kirkpatrick, 9 Wheat. 720, 723.”

Story on Agency 9th Ed. Sec. 319, p. 390.

This rule has been applied and followed by the Court of Claims in many instances where claims have arisen as the result of alleged negligence of officers or servants of the State of Illinois. In each instance such claims have been denied for the reason the State cannot be held liable for the misfeasance, malfeasance or nonfeasance of its officers or agents.

State Bank of Chicago, Admr. vs. State, 1 C. C. R. 158.

Belt vs. State, 1 C. C. R. 266.

Morrissey vs. State, 2 C. C. R 254.

Schroeder vs. State, 3 C. C. R. 36.

Ogan vs. State, 4 C. C. R. 347.

Dunning vs. State, 5 C. C. R. 244.

Janeczko vs. State, 5 C. C. R. 244.

Pelka, Admx. vs. State, 6 C. C. R. 390.

The intention of the legislature in establishing the Court of Claims was only to provide a forum where claims could be adjudicated according to well recognized principles of law and equity, except as otherwise provided by statute.

Henke vs. State, 2 C. C. R. 11.

Morrissy vs. State, 2 C. C. R. 254.

The demurrer of respondent is sustained; leave granted to file amended declaration by first day of January term.


author: Mb. Justice Yantis

text:
    (Nos. 1965, 1966 and 1967, Consolidated
    E. R. Chamness, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 21, 1933.

    E. N. Kevins, for claimant.
    Otto Kebneb, Attorney General; John Rassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This cause comes before the court upon three separate claims filed by Dr. E. R. Chamness of Carlinville, Illinois, and by stipulation of counsel, cases No. 1965 and No. 1966 have been consolidated with case No. 1967. The claimant in this ease is the same Dr. E. R. Chamness who testified as a witness in the case of Henry Z. Cox, Court of Claims No. 1820. It appears from the record herein that Dr. Chamness is a practicing physician and surgeon and is the owner of the Macoupin Hospital at Carlinville, Illinois. On June 25, 1931 Henry Z. Cox was an employee of the State of Illinois, working under the Highway Department, and while engaged in such employment, sustained an injury to his right hand. He was sent to Dr. Chamness for treatment, and the amount of the latter’s bill for such service is Twenty Dollars ($20.00). Harlan Shaw was also an employee of the State and was injured at the Reader State Plant in Macoupin County on October 23, 1930 in the course of his duties, necessitating x-ray examinations, sutures, dressing of wounds, etc., including facial and scalp wounds. He, too, was referred by a superior in the department to Dr. Chamness for treatment, and the latter’s bill for such services is Sixty-five Dollars ($65.00). Mr. Donald Kairns was employed by the State of Illinois on State Aid Route 108 and on June 27, 1931 sustained an injury to his right hand and received medical attention from Dr. Chamness, for which the latter has filed his claim in the sum of Kineteen and 50/100 Dollars ($19.50).

These bills all seem to be recognized by the Highway Department as fair and reasonable for the services rendered, but for some reason the bills were not presented to the State in regular course until after the appropriation from which they could have been paid had lapsed.

The claims appearing to be legal and proper and the allowance of same being within the jurisdiction of this court, same are found to be just and proper claims, and the consolidated claim in the sum of One Hundred Four and 50/100 Dollars ($104.50) is allowed in favor of the claimant and in settlement of these three claims.


author: Mb. Justice Tantis

text:
    (No. 1911
    Louis M. Jetter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 21, 1933.

    Gerald G. Ginnaven, for claimant.
    Otto Keener, Attorney General; Carl Dietz and John Kasserman, Assistant Attorneys General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Louis M. Jetter, claimant herein, as shown by the record, was an employee of the State at the State Power Plant in Springfield on September 11, 1931. While repairing a pump, a gasket was blown out, a stream of hot water blown against the right side of the face and body of claimant. He was taken to the hospital and certain expenses were incurred by him as follows:

Springfield Hospital ............................... $73.70
Dr. M. J. Jelliffe................................... 57.00
Marian Dye, nurse hire............................. 30.00
Asbuties Peters, nurse hire......................... 30.00
Total......................................... .$190.70

Claim is made for reimbursement of this expense and for the further sum of Three Hundred Dollars ($300.00) for loss of vision in the right eye, said sum of Three Hundred Dollars being the amount for which claimant states he might obtain an operation to remove a cataract from his right eye; such cataract being claimed by claimant to be the result of said accident. Although there is some question when considering all the record whether the steam to which claimant was exposed would cause the cataract, the court is of the opinion that the cataract in question was the result of the accident.

The testimony of Dr. Jones, a State physician, is that the claimant has traumatic cataract, and that the pressure of water at one hundred fifty pounds (150 lbs.) could cause such cataract. Claimant testified that the pressure of water at the time of the accident, striking his eye and face, was, in his judgment, one hundred and fifty pounds, and the temperature of s$me from one hundred eighty to two hundred (180-200) degrees. Dr. Jones further testified that claimant has a total loss of vision of his right eye, with light perception and light projection remaining, same due to the traumatic cataract that was caused by the injury in question. It is further stipulated by claimant that an award of Three Hundred Dollars ($300.00) would be accepted in full satisfaction for the loss of vision of said eye in view of a possible relief to be expected from an operation that might be performed thereon.

Claimant was an employee of the State, and engaged in the performance of his duties at the time of the accident. The court is of the opinion that the case is one in which an award may properly be made; that the sum of Four Hundred Ninety Dollars and seventy cents ($490.70) is a reasonable and proper award in the premises, and such amount is allowed in full settlement of all claim against the State for injuries or loss, and expense resulting from the said accident.


text:
    (No. 1818
    Lester Kramer, Administrator of the Estate of John Kramer, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 21, 1933.

   Per Curiam:

Upon motion of the Attorney General, leave is. given to withdraw the Respondent’s plea of the Statute of Limitations and substitute therefor a motion to dismiss the claim; — which said motion is based upon the contention that the declaration on the face thereof shows that the claim is barred by the Statute of Limitations.

And such motion now coming on to be heard by the court, and both parties being present by their respective counsel, and the court having duly considered said motion, and having heard the arguments of counsel and being fully advised in the premises, doth find that the declaration on the face thereof shows that the claim is barred by the Statute of Limitations.

It is therefore ordered that said motion of the Attorney General to dismiss be and the same is hereby allowed and the claim is dismissed without award.


author: Mr. Justice Yantis

text:
    (No. 2250
    Harold Ragains, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 23, 1933.

    Harold Ragains, pro se.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This case comes before the court upon a claim filed by Harold Ragains of South Haven, Michigan, for money claimed by him to be due for wages while working as an attendant at the Jacksonville State Hospital, Jacksonville, Hlinois from September 27, 1919 to October 7, 1919 in the total sum of Twelve and 57/100 Dollars ($12.57). Said claim was filed with the Clerk of this court on October 2, 1933.

A plea of the Statute of Limitations has been filed by respondent, and it appearing from the claim and recitals therein that such claim is barred by the Statute of Limitations, the plea filed by respondent is found to be properly averred and under Section Ten of the Act to create the Court of Claims etc., approved June 25, 1917, said claim is. hereby denied and the case dismissed on the ground that the said • claim is barred by the Statute of Limitations.


author: Mr. Chief Justice Hollerich

text:
    (No. 1938
    Chicago Foundation Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Arnold L. Lund, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant asks to be reimbursed in the amount of One Hundred Seventy Dollars ($170.00) on account of over payments of franchise taxes made by it to the State of Illinois for the years 1928, 1929, and 1931. It appears that prior to 1928 the capital stock of the company was Forty Thousand Dollars ($40,000.00), and that on March 19th, 1928 the authorized capital stock was increased from Forty Thousand Dollars ($40,000.00) to Two Hundred Thousand Dollars ($200,000.00).

In connection with such increase the corporation indicated that it proposed to issue at once One Hundred Twenty Thousand Dollars ($120,000.00) of additional stock for cash, and Forty Thousand Dollars ($40,000.00) as a stock dividend; which, together with the Forty Thousand Dollars ($40,000.00) previously issued, made a total issued capital stock of Two Hundred Thousand Dollars ($200,000.00), upon which fees were assessed and paid. As a matter of fact, only One Hundred Ten Thousand Dollars ($110,000.00) of the authorized capital stock was actually issued, and claimant contends that the franchise tax should have been based upon that amount, instead of Two Hundred Thousand Dollars ($200,000.00), upon which amount the tax was actually assessed.

There is no claim made in the declaration and no testimony in the record to show that the tax was paid under protest, and apparently the same was paid voluntarily. It is the well settled law in this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such recovery. Oppenheimer and Co. vs. State, 6 C. C. R. 465; Board of Education vs. Toennigs, 297 Ill. 469; Illinois Merchants Trust Co. vs. Harvey, 335 Ill. 284; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; Standard Oil Co. vs. Bollinger, 337 Ill. 353.

The taxes in question having been paid voluntarily and without any compulsion or duress cannot be recovered in, this proceeding.

Award is therefore denied. Case dismissed.


text:
    (No. 2159
    Charles M. Dahler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Hardy, Hardy & Hardy, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent. -
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On April 26th, 1933 the claimant, Charles M. Dahler, filed his complaint in this court to recover compensation for injuries which were sustained by him on the 25th day of February, A. D. 1928. It appears from the complaint that claimant was a State Highway Policeman and was injured on February 25th, 1928 on Route No. 41, two miles north of Avon, Illinois; that there had been an automobile wreck at that point, and claimant was flagging an approaching automobile in order to send word to the next town for a wrecker to remove the damaged ears from the scene of the accident. The driver of the car which he was attempting to flag suspected a holdup and discovered his mistake too late to stop, and as a result thereof the automobile struck the claimant and" knocked him down, breaking his leg at the ankle joint.

The complaint does not allege that any claim for compensation was made within six months after the accident. No compensation was paid, and the complaint on the face thereof shows that it was not filed within one year after the date of the injury.

The Attorney G-eneral has filed a motion to dismiss for the reason that no claim for compensation was made within six months after the accident, and no application was filed within one year after the date of the injury, as required by Section 24 of the Workmen’s Compensation Act.

The jurisdiction of the Court of Claims in cases of this kind is derived from paragraph six (6) of Section six (6) of the Act commonly known as the Court of Claims Act (Cahill’s Revised Statutes, 1933, Chapter 37, paragraphs 462-475) which provides that the Court of Claims shall have power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employe of the State, such determination to be made-in accordance with the rules prescribed in the Act commonly called “The Workmen’s Compensation Act”, the Industrial Commission being hereby relieved of any duty relative thereto.”

This court recently held in the case of Crabtree vs. State of Illinois, 7 C. C. R. 207, that the effect of the aforementioned Section of the Court of Claims Act is to incorporate into such Court of Claims Act, the terms and provisions of the Workmen’s Compensation Act, so far as the same are applicable. Such being the case, it is. incumbent upon the claimant to bring himself within the requirements of Section 24 of the Workmen’s Compensation Act, with reference to making claim for compensation and filing application therefor.

The Supreme Court in numerous cases has held that the making of claim for compensation, and the filing of application for compensation within the time required by the statute, are conditions precedent to the right of the claimant to recover. Inland Rubber Co. vs. Ind. Com. 309 Ill. 43; City of Rochelle vs. Ind. Com., 322 Ill. 386; Duquoin School District vs. Ind. Com., 529 Ill. 543.

The claimant having* failed to comply with the aforementioned requirements of Section 24 of the Workmen’s Compensation Act, this court is without jurisdiction to proceed with the hearing*. Inland Rubber Co. vs. Ind. Com., 309 Ill. 43.

The motion of the Attorney General is therefore sustained and the case dismissed.


author: Me. Justice Tantis Mr. Justice Tantis

text:
    (No. 1761
    S. J. Groves & Sons Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

      Supplemental opinion on petition for rehearing filed May 8, 1934.

    Noah Gulbbtt, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

This claim was filed April 30, 1931, seeking* to recover damages in the sum of $2,495.70, alleged to have been sustained by reason of a change in plans in a contract for widening a highway and known as Section 11-y, State Bond Issue Route 18 in Kane and DuPage counties. The contract price was $159,986.52. In the declaration claims for damages are alleged for two items, one for a reduction of 15,807 cubic yards, Class “A” excavation which at the unit price of 32c amounted to $5,058.24; and the other for a deduction of 46,258 square yards of shoulders, which at the .unit price of 5c amounted to $2,312.90.

In a stipulation filed in said cause, it is agreed that if the claimant is found to be entitled to recover, the amount of the award should be Twenty-three Hundred Twelve and 90/100 Dollars ($2,312.90). When the contract was made, the specifications - contemplated the construction of earth shoulders ten (10) feet wide, and from the evidence it appears that because additional right-of-way could not be obtained, it was found impracticable to construct ten feet shoulders and the latter were actually constructed of a width of four (4) feet. Claimant contends that while there was less excavation handled, their loss and damage was not only the decreased payment for excavation, but that the excavation and construction of a four foot shoulder involved greater labor and of a more expensive character than if they could have constructed ten foot shoulders as contemplated in the contract.

Under the proposal submitted to the State preliminary to the contract in question, it is provided in Section Eight that if the engineer decides to extend or shorten the improvement, or otherwise alter it by extras or deductions, including the elimination of any one or more of the items by an amount not to exceed twenty-five per cent of the total money value of the original contract price, or contract price corrected as provided in the specifications, the contractor will perform the work as altered, increased or decreased at the contract unit price.

The standard specification for road and bridge construction relied upon by claimant and respondent respectively are as follows:

“4.3. Increased or decreased quantities of work.] The Department reserves the right to alter the quantities of work to be performed or to extend or shorten the improvement, provided the total price for all such alterations, extensions or deductions does not exceed twenty-five (25) per cent of the original contract price, or contract price corrected as provided in Article 2.2. Should any of the changes provided herein be made, the contractor shall perform the work as altered, increased, or decreased at the contract price. No allowance will be made for any change in anticipated profits nor shall such changes be considered as waiving or invalidating any condition or provision of the contract,”
“4.4. Alterations in plans and specifications.] The Department reserves the right to make such changes in the plans and in the character of the work as may be necessary or desirable to insure completion in the most satisfactory manner, provided such changes do not materially alter the original plans and specifications. Such changes shall not be considered as waiving or invalidating any condition or provision of the contract.”

There is no dispute by the claimant and respondent as to the provisions of the contract or the construction work actually done. Claimant knew, at the time he filed his proposal, of Section 8 above stated, and when claimant signed the contract for the work in question, he knew of the foregoing provisions relative to a decrease in the quantity of work. Claimant contends that the change from a ten foot to a four foot shoulder was a material alteration in the original plans and specifications. The court is of the opinion that the construction of the hard road or slab was the principal or major factor in the contract, with such necessary earth shoulder as was essential to a completion of the project in chief; further that any alteration or deduction in the width or character of the earth shoulders or other matters incidental to the construction of said pavement proper are matters intended to be included and contemplated under Section 4.3 of the standard specifications for road and bridge construction. As the total contract price was One Hundred Fifty Thousand Dollars ($150,000.00), and the alterations or deduction for the two items of increased cost and decreased excavation amounted to only Seventy-three Hundred Seventy-one and 14/100 Dollars ($7,371.14), or less than five per cent, with a declared loss of Twenty-three Hundred Twelve and 90/100 Dollars ($2,312.90), the total price for such alteration or deduction is therefore within the twenty-five per cent provision in Section 4.3 of the standard specifications and the claimant is entitled to no award. Any award that might be made would have to be as extra compensation, contrary to provisions of Section 4.3 above set forth. Under Section 19, Article 4 of the Constitution, as cited by the Attorney General, such grant of extra compensation can not legally be allowed by this court herein. Claim is denied and case dismissed.

Supplemental Opinion on Petition eor Rehearing.

Mr. Justice Tantis

delivered the opinion of the court:

The original opinion was'filed herein denying claim on January 9th, 1934. The claimant, on February 14th, 1934, filed its petition with the clerk of this court for a rehearing.

The petition not having been filed within the time limits prescribed by Rnle 33 of the court, the petition is not properly before the court.

In addition thereto, the petition fails to show any matter or thing which, if shown or proven on a rehearing, might invite a different opinion than the one heretofore rendered.

The court finds that there is no cause shown for a rehearing, and the petition for a rehearing is denied.


author: Mr. Jutice Yantis

text:
    (No. 1976
    Elmer Hallam, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Charles W. Creighton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Jutice Yantis

delivered the opinion.of the court:

The claimant seeks to recover in this case from the State of Illinois the sum of Seventeen Dollars ($17.00) paid to Dr. John D. Boggs of Fairfield for medical attention received by claimant when melted tar was splashed over the latter’s arms and hands. The accident in question occurred on June 22, 1931, while claimant was in the employ of the State of Illinois, Department of Public Works and Buildings, Division of Highways, working on Section No. 724, State Route No. 15, the cause of the injury being alleged to have been a defective lid, on a kettle of melted tar, falling into the kettle and splashing the hot tar on claimant.

The claim was filed September 1, 1932. The injury, as above stated, occurred June 22, 1931. The Attorney General has filed a motion to dismiss for want of jurisdiction, for the reason that claim for compensation was not made within six (6) months after the accident, or an application for an award filed within one year as prescribed by the Workmen’s Compensation Act of Illinois. The motion is sustained and allowed, and claim dismissed.


text:
    (No. 2165
    Edward J. Kelley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    George ft. Fitzmaurice, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on May 1, 1933 and alleged therein that on the 6th day of July, 1932, he was employed by the Illinois Emergency Relief Commission; that such Commission was created by the Governor and the legislative branch of the State government for the purpose of administering relief; that while so employed by the Illinois Emergency Relief Commission at one of its relief stations, said claimant in the course of his employment became troubled with varicose veins and was sent to the infirmary conducted under the supervision of such Illinois Emergency Relief Commission; that an incompetent employe without any medical training was placed in charge of said infirmary by a Dr. Louis D. Joseph, Medical Supervisor of such Illinois Emergency. Relief Commission; that said employe acting under the direction and authority of said Dr. Louis D. Joseph attempted to administer a chemical into the vein of the claimant, but being unskilled as aforesaid, the chemical was injected into the tissue, and an infection resulted, whereby it became and was necessary to amputate the left leg of the claimant above the knee.

The complaint further alleges that application for adjustment of claim is now pending before the Illinois Industrial Commission, and claimant seeks to recover compensation for sixty-four (64) weeks’ temporary total disability, and 190 weeks specific loss, on account of the loss of the use of the left leg, as provided by the Compensation Act.

The Attorney General has filed a general demurrer to the complaint, and the matter now comes before the court on the question as to the sufficiency of such complaint.

Claimant apparently bases his claim upon the provisions of the Workmen’s Compensation Act of this State. In order to recover under such Act, it is necessary that the injury in question be an accidental injury; that it arise out of and in the course of his employment; and that he be engaged in some department of a business or enterprise which is declared to be extra-hazardous by Section Three (3) of the Compensation Act.

The complaint alleges that the claimant “in the course of his employment became troubled with varicose veins”, but fails to set forth any facts showing an accidental injury or showing that .the injury in question arose out of his employment, or that the business or enterprise in which he was engaged was one which is classed as extra-hazardous by Section three (3) of the Compensation Act. It follows, therefore, that the complaint does not state a right of action under the Workmen’s Compensation Act.

Furthermore, the Illinois Emergency Relief Commission is a State charitable agency, created by an Act of the General Assembly approved and in force February 6, 1932, Cahill’s Revised Statutes, 1933, Chapter 23, Sections 463-467, for the purpose of providing “relief to residents of the State of Illinois, who, by reason of unemployment or otherwise, are destitute and in necessitous circumstances”.

In operating and maintaining charitable institutions, the State is exercising a governmental function, and there is no liability on the part of the State for the careless or negligent acts of its servants and agents in the performance of governmental functions. (Hinchscliff vs. State of Illinois, 2 C. C. R. 159; Derby vs. State of Illinois, 7 C. C. R. 145; Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; 25 R. C. L., p. 407, sec. 43.)

It is Therefore Ordered that the demurrer to the complaint be sustained, and for the reasons last above stated, the case is dismissed.


text:
    (No. 1893
    Harry S. Kramer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Parker & Bauer, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On December 8, 1931 one Harry S. Kramer who was then one of the members of the Civil Service Commission of this State, sustained injuries in the office of the Civil Service Commission in the State House, by tripping over a piece of heavy linoleum which had become worn and broken and was projecting upwards from the floor. The injuries consisted of a fracture of the right hip, and Mr. Kramer was confined to the hospital for about three months, and thereafter was required to use crutches or a cane for a further period of approximately six months, and incurred hospital, doctor and nursing bills to the extent of Eighteen Hundred Fifty-three Dollars and Fifteen Cents ($1,853.15).

In addition to his office as Civil Service Commissioner, Mr. Kramer was manager of the real estate department of the Illinois Trust Company, affiliated with the First National Bank of East St. Louis, and as a result of the accident in question, was prevented from attending to his duties as such manager from December 8, 1931 to April 13, 1932, although he received his full salary as Civil Service Commissioner during that time.

Claim was filed to recover for the injuries sustained and the expenses incurred as aforesaid. After the testimony on both sides was taken, Mr. Kramer died, and upon the suggestion of his death, Elizabeth Kramer, as executor of his estate, was substituted as claimant.

The right to recover is based upon the theory that it was the duty of the State to maintain and keep the floor in question in proper and safe condition; and upon the theory also that even though the State is not liable for the negligence of its servants and agents, nevertheless an award should be made as an act of social justice and equity.

On account of the very serious injuries sustained by Mr. Kramer and the amount of expenses incurred as the result thereof, this claim appeals very strongly to the sympathies of the court, but, nevertheless, we find it impossible to allow an award for two reasons:

First: It is a well established principle of law, supported by numerous decisions of this court, as well as the other courts of this State and other States, that the State is not liable for the negligence of its officers, servants or agents in the performance of governmental functions. A few of the many authorities supporting this proposition are the following:

Hinchscliff vs. State of Illinois, 2 C. C. R. 159.

Derby vs. State of Illinois, 7 C. C. R. 145.

Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148.

Minear vs. State Board of Agriculture, 259 Ill. 549.

25 R. C. L. p. 407, Sec. 43.

8 R. C. L. Supp., p. 5580, Sec. 43.

Secondly: This court cannot allow an award as a matter of social justice and equity in any case where the State would not be liable at law or in equity if the State were suable. The latter proposition was exhaustively considered in the case of Crabtree vs. State of Illinois, 7 C. C. R. 207 (decided in May, 1933), in which case the previous decisions of this court on that question, from the time the court was created down to that date, were analyzed and considered, together with the decisions of the courts of this and other States and it was there held, that the legislative enactment creating the Court of Claims and prescribing its powers and duties, merely defined the jurisdiction of the court, and did not create any new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

Award is therefore denied and the case is hereby dismissed.


text:
    (No. 1718
    Moss Lay, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Durfee & Holmes, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On February 14, 1931, the claimant, Mose Lay, filed his complaint herein, in which he alleges that prior to and on the 17th day of June, A. D. 1928 he was employed as a guard at the Southern Illinois Penitentiary at Menard, and further alleges that on said 17th day of June, 1928 he sustained a hernia as the result of an accident which arose out of and in the course of his employment. It is not claimed that any compensation was received by the claimant, nor that any claim for compensation was made within six months after the accident.

The Attorney General has made a motion to dismiss on account of the fact that claim for compensation was not made within six months after the accident, and application for compensation was not made within one year after the date of the injury.

The same question was raised in the case of Crabtree vs. State, 7 C. C. R. 207, and was carefully considered in that case.

The jurisdiction of the Court of Claims in cases of this character is derived from Paragraph Six (6) of Section Six (6) of “An Act to Create the Court of Claims and to Prescribe its Powers and Duties”, (Cahill’s Revised Statutes, 1933, Chapter 37, Paragraphs 462-475) which provides that the Court of Claims shall have power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employe of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called ‘The Workmen’s Compensation Act’, the Industrial Commission being hereby relieved of any duty relative thereto.”

This court held in the Crabtree case that the effect of the foregoing provision of Section 6 of the Court of Claims Act was to incorporate into the Court of Claims Act the terms and provisions of the Workmen’s Compensation Act, so far as they may be applicable, and further held that it was necessary for every claimant who based his right to recover upon the provisions of the Workmen’s Compensation Act, to allege and prove a compliance with the requirements of Section 24 of the Workmen’s Compensation Act relative to making claim for compensation within six months after the accident, and filing application for compensation within one year after the accident or after the last payment of compensation; also that the aforementioned requirements of Section 24 of the Compensation Act are conditions precedent to the right to recover, and unless the claimant shows a compliance therewith, this court has no jurisdiction to proceed with the hearing.

The decision in the Crabtree case has been followed by this court in numerous cases decided since that time, and applies with equal force to this case, and an award must therefore be denied.

It is Therefore Ordered that the motion to dismiss be sustained and the case dismissed.


text:
    (No. 1873
    Lewis A. Lush, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Lewis A. Lijsh, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On the 18th day of December, 1930, claimant was employed by the Division of Highways, Department of Public Works and Buildings, as its District Construction Engineer for the Sixth District, with headquarters in Springfield. On that date he was struck by an automobile while in the performance of his duties and sustained accidental injuries which arose out of and in the course of his employment. He incurred hospital and doctor bills to the extent of Sixty Dollars ($60.00) as the result of such injuries, and asks to be reimbursed for that amount.

Claimant’s sole right of recovery is under paragraph Six (6) of Section Six (6) of an Act entitled “An Act to Create the Court of Claims and to Prescribe its Powers and Duties”, which provides that the Court of Claims shall have power ‘ To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employe of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called ‘The Workmen’s Compensation Act’, the Industrial Commission being hereby relieved of any duty relative thereto.”

The effect of this enactment was considered in the case of Crabtree vs. State, 7 C. C. R. 207, and this court there held that, as the result of such enactment, the terms and provisions of the Workmen’s Compensation Act, so far as they may be- applicable, must be considered by this court the same as though they were incorporated bodily into the Court of Claims Act.

Under the provisions of Section 24 of the Workmen’s Compensation Act, the application for compensation must be made within one year after the date of the injury or the last payment of compensation. This requirement has been held in numerous cases to be a condition precedent to the right to recover. (Crabtree vs. State of Illinois, 7 C. C. R. 207; DuQuoin School District vs. Ind. Com., 329 Ill. 543; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 611.)

The injury in this case was sustained on the 18th day of December, 1930, and the application for compensation was filed herein on the 22d day of January, A. D. 1932. No compensation was ever paid and award must therefore be denied.

It is Therefore Ordered that the claim be disallowed and the case dismissed.