author: Mr. Justice Linscott

text:
    (No. 1937
    The Strandberg Brothers Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.
    Rathje, Wesemann, Hinckley & Barnard, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed its declaration in this case on June 29, 1932, averring that on June 20, 1931, the claimant entered into a written contract with the State. The declaration consisted of two counts. They filed a bill of particulars to each count. In the bill o'f particulars, first count, it is shown that the sum of $27,701.75 is due the claimant, and in the second count it is shown that the sum of $25,893.64 is due the claimant. The contract called for the building of one reinforced concrete girder bridge on State Bond Issue Route No. 54, Section 544-H in Du Page County. The bill avers that shortly after the contract was signed the claimant immediately prepared to assemble its materials for use at the site of the contemplated bridge, and commenced work; that prior to the execution of the contract, June 20, 1931, the State of Illinois did eliminate from the plans and specifications, Sections ten (10) and eleven (11), being approach walls, and did later oii, in the month of July, further eliminate Sections seven (7), eight (8) and nine (9) being also approach walls. The declaration admits that such elimination was within the right of the defendant, and that there then remained to be done under said contract the construction of concrete walls, etc. in Sections six (6), five (5), four (4), three (3), two (2) and one (1), also the construction of the north abutment to the bridge. span, the construction of the north girder span, the center girder span and the south girder span and the south abutment to the south girder span and the two piers. It also avers that it was agreed that the construction of said work should begin at the north end of the proposed improvement which was Section six (6), the whole project having been let out in sections, and that a Schedule of Progress was made and that the claimant was by virtue thereof required to organize and collect and concentrate his labor, machinery, materials, etc. so as to follow said plan of construction. There was furnished to claimant the Standard Specifications provided in the contract, the blue print specification of work, and the description of the site.

It is further averred that on July 6, 1931, the claimant was notified that due to right of way difficulties claimant could not proceed to do any work north of a point thirty-three (33) feet north of the center line of Route 4, until further notice; and this point was approximately thirty-three (33) feet north of the center line of the center bridge span in said plans and specifications; that the effect of this direction by the State was to prevent claimant from proceeding with said work from the north end of said work to the south end of the work as was agreed in said contract, and to prevent any work being done by claimant north of the north pier of the center bridge span; that the said right of way difficulties referred to was not and could not be chargeable to claimant. Without claimant’s knowledge, the State had failed to secure the right of way from a point approximately thirty-three (33) feet north of the center line of said center bridge span, and by reason thereof had failed to furnish the claimant the site upon which to build the bridge.

Strange as it may seem, the right of way for building this bridge was not secured until October 2, 1931. It, however, appears from the evidence that work progressed steadily right along through, under difficulties, in such a manner to cause the claimant much extra expense. The claimant was required to reverse and change and scatter the order of its work and to begin at the south end of its work and to proceed to do the remainder of the work in piecemeal fashion.

The evidence also shows that bad weather set in and there had been great delays and that the claimant was delayed through no fault of its own and was required to cover the work with straw, buy fuel, provide salamanders, etc.; that they were also required to keep open Route 4 which passed under the center bridge span, so that the trucks of the Areola Construction Company, who were doing other work at another place could go through.

Both sides of this controversy seem to have abandoned the original contract in so far as the manner in which the work was to be done and the date of the completion.

It is not denied that the failure to secure the right-of-way did work many hardships upon the claimant, and that the claimant was put to a great extra expense.

It further appears from the evidence that after the work had been constructed it became necessary to condemn a part of the right of way for this improvement. The right of way should have been obtained by the county authorities of Du-Page County, and the State Highway Department had assumed that they had obtained the right-of-way by proper and sufficient deeds. When the judgment in the condemnation proceedings was finally entered, the claimant loaned $3,000.00 to DuPage County to pay this judgment of $3,600.00. The claimant was afterwards reimbursed for this payment. Throughout the entire period that this improvement was under construction, the claimant’s conduct has been all that was desired.

The amount set forth in the original contract for the improvement was the sum of $60,969.73. The contract provides that the Standard Specifications for Road and Bridge Construction adopted by the Department of Highways on February 1, 1930 ‘ are all essential and a part hereof ’ ’. This is a book consisting of 328 pages and -a copy was forwarded to claimant. The claimant regularly furnished the State itemized weekly statements of the cost of “all force account work”, which included a copy of the weekly payroll and the original receipted bills for the materials used and the freight charges paid on the same. The Standard Specification also provided that all extra work done by force account should be paid as outlined on page 31, in the following manner:

(a) LABOR. For all labor teams, and foreman in direct charge of the specific work, the contractor shall receive the current local rate of wage for each hour that said labor teams, and foreman are actually engaged in such work, to which cost shall be added fifteen (15) per cent of the sum thereof. He shall also receive the cost of compensation insurance, to which cost no per cent shall be added.
(b) MATERIALS. The contractor shall receive the actual cost of materials, including freight charges as shown by the original receipted bills, to which shall be added fifteen (15) per cent of the sum thereof.
(c) EQUIPMENT. Por any machinery, trucks or equipment, including fuel and lubricants, which it may be deemed necessary or desirable to use, the contractor shall receive a reasonable rental price, to be agreed upon in writing before such work is begun, for each hour that said machinery and equipment is in use on such work, to which sum no per cent shall be added.
The compensation as herein provided shall be received by the contractor as payment in full for extra work done by force account and said fifteen (15) per cent shall cover profit, superintendence, general expense, overhead, bond, premiums, and the use of small tools and equipment for which no rental is allowed. The contractor shall, if so requested, present at the end of each day, his cost record to the engineer for examination and comparison.

In this stipulation it is agreed that the total net cost of this improvement was $68,414.46. This included compensation insurance and rentals for equipment used on the job.

Under the Standard Specifications which is a part of the contract no per cent shall be added as profit for compensation insurance, and the same is true on rental of the equipment. The claimant filed an itemized statement of his charges for this job and in accordance with this statement .the net cost of this job was $69,689.24. It is admitted that the State has paid to claimant $52,998.39, but the stipulation entered into fixes the total cost at $68,414.46. The itemized statement shows various sums paid for rental equipment, and the dates. There are many items in this itemized statement that are not explained and, therefore, are unintelligible to the court, but it appears that the Highway Department audited this statement, and it- appears that there was paid for rental equipment the sum of $6,432.50, and the further sum of $1,667.81 for compensation insurance. Inasmuch as no profit can be received by claimant upon the two last named items, these sums must be deducted from the sum of $68,414.46, the agreed net cost of the job.

The Attorney G-eneral very frankly admits that the State should be held liable, but that the measure of damages should be limited to the actual loss arising from and directly attributable to the delay caused by the respondent’s failure to furnish the right of way required, in apt time.

The State is liable for the actual damage sustained by a contractor arising from unreasonable delay caused solely by the State and not through fault of the contractor nor attributable to his failure in protecting himself from the effects of delays which might reasonably have been foreseen.

Powers-Thompson Constr. Co. vs. State, 5 C. C. R. 180.

Hoier vs. State, 6 C. C. R. 130.

Henkel Constr. Co. vs. State, 6 C. C. R. 222.

Carson vs. State, 6 C. C. R. 520.

Where a contract states no time for completion, and the government’s improper suspension of the work results in delays, so that the contractor could not complete within a-reasonable time, such action in effect amounts to a breach of the agreement and the government is liable for the actual damages sustained by the contractor.

Smith vs. U. S., 11 C. Cls. 707; Aff’d. 94 U. S. 214.

Rodgers, et al. vs. U. S., 48 C. Cls. 443.

Swift vs. U. S., 14 C. Cls. 208.

Figh vs. U. S., S. C. Cls. 319.

It has also been held that where the government delays throw work into the winter months involving the contractor in additional expense, he is entitled to recover the costs of the increased work.

O’Sullivan vs. U. S., 45 C. Cls. 143.

The Standard Specifications above quoted provided for fifteen (15) per cent profit for all labor teams, and foreman in direct charge of the specific work and actually engaged in the work, and a like sum on the actual cost of materials; that upon the equipment the contractor should receive a reasonable rental price but no per cent shall be added.

After deducting the cost of the rental equipment and insurance from the stipulated amount of the net cost of the improvement which was $68,414.46 there is left the sum of $60,314.15. To this, plaintiff is entitled to a 15% profit and this profit must cover all his overhead expenses. Adding 15% allowable, or the sum of $9,047.12, to the said sum of $60,314.15 makes the sum of $69,361.27, plus insurance and rental of $8,100.31, or $77,461.58. Upon this the State has paid the sum of $52,998.39, leaving a balance due the plaintiff of $24,463.19.

Claim is also made for interest. The contract did not provide for the payment of interest, and the evidence fails to show that any claim or demand was made for interest on the sum this court has found to be due; and it further appearing to the court that both sides practically abandoned the original contract. The amount allowed by the court never became an account stated. Therefore, no interest will be allowed.

An appropriation in the sum of Twenty-four Thousand Four Hundred Sixty-three Dollars and Nineteen Cents ($24,463.19) is recommended.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 1895
    Warner Construction Company, a Corporation, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

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

delivered the opinion of the court:

On November 3,1931, the claimant submitted its proposal to the Department of Purchases and Construction of the State of Illinois (hereinafter called “The Department”), for the doing of certain work in connection with a proposed addition to the Illinois Eye and Ear Infirmary at Chicago. Together with its hid, the claimant submitted its certified check for the sum of Three Thousand Dollars ($3,000.00), payable to the Department, in accordance with the requirements of the proposal submitted, the form of which said proposal was prepared by the Department of Purchases and Construction and required to be used by the several bidders in submitting their bids.

The provisions of such proposal which are involved in this case are as follows:

“The bidder agrees that the proceeds of such check shall become the property of the State of Illinois, if for any reason the bidder, after the opening of the bids withdraws, or if on notification within 20 days from the date of opening the bidder refuses to execute the contract and bond required in event of said contract being awarded.”

The proposals were opened on November 3, 1931. The evidence is undisputed and consists mostly of correspondence between claimant on the one hand and the Department of Purchases and Construction and the Division of Architecture and Engineering on the other. The substance of the essential parts of such correspondence, arranged in chronological order, is as follows:

On November 17, 1931, the claimant was notified by the department that it was “the apparent low bidder”, and that it should submit to the department at once the names of three surety companies, one of which would be selected by the department for the furnishing of claimant’s bond on the job; also that “preliminary to award of contract, it is now required that a bond, properly executed, be on file in this office. ’ ’

On November 19, 1931 claimant acknowledged the receipt of the letter of November 17th and submitted the name of Union Indemnity Company as surety company.

On December 3, 1931 claimant advised the department by special delivery letter, as follows:

“We are ready to sign contract and execute bond on this job. If the Union Indemnity Company is unsatisfactory, please let us have names of satisfactory companies and we will get in touch with them; as we have no connection with other surety companies.
“To date we have received no notice of contract having been awarded to us. Thirty days have passed since opening of bids. We respectfully request that you return our certified check.”

On December 9, 1931 the department wrote claimant as follows :

“I have been directed to notify you of the acceptance of your following proposals, opened on Tuesday, November 3, 1931, amounting to Eighty-eight Thousand Eight Hundred Forty-four Dollars ($88,844.00) * * "*
“A formal contract will follow incorporating your proposals and will be forwarded for your signature coincident with its execution by the Director of the Department of Purchases and Construction, who is authorized by law to enter into the above contract on behalf of the State.
“Pending receipt of the above contract, it is requested that this letter be taken as authority to proceed with the work.” etc. etc.

On the same day, to-wit, December 9, 1931, the department also notified claimant as follows:

“In another mail, I am advising you of the acceptance of your Proposal No. 1 * * * * * for the above project, and in order that the work be not delayed, I am approving the Union Indemnity Company as surety to furnish your bond.” etc. etc.

On the same day, to-wit, December 9, 1931 the claimant advised the department as follows:

“On November 3, 1931, we entered a bid for general work for the addition to the Eye and Ear Infirmary, Chicago, Ill. In view of contract not having been awarded, and or we not being - so notified within twenty days (20) of opening of bids, we request you return our certified check.”

On December 10, 1931, by letter mailed at 3:15 P. M., claimant notified the department as follows:

“Due to changed conditions since Nov. 3, 1931, date of entering our bid and twenty days thereafter, will say; it is our understanding, that we are privileged to decline the award of this contract, due to the conditions * * * * * under which proposal was made. We if such privilege is ours, as before stated in our letter of December 3rd, also letter of Dec. 9, 1931, do hereby elect to exercise same and ask for the return of our certified check.
“Kindly let us have your decision concerning the above as we otherwise are withholding action in connection with your correspondence dated Dec. 9, 1931, marked 37157, received today at 10 A. M., and also your letter of Dec. 9, 1931, received at the same time.”

On December 14, 1931 the department wrote claimant in reply to its letter of December 10th, and went over the situation quite fully and with particular reference to the proper construction of Paragraph Two (2) of the proposal sheet relative to the deposit of a certified check and the rights of the State and the claimant in connection therewith. Claimant was advised that the construction placed on said paragraph by said claimant, to wit, that claimant had the right to withdraw its bid and check if contract was not awarded within twenty (20) days after the opening of the bids, was incorrect, and that such paragraph could not be so construed; — also that the proper construction of such paragraph required claimant to notify the department within twenty (20) days from the date of the opening of the bids, if it desired to withdraw its bid. Such letter, in the concluding paragraph, stated as follows:

“In this connection, therefore, you have asked our decision regarding the return of your certified check, if you refuse to accept the contract. In view of the above, therefore, we advise that the proceeds of such check shall become the property of the State, if for any reason after the opening of the bids, you withdraw your proposal.”

On December 15, 1931 claimant made reply to the last mentioned letter and set forth its construction of said Paragraph Two (2), and concluded as follows:

“We not having been awarded the contract and or notified within twenty days to execute contract and bond; therefore decline to take contract and request the return of our certified check. Even to date we have not been notified to execute contract and bond under the conditions properly required on the basis proposal was made.”

On December 23, 1931 the department wrote claimant as follows:

“Kindly refer to your letters of December 10th and December 15th, wherein you request that you be privileged to decline the award of the above contract, and be advised that same is hereby granted, and the award is being made to the next lowest bidder.”

On January 4, 1932 claimant wrote- the department as follows:

“Acknowledging receipt of your letter of December 23, 1931, will say that it is our understanding that you have ruled that we are privileged to decline the award of contract in view of contract not having been awarded to us within twenty (20) days from the date of opening of bids. Such being the case, kindly return our deposit of $3,000.00.”

On January 8, 1932, the Division of Architecture and Engineering of the Department wrote claimant as follows:

“Inasmuch as you declined to accept the award of the contract for the performance of the work mentioned above, it was considered by the Department of Public Welfare which controlled the appropriation that your certified check should become the property of the State, in accordance with the requirements of the form of proposal.
“Your check was, therefore, forwarded to that Department for delivery to the office of the Auditor of Public Accounts for deposit to the credit of the General Revenue Fund.”

The certified check in question was endorsed and delivered by the department on December 28, 1931 to Edward J. Barrett, State Treasurer, who collected the amount of the check, to-wit, Three Thousand Dollars ($3,000.00), and turned same into the treasury of the State.

Claimant seeks to recover the amount of such check.

The rights of the parties to this proceeding depend upon the proper construction of Paragraph Two (2) of the proposal sheet, which is as follows:

“The bidder agrees that the proceeds of such check shall become the property of the State of Illinois, if for any reason the bidder, after the opening of the bids withdraws, or if on notification within 20 days from the date of opening the bidder refuses to execute the contract and bond required in event of said contract being awarded.”

Claimant contends that it is entitled to notice of the award of the contract within twenty (20) days after the opening of the bids, and that in default of notice within twenty (20) days after the opening of the bids, it had the right to refuse to execute the contract, without forfeiting its deposit check. The department contends that under the wording of Paragraph Two (2) of the proposal the bidder has the right to withdraw his bid, provided the State is notified of the exercise of such right within twenty (20) days after the opening of the bids.

The Attorney General admits that the construction contended for by the claimant is the correct construction of the paragraph, but contends that the aforementioned letter of the department to claimant dated November 17, 1931, constituted a “notification” within the meaning of said Paragraph Two (2), and being within twenty (20) days after the opening of the bids, the claimant was thereafter required to execute the contract or forfeit its deposit check.

The form of the proposal in question was prepared by the State, and in case of doubt as to the meaning thereof, the doubt should be resolved against the party preparing the instrument. The paragraph in question is not clearly worded, hut upon a careful consideration thereof, we are of the opinion that the construction placed upon said Paragraph Two (2) by the claimant and by the Attorney General is correct, and that such paragraph will not bear the interpretation placed thereon by the department. We conclude, therefore, that the State did not have the right to forfeit the deposit check upon the ground that the claimant failed to give notice within twenty (20) days after the opening of the bids, of its desire to withdraw. Whether the State was justified in forfeiting the check on any other grounds, still remains to be considered.

Paragraph Two (2) provides that the proceeds of the check shall become the property of the State, in either of two contingencies, to-wit:

1. If, for any reason, the bidder, after the opening of the bids, withdraws.

2. If on notification within twenty (20) days from the date of the opening, the bidder refuses to execute the contract and bond.

There is nothing in the record to indicate that the claimant at any time withdrew its bid, and consequently it is unnecessary to further consider the first contingency above stated. Furthermore, there is no question but what the claimant refused to execute the contract and bond. Claimant justifies its refusal upon the fact that it was not notified of the . award within twenty (20) days after the opening of the bids.

The Attorney General contends that the claimant received a “notification” within twenty (20) days after the opening of the bids, and therefore impliedly admits that if claimant was not notified of the award within twenty (20) days after the opening of the bids, it was justified in refusing to execute the contract and bond.

We now come to the consideration of the question as to whether the letter of the Department of November 17, 1931 constituted a “notification” within the meaning of said Paragraph Two (2), as contended by the Attorney General. If such letter constituted ^“notification” within the meaning of Paragraph Two (2), then the State was justified in retaining the deposit check. If, on the other hand, the letter of November 17th did not constitute such “notification”, then the claimant was within its rights in refusing to execute the contract and bond, and is entitled to the return of its deposit check.

It will be noted that the letter of November 17th merely advises the claimant that it was “the apparent low bidder”, and further, that “preliminary to award of contract is now required that a bond properly executed be on file in this office”. There is nothing in such letter which would justify the claimant in proceeding with the work under the contract.

On December 3, Í931, to-wit, thirty (30) days after the opening of the bids, claimant notified the department that it had received no notice of the contract having been awarded and asked for the return of the check. The department made reply to such letter on December 9th. If the department took the position that the letter of November 17th constituted a “notification”, such letter of December 9th should have so stated. However, the department in its said letter of December 9th said nothing whatsoever about its letter of November 17th, but on the contrary, then notified claimant “of the acceptance of your following proposals, opened on Tuesday, November 3, 1931”, etc.; and notified claimant that a formal contract would follow and that pending receipt of such contract, said letter of December 9th.be taken as authority to proceed with the work. This letter of December 9th constituted the first authority given to claimant to proceed with the work. The letter of the Division of Architecture and Engineering of December 14th stated that December 2nd was the date the Division received authorization .to enter into this contract.

From a careful consideration of all of the correspondence in the matter, the court feels that the letter of the department dated December 9, 1931 was the first notification which was given to claimant in accordance with the provisions of Paragraph Two (2), and that the letter of the department dated November 17, 1931 was not intended to be and was not in fact the notification required by said Paragraph Two (2). The department was not in position to award a contract until a bond had been filed by the successful bidder, and no request to file such bond was made prior to said letter of November 17th. ■ Inasmuch as no contract could be awarded until a bond was filed, surely no notification could be given prior to the award.

There can be no question as to the right of the State in a proper case to forfeit a deposit if the bidder neglects or refuses to enter into a contract within the time required by the proposal. However, forfeitures are not favored in the law, and before the State can justify a forfeiture, it must bring itself within the terms of the contract authorizing the same. In this case, under the terms of the proposal which was prepared by the State itself, the State was entitled to declare a forfeiture for failure to execute the contract, provided “notification” was given to the bidder within twenty (20) days after the opening of the bids. The word “notification” as used in said Paragraph Two (2) can mean nothing other than a “notification” of the fact that the contract was awarded to the bidder. The letter of November 17, 1931 was not such a notification.

The first notification given to claimant of the award of the contract to it was the letter of the department dated December 9th, which was more than twenty (20) days after the opening of the bids. In this connection it is also to be noted that the claimant on December 3rd, to-wit, thirty (30) days after the opening of the bids, requested the return of its deposit check.

It is also to be noted that the department on December 23rd, referring to the request made by claimant that it be privileged to decline the award of the contract, advised the claimant as follows:

“Kindly refer to your letters of December 10th and December 15th wherein you request that you be privileged to decline the award of above contract, and be advised that the same is hereby granted and the award is being made to the next lowest bidder.”

Nothing whatsoever was said regarding the forfeiture of the deposit check, and there is nothing in the evidence to show that the State lost anything on account of the acceptance of the next lowest bid. On the record before us, we feel that the State was not justified in forfeiting the deposit bid and that the claimant is therefore entitled to a return of the amount of its deposit check.

Award is therefore entered in favor of the claimant for the sum of Three Thousand Dollars ($3,000.00).


text:
    (No. 1913
    Gordon L. Wetherholt, Claimant vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

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

delivered the opinion of the court:

During the month of March, 1932, claimant was conducting a garage known as The Ideal Service Station and Garage at Pontiac, Illinois, in which garage the State stored a number of its trucks. On March 21, 1932 the driver of one of the State trucks carelessly and negligently operated such truck in driving the same into the garage, whereby the building was damaged to the extent of One Hundred Thirty-six Dollars and Ninety-eight Cents ($136.98), and claimant has filed herein his claim for such amount. The Attorney General has filed a motion to dismiss for the reason that under the facts set forth in the complaint there is no liability on the part of the State. Claimant bases his right to recover upon the negligence of the servant and agent of the State in the operation of said State truck.

It is well settled by the decisions of this court that in the maintenance of its hard-surfaced roads the State is acting in a governmental capacity. (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.)

It is also the well-settled law of this State that the State is not liable for the negligence of its servants and agents while in the exercise of its governmental functions. (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.)

If the claimant has sustained injuries as the result of the negligence of the servant of the State, the right of action is against the servant individually and not against the State.

Claim denied.

Case dismissed.


text:
    (No. 1878
    The Yelton-Weaver Supply Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

    The Yelton-Weaver, Supply Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is a wholesaler of plumbing and heating' supplies, engaged in business at Springfield, Illinois. On May 26, 1931, claimant shipped to the St. Charles School for Boys, St. Charles, Illinois, certain radiation for that institution, of the value of Thirteen Hundred Thirty-two Dollars and Ninety-eight Cents ($1,332.98). The terms of sale were five per cent (5%) discount for payment within fifteen (15) days from the date of shipment, or thirty (30) days net. One section was broken in transit and on June 9, 1931, the manager of the St. Charles School advised claimant thereof and asked for a credit memorandum on account. thereof, and stated that he wished to take advantage of the five per cent (5%) discount. On June 10, 1931, claimant acknowledged receipt of the letter of June 9th and asked for further information in order that it might ship a replacing section. The necessary information was forwarded on June 15, 1931, and a replacing section was shipped by the claimant on June 19, 1931. On July 13, 1931, the St. Charles School for Boys issued its voucher authorizing payment to claimant of the sum of Twelve Hundred Sixty-six Dollars and Thirty-three Cents ($1,266.33), being the amount of the invoice in question, less five per cent (5%) discount. A warrant was issued by the State on such voucher on August 7, same was mailed to claimant on August 8, and received by it on August 10,1931.

Claimant now asks for the sum of Sixty-six Dollars and Sixty-five Cents ($66.65), being the amount of discount deducted by the State upon the ground that payment was not made within fifteen (15) days after the date of shipment, and that consequently the State was not entitled to deduct the amount of such discount.

There is no dispute as to the facts and inasmuch as payment was not made by the State within the time required by the contract, we are of the opinion that the State was not authorized to make a deduction of five per cent (5%) discount, and that the claimant is entitled to the amount deducted by the State on that account.

It is Therefore Ordered that an award be entered in favor of the claimant for the sum of Sixty-six Dollars and Sixty-five Cents ($66.65).


author: Mr. Justice Yántis

text:
    (No. 1868
    Nellie M. Butler, Administratrix of the Estate of Michael P. Butler, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1934.

    Hunter, Kavanagh & McLaughlin ; Doyle, Sampson & Giffin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yántis

delivered the opinion of the court:

This is an action by the Administratrix of the Estate of Michael P. Butler, deceased, under a claim filed December 31, 1931, alleging damages in the sum of Ten Thousand Dollars ($10,000.00) for the death of the said Michael P. Butler. The latter was an inmate of the Peoria State Hospital under a commitment on December 2,1930. On December 30, 1930, he was engaged, with other inmates, in removing dry goods from the basement of the building known as the store-house to the third floor thereof. The elevator in use was also being operated by one of the inmates. On one trip, after one box had been unloaded from the elevator, and while Butler and another inmate were still in the "elevator, for some unknown reason the elevator fell a distance of several feet and one of the large boxes fell back into the elevator from the landing, crushing Butler and the other inmate so that death resulted. Deceased Butler left a widow and four children under sixteen years of age. The elevator was under the supervision of one Ira Broyhill and the elevator was operated by means of cables and ropes. Decedent died January 1,1931, as a result of the injuries sustained. The Peoria State Hospital is one of the State charitable institutions and in maintaining it the State is exercising a part of its governmental functions. In the conduct of its charitable and penal institutions, neither the State nor any of its agencies are liable for damages caused by the negligence of those in charge of or employed in such institutions. The institution is maintained solely for the benefit of the public, and there exists no legal liability upon the part of the State nor the institution for the negligence of its officers or servants there employed, nor can the State legally or as a matter of public policy be held to respond in damages for the negligence or wrongful acts of the inmates in their relation with each other. It is contended that the accident in question was wholly the result of a faulty elevator and the evidence discloses that the elevator had been frequently repaired and that in May, 1931, it was replaced by a modern elevator, but whether this was the immediate cause or whether some act upon the part of the other inmate Mike Bell, who was operating the elevator, cannot be definitely known from the evidence. At any rate this court has uniformly held that in such cases an award cannot be justified upon any legal ground. Hemmerling vs. State, 2 C. C. R. 316. Pelka vs. State, 6 C. C. R. 390. Sturrock etc. vs. State, 7 C. C. R. 157. McInturff vs. State, 5 C. C. R. 314.

It is true that in occasional instances this court has in past years departed from the rule, but the court is not in accord with the interpretation of the extent of the court’s power under equity and good conscience, as given in those cases.

In the case at bar, counsel for claimant in his reply brief indicates that he relies entirely upon a broad interpretation of an allowance under equity and good conscience. As stated by this court in Crabtree vs. State, 7 C. C. R. 207,

“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 defined 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.
The claimant having failed to bring himself within the provisions of the law entitling him to an award, there is nothing this court can do but deny the claim.”

The court believes that the ruling in the Crabtree case should be adhered to in this case, and an award is therefore denied and the claim dismissed.


author: Mb. Justice Yantis

text:
    (No. 1811
    Cabbie E. LaFont, Executrix, Estate of Albert W. LaFont, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1934.

    Clarence B. Davis, for claimant.

    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court: ,

This claim was filed by plaintiff as the personal representative of the Estate of Albert W. LaFont, deceased, on August 11, 1931, for an award for doctor’s bill and hospital bill in the respective sums of One Hundred Fifty Dollars ($150.00) and One Hundred Fifty-eight and 15/100 Dollars ($158.15), or a total of Three Hundred Eight and 15/100 Dollars ($308.15). Mr. LaFont was a cripple, having one artificial limb. He was employed by the Secretary of State for janitor duties about the State House, and at the time of the injury complained of, was assigned to remove the covers from discarded books. The record discloses that he took some of the books and placed one on top of another to make a seat, and while sitting on these books became over-balanced and in falling struck one of his hands against some scales. Several days later he reported the hand as getting along all right, but later suffered an infection in said hand. He died from other causes, as shown by the record, on April 23,1931.

The duties of Albert W. LaFont could not in any sense be considered extra hazardous, and to justify an award to him, it would be necessary to hold that the State was engaged in the business of maintaining the building wherein he was then employed. The court is of the opinion that the maintenance of said Capitol building does not engage a major portion of the attention or time of the officers of the State, so as to bring it within the rule where the Workmen’s Compensation Act would apply. As stated in the Therien ease,

“A janitor in a building not maintained as a ‘business’ by the employee is not within the Workmen’s Compensation Act.’’

Therien vs. Industrial Commission, 351 Ill. 160.

The complaint alleges no facts upon which an award is justified.

An award is denied and claim dismissed.


text:
    (No. 1886
    Moorman Manufacturing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1934.

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

delivered the opinion of the court:

On May’ll, 1931, claimant made application to the Division of Foods and Dairies for registration of its Gro-Strong Block Minerals, and enclosed with its application its check for Twenty-five Dollars ($25.00) in payment of the registration fee. On June 3, 1931, claimant ascertained that said minerals were, not required to be registered in this State and immediately advised the Division of Foods and Dairies to that effect, and asked for a return of the registration fee theretofore paid by it. The Superintendent of the Division on June 5, 1931, advised claimant that the money had been paid to the State Treasurer, and therefore could only be recovered through the Court of Claims, but offered to accept claimant’s next registration in lieu of the one it then had, and asked the return of said certificate with claimant’s next application for registration.

At the time of its next application, to-wit, on February 3, 1932, claimant asked for credit for said sum of Twenty-five Dollars ($25.00) in accordance with the previous offer of the Superintendent of the Division. Thereupon the Superintendent of the Division advised claimant that all registrations for 1931 and all correspondence relating thereto had been filed away, and that the Division could not cancel a 1931 registration and replace it with a 1932 registration.

Claimant then filed its claim in this court for the return of the Twenty-five Dollars ($25.00) so paid by it as aforesaid.

The facts in the case are undisputed and there is no question but what the payment of the registration fee in question was made by the claimant under a mistake of fact. The rule covering such payments is set forth in 48 Corpus Juris, page 759, as follows:

“As a general rule, a payment made under a mistake of fact, and which the payor was under no legal obligation to make, may be recovered back, even though made during the pendency of a suit on the demand. The right of recovery under such circumstances is known to the civil and Roman law, as well as to the common law, and is bottomed upon the equitable doctrine that an action will lie for the recovery of money received by one to whom it does not in good conscience belong, the law presuming a promise to repay. The rule applies to payments made to or by public and governmental agencies as well as private persons;” also on page 765 as follows: “Where one by mistake of fact pays more than is due upon a debt or obligation, he may recover the overpayment.”

The rule is also announced in 21 R. C. L., page 164, as follows:

“Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payor that the fact was otherwise, it may be recovered. The ground on which the rule rests is that money, paid through misapprehension of facts, in equity and good conscience belongs to the person who paid it. Municipal corporations as well as individuals are subject to this rule. An error of fact is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. It has sometimes been attempted to draw a distinction between ignorance of fact and error of fact. In practical effect, however, they are substantially one and the same thing and, considered as a motive of actions, ignorance differs but little from error. In practice the terms are frequently used as of interchangeable significance.”

The law as above set forth has been recognized by this court in numerous cases. Bates Valve Bag Corporation vs. State, 7 C. C. R. 64; Black Star Coal Co. vs. State, 6 C. C. R. 379; The Importers, Etc. Insurance Co. vs. State, 5 C. C. R. 1; Big Four Wilmington Coal Co. vs. State, 4 C. C. R. 279; Fireman’s Insurance Co. vs. State, 2 C. C. R. 220.

Under the law claimant is clearly entitled to a return of the registration fee paid by it.

Award is therefore entered in favor of the claimant for the sum of Twenty-five Dollars ($25.00).


text:
    (No. 1670
    Transportation Building Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1934.
    Osoab Wyclif Habman .and Charles Oscar Swabtz, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover rental in the sum of Eighteen Hundred Dollars for quarters occupied by the State Athletic Commission and for electrical service during the time covered by such rental, for the further sum of Thirty-five and 19/100 Dollars. A previous claim for a portion of said amount was filed and heard by this court entitled “Transportation Building Corporation, Claimant, vs. State of Hlinois, No. 1545,” in which an opinion was filed September 10, 1930, denying said claim; case reported in Volume 6 C. C. R 423. The present claim was filed November 5, 1930.

Under a stipulation agreed upon by the complainant and respondent, it appears that the Illinois State Athletic Commission occupied certain office premises in the city of Chicago owned by claimant during the months of November and December, 1926, January, February, March and April of 1927, and in May and June of 1929; that the Director of the Department of Finance of Illinois and the Chairman, of the Illinois State Athletic Commission entered into a written lease on April 30,1927, with the claimant for the office rooms occupied by the Commission for the period from May 1, 1927, to June 30, 1929, being a total of twenty-six months, at an agreed rental of Three Hundred Seventy-five Dollars per month; that rent was paid through the Department of Finance to the claimant for such quarters from May 1,1927, to April 30,1929, but no rent has been paid for the two remaining months of said lease, namely May 1, 1929, to June 30, 1929; that Three Hundred Seventy-five Dollars per month was the reasonable and usual charge for such office rooms in the city of Chicago during the period occupied; further that the electric light bills set out in the declaration and bill of particulars, amounting to a total sum of Thirty-six and 19/100 Dollars, were ordered from time to time by the State Athletic Commission through its Chairman, in its usual course of business, and that the prices charged for such were the usual and customary prices.

Further that no lease was ever made or entered into for the premises occupied during the months of November, 1926, to April, 1927, either by the Director of Finance or the State Athletic Commission, but that the Chairman of said Commission orally agreed to pay a monthly rental of One Hundred Seventy-five Dollars for said period, and that such charge was a reasonable and usual charge for such office rooms in the city of Chicago during said period.

Further that the Fifty-fourth General Assembly appropriated the sum of Twelve Thousand Dollars for general office expenses of the Illinois State Athletic Commission for use during the 1925-1927 biennium, all of which was expended and no part of which lapsed into the general treasury on September 30, 1927. Further that the Fifty-fifth General Assembly appropriated the sum of Three Thousand Seven Hundred Sixty-two and 50/100 Dollars as an emergency appropriation for office expenses for the Commission for the 1925-1927 biennium, of which an unexpended balance of One Hundred Eighty-four and 49/100 Dollars lapsed into the g-eneral fund on September 30, 1927. Further that the Fifty-fifth General Assembly appropriated the sum of Fifteen Thousand Eight Hundred Dollars for general office expenses of said Athletic Commission for the biennium of 1927-1929, all of which was fully expended before September 30, 1929, and no part of which lapsed into the general fund; that no part of the claim of Eighteen Hundred Forty-six and 83/100 Dollars (correct total as per stipulation being $1,836.19), has been paid. Further that claimant on October 28, 1929, filed its declaration against respondent, being ease No. 1545, seeking a recovery of rentals under the terms of the written lease for the period of May 1, 1929, to June 30, 1929; that the court had jurisdiction of the parties hereto, in that claim, and found that such contract or lease was void, and on September 10, 1930, denied said claim, and that said judgment still remains in full force and effect; that within the time prescribed by law, the claimant filed its notice of intention to file a petition for rehearing; that such petition was not filed for the reason that claimant herein discussed the matter with the Attorney General, stating its desire to sue for use and occupancy not only for the two months period covered by said lease, but also for an additional period from November, 1926, to April 30, 1927, both inclusive, and it was because of this fact that the Attorney General suggested that claimant file a new claim, basing its right of action on use and occupation instead of presenting the matter on rehearing; that as a result of said discussion, claimant filed its declaration in the case at bar.

As above noted, the stipulation states that while the petition for rehearing was pending, claimant filed the case at bar and abandoned its petition for rehearing on the suggestion of the Attorney General. While the Attorney General may have suggested such a course, the decision to do so was made by the claimant. The Attorney General cannot, nor can any other officer of the State, by stipulation or otherwise admit away the interests and rights of the State in any suit. Such procedure is contrary to public policy. Claimant’s bill of $750.00 rent for the months of May and June, 1929, and for $35.04 electric light furnished the Athletic Commission were fully presented, adjudicated and determined in the case of Transportation Building Corporation vs. The State of Illinois, No. 1545 (6 C. C. R. 423), and to attempt to again obtain a hearing of that claim by merging same with other items is barred by the rules of res adjudicata.

“A judgment in favor of the plaintiff for installments of rent * * * which established the validity of the lease under which the installments accrued is conclusive in a suit between the same parties for subsequent installments, as to all questions concerning the validity of the lease which were raised and determined under the issues in the former suit.”

Louisville N. A. & C. R. Co. vs. Carson, 169 Ill. 247.

“The fact that this relief is claimed under two bills does not preclude a fact decided in the former suit being conclusive in the later suit where the allegations in each bill are substantially alike and all the relief claimed under the later bill could as well have been granted under the former.”

Tilley vs. Bridges, 105 Ill. 336.

“A decree on the merits refusing to enjoin a collection of a certain tax for certain years against a railroad company bars a bill by the same complainant against the collectors of the same counties seeking the same relief, though other references and grounds are alleged for granting the relief.”

Ruegger vs. Indianapolis & St. L. Railroad Company, 103 Ill. 449.

With the foregoing in mind, the court has given consideration to that portion of the present claim which seeks a recovery of the amount involved in the former claim in the light of a petition for rehearing. On a petition for rehearing, unless it is shown that the court overlooked or misapplied the law, then the petition for rehearing should be denied. We have carefully considered the decision in the former case, No. 1545, and the records submitted in the case at bar. Nothing appears in this record to show that the court overlooked or misapplied the law when it announced its decision in No. 1545. The written lease was therein held to be invalid. In the case at bar it is sought to recover upon; the entire account without any lease, on the theory that the State, like an individual, is liable for any benefit received, regardless of any valid contract to pay. Claimant, in his reply brief, says that no attempt is made to dispute the findings in the various cases cited by claimant in his original brief. In the original brief, the following cases are cited: C. I. P. S. vs. State, 5 C. C. R. 29; Jefferson Printing Co. vs. State, 5 C. C. R. 380; Rathbun vs. State, 4 C. C. R. 118; Wilson & Co. vs. State, 4 C. C. R. 140; Austin Mfg. Co. vs. State, 4 C. C. R. 106; Meyers vs. State, 4 C. C. R. 278; Central Coal Co. vs. Illinois, 4 C. C. R. 312; City of Chicago vs. State, 4 C. C. R. 345.

In none of the foregoing cases was any objection interposed by the Attorney General’s office on behalf of the respondent and the question of legality of an award was not raised in either of the cases. In the case at bar, the claim as to $750.00 rental and $35.04 electric light bill has not only been heard and denied by this court in the former hearing, but counsel for the respondent files herein its plea denying liability under the Constitution of Illinois.

As stated in Lewson vs. The State-.

“The State Legislature biennially makes appropriations for ordinary and contingent expenses, etc., for the operation, maintenance and administration of the several offices, departments, institutions, boards, commissions and agencies of the State government. The elective State officers and the various State institutions know the amount or amounts appropriated for them respectively. The statute of Illinois provides that no officer, institution, department, board or commission shall contract any indebtedness on behalf of the State; nor assume to bind the State in any amount in excess of the money appropriated, unless expressly authorized by law to do so. * * * To allow this claim would be to establish a most dangerous precedent. It would open up the avenues for all State officers and State departments to ignore the limitation of the appropriation for their respective offices or departments if they saw fit so to do and to rely on the Court of Claims to take care of all claims made in excess of such appropriations.”

Lewson vs. State, 5 C. C. R. 80.

“Bach General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of the members elected to each house, nor exceed the amount of revenue authorized by law to be raised in such time; and all appropriations, general or special, requiring money to, be ‘paid out of the State treasury, from funds belonging to the State, shall end with such fiscal quarter.”

Section 18, Article IV, Illinois Constitution.

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

Section 30, Chapter 127b, State Finance.

“No disbursements from appropriations shall be made for rental of office or other space, buildings or land except in pursuance of a written lease entered into by the proper State authority and the owner or authorized agent of the property. Such lease shall in no event extend beyond June 30th of the second year following the adjournment of the General Assembly making such appropriation except that the lease may contain a renewal clause subject to acceptance by the State after that date. A copy of such lease or leases shall be filed in the office of the Secretary of State within thirty days after execution.”

Item 2, Section 9, Chap. 127b, State Finance.

“Two members of said (Illinois State Athletic) Commission shall constitute a quorum for the transaction of business, and the concurrence of at least two commissioners shall be necessary to render a determination or decision by the Commission.”

Section 6, Chapter 10b, Illinois Athletic Commission.

As the record shows that the Athletic Commission had exhausted the appropriation made by the General Assembly for its office expense, leaving no funds out of which this claim could be paid, and as Section 3 of the Act in relation to State finances provides that

“No officer * * * or commission shall contract any indebtedness * * * in an amount in excess of the money appropriated, unless expressly authorized by law,"

the Athletic Commission had no power to contract an indebtedness for rent or for any other purpose in excess of the appropriation made for it. Claimant claims that equity should aid him in his predicament. Where the Statute prohibits the doing of a thing, equity will afford no relief. It is a vital part of the duty of the Legislature to carefully ascertain what amount of money should be expended by the various departments of the State during the succeeding two years. To allow this claim under a theory of use and occupation, when not only a legal right therefor does not exist, but does in fact prohibit the claim, would be for this court to exercise rights and discretion with which it does not believe the Legislature intended to vest it. Claim is denied.


author: Me. Jvstice Lin,scott

text:
    (No. 1820
    Henry Cox, Claimant vs. State of Illinois, Respondent.

      Opinion filed June 19, 1934.

    E. 1ST. Kevins, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Jvstice Lin,scott

delivered the opinion of the court:

Claimant by his counsel, filed his petition with the clerk of this court on October 22, 1931 alleging that on the 25th day of June, 1931, he was in the employ of the Department of Public Works and Buildings, Division of Highways, State of Illinois, and was with others, engaged in the construction of a certain hard road near the Village of Chesterfield, County of Macoupin, and State of Illinois, and at the time of Ms injury was operating a trip mixer on a truck in dumping a mixture of concrete and Ms hand was caught between the body of the truck and the frame while engaged in that occupation; that at the hearing it was stipulated that the claimant was in the employ of the State at the time of the accident; both he and the State were under the Compensation Act and that the injury arose out of and in the course of the employment. The only questions in dispute are notice of the injury and demand; the nature and extent of the injury or disability and the amount of compensation due.

Claimant was sixty-one years of age, and was receiving thirty-five cents per hour. He had no cMldren under sixteen years of age and had oMy been in the employ of the Highway Department for a week or two before the date of the injury. He was employed by Harvey Smith the foreman of the job and both Mr. Smith and one Lawrence Brooks, the General Superintendent received notice a short time after the injury. It was stipulated that compensation should be paid at the rate of Ten Dollars and Fifty Cents ($10.50) per week. Claimant did receive as compensation, the sum of Ten Dollars and Fifty Cents ($10.50) on August 3rd, the further sum of Twenty-one Dollars on August 11th, and the further sum of Twenty-one Dollars ($21.00) on August 19th, or a total of Fifty-two Dollars and Fifty Cents ($52.50), all in the same year of the accident.

Immediately after the injury, claimant walked around the mixer and informed Harvey Smith that he had his hand mashed, and Smith directed him to be sent to Chesterfield. Mr. Brooks the superintendent was out there. Claimant visited Dr. Knoop who rendered first aid and claimant requested that he be transferred to a doctor at Carlinville, and was accordingly sent to Dr. Chamness who treated him from thence on, and now has a claim pending for the services rendered. X-ray pictures were taken which showed an injury to the bony structure of his fingers. Claimant had a compound fracture of the distal phalanx of the second finger of the right hand and a contusion of the third finger on the right hand. There is some flattening of the finger because there is an excess of callous there, and a part of the distal phalanx worked out.

He was last treated by his physician on August 5, 1931, .and three weeks thereafter was the time fixed by the physician when he could return to work.

It is apparent that this injury arose out of and in the course of his employment and the State did receive notice and had waived demand by paying compensation as above set forth and no question arises as to whether or not this accident arose out of and in the course of his employment.

We, therefore, hold that the third finger of the right hand fully recovered; that the second finger was severely injured and that he has a fifty per cent, loss of the permanent and complete use thereof. Claimant has been paid Fifty-two Dollars and Fifty Cents ($52.50) for a temporary total disability, but nothing has been paid for the specific loss of the finger nor the full amount of his temporary total compensation. -The evidence shows that from the time his temporary disability ceased on the 26th day of August, 1931, sixty-one (61) days or eight and five-sevenths (8 5/7) weeks elapsed, which was the period of the total temporary disability. It was stipulated that the amount he was entitled to is Ten Dollars and Fifty Cents ($10.50) per week as compensation ; having received five (5) weeks compensation for this injury, he is further entitled to Ten Dollars and Fifty Cents ($10.50) per week for three and five-sevenths (3 5/7) weeks, or Thirty-nine Dollars ($39.00). The Compensation Act provides for thirty-five (35) weeks for loss of the second finger, and as he has sustained an approximate 50% complete loss of the use of the second finger, he is entitled to receive therefor the sum of Ten Dollars and Fifty Cents ($10.50) per week, for a period of seventeen and one-half (17%) weeks, or the total sum of One Hundred Eighty-three Dollars and Seventy-five Cents ($183.75). Adding to this, the said further sum of Thirty-nine Dollars ($39.00), makes a total of Two Hundred Twenty-two. Dollars and Seventy-five Cents ($222.75). We recommend an award in that sum.


text:
    (No. 1595
    Nelle A. Deal, Claimant vs. State of Illinois, Respondent.

      Opinion filed June 19, 1934.

    Heyl & Heyl, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant, Nelle A. Deal, age 65 years on the 4th day of December, 1931, and a resident of Peoria, Illinois, filed her declaration in this court on May 28, 1930 alleging that on September 12, 1929, she was in the employ of the State of Illinois, stationed at the Peoria State Hospital, and had been directed by her superior to go to the City of Bloomington, also in the State of Illinois, in an automobile belonging to the State and driven by a chauffeur and while enroute from Peoria to Bloomington, the chauffeur, who was likewise an employee of the State, carelessly, negligently, and recklessly drove the automobile and by reason thereof, the automobile was overturned, and the claimant was seriously and permanently injured, and she asks damages in the sum of $10,000.00 for personal injury, doctor’s bill and hospital bills.

She was employed as a social worker for three years and seven months. On October 14, 1929 she reported for work and she was told that her services were no longer needed. She had been laid up three and one-half weeks. She was paid $90.00 per month salary and had an allowance of $18.00 per month as maintenance. It would seem that she had connections with the Peoria State Hospital at Barton-ville, Illinois, and it was a part of her duty to go out and visit former patients and get histories, etc. It appears from the evidence that this hospital is equipped with its own heating plant, kitchen, their buildings, their elevators are in the buildings and that it also has its own electric light plant, all of which are operated in connection with the hospital.

We are of the opinion that for this reason the claimant came under the Compensation Act, provided, however, that she had given the proper notice. On the day in question it seems as though the plaintiff had gone to Bloomington for the Jacksonville State Hospital. She was accompanied on the trip by her daughter. She had a doctor bill amounting to the sum of $23.00 which she had paid herself. The declaration does not aver that any notice was given within the period provided by Section 24 of the Compensation Act, but when claimant 'was asked the question- whether any notice had been given to Dr. George A. Zeller, the Assistant Attorney General, Eagleton said: “No notice necessary; we will admit that.”

If claimant is entitled to recover at all, it is under the Compensation Act of this State and not under the common law. She was receiving a compensation of $90.00 per month and $18.00 per month maintenance, or a total compensation of $108.00 per month. It does not appear that she had any children under sixteen years of age. She was compensated at the rate of $29.50. per week, and she was entitled to 50% of her earnings but not more than $15.00 per week. Her incapacity having existed for thirty-two days, or four weeks and four days, she is entitled to compensation for the full period of time or four and four-sevenths weeks, at $14.75 per week, or the sum of $67.43. It appears from the evidence that she has paid the physician; having done so she is entitled to be compensated for his bill.

An award in the sum of Sixty-seven Dollars and Forty-three Cents ($67.43) plus $23.00 medical bill, is therefore recommended, or a total sum of Ninety Dollars and Forty-three Cents ($90.43).


author:
Mr. Justice Linsoott
      Per Curiam:

text:
    (No. 1677
    Charles J. Kraft, Claimant vs. State of Illinois, Respondent.

      Opinion filed June 19, 1934.

      Rehearing denied, March 12, 1935.

    Beckman, Olson, Hough & Woods, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

The petitioner filed his claim with the clerk of the court on November 12, 1930, alleging that the State of Illinois is indebted to Mm in the sum of Ten Thousand Nine Hundred Thirty-five Dollars and Seventy-nine Cents ($10,935.79) for money paid and expended by him for the use of the State of Illinois. He avers that during the years of 1923 to 1928 inclusive, he was a Colonel of the 202nd Coast Artillery of the Illinois National Guard, commanding the Regiment, and that as such officer he found it necessary, in order to protect the properties of the State of Illinois and to carry on the work of the regiment, to purchase from time to time, certain goods, wares, merchandise, supplies and equipment for the enlisted men of the regiment and for a certain Armory belonging to the State of Illinois, located at the southeast corner of Thorndale Avenue and Broadway in the City of Chicago and known as the Broadway Armory. He also avers that the above mentioned sum of money was paid by him from his own funds and/or funds to which he was lawfully entitled in making the purchases, and that all of said purchases were for Armory supplies and equipment with the exception of Three Hundred Fourteen Dollars and Sixty Cents ($314.60) which was expended for supplies for the enlisted men in the regiment.

The petitioner also avers that it was absolutely impossible to carry on efficiently the work of said regiment and/or to protect the properties and interests of the State of Illinois without purchasing said goods, etc.; that the said State of Illinois has accepted and enjoyed the benefit of such purchases, and is, therefore, liable for the reimbursement to your petitioner; and the bill of particulars is attached to the complaint.

On December 20, 1930, an amended petition or declaration was filed, substantially the same as the first one, but the bill of particulars attached thereto is for the sum of Ten Thousand Nine Hundred Sixty-one Dollars and Forty-nine Cents ($10,961.49). There is one, however, noticeable exception. It is averred in this amended petition that the sums of money claimed by the petitioner had all been paid by him from his own funds, and/or funds to which he was lawfully entitled, and that all of the purchases were for the said Armory with the exception of Nine Hundred Eleven Dollars and Sixty-four Cents ($911.64) which was expended for supplies for the enlisted men in said regiment. The bill of particulars contains numerous items and supplies of one kind or another, and we are at a loss to know just what this means, and because of such uncertainty, we cannot consider it, and we do not find that there is anything in the evidence to throw light upon this proposition.

On January 30, 1934, by leave of court, an amendment was filed to the amended petition. This fixes the damages at the sum of Fifteen Thousand Three Hundred Thirty-four Dollars and Eighty-six Cents ($15,334.86), which was arrived at by figuring five (5) per cent, interest for each calendar year for the sum mentioned in the amended declaration, which amounted to Four Thousand Three Hundred Seventy-three Dollars and Thirty-seven Cents ($4,373.37).

To support these contentions, the claimant filed his deposition which was taken January 27, 1931, and thereafter introduced oral argument. It appears from the evidence that claimant had been a resident of the City of Chicago for quite a period of years and was on that date, 49 years old. His military experience consisted of a few months over thirty-one years of continuous service, that is, in the Federal and State service. During that period he had received a Certificate of Merit which was a recognition similar to a War Cross, issued during the late war. He had served in various insurrections in Central America; in Nicaragua, and the Panama Revolution in 1911; went to the border in 1916 and to France in 1917, and stayed there until sometime during the year 1919. He was discharged from the World War with the rank of captain; had been wounded during his military service, seven times, twice in the World War. When he returned from the World War, he helped organize the American Legion for about two years. He testified that he organized about thirty-eight posts that are still existing in Cook County and in 1921 started organizing the present 202nd Coast Artillery, and was made Colonel of that regiment in 1923, it being a regiment of National Guard Troops.

The following appears on page 5 of his deposition:

“Q. And you resigned when?

A. Resigned March 24, 1930.

Q. That was following the Board of Inquiry, or Efficiency Board?

A. Yes.”

Just what this had to do with the questions involved here, has been left unexplained. Later on he was asked:

“Q. During your time with the Marine Corps or in the Federal service during the World War were you ever charged with any withholding of funds or anything of that kind?

A. No, never reprimanded in my life by a superior officer.

Q. You were honorably discharged, and other than this Board of Inquiry your service has been without any question, is that right?

A. Always has.”

Just what the Board of Inquiry had to do with the resignation of the claimant is still a matter of doubt and conjecture.

It appears from his evidence that he received a salary of $175.00 per month from the State, up and until January 1,1927 when he resigned as custodian of the Armory. Proof is submitted that he applied this monthly salary to the Armory in making improvements therein and bettering the conditions. It is also shown that there were four different funds from which money was drawn for the military service, either by way of improvement to the armory or pay to the men. One was the Armory Rental Fund, which is derived from the armory sub-rentals to civilian organizations; two: the State fund, appropriated by the State to the Adjutant General’s Department; three: the National Guard Commission Fund, made up of donations from patriotic citizens; four: the Federal appropriation to the National Guard.

This court has not been supplied with an itemized statement of these funds, but it appears that the claimant also bought a number of circus seats for the armory and received rentals therefrom; that the Armory was rented for $100.00 per night for wrestling matches and $50.00 per night for basketball games, and there were other miscellaneous charges for rental.

It appears from the evidence that the claimant did expend large sums of money for the use and benefit of his regiment, particularly the Armory, but the court is at a loss to know why he resigned in the face of what we are led to believe was to be a military investigation of his activities. Nothing further appears from the record except that which would glorify an honorable patriotic record. That this claimant was led to believe that he would be reimbursed for these expenditures, appears from his testimony and an affidavit of Colonel Inglesh. An affidavit was filed with this court on June 13, 1934 from one Jules F. Cornelius to the effect that in 1925, a committee of business men was organized for the purpose of appearing at Springfield to set forth the merits and desirability of the Broadway Armory, and that he, Jules F. Cornelius, was chairman of that committee, which consisted of approximately twenty-five business men, and during that time was frequently in contact with Colonel Kraft; that in 1925, he and Colonel Kraft appeared at Springfield and went before the then Governor and Colonel Ingiesh and before the Chairman of the Appropriation Committee of each the Senate and the House and before the Committees Proper, and presented at that time the desirability of the purchase of the Armory, for the option that the state then had was expiring shortly. He recalls definite statements that this would be the only appropriation for military purposes during that session of the legislature. He also states in his affidavit that the matter of improvements was discussed and that assurances were given to Colonel Kraft that the improvements would be provided for at a later date, and that in all respects it would be made into an Armory reasonably well equipped and habitable. Affiant further stated that he was acquainted with the Armory and that the same was badly in need of repairs and did not have facilities for the proper housing and maintaining of the supplies and men of the regiment. The terms of the affidavit are in general language. It is, however, definite that assurances were given to the claimant that improvements would be provided for at a later date, but it does not state what improvements and we gather from the affidavit that the claimant well knew that the appropriation did not include anything for improvements.

It also appears from the evidence that the claimant well knew the manner in which the improvements for the Armory should be made and that neither the then Governor nor Colonel Ingiesh had the power to make appropriations. During claimant’s long term of military service, his familiarity with military manuals and his constant contact with high officials of the Illinois National Guard and National Army officers, he must have known that the law provided a way to make the necessary improvements and that neither he, himself, or any other-officer of the National Guard could make such improvements upon their own volition without first getting the necessary appropriation, unless he wanted to take a chance with a legislature, many of its members probably not then even elected.

It appears from the amended petition that during the years 1923,1924,1925,1926,1927 and 1928, claimant expended for lumber, office supplies, athletic supplies, pianos, electrical supplies and garage equipment, etc., the sum of Ten Thousand Nine Hundred Sixty-one Dollars and Forty-nine Cents ($10,961.49).

The Attorney General, Otto Kerner, on March 7, 1934, filed a motion to dismiss for the following reasons:

1. That both the original and amended complaint filed herein are substantially insufficient in law and fail to state a proper legal cause of action against the respondent.

2. That since the original claim was filed herein on September 12, 1930, this court is without jurisdiction to consider expenditure items listed for the years 1923, 1924 and 1925, for the reason same are outlawed by Section 10 of the Court of Claims Act of 1917, as amended, and said Statute of Limitation has run against this portion of the claim.

3. That it affirmatively appears from the record the claimant has not legal right, title or interest in said Special Fund of the 202nd Coast Artillery Regiment of the Illinois National Guard, but acted only as a disbursing agent for the Chicago National Guard Commission which collected funds by subscription and donation and apportioned same among the various National Guard units in the City of Chicago for the sole benefit and use of the personnel of the National Guard.

4. That it affirmatively appears from the record claimant improperly commingled funds derived from rental of the Broadway Armory with funds secured from the National Guard Commission contrary to the provisions of Section 3% of Article XVIII of the Military and Naval Code of Illinois, and that he made expenditures of funds derived from armory rentals without requisition and approval by the Adjutant General.

5. That under the facts shown by the record no legal claim can arise for refund to the claimant of those sums of money which he personally received as custodian of the Broadway Armory and voluntarily deposited in the Special Fund account for the reason claimant was under no duty or obligation to make such deposit and these funds, therefore, must necessarily be considered merely a gift made by claimant for the welfare and benefit of his organization or regiment. Nothing appears in the record and no proof has been offered which tends to show an agreement actual or implied by which the respondent became liable to make refund of this money to the claimant.

6. That except as to money actually derived from armory rental the respondent had no right, title or interest in and to the Special Fund of the 202nd Coast Artillery Regiment and at no time exercised any supervision or control of the expenditure of said fund.

In claimant’s brief it is argued that Colonel Kraft was in command of the 202nd Coast Artillery of the Illinois National Guard, during the years 1923 to 1928, inclusive, and during a large part of this time, he was also custodian of the Broadway Armory located at the corner of Thorndale and Broadway, Chicago, Illinois. The quarters of the 202nd Coast Artillery were in this building; that as Colonel of this regiment, the claimant was personally responsible for the equipment; that he had made various attempts to get the State to furnish a great amount of things as time went along, but the delays made it absolutely impossible to function unless he “took the bull by the horns” and did some of the things himself, and his actions were not only looked upon with satisfaction by the various parties having charge of the affairs, but were in general approved, for certain it was, that all of the things furnished were needed and were kept upon the premises, and still remain there, and are now in use by the State, and that all but a small part of the items listed in the Bill of Particulars were for improvements permanent in nature.

It is argued in the brief that sub-paragraph 4 of Section 6 of the Court of Claims Act gives the court jurisdiction to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.

The case of Highway Commissioners vs. City of Bloomington, 253 Ill. 164 is also quoted, along with Harty Bros. vs. Polakow, 237 Ill. 559, and a quotation from page 565 is set forth in the brief.

There is a vast difference between the authorities cited and the facts in the instant ease, and we hold these authorities are not in point. It will be remembered that all of the expenditures claimed by the claimant were made deliberately by him with full knowledge of the possibilities of reimbursement, and at a time when there was no possible public danger, and we are impressed by the fact that no officers of the Illinois National Guard, including the Adjutant General, or his assistants have appeared in behalf of the claimant; not his successors nor any of the captains, lieutenants or enlisted men that served in the 202nd Coast Artillery at the Armory in question during claimant’s colonelcy, many of whom undoubtedly formed a friendship and affection with the claimant in the face of great mutual danger and years of acquaintanceship.

The statute referring to the Court of Claims is perhaps misleading or unfortunately worded. This court has in the case of Crabtree vs. State of Illinois, 7 Illinois Court of Claims, page 207 held that the language referred to defines the jurisdiction of the court, and that it does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.

Without extending this opinion to an undue length, we hold that because funds were not provided in a manner pointed out by Statute and the Constitution for the purpose for which Colonel Kraft spent the funds, we are without jurisdiction to grant him relief. To hold otherwise would be to nullify the Statute setting up all of the rules and regulations of the military manuals of this State insofar as these or similar questions are involved, and to render void the practices of the Adjutant General’s Department, which are the result of many years of experience, and these things we refuse to do.

Opinion on Petition for Rehearing.

Per Curiam:

Claimant Charles J. Kraft, through his counsel, having filed a petition for re-hearing in the above entitled cause and ten different grounds for re-hearing having been set forth and counsel having asked for re-hearing for the purpose of putting in new testimony, and it being admitted that claimant did not follow the statutes and regulations provided for such work, the petition for re-hearing must be denied.

It has never been the policy of this court to grant rehearings for the purpose of introducing new testimony and we hold that request for appropriations for such purposes as claimant requests in this case must be first submitted to the legislature, and if, in their discretion, they are inclined to make the appropriation, then such appropriation will come squarely within the constitution.

The Act creating the Court of Claims was designed to lessen the work of the State Legislature and not in any way to take away or lessen their powers, neither can we put our approval upon matters done contrary to law, and when an officer of the State or the State Militia presumes upon the authority granted the legislature, we must leave him where he has placed himself.

The petition for a re-hearing will, therefore, be denied.


author: Mb. Justice Linscott

text:
    (No. 1785
    John H. Laird, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 19, 1934.

    Paul G. Weisenhobn, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claimant filed his declaration with the Secretary of State on July 3, 1931 alleging that on the 6th day of September, 1930, John H. Laird, because of illness and his service record was admitted to the Illinois Soldiers’ and Sailors’ Home, where he underwent treatment for such illness and was there for observation. On the 8th day of September, 1930, he was assigned to work in the kitchen as a relief helper, and received One Dollar ($1.00) per day, his duties consisting of general work in the kitchen, the preparation of foods and the cleaning of the equipment, — in general, all work which he was ordered to do by the cooks on duty; that in obedience to the orders of his superiors, he was operating a food-chopping machine, when the fourth finger on his right hand was caught in the machine and injured so badly that amputation was later necessary. He also claims that he had been permanently disfigured and disabled.

It appears from the evidence that he was an inmate of the Soldiers’ and Sailors’ Home at Quincy, Illinois, but was also working for a dollar a day in and about the kitchen. He was a veteran of the World War, having been admitted to the hospital for treatment of ulcers of the stomach and for physical observation. The dietitian at the home gave him the job in the kitchen at Thirty Dollars ($30.00) per month. He worked in the kitchen from 5:00 A. M. to 1:00 P. M., six days a week. It was a part of his duties to use a vegetable chopper and to clean the appliance after using it. He testified that sharp circular knife was a part of this appliance and that he put his hand in where it was and his little finger was cut off. He has never married. He had only been employed in this capacity twelve days and received a check from the State of Illinois, for the sum of Twelve* Dollars ($12.00).

There is much testimony in the record in regard to this plaintiff’s ability to earn money as a pipe-fitter. As far as the record is concerned, he is still at the charitable institution. He has not worked steadily at his trade since 1925.

According to the testimony of Dr. O. E. Ehle, who attended claimant, the doctor amputated the finger below the second distal joint. Claimant’s third finger was also lacerated and the doctor sewed up the laceration. Claimant was discharged, according to the testimony, on October 25,1930.

It appears from the evidence that this food-chopper was-electrically driven, with a round bowl and a guard over the top of the knife. In order for one to get his finger into the bowl it would be necessary to place the finger on the inside under the protecting shield.

It appears from the testimony of the manager, H. H. Fletcher, that it had been the practice to take inmates from the institution and work them in the kitchen, and give them a chance to make a little extra money for a few days and then let someone else take the job, and that he did not consider Laird as an employee but rather as an inmate of the institution.

The Attorney General argues that the claimant was an inmate of the institution, but admits that the claimant was employed in the institution, and argues that the claimant had disobeyed orders in cleaning the machine and for this reason he is not entitled to recover. Attorney General also argues that the State is not liable to respond in damages for the negligence of its officers, agents or employees, and that where it appears that the injuries sustained were sustained without any negligence or fault on the part of the agents of the State an award will be denied, and cites authorities to that effect.

We cannot agree with the Attorney General in this connection. It appears to us that the relationship of master and servant existed at the time of this injury. The fact that he is also an inmate is not controlling because it is clear that claimant was also an employee, and subject to the direction of the cook, dietitian and others around the institution. All of claimant’s medical bills and hospital bills were apparently paid.

Claimant bases his measure of damages upon the earnings that the claimant made while in the employ of others as a pipe-fitter. In this he is in error. He can only recover, if at all, under the Illinois Compensation Act, and the amount that he can recover is fixed by that Act. Under the wages paid to claimant he was only entitled to be paid at the rate of Seven Dollars and Fifty Cents ($7.50) per week for a period of four and five-sixths weeks for temporary total disability, and twenty weeks for loss of his fourth finger at Seven Dollars and Fifty Cents ($7.50) per week, or a total sum of One Hundred Eighty-six Dollars and Twenty-five Cents .($186.25).

The fact, if it be a fact, that claimant was directed not to place his hand in the machine and injured as the result of his own negligence does not under the Compensation Act bar his recovery. The act of cleaning the food-chopper was in the course of his employment; it was a part of his duties.

Would the violation of the order of the employer not to use his hand in cleaning the vegetable chopper, take the employee entirely out of the sphere of his employment, and deprive him of the Act?

In Republic Iron Co. vs. Industrial Commission, 302 Ill., 401, on page 406 it was said: “Where the violation of a rule or order of the employer takes the employee entirely out of the sphere of his employment and he is injured while violating such rule or order it cannot be then said that the accident arose out of the employment, and in such a case no compensation can be recovered. If, however, in violating such a rule or order the employee does not put himself out of the sphere of his employment, so that it may be said he is not acting in the course of it, he is only guilty of negligence in violating such rule or order and recovery is not thereby barred.”

We, therefore, hold that the claimant is entitled to recover and we recommend an appropriation in the sum of One Hundred Eighty-six Dollars and Twenty-five Cents ($186.25).


text:
    (No. 1816
    Roy Perry, Administrator De Bonis Non, With the Will Annexed of the Estate of Dudley E. Perry, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 19, 1934.

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

delivered the opinion of the court:

On August 12, 1928, Dudley E. Perry was a corporal in 1 ‘ Company L,” 130th Infantry, Illinois National Guard, in active service at Camp Grant, and while in camp there, contracted pulmonary tuberculosis in the line of his duty.

Subsequent to the August, 1928, encampment of the Illinois National Guard, Perry entered the Good Samaritan Hospital at Vincennes, Indiana, and remained there until August 30, 1929. On that date he was admitted to the Illinois Soldiers’ and Sailors’ Home at Quincy as a guest of the State, and remained there until his death which occurred on February 5,1931.

On April 21, 1930, Perry filed his claim (No. 1586) in this court for service pay under the terms and provisions of the Military and Naval Code of this State. A hearing was had and an award entered allowing him $2.12% per day for 323 days, being one-half of his service pay from August 12, 1928, to June 30, 1929; and payment of such amount was thereafter made to Dr. C. E. Ehle who had theretofore been appointed executor of the last will and testament of said Dudley E. Perry, whose death occurred while his case was pending in this court.

On October 10, 1931, said Dr. C. E. Ehle, executor as aforesaid, filed his claim in this court, seeking to recover service pay of said decedent from July 1, 1929, to the date of his death, to-wit, February 5,1931.

Thereafter said Dr. C. E. Ehle was discharged as such executor and Boy Perry was duly appointed administrator de bonis non with the will annexed of the estate of said decedent.

Under section four (4) of Article sixteen (16) of the Military and Naval Code of this State, corporals in the National Guard received $4.25 per day for active service pay. Under Section ten (10) of the same article, any officer or enlisted man of the National Guard who may be disabled in any way, while on duty, so as to prevent his working at the occupation from which he gains his living, is entitled to medical treatment .and to draw one-half of his active service pay, for not to exceed thirty (30) days, on the certificate of the attending medical officer; if still disabled at the end of thirty days he is entitled to draw pay at the same rate, for such period as a board of three medical officers, convened by the order of the Commander in Chief, may determine to be right and just, but not to exceed six (6) months, unless approved by the Court of Claims.

The Attorney General asks that the claim be dismissed because of the amount heretofore paid, and because there are no dependents, deceased having left only collateral heirs.

It seems to us, however, that the liability of the respondent to the decedent was admitted by the order entered in the previous case; and the liability in this case follows as a necessary consequence. As we view it, the claim for decedent’s service pay from July 1,1929, to the date of his death, constitutes an asset of his estate, and the right thereto is not dependent upon the question as to whether his heirs were direct or collateral, or whether any of such heirs were dependent upon him for support.

Claimant is entitled to an award for one-half of decedent’s service pay, to-wit, $2.12% per day, from July 1,1929, to the date of his death, February 5, 1931, to-wit, 584 days.

Award is therefore entered in favor of the claimant, Boy Perry, administrator de bonis non with the will annexed of the estate of Dudley E. Perry, deceased, for the sum of Twelve Hundred Forty-one Dollars ($1,241.00).


author: Mr. Justice Yantis

text:
    (No. 1939
    Carl Carlson, Claimant vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

    Arnold L. Lund, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The claim herein filed on July 7, 1932, represents that claimant, on the 11th day of October, 1931, about' 10:00 P. M., was driving on the public highway known as 127th Street in the town of Worth, Illinois; that there existed on said highway an excavation about eight feet square and several feet deep, made by employees of the State Highway Department; that it then and there became “the duty of the defendant, the said Highway Department, to exercise due care and caution in protecting the property or persons of others then and there lawfully present, etc. ’ ’ That claimant was riding at approximately twenty-five miles an hour in his automobile, and was exercising due care and caution for his own safety and for that of others then present, but that the defendant, not regarding its duty in that behalf, carelessly, negligently, wilfully and improperly neglected to place and keep a lighted lamp, light or flare or to take other precautions to warn other approaching vehicles or to place any other protection around the excavation in question, and by reason of such negligence the automobile of claimant was overturned and plaintiff was injured and was forced to lay out certain sums of money, all as shown by his Bill of Particulars, amounting to the total of $132.75.

The Attorney General has filed his motion to dismiss the complaint by reason of the fact that such claim is predicated upon the charge of negligence upon the part of employees and agents of the State of Illinois in the State Highway Department, and that under the law, the rule of respondeat superior does not apply and that there can be no liability upon the part of the State for which an award could legally be made by this court.

As cited by respondent in its brief,

“The State acts in its .sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the Statute creating such agency.”

Kinnare vs. City of Chicago, 171 Ill. 332-335.

“In the construction and maintenance of its roads, the State acts in the governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, mis-' feasance or negligence of its officers or agents in the absence of a Statute creating such liability." Such has been the settled decision of this court for many years.”

Bucholz, Admx. vs. State, 7 C. C. R. 241.

Peterson vs. State, 6 C. C. R. 77.

Braun vs. State, 6 C. C. R. 104.

There is no averment in the complaint that the highway in question was under the control of the State of Illinois, but under the contentions of the Attorney General and the matters above set forth, such fact would be immaterial.

The motion to dismiss is allowed and claim dismissed.