author: Me. Justice Yantis Chibe Justice Hollekich,

text:
    (No. 1881
    Joseph Kump, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

      Rehearing denied, November 13, 1934.

    James E. Btjrke, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Plaintiff filed his declaration with the Clerk of the Court of Claims on February 25, 1932, for injuries received on the 8th day of June, A. D. 1929, while employed by the State of Illinois as a carpenter in the Division of Waterways. The complaint avers that while so employed, he fell from a scaffold, breaking his right wrist in two places and that as a proximate result thereof he suffered total temporary incapacity from June 8, 1929, to August 12, 1929, and suffered a serious and permanent disfigurement to his right hand in this, that the right wrist of plaintiff is greatly enlarged and will remain so permanently. A Bill of Particulars attached to said claim asks “for one week of temporary total incapacity from work at $66.00 per week as provided in Act entitled ‘Workmen’s Compensation Act, ’ $20.00. For ninety per cent loss of right hand, $3,060.00.” Claimant was married and had five children under the age of sixteen years. He was drawing wages of $12.00 per day on a five and one-half day week basis, making $66.00 per week. Under the Statutes in force at the time of the accident, the claimant, if compensation was awarded, would be allowed a maximum of $19.00 per week. The proof shows that claimant was employed under the Hlinois Waterway Act and was injured in the course of his duties. Further that he was paid $168.00 for the period from June 8, 1929, until August 12,1929.

In his complaint, claimant asks relief because of “the serious and permanent disfigurement to his right hand,” but the Bill of Particulars filed by him asks relief for “90% loss of use of right hand. ’ ’

The Attorney General has filed a motion to dismiss the claim by reason of the fact that the complaint shows the injury to have occurred on June 8,1929, and the declaration was not filed until February 25, 1932, and that under Section 24 of the Workmen’s Compensation Act a recovery is therefore barred. Claimant in his reply brief contends that the fact that he was employed under the Illinois Waterway Act exempts him from the limitations set out in Section 24 of the Workmen’s Compensation Act. Claimant cites Section 25 of the Waterway Act, which provides,

“The State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be ascertained by reference to the provisions of the Act commonly called ‘The Workmen’s Compensation Act’. The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder, and shall make and file its finding and determination in such case.”

Claimant contends that by the wording of this section the Court of Claims should give consideration to and be guided by the Workmen’s Compensation Act only in determining the amount of liability of the State, and that application of all other provisions of the Compensation Act are excluded from consideration by this court by reason of the fact that in said Section 25 of the Waterway Act the express charge is given to the Court of Claims to find “the amount of such liability”.

Counsel for claimant- contend “that the inclusion in a Statute of specific powers amounts to an exclusion of all other' powers” and extend their brief upon that proposition. The court is of the opinion that the wording in Section 25 of the Waterway Act is not a grant or limitation of a specific power to the exclusion of general powers, and is of the further opinion that the words there used, to-wit: “The amount of such liability to be ascertained by reference to the provisions of the-Act commonly called the Workmen’s Compensation Act” are a direction to this court to refer to all of the provisions of the-Workmen’s Compensation Act determining what, if any amount is due in each particular case.

The Illinois Waterway Act was passed and approved June 17,1919. Prior to the time of its passage, the Legislature had already provided for the hearing of all claims by this court against the State of Illinois. By Section 24 of the Waterway Act, the liability of the State for damages to real estate and personal property incident to the operation of the Illinois Waterway and its appurtenances was placed within the forum of and made determinable by the Department of Public Works and Buildings. It was apparently the desire of the Legislature to make clear its intention that claims for damages by employees engaged in the waterway project should be left within the jurisdiction of the Court of Claims for determination. As stated in Section 25 of the Waterway Act,

“The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder.”

There is nothing contained in the wording of said section or elsewhere in the Waterway Act which indicates that the Court of Claims, in exercising its jurisdiction, should give to employees of the Illinois Waterway any different consideration in regard to the requirements as to notice and filing of claim and other provisions of the Workmen’s Compensation Act than those applied to all other employees of the State.

There is no conflict between Section 25 of the Waterway Act and the Workmen’s Compensation Act or between the said Section 25 and the Court of Claims Act, and the court is of the opinion that no different rule should be applied by the Court of Claims in passing upon claims for compensation made by employees under the Waterway Act and claims for compensation by other State employees.

The legislative Act by which the Court of Claims exists provides that,

“The Court of Claims shall hear and determine the liability of the State for accidental injuries or death * * * by any employee: Further that such determination shall be made in accordance with the rules * * * of the Workmen’s Compensation Act.”

Section 6, Court of Claims Act.

There is nothing in Section 25 of the Waterway Act that repeals, adds to or modifies this enactment. Section 25 merely provides that,

“The amount of such liability shall be ascertained by the Court of Claims by reference to the pi'ovisions of * * * the Workmen’s Compensation Act.”

But oue cannot read into that language any intent to repeal or modify the existing law under which the Court of Claims hears compensation cases, nor does the court feel justified in reading into the wording of said Act the word “only” as counsel for claimant insists should he done when he says that said Section 25 provides “that only the amount of such liability shall be ascertained by the court, etc”.

As suggested by counsel for claimant, this court did hold in the Crabtree case (7 C. C. R. 207) that the particular enactment of the Compensation Act making specific limitations as to time for notice and filing of claims operated as against the general enactment of the Court of Claims Act in regard to five year limitations on general claims, but the court does not believe that the wording of Section 25 of the Waterway Act can be construed as in conflict with the Compensation Act or in conflict with the general powers of the Court of Claims in workmen’s compensation cases. Under the theory advanced by counsel for claimant, no limitations of time of any kind would exist within which an employee engaged in Illinois Waterway construction work would be compelled to file his claim. Even the five year limitation prescribed by the Court of Claims Act would not apply and the claimant could file his claim irrespective of how many years had passed since the purported accident had occurred. The Court does not believe that such was the intention of the Legislature.

It appears from the record herein that no claim for compensation was made within six months after the accident and no application for compensation was filed within one year after such accident. Under the provisions of the Waterway Act, this court is to find the amount due the claimant by reference to the provisions of the Workmen’s Compensation Act. The court finds that there is no amount due, by reason of the failure of claimant to comply with the provisions of Section 24 of the Workmen’s Compensation Act in regard to filing his claim for compensation within one year after the accident in question. Claim dismissed.

Chibe Justice Hollekich,

dissenting:

I am not in accord with the majority opinion.

Section 23 of the Illinois Waterway Act provides as follows :

“The State shall ****** 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.”

Section 24 of such Act provides as follows:

“All claims for damages to persons (except to employees) and all claims for damages to property, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings, and paid out of any moneys which shall from time to time be provided for the payment of such claims”; etc. etc.

Section 25 of such Act provides as follows:

“In case the Department of Public Works and Buildings shall construct such waterway or its appurtenances, or any part or parts thereof, by the direct employment of services, labor, materials and equipment, the State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be ascertained by reference to the provisions of the Act commonly called the “Workmen’s Compensation Act.” The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder and shall make and file its findings and determination in each case.”

Paragraph 6 of Section 6 of the Court of Claims Law provides that the Court of Claims shall have power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any 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.”

The first question to be determined, therefore, is the question as to the manner in which these several statutory provisions shall be construed.

The aforementioned provision of the Court of Claims Law is a general provision relative to injuries sustained “by any employee of the State” and is a part of the Court of Claims Law in force July 1, 1917. The aforementioned provisions of the Waterways Act are special provisions which apply only to such State employees as come within the provisions of such Act, which was approved June 17,1919. The rule of construction in such cases as laid down by our Supreme Court, is as follows:

"The rule is that where there is to be found in a statute a particular enactment, it is to be held operative as against the general provisions on the same subject either in the same Act or in the general laws relating thereto”; Robbins vs. Lincoln Park Commrs., 332 Ill. 571.

In the case of Handtoffski vs. Chicago Traction Co., 274 Ill. 282, the Supreme Court (p. 286) said:

“It is a rule in the construction of statutes that ‘where there is in the same Statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.’ Endlich on Interpretation of Statutes, Sec. 399; Chicago and Northwestern Railway Co. vs. City of Chicago, 148 Ill. 141."

The rule is also stated in 59 Corpus Juris, p. 1056, as follows:

“Where there is one Statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and. harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special Statute, or the one dealing with the common subject matter in a minute way, will prevail over the general Statute, unless it appears that the legislature intended to make the general Act controlling.”

A similar question was considered by this court in the case of Crabtree vs. State, 7 C. C. R. 207. The question there involved was as to whether the 5-year Statute of Limitations provided by Section 10 of the Court of Claims should prevail over Section 24 of the Workmen’s Compensation Act in a case under such Act. We there held that Section 10. of the Court of Claims Act was a general provision which by its terms applied to every claim against the State cognizable by the Court of Claims, whereas Section 24 of the Compensation Act applied only to claims against the State for accidental injuries or death suffered in the course of employment by an employee of the State; that "Section 24 of the Compensation Act was a particular provision, which should prevail over the general provision contained in Section 10 of the Court of Claims Act. I feel that the same conclusion must be reached in this case, to-wit: that the provisions of the Waterways Act are special provisions, and so far as they are inconsistent with the general provisions of the Court of Claims Act, including the Workmen’s Compensation Act which by reference is included in the Court of Claims Act and made a part thereof, such special provisions must prevail.

Applying the law as above set forth to the case before us, leads to the following conclusions:

Paragraph 6 of Section 6 of the Court of Claims Act gives this court the power to “hear and determine the lia^ bility of the State for accidental injuries or death suffered * * * by any employee of the State”, and further provides that such determination shall be made in accordance with the rules prescribed by the Workmen’s Compensation Act. In cases which arise under the provisions of Paragraph 6, Section 6 of the Court of Claims Law, this court, in the first instance, must consider and determine the question as to whether there is a liability on the part of the State, and in the consideration and determination of such question this court must be governed by the provisions of the Workmen’s Compensation Act; hence the previous decisions of this court in cases arising under Section 6 aforesaid, to the effect that unless there is a compliance with the requirements of Section 24 of the Workmen’s Compensation Act, there is no liability on the part of the State.

Cases which arise under the Illinois Waterway Act, however, are governed by the special provisions of that Act, and stand upon an entirely different basis. Section 23 of such Act provides that “The State shall also be liable for all damages to persons caused by the construction, maintenance or operation of the Illinois Waterway,” etc., and Section 25 of such Act provides that in case the Department of Public Works and Buildings shall construct such Waterway by the direct employment of labor, etc., “the State sihall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment,” and further, “the amount of such liability to be ascertained by reference to the provisions of the Act commonly called the Workmen’s Compensation Act.”

In cases arising under the Illinois Waterway Act, where the Department of Public Works and Buildings is constructing the Waterway, by the direct employment of labor, as in this case, the State assumes liability for all accidental injuries or death suffered by any employee arising out of and in the course of his employment. In such cases the jurisdiction of the Court of Claims is limited to a determination of the question as to whether the injuries arose out of and in the course of the employment of the employee; if so, the State assumes liability therefor, and the court must then determine the amount of such liability under the provisions of the Workmen’s Compensation Act.

In short, there is a material difference between the general employees of the State who come under the provisions of the Workmen’s Compensation Act, and those employees of the State who come under the provisions of the Illinois Waterway Act.

In the case of the general employees of the State who claim to have sustained accidental injuries arising out of and in the course of their employment, the court must determine first whether there is a liability on the part of the State, and such determination must be made under the terms and provisions of the Workmen’s Compensation Act. If there is such liability, then the court determines the amount thereof under the terms and provisions of such Act.

In the case of employees of the State who come under the Waterway Act, and who claim to have sustained accidental injuries arising out of and in the course of their employment, it is not necessary for this court to consider the question of the liability of the State, as such liability has been specifically assumed by Sections 23 and 25 of the Waterway Act. The only question to be determined in such cases is whether the injuries arose out of and in the course of the employment of the employee. If so, the State has assumed liability therefor, and the amount of such liability is then to be determined by the court under the terms and provisions of the Workmen’s Compensation Act.

The majority of the court takes the position that no different rule should be applied in passing upon claims for compensation made by employees under the Waterways Act, and claims for compensation made by other State employees. It seems to me, however, that the Legislature recognized the dangerous character of the work to be done pursuant to the Waterways Act, and on account of the dangerous character of such work, decided that the State should assume liability for all accidents occurring to any of the workmen where the Department of Public Works and Buildings is constructing the Waterway, provided the injury arose out of and in the course of the employment. The wisdom of making such a distinction may be questionable, but that matter is for the Legislature and not for this court. The Legislature having provided that the State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, I feel that this court is bound by such provision at law.

The majority opinion also takes the position that unless the provisions of Section 24 of the Compensation Act shall control, there is no limitation of time whatever within which an employee engaged under the Waterways Act would be compelled to file his claim, and that the 5-year Statute of Limitations prescribed by the Court of Claims Act would not apply. I cannot agree with that conclusion. Section 10 of the Court of Claims Act provides that “Every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed with the secretary of the court within five years after the claim-first accrues,” etc. This provision, I maintain, applies to every case cognizable by the Court of Claims, unless and until the Legislature provides otherwise. We have heretofore held that the Legislature has provided otherwise as to Workmen’s Compensation cases (Crabtree vs. State), and I contend that as to all cases other than Workmen’s Compensation cases, the general terms of Section 10 will continue to apply unless and until otherwise provided by legislative enactment.

In this case there is no question but what the claimant sustained accidental injuries arising out of and in the course of his employment in connection with the construction of the Illinois Waterway by the Department of Public Works and Buildings, and I am therefore of the opinion that he is entitled to be compensated therefor under the terms and provisions of the Workmen’s Compensation Act.

The majority having decided, however, that the case must be dismissed, it would be useless to make a computation of the amount which, in my judgment, the claimant is entitled to receive.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2384
    Lake Street Memorial Park, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    McQueen, Churchill & Cromer, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover the sum of Forty-four Dollars and Sixty-two Cents ($44.62) on account of excess fees paid to the respondent under the terms and provisions of the Securities Law of this State.

It appears that on November 24, 1933, the claimant submitted a statement under the Illinois Securities Law to qualify 1,600 shares of its preferred stock of the par value of One Hundred Dollars ($100.00) per share, and 1,600 shares of its common stock of the par value of Five Dollars ($5.00) per share for sale at those prices as Class D securities. The statutory fee for such amount of securities, to-wit, $168,000.00, was $84.00, which amount was paid by the claimant in the State treasury as required by Section twenty-six (26) of the Securities Act. Thereafter an appraiser was selected to appraise the properties of the corporation as provided by the Securities Law, and he appraised the same at a lower valuation than had been given by the claimant. The claimant thereupon submitted an amended statement which sought to qualify 750 shares of preferred stock of the par value of $100.00 per share and 750 shares of common stock of the par value of $5.00 per share. The statutory fee for such amount of securities, to-wit, $78,750.00, was Thirty-nine Dollars and Eighty-three Cents ($39.83).

Claimant having paid Eighty-four Dollars ($84.00) under its original statement, whereas, under its amended statement it was only required to pay Thirty-nine Dollars and Eighty-three Cents ($39.83), it is clearly entitled to a return of the excess fees paid, to-wit, Forty-four Dollars and Sixty-two Cents ($44.62), same having’ been paid under a mistake of fact. 48 Corpus Juris 759; 21 R. C. L. 164; Firemen’s Insurance Co. vs. State, 2 C. C. R. 220; Moorman Mfg. Co. vs. State, No. 1886 (decided May, 1934).

Award is therefore hereby entered in favor of the claimant for the sum of Forty-four Dollars and Sixty-two Cents ($44.62).


author: Mr. Justice Yantis Justice Hollerioh,

text:
    (No. 2080
    Emil Larger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

      Rehearing denied November 13, 1934.

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

delivered the opinion of the court:

Plaintiff, on December 19,1932, filed his claim for injuries received while employed as an engineer on September 11, 1929. The declaration alleges that claimant was working in the Division of Waterways in the construction of the Illinois deep waterway at the lock and dam at Brandon Road, near Joliet, Illinois; that while operating a motor or engine which drove a conveyor, it was necessary for claimant to walk back and forth on an elevated platform; that the platform fell, causing claimant to drop a distance of approximately twelve feet, whereby he was injured; that said employment was a hazardous one within the meaning of the Workmen’s Compensation Act and that the injury sustained by him constituted a permanent, partial disability within the meaning of the Compensation Act and arose out of and in the course of his employment as an engineer employed by the State in the Division of Waterways of the Department of Purchases and Construction; for which injuries claimant asks an award of Ten Thousand Dollars ($10,000.00) from the State.

A motion to dismiss the claim has been filed by the Attorney General, because the declaration shows that the injury occurred September 11,1929, and the claim was not filed until December 19,1932, and because such claim is therefore barred under the provisions of Section 24 of the Workmen’s Compensation Act and the holdings of this court, as expressed in Crabtree vs. State, 7 C. C. R., 207. Claimant, in his reply brief, contends that the fact that the claimant was employed on the Illinois Waterway exempts him from the limitations expressed in said Section 24. Counsel for claimant, in their reply brief, quote Section 23 of the Waterway Act, wherein it is said that,

"Such damages to persons who are employees to be ascertained, determined and fixed as provided in this Act.”

But Section 25 of the Waterway Act provides that,

“The State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be ascertained by reference to the provisions of the Act commonly called ‘The Workmen’s Compensation Act’. The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder and shall make and file its finding and determination in each case.”

While the Waterway Act, in Section 23, states that the damages are to be ascertained, determined and fixed as provided in such Act, no provisions are made by which such ascertainment or determination is to be arrived at, except by the reference to the Workmen’s Compensation Act and the Court of Claims Act as found in Section 25 of the Waterway Act.

The court cannot concur in the further contention of plaintiff that the limitations of Section 24 of the Workmen’s Compensation Act do not apply to this claim by reason of the fact that claimant was employed in the construction of the Illinois Waterway system and that by the terms of the later Act (Section 25, Paragraph 115, Chap. 19, Cahill’s Illinois Bevised Statutes, 1933), that the Workmen’s Compensation Act shall be referred to by the Court of Claims only for the purpose of ascertaining the amount of the award.

The Illinois Waterway Act was passed, and approved June 17, 1919. Prior to the time of its passage the Legislature had already provided for the hearing of all claims by this court against the State of Illinois. By Section 23 of the Waterway Act, the liability of the State for damages to real estate or personal property by reason of the construction, maintenance or operation of the Illinois Waterway and its appurtenances was made specific. By Section 24 all claims for damages to property or persons other than employees of the State were made determinable by the Department of Public Works and Buildings. It was apparently the desire of the Legislature to make clear its intention that claims for damages by employees engaged in the waterway project should be left in the forum of this court for determination. As above stated, it is provided in said Section 25, that

“The Court of Claims shall have aud exercise jurisdiction over all claims for compensation hereunder.”

There is nothing contained in the wording of said section or anywhere in the Waterway Act which indicates that the court in exercising such jurisdiction should give to employees of the Illinois Waterway any different consideration in regard to the requirements of notice and filing claim and other provisions of the Workmen’s Compensation Act than those applied to all other employees.

There is no conflict between the Court of Claims Act, the Workmen’s Compensation Act and the Waterway Act, and the only question is as to whether there is any wording contained in said Section 25 of the Waterway Act which would indicate that a different rule should be applied by the Court of Claims in passing upon claims for compensation made thereunder than is applied to other claims for compensation by other injured State employees.

The legislative Act by which this court exists, provides that

“The Court of Claims shall hear and determine the liability of the State for accidental injuries or death * * * by any employee; further that such determination shall be made in accordance with the rules * * * of the .Workmen’s Compensation Act.”

Section 6 Court of Claims Act.

There is nothing in Section 25 of the Waterway Act that repeals, adds to or modifies this enactment. It is provided in Section 25 that, but one cannot read into that language any intent to repeal or modify the existing* law under which the Court of Claims hears compensation cases.

“The amount of such liability shall be ascertained by the Court of Claims by reference to the provisions of * * * the Workmen’s Compensation Act.”

As there are no limitations provided for in the Waterway Act, except by reference to the Workmen’s Compensation Act and the Court of Claims Act, there would be, under the theory advanced by counsel for claimant, no limitations of time of any kind within which an employee engaged in the Illinois Waterway construction work should be filed. Even the five year limitation prescribed by the Court of Claims rules would not apply and such claimant could file his claim irrespective of how many years had passed since the purported accident occurred. The court cannot approve such a construction of the several Acts.

It appears from the record herein that no claim for compensation was made within six months after the accident and that no application for compensation was- filed in this court within one year after such accident. Under the provisions of the Waterway Act, this court is to find the amount due the claimant. The court finds that there is no amount due, because of a failure of the injured employee to bring himself within the classification for the allowance of an award, by reason of his failure to comply with the provisions of Section 24 of the Workmen’s Compensation Act.

Motion to dismiss allowed.

Justice Hollerioh,

dissenting:

I dissent for the reasons set forth in Kump vs. State, No. 1881, ante.

C. N. Hollerioh, Chief Justice.


author: Me. Justice Yantis

text:
    (No. 2053
    Boy Page, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

      Rehearing denied November 13, 1934.

    Barr & Barr, for claimant.
    Otto Keener, Attorney General; John Kassbeman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

This claim was filed on January 19,1933, and alleges that on the 10th day of November, A. D. 1928, the claimant was employed as a carpenter by the State of Illinois, acting by and through the Division of Waterways of the Department of Purchases and Construction in connection with the construction of the Illinois deep waterway; that on said date of November 10, 1928, while engaged in the course of his occupation and employment, he struck his left knee upon one or more iron braces used in the form building of said construction work; that as a result of said injury, he suffered loss of earnings; that said employment was a hazardous one within the meaning of the Workmen’s Compensation Act; that said injury arose out of and in the course of his employment in the Division of Waterways, and for which injuries he asks an award in the sum of Two Thousand Dollars ($2,000.00).

The Attorney General has filed his motion to dismiss the claim for want of jurisdiction and for the reason that it does not appear from the records that claimant has complied with the terms of Section 24 of the Workmen’s Compensation Act, in that no claim or demand appears to have been made upon respondent by claimant within six months after the date of the accident and that no application for compensation was filed herein within one year after the date of said injury or within one year after the date of the last payment made by respondent to claimant on account of such injury.

Under the pleadings herein and the proof contained in the record, it is apparent that the objections raised by the Attorney General are well founded. The court is of the opinion that the determination of the claim is governed by the provisions of the Workmen’s Compensation Act, and that the Waterway Act is not in conflict therewith and does not remove any of the requirements incident to claims by employees of the State. This claim is analogous to that of Vail vs. the State, C. C. R. No. 2033 and Langer vs. the State, C. C. R. No. 2030. For further expression by the court, reference to those cases is hereby made. The motion of the Attorney General to dismiss is granted and the case is dismissed.

I dissent for the reason set forth in the case of Joseph Kump vs. State of Illinois, No. 1881.

C. N. Hollebich, Chief Justice.


author: Mr. Chief Justice Hollebioh

text:
    (No. 2076
    Mary Palumbo, Administratrix of the Estate of Carmine Campagnie, also Known as Carmelo Campagnie, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Dawson, Dawson & Schnebergeb, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebioh

delivered the opinion of the court:

Mary Palumbo, as administratrix of the estate of Carmine Campagnie, also known as Carmelo Campagna, deceased, filed her complaint herein on February 23, 1933, seeking to recover damages for the pecuniary loss sustained by the widow and next of kin of said decedent, by reason of his death, which, it is alleged, resulted from the negligent and wrongful acts of certain officers and agents of the respondent.

The complaint alleges in substance that on February 16, 1932, claimant’s decedent became a patient at the Illinois Research and Educational Hospital at 1819 West Polk Street, Chicago; that on March 4, 1932, the respondent, through its physicians and employees at said hospital, performed a surgical operation upon said decedent; that said operation was unnecessary and was performed by such physicians and employees “through their desire to increase their own knowledge of kidney diseases rather than from a just and proper regard for the welfare and rights of said patient;” that said operation was performed without securing the consent of said patient, or of his wife or children; that said patient died as the immediate effect of the operation, and that his widow and minor children have sustained a pecuniary loss on account of his death in the amount of Ten Thousand Dollars ($10,000.00).

The Attorney General has moved to dismiss the case, for the reason that the State in the conduct and operation of institutions such as the Research and Educational Hospital is engaged in the exercise of a governmental function, and therefore is not liable for the negligence of any of its employees or agents in connection therewith.

A similar question was presented in the case of Lillie Bell Jones vs. State, No. 1787, recently decided by this court. In that case the claimant alleged that she had sustained serious and permanent injuries as the result of a tonsillectomy performed on her at a time when she was a patient at the Illinois Eye and Ear Infirmary, a State charitable institution located at Chicago. She claimed that the operation was performed by an interne, that it was performed negligently, and unskilfully, and that as the result thereof she sustained serious and permanent injuries. The authorities on the question were carefully considered and the court there held that in the conduct and operation of such institution the State was engaged in the exercise of a governmental function, and therefore was not liable for the negligence of its servants and agents in connection therewith.

The case was carefully considered and numerous authorities were cited in support of the conclusion there reached, among which were the following: Tollefson vs. City of Ottawa, 228 Ill. 134; Minear vs. State Board of Agriculture, 259 Ill. 549; 13 R. C. L. 944, Section 8.

In that case it was also pointed out that even if the institution had been operated by a private corporation, under the law as laid down in the cases of Parks vs. Northwestern University, 218 Ill. 381; Hogan vs. Chicago Lying-in Hospital, 335 Ill. 42; and Simon vs. Pelouse, 263 Ill. App. 177; there would be no liability on the part of the corporation for the negligent acts of its servants and agents.

From the allegations contained in the complaint, it appears that the Research and Educational Hospital belongs to the same general class of institutions as the Illinois Eye and Ear Infirmary, and what we said in the Lillie Bell Jones case applies with equal force to this case.

This being a case in which there would be no legal liability on the part of the State if the State were suable, we have no authority to enter an award. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January Term, 1934, of this court.

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


text:
    (No. 2348
    Phillips Petroleum Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.
    Cecil Hunt, for claimant.
    Otto Keener, Attorney General; John KZasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover the sum of One Hundred Fifty-nine Dollars and Ninety-five Cents ($159.95), together with interest thereon from October 1, 1933, at the rate of six per cent (6%) per annum, for gasoline and oil sold and deliverered by it to the respondent during the period from July 6, 1932, to July 1, 1933, pursuant to the terms of a contract in writing dated the 6th day of July, A. D. 1932.

The claim was presented for payment to the Division of Highways on October 1, 1933, but payment was refused on account of the fact that the appropriation had lapsed on September 30, 1933.

It appears from the report of Mr. Ernest Lieberman, Chief Highway Engineer, that the invoices upon which the claim is based are outstanding and unpaid. The claim should therefore be allowed, except as to the item of interest, which is disallowed. Had claimant presented its claim at any time between July 1,1933, and September 30,1933, payment would have been made upon presentation. The failure to receive payment was due to the negligence of the claimant and under the facts there is no liability on the part of the State so far as the item of interest is concerned.

Award is therefore entered in favor of the claimant for the sum of One Hundred Fifty-nine Dollars and Ninety-five Cents ($159.95).


author: Mb. Justice Yantis

text:
    (No. 2387
    Phoenix Metal Cap Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    West & Eckhabt, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant seeks to recover on a credit memorandum issued by the Department of Finance, but not paid from appropriation, the sum of One Hundred Sixty-seven and 28/100 Dollars ($167.28) paid as Retailers Occupation Tax to the Department of Finance of the State of Illinois.

There seems to be no disagreement of facts. Under report from the Department of Finance, it appears that claimant was engaged in producing and selling metal caps, which are affixed to the tops of glass containers in which fruits, vegetables and other tangible personal property are contained and ultimately sold to users or consumers. Under the rulings of the Department of Finance, such sales constitute sales for re-sale under Special Bule No. 1 of the Bules and Begulations issued by the Department of Finance in relation to the Betailers Occupation Tax Act.

On August 22, 1933, claimant paid the sum of $167.28 to the Department, under protest. On September 13th, the Department of Finance advised claimant that the sales in question were within the exception of Special Bule No. 1, and the claimant was not liable for such tax. Claimant thereafter, in October, filed its claim for credit for the amount paid under protest, i. e., $167.28. The Department, being legally unable to make a refund, issued a credit memorandum, evidencing claimant’s right to said amount, and referred claimant to the Court • of Claims for adjustment. The claim was filed herein on March 22, 1934. It appearing from the undisputed facts that the Department of Finance recognizes the legality of said claim, and that a refund should be made, it is therefore ordered that an award be entered for claimant in the sum of $167.28. Further that upon payment thereof, the original credit memorandum, No. 783, Registered No. 86095, issued April 14, 1934, to the Phoenix Metal Cap Company, Inc., by the Department of Finance, be surrendered to said Department for cancellation.


author: Mb. Chibe Justice Hollerich

text:
    (No. 2175
    John H. Read, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    George E. Martin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chibe Justice Hollerich

delivered the opinion of the court:

Claimant asks for the return of Twenty-four Dollars ($24.00) on account of motor vehicle license fees which he claims to have paid to the Secretary of State in excess of the amount which he was legally required to pay. It appears that in February, 1926, he acquired a Buick sedan and in his application for a' motor vehicle license erroneously listed such automobile as 29.9 horsepower, whereas, in fact, the horsepower was but 23.4. A similar error was made in his application for the years 1927 to 1932 inclusive. As the result of such mistake, claimant paid a license fee of Twelve Dollars ($12.00) in each of such years, whereas the correct fee should have been Bight Dollars ($8.00) for each year. In 1933 he discovered the error and made application to the Secretary of State for a refund of the amount overpaid, to-wit, Twenty-eight Dollars ($28.00), and was refunded Four Dollars ($4.00) fpr the year 1932, but was informed that the fees previously paid by him had long since been paid to the State Treasurer by the Secretary of State and that it was therefore impossible for the Secretary of State to make a refund on account thereof to the claimant. He now seeks to recover the sum of Twenty-four Dollars ($24.00), being the amount of the excess so paid by him as aforesaid.

Bach of the excess payments made by claimant was the result of a mistake in fact and under the law as set forth in the case of Moorman Manufacturing Company vs. State, No. 1886, decided at the present term of this court, claimant is entitled to the return of the amount so paid by him by mistake.

However, claimant’s complaint was filed herein on May 10, 1933, and under Section ten (10) of the Court of Claims Act his right to recover is limited to the period of five (5) years immediately preceding the filing of the claim.

There is nothing in the record to show that the fee paid for 1928, was paid subsequent to May 10th of that year, and consequently recovery is limited to the excess amounts paid for the years 1929,1930 and 1931, to-wit, Four Dollars ($4.00) for each of such years.

Award is therefore hereby entered in favor of the claimant for the sum of Twelve Dollars ($12.00).


text:
    (No. 2249
    Herman Reinhardt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

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

delivered the opinion of the court:

On June 10, 1933 claimant was the owner of and operating a certain Pontiac coach in an easterly direction upon a certain public highway in the State of Indiana known as U. S. Interstate Highway No. 12, at or near the City of Bailey town. At the same time one Robert Phillips, an employee of the Department of Trade and Commerce, Division of Oil Inspection of the State of Illinois, was operating a certain Ford automobile owned by the respondent, in the same direction, on said highway.

Claimant alleges that the respondent, by its said agent, so carelessly and negligently operated said Ford automobile, that it ran into and collided with the automobile of the claimant, whereby the said automobile of the claimant was damaged and destroyed.

The facts are not in dispute, and the Attorney General contends that, admitting the allegations of the complaint, still there is no liability on the part of the State, for the reason that the doctrine of respondeat superior does not apply to the State, and that therefore the Respondent is not liable in this case.

The claimant admits that there is no liability under the doctrine of respondeat superior, but claims the right to an award on the ground of equity and good conscience.

The right of this court to make an award in any case on the ground of equity and good conscience was fully considered in the case of Crabtree vs. State, 7 C. C. R. 207, as well as in the case of Morrissey vs. State, No. 2233, decided at the January Term, 1934, of this court. In those cases we held in substance 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 payi the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

The same conclusion was reached by this court in numerous previous cases. See Schmidt vs. State, 1 C. C. R. 76; Jorgenson vs. State, 2 C. C. R. 134; Ryan vs. State, 4 C. C. R. 57; Watkins vs. State, 6 C. C. R. 172; Mercer vs. State, 6 C. C. R. 20; Peterson vs. State, 6 C. C. R. 77; Perry vs. State, 6 C. C. R. 81.

We appreciate that the rule above announced has not always been adhered to by this court, but we are convinced that it is the correct rule of law, and feel that we have no right to depart from the same.

The claimant has not established a case in which he would be entitled to redress against the State if it were suable, and therefore we have no authority to allow an award.

It is Therefore Ordered that an award be denied and that the case be dismissed.


text:
    (No. 1540
    Rossia Insurance Company of America, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Gillespie, Burke & Gillespie, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is a non-resident corporation licensed to do business in this State, and seeks to recover the sum of One Thousand Eighty-one Dollars and Sixty-eight Cents ($1,081.68) which it claims to have erroneously paid on account of privilege tax for the year 1927, as well as the sum of One Hundred Thirty-five Dollars and Twenty-one Cents ($135.21) which it claims to have erroneously paid on account of fire marshal tax for said year.

The facts are not in dispute, and from the stipulation on file it appears that claimant reported in its privilege tax return for the year 1927 that it had received reinsurance premiums from the Firemen’s Fund Insurance Company in the amount of Ninety-four Thousand Three Hundred Eighty-four Dollars and Fifteen Cents ($94,384.15), whereas, in fact it actually received reinsurance premiums from said Firemen’s Fund Insurance Company in the amount of Forty Thousand Two Hundred Ninety-nine Dollars and Eighty-nine Cents ($40,299.89), a difference of Fifty-four Thousand Eighty-four Dollars and Twenty-six Cents ($54,024.26), upon which last amount claimant paid a privilege tax of two per cent, to-wit, $1,081.68, and a fire marshal tax of one-fourth of one per cent, to-wit, One Hundred Thirty-five Dollars and Twenty-one Cents ($135.21); and which said amounts it now asks be refunded to it.

It also appears that the Firemen’s Fund Insurance Co. reported in its privilege tax return for the year 1927 that it had paid to the claimant on account of reinsurance premiums the sum of Forty Thousand Two Hundred Ninety-nine Dollars and Eighty-nine Cents ($40,299.89), which return verifies the claim of the claimant herein as to the amount of reinsurance premiums received by it.

It is stipulated that the amount reported by the claimant in its privilege tax return as aforesaid, was in error, and that an overpayment of tax was made by it on its erroneous return, in the amount claimed.

The overpayment having been made as the result of a mistake of fact, and not a mistake of law, claimant is entitled to a refund of the amount so overpaid. Blomstrom vs. Dux, 175 Ill. 435-439; West Frankfort Bank and Trust Co. vs. Barretti, 206 Ill. App. 261; 48 Corpus Juris 759; 21 R. C. L. 164; Firemen’s Insurance Co. vs. State, 2 C. C. R. 220; Importers’ & Exporters’ Insurance Co. vs. State, 5 C. C. R. 1; Hoorman Mfg. Co. vs. State, No. 1886 (decided May, 1934).

An award is therefore hereby entered in favor of the claimant for the sum of Twelve Hundred Sixteen Dollars and Eighty-nine Cents ($1,216.89).


author: Mr. Chibe Justice Hoblerich

text:
    (Nos. 2294, 2308—Consolidated
    Dr. W. C. Runyon, No. 2294, St. Elizabeth’s Hospital, No. 2308, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Dr. W. C. Runyon, pro se; St. Elizabeth’s Hospital, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hoblerich

delivered the opinion of the court:

Both of the above cases arise out of the same transaction and therefore, by agreement of counsel for claimants and the Attorney General, the cases are consolidated for the purpose of consideration.

On July 29, 1930 one Lewis M. Amick was employed by the respondent as a carpenter at the Southern Illinois Penitentiary, and while working on building form work and removing a 4x4 timber from a wall form, he strained himself and sustained a strangulated hernia.

The Superintendent of Construction sent him to the claimant, St. Elizabeth’s Hospital, where he was operated by the claimant, Dr. W. C. Runyon. The doctor thereafter filed a claim for One Hundred Dollars ($100.00) for the services rendered by him, and the hospital filed a claim for Fifty-two Dollars ($52.00) for hospital services while said Amick remained at said hospital.

The Department of Public Welfare in a report regarding the matter, states that in its judgment the claims are fair and reasonable and that favorable action should be taken thereon. It appears from the evidence that at the time of the accident in question, the claimant and the respondent were operating under the terms and provisions of the Workmen’s Compensation Act of this State, and pursuant to the provisions of Section 8a of said Act, the Employer is required to provide the necessary first aid medical and surgical services and all necessary medical, surgical and hospital services "thereafter, limited only to that which is reasonably required to cure or relieve from the effects of the injury. There is nothing to indicate that either the medical, surgical or hospital services were not reasonably required to cure or relieve from the effects of the injury, and the claims should therefore be allowed.

An award is therefore hereby entered in favor of the claimant, Dr. W. C. Bunyon, for the sum of One Hundred Dollars ($100.00); and

An award is also hereby entered in favor of the claimant, St. Elizabeth’s Hospital, for the sum of Fifty-two Dollars ($52.00).


author: Mb. Chief Justice Hollebich

text:
    (No. 1876
    Sarah Rutledge, Administratrix of the Estate of Willis Wells, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Manuel E. Wiseman and Leigh M. Kagy, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Oh December 5, 1930, Willis Wells, claimant’s intestate, was committed to the Alton State Hospital at Alton, Illinois, and was classified on the records as “General paralysis, of the insane cerebral type, commonly called ‘paresis’.” Wells was assigned to different work around the institution and on February 9, 1931, in company with about twelve others, was assigned to the work of cleaning down the walls and large iron beams on the second floor of the power house. Wells was a large man, about six feet, four inches tall, and weighed about Two Hundred Eighty (280) pounds. In the course of his work he fell through a piece of defective flooring, and sustained injuries from which he died shortly thereafter. He left him surviving no widow and no child or children, and no descendant or descendants of any deceased child or children, but left him surviving the claimant, Sarah Rutledge, and Katie Wells Martin, his sisters, and James Wells, his brother, as his sole and only heirs at law and next of kin.

Sarah Rutledge was thereafter duly appointed Administratrix of the estate of said descedent by the County Court of Madison County, and qualified as such.

Claimant avers that at and prior to his death, Willis Wells was contributing to the support of Sarah Rutledge, his widowed sister, and her family consisting of her son James, aged 17, and her daughter Lovey Rutledge Fleming, aged 20, and seeks to recover damages for the pecuniary loss sustained by the next of kin of said decedent, as the result of his death.

Decedent left no lineal heirs, and there is nothing in the record to show that he was contributing anything whatsoever to the support of any of his heirs at or just prior to the time of his death. He had contributed to the support of his sister, Sarah Rutledge, prior to the time he was committed to the Illinois State Hospital, which was on December 5, 1930, and there is nothing in the record to show a contribution to any of his heirs since that date, nor does the record show that he owned any property whatsoever out of which he could have made a contribution had he desired to do so, nor does the evidence show that there was any reasonable probability that he would ever again be in condition to be released from the institution and earn any money out of which he could contribute to the support of his relatives in the future.

Furthermore, under the well-established law of this State, the State is not legally or equitably liable to the claimant in this case. In the conduct of its charitable institutions the State exercises a governmental function and is not liable for the neglect of its official agents or employees in connection therewith, for the reason that the doctrine of respondeat superior does not apply to the State in the exercise of its governmental functions. This is admitted by counsel for claimant in their reply brief, but they ask that an award be made on the ground of equity and good conscience.

The authority of this court to allow an award in any case solely on the ground of equity and good conscience was thoroughly considered by this court in a number of recent cases. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term of this court.

In the Crabtree case the authorities on the question, from the time of the establishment of the court down to the time of the decision, were carefully considered and reviewed, and after such review, the court reached the following conclusion:

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: “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”; merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award; he cannot invoke the principles of equity and good conscience to secure such an award.”

What we said in the Crabtree case applies with equal force in this case. The claimant herein having failed to bring herself within the provisions of some law entitling her to an award, there is nothing this court can do but deny the claim.

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


text:
    (No. 2100
    St. Louis Cotton Compress Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Lewis, Bice, Tucker, Allen & Chubb, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney,General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover the sum of One Hundred Seventy-eight Dollars and Sixty-six Cents ($178.66) which it claims to have paid to the State of Illinois as initial fees on increases of capital stock, in excess of the amount it was legally required to pay.

Claimant is a foreign corporation, and upon obtaining authority to do business in Illinois, to-wit, on February 24, 1925, designated the sum of Three Hundred Fifty-five Thousand Eight Hundred Fifteen Dollars ($355,815.00) of its capital stock as estimated to be employed in Illinois. Thereafter claimant increased its capital employed in this State as follows:

$58,020.00 on June 5, 1929; $299,310.00 on May 29, 1930; and $241,290.00 on June 13, 1932.

Claimant was assessed and paid the initial franchise tax on the increase dated June 5, 1929, in the correct amount, to-wit, Twenty-nine Dollars and One Cent ($29.01).

In computing the initial franchise tax on the increase dated May 9, 1930, the respondent erroneously included an initial franchise tax on the increase of June 5, 1929, in the amount of Twenty-nine Dollars and One Cent ($29.01), which amount was paid by claimant.

In computing the initial franchise tax on the increase dated June 13, 1932, the respondent erroneously included an initial franchise tax on the increase made on June 5, 1929, as well as that made on May 29, 1930, to-wit, the total amount of One Hundred Forty-nine Dollars and Sixty-three Cents ($149.63), which amount was paid by claimant.

The total amount erroneously assessed by the respondent as aforesaid, and paid by the claimant, is One Hundred Seventy-eight Dollars and Sixty-six Cents ($178.66).

There is no dispute as to the facts, and no question but what the claimant was compelled to pay $178.66 in excess of what it was legally required to pay, nor is there any question but what the over-assessments in question resulted from errors on the part of the respondent.

The excess payments made by the claimant having been made as the result of a mistake of fact, the claimant is entitled to an award for the amount of the excess so paid by it. Blomstrom vs. Dux, 175 Ill. 435-439; West Frankfort Bank and Trust Co. vs. Barretti, 206 Ill. App. 261; 48 Corpus Juris 759; 21 R. C. L. 164; Firemen’s Instorance Co. vs. State, 2 C. C. R. 220; Importers’ & Exporters’ Insurance Co. vs. State, 5 C. C. R. 1; Moorman Mfg. vs. State, No. 1886 (decided May, 1934).

An award is therefore hereby entered in favor of the claimant for the sum of One Hundred Seventy-eight Dollars and Sixty-six Cents ($178.66).


author: Mr. Chief Justice Hollerioh

text:
    (No. 2290
    Shell Petroleum Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Cyrus S. Gentry and William W. Yeager, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Claimant seeks to recover the sum of Fifty-eight Dollars . and Thirty Cents ($58.30) for oil sold to the respondent and delivered at the Vandalia State Farm on January 14, 1933.

The superintendent of the institution admits that the oil was received in good condition, and states that the invoices were never vouchered. It is stipulated that the amount due is Fifty-eight Dollars and Thirty Cents ($58.30), and an award is therefore entered in favor of the claimant for that amount.


text:
    (No. 2392
    Orilla Lorraine Thomas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Orilla Lorraine Thomas, pro se.
    Otto Keener, Attorney G-eneral; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant as next kin of Earl Forrest Thomas, filed her claim herein on June 6,1934, and seeks to recover the sum of Three Hundred Dollars ($300.00), under the provisions of the Bonus Act of this State, approved May 3, 1921, and an Act to Provide Payment to Beneficiaries, approved June 19, 1925.

It appears that Earl Forrest Thomas was a World War veteran; that he made application for his bonus under the Illinois Bonus Law; that his application was approved and a warrant in the amount of Three Hundred Dollars ($300.00) issued to him; that such veteran died before he received or endorsed such warrant; that such warrant was never returned and is shown on the records in the office of the Adjutant General as “outstanding’7; that on January 6, 1933, the claimant herein filed a supplementary claim as next of kin of the deceased veteran, which claim was approved by the Adjutant General on September 25, 1933; that on such date there was no fund from which the State Treasurer could lawfully pay the claim, as the appropriation previously made for the payment of such claims lapsed on September 30, 1929.

Under the facts in the record, there is no question as to the right of the claimant to recover the amount claimed, and an award is therefore entered in favor of the claimant for the sum of Three Hundred Dollars ($300.00).


text:
    (No. 2193
    Steven Urech, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Walter J. Fried, for claimant.
    Otto Kerner, Attorney Greneral; John Kasserman, Assistant Attorney Greneral, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On June 10, 1931, claimant was awarded a contract for the construction of a three-span girder bridge on S. B. I. Route No. 51, for the sum of Twenty-five Thousand Seven Hundred Sixty-nine Dollars and Eighty-three Cents ($25,-769.83). The improvement was officially known as Federal Aid Project No. 140, Section No. 511 V-B, Cook County, and was to be completed by August 15, 1931. The contract provided, among other things, that the ‘ ‘ Standard Specifications for Road and Bridge Construction” adopted by the Department of Public Works and Buildings on February 1, 1930, should be an essential document of such contract, and a part thereof.

Claimant asked for and received an extension of time to January 1,1932, for the completion of his contract. The work was completed within the time limit as so extended, and final payment was received by claimant on January 1, 1932.

Claimant contends that he was delayed in starting work on account of the fact that one Dan Longo, who had the contract for the grading work, did not get out of his way until August 18th, three days after the time originally set for the completion of the work; also that he was delayed two weeks on account of a change in the plans made by the State Engineer relative to the footings of the west embankment; and further contends that on account of the fact that he was unable to commence work until August 18th, whereas he should have had the contract completed by August 15th, he was compelled to work during colder weather than he anticipated when he entered into the contract, and was thereby required to pay out and expend the sum of Three Hundred Sixty-one Dollars and Twenty-six Cents ($361.26), for labor, insurance, hot water, coke, salamanders, straw, etc., which he would not have been required to pay, had he not been delayed as aforesaid, and asks to be reimbursed in that amount.

The Attorney G-eneral contends that the claimant is not entitled to an award, and relies on the terms and provisions of the contract, as well as Section nineteen (19) of Article four (4) of the Constitution.

The Standard Specifications for Road and Bridge Construction which are a part of the contract provide (in part) as follows:

“The acceptance by the contractor of the last payment as aforesaid shall operate as and shall be a release to the department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act or neglect of said department relating to or connected with this contract.”

Section nineteen (19) of Article four (4) of the Constitution provides as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void; Provided, the General Assembly may make appropriations for expenditures ®

There is nothing in the contract between the claimant and the respondent which makes any reference to the work being done by the grading contractor, Dan Longo, nor is there anything in such contract which gives the claimant herein any rights superior to those of said Longo.

The evidence shows that at the time the contract between the claimant and respondent was signed, to-wit, June 27,1931, Longo was still working on his contract, and claimant had knowledge of that fact. If claimant wished to protect himself against delays on the part of the grading contractor, he should have insisted on a provision in the contract giving such protection; having failed to do so, he cannot at this time recover extra compensation under the contract. Furthermore, under the aforementioned provisions of the contract, the acceptance of the final payment by the claimant constituted a release of the respondent from all claims under the contract.

Considering the terms and provisions of the contract in question, and the constitutional provision above referred to, we would not be justified in allowing an award upon the record before us.

Award is therefore denied and the case dismissed.


text:
    (No. 2033
    Alva E. Vail, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

      Rehearing denied November 13, 1934.

    Babb & Babb, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This claim was filed in this court on December 23, 1932.. Plaintiff alleges that on September 19, 1929, he was injured while employed as a carpenter by the State of Illinois in the-Division of Waterways of the Department of Purchases and Construction, in connection with the construction of a dam near Joliet. That such injury occurred while he was cutting down a wooden form that had been constructed for the pouring of concrete, by falling a distance of about twelve feet, striking his right heel on a Y-bolt and thereby sustaining a fracture of the heel bone. It is admitted that the injury sustained arose out of and in the course of his employment.

Plaintiff claims relief by virtue of the provisions of the Illinois Waterway Act, Cahill’s Illinois Revised Statutes, 1933, Chap. 19, and by the provisions of the Workmen’s Compensation Act, in the amount of Five Thousand Dollars ($5,000.00).

The Attorney General has filed his motion to dismiss the claim for the reason that no claim for compensation is shown to have been made within six months after the accident in question, and for the further reason that the application for compensation was not filed within one year of the date of the injury or after the last payment of compensation, as required by Section 24 of the Workmen’s Compensation Act. The plaintiff in his reply brief contends that the claim is filed for compensation .under Section 25 of “An Act in relation to the constructing, operation and maintenance of a deep waterway from the power plant of the Sanitary District of the City of Chicago at or near Lockport, to a point in the Illinois River at or near Utica, and for the development and utilization of the water power thereof,” approved June 17, 1919, Laws of 1919, page 977; further that sub-section 6 of Section 6 of the Act creating the Court of Claims, which is as follows:

“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”,

does not adopt the provisions of the Workmen’s Compensation Act and that Section 10 of the Court of Claims Act providing a limitation period of five years within which to file claims applies to compensation claims by employees, notwithstanding the limitations contained in Section 24 of the Workmen’s Compensation Act.

The plaintiff further contends that regardless of whether the above contention is maintainable, that the limitations of Section 24 of the Workmen’s Compensation Act should not be held applicable to this claim, inasmuch as such claim arises out of and is filed under the provisions of Section 25 of the Illinois Waterway Act, which section provides as follows:

“In case the Department of Public Works and Buildings shall construct such waterway or its appurtenances, or any part or parts thereof by the direct employment of services, labor, materials and equipment, the State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be ascertained by reference to the provisions of the Act commonly called the ‘Workmen’s Compensation Act’. The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder, and shall make and file its finding and determination in each case.”

Plaintiff contends that the Legislature has seen fit, by the foregoing, to provide that the Workmen’s Compensation Act shall be referred to by the Court of Claims only for the purpose of ascertaining the amount of the award.

Claimant further contends that regardless of the construction of these sections, an award should be made in this case under the rule of equity and g’ood conscience. This contention and the first contention (that the limitation requirements in Section 24 of the Workmen’s Compensation Act do not apply to claims made by employees of the State, as determined in this court), are fully dealt with in the case of Crabtree vs. State of Illinois, 7 C. C. R. 207, wherein it is held that the requirements of Section 24 of the Workmen’s Compensation Act relative to claims for compensation by employees of the State, and the time within which notices must be given and applica-. tion must be filed, are conditions precedent to the right of recovery under that Act. Further,

“The Act discloses no intention to create against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized, existing liabilities can be adjudicated; 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 in law or in equity, if the State were suable; that unless the claimant can bring himself within the provisions of a law, giving him the right to an award, he can not invoke the principle of equity and good conscience to secure such an award.”

We reaffirm the ruling’ announced in the Crabtree case, as applicable to this case.

The court cannot concur in the further contention of plaintiff that the limitations of Section 24 of the Workmen’s Compensation Act do not apply to this claim by reason of the fact that claimant was employed in the construction of the Illinois Waterway system and that by the terms of the later Act (Section 25, Paragraph 115, Chap. 19, Cahill’s Illinois Revised Statutes, 1933), that the Workmen’s Compensation Act shall be referred to by the Court of Claims only for the purpose of ascertaining the amount of the award.

The Illinois Waterway Act was passed, and approved June 17,1919. Prior to the time of its passage the Legislature had already provided for the hearing of all claims by this court against the State of Illinois. By Section 23 of the Waterway Act, the liability of the State for damages to real estate or personal property by reason of the construction, maintenance or operation of the Illinois Waterway and its appurtenances was made specific. By Section 24 all claims for damages to property or persons other than employees of the State were made determinable by the Department of Public Works and Buildings. It was apparently the desire of the Legislature to make clear its intention that claims for damages by employees engaged in the waterway project should be left in the forum of this court for determination. It is provided in said Section 25, that

“The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder.”

There is nothing contained in the wording of said section or any where in the Waterway Act which indicates that the court in exercising such jurisdiction should give to employees of the Illinois Waterway any different consideration in regard to the requirements of notice and filing* claim and other provisions of the Workmen’s Compensation Act than those applied to all other employees.

There is no conflict between the Court of Claims Act, the Workmen’s Compensation Act and the Waterway Act, and the only question is as to whether there is any wording contained in said Section 25 of the Waterway Act which would indicate that a different rule should be applied by the Court of Claims in passing* upon claims for compensation made thereunder than is applied to other claims.

The legislative Act by which this court exists, provides that

“The Court of Claims shall hear and determine the liability of the State for accidental injuries or death * * * by any employee; further that such determination shall be made in accordance with the rules * * * of the Workmen’s Compensation Act.”

Section 6 Court of Claims Act.

There is nothing in Section 25 of the Waterway Act that repeals, adds to or modifies this enactment. It is provided in Section 25 that,

“The amount of such liability shall be ascertained by the Court of Claims by reference to the provisions of * * * the Workmen’s Compensation Act.”

but one cannot read into that language any intent to repeal or modify the existing law under which the Court of Claims hears compensation cases. .

It appears from the record herein that no claim for compensation was made within six months after the accident and that no application for compensation was filed in this court within one year after such accident. Under the provisions of the Waterway Act, this court is to find the amount due the claimant. The court finds that there is no amount due, because of a failure of the injured employee to bring himself within the classification for the allowance of an award, by reason of his failure to comply with the provisions of Section 24 of the Workmen’s Compensation Act.

Claim dismissed.

I dissent for the reasons set forth in the case of Kump vs. State of Illinois, No. 1881, (ante).

C. N. Hollerich, Chief Justice.


text:
    (No. 2351
    C. J. Allerton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Frederick R. Nyberg, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On the 12th day of February, A. D. 1933, certain employees of the respondent were operating a snow plow in a southerly direction on S. B. I. Route No. 1 at a point about ten (10) miles north of Danville, Illinois. At the same time, the claimant was driving his Studebaker automobile in the same direction. Claimant avers in his complaint that the snow plow stopped suddenly and without warning to him, at a time when he was close thereto, and that as the result thereof, and by reason of the negligence of the employees of the State in the operation of said snow plow, his automobile collided with said snow plow and was damaged in the amount of $51.75.

The Attorney General has entered a motion to dismiss the case for the reason that there is no legal liability on the part of the State under the facts set forth in the complaint.

The motion of the Attorney General is based upon the rule that the State is not liable under the doctrine of respond-eat superior for the negligence of its servants and agents. That rule has been stated so often in the decisions of this court, as well as in the decision of other courts of this State, that citations seem superfluous.

There being no legal liability on the part of the State if the State were suable, this court is without jurisdiction to enter an award. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934 of this court.

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


author: Mb. Chief Justice Hollerich

text:
    (No. 2401
    Anna State Hospital Commissary, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Anna State Hospital Commissary, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered .the opinion of the court:

Claimant paid the sum of Twelve Dollars and Forty Cents ($12.40) for retailers’ occupational tax for the months of August and September, 1933, and has filed its claim herein to recover the amount so paid, and alleges that it is not subject to such tax, and that the same was paid by mistake.

It appears that the sales of merchandise were made by the Commissary of Anna State Hospital; that the capital employed is Inmate Trust Fund moneys; and that the profit derived from the sales is used exclusively for the amusement of the patients at the Institution.

The Department of Finance admits that the claimant was not subject to the tax when the same was collected. The tax having been paid under a mutual mistake of fact, the amount paid will be refunded.

Award is therefore entered in favor of the claimant for the sum of Twelve Dollars and Forty Cents ($12.40).


text:
    (No. 1807
    Elsie Baumgart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Scott W. Lucas, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover damages for injuries which she sustained on July 12, 1930, near Delavan Junction in Tazewell County. Just prior to the time of the accident in question, claimant was riding in an automobile in a northerly-direction on S. B. I. Route No. 24. The automobile in which she was riding struck a hole in the pavement and was overturned, whereby the claimant avers that she sustained serious and permanent injuries, and her automobile was seriously damaged.

Claimant avers that it was the duty of the respondent to maintain said highway in good condition and repair, but that the respondent disregarded its duty in that behalf; that the respondent had notice or knowledge of such hole in the pavement, and that the claimant and the driver of the car in which she was riding were in the exercise of due care and caution at the time of the accident.

Claimant’s right to an award is based upon the negligence of the respondent in maintaining said highway in a good and safe condition. Such negligence, however, does not give claimant the right to an award. This court has held in numerous cases that in the maintenance of its hard-surfaced roads, the State is exercising a governmental function. Chumbler vs. State, 6 C. C. R. 138; Stoddard et al vs. State, 6 C. C. R. 27; Bucholz et al. vs. State, 7 C. C. R. 241.

The law is well established that in the exercise of its governmental functions there is no liability on the part of the State for the negligence of its servants or agents. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Morrissey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77.

There being no liability on the part of the State if it were suable, this court has no jurisdiction to allow an award. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

Award must therefore be denied and the case dismissed.


text:
    (No. 2209
    Carl Bender, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Harold C. Sewell and Alexander J. Strom, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Under a stipulation filed in this cause, it appears that on or about August 28, 1932, claimant was employed by the State of Illinois as a repair and maintenance man on State Highway No. 5, at a point about five miles west of Belvidere, and that he was receiving compensation at the rate of Thirty Dollars ($30.00) per week; that while wheeling a wheelbarrow full of cement from the cement mixer to the road, he struck a projection, causing him to fall, twisting his left leg and knee and being struck by the handle of the wheelbarrow, resulting in laceration of the ligaments of the knee; that immediately after the injury, the knee was placed in a cast; that claimant was compelled to use crutches and unable to do any work and temporarily and totally disabled for a period of approximately five months; further, that claimant was employed only a part of the working days in the year (about 50%), and the compensation would be determined under Section 10 E of the Compensation Act; that claimant is the father of and supporting four children, all under the age of sixteen years; that claimant, under Paragraph 145, Section J, would receive $14.00 per week by virtue of having four children at the age stated, for a period of twenty (20) weeks, or a total of Two Hundred Eighty Dollars ($280.00).

Under this stipulation, no disagreement as to facts exists. Claimant was an employee of the State; was injured while engaged in and in the course of his employment, and such employment was within the purview of the Workmen’s Compensation Act. The only question, therefore, is a determination of the amount of an award that should be allowed.

Under the stipulation of facts and the statutory provisions applying in such case, an award on a basis of $14.00 per week for a period of twenty (20) weeks, or a total of Two Hundred Eighty Dollars ($280.00), is hereby allowed.


text:
    (No. 1980
    Samuel M. Childress, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    William Gf. Thon, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The claim in question was filed September 7, 1932. Claimant seeks to recover damages and personal injuries received about 10 o’clock p. m., on July 4, 1931, in a collision occurring approximately two miles from Rantoul, Illinois, on State Bond Issue Route No. 25, between an automobile owned and driven by the son of claimant, in which claimant was a passenger, and an automobile owned by the State of Illinois and then and there driven by one Sergeant Roth of the State Highway Police, Division of Highways, Department of Public Works and Buildings of the State of Illinois. The undisputed proof shows that the two cars were travelling in opposite directions, and that Sergeant Roth had been drinking and was to some degree intoxicated at the time; that the claimant was injured and suffered damages both in medical treatment and loss of time during his recovery. The only evidence other than claimant’s testimony and that of his son, John Childress, in regard to Sergeant Roth’s condition or responsibility for the accident in question is the statement contained in his report to Walter L. Moody, Superintendent of State Police, under date of September 22, 1932, as found in the files of the Division of Highways of the State, wherein Sergeant Roth states, “I do not feel that I was responsible for the accident any more than the driver of their car was. * * * To the best of my belief, I was driving my car between forty-five and fifty miles per hour.”

Neither the pleadings nor the facts in evidence, however, show any legal liability on the part of the State in this case. If the driver of the State owned car, Sergeant Roth, was guilty of negligence and such negligence was the proximate cause of the accident and the injury complained of, without contributory negligence upon the part of the driver of the Childress car, claimant has a cause of action against the one whose negligence caused the injury, but. there is no legal liability upon the part of the State from the mere fact that the State owned the car which was being driven by the State employee. There is no evidence in the record that the driver of the State owned car was engaged in the performance of his duty as an employee of the State at the time the injury occurred, and the burden of making such proof was upon the claimant. But even if such proof had been made, the State would not be liable, for it has long been the settled law of this State, as declared by our Supreme Court and by repeated decisions of this court, that the State is not liable for injuries complained of by reason of the malfeasance, misfeasance or negligence of its officers or agents in the exercise of its governmental functions, in the absence of a Statute creating such liability. Minear vs. State Board of Agriculture, 259 Ill. 549. Morrissey vs. State of Illinois, 2 C. of C. R. 254. Johnson vs. State of Illinois, 2 C. of C. R. 165.

In the absence of a Statute making the State liable for damages caused by the negligence of the police officers in the performance of their duties, this court has no power or authority to legally make an award for such damages. The claim is denied and cause dismissed.


text:
    (No. 2325
    H. Clay Duke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Gariepy & Gariepy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed his complaint herein on February 14, 1934, and seeks to recover compensation for injuries which he claims to have sustained on October 17, 1932, while in the employ of the respondent,- — as the result of which said injuries he lost the hearing of his right ear.

The Attorney General has entered a motion to dismiss the case for the reason that claim for compensation was not made within six months after the accident, and application for compensation was not filed within one year after the date of the injury, or within one year after the last payment of compensation, as required by Section Twenty-four (24) of the Compensation Act.

The question here involved was considered by this court in the case of Crabtree vs. State, 7 C. C. R. 207, and we there held that the jurisdiction of this court with reference to claims for compensation for accidental injuries or death suffered in the course of employment by any employee of the State, is the same as that possessed by the Industrial Commission in claims of other persons whose rights must be determined by the Compensation Act; and, further, that the provisions of Section twenty-four (24) of the Compensation Act apply with equal force to the State and to other employers named in the Act, and also apply with equal force to the employees of the State and to other employees named in the Act.

The Supreme Court has held in numerous cases that the making of claim for compensation and the filing of application for compensation within the time required by the Statute, are jurisdictional, and are conditions precedent to the right to maintain a proceeding under the Compensation Act. City of Rochelle vs. Ind. Com., 332 Ill. 386; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262.

There is nothing in the record to show that claim for compensation was made, or application for compensation was filed, within the time required by Section twenty-four (24) of the Compensation Act, and this court is therefore without jurisdiction to proceed with the hearing.

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


author: Mr. Justice Tantis

text:
    (No. 2042
    Fraser-Smith Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Fraser-Smith Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks to recover for the account of the Farmers Co-op. Elevator Company of Luther, Iowa, for alleged negligence on the part of a grain inspector at Chicago, for delay in delivering an inspection report on a car of corn. The complaint alleges that the car was bought from the Farmers Co-op. Elevator Company July 27, 1931, at 57c delivered to Chicago with inspection at latter point to be by July 31st; that the car arrived in Chicago and was inspected on July 31st before 11:00 a. m., in time to have been handled in the Board of Trade before the close of the session and before the expiration of July contracts, but that through error, the sample, taken by the inspector in the Division of Grain Inspection, Department of Trade and Commerce, was delivered to the Grain Stabilization Corporation and was not discovered until after the close of the Board of Trade; that due to the fact that delivery by the. railroad of the car in question was made before July 31st, the railroad cannot be held responsible for the delay; that claimant’s agent was compelled to buy a car to fill July contracts at the cash market for No. 2 yellow corn, which was 71%c Chicago, making a loss to the shipper of 14%c per bushel; that the delayed car was sold on the open market on August 1st at 62c net; that the actual loss was 9%c per bushel, or $125.12.

Respondent has filed a motion to dismiss the claim on the ground that the declaration not only fails to show that the Grain Inspector in question had ever been notified prior to the inspection, by claimant or anyone else, to whom the report of inspection should have been delivered, and further for the reason that the respondent could not in any event be liable for any purported negligence upon the part of such employee.

The complaint alleges that the Beach-Wickham Company was the consignee of the car in question, but there is nothing in the complaint disclosing any instructions or notice to the Inspector or the Grain Department in regard to the car in question. Regardless of this, however, the objection by the Attorney General that respondent could not be liable for any purported error or negligence upon the part of the employee is correct.

This court is committed to the rule that the State is not liable for the negligence of its agents or employees unless there is a Statute making it liable. There is no Statute making the State liable in a claim of this character, and unless the claimant can show the existence of a Statute creating such liability, the State, under the rule of respondeat superior would not be liable, and this court is without proper authority to make an award.

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

Mercer vs. State, 6 C. C. R. 20.

The motion of the Attorney General to dismiss the claim is allowed. Case dismissed.


text:
    (No. 1835
    Ernst H. Helmle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Ernst H. Helmle, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant alleges in his complaint that during the month of June, 1931, he was in the employ of the Department of Public Welfare as a reimbursing inspector, and for that month had been assigned to the Lincoln State School and Colony; that his headquarters were at Springfield and in the regular course of his duties he returned to Springfield each week-end and left for Lincoln again on the next Monday morning; that he was required to purchase railroad tickets, expend money for taxi fare and also occasionally for meals when the trains were late and it was impossible to obtain his meals at the institution; that he so paid for railroad transportation $6.80; meals, $1.85; taxi and street-car fare, $2.65; making a total of $11.60, which he asks be refunded to him.

The complaint further states that claimant failed to present his expense account through the proper channel of the Department of Public Welfare until the month of October, 1931, at which time the appropriation had lapsed and payment could not be made.

The Attorney General has entered a motion to dismiss for the reason that there is nothing in the complaint to show that the claimant was entitled to have his expenses paid by the State. The complaint contains no allegations with reference to the salary or compensation of the claimant, and fails to set forth any facts showing that he is entitled to his expenses in addition to his salary; in short, it contains no averments whatsoever showing his right to have his expenses paid by the State.

Under the present state of the record, the motion of the Attorney General must be sustained and the case dismissed.

Case dismissed.


author: Mr. Justice Yantis

text:
    (No. 1909
    Mary Agnes Jefferson, Administratrix of the Estate of Ressie Banks, alias Jesse Banks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1934.

    Adams & Baker, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks to recover for the death of Jesse Banks, a feeble minded person, while an inmate of the Chicago State Hospital, alleged to be operated by respondent. Claimant avers that said Jesse Banks was properly and duly committed to said institution and had been treated for a long time therein as a mental defective, and that it was the duty of the State to furnish reasonable and proper guards to prevent the escape of any inmate and to furnish skillful physicians, surgeons and medical attendants for same; that on the 7th day of June, 1930, said Jesse Banks was not mentally capable of caring for himself and was in the care and custody of the employees of respondent, that he was negligently permitted to walk out of the institution onto the public streets and highways ;, that in so doing, he approached a citizen upon the streets and was mistaken for a person with criminal intent and was shot and killed by some person on the streets; that plaintiff was put to a large amount of funeral expenses and has been deprived of the company, association and friendship of said inmate, for all of which she seeks an award in the sum of $10,000.00.

The Attorney General has filed a motion to dismiss the claim for the reason (1) that the Statute giving a right of -action for wrongful death requires that suit be brought within one year thereafter and that in this case the death occurred June 7, 1930, and the claim was not filed until June 7, 1932 ; (2) that the Statute gives a right of action only for the benefit of the widow and next of kin and the declaration herein makes no mention of any widow or next of kin or basis of legal right existing in claimant; (3) that the claim is incomplete in that it does not conform to rule eight of the Court of Claims, which requests an Administrator to file with his claim an authenticated copy of the record of his appointment as Administrator.

The objections raised by the Attorney General are well founded.

In the absence of a Statute, the State is not liable for injuries claimed to have been sustained as the result of negligence of its employees.

Minear vs. State Board, etc., 259 Ill. 549.

In the conduct of a charitable institution, the State exercises a governmental function, and is not liable to respondent in damages for the negligence of its officers, agents or employees, and the doctrine of respondeat superior does not apply.

Sturrock, Admrs. vs. State, 7 C. C. R. 157.

The further objection by the Attorney General that the claim has not been filed within one year after the death of Jesse Banks raises a further bar to the allowance of any claim.

Sections 1 and 2, Chapter 70, Cahill’s Illinois Revised Statutes, 1933.

The complaint is further objectionable in that it fails to show that said action is brought for the benefit of those for whom such remedies could be legally sought.

The motion to dismiss is allowed.

Claim dismissed.