text:
    (No. 3446
    Mrs. Nellie Gleason, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    A. B. Manion, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claim was filed January 30, 1940, for $3,806.15.

■ Richard A. Kane was employed by the State of Illinois on October 20, 1938, as a recreation assistant at the St. Charles School for Boys, St. Charles, Illinois. On August 2, 1939, he received injuries from an accident while driving a State truck, on premises belonging to said school. The front wheel of the truck struck a rut or became locked throwing the machine out of control, it turned over crushing him through the chest, which resulted in his death on August 17, 1939. The deceased at the time of his injuries was twenty-three years of age and resided in West Chicago, Illinois; however he lived in his quarters furnished him at the school.

From October 20, 1938, to the date of the injury the respondent paid him, for his services, the sum of $68.25, and maintenance valued, by the Department of Public Welfare at $24.00, making a total of $92.25, monthly.

From the complaint it appears that the said Richard A. Kane was single and left surviving him, his mother, the claimant, who claims she was partially dependent upon the earnings of the deceased at the time of the injuries. That he contributed approximately $30.00 per month towards her support, and maintenance for more than a year prior to August 2, 1939. She makes this claim under Section 7, Paragraph (C) of the Illinois Workmen’s Compensation Act, and claims to the extent of fifty per cent of his earnings and therefore asks that she be awarded one-half of four times the annual earnings, or the sum of $2,220.00.

The complaint in this case also asks for the sum of $1,586.15 for medical, surgical, nursing, hospital fees and services, court reporting, and funeral expenses rendered the deceased, no part of which has been paid by the respondent, nor as yet by the claimant.

The record in this case consists of the complaint, the report of W. T. Harmon, Managing Officer of the Illinois State Training School for Boys, to which is attached a report of C. C. Johnson, who was employed at the school garage, the transcript of evidence introduced on behalf of the claimant, the abstract of the evidence and the statements, briefs, and arguments of the respective parties.

The accident occurred on August 2, 1939, and death ensued, from the injuries, on August 17,1939. The respondent had knowledge of the accident on the same day it occurred. This claim was filed January 30, 1940. Under the cases cited in the brief not only did the filing of the claim constitute an application under Section 24 of the Workmen’s Compensation Act, but since the same was filed within such period it constituted a demand within the six months provided for by this section of the Act. It would, therefore, appear that all the jurisdictional requirements of said Section 24 were complied with.

In Tyrrell vs. State, 10 C. C. R. 368, the court decided that the dependents of an electrical engineer employed at the St. Charles School for Boys, (which is the same institution where claimant’s deceased son was employed), were entitled to compensation for his death, and that the deceased was such a State employee as to be entitled to the benefits of the Illinois Workmen’s Compensation Act. Numerous other cases were cited in the briefs in which employees of the State in various capacities, or their dependents, were allowed compensation. It would seem that the decisions in these and the Tyrrell Case, supra', should be controlling on the question whether or not the deceased was such a State employee as to be entitled to the benefits of the Workmen’s Compensation Act.

The question as to whether or not the deceased’s injuries arose during the course of and out of his employment must be decided affirmatively by the court before an award can be made. From the. evidence as to the work and hours of the deceased, and the -occasion for his being at the place where the accident occurred, it would appear that there is little question that the accident occurred during the course of his employment. Whether or not it arose out of his employment is difficult to determine in view of the decisions of the Supreme Court in The Great American Indemnity Co. vs. Ind. Comm., 367 Ill. 241; Puttkammer vs. Ind. Comm., 371 Ill. 497, and Olympic Commissary Co. vs. Ind. Comm., 371 Ill. 164. Was the nature of claimant’s employment such that such an accident might have been contemplated by a-reasonable person when entering the employment, as being incidental to the employment? In view of the large number of traffic accidents and the fact that the deceased had to drive a horse and wagon ordinarily and a truck on occasion, along a paved State highway on the south side of the school grounds and a gravel county highway on the north side in connection with that part of his work, which was picking up and delivering laundry, it might well be considered that the accident arose out of the employment, apd we so find.

Only in case of dependency can an award be made under the Workmen’s Compensation Act, and the dependency must be decided by the testimony. The only evidence on dependency in this case is that of the claimant Nellie Gleason, deceased’s mother, and her husband John J. Gleason. The latter testified that he earned $150.00 per month and that he gave from this amount, $100.00 to his wife for the purpose of the family living expenses such as water, lights, gas bill, and groceries. The claimant testified she did not know the amount of the rent, because Mr. Gleason paid it. She also testified she did not know the amount of Mr. Gleason’s salary, and that Richard Kane, her deceased son, paid her approximately $30.00 per month for the family living expenses. So it would seem that at the time of the employee’s death the family income for the support of the three members at home totaled $180.00, and of that amount the deceased contributed one-sixth of the total. Richard Kane thus contributed only one-sixth of the support of his mother. Oné-sixth of four times the annual earnings or salary of Richard Kane, would be four times $1,107.00, which equals $4,428.00, divided by six equals $738.00, but since this is less than the minimum of $1,000.00 the award must be based on such minimum. From this must be deducted the sum of $34.12 which was paid to the deceased for non-productive work leaving a net of $965.88, payable at the rate of $10.64 per week, which is the compensation rate of said deceased employee. (Section 7, Paragraph (C) of Workmen’s Compensation Act.)

This claimant has asked the State to pay the items represented by Exhibits No. 1 to No. 5 inclusive, as follows, to Dr. G. A. McGuinness, 308 East Washington Street, West Chicago, Illinois, $330.00 for medical and surgical services; St. Joseph Mercy Hospital, 421 North LaSalle Street, Aurora, $263.65; Vernon L. Evans, M. D., 33 South Island Avenue, Aurora, Illinois, $125.00; Helen Connors, Aurora, Illinois, Nursing, $90.00; Dorothy Burnham, Aurora, Illinois, nursing, $90.00; Charles E. Norris and Son Funeral Directors, 112 Main Street, Chicago, Illinois, $612.50; George F. Fitzgerald, 160 North LaSalle Street, Chicago, for reporting and transcript of the evidence in this case, $75.00, making a total of $1,586.15.

Section 8, Paragraph (A) of the Workmen’s Compensation Act, provides as follows:

“Employers shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical, and hospital services thereafter, limited however to that which is reasonable and required to cure or relieve from the effects of the injury. The employee may elect to secure his own physician, surgeon and hospital services at his own expense.”

From the testimony of Dr. Harry H. Merenberg, school' physician, W. T. Harmon, Managing OEcer, and Arnold J. Rauen, Assistant Managing OEcer of the St. Charles School for Boys, it would appear that the injured employee and his dependent, the claimant herein, made an election to furnish their own medical, surgical and hospital services; that the injured employee was conscious all the time Dr. Merenberg was attending him, and that members of his family consulted with him. It does not appear that Dr. McGuinness, the family physician, made any arrangement whatsoever concerning his services with any employee of the State who had authority to make such arrangements. The deceased at the time of the injury was immediately taken to the State School Hospital. It apparently was not equipped properly to administer to the employee, but the services and equipment of the Illinois Research Hospital,, which is operated by the respondent, was offered and refused, although the staff is composed of very skillful people. The evidence further shows that the immediate family and their friends were duly warned that the State would not pay for medical, surgical, and hospital services selected by the claimant or the employee, and after being fully advised the election was made. Dr. Merenberg, on Page 36 of the transcript was asked the following question:

Q. “Did any members of Mr. Kane’s family inform you as to why they desired that he not go to the Illinois Research Hospital?”

And he answered:

A. "They had a preference for this physician, Dr. McGuinness, and also a preference for the St. Joseph Mercy Hospital, was the only reason they gave.”

Again on Page 42 of the transcript he testified as follows:

“I might add to that, that his physician was called immediately and we proceeded, even in the one day that he was here, to follow this physician’s advice, since Mr. Kane (deceased) himself requested that we have this man in, and we felt that it was the man’s privilege to have whom he wished to take care of him in such a situation.”

And again on Page 43 of the transcript, (referring to Mrs. Gleason, the claimant herein):

“She said she would like this physician to continue with the case, and also she would feel more secure if the patient were in a Catholic Hospital, and there was no more said about the matter.”

It appears therefore from a careful examination of the evidence that an election was made by the deceased and his representatives to furnish their own medical, surgical, and hospital services, and therefore the State cannot be bound by Exhibits 1, 2, 3, 4, and 5.

Chiara vs. State, 10 C. C. R., 387.

Exhibit number 6, that of Charles E. Norris and Son for funeral expenses in the sum of $612.50, cannot be allowed, for the reason there is no provision for the payment of funeral expenses of the employee where there are dependents surviving the deceased employee under the Workmen’s Compensation Act of Illinois, and since this claim is on that basis this item must be denied.

Exhibit number 7, that of George F. Fitzgerald for taking evidence and preparing transcript for claimant cannot be allowed.

Rule Eighteen of the Court of Claims provides as follows:

“All costs and expenses of taking evidence on behalf of claimant shall be borne by the claimant, and the costs and expenses of taking evidence on behalf of the respondent shall be borne by the respondent.”

From a consideration of all the evidence the court finds that the deceased, Richard A. Kane, and respondent were, at the time of the accident and death of the former, both operating within the terms of the Workmen’s Compensation Act; that the injury and death of Richard A. Kane was caused by an accident which arose out of and in the course of his employment by the State of Illinois; that respondent had actual knowledge of the accident and that notice of claim, and application for compensation were made within the statutory limits prescribed by said Act; that the deceased’s annual earnings for the year preceding his death in the employment in which he was then engaged, were $1,107.00, or an average weekly wage of $21.28. That he left surviving him, his mother, Nellie Gleason, the claimant herein, who was partially dependent upon him for support; that the respondent is not liable for medical, surgical, hospital, nursing, court reporting, or any other accounts incurred by the deceased or his representatives for the reason they made an election as provided in Section 7, Paragraph (A) oí the Workmen’s Compensation Act.

The court finds that claimant is entitled to an award in the sum of One Thousand ($1,000.00) Dollars, being the minimum allowed under the terms of the Illinois Workmen’s Compensation Act, from which must be deducted the sum of $34.12, which was paid by the respondent for non-productive work for fifteen days to the employee for the month of August, 1939, leaving a net award of Nine Hundred Sixty-five Dollars and Eighty-eight Cents ($965.88), at the rate of Ten Dollars and Sixty-four Cents ($10.64) per week all of which has accrued and is payable in a lump sum. ■ .

An award is therefore entered in favor of claimant for the sum of Nine Hundred Sixty-five Dollars and Eighty-eight Cents ($965.88) payable as above designated in a lump sum.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriations from the General Revenue fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Chief Justice Dambón

license: Public Domain

text:
    (No. 3670
    Bernice Marx, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    Claimant,'pro se.
    Geobge F. Babbett, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court:

This claim was filed in this court, December 10, 1941, by claimant, Bernice Marx, of Hinsdale, on her own behalf as widow and on behalf of Robert Glenn Marx, aged two years, son of Glenn B. Marx, deceased.

The complaint states that Glenn B. Marx was, on November 12, 1941, employed as a Maintenance Patrolman in the Division of Highways, Department of Public Works and Buildings of the State of Illinois, the respondent. That on said above date, while in the course of his employment on Route 66, in DuPage County, Illinois, he was injured by a passing automobile, and died instantly; that he was survived by his widow, the claimant, and his two year old son, dependents. His monthly earnings, prior to his death were $125.00. That an ambulance and doctor were immediately called to the scene, but claimant does not have knowledge as to whether they were paid for by the State.

The record under consideration consists of claimant’s complaint, the stipulation between the parties hereto, including a report of the Division of Highways, and the respondent’s statement, brief and argument, the claimant’s having been waived.

Under Rule 21 of this court the report of the Division of Highways filed in this case is prima facie evidence of the facts set forth therein.

The said report of the Division of Highways, dated December 31, .1941, confirms the manner in which the accident occurred. It states that deceased, while attempting to enter respondent’s truck on U. S. Route 66, a short distance east of S. B. I. Route 83, at about 1:45 P. M., on November 12, 1941, for the purpose of moving forward to patch the pavement, he was struck by an on-coming automobile, dying almost instantly. The report further states that at the time of the fatal accident, the deceased was in the course of his employment and also that said accident arose out of his employment. It is not disputed that claimant and her son were fully dependent on deceased for support.

Upon a full consideration of this case the court finds it has jurisdiction of the parties hereto and of the subject matter; that the respondent had proper notice of the accident and death of claimant’s intestate and application for adjustment of claim was filed in apt time as provided under Section 24 of the Act.

This court has decided in a number of cases, that an employee of the respondent, engaged as a highway maintenance patrolman, is such an employee of the State as is entitled to the benefits of the Illinois Workmen’s Compensation Act, and are controlling in the present claim.

Church et al vs. State, 7 C. C. R. 256.
Lightner vs. State, 8 C. C. R. 354.
Ferguson vs. State, 8 C. C. R. 589.
Lavelle et al vs. State, 10 C. C. R. 252.
Casey vs. State, 10 C. C. R. 517.
Amy Brokmyer vs. State, No. 3425, decided May 15, 1940.
Edith Roberts vs. State, No. 3469, decided May 15, 1940.

The deceased had been paid by respondent for seven and one-third (7%) months at the rate of $125.00 per month, and his predecessor for more than a year prior to deceased’s employment at the rate of $135.00 per month, totaling $1,546.66 annual earnings during the year immediately prior to his death, making his average weekly wage $29.74 and compensation rate $16.25 as provided under Sections 8, (j), 3 and 8 (1) of the Workmen’s Compensation Act.

Invoking Section 7 (A) and 8 (h) 3, first paragraph and Section 7 (K), for the benefit of the widow and child, Robert Grlenn Marx, the court finds an award is justified in the amount of $4,895.00 consisting of the items of $4,000.00 for the widow; $450.00 additional for the one child, and ten per cent of the total of the above last two amounts or $445.00 as provided by amendment to Section 8, Paragraph (L) since this accident occurred subsequent to July 1, 1941, making a total amount of $4,895.00.

The court further finds that the respondent has paid Ruchty and Mann Funeral Directors, of Hinsdale, $10.00 for ambulance service, and paid Dr. P. A. Isherwood his bill in full.

An award is hereby made in favor of claimant, Bernice Marx, in the sum of $4,895.00, payable at the rate of $16.25 per week.

The amount of $211.25 has accrued as earned compensation for thirteen (13) weeks from the date of the death to February 11, 1942, and claimant is therefore entitled to payment at this time in the sum of Two Hundred Eleven Dollars and Twenty-five Cents ($211.25), with future monthly payments to be made to her for her use and that of her child, Robert Grlenn Marx, on the basis of Sixteen Dollars and Twenty-five Cents ($16.25) per week for two hundred eighty-eight (288) weeks, until the further sum of Four Thousand Six Hundred Eighty ($4,680.00) Dollars, has been paid to her, with an additional final payment of Three Dollars and Seventy-five Cents ($3.75), making a total of Four Thousand Eight Hundred Ninety-five ($4,895.00) Dollars. Such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


author: Eckebt, J.

text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    John W. Pbeihs, for claimant.
    Geoege F. Baebett, Attorney General; Glenn A. Teevob, Assistant Attorney General, for respondent.
   Eckebt, J.

On February 2, 1936, while employed as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois, a charitable institution operated, controlled, and managed by the State of Illinois, claimant was injured in an accident arising out of and in the course of her employment. The injury was a serious one which caused temporary blindness and general paralysis. Constant medical care has resulted in a return of claimant’s vision and a reduction of the paralysis. She remains, however, totally paralyzed from the waist downward, the paralysis being of a spastic type. She has no control over her lower limbs nor over urine and faeces. Because of constant confinement to bed, claimant suffers bed sores which require frequent dressings.

On January 13, 1941, an award was made to the claimant by this court, and claimant has been paid the various sums awarded to her at that time. Claimant, however, has not been paid for certain medical and hospitalization expenses which had not then accrued, and now files her claim herein for such services from October 22,1940, to January 1,1942, in the total sum of $1,129.82.

During the period in question, claimant has been helpless and has required medical and nursing services. She expended on account of medical services $448.70, for nursing services $556.58, and for medicines and necessary medical supplies $124.54, totalling the sum of $1,129.82. Claimant has submitted to the court with her verified petition the original receipts or vouchers showing payment of these respective items, with one or two exceptions in the case of small amounts.

Under Section 8, Paragraph a, of the Workmen’s Compensation Act, claimant is entitled to such care as is reasonably required to relieve her of the effects of the injury. It appears from the record that the services claimed were necessary and that the charges therefor were reasonable and just. There is nothing to indicate that the claimant is malingering. The court, however, reserves for future determination claimant’s need for further medical, surgical, and hospital services.

'An award is therefore made to the claimant for medical and hospital expenses from October 22, 1940, to January 1, 1942, in the sum of $1,129.82, all of which is accrued and is payable at the present time.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act


author: Chief Justice Damron

text:
    (No. 3672
    Peoria Blue Print and Photopress Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

From the stipulation of facts herein it appears that claimant seeks an award in the sum of $11.43, for blue prints, blue line and black line prints, as enumerated in claimant’s bill of particulars, furnished during the month of December, 1940, and June, 1941, respectively, to the Division of Highways of the State of Illinois, which were accepted and used by said Division.

It appears from the report of the Division of Highways that the invoices were submitted to the Division for payment after September 30, 1941, at which time the appropriation had lapsed, out of which the same, if properly contracted, by a person authorized, could have been paid.

It appears from the file that such materials were furnished by the claimant, that they were as represented, that the prices charged were as previously agreed upon, and that they were furnished at the request of said Division of Highways. That at the time of the purchase and delivery of said articles an appropriation did exist and funds were available from which the invoices could have been paid, but the appropriation lapsed on September 30, 1941, indicating that all the necessary requisites were present including the ordering or authorization of such materials by a proper person, and that the only reason that such invoices were not paid was the lapse of the appropriation.

This case falls within the ruling heretofore made in the case of Rock Island Sand & Gravel Co. vs. State, 8 C. C. R., 165, and similar cases wherein the court has held—

“Where claimant has rendered services or furnished supplies to the State on orders from an official authorized to contract for same and submits a bill therefor within a reasonable time, and has not received payment therefor, and such non-payment is due to no negligence or fault on the part of claimant, an award for the reasonable and customary value of such service will be made if, at the time the obligation was incurred, there were sufficient funds remaining unexpended in the appropriation to pay the same.”
Elgin, Joliet, and Eastern R. R. Co., vs. State of Illinois, 10 C. C. R., 243.

It appears from the evidence that at the time of the purchase of the above mentioned articles, and delivery to, and acceptance of same, by the Division of Highways sufficient funds remained unexpended in the appropriation to pay for same, and claimant is therefore entitled to be reimbursed for these articles.

An award is hereby allowed in favor of claimant in the sum of $11.43.


text:
    (No. 3639
    John Leonard Rowley and Edith Rowley, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1942.

    William P. Lowbey, Jb., for claimant.
    Geobge F. Babbett, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimants seek an award in the amount of $448.88 on the basis of equity and good conscience.

Claimants represent that they are the owners of certain described real estate in the City of Joliet, Will County, Illinois. That the property immediately west of and adjoining that of the claimants and which was the same size, was for the revenue years 1935 to 1939 erroneously assessed in the claimants’ name and that the claimants in good faith relied upon the authenticity and correctness of said tax statements ajad paid the amounts shown on said tax statements for said years in the total amount of $165.86. That said amount of $165.86 has been paid to them by Emma Ulm, the owner of the adjoining property, which was assessed to the claimants. That the real estate owned by the claimants which adjoined that assessed to them, has had no taxes paid on it since the revenue year 1935, and there has accrued in back taxes, interest, penalties and costs the sum of $614.74. It is this sum less $165.86 which they paid as taxes on the property adjoining theirs, and which they have received from the owner of such property, that claimants ask be awarded to them.

Claimants further represent that on September 9, 1940, they made a demand on the County Treasurer of Will County, Illinois, to rectify the records of his office and to credit the payments made by these claimants on the real estate described, but said clerk refused to comply with such demands and further refused to grant any relief to these claimants.

Thereafter a petition for a writ of mandamus was filed by claimants in the Circuit Court of Will County, Illinois, to compel the County Treasurer aforesaid to reimburse them, or in the alternative, to credit to their account all tax penalties and assessments which appear unpaid as against their particular tract of real estate; that a hearing was held on said petition on September -2, 1941, and a decree entered in said Circuit Court on that date, dismissing their petition for want of equity, inasmuch as there was no authority to sustain their contention, either in law or equity.

This case comes before the court on the complaint, briefs, statements, and arguments of the respective parties. The attorney general filed a motion to dismiss the complaint.

The claimants in their brief state the following:

“Claimants admit that there is no liability on the part of the Sovereign State, but respectfully contend that in equity and good conscience they should be granted the award which they seek."

The Court has carefully examined the complaint, statements, briefs, and arguments on behalf of the parties hereto. Many authorities are cited by each, many of which have been carefully read by the court in the preparation of this opinion.

The claimants in this case paid the taxes, they seek to recover from the State, voluntarily and not under duress, no part of which were received by the respondent, the State of Illinois.

In LeFevre vs. County of Lee, 353, Illinois, 30, The Supreme Court held that taxes, even though illegal, if paid voluntarily and not under duress can not be recovered by the taxpayer.

“It is well settled in this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such recovery. It is also well settled that the fact that even if the statute under which a-tax is levied and collected was later declared unconstitutional will not authorize an action for its recovery.”

Board of Education vs. Toennigs, 297 Illinois 469.
"The fact that the collector had no right to demand the tax and claimant was under no legal obligation to pay it is of no consequence unless the payment was compulsory in the sense of depriving claimant of its free will."
Illinois Glass Co. vs. Chicago Tel. Co., 234 Illinois 535.
School of Domestic Arts vs. Harding, 331 Illinois 330.
Western Electric Co. vs. State, 6 C. C. R. 414.

Article IV, Section 20, Constitution of 1870, recites:

“The State shall never pay, assume, or become responsible for the debts or liabilities of, or in any manner, give, loan, or extend its credit to, or in aid of any public or other corporation, association or individual.”

Claimants invoke the doctrine of “equity and good conscience,” and on that theory, they expect this court to push aside the provisions of the Constitution and decisions of the Supreme Court for their benefit.

The decisions of this court are guided by the fundamental laws of the State and its own decisions, and those of the Appellate, and Supreme Courts.

In Oliver vs. State, 1 C. C. R., 218, the predecessor of the present Court of Claims it was said:

“The Commission of Claims is not a bureau of charities, but a court, and under the law creating it, it must determine all claims in accordance with legal principles."

Of like effect was the holding in Tierney vs. State, 1 C. C. R., 279.

ss ^ ^ ^ ^

The doctrine of “equity and good conscience” as found in Section Four (4) of Paragraph Six (6) of the Court of Claims Act was construed in Crabtree vs. State, 7 C. C. R., 207, and the ruling as laid down in that case has been consistently followed ever since.

“Equity and good conscience” is not a legal principle, under the laws of the State of Illinois, and the claimants inferentially admit by their pleadings that their claim has no legal or equitable principle as a basis. Equity in Illinois is not a fluid, intangible matter of policy, but, like the law, is a solidified abstract matter of principle.

Inasmuch as claimants admit there is no legal liability on the part of the respondent, to refund these taxes, but contend that in “equity and good conscience” they should be granted the award, brings them squarely in the ruling of the Crabtree case.

The claimants having failed to bring themselves within the provisions of the law entitling them to an award, there is nothing this court can do but deny the claim.

It is therefore ordered that the motion of the Attorney General to dismiss the case be sustained, and the claim is hereby denied.


author: Chief Justice Hollerioh Eckebt, J.

text:
    (Nos. 3524 and 3525—Consolidated
    Louise M. Berg, No. 3524, Charles F. Berg, No. 3525, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 11, 1941.

      Rehearing denied March 11, 1942.

      Supplemental Opinion filed March 11, 1942.

    Bell, Farrar & Scott and Carl I. Dietz, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Hollerioh

delivered the opinion of the court:

Each of above claimants sustained injuries which arose out of the same transaction or occurrence; each is represented by the same counsel; the complaint in each case is the same except as to the nature of the injuries sustained and the damages claimed as the result thereof; the questions involved are the same; and we have therefore combined the cases for the purposes of consideration and disposition.

Each complaint avers in substance that for the past thirteen years the respondent has owned and controlled a tract of land in Rock Island County consisting of approximately two hundred acres adjoining the Rock River, known as Black-hawk State Park, which tract of land came under the supervision and control of the respondent by virtue of an Act of the Fifty-fifth General Assembly entitled “An Act Providing for the Purchase of the Blackhawk Watch Tower Site to be Used for a State Park and Making an Appropriation Therefor, ’ ’ approved June 29th, 1927; that since the establishment thereof, said park has been under the direction and supervision of the Division of Parks and Memorials of the Department of Public Works and Buildings of the respondent, and has been in charge of a park custodian as the agent of such division and department; that shortly prior to July 4th, 1938, a voluntary association of persons known as The Italian-American Club secured permission of the respondent’s agent in charge of said park, and the consent of the Superintendent of the Division of Parks and Memorials of said Department of Public Works and Buildings, for the holding of a picnic and celebration in said park on July 4, 1938, and said club proceeded to advertise to the public that it would sponsor a picnic and patriotic celebration at said park, which celebration would be featured by certain political speeches, to be followed by a display of fireworks in the evening; that said club proceeded with the arrangement for said picnic and celebration ; that the custodian of said park actively assisted in making such arrangements, and was personally present and co-operated with the committee in perfecting all details relating to the celebration that required the regulation and supervision of the respondent through its park custodian; that said club procured a large supply of fireworks and explosives, and with the knowledge, consent and co-operation of the park custodian, held said celebration as advertised; that the respondent through its park custodian or other agents, had placards and signs posted throughout the park during said day reading “No Fireworks Allowed”; that on the evening of said day there were approximately eight thousand (8,000) persons, including the claimants, present in said park; that prior to the time said grounds became a State park it had become customary for such fireworks as were displayed in the park to be fired and discharged outside of the boundaries of the park, from the north edge of Vandruff’s Island in Rock River; that notwithstanding such well-known custom, the park custodian and the members of the club committee selected a place within the park for the shooting and discharging of said fireworks; that said park custodian and each member of the committee well knew, or ought to have known, that the place so selected for the discharge of said fireworks, and the areas set aside for the use of spectators and general public, were in such close proximity to each other that serious injury to members of the public there assembled would or might result from the bursting of rockets and other fireworks if the same were unskillfully or accidentally discharged; that such park custodian and the respondent failed and neglected to have a sufficient number of police or employees to protect the spectators invited to the park on said occasion from severe bodily injury and harm; that in discharging such fireworks, a spark in some manner reached and ignited certain supplies of fireworks placed carelessly nearby in open and unprotected boxes, causing such stored fireworks to be prematurely ignited and discharged, which resulted in the wild and uncontrolled explosion thereof in many directions, whereby each of the claimants was struck and knocked to the ground and seriously burned and thereby suffered serious and permanent injuries; that each of the claimants was in the exercise of all due care and caution and that the accident in question was the result of the carelessness and negligence on the part of the custodian of said park and of the respondent.

The Attorney General has filed a motion to dismiss in each case for the reason that each of said claims is predicated upon the alleged liability of the respondent for the negligent and wrongful acts of its officers, agents and employees while engaged in a governmental function, and that under such circumstances there is no liability on the part of the respondent.

The question here involved has been before the courts of this State on many occasions, and cannot now be considered an open question.

In the case of Stein vs. West Chicago Park Commissioners, 247 Ill. App. 479, the plaintiff’s decedent was an infant of the age of ten years who was drowned by falling through the ice on a lagoon or pond in Douglas Park in Chicago, which was used for boating and swimming in the summer and for skating in the winter season.

, The court held that the defendant was a municipal corporation organized for the health, welfare and enjoyment of the general public and was not liable for the negligence of its servants and agents under the doctrine of respondeat superior.

In the case of Hendricks vs. Urbana Park District, 265 Ill. App. 102, the plaintiff’s intestate was an infant of the age of twelve years who was drowned in a swimming pool in a park maintained by the defendant. The declaration alleged that the defendant did not take precautionary measures to protect those using the swimming pool but managed and operated the same in a careless and negligent manner; that the pool was improperly constructed and was in a dangerous and unsafe condition; that it was without sufficient lights; that the defendant did not furnish sufficient guards and failed to erect notices as to the depth of the water; that there was not sufficient lookout for the protection of swimmers,-and that pools of that kind were of a "nature that would appeal to and were attractive to children of tender years.

The defendant demurred to the declaration and the court, after considering the previous cases in this State, held that the doctrine of respondeat superior had no application .and that the defendant was not liable for 'the negligent acts of its- officers as charged in the declaration.

In the case of Love vs. Glencoe Park District, 270 Ill. App. 117, the declaration charged that the defendant carelessly and negligently permitted the plaintiff’s intestate to swim in Lake Michigan at a beach controlled by the defendant, without warning him of a dangerous undertow which was in existence at that time; that the lifeguards maintained at the place in question negligently and carelessly failed to perform their duty; and that the defendant failed to have life preservers and safety ropes for use during the emergency, whereby the plaintiff’s intestate was drowned.

The defendant demurred to the declaration, and the court, after reviewing a number of cases in this State involving similar questions, held that the doctrine of respondeat superior did not apply and that there was no liability on the part of the defendant. In considering the case the court, among other things, said:

“It is also argued that the present rule is based upon the ancient doctrine that ‘the king can do no wrong.’ We believe the rule is based upon a broader and more humane theory of government. The purpose of the State in the creation of park districts is primarily to provide for the health, welfare and entertainment of the public. The State could operate without such agencies, but without them the loss would be that of the public. They are not necessary to carry on the functions of government, but their existence is of inestimable benefit to the people. Accidents must, necessarily, happen because of their operation, but the great good to the greatest number greatly out-weighs the hardships to the few. The health benefit derived by the general public is of first consideration, and it was evidently this fact which influenced legislatures in the creation of park districts similar to the one involved in this proceeding.”

Iu the case of Gebhardt vs. Village of LaGrange Park, 354 Ill. 234, the defendant maintained a playground and recreation center beyond the corporate limits of the village. Such playground contained a swimming pool and the defendant arranged to convey children in the village truck to and from such swimming pool. In returning from the pool on the occasion in question, the automobile in which the plaintiff was riding collided with another car, whereby the plaintiff was injured. The court held that the maintenance of the swimming pool was a governmental function, that the doctrine of respondeat superior had no application, and that the village was not liable'for damages arising out of the negligence of its servants in the exercise of such governmental function.

In the case of LePitre vs. Chicago Park District, 374 Ill. 184, the plaintiff sued to recover damages for personal injuries received when the automobile in which she was riding crashed into a concrete structure on the drive known as The Outer Drive which was under the governmental jurisdiction of the defendant park district. The plaintiff’s action was founded upon the alleged negligence of the defendant in locating and maintaining such concrete structures on the drive and in not having them properly lighted. The court held that the defendant in the construction of the Outer Drive was engaged in a governmental function and therefore was not liable for the negligence of its servants and agents in that behalf.

In the case of Trombello vs. State, 8 C. C. R. 56, plaintiff’s intestate was a minor of the age of six years who was drowned while playing on a raft in a park lagoon in Douglas Park in Chicago.

In the case of Metropolitan Trust Company, a Corporation, et al., vs. State, 8 C. C. R. 377, the plaintiff’s intestate was an infant of the age of thirteen years, who was drowned while swimming in a swimming pool in Ogden Park in Chicago. In that case it was charged that the defendant failed to place and maintain a screen over a certain water outlet pipe, which pipe was ten inches in diameter, and that by reason thereof the plaintiff’s intestate was caught by the suction and drawn into such outlet pipe, was unable to extricate herself and was drowned before the flow of water from such outlet pipe could be shut off.

In the case of Monaco, et al. vs. State, 9 C. C. R. 90, the plaintiff’s intestate, an infant of the age of twelve years, was drowned while skating upon a lagoon in Columbus Park in Chicago. The complaint alleged it was the duty of the respondent to take all precautionary measures required by reasonable prudence to guard against dangers which might arise because of insufficient thickness of the ice, and to warn the public against such danger by proper signs, and that it failed in its duty in that behalf.

In the case of Jones vs. State, 10 C. C. R. 104, while claimant was walking in Lincoln Park in Chicago her foot was caught or entangled by a wire extending from a certain tree to a stake, whereby she fell and received permanent injuries.

In the case of Nina Youngman, Admx. etc. vs. State, No. 3262, decided at the January term, A. D. 1940 of this court, two infants aged ten and twelve years respectively, were drowned in Pike Creek at White Pines State Park, Oregon, Illinois, said park being established and operated by the State of Illinois. In that case the complaint alleged that there was a concrete slab across Pine Creek which was formerly used by cars, but was no longer so used; that the waters of the creek passed over it in a shallow manner and that the surface of the slab had become overgrown with moss and was attractive to children of tender years who were in the habit of wading on the slab; that the water on each side of the slab was approximately fifteen feet in depth, making it a dangerous place for children to play; that the respondent negligently and carelessly failed to remove the slab or provide protection for the same and permitted children to play thereby and thereon, as a result of which the two children, while wading on the slab, slipped off and were drowned.

Each and all of the above cases were park district cases, and in each of such cases an award was denied upon the ground that the defendant in the maintenance of its public parks was engaged in a governmental function and therefore was not liable under the doctrine of respondeat superior. The same conclusion has been reached in numerous other cases decided by this court.

The law as set down in the cases cited is decisive of the question involved in the cases at bar, and award in each case must therefore be denied.

Supplemental Opinion on Petition fob Rehearing.

Eckebt, J.

Claimants have filed herein their petition for rehearing which raises the question of the extent of the jurisdiction of this court. Claimants contend that the court erred in applying to these claims the general rule of law that the doctrine of respondeat superior has no application to the State of Illinois in the exercise of its governmental functions. It is urged that the application of this rule to all cases where the State is in the exercise of such governmental functions is extremely harsh, inhuman and unjust, although it is admitted that it is the rule followed by courts of record in this State.

It is urged that the Court of Claims has heretofore recognized an exception to this general rule and held the State liable in cases where the following conditions existed:

(1) Such gross carelessness or wanton negligence on the part of an officer, agent or employee of the State as • amounted to culpable negligence.

(2) Freedom from contribuí ary negligence on the part of the claimant.

(3) Proof of severe or serious personal injury to claimant resulting in death or total or partial or permanent disability directly attributable to the culpable negligence of said officer, agent or employee.

It is urged that such exception is a recognition of a broad obligation and liability upon the part of the State for the advancement of social justice and the rehabilitation of its citizens in cases where injury or damage arises from culpable negligence of State officials or employees. Claimants contend that paragraph 4 of Section 6 of the Court of Claims Act does not restrict or limit this court to making an award only in cases where there is a pre-existing legal or equitable obligation on the part of the State, but rather that said paragraph 4 of Section 6 of the Court of Claims Act expressly gives this court jurisdiction to hear and determine tort claims against the State, and that said paragraph grants broad powers to the court to exercise the same authority as the Legislature itself could exercise in considering and passing upon such claims.

This court, however, has many times considered similar contentions as to its jurisdiction and power to make awards. Under the Act of 1877, which created a Commission of Claims, composed of one Judge of the. Supreme Court and two Circuit Judges of the State, an' award was denied where there was neither an equitable nor legal claim against the State. Schmidt vs. State, 1 C. C. R. 76. Upon the creation of the original Court of Claims, in 1903, the holding in the Schmidt case was approved. Henke vs. State, 2 C. C. R. 11. In the. case of Ryan vs. State, 4 C. C. R. 57, decided under the Act of 1917, the court stated that the Act “does not authorize this court to allow any claims which are not based on principles of law and equity, however much such cases might appeal to the' sympathies of the court. ...”

Subsequent to the opinion in the Ryan case, a number of decisions, influenced, apparently, by the sympathy of the court, departed from the.rule laid down in the earlier cases, and allowed certain claims in which there was no legal liability. The grounds of these decisions were characterized, first, as social justice, then as social justice and equity, and afterward as equity and good conscience. It was at this time that the alleged exception to the general rule of respondeat superior appeared in the opinions. Claimants cite: Kayhs vs. State, 7 C. C. R. 92; Pachesa, et al., vs. State, 7 C. C. R. 123; Miller, et al., vs. State, 7 C. C. R. 129; Cavender, et al., vs. State, 7 C. C. R. 199; Connole, et al., vs. State, 7 C. C. R. 232. These cases were obviously an attempt by the court to mitigate the harshness of the rule, and yet avoid the pitfalls inherent in the equity and good conscience doctrine.

This trend continued until the court became aware of the dangerous tendency of its decisions, the extent to which they were being carried, and the fact that they were without legal authority. There then began a return to the original holdings of the court. After an exhaustive review of authorities, and with knowledge of the unfortunate lack of uniformity in the prior decisions of this court, in the case of Crabtree vs. State, 7 C. C. R. 207, the court held that although the Legislature has power to pay claims on its own initiative, this court in passing on claims can exercise only such authority and power as are delegated to it under the terms and provisions of the Court of Claims Act; that under paragraph 4 of Section 6 of the Court of Claims Act, it has no authority or power to allow any • claim presented for consideration unless the same is based upon a legal or equitable right. The court held that paragraph 4 of Section 6 of the Act merely defines the jurisdiction of the court, and does not create a 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 sueable; 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; 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.

It is admitted that the State, in the exercise of its governmental function, is not liable under the doctrine of respondeat superior for the ordinary negligence of its servants and agents; there appears no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents in the absence of a statute. The alleged exception has no basis in law and is no longer recognized by this Court. Garbutt vs. State, 10 C. C. R. 37; Stanley vs. State, 10 C. C. R. 146.

The rule as laid down in the case of Crabtree vs. State, supra, we believe to be the only'rule which this court can follow, although the appeal to its sympathies in cases of this kind is naturally very great. The motion for rehearing is therefore denied.


text:
    (No. 3675
    DuPage County Highway Department, by DuPage County Superintendent of Highways, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Ben F. Rails-back, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award in the sum of $438.94, for reimbursement of fifty per cent of the cost of maintenance of roads in DuPage County, constructed under Section 19, Chapter 121, Illinois Revised Statutes 1941. Section 37, of said chapter, provides that roads constructed under said Section 19, shall be maintained equally by the county and the State. It is stated in the complaint that the cost of maintenance of the roads in question for. the months of April, May and June, 1941, was $877.83.

A stipulation was entered into between the parties herein, to the effect that the report of M. K. Lingle, Engineer of Claims of the Division of Highways, should constitute the record in this case; said report is dated January 28, 1941.

Although the labor, materials and equipment for which this claim is brought were furnished for the months above stated, the invoices for same were not submitted to the State Division of Highways for payment until October 31, 1941. The appropriation from which said claim could be paid lapsed September 30, 1941.

Claimant’s claim was submitted to the District Office of the Division of Highways, at Elgin, Illinois, on October 31, 1941, and was approved for payment by C. H. Apple, District Engineer. Mr. Apple then forwarded said claim to the State Division of Highways, but it was returned with the explanation that the appropriation made for the purpose of paying such claims had lapsed. The complaint filed herein was filed December 29, 1941.

Section 37 of Chapter 121 of Illinois Revised Statutes, 1941, provides as follows:

"State Aid" gravel or macadam roads constructed, or partially constructed, prior to the taking effect of this amendatory act (July 1, 1929) shall be maintained equally by the county and State.
Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no negligence or fault on the part of claimant same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where, at the time the obligation was incurred, there were sufficient funds remaining unexpended in the appropriation to pay for the same.
Rock Island Sand & Gravel Co. vs. State, 8 C. C. R., 165.
Individual Towel & Cabinet Service Co. vs. State, 6 C. C. R., 407.
City of Jacksonville vs. State, 10 C. C. R., 716.
Harst and Strieter Co. vs. State, 10 C. C. R., 338.
Metropolitan Electrical Supply Co. vs. State, 10 C. C. R., 346.
Schnepp and Barnes vs. State, 10 C. C. R., 609.
Oak Park Hospital Inc. vs. State, 11 C. C. R., 219.
Riefler, et al. vs. State, 11 C. C. R., 381.
Litchfield & Madison Railway Co. vs. State, 11 C. C. R., 455.
King vs. State, 11 C. C. R., 577.
Shonkwiler vs. State, 11 C. C. R., 602.

This claim was presented for payment on October 31, 1941, and was approved by C. H. Apple, District Engineer, State Division of Highways, but payment thereof could not be made on account of the fact that the appropriation out of which the same was properly payable lapsed on September 30, 1941.

We find the bill therefore had been submitted within a reasonable time, but that the appropriation had lapsed without any fault or neglect on the part of the claimant, and we further find that at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same.

This claim comes within the requirements set out in the above cited cases, decided by this court, and an award is therefore entered in favor of the claimant in the sum of $438.92.


author: Eckert, J.

text:
    (No. 3352
    Eugene Evans, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Cassidy, Knoblock & Sloan, for claimant.
    George F. Barrett, Attorney General; Ben F. Rails-back, Assistant Attorney General, for respondent.
   Eckert, J.

On June 18, 1937, the claimant, Eugene Evans, was employed by the Department of Public Works and Buildings in the Division of Highways on the premises known as State Highway Garage on Route No. 88, north of the City of Peoria, Illinois. He was unloading crushed rock from a railroad car using a tripod derrick which fell from the edge of a coal car, catching claimant’s wrist between the top of the coal car and one of the legs of the derrick.

Claimant was given immediate first aid treatment at the State Highway Garage and was then taken to the office of Dr. J. T. Jenkins in Peoria. Dr. Jenkins found claimant suffering from a fracture of the junction of the lower middle third of the left radius. An x-ray was taken and claimant was removed to the Methodist Hospital of Central Illinois in Peoria, where an operation was performed and the arm placed in a cast. When the cast was removed two weeks later, another x-ray disclosed that the arm had not set. This resulted in a second operation and the placing of the arm in a cast for three months. Claimant remained under the care of Dr. Jenkins until January, 1938, when he was taken to Chicago and placed in charge of Dr. H. B. Thomas, who found an ununited fracture of the left radius, lower third. A bone graft was performed by Dr. Thomas who continued in charge of the case until April 15,1938, when claimant was discharged. Compensation for temporary total incapacity was paid by the respondent to claimant at the rate of $9.50 per week from June 19,1937, to April 15, 1938, and respondent has paid for all medical and surgical services.

During the twelve-month period prior to the accident in question, claimant received as wages from the Division of Highways, the sum of $987.60. At the time of the accident he had no children under the age of sixteen- years. Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act and notice of the accident and claim for compensation were made within the time provided by said Act. Furthermore, the accident arose out of and in the course of the employment.

Claimant alleges he is entitled to further compensation for temporary total incapacity from April 15, 1938, to May 25, 1938. He testified that he was unable to report back to work until May 25, 1938, giving as his reason that he was “in a cast most of the time.” It is clear from the record, however, that claimant was discharged by Dr. Thomas on April 15, 1938.' Furthermore, the evidence shows that the casts were in fact removed prior to April 15,1938. Claimant being able to return to work on April 15, 1938, he is not entitled to any award for further temporary total incapacity.

Claimant also alleges a sixty-six and two-thirds permanent loss of use of his left arm although the injury in fact was to claimant’s wrist. . There is no provision in the Workmen’s Compensation Act for the specific loss of use of a wrist. Following, however, the decision in the case of Owens vs. State, 11 C. C. R. 399, a partial loss of use of a wrist must be considered as a partial loss of use of an arm. Dr. Jenkins, testified that claimant had suffered a sixty to seventy-five per cent loss of motion in the left wrist; that claimant had only five degrees flexion, whereas normal flexion is ninety degrees; that claimant had extension of between five and ten degrees, whereas normal extension is approximately seventy-five degrees; that claimant has thirty degrees supination, whereas normal supination is ninety degrees; that claimant has about fifteen degrees of abduction, whereas thirty degrees is normal ; and that claimant has ten degrees of adduction, whereas thirty degrees is normal.

From a careful consideration of the entire record, the court finds that the claimant has suffered a thirty-three and one-third per cent permanent loss of use of his left arm. Claimant’s average weekly earnings, during the year preceding the accident were $18.99, making a compensation rate of $9.50 per week. Thirty-three and one-third per cent of two hundred and twenty-five weeks, the period provided for computing total loss of use of an arm, equals seventy-five weeks; seventy-five weeks at $9.50 per week equals $712.50, the amount of compensation due claimant for his permanent partial disability.

Award is therefore entered in favor of the claimant for said sum of $712.50, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3683
    Luvillia McDonald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Claimant, pro se.
    Geoege F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Dambón

delivered the opinion of the court:

This claim was filed January 23, 1942, by Luvillia McDonald, on behalf of herself as the widow of Charles McDonald, under the Workmen’s Compensation Act of Illinois for the death of her husband while employed by the State of Illinois. The claimant alleges that she is the widow of Charles McDonald and resides in Roscoe, Winnebago County, Illinois. That on the 26th day of December, 1941, the said Charles McDonald was an employee in the Maintenance Bureau of the Division of Highways of the State of Illinois, and that' on that day, about 11:58 A. M., while accompanied by Clark Weller, another employee of the State of Illinois, and while deceased was driving a snowplow truck owned by said Division of Highways across the tracks of the Chicago, Milwaukee, St. Paul and Pacific Railroad just west of Rock-ton, Illinois, he was then and there struck by the train and killed. That at the time of the accident, which resulted in his death he was being paid by the Division of Highways at the rate of sixty-five cents an hour for an eight hour work day.

Claimant further alleges that in accordance with the provisions of the Workmen’s Compensation Act she is entitled to receive the sum of Four Thousand Four Hundred ($4,400.00) Dollars, because of the death of her husband, and further that she is entitled to have the cost of transporting deceased’s body from the site of the accident by ambulance service if not paid. She further states that the said Charles McDonald at the time of his death was thirty-five years of age with no dependents, except the claimant.

This claim comes before the court on the claimant’s complaint, the stipulation between the parties hereto, including the report of the Division of Highways, dated February 5, 1942, and the respondent’s statement, brief and argument; that on behalf of claimant having been waived.

Under rule 21 of this court the report of the Division of Highways filed in this case is prima facie evidence of the facts set forth therein.

Said report states that on December 26, 1941, shortly after midnight McDonald accompanied by his helper, Clark Weller, left the division garage in Roscoe in a truck owned by the division, and plowed snow on U. S. Route 51 between South Beloit and Rockford. At about 6:00 A. M. they went to Bockton and then plowed snow on S. B. I. Boute 2 between South Beloit and Bockford, then returned to Bockton at about 11:15 A. M., they then plowed snow on the Shirland Spur pavement westward from Bockton. At 11:38 A. M., about one mile west of S. B. I. Route 2 they stopped at the crossing of the Chicago, Milwaukee, St. Paul and Pacific Railroad, lifted the plow and proceeded to cross the crossing. A railroad train at that point struck the truck, killed McDonald instantly, and injured Weller so seriously that he died two days later. McDonald was instructed by the Division of Highways to plow snow at these locations. The division had knowledge of the accident the same day on which it occurred. That the division has paid no compensation in this case for disability, but has paid Ten ($10.00) Dollars to the Rosman-Uehling-Kinzer Company, Beloit, Wisconsin, .for the transportation of the body of deceased from the site of the accident to Bockford, where an inquest over the body was conducted, and thence to the funeral home of that company in Beloit.

•Charles McDonald was first employed by the Division of Highways on March 31, 1941, at the rate of fifty cents an hour. On April 5, 1941, his rate of wages was increased to sixty cents an hour. On November 21, 1941, his rate of wages was increased to sixty-five cents an hour. During the period of his employment McDonald was a truck driver for the division. McDonald, and his predecessor, received wages from the Division of Highways in the total amount of One Thousand Six Hundred Forty-nine Dollars and Ten Cents ($1,649,-10), annually, exclusive of overtime, and eight hours constituted a normal working day.

Upon a full consideration of this case the court finds it has jurisdiction of the parties hereto, and of the subject matter, and that the respondent had proper notice of the accident and death of claimant’s intestate. An application for adjustment of claim was filed in apt time as provided in Section 24 of the Workmen’s Compensation Act.

This court has decided in a number of cases that an employee of the respondent, engaged as a highway maintenance worker, is such an employee of the State as is entitled to the benefits of the Illinois Workmen’s Compensation Act, and are controlling in the present claim.

Church, et al., vs. State, 7 C. C. R. 236.
Lightner vs. State, 8 C. C. R., 354.
Ferguson vs. State, 8 C. C. R., 589.

In following those decisions the claimant is entitled to an award for the death of her husband. ■ The basis for computing the compensation provided for in Section (7), Paragraph (C), is as follows:

“If the injured person has not been engaged in the employment of the same employee for the full year immediately preceding the accident, the compensation shall he computed according to the annual earnings which persons of the same class in the same employment and same location . . . have earned during such periods.”

The deceased was employed by the Division of Highways on March 31, 1941, and was killed on December 26, 1941, making his employment period less than one year. The report of the Division of Highways shows that his predecessor was paid One Thousand Six Hundred Forty-nine Dollars and ten cents ($1,649.10) annually, an average weekly wage of Thirty-one Dollars and Seventy-one Cents ($31.71), making his compensation rate amount to Sixteen Dollars and Fifty Cents ($16.50) per week under Section (8) of the Act.

Under Sections (7a) and (7k) of the Workmen’s Compensation Act it would appear that the claimant is entitled to an award in the amount of Four Thousand Four Hundred ($4,400.00) Dollars, consisting of the items of Four Thousand ($4,000.00) Dollars maximum for the widow under Section (7a) plus (10%) of this amount or Four Hundred ($400.00) Dollars under the amendment to the law passed in 1941, as to accidents occurring subsequent to July 1, of that year. It further appears from the report of the Division of Highways that the respondent had paid for the ambulance to remove the body of said deceased.

An award is therefore entered in favor of said claimant, Luvillia McDonald in the sum of Four Thousand Four Hundred ($4,400.00) Dollars to be paid to her by the respondent weekly at the rate of Sixteen Dollars and Fifty Cents ($16.50).

The amount of One Hundred Sixty-five ($165.00) Dollars has accrued as earned compensation for ten (10) weeks from the date of the death to March 6, 1942, and claimant is therefore entitled to payment of that amount at this time, with further monthly payments to be made to her for her use on the basis of Sixteen Dollars and Fifty Cents ($16.50) per week for 256 weeks, until the further sum of Four Thousand Two Hundred Twenty-four ($4,224.00) Dollars has been £aid to her, with an additional final payment of Eleven ($11.00) Dollars. Making a total of Four Thousand Four Hundred ($4,400.00) Dollars; such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


text:
    (No. 3479
    Marie Pickett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    James E. Londrigan, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

On November 29, 1939, claimant, Marie Pickett, was employed as an attendant at the Kankakee State Hospital, a public institution owned and operated by the State of Illinois under the direction of the Department of Public Welfare. The institution maintains a carpenter shop, employs an electrician to do necessary electrical work, and maintains a kitchen in which sharp-edged cutting tools are used in the preparation of meals for inmates. On the day in question, claimant stepped on a window sill in the hospital to pull down the shade; the window sash came out causing her to fall to the floor, a distance of four and one-half feet. As a result of the fall her right leg was broken at the knee. She was furnished necessary first aid by the respondent, and at respondent’s request subsequently employed Dr. Daniel K. Hur for necessary medical and surgical treatment.

Claimant was totally disabled from the date of the accident, until July 1, 1940, but she received pay for one month and one day while so incapacitated. Her earnings at the time of the accident were $54.60 per month, and her earnings for the year preceding the accident were $649.20, or an average weekly wage of $12.48. At the time of the injury, claimant had a child under the age of sixteen years dependent upon her for support.

Under Section 3 of the Workmen’s Compensation Act, the provisions of that Act apply automatically to the State when it is engaged in any of the enterprises therein enumerated and which are declared to be extra-hazardous. The State, in the operation of the Kankakee State Hospital, is engaged in such an extra-hazardous enterprise. Miele vs. State of Illinois, 9 C. C. R. 170; Lynch vs. State of Illinois, 9 C. C. R. 290. The enterprise being extra-hazardous, all employees of the institution come within the provisions of the Act irrespective of whether or not they themselves are directly exposed to the hazard. Ascher Bros. vs. Industrial Commission, 311 Ill. 258; Illinois Publishing Company vs. Industrial Commission, 299 Ill. 189. At the time of the injury the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

It appears from the record that claimant’s injury occurred during her normal working hours and while she was on duty under the supervision of her immediate superior. At •the time of the accident, she was doing the routine cleaning of the ward to which she was assigned. It thus appears that claimant’s accident arose out of and in the course of her employment.

Claimant has incurred doctor bills in the total amount of $110.00 which appear to be reasonable and necessary charges for the services rendered. In view of the fact that respondent requested claimant to secure her own physician and surgeon, claimant is entitled to an allowance for these services.

The uncontradicted testimony is to the effect that claim: ant was temporarily totally disabled from November 29,1939, to July 1, 1940, a period of thirty and four-sevenths weeks. It is admitted, however, that claimant was paid during this period for November 30th and for the entire month of December, 1939, on the basis of $54.60 per month, making a total of $56.42 to be deducted from any award for temporary total disability.

In addition to her claims for an allowance for medical and surgical services and for temporary total disability, claimant alleges a permanent partial loss of the use of her right leg. Dr.-Hur, who testified on her behalf, fixed the loss at approximately twenty per cent. He testified that claimant had about ninety degrees of flexion in her right leg, and that the normal amount of flexion in such joint is one hundred and twenty to one hundred and thirty-five degrees. Dr. Hur also testified that claimant lacked two or three degrees of complete extension. Claimant testified that her leg is sore and painful when she stands upon it for any length of time, and when there are changes in the weather; that she cannot straighten it out; that she still has pain when the leg is at rest; that she is unable to climb stairs without support. When the testimony was taken in the case, claimant was still being-treated, and apparently had considerable callous formation in the knee joint as a result of the fracture. Her walk was not a normal gait in that she favored her right side although there was no shortening.

From a careful consideration of the entire record, the court finds that claimant has suffered a twenty per cent permanent loss of the use of her right leg, and claimant is therefore entitled to have and receive from the respondent the following sums, to-wit:

(1) The sum of $100.00 for the use of Dr. Daniel K. Hur for and on account of medical and surgical services, and the sum of $10.00 for the use of Dr. Hamilton for like services.

(2) $11.00 per week for thirty and four-sevenths weeks, or the sum of $336.28, from which must be deducted the sum of $56.42, heretofore paid to claimant, leaving a balance of $279.86.

(3) The further sum of $11.00 per week for twenty per cent of one hundred and ninety weeks, or thirty-eight weeks, to-wit: $418.00 for the permanent loss of twenty per cent of the use of her right leg.

(4) Since this injury occurred subsequent to July 1st, 1939, the award must he increased ten per cent or $80.79, making a total due claimant of $888.65.

Award is therefore entered in favor of the claimant for the said sum of $888.65, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Fisher, J.

text:
    (No. 3631
    Paul Reaber and Loretta Koepke, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Rudnick & Wolfe, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Claimants seek to recover for injuries sustained and property damages caused by the left front wheel of a 1935 Ford V-8 automobile owned and driven by claimant, Paul Reaber, being driven "on July 12, 1941, about 11:30 o’clock A. M. into a large hole five or six inches deep in the pavement about one-half mile west of Waukegan, Illinois, on State Bond Issue Route No. 20. Claimants further allege that said hole was in said pavement of State Bond Issue Route No. 20. for a long time prior to the date of said accident and the respondent knew, or should have known, of its existence, and that the respondent’s negligent failure to repair said hole was the proximate cause of said accident and the damages sustained by claimants. Claimant, Paul Reaber, alleges damages sustained of $100.00, and claimant, Loretta Koepke, in the amount of $10,000.00.

In the maintenance of its hard-surfaced roads, the State is exercising a governmental function. This court has held in numerous cases that the State, in the exercise of a governmental function, is not liable for injuries to persons or property, resulting from the negligence of its officers, agents or employees. Claimants ask that their respective claims be allowed on the basis of equity and good conscience. This court has also repeatedly held that it has jurisdiction to recommend an award only where the State would be liable in law or in equity in a court of general jurisdiction if it were suable. Crabtree vs. State, 7 C. C. R. 207.

On the facts of this case as they have been presented here there is nothing this court can do but deny the claim.

It is therefore ordered, that the motion of the Attorney General to dismiss the case is sustained, and the claim is hereby dismissed.


text:
    (No. 3417
    Rufus Tyler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Clarence B. Davis, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On August 18, 1939, the claimant, Eufus Tyler, was employed by the Department of Agriculture of the State of Illinois as a garbage collector at the Illinois State Fair. While at work back of the 4H Club, he fell from the wagon in which he was riding, bruising his face and lips, and suffering contusions of the right wrist and forearm. He was taken to the emergency hospital for preliminary treatment and then to the office of Dr. David M. McCarthy who treated him at the expense of the State for five or six weeks.

At the time of his injury, claimant was forty-six years of age, a resident of Peoria, Illinois, and an unmarried man without dependents. No claim is made for temporary total disability, but claimant seeks compensation for permanent injury to arm, wrist and hand, for a scar upon his face, and for partial loss of hearing in left ear. At the time of the injury claimant was being paid fifty cents per hour and worked about eight hours a day, five days a week. Employees of the Department of Agriculture engaged in the same capacity and at the same rate , as claimant are employed less than two hundred days a year. Subsequent to his discharge by Dr. McCarthy, he went to work for the City of Peoria and continued in that work until taken ill with pneumonia.

From the record in this case it appears that at the time of the injury in question, the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and that notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of the employment.

It also appears from the record that any impairment of claimant’s hearing is not connected with the injury in question. Furthermore, the Workmen’s Compensation Act does not provide for compensation for partial loss of hearing, so that no award can be made for such alleged impairment.

From the testimony of Dr. McCarthy, it appears that claimant has scar about one-half inch long on the upper lip which the doctor stated was not a serious disfigurement of the face. Following the accident claimant was able to secure, employment similar to that in which he had been' engaged at the time of the accident. The State contends, and it is not denied by the claimant, that a disfigurement to be compensable must, in addition to being permanent, be a serious disfigurement. 1 ‘ The commissions and courts have decided in various cases that before a disfigurement can be considered serious it must be of such a disfigurement as affects a man’s employment.” Section 272, Angerstein (1930 Edition). No award can therefore be made to claimant on account of the alleged disfigurement.

It appears from the record that there is no injury to claimant’s wrist, but that claimant has suffered a permanent partial loss of the use of his right hand. The uncontradicted testimony is that the disability is twenty-five per cent! At the rate of fifty cents per hour, eight hours per day, compensation should be determined on the basis of two hundred days at four dollars per day, or an annual wage of Eight Hundred Dollars. This in turn equals an average weekly wage of $15.38. Under the provisions of the Workmen’s Compensation Act, claimant is entitled, for twenty-five per cent permanent partial disability of his right hand, to fifty per cent of his average weekly wage for a period of forty-two and one-half weeks, or the sum. of $326.83. Since the accident occurred after July 1st, 1939, the amount of compensation must be increased ten per cent, making a total sum of $359.55.

Award is therefore entered in favor of the claimant for the said sum of $359.55, all of which is accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the térms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 3682
    Alta Weller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claim comes before the court on complaint of Alta Weller for adjudication under the Workmen’s Compensation Act for the death of her husband.

The record consists of the complaint, report of the Division of Highways, stipulation, and brief, statement and argument of the respondent. The claimant waives her right to file her statement, brief, and argument. The facts in this case were fully set out in Luvillia, McDonald vs. State, No. 3683.

The complaint was filed on the twenty-third day of January, 1942.

Under the rules of this court the report of the Division of Highways is prima facia evidence of the facts set up in said report unless they are denied by the claimant. This report shows that the husband of the claimant was an employee of the State of Illinois, and was first employed by the respondent on the 11th day of April, 1941, at the rate of fifty cents an hour, as a .helper to Charles McDonald, a truck driver employed by the Division of Highways. Not having worked for the State for one full year the report sets up that his predecessor was paid at the rate of Nine Hundred Seventy-nine Dollars and Fifty Cents ($979.50) annually. This would mean an average weekly wage of Eighteen Dollars and Eighty-four Cents ($18.84), making his compensation rate amount to Ten Dollars and Thirty-six Cents ($10.36), per week, under Sections (8b) and (8-L) of the Workmen’s Compensation Act.

The decedent Clark Weller was a companion of Charles McDonald on the snow plow being operated by them "on the S. B. I. Route No. 2 just West of Rockton, Illinois, on the 26th day of December, 1941, and upon proceeding to cross the tracks of the Chicago, Milwaukee, St. Paul, and Pacific Railroad at about 11:38 A. M. a train struck the truck in which they were riding and completely demolished the truck killing McDonald instantly, and injuring Weller so seriously that he died two days later on the 28th day of December, 1941.

Claimant seeks an award of $4,400.00 for the death of her husband, as compensation, in accordance with the provisions of the Workmen’s Compensation Act of the State of Illinois, and further that she is entitled to $194.50 including medical, hospital and ambulance services.

The opinion in Luvillia McDonald vs. the State of Illinois, supra, is controlling in this case.

The. court finds that at the time of the injuries which resulted in the death of the husband of claimant that all the requirements under Section (24) of the Workmen’s Compensation Act have been fully complied with; that at the time of the death of claimant’s decedent the claimant was fully dependent upon him for support, but had no children or other dependents under the age of sixteen years.

Under the report of the Division of Highways in this case it appears that the following claims have been paid by the respondent:

Dr. Earl R. Cochran, Rockton..................................... $109.00
Dr. G. F. Ottaw, Beloit, Wis........................................ 10.00
Beloit Municipal Hosp., Beloit..................................... 62.50
Ginders Ambulance Serv., Rockford............................... 13.00
Total........................................................ $194.50

Under Sections (7a) and (7k) of the Workmen’s Compensation Act it would appear that the claimant is entitled to an award in the amount of Four Thousand Three Hundred Nine Dollars and Eighty Cents ($4,309.80), consisting of Three Thousand Nine Hundred Eighteen ($3,918.00) Dollars which is four times the average earnings of the decedent and ten (10) per cent the total under the amendment to the law passed in 1941 as to accidents occurring subsequent to July 1st, of that year.

We further find that the sum of Sixty-two Dollars and Sixteen Cents ($62.16) representing six weeks accrued compensation at the rate of Ten Dollars and Thirty-six Cents ($10.36) is payable as of Feb. 8, 1942, in that amount, and claimant is therefore entitled to payment at this time in the sum of Sixty-two Dollars and Sixteen Cents ($62.16), with further monthly payments to be made to her on the basis of Ten Dollars and Thirty-six Cents ($10.36) per week for four hundred and nine weeks (409) until the further sum of Four Thousand Two Hundred Thirty-seven Dollars and Twenty-four Cents ($4,-237.24) has been paid to her with an additional final payment of $10.40, making a total of Four Thousand Three Hundred and Nine Dollars and Eighty Cents ($4,309.80), for which an award is hereby entered in favor of claimant Alta Weller; such future payments being subject to the terms of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the.manner provided for in such Act.