author: Me. Justice Tantis

text:
    (No. 1910
    Charles L. Markham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    R. D. Robinson and Burkell Barash, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

Claimant asks to recover for personal injuries and property damages arising by reason of a collision of claimant’s automobile with a barricade erected on State highway between the City of Galesburg and the City of Wataga, such barricade having been erected by State Highway employees in connection with repair work on such highway, on or about the 5th day of October, A. D. 1927. Claimant charges that the State, through its agents and servants, failed to place a light or signal at the barricade to warn the users of the highway of such obstruction, and that through such wrongful and negligent failure of such State employees, the highway was left, during the night-time, in bad and unsafe condition, and that claimant unavoidably ran into such barricade, although exercising due care and diligence, and was thereby seriously injured, being compelled to expend $50.00 in being cured of his injuries, and his automobile was damaged, necessitating the expenditure of $50.00 for repairs. Claimant has attached a Bill of Particulars, in which he states his claim as follows:

Loss of time, five months at $120.00 per month.............$ 600.00
Damage to automobile.................................... 27.90
Doctor’s bill ............................................. 20.50
Injury to arm and pain and suffering.................... 2,000.00
Total ............................................$2,648.40

Respondent has filed a motion to dismiss, basing same upon the averment that the claim is within the rule that the State, in the construction and maintenance of its highways, is not liable for injuries occurring through the error, fault or negligence of its employees. From the files it is indicated that there would be complicating proof as to the charge that no lighted lanterns had been placed at the barricades on the night in question, but regardless of this fact, the motion of the Attorney General is properly pleaded, and as has been stated in Morrissey vs. State, 2 C. C. R., 454; Minear vs. State Board etc., 259 Ill. 549, and Bucholz vs. State, 7 C. C. R., 241:

“In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise thereof it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its offices or agents in the absence of a Statute creating such liability.”

The Legislature of Illinois has not seen fit to pass any legislation creating liability upon the part of the State in such cases, and the court is of the opinion that no basis exists for an award by it upon the claim stated.

The motion by the Attorney General to dismiss the claim is therefore allowed. Claim dismissed.


source: Caselaw Access Project

author: Mr. Chibe Justice Hollerich

license: Public Domain

text:
    (No. 2312
    Gael E. Nelson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Pottst, Fisk & Mommy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerich

delivered the opinion of the court:

Claimant is engaged in the plumbing and heating business at DeKalb, Illinois, and is duly licensed under the laws of this State. Between January 3, 1933, and June 27, 1933, at the request of the officials in charge of the Northern Illinois State Teachers’ College at DeKalb, claimant furnished certain labor and materials for the purpose of repairing or improving the plumbing in the buildings of such College.

A statement of the amount due him was presented to the proper authorities of said College, but was not presented in time to be paid before the appropriation lapsed, and claimant has therefore filed his claim in this court.

It is admitted that the labor and services in question were furnished by the claimant at the request of the proper officers of the Northern Illinois State Teachers’ College, and no question is raised as to the reasonableness of the several items of the bill. The only reason the bill was not paid was because it was not presented before the appropriation lapsed. The President of the College states that the bill presented is correct and in accordance with his records.

The Attorney General makes no objection to the allowance of the claim and we can see no reason why it should not be paid.

Award is therefore entered in favor of the claimant for the sum of One Hundred Fifty-three Dollars and Eighty-two Cents ($153.82).


author: Mr. Chief Justice Hollerich

text:
    (No. 2347
    Gertrude Shapiro, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Robert E. Cherry, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed her complaint herein on March 20, 1934, and alleged therein that “on the 6th day of January, A. D. 1934, the defendant, by and through ‘The Commissioners of Lincoln Park, ’ a duly authorized and existing department or agency of the defendant, with powers and duties conferred upon it by the laws of the State of Illinois, in pursuance of its powers as aforesaid, was possessed of certain sidewalks and pathways for the convenience and safety of pedestrians in the area or district known as Lincoln Park,” etc.; and further alleged therein that it was the duty of the defendant to keep and maintain its said sidewalks in good condition and repair and free of obstructions; that notwithstanding its duty in that behalf, the defendant permitted an obstruction dangerous to the safety of pedestrians to be and remain upon said sidewalk, and that the claimant, while in the exercise of all due care and caution for her own safety, tripped and stumbled upon and against said obstruction, and was thrown with great force to the ground, and thereby sustained serious and permanent injuries.

The Attorney General has moved to dismiss the case for the reason that the Commissioners of Lincoln Park are a municipal corporation, capable of suing and being sued, and that this court is without jurisdiction to entertain this claim.

The same question was raised in the case of Benjamin Price vs. State, No. 2085, decided at the March term, 1934, of this court; also in the easel of RaFfaele Trombello, et al. Admrs. etc. vs. State, No. 2237, decided at the January term, 1934, of this court; and we there held that inasmuch as Lincoln Park is under the direct control and supervision of the Board of Park Commissioners and is a municipal corporation having authority to sue and be sued, an action could not be maintained against the State, for injuries received as the result of an accident occurring in such park.

It has frequently been held by the courts of this State that the Board of Park Commissioners is not liable for injuries occurring in parks. Stein vs. West Park Commissioners, 247 Ill. App. 479; Hendricks, Admx. vs. Urbana Park District, 265 Ill. App. 102; Love vs. Glencoe Park District, 270 Ill. App. 117. There being no liability on the part of the park district, no reason can be perceived why the State should be held liable.

It is also suggested that the State is liable under the doctrine of equity and good conscience. The question of the liability of the State in any case solely on the grounds of equity and good conscience was raised in the case of Crabtree vs. State, 7 C. C. R. 207, and we there held 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 principle of equity and good conscience to secure such an award. The same conclusion was reached in the case of Johanna Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

Claimant having failed to bring herself within the provisions of a law entitling her to an award, the motion of the Attorney General must be sustained and the case dismissed. Case dismissed.


author: Me. Chief Justice Hollebich

text:
    (No. 2366
    Fred J. Shell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Feed J. Shell, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollebich

delivered the opinion of the court:

For many years prior to June 17, 1933, claimant was the official court reporter of the Circuit Judge residing in Macon County, in the Sixth Judicial Circuit of this State. On the last mentioned date he was appointed by Hon. Horace W. McDavid of Decatur, one of the judges of said Judicial Circuit, as his official court reporter, and the original order of appointment was duly filed in the office of the Auditor of Public Accounts of the State. On September 11, 1933, Judge McDavid died, and thereafter the judicial work of said Sixth Circuit was carried on by the two remaining judges of said district, to-wit, Hon. John H. Armstrong of Champaign, and Hon. Joseph L. McLaughlin of Sullivan.

After the death of Judge McDavid, the claimant was requested by Judg’e McLaughlin, then the presiding judge of the Circuit Court of Macon County, to continue with his work and duties as official court reporter of such court, and thereafter continued in the performance of such duties.

On January 29, 1934, a special election was held to fill the vacancy caused by the death of Judge McDavid and Hon. Charles Y. Miller was elected to fill such vacancy. On February 6,1934, claimant was reappointed as official court reporter in and for the Circuit Court of Macon County, by said Judge Miller, and has thereafter continued to act as such.

Claimant received his regular salary of $270.00 per month from the time of his appointment by Judge McDavid to and including the month of September, 1933. During October, 1933, he received a notice from the State Auditor to the effect that on account of the death of Judge McDavid, claimant would not receive any further compensation from the State of Illinois until such time as a new appointment of official court reporter might be made by the successor to Judge McDavid.

Although claimant performed all of the duties of court reporter from the time of the death of Judge McDavid, to-wit, September 11,1933, until the 6th day of February, A. D. 1934, he has not been paid for his services during the months of October, November and December, 1933, nor for the month of January, or the first five days of the month of February, in

1934. He has therefore filed his complaint in this court asking an award for the amount of the salary due him for the time above mentioned at the rate of $270.00 per month, to-wit, the sum of $1,128.23.

It appears from the certificate of Judge McLaughlin that he held all of the Circuit Court in Macon County after the death of Judge McDavid; that it was practically impossible to perform the work in that court unless the services of a competent and skillful reporter could be procured; that he requested claimant to continue as official court reporter of said court, and that claimant did so, and handled all matters that came before the court, so far as his duties required, in a competent and skillful manner, and that he also did a large amount of other work in and about the work of said court at the request of said Judge McLaughlin during all of the time which elapsed from the date of the death of Judge McDavid to the date on which Judge Miller took his oath of office, to-wit on February 6, 1934; that in his opinion the services rendered by claimant during all of such period were necessary for the orderly procedure of said court, and that such services were well performed.

The right of the claimant to an award depends upon the question as to whether his term of office expired at the time of the death of Judge McDavid, or whether he continued after the death of Judge McDavid until the time of the appointment of a new court reporter by the successor to Judge McDavid.

Claimant was appointed by Judge McDavid pursuant to the provisions of an Act of the General Assembly of the State of Illinois entitled “An Act to authorize the judges of Circuit, Superior and City Courts to appoint shorthand reporters for the taking and preservation of evidence, and to provide for their compensation,” in force July 1, 1929, as amended.

Sectionpne (1) of said Act provides in part as follows:

"That each of the several judges of the Circuit, Superior and City Courts in this State be, and they are hereby authorized to appoint one Official Shorthand Reporter * * * * * *. Such appointment shall he in writing and shall be filed in the office of the Auditor of Public Accounts and continue in force until revoked by the judge making said appointment. The Reporter so appointed shall hold his position during the pleasure of the judge so appointing him, not, however, to extend beyond the time the judge making such appointment shall be elected for.”

Said Act also provides that such reporter, before entering upon the duties of his office, shall take and subscribe the official oath of office. Consequently, under the provisions of that Act, as well as the provisions of Sections twenty-four (24) and twenty-five (25) of Article five (5) of the Constitution, the claimant was an officer and not an employee.

A similar question was presented in the case of The People ex rel Kelley, 134 Ill. App. 642. In that case leave was given to file an information in the nature of a quo warranto seeking to oust Mrs. Kelley from her position as official court reporter for the Circuit Court of Cook County, which she then held by virtue of her appointment made by Judge Murray F. Tuley, deceased. The appointment was made by an order of record July 8, 1903, “for a term ending the first day of June, 1909, to hold her office during the pleasure of the judge appointing her, as provided by said Statute.” The Statute involved in that case was not identical with the Statute in force at the time claimant in this case was appointed, but seems to be substantially the same so far as the questions involved in this ease are concerned. It was contended in that- case that the authority of Mrs. Kelley to hold the office ceased upon the death of Judge Tuley. In that case the court said:

“The only question is whether the appointment is still in force, Judge Tuley, by whom or at whose instance it was made, having since died. The obvious meaning of the statutory provision above quoted is that the term of the reporters so appointed while terminable at any time by the judges appointing them shall in no event extend beyond the term of office of such judges. It does not follow, however, that the reporter’s appointment terminates with the death before the expiration of his official term of the judge by whose order he was appointed, merely because the judge so appointing can no longer exercise at his pleasure the power of removal. The continued employment of the reporter by other judges of the same court after such death, may be considered in the nature of a recognition and affirmation of such appointment by such judges.” * * * * * * “Respondent has continued to perform services for the judges of the Circuit Court by whom her bills have been duly certified, and we are of the opinion her appointment is still in force.”

It would seem, therefore, as though the claimant’s term of office did not expire upon the death of Judge McDavid, but that he continued in his office until the time of the appointment of another court reporter by the successor to Judge McDavid.

However, even if his term had expired with the death of Judge McDavid, we feel that he would hold over until the time of the appointment and qualification of his successor under the law of this State.

In the case of The People vs. Schweitzer, 280 Ill. 437, the court, on page 451, said:

“In legal contemplation, an office that has once been created is necessary, and it is never vacant and is presumed to be continuously filled until it is abolished.”

In 46 Corpus Juris, page 971, Section 117, the law is laid down as follows:

“While the word ‘vacancy’ as applied to an office is one which has no technical meaning, an office is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event. On the other hand, an office is not vacant so long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which appertain to it. The law abhors vacancies in public offices, and courts generally indulge in a strong presumption against a legislative intent to create, by Statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant and unoccupied by one lawfully authorized to exercise its functions.”

The wording of the Act of the General Assembly authorizing the appointment of court reporters does not, in itself, indicate that the death of the judge making the appointment-should create a vacancy in the office of reporter. Had it been so intended, the Legislature would certainly have incorporated words to that effect therein, instead of providing that the reporter should hold his position “during the pleasure of the judge so appointing him, not, however, to extend beyond the time the judge making the appointment shall be elected for.” We cannot assume that the Legislature intended to have a vacancy in the office of the court reporter between the time of the death of the judge making the appointment and the time of the election of his.successor.

We conclude, therefore, that the claimant rightfully held the office of court reporter until the appointment of his successor by Judge Miller, and having performed all of the duties of such office in a competent and skillful manner, is entitled to the salary claimed by him.

Award is therefore entered in favor of the claimant for the amount claimed, to-wit, the sum of Eleven Hundred Twenty-eight Dollars and Twenty-three cents ($1,128.23).


author: Mb. Justice Tantis

text:
    (No. 2195
    Bruce C. Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Royal W. Irwin and Ewart Harris, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Bruce C. Smith was a private in the 108th Observation Squadron of the 33rd Division, Aviation, I. N. G., and in his complaint asks compensation for personal injury alleged to have been incurred on August 14, 1931, while in Summer camp at Camp Grant, Rockford, Illinois. In his declaration, he makes claim under Sections 10, 11, 13 and 14, Article XYI, Chapter 129, Smith-Hurd Illinois Revised Statutes, 1931:

One-half active service pay under Section 4 of said Article, to-wit: $7.00 per week from August 15, 1931 to June
23, 1933 ...............................................$ 644.00
Necessary hospital charges................................ 646.45
Medical and Surgical care................................. 1,372.00
Medicines and appliances................................. 82.10
Impairment and disablement of left arm and shoulder.... 5,000.00
Total Claim .....................................$7,744.55

The record discloses that during the second week claimant was in camp in August, 1931, a boil appeared on his right arm, for which he received some attention by the Medical Department. Later another appeared on the same arm. On the day his squadron broke camp, claimant was assigned to pull up tent stakes. He was unable to use his right arm at the time because of pain, and was pulling with his left arm. In doing so, he felt a sprain or strain in his left shoulder. He left camp the next morning and thereafter saw Captain Fenwick of the Medical Corps on August 24th. He testified that the left shoulder had been paining him during the week after leaving camp, and the boils on his right arm were continuing to require medical attention. At that time there was no outside infection apparent on the left shoulder, but he could not lift the left arm. Claimant was sent to St. Luke’s hospital August 29,1931, and was operated on by Dr. Pontius for pus in the left shoulder joint, same coming from an opening in the bond at the deltoid tuberosity. Later this pus formation increased in the right chest cavity and the blood stream was found to be infected. On the 28th of September abscesses in the middle of the right leg were discovered from the blood stream, and on October 6th an abscess on the left leg was opened. The shoulder continued to drain and the doctor’s testimony is that the patient had osteomyelitis or infection of the bone; that he was returned to the hospital on November 15th and the bone was drilled, x-rays taken and he was discharged again November 30, 1931. On February 6, 1932, another operation was performed and he was treated for the infected area around the bone until discharged March 4, 1932. The joint was again put in a cast in April and he was discharged permanently from the hospital May 14, 1932. The doctor’s testimony was further that the infection healed in August, 1932, resulting in a stiff shoulder joint. The doctor testified further that the condition he found in the left shoulder might, with reasonable medical certainty, have been caused by the sprain; that there was an infection existing in the body at the time and that the effect of the sprain was to localize the infection at the point where the sprain occurred, and that the sprain having occurred, the later symptoms would follow. He further testified, “I would say the infected blood was the result of the boil, and the trauma (injury) was the cause of the localization. He would not have had osteomyelitis if the blood stream was not infected. There was a previous condition, and a sprain, ‘It has to have the two,’ one must precede the other. The blood condition must be present when the sprain is received.”

Dr. Samuel Plummer, another witness called by claimant, when asked to what he ascribed the inflammation of the bone in the upper part of the left arm, stated, “Taking into consideration the history of the case as here given, the presence of boils at the time, a comparatively slight injury which was felt in the region of the upper part of the arm bone near the shoulder; that injury had been the cause of localizing the infection which was in the blood from the boils. ’ ’ And in answer to the further question, “The injury you refer to occurred through spraining the shoulder pulling stakes?”, “Yes.”

The contention is made that under the provisions of Section 10 of Article 16 of the Military Code there must first be a hearing by Medical Board upon a claim by an injured member of the National Guard before the Court of Claims can properly consider such claim. That section provides as follows:

“Any officer or enlisted man of the National Guard or Naval Reserve who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in Sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.”

Sec. 10, Article XVI, Military Code.

There has been no consideration of the matter by Medical Board and the Attorney General’s report, found in the record, shows a report by Captain Fenwick of the Medical Corps that the treatment given at the camp during the service of the soldier was for boils not incurred “in line of duty.” No further treatment was rendered by anyone in the Medical Corps to Private Smith after leaving Camp Grant, and apparently no claim based upon the sprain to the left shoulder was ever put in line for consideration by any Medical Board. There is nothing’ in the record to indicate that any application for pay or medical treatment based upon the sprain or injury to claimant’s left shoulder has ever been made by claimant through the Military Department. The court is of the opinion that it was the intention of the Legislature that Section 10 should apply to all claims except those resulting from injury or death in active duty under direct commands pursuant to orders from the Cominander-in-Chief, but there is some doubt as to the intent of Section 11, and in justice to claimant, we resolve the doubt in his favor. Section 11 provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the Medical department.”

Sec. 11, Art. XVI, Military Code.

Under Section 10, a board of three medical officers should consider and pass upon claims of this character, and if their findings indicate that compensation in excess of six months should be paid, the State Court of Claims should then review the matter for approval or disapproval of such additional time over the said six months period.

Under the provisions of Section 11, Article XVI of the Military Code, the Court of Claims is given authority to adjust claims arising thereunder as the merits of each case may demand.

The real underlying cause of claimant’s condition was not any injury incurred in line of duty. Claimant had an infected condition of blood from which boils resulted before and after the sprain. Much of the hospital and medical care he received was for these boils in the arms and legs and would have been required regardless of the sprain. According to the doctor’s testimony, the sprain localized the infection in the bone of the left shoulder, resulting in osteomyelitis. In compensation cases, when a workman has a pre-existing disease which is aggravated by an accident sustained in the course of his employment, he is entitled to compensation to the extent, and in the proportion in which the pre-existing disease is increased or aggravated.

It is difficult to ascertain here to what extent the preexisting disease of the blood was increased or aggravated by the sprain, and as to how much of the expense incurred by claimant for hospitalization and medical and surgical care can be attributed to the injury to the shoulder and how much of it was necessarily obtained for the patient’s care in obtaining relief from the boils and general infection under which he continued to suffer for many months. Dr. Pontius’ bill shows that there were four chest operations; also that there were four operations for abscesses of the legs. These two items totalled $80.00, and formed a part of his general bill of $1,372.00. There was also a charge of $250.00 for emergency service on August 29th, at which time the claimant states his legs were also operated upon or treated (Record page 10). How many of the 147 hospital visits at $3.00 each were necessarily made because of the shoulder condition and what part of same should be chargeable to his general physical disability does not appear. The same is true in regard to 23 home visits made by Dr. Pontius at $4.00 per call. Likewise, the 82 office calls at $2.00 each. The testimony of the plaintiff is also disputed by Dr. Pontius as to the last hospitalization date; claimant alleging that it was- in May, 1933, while Dr. Pontius testified, “The plaintiff is wrong, the last hospitalization was in August, 1932.”

As above stated, the court is in grave doubt as to claimant being entitled to consideration of his claim by the Court of Claims at this time, but giving consideration to his rights under Sections 10 and 11 of Article XVI of the Military Code, and, in an endeavor to grant to him such award as the merits of his case seem to demand, an award is recommended upon the following basis:

Yz active service pay under Sec. 10 of Article XVI Military
Code, to-wit: $7.00 per week from August 15, 1931 to
August 15, 1932........................................$ 364.00
Yz Hospital charges incurred during said period, being pro-
portionate part allowed in treatment of shoulder........ 323.25
Yz medical and surgical care during said period, being pro-
portionate part allowed in treatment of shoulder........ 686.00
Yz Medicines and appliances.............................. 41.00
30% loss of use of arm................................... 675.00
$2,089.25

An award is therefore made in the sum of Twenty Hundred Eighty-nine and 25/100 Dollars ($2,089.25).


author: Mr. Justice Yantis

text:
    (No. 1745
    Town of Sterling, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Sheldon & Brown, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The Town of Sterling, situated in Whiteside County, Illinois, has filed its claim as a quasi public corporation, a political subdivision of the State of Illinois, and bases its claim of $16,715.43 against the State on the fact that the State, through its Department of Public Works and Buildings, accepted and took over, on or about the 12th day of November, 1927, and is now using a strip of brick and cement pavement that was constructed by claimant and paid for by it, and that the State in accepting said section of highway incorporated same in and made it a part of Route No. 40 between the City of Sterling and the Village of Milledgeville, Illinois. The complaint does not allege whether Route No. 40 was constructed under the terms and appropriations of the Sixty Million Dollar Bond Issue Act or under the One Hundred Million Dollar Bond Issue Act, but a stipulation was entered into between the parties hereto that the strip of pavement for which reimbursement is asked was laid over a township highway, which was later included as a part of the County State-Aid-System of highways; that the County of Whiteside later abandoned said route as a State-Aid Route on March 12, 1927, at which time it was incorporated in and became a part of the State Bond Issue Route No. 40 and was then and there taken over for maintenance by the State Division of Highways; further that payments on the contract for the construction of that portion of State Bond Issue No. 40 that lies between Sterling and Mt. Carroll were made as follows: $2,375.36 from the General Road Fund appropriation of the Division of Highways, and $6,675.00 from the One Hundred Million Dollar Bond Issue Fund.

The question of whether an award in reimbursement of the Town of Sterling can be made is largely based upon whether the section in question comes- within the Sixty Million Dollar Bond Issue Act or of the One Hundred Million Dollar Bond Issue Act. No provision is made under the former for reimbursement to townships for existing roads utilized by the hard road system. Section 10 (Cahill, Chapter 121, Section 192), applies to construction work previously made by a county and the State jointly, or by a county alone. Under the One Hundred Million Dollar Bond Act, (Cahill, Chapter 121, Section 198), provision is made that,

“If the Department of Public Works and Buildings utilizes and makes such paved road (constructed by the county and State jointly or by such county alone or into a township, under township organization or a road district in a county not under township organization over a paved road constructed by the county with township or road district funds) shall be determined in the manner hereinafter provided for and an amount of money equivalent to the cost or share of cost paid by said county, township or road district shall be set apart and allotted by said department to such county, township or road district.”

As to whether this section of road can be construed to be one of the roads provided for under the One Hundred Million Dollar Bond Act depends upon the construction of Section 198 (9), Chapter 121, which reads:

“The general location of the routes upon and along which said proposed roads are to be constructed shall be substantially as described in this section * * *.
“Routes 1 to 46 Inclusive
“Said road to be constructed along and upon those routes or those-parts of routes described in Section 9 of an Act * * * approved June 22, 1917 upon which no durable hard-surfaced road shall have been constructed.”

From the foregoing, it appears that only those routes or those parts of routes of 1 to 46i inclusive, upon which no hard-surfaced road had been constructed at the time of the passage of the One Hundred Million Dollar Bond Act on June 29, 1923, were to be included under the terms of the latter Act. Unless that portion of State Bond Route No. 40' between Sterling and Mt. Carroll was constructed as a part of and under the One Hundred Million Dollar Bond Issue, there is no legal provision for a refund for the section of township road here involved. From the stipulation it appears that the balance of this strip or portion of Route No. 40 between -Sterling and Mt. Carroll was paid for as follows: $2,375.36 from General Road Fund of Division of Highways and $6,675.00 from the One Hundred Million Dollar Bond Issue. The cost of the brick pavement constructed by the Town by Sterling and taken over by the Department as a part of Route No. 40 was $16,715.43. The proof indicates and claimant in its reply argument concedes, that one-half of this-amount is all that claimant would equitably be entitled to because of the age and life of such road although claimant further contends that interest to the amount of $2,611.88 ought also in equity be allowed to claimant. It appears that some-construction work was done on this portion of Route No. 40' during 1917, before the passage of the One Hundred Million Dollar Act; that the section designated as Section 4, from. Mt. Carroll to Chadwick was placed under contract May 23, 1924. There is grave doubt in the minds of the court whether this section of road can be considered under the reimbursement section above quoted, due to the apparent intent of the Legislature to include only such routes or portions of routes between 1 and 46 upon which no durable hard-surfaced road shall have been constructed, but resolving the doubts in favor of claimant, and under the evidence appearing in the record, the court deems it proper to recommend an award. There is no provision under which interest can be properly allowed, and an award will therefore be made in the sum of $8,357.71.


text:
    (No. 2369
    United States of America, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Paul F. Jones, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some time prior to June 3, 1929, William Crowley, a Civil War veteran, was a member of the National Home for Disabled Volunteer Soldiers at Danville, Illinois. He died intestate at such institution on said date, leaving no known heirs. Crowley in his lifetime entered into an agreement with said National Soldiers’ Home whereby his entire estate, at his death, would vest in the Post Fund of said National Home, provided he died leaving no heirs at law or next of kin.

On June 6, 1929 letters of administration on the estate of said William Crowley were issued by the Probate Court of Vermilion County to S. E. Brittingham, Public Administrator of said County, and upon demand therefor, the estate of the pensioner was turned over to said Public Administrator by said National Home.

Said Administrator thereafter made an inheritance tax return and subsequently paid the sum of Five Hundred Thirteen Dollars and Thirty-eight Cents ($513.38) to the County Treasurer of Vermillion County as inheritance tax, which said sum was thereafter paid by said County Treasurer to the State Treasurer of this State.

Claimant contends that under the provisions of the Act pf Congress of June 25, 1910, the estate of said William Crowley, under the facts hereinabove set forth, vested in the Board of Managers of said National Home; that said estate was not subject to an inheritance tax and that therefore the amount so paid for inheritance tax as aforesaid should be refunded to the claimant.

The Attorney General admits that said National Home is a charitable institution under Section 28 of the Inheritance Tax Act, and that property passing to such Home is exempt from inheritance tax, and makes no objection to the allowance of the claim.

Award is therefore entered in favor of the claimant for the sum of Five Hundred Thirteen Dollars and Thirty-eight Cents ($513.38).


author: Mb. Chief Justice Hollebich

text:
    (No. 2324
    Jeanette Vanderlaan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Ligtbnbebg & Cubby, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed her complaint herein, on February 7, 1934, in which she avers that on the 14th day of December, 1931, she was a patient at the Dental Clinic then being held by the respondent at the University of Illinois College of Dentistry in the City of Chicago; that in connection therewith it became necessary for her to descend a certain stairway in one of the buildings of said college; that it was the duty of the defendant to keep and maintain such stairway in a good and safe condition for the use of the claimant and others lawfully on said premises; that respondent disregarded its duty in that behalf, allowed said stairway to become uneven, failed to provide proper railings, and failed to light said stairway properly, and so maintained the same as to render it unsafe for persons using the same; that by reason thereof she tripped and fell part way down the stairs and thereby sustained serious and permanent injuries for which she claims damages.

The Attorney General has entered a motion to dismiss the case for the following reasons:

1. There is no liability on the part of the respondent under the facts set up in the complaint.

2. Claimant’s right of action is barred because the claim was not filed within two years from the date the injuries were received.

Inasmuch as the motion must be sustained on account of the reason first urged by the Attorney General, it is unnecessary to consider the second reason urged by him.

In the maintenance of its educational and charitable institutions the State exercises a governmental function. It is the well established law of this State and other states, that in the exercise of its governmental functions, the State is not liable for the negligence of its servants or agents. Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; 25 R. C. L. p. 407, Section 43; 8 R. C. L. Supp. p. 5580, Section 43.

This court has no authority to allow an award in any case unless there would be legal liability on the part of the State if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

The complaint fails to set forth facts showing any liability on the part of the State and we therefore have no authority to enter an award.

The motion of the Attorney General must therefore be sustained and the case dismissed. Case dismissed.


text:
    (No. 2434
    William A. Worthington, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    William A. Worthington, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 2d day of March, A. D. 1934, claimant was working as an electrician in the employ of the Secretary of State, and on the last mentioned date was assigned to install an electrical service connection in the vault of the Corporation Department in the Capitol Building. In the course of this work it became necessary to cut a channel in the east wall of the vault at a height that required the use of an elevated support on which the claimant could stand. In 'the course of the work this support gave way and claimant fell to the floor of the vault in such a manner as to break his right ankle.

He was off duty on account of the injury from March 2nd to May 28, 1934, and expended the sum of Two Hundred Ten Dollars and Forty Cents ($210.40) for doctor and hospital bills in being cured of his injuries. Claimant was paid his salary during the time he was off duty and makes no claim for permanent disability, but makes claim only for the sum of Two Hundred Ten Dollars and Forty Cents ($210.40) for the money expended by him for medical and hospital treatment as aforesaid.

It appears that at the time of the accident in question the claimant and respondent were both operating under the terms and provisions of the Workmen’s Compensation Act, and that the accident arose out of and in the course of the claimant’s employment.

Under the provisions of the Workmen’s Compensation Act, respondent was required to furnish “the necessary first aid, medical and surgical services and all necessary medical, surgical and hospital services thereafter,” etc.

Respondent having failed to furnish such medical and hospital services, and the claimant having been required to obtain the same at his own expense, is entitled to be recompensed for the amount so paid or incurred by him therefor.

Award is therefore entered in favor of the claimant for the sum of Two Hundred Ten Dollars and Forty Cents ($210.40).


author: Per Curiam:

text:
    (Nos. 2373, 2374, 2375, 2377, 2378, 2379, Consolidated
    Samuel Stein and Sadie Stein, Nos. 2373, 2374, Niles Burke et al., No. 2375, Frederick A. Rub, No. 2377, Albert St. Julien et al., No. 2378, Helen St. Julien, No. 2379, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 30, 1934.

    Barr & Barr, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Per Curiam:

All of the above claims arise by reason of the construction of the Illinois Waterway through the City of Joliet. The several claimants own property which they claim has been damaged either by the construction of the Cass Street Bridge or the Jefferson Street Bridge over the Illinois Waterway in said City of Joliet, and seek to be recompensed for the damages which they claim to have sustained by reason of the construction of such bridges.

Inasmuch as the same questions are involved in each of the several cases, and inasmuch as the same counsel represent all of the claimants, the several claims have been consolidated for the purpose of this hearing.

The several claimants filed their respective claims with the Department of Public Works and Buildings, in accordance with the provisions of the Statute of this State commonly known as the Illinois Waterway Act. The claimants and the said Department were not able to reach an agreement as to the amount of damages sustained, if any, nor were they able to agree on arbitration in accordance with the provisions of the Waterway Act. In consequence thereof, and by stipulation between the several claimants and the Department of Public Works and Buildings, the several claims were submitted to this court for determination.

It is stipulated and agreed that the several awards made by this court, if any, shall be paid by the Department of Public Works and Buildings, and not by way of appropriation made by the Legislature, as in cases where awards are made by this court under the Court of Claims Act.

The facts, so far as they apply to each of the several cases, are substantially as follows:

Sometime prior to the year 1932, the respondent commenced the construction of the Illinois Waterway through the City of Joliet, and was engaged in such construction work during all of the year 1932, and for sometime thereafter. Said Waterway, in passing through the City of Joliet, runs in a northerly and southerly direction, and in general follows the bed of the DesPlaines River and the Illinois and Michigan Canal, and occupies the space theretofore occupied by said river and said canal. Both Jefferson Street and Cass Street (which is known as Western Avenue west of the river) in said City of Joliet extend in an easterly and westerly direction and intersect the Illinois Waterway at right angles. Prior to the time of the construction of the Illinois Waterway, said Des-Plaines River and said Illinois and Michigan Canal were crossed by public bridges approximately level, and at grade on both Jefferson and Cass Streets.

Respondent commenced the work of demolishing the then existing bridge across said river and canal on Jefferson Street about the 25th day of April, A. D. 1932, and commenced the work of demolishing the then existing bridge on Cass Street about May 1, 1932; and commenced the construction of a new bridge on each of said streets, to take the place of the old bridges as soon after said dates as the nature of the work permitted.

The construction of the Jefferson Street Bridge, together with the approaches thereto, was completed on or about the 25th day of November, A. D. 1932, and the Cass Street Bridge and approaches, on or about the 1st day of January, 1933. Both new bridges were so constructed as to provide a clearance thereunder of 16% feet, thereby making the floors of both bridges approximately 18 feet higher at the crown than the floors of the old bridg'es. As a result thereof it was necessary to construct approaches to said bridges from both the east and the west, the east approach on Jefferson Street commencing at a point 197 feet east of said bridge, and the west approach on Western Avenue commencing at a point 96% feet west of said bridg'e. Such approaches, both east and west, were constructed on a grade of approximately 7%.

The claimant, Frederick A. Bub, owns property adjoining the west approach to the Cass Street (Western Avenue) bridge; the claimants, Niles Burke, et al., then owned a sign located on the south side of Western Avenue, near the bridge; the claimant, Helen St. Julien, owns property adjoining the east approach on Jefferson Street; and the claimant, Samuel Stein and Sadie Stein, own property about 30 feet east of the east end of such approach.

So far as the question of damages is concerned, certain facts in each case are different, and each case will therefore be considered separately on the question of damages.

No. 2373.

Samuel Stein.

Damage to Beal Estate.

No. 2374.

Samuel Stein and Sadie Stein.

Damage account of Loss of Business.

Claimants, Samuel Stein and Sadie Stein, filed' their original claim with the Department of Public Works and Buildings on December 31, 1931. They are, and were at that time and prior thereto, the owners of a lot located on the south side of Jefferson Street known as 110 East Jefferson Street, having a frontage on that street of twenty-five and one-half (25%) feet and a depth of One Hundred Thirty-two (132) feet. Such lot is improved by a two-story brick building twenty-five and one-half by ninety feet, which is occupied as a wholesale and retail fish market on the first floor, and as a flat on the second floor. Claimant contend that during the time the Jefferson Street Bridge and the approaches thereto were in the course of construction, to-wit, from April 25th to November 26,1932, the street in front of their property was constantly barricaded, and that as the result thereof they suffered a loss of business, and also contend that the real estate, owned by them as aforesaid has depreciated in value as the result of the construction of the Jefferson Street Bridge and the approaches thereto, and therefore claim damages for both of said items.

As to the item of damages for loss of business on account of the blockade of the street, this court held in the recent case of Grassle vs. State, No. 2339, that this item does not constitute a proper element of damage within the meaning of the Waterway Act, and in that case we denied an award therefor.

The decision in the Grassle case finds support in the following decisions of our Supreme Court, to-wit:

Osgood vs. City of Chicago, 154 Ill. 194.

Lefkovits vs. City of Chicago, 238 Ill. 223.

Chicago Flour Co. vs. City of Chicago, 243 Ill. 218.

Peck vs. Chicago Railways Co., 270 Ill. 34.

City of Winchester vs. Ring, 312 Ill. 552.

Claimants insist, however, that this item is a proper element of damage under the wording of Section twenty-three (23) of the Waterway Act which reads as follows:

“The State shall be liable for all damages to real estate or personal property within or without the radius or zone of the ‘Illinois Waterway’ which shall be overflowed or otherwise damaged by reason of the construction, maintenance or operation of the “Illinois Waterway” and its appurtenances. It shall also be liable for all damages to persons caused by the construction, maintenance or operation of the ‘Illinois Waterway’ and its appurtenances, such damages to persons who are employees to be ascertained, determined and fixed as provided in this Act.”

Cahill’s Revised Statutes, 1933, Chap. 19, P. 113.

Claimants in their brief say:

"The provision providing for payment of all damages, means just what it says. It includes all damages whether within the constitutional provision as to liability or not, and includes also damages to business.”

The question of the liability of the respondent for this item of damages therefore depends upon the proper construction of the words “all damages” as used in the Act. In determining the meaning of such words, we must ascertain the intention of the Legislature, and in ascertaining such intention we must consider all of the terms and provisions of the Act, as well as the purpose thereof. The words “all damages” cannot be considered alone but must be considered in connection with all of the other words of the section and the Act. People vs. Goldberg, 332 Ill. 346; City of Geneseo vs. Shearer, 326 Ill. 82.

Section seven (7) of the Act enumerates the powers of the Department of Public Works and Buildings, and Paragraph eight (8) of said section authorizes the Department “to acquire by condemnation under the eminent domain laws of this State, all property necessary to be taken or damaged for the construction, maintenance, operation or repair of such Waterway and its appurtenances.”

Section eight (8) of the Act provides that before the Department shall enter upon, take or damage private or public property for the construction, maintenance, enlargement or extension of the Waterway or its appurtenances, it shall make just compensation therefor, and if such just compensation cannot be agreed upon, it shall be ascertained, determined and found in the manner provided by the eminent domain laws of this State.

Section sixteen (16) provides for the rebuilding or reconstruction of any existing drainage or sewer systems constructed by any city or village which are destroyed or materially interfered with in the construction, maintenance, use and operation of the Waterway.

Section twenty (20) provides for the repair or reconstruction of present bridges and approaches thereto, which are or may be damaged or materially impaired in the construction of the Waterway.

Section twenty-three (23) provides that the State shall be liable for all damages to real or personal property which shall be overflowed or otherwise damaged by reason of the construction, maintenance, or operation of the Waterway and its appurtenances, and that the State shall also be liable for all damages to persons caused by the construction, maintenance or operation of the Waterway and its appurtenances.

There is nothing in any of the provisions of the Act which we have been able to discover, which indicates an intention on the part of the Legislature to establish any other or greater liability on the part of the State than now exists in eminent domain cases. The Department is specifically given the right to acquire all property necessary to be taken or damaged for the construction, maintenance or operation of the Waterway “by condemnation under the eminent domain laws of this State, ’ ’ and it is nowhere specifically provided that the measure of damages shall be different from that in condemnation cases under the eminent domain laws, or that any items or elements of .damage shall be considered, other than those items or elements which have been recognized by our courts in eminent domain cases, since the adoption of the Constitution of 1870.

The only authorities cited by the claimants in their brief are the following, to-wit:

Opinions of Attorney General, 1931, p. 443-461;

St. L. V. & T. H. R. R. Co. vs. Capps, 67 Ill. 607.

So far as the opinion of the Attorney General is concerned, it is sufficient to say that the present Attorney General is not in accord with such opinion, but on the other hand, contends that the claimants are not entitled to any damages whatsoever on account of loss of business, and has filed his brief and argument herein, in support of such proposition.

The case of St. L. V. & T. H. R. R. Co. vs. Capps, 67 Ill. 607, cited by counsel for the claimants, arose out of an ordinance adopted by the Board of Trustees of the Town of Vandalia in 1868. Such ordinance granted the railroad company a right-of-way over, across and along the streets and alleys of said town, upon the agreement, among other things, that the railroad company would pay “all damages that may accrue to the property owners on said Main Street, by reason of the construction of said railroad. ’ ’

Capps was the owner of several lots fronting on Main Street on which he had erected buildings, and among them a store in which he had prosecuted his business as a merchant for more than twenty years, doing a large business. The railroad company excavated said Main Street fifteen (15) or more feet deep and forty (40) or more feet wide, and constructed its railroad thereon, and Capps contended that he was entitled to be compensated for the damage done to his business by reason thereof. In that case the court held that under the ordinance in question, he was entitled not only to damages for the depreciation in value of his real estate, but was also entitled to damages for interruption to his business during such time as would have been necessarily employed in accommodating himself to another place of business equally eligible, and his removal thereto.

That case, however, is clearly distinguishable from the case at bar. The Capps case arose in 1868, and the law in force at that time (prior to the adoption of the Constitution of 1870) did not authorize the payment of damages to owners of property damaged but not taken, and the decision must therefore be read in the light of the law as it existed at that time.

In the case of Chicago Flour Co. vs. City of Chicago, 243 Il. 268, the plaintiff sued the City of Chicago to recover damages which it sustained as the result of being deprived of the use of a certain switch track, during the time the same was being elevated pursuant to the requirements of a track elevation ordinance of said City of Chicago.

The track elevation ordinance contained a provision to the effect that nothing therein contained should be so construed as to require the railway company to pay any direct, incidental or consequential, damages to adjacent property or business caused by the .elevation of the tracks, and the City of Chicago therein agreed “that all such damages, if any there be, shall be adjusted and paid by the City of Chicago.”

The plaintiff in that case contended, as the claimants here-contend, that under the wording of the ordinance, the City of Chicago was required to pay “all damages,” and that such words included damages resulting from its being deprived of the use of the switch track, and relied upon the Capps case to sustain its contention. In disposing of such contention and in considering the decision in the Capps case, the Supreme Court there said:

"The only invasion of their rights complained of, is the temporary interference with the ordinary means of access to and egress from their property during the progress of the work. It is well settled that inconvenience, expense or loss of business occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the construction of a public improvement, gives no cause of action against the municipality. The constitution provides no remedy for the property owner under such circumstances. Such claim is not damage to property not taken, within the meaning of the constitution. Leftcovitz vs. City of Chicago, 238 Ill. 23; Osgood vs. City of Chicago, 154 id. 194; Northern Transportation Co. vs. City of Chicago, 99 U. S. 635.
“It is insisted, however, in behalf of the appellants, that the paragraph of the ordinance quoted above constituted a contract on the part of the city to pay all damages of the character here involved and that a recovery may be had therefor under the ordinance. That provision of the ordinance was not intended to impose upon either party a liability which did not before exist, but was intended to determine, as between the parties to the agreement, which should pay the damages for which it might be reasonably anticipated one or both would become liable in the prosecution of the work. It is true that the word “damages”, as used in the ordinance, is capable of the meaning insisted upon by the appellants, and we are referred to the case of St. Louis, Vandalia and Terre Haute Railroad Co. vs. Capps, 67 Ill. 607, and Same vs. Same, 72 id. 188, where an ordinance granted to a railroad company the right-of-way over, across and along the streets and alleys of a town upon condition that the railroad company should be held bound to pay all damages that might accrue to the property owners on Main Street by reason of the construction of said railroad, and it was held that the damages there included damages for the interruption of a property owner’s business during such time as would be necessarily employed in securing another place of business equally eligible and in removing thereto. This case arose prior to the adoption of the constitution of 1870, and at a time when, in the absence of the ordinance, neither the town nor the railroad company would have been liable for damages by reason of the construction of the railroad in the street. Moses vs. Pittsburg, Ft. Wayne and Chicago Railroad Co., 21 Ill. 515; Murphy vs. City of Chicago, 29 id. 279.
“The object of the construction of contracts is to arrive at the intention of the parties. The subject matter of the contract, the nature of the instrument, the intention and purpose of the parties and the object they had in view will be taken into consideration and the intention carried into effect, so far as the rules of language and the rules of law will permit. (2 Parsons on Contracts, *499). In the Capps case there was no liability on the part of either the town or the railroad company for any damages whatever. The object of the town in inserting the provisions concerning damages was manifestly to secure the property owners on Main Street against damages of every character, the meaning of the word never having been adjudicated in a similar case. In the present case, the city, and perhaps the railroad company, would be liable for certain damages, the meaning of the word having been defined by many adjudications, and the manifest object of the parties was, not to protect property owners and to secure them their damages, but to determine, as between the city and the railroad company, who should pay them if any were to be paid and to relieve the railroad company from their payment. The property owners were protected by the law which gave them a right to recover damages, which did not exist in the Capps case. The damages which could be recovered were defined by law. We think it apparent that only such damages were contemplated in the ordinance and that the object of the provision was to afford indemnity to the railroad companies, and, as between them and the city, to impose upon the latter the liability for all damages legally recoverable against either or both on account of the work mentioned in the ordinance.”

The rule laid down in the case of Chicago Flour Co. vs. City of Chicago has been approved in numerous cases since that time. Catholic Bishop of Chicago vs. City of Chicago, 177 Ill. App. 187; Foley Mfg. Co. vs. City of Chicago, 194 Ill. App. 532; Otis Elevator Co. vs. City of Chicago, 263 Ill. 419; Peck vs. Chicago Railways Co., 270 Ill. 34; Lord vs. City of Chicago, 274 Ill. 313.

In the various provisions of the Waterway Act herein-before referred to, the legislature apparently sought to provide compensation to all of the different persons, and for all the different properties, public and private, which might be damaged by reason of the construction, maintenance or operation of the waterway, but in none of such provisions is there any evidence of an intention on the part of the legislature to enlarge the liability of the State, or provide for any other or different compensation from that provided by the Eminent Domain Law.

As we view it, the words “all damages” as used in Section 23 of the Waterway Act mean “all damages legally recoverable”.

We are of the opinion that the rule laid down in the G-rassle case is the correct rule of law, and are not disposed to depart from the same, and consequently cannot allow an award as to the item of damages for loss of business.

As to the item of damage to real estate, it is admitted that there was no change in the grade of the street in front of claimants’ property; that the grade commenced about thirty (30) feet west of claimants’ property and extended westward, and that claimants remodeled their building after the construction of the Jefferson Street Bridge and the approaches thereto.

Two real estate experts testified on behalf of the claimants and two on behalf of the respondents. The experts for claimants estimated the damage as of the date of the closing of the Jefferson Street Bridge, at Sixteen Hundred Dollars ($1,600.00), but admitted that such depreciation was more or less an arbitrary figure.

Two experts for the respondent testified that in their opinion the property of the claimants had sustained no damage by reason of the construction of the Bridge. The court viewed the property (pursuant to authority given in the stipulation on file), and after a careful consideration of the evidence, is forced to the conclusion that claimants have failed to show any damage to their real property by reason of the construction of the Jefferson Street Bridge or the approaches thereto.

Award is therefore' denied in cases No. 2373 and 2374 and the cases dismissed.

No. 2375.

Niles Burke and John Marso.

Prior to and at the time of the construction of the Cass Street Bridge and the approaches thereto, claimants were engaged in the outdoor advertising business under the name of B. & M. Advertising Service. They had located an electric display sign twenty-five (25) feet long and fourteen (14) feet high on the south side of Cass Street, near the west end of the Canal Bridge, under a lease from year to year with Frederick A. Bub, by the terms of which lease they paid him twenty-five Dollars ($25.00) per year, and which said lease expired in November, 1932.

Lessees leased the space on this sign to Joliet Warehouse and Transfer Co. at a rental of Twenty-five Dollars ($25.00) per month.

In the Spring of 1932, Cass Street was closed to traffic on account of the work being done thereon, and the value of the sign for advertising purposes was thereby destroyed, and the lessees thereof refused to pay any rent therefor after May 1, 1932.

Thereafter and in the course of the work of tearing out the old Cass Street Bridge and constructing the new bridge and the approaches thereto, the sign was torn down without notice to claimants. The value of the sign at the time of the destruction thereof was Three Hundred Dollars ($300.00), and claimants have filed their claim to recover that amount, and in addition thereto the sum of One Hundred Fifty Dollars ($150.00) for loss of rent from May, 1932 to November, 1932, at Twenty-five Dollars ($25.00) per month.

Claimants introduced some evidence to show that part of the sign was used in barricading the street, and conclude therefrom that such sign was torn down by the respondent.

Mr. M. V. Ahlvin, Assistant Chief Engineer, Division of Waterways, testified (A. 130) that he knew from the surveys that the sign was within the street lines; that the sign was situated wholly on the street (A. 127) and that it was impossible that part of it should have been used in the construction of the barricade, as the sign was still standing after the barricade was built and wasi not removed until about three months after the construction of such barricade (A. 127).

Mr. Burke testified that the sign was rebuilt just previous to the time the bridge was put in^ about four or five months before it was destroyed (A. 78); — notwithstanding the fact that it had been known for many months prior to that time, that the new bridge would be put in at an elevation of sixteen and one-half (16%) feet above the water level.

There is no question but what the sign was destroyed, but there is nothing in the record to show by whom it was destroyed. There is no evidence connecting the State or any officer or agent thereof with the destruction of such sign.

. Taking into consideration the fact that the sign was constructed in the street, and that there is nothing in the record to show that it was destroyed by the State or any representative of the State, we cannot allow an award against the State for the destruction thereof.

Under the rule laid down in the Stein cases, Nos. 2373 and 2374, claimants are not entitled to an award for the loss of rentals resulting from the temporary closing of the street.

Award is therefore denied and the case dismissed.

No. 2377.

Frederick A. Bub.

. Claimant seeks to recover damages to two (2) lots, one being at the Southeast corner of Western Avenue and Bluff Street, and the other immediately adjoining on the south. The corner lot has a frontage of twenty-five (25) feet on Bluff Street and eighty-five (85) feet on Western Avenue, and is improved with a two-story frame building, 25 x 60 feet, and a small addition in the rear, 15 x 18 feet, which said building fronts on Western Avenue and has a corner entrance at the northwest corner of the building. Claimant bought this property twenty-seven (27) years ago for Twelve Thousand Dollars ($12,000.00), the present building being then upon the'property.

The other lot, which fronts on Bluff Street, is 50x85 feet, and was purchased by claimant fourteen (14) or fifteen (15) years ago for Seventeen Hundred ($1,700.00) or Eighteen Hundred Dollars ($1,800.00). There was then a dilapidated old one-story frame building thereon. The south half of such building was torn down some years ago, so that for the past five (5) or ten (10) years the North twenty-five (25) feet of this second lot has been improved by a one-story frame building 25 x 90 feet, and the south half of such lot has been vacant.

The new bridge is eighteen (18) feet two (2) inches higher at the crown and 6.29 feet higher at the west wall of the Illinois Waterway than the old bridge. The west approach commences ninety-six (96) feet three (3) inches west of the bridge, and thereby the grade on the Western Avenue approach was raised 3.23 feet, resulting in a seven per cent (7%) grade commencing at a point thirteen (13) feet east of claimant’s west property line. There has been no change in grade at the front entrance to the building, the new grade commencing at a point thirteen (13) feet east of such entrance.

George M. Munroe and Thomas P. Lennon, real estate experts for the claimant, estimated the damage of claimant to be Sixty-five Hundred Ninety-six Dollars ($6,596.00), based upon the fair cash value of the property prior to the improvement, and the fair cash value of such property subsequent to the improvement. In explaining how they arrived at that valuation, Mr. Munroe testified as follows:

“Inasmuch as this property was not improved to its highest and best use at that time there was only what you might call a shack located on the property, at least it was a building in very poor condition. Any capitalization of income for that building would not show anything of the true value of the land. The property was unique in that there is very little property like it between the river and the hill, so there were no sales that we could use for comparison, consequently we made a calculation of the net income applicable to the land if the building were improved to the highest and best use. In our judgment the highest and best use of the property would be in a one-story and basement building divided into shops, each with a separate heating plant and with a dividing wall between. I got an estimate on the cost of such a building from Hanson-Peterson Company who are one of the largest and most reliable building contractors in Joliet. I also got an estimate of the cost of construction of such a building from them on the slope as proposed by the State. We then calculated the rental obtainable for these stores, both before and after the change in grade, and from these calculations capitalized the net income, after deducting expenses and depreciation to arrive at the total of the property. Deducting the cost of the building would leave a residual value for the land. Our appraisal of the value of the land before the changes were made as of 1930 and based on a frontage of 86% feet on Western and 75 feet on Bluff was $19,500.00. Our appraisal of the value of the land after the construction of the waterway and of the Cass Street Bridge and of the approaches was $7,000.00.
“Q. You treated that as being Western Avenue property, did you not? In other words the structure that you theoretically superimposed faced Western Avenue?
“Yes, sir.
“Q. Why did you do that?
“A. Because Western Avenue is a better street — higher value street, and any building to be erected on it would face the higher value street rather than the side street which, in this case, would be Bluff Street regardless of how the lots might be platted.”

The valuation placed on the property by these experts was based upon their opinion that the property was not improved to its highest and best use at this time; and that the highest and best use of the property would be a one-story and basement building divided into separate shops all facing on Western Avenue, and covering the corner lot as well as the lot adjoining the corner.

This was not the proper method of arriving at the amount of damage sustained by the claimant. Without doubt, the rental value of the property should be taken into consideration, along with all other proper elements, in determining the value of the property. City of Chicago vs. Witt, 289 Ill. 520; City of Chicago vs. Jackson, 333 Ill. 345.

The rental value to be considered, however, should be the present rental value and not the rental value which might possibly be anticipated as the result of demolishing the present buildings and constructing a new building of an entirely different type.

The evidence shows that the corner lot, having a frontage of twenty-five (25) feet on Bluff Street and eightv-five (85) feet on Western Avenue, was acquired by claimant about 1907, and that such lot and the building thereon is occupied- as a saloon, and has been occupied for that purpose and as a soft drink parlor for many years; that the adjoining lot, having a frontage of fifty (50) feet on Bluff Street and a depth of approximately eighty-five (85) feet, was acquired by claimant about 1920, and that such lot and the building thereon was occupied as a bowling alley and transfer office. There is no evidence in the record which discloses any damage to this lot. Nevertheless, the experts for claimant, in making their estimates of damages, based their values upon rentals to be obtained from a building to be erected on both lots.

Considering the corner lot alone, a building such as was contemplated by such experts could not be erected, as the corner lot was only twenty-five (25) feet in width. Furthermore, there is nothing in the' record to indicate that under the proposed construction there would be any demand for such rooms for rental purposes, and the evidence as to local conditions makes it very questionable whether such rooms could be rented to any advantage.

The true measure of damages for land not taken is the difference between the fair cash market value of the property unaffected by the improvement, and its fair cash market value as affected by it. Department of Public Works vs. Caldwell, 301 Ill. 242; Department of Public Works vs. McBride, 338 Ill. 347.

Damages must be direct and proximate, and not such as are merely speculative and remotely contingent. Department of Public Works vs. McBride, 338 Ill. 347; Illinois Power and Light Corporation vs. Barnett, 338 Ill. 499.

Considering the law as laid down by our Supreme Court, we are forced to the conclusion that the opinions of the experts for the claimant were based upon matters which they had no right to take into consideration in arriving at their conclusions.

Charles H. Noble and George H. Hill, real estate experts produced by the respondent, each placed the damage to the claimant’s property at Three Thousand Dollars ($3,000.00). They testified that the real frontage of the property is on Bluff Street; that the property has been used as a saloon for many years; and that it is now being put to its best use, to-wit, for a saloon.

The court viewed the premises, and considering all of the evidence, we feel that if claimant is awarded Three Thousand Dollars ($3,000.00), he will be justly and fully compensated for the damage he has sustained.

It is Therefore Ordered that an award be entered in favor of the claimant, Frederick A. Rub, for the sum of Three Thousand Dollars ($3,000.00), payment to be made by the Department of Public Works and Buildings of the State of Illinois, within fifteen (15) days from the entry of this order, in accordance with the stipulation heretofore filed herein.

No. 2378.

Albert St. Julien and Frank St. Julien.

No. 2379.

Helen St. Julien.

Helen St. Julien is the owner of a lot on the north side of Jefferson Street, known as 103 East Jefferson Street, which lot has a frontage of twenty-four (24) feet on Jefferson Street and a depth of eighty-six (86) feet; it is improved by a frame building which is two stories high in front and one story in the rear, the front portion being approximately 21 x 40 feet, and the rear portion 21 x 30 feet, which said building is situated 110 feet 2 inches east of the east end of the Jefferson Street Bridge. For a long time prior to the construction of such bridge, this building was occupied by the claimants, Albert and Frank St. Julien, for the sale of harness goods, luggage and bags, trunks, suitcases, valises and auto supplies, the value of the stock being approximately $3,500.00. The stock was an open display.

The claimant, Helen St. Julien, seeks to recover damages to her property as the result of the construction of the bridge, and the approaches thereto, and the claimants, Albert and Frank St. Julien, seek to recover damages for the loss of business during the time the bridge and the approaches thereto were being constructed, as well as damages for the injury done to their mercantile stock on account of the dirt and dust which naturally resulted from the making of the improvement.

Mr. G-eorge M. Munroe and Mr. Thomas P. Lennon, real estate experts for claimant, Helen St. Julien, stated that in their opinion, the damage to the real estate as of the date of the taking out of the Jefferson Street Bridge, to-wit, April 25, 1932, was $5,600.00 plus the cost of remodeling the building and raising the same to conform to the new grade.

Mr. George H. Hill and Mr. Charles N. Noble, real estate experts called by the respondent, testified that in their opinion the damage to the real estate was $3,600.00 plus the cost of remodeling the building and raising the same to conform to the new grade.

Mr. Alfred Locher, an estimator for the Kaiser-Ducett Co., a construction company, and Mr. Oscar C. Kaiser, President of the said Company, estimated the cost of remodeling the building and raising the same to conform to the new grade, at $2,500.00, while Mr. Ahlvin, Assistant Chief Engineer, Division of Highways, a witness for the respondent, estimated the cost of such work to be $1,500.00.

Mr. Locher and Mr. Kaiser who estimated the cost of remodeling the building and raising the same to conform to the new grade, as witnesses for the claimant, and Mr. M. V. Ahlvin, who made similar estimates on behalf of the respondent, were agreed as- to the method to be followed, but differed as to quantities and prices. Mr. Locher and Mr. Kaiser prepared a detailed and itemized statement of costs and included among the items a total of Seven Hundred Fifty-four Dollars ($754.00) for raising the building and Six Hundred Fifteen Dollars ($615.00) for masonry work. Mr. Locher stated that if he received a figure for the doing of the work less than the amount which they estimated, their estimate would be lowered correspondingly.

Mr. Edward Anderson, a general masonry contractor of Joliet, with twenty years’ experience in his line of work, estimated the cost of the masonry work at Four Hundred Dollars ($400.00), being Two Hundred Fifteen Dollars ($215.00) less than the amount of the estimate made by Mr. Locher and Mr. Kaiser.

Mr. Sam Davidson, a house mover of Joliet, having twenty-five years ’ experience in work of that kind, estimated the cost of raising the building at Four Hundred Ninety Dollars ($490.00), being Two Hundred Sixty-four Dollars ($264.00) less than the estimate of Mr. Locher and Mr. Kaiser. The estimate prepared by Mr. Locher and Mr. Kaiser also contains an item of Two Hundred Three Dollars ($203.00) for “general conditions” which is not further itemized or explained.

Considering all of the evidence, and particularly the fact that the estimate made by the witnesses for the claimant for raising the building, was Two Hundred Sixty-four Dollars ($264.00) higher than the price for which the work could have been done, and that their estimate for masonry work was Two Hundred Fifteen Dollars ($215.00) higher than the price for which the work could be done, we feel that the estimate made by Mr. Ahlvin forms a more reliable basis for awarding damages.

The court viewed the premises and after giving careful consideration to all of the testimony in the record, we feel that if the claimant, Helen St. Julien, is awarded $5,100.00, she will be justly and fully compensated for all of the damage that she has sustained by reason of the construction of the bridge in question and the approaches thereto.

Award is therefore entered in favor of the- claimant, Helen St. Julien, and against the State 'of Illinois for the sum of Fifty-one Hundred Dollars ($5,100.00), payment to be made by the Department of Public Works and Buildings of the State of Illinois, within fifteen days from the date of the entry of this order, in accordance with the stipulation heretofore filed herein.

No. 2378.

Albert St. Julien and Frank St. Julien.

With reference to the claim of Albert St. Julien and Frank St. Julien for damages on account of loss of business during the time the bridge and the approaches thereto were being constructed, we have heretofore held in the case of Grassle vs. State, No. 2339 and Samuel Stein and Sadie Stein vs. State, No. 2373, that the State is not liable for such damages, and consequently no award may be allowed therefor.

With reference to the claim of Albert St. Julien and Frank St. Julien for damage to their mercantile stock on account of the dirt and dust which naturally resulted from the making of the improvement, the evidence in the record is rather meagre. Albert St. Julien testified that they carried a mercantile stock of $3,500.00, consisting of men’s billfolds, ladies ’ handbags, trunks, suitcases, valises, auto supplies and harness goods; that the stock was an open display and was damaged by the dust, sand and cement which came into the store- day after day during the progress of the work. No testimony as to this item of damage was offered on behalf of the respondent.

The evidence offered on behalf of the claimant showed a direct physical injury to the property of the claimants, for which they are entitled to be compensated. City of Winchester vs. Ring, 312 Ill. 544.

There is very little evidence to show what, if anything, the claimants did to minimize their loss. Under the law they were required to make all reasonable efforts to render the loss as small as possible, and they are not permitted to recover damages for any increase of loss consequent upon a failure to perform that duty. Hartford Deposit Co. vs. Calkins, 186 Ill. 104; C. & N. W. Ry. Co. vs. Stroud, 129 Ill. App. 348; Scherrer vs. Baltzer, 84 Ill. App. 126.

The burden of proving that claimants failed to use a reasonable degree of diligence in minimizing their damages was on the respondent, and in the absence of any evidence on that question, we must take it for granted that the claimants performed their duty in that regard.

From claimants evidence, it appears that the damage to the stock was approximately twenty per cent (20%), making a loss of Seven Hundred Dollars ($700.00). No evidence was offered by the State to controvert such testimony.

Award is therefore entered in favor of the claimants, Albert St. Julien and Frank St. Julien, and against the State of Illinois, for the sum of Seven Hundred Dollars ($700.00), ■payment to be made by the Department of Public Works and Buildings of the State of Illinois, within fifteen (15) days from the date of the entry of this order, in accordance with the stipulation heretofore filed herein.


author: Mr. Justice Linscott

text:
    (Nos. 1883-1884—Consolidated
    William E. Andres, Nos. 1883, William E. Andres, Administrator of the Estate of Alma Andres, Deceased, No. 1884, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Harry I. Hannah, for claimant.
    Otto Keener, Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On motion of the plaintiff, the above entitled cases have been consolidated, as the alleged injury and resulting damages arose out of the same facts.

The declaration in each ease is a complaint against the State of Illinois, in a plea of trespass on the case, and alleges that William E. Andres and Alma Andres were on or "about the 1st day of March, 1931, employed as attendants in the Illinois State Hospital at Elgin, and while so engaged in the course of their duties, were fed with food furnished and prepared by the said State of Illinois, through its officers, agents and employees, and while so engaged in the course of their duties as such attendants, it became and was the duty of the said State of Illinois to furnish them with pure and wholesome food, properly prepared; yet the defendant, the State, not regarding its said duty to use due care in that behalf, did furnish the said William E. Andres and Alma Andres, while so engaged in the course of their duties, tainted and unwholesome food and which was not properly prepared, that is to say, to-wit, meat that was tainted and infected, and not properly cooked and prepared, and as' a result thereof the said Alma Andres became ill and sick and infected with disease, to-wit: Trichinosis, and as a result thereof she became sick, lame and disordered, and so remained until the 4th day of June, 1930 when she died as a result of the disease so incurred as aforesaid. The declaration then alleges her next of kin and claims damages in the sum of $10,000.00. In this declaration there is a second count, but there is no substantial difference in the averment so far as liability is concerned, from the first count, except that William E. Andres did not die. The averments in the case of William E. Andres vs. The State of Illinois, are substantially the same.

The Attorney Greneral has made a motion to dismiss this case on the grounds that it does not state a cause of action.

The State, at Elgin, Illinois, maintains a charitable institution known as the Illinois Northern Hospital for the Insane, and the State may under the law, receive any grant, gift, donation, devise or bequest of real or personal property for the use of any charitable institution. This institution is also maintained by appropriation by the legislature, though a charge is made for the care of its inmates.

In the case of Parks vs. Northwestern University, 218 Ill. 381, the declaration alleges that the University undertook, for hire, to teach Parks the science of dentistry, dental surgery, etc., and charged that he received injuries resulting in the loss of an eye through the negligence of one of the professors employed by the University while Parks was in his charge as a student in a class-room or laboratory of the University. A demurrer was sustained to the declaration by the Superior Court of Cook County and the cause dismissed. The ground of the demurrer was that the University is a charitable institution, organized for the purpose of disseminating education and professional learning, and that the doctrine that the employee shall be liable to respond for the negligent act of the employer has no application to it. Without an extended discussion of this case, the Supreme Court held that in the Statute of charitable uses, (43 Eliz. chap. 4,) which is a part of the common law of this State, 6 ‘ schools of learning, free schools,” etc., are mentioned as charitable objects, and the fact that the appellee requires its students to pay tuition does not change its character as a charitable institution, and held that a charitable institution was exempt from liability, or damages resulting from the negligent acts of its servants.

To the same effect is the case of Hogan vs. Chicago Lying-In Hospital, 335 Ill. 42 where it was held that a purely charitable corporation is not liable for the torts or negligence of its employees, servants or agents in the performance of their duties in carrying on the work of the corporation.

Counsel for plaintiff state that they are fully aware that the State is not subject to a suit except by its own consent as provided by law, and that it has also been held by this court that the conduct of a hospital is not an extra hazardous enterprise. He further states that he is aware that as a general rule of law the doctrine of respondeat superior does not apply to the State, and states that he relies upon the Court of Claims Act as to the jurisdiction of the Court of Claims, which provides that the Court of Claims has jurisdiction :

“To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should, in equity and good conscience discharge and pay.”

Counsel also states that the foregoing is in addition to its powers to hear cases arising under the Workmen’s Compensation Act.

The declaration attempts to state a cause of action at common law in a plea of trespass on the case, and does not purport to state any facts which would bring these cases under the Compensation Act. These declarations allege that the parties, while engaged in the course of their duties were fed impure and poisonous food, furnished and prepared by the State of Illinois, through its officers and agents. While the declaration alleges that they were engaged as attendants, it does not set forth of what their work consisted.

Under Section 3 of the Compensation Act, the provisions thereof apply automatically and without election to the State, and others engaged in any department of the enterprises or businesses mentioned therein, and there are ten different businesses and enterprises mentioned, but neither of these include an attendant at a State Hospital. While this would not be necessary, it would be necessary to aver facts which would show what the duties of the attendants were at the time of the injury to the end that this court may determine if such attendants do come under the provisions of Section 3 of the Compensation Act.

Section 6 of the Court of Claims Act, provides that the court 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 employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the ‘Workmen’s Compensation Act,’ the Industrial Commission being hereby relieved of any duty relative thereto.”

While it is true that Section 4 of the Compensation Act defines the term “employer” as used in that Act to include the State and every person, firm, public or private corporation, including hospitals, the service or duties of the employee must be one of those that come within the enterprises or businesses enumerated in Section 3 of the Act.

The specific charge in each of these cases is that the respective parties, while engaged in the course of their duties, were fed with food furnished and prepared by the State, by its employees, which was poisonous. We take it from the averments in the declaration, although no specific charge is made, that a part of the compensation that these parties were to receive, were their meals. It would be absurd and ludicrous to hold thát these plaintiffs were engaged by the State to eat meals.

It is fundamental under the Compensation Act that a compensable injury must arise “out of” and “in the course of” the employment. The words “in"the course of” the employment refer to the time, place and circumstances under which the accident takes place. The words, “arising out of” the employment refer to the origin or cause of the accident as the result of a risk reasonably incidental to the employment, which might have been reasonably contemplated by a person entering the employment as incidental to it.

Dietzen Co. vs. Industrial Board, 279 Ill. 11; Mueller

Const. Co. vs. Industrial Board, 283 Ill. 148.

In the latter case, the Supreme Court of Illinois cites as a concrete statement of the law the language of the Supreme Court of Massachusetts in McNicol’s case, 215 Mass. 497, that an injury may be said to “arise out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a national consequence. ’ ’

In the case of Vincennes Bridge Co. vs. Industrial Commission, 351 Ill. 444, on page 450 of the opinion the court held that there must be a proximately causative relation between the nature of his work and the injury, so that it may be sure that the injury had its origin in a risk connected with the employment, from which the injury, though unforeseen, may after the event be recognized to have flowed as a rational consequence. The court here cited numerous authorities.

As said above, these plaintiffs were not employed to eat food, but apparently the furnishing of food by the State was a part of their compensation, and the eating thereof was not a part of their duties.

Counsel for plaintiff calls attention to Section 4 of the Court of Claims Act which provides that the court shall have jurisdiction:

“To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.”

From the above we have seen that there is no legal liability arising out of the facts in this case that would bind a private employer, and there is nothing stated in the Act of the Court of Claims which would bind the State where a private individual, under like circumstances, would not be bound. The law does not give an employee of this State any greater rights than an employee of a private individual has under like circumstances.

In the case of Crabtree vs. State of Illinois, 7 Court of Claims Reports, page 207, we held that:

"The jurisdiction of the Court of Claims in actions for compensation by State employees for accidental injuries is derived from Paragraph 6 of Section 6 of Act creating court, and is the same in such actions as Industrial Commission has in other cases and the court in consideration of such cases must be guided by provisions of Workmen’s Compensation Act.”

In the same case, in commenting upon equity and good conscience doctrine, we said:

“The provisions of Paragraph 4 of Section 6 of Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to 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 one.”

The motion of the Attorney General to dismiss this case will therefore be sustained, and counsel for plaintiff may have thirty days after the filing of this decision within which to amend his complaint pursuant to Rule 31 of this court, and if he decline or fail to so amend, final judgment will be entered dismissing the claim.


text:
    (No. 2410
    Dr. N. A. Balding, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    William M. Scanlan, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The facts in the case of Dr. N. A. Balding are fully set forth in the case of Dr. Charles J. Hutton, No. 2407, decided at the present term of this court and the reasons for the allowance of an award are therein stated. To save repetition reference is, therefore, made to that cause.

An award is herein allowed in favor of Dr. N. A. Balding in the sum of $45.00.