text:
    (No. 3315
    Adelia Davis, Claimant, vs. State of Illinois,, Respondent

      Opinion filed September 13, 1939.

    David S. Landsen, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Lee B. Davis was an Investigator in the Department of Conservation of the State of Illinois, and had been so employed since 1933. On the morning of May 21, 1938, he and James DeWitt, another Investigator in the Department, drove m the latter’s car from Tamms.to Horse Shoe Lake State Game Preserve in Alexander County. There they removed a State-owned boat from the lake so that it might dry out and be repainted. They then drove to the City of Cairo for a conference with their immediate superior, Inspector Bobert Halliday. They then drove out into the country district to investigate any illegal hunting of game that might be in progress. When they reached a point near Sandusky their automobile accidentally and for some unknown reason left the gravel road, got out of control of the driver, DeWitt, and ran into a ditch. The car was badly damaged and Lee B. Davis was violently thrown and received a fracture of his skull and other injuries, as the direct result of which he died at St. Mary’s Infirmary in Cairo, Illinois, the next day, May 22, 1938, leaving the claimant herein, Adelia Davis, his widow, as his only dependent, there being no children under the age of sixteen (16) years surviving him.

A report from the Department of Conservation, appearing in the record shows that his earnings were One Hundred Twenty-five ($125.00) Dollars per month and his average annual earnings for the year immediately preceding the accident were One Thousand Four Hundred Fifty-five ($1,455.00) Dollars; in addition to which the State furnished said employee with an automobile for his use in the performance of his work and paid the necessary upkeep and expense of operation thereof.

It further appears from said report that as an Investigator of said Department most of his work was performed in Alexander County, where the State 'maintains what is known as the Horse Shoe Lake Game Preserve of approximately 2,500 acres of land and water; that in the operation of Horse Shoe Lake the State maintains a large concrete dam about thirty-nine (39) feet in length, with an eastward wing of about two hundred forty (240) feet in length and a westward wing of about one hundred ten (110) feet in length. Two iron gates in the main part of the dam are closed and open from time to time in controlling the lake level. Such opening and closing is controlled through two iron devices on top of the dam, which" can only be operated after certain locks attached thereto are opened with keys provided for that purpose, one set of which were in the custody of said Lee B. Davis as Investigator.

The Departmental Report further confirms the following statement of Lee B. Davis’ duties:

(a) To patrol the County of Alexander for the purpose of enforcing the game and fish laws of the State, and to make arrests and prosecute violators of the law.
(b) .To carry and distribute in an automobile operated by him and furnished him by the State for that purpose, fish taken and removed by him from one body of water to other bodies of water within the State, and to carry in said automobile fishing seines or nets, outboard motors and other equipment for boats operated by the State upon said Horse Shoe Lake, and to carry in said automobile other commodities belonging to the State.
(c) To operate upon said Horse Shoe Lake motor boats belonging to the State for the carriage of employees and officials of the State in connection with the discharge of their duties as such, and for the carriage of visitors to said Horse Shoe Lake Preserve, the water in the lake ordinarily and on the average being from 8 to 10 feet in depth.
(d) To operate upon said Horse Shoe Lake a barge belonging to the State, propelled or towed by one of said motor boats operated by him, the said Lee B. Davis, for the carriage of automobiles used by employees and officials of the State in connection with the discharge of their duties as such, and for the carriage of visitors and their automobiles from one part of the Preserve to other parts thereof upon the waters of the lake.
(e) To maintain the concrete dam at the southerly end of said Horse Shoe Lake, to operate the gates in the dam for the purpose of controlling the -level of the water in the lake, and to inspect and examine the dam with its equipment and appliances for the purpose of maintaining the same in good repair and condition, and in connection with all of which it was necessary for him, the said Lee B. Davis, to walk or go upon the top of the central or main portion of the dam, about 22 inches in width, and of the wings of the dam, about 14 inches in width, above the water of the lake, which were ordinarily at that point 7 or 8 feet in depth.

The Court finds that Lee B. Davis was, on the 21st day of May, 1938, an employee of the State of Illinois in the Department of Conservation.

That on said date he suffered an accident which resulted in his death, and that the injury which caused his death arose out of and in the course of his employment. That he was married and left surviving him, Adelia Davis, his wife, claimant herein, and no children under the age of sixteen years. That due notice of the accident and notice of demand for 'compensation, and the filing of claim herein have all been within the statutory limitations.. That Lee B. Davis’ annual wage from respondent for the year preceding his death was One Thousand Four Hundred Fifty-five ($1,455.00) Dollars, or an average weekly wage of Twenty-seven and 98/100 ($27.98) Dollars per week. That all hospital and surgical hills incidental to said accident have been paid by respondent, in the sum of Two Hundred Eighty ($280.00) Dollars. That under the provisions of Section 7 of the Workmen’s Compensation Act, claimant herein is entitled to an award in a sum equal to four times the average annual earnings of said employee, but not more in any event than Four Thousand ($4,000.00) Dollars; that such award is subject to a credit of 10/31sts of One Hundred Twenty-five ($125.00) Dollars because of over payment to claimant of salary for the month of May, 1938.

An award is therefore hereby made in favor of claimant Adelia Davis in the sum of Three Thousand Nine Hundred Fifty-nine and 68/100 ($3,959.68) Dollars, payable at the rate of Fourteen ($14.00) Dollars per week. Of said award, the amount of Nine Hundred Fifty-two ($952.00) Dollars has heretofore accrued to September 10, 1939, and is payable instanter. The balance of Three Thousand Seven and 68/100 ($3,007.68) Dollars is payable in monthly warrants at the rate of Fourteen ($14.00) Dollars per week, commencing on the 18th day of September, A. D. 1939.

This award being subject to the provisions of an Act entitled “An Act making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof,” approved July 3, 1937 (Sess. Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly” (S. B. 123, as amended), approved July 8, 1939; and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for by the foregoing Acts.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2734
    Nellie Finkler, Administratrix of the Estate of Alexander C. Finkler, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    M. D. Moran, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, Nellie Finkler, is the widow of Alexander G. Finkler and has filed a claim with this Court for an award under the Workmen’s Compensation Act. The claim was filed on October 2,1935, and the claimant filed briefs on September 22,1938. The State filed its brief on March 17,1939.

The record shows that the deceased was an attendant at the Manteno State Hospital, and on December 29, 1934, about 11:00 a. m. a patient was received at the hospital and while the attendant, Lyle Bauer, was taking care of him the patient broke loose and ran down the stairs. The attendant grabbed him around the waist and the deceased, Alexander C. Finkler, went to the bottom of the stairs to help subdue the patient. Finkler was knocked down on the floor on his back and the patient and the attendant Bauer fell on top of him. Finkler had been assigned to the ward as an attendant. The institution at Manteno, Illinois, has a power house in which there is electrical machinery, and they also have lathes and saws and other kinds of machinery.

Dr. Arthur H. Colimar was regularly employed at this institution and was on the staff of the Manteno State Hospital. He is a graduate of Bush Medical College and was licensed in the State of Illinois in 1900, and. devotes all of his time to this institution. At the time his testimony was taken he was devoting all of his time to psychiatry, and had been on the staff of the hospital seven years and two months. He had first seen the deceased when he was required to examine him, an examination being made of all new employees. He found the deceased to be under-developed and undernourished and a rather frail man, who had a hernia and mitral murmur and some rales in the chest. He had what the doctor called an emphysematous condition of the chest. He looked rather pale and was classified as “poor.” He made out an injury report which was dated December 29, 1934. They were not prepared at the Manteno State Hospital at that time to take care of injury cases. They had one ward on the male side and one ward on the female side. On the day of the injury Dr. G-ollmar saw the deceased and spoke to him, and then the doctor went up to the infirmary department. He then learned that the claimant’s intestate had been injured; that is, knocked over, and the doctor went down and inquired about his condition. The deceased said he was all right and that he did not get hurt, and further said: “I can take' it; it’s nothing.” The doctor suggested that he look him over and the deceased said, “There’s no need.” The doctor made no further examination at the time because the deceased did not report disability and kept on working. About a week after that the doctor was called up to Brandon Hall, a dormitory there, and found the deceased in bed. He wasn’t feeling well and reported off duty. The deceased had a temperature of about a degree and some rales in the chest. He did not seem to be in any great pain, but mentioned that his back hurt him, and the doctor rolled him over in bed. He examined the spine by pressure and feeling with his hands and palpated him. He found no fracture. Treatment was given for his acute indisposition and the patient was confined to his bed. No opiates were given. It was customary to send patients to Kankakee State Hospital, and this doctor discussed that with the deceased, but the deceased did not feel that he was sick enough or injured sufficiently to go to Kankakee State Hospital.

There were no X-ray facilities at the hospital. The Manteno State Hospital was more or less in a state of organization in 1934 and 1935. At that time the hospital had eight two-story cottages and twelve or thirteen hundred patients, and not more than three doctors.

No objective symptoms of pain were found, but the patient had subjective symptoms of pain. Nothing was said about the pain in his back until about a week after the injury. Heat treatments were given which seemed to help at first. At the time of the injury Finkler did not report any disability. He had previously had lumbago.

At the time of his death Finkler was married, but had no children under sixteen years of age.

The deceased started to work in this department on ■ November 14, 1934, and continued to perform his regular duties until January 4, 1935. He was paid $45.00 per month and each six months they received a $2.00 a month raise until they got $60.00 per month. His salary had been raised to ■ $52.00 per month. His wife, Nellie Finkler, was similarly employed. The chief nurse at the institution had been notified that the deceased was unable to work, but she knew-about it at the time. Prior to Mr. Finkler’s employment at the institution he had been a cigar salesman. Finkler was about 70 years of age. He had enjoyed good health prior to the injury and his wife testified that he had no illness for a year prior to the injury, and she could not recall of Mr. Finkler having been in bed on account of illness for perhaps thirty years, and then for tonsilitis.

Mr. Finkler was taken away from the institution on January 30, 1935, to his home in LaSalle, Illinois, where he remained until his death. He stayed in bed and was unable to sit up. He couldn’t sit on a chair. Dr. Haskins of LaSalle took care of him. Dr. Haskins was asked the following question:

“Q. Did you form any opinion from the statements he made to you as to how he was injured — or did you form any opinion as to whether or not his injury caused any aggravation of the condition he had in his back — did you form an opinion? Answer, yes or no.
A. Yes.
Q. What is that opinion?
A. I think that the injury hastened the man’s death. He was a man along in years, between 65 and 70, and I would say definitely that his alleged injury aggravated that condition. A man approximately 73 years of age who receives a fall or who was knocked down to the floor, having a tubercular spine or condition he may have had to the spine prior to this injury would, in my opinion, cause an increase or accelerate the tubercular condition of the spine.”

Dr. Haskins was of the opinion that the cause of deceased’s death was due to tuberculosis, which was evidently present in his chest and back, and to pernicious anemia, combined with his age and the condition of a person’s heart at this age, but he was of the opinion that the injury aggravated all of these things, and that the deceased might have gone on indefinitely if the injury had not arisen.

The evidence showed that the deceased had been knocked to the floor and that an attendant and a patient had fallen upon him as he lay on his back.

“Claimant’s Exhibit 2” is an X-ray film taken of the deceased under the direction of Dr. Haskins, and this plate had either been mislaid or lost in Dr. Haskins ’ office or in St. Mary’s Hospital in LaSalle, Illinois. The doctor had examined this plate, and he testified that if the deceased had received a trauma to the back, in his opinion, that would have contributed to the condition found in the X-ray plate. This doctor also testified that he believed that the injury that the deceased received to the first and second processes resulted in the deceased’s death. The doctor said: “I think it was the main factor in the death of the deceased. ’ ’

It has been held on numerous occasions that when a person has a pre-existing disease, and that disease is aggravated or accelerated in the course of employment by accidental means, and death results therefrom, that death results from the injuries caused by the accident.

In the case of Cameron, Joyce & Co. vs. Industrial Commission, 324 Illinois, 497, it was held that where an employee of a road construction company dies of valvular heart trouble within five months after his left arm and foot had been crushed under the wheels of a heavy1 road grader, a finding that the injury contributed to the employee’s death is warranted where the evidence shows that although the employee had chronic heart trouble he had always been able to work up to the time of his injury, and that although he made satisfactory recovery from the local injuries to his arm and foot he continued to suffer pains in his chest, back and side, which constantly increased in severity.

In the case of Valier Coal Co. vs. Industrial Commission, 339 Illinois, 458, it was held that an award of compensation for the death of an employee a little more than a year after he was severely injured by the falling of coal upon him while in the course of his employment will be sustained where the weight of the testimony is to the effect that while death was due to myocarditis, which may have resulted from a syphilitic condition which existed prior to the injury, the injury accelerated and aggravated the heart condition, some experts testifying that the myocarditis was caused by an infection of the lung, resulting from the injury.

Many other authorities may be cited sustaining this proposition of law.

The deceased suffered the accident December 29, 1934, continued to work until January 4,1935, remained at Manteno State Hospital until January 30th, when he was taken to his-home at LaSalle, where he died April 16, 1935.

Attendants at State institutions receive $45.00 per month for the first six months and $46.80 per month for the second six months, and in addition maintenance valued at $24.00 per month, or a total of $838.80 per year.

The Court finds that the deceased received an injury arising out of and in the course of his employment; that the respondent received due notice of this injury.

We have heretofore held that employees in State hospitals for the insane are entitled to the benefits of the Workmen’s Compensation Act.

Crawford vs. State, 8 C. C. R. 639;
Whalen vs. State, 9 C. C. R. 541;
And numerous other cases.

Deceased left a widow, but no children under sixteen years of age that he was under legal obligation to support. Under Section 7 of the Workmen’s Compensation Act, his-widow is entitled to recover a sum equal to four times his average annual earnings, but not less in any event than two thousand five hundred dollars and not more in any event than four thousand dollars, and any compensation payments other than necessary medical, surgical or hospital fees or services shall be deducted in ascertaining the amount payable on-death.

Deceased’s total salary, including maintenance, amounted to $838.80 per year, or $16.13 per week, and the compensation is, therefore, payable at the rate of $8.07 per week. He had been paid for thirty days’ non-productive time or the-sum of $45.00. He was idle 15 2/7 weeks from December 29, to April 16th, when death ensued. The total compensation will be four times the yearly rate of $838.80, less the sum of $123.35 which had accrued up to the time of death, or the sum of $3,231.85. This is to be paid to the widow in weekly installments of $8.07. There is as of this date September .12,. 1939 accrued the claimant 229 weeks at $8.07 per week, or the sum of $1,848.03, leaving a balance of $1,383.82, which shall be paid to the claimant at the rate of $8.07 per week, commencing September 19, 1939.

It appears that the hospital bill at LaSalle has been paid. It also appears that Dr. Haskins was a physician of their own choice, and that the deceased was receiving medical care at Manteno State Hospital by Dr. G-ollmar, a physician employed by the State. Therefore, nothing can be allowed for •the physician for the reason that the deceased was under the care of Dr. G-ollmar at Manteno State Hospital and was removed to LaSalle, Illinois, so as to be near his own physician.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Session Laws 1937 page 83), and being" subject further to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly” (Senate Bill 123 as amended) approved July 8, 1939; — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for by the foregoing Acts.


text:
    (No. 1823
    Harrison Engineering and Construction Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    Gillespie, Burke & Gillespie, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, Harrison Engineering and Construction Corporation filed its claim setting forth that it was a corporation duly organized and existing under the laws of the State of Delaware and authorized to do business in the State of Illinois, and that the Harrison Engineering and Construction Corporation of New York was also authorized to do business in the State of Illinois; that prior to the 6th day of June, 1927 and from thence hitherto the Harrison Engineering and Construction Company of New York had been engaged in the construction of hard surfaced roads and highways, bridges and public improvements in general and prior thereto had entered into a certain contract with the State of Illinois acting by and through the Division of Highways of the Department of Public Works and Buildings for the construction of Sections 7 and 8 State Bond Issue Route 30 in Peoria County, Illinois.

The complaint further alleges that the New York Corporation had full equipment necessary for the execution of the contract, which included particular batch boxes used by it prior thereto for six bag batches which had been purchased by it in 1923 for the construction of a certain State Bond Issue highway on Route 25 in Champaign County, Illinois.

The complaint further avers that on the 15th day of May, 1927, the Division of Highways of the Department of Public Works and Buildings acting through its duly authorized agents, ordered said New York Corporation to immediately increase the size of its batch by increasing the amount of sand and gravel being used by it in the construction of this particular highway. The complaint further avers “although upon its urgent request it was permitted to finish said Section 7 with its batch boxes then and there being used by it which under the mixture theretofore used were of sufficient size to enable it to use a six bag batch. ’ ’

The complaint further avers that the claimant complied with the order and did thereafter use a five hag batch and by reason thereof it was from thence to the completion of the contract greatly limited in its daily work, that is to say, it used a five bag batch instead of a six bag batch, and that by reason of the order it was required to consume twenty-one days in the construction of 18,500 feet, which with its six bag batch it could have completed in 13% days; that this increased the cost of construction to the extent of $4,620.00, and the work required 7% more days to complete than it should have, and consequently the claimant suffered a loss of $4,620.00 in the performance of its contract.

The complaint further alleges that the claimant, subsequently to the dates above mentioned, was organized under the laws of the State of Delaware to take over all of the business of the Harrison Engineering and Construction Corporation of New York then and prior thereto transacted or existing in the State of Illinois, and that the New York Corporation assigned all of its rights to the Delaware Corporation.

The complaint does not set forth a copy of the contract.

It is not contended that the State of Illinois wrongfully brought about the change in the size of the batch.

It was stipulated by the Attorney General and Counsel for the claimant that the case should be submitted to the court upon the complaint, the general traverse or denial considered as filed under Bule 15 of the Court of Claims, and without evidence other than the report of C. M. Hathaway, Engineer of Construction of the Division of Highways, which was offered as evidence. Certain exhibits identified by Mr. Hathaway were placed in the record. They consisted of a general report from the District Engineer; general layout of work under the contract; the report and graph showing daily average of cement used for 100 feet of pavement; yield tests taken by the resident engineer on May 19, 1927 and June 23, 1927; graph showing relation of size of batches to capacity of batch boxes on industrial railway, and an analysis which was made of different proportions for different size of batches. All of these exhibits were known as Exhibits “A”, “B”, “C”, “D”, “E”, “F”, and “G”.

We have carefully gone over this technical data in the file, and we find that there was a loss of nine hours on account of the change which was made in the size of the hatch. It appears from this data that the capacity of the batch box for a six bag batch was too small. The figure shows the six bag batch under the new proportions. It shows that the aggregates for a six bag batch would have a total loose volume of 36.06 cubic feet, and the capacity of the boxes was 32.99 cubic feet. The boxes were, therefore, too small.

It is not contended that the State did not have a right to insist upon these changes. There are many facts and figures, graphs and blue prints in the file, but it is left for the court to determine the amount of damages, if any, that the plaintiff is entitled to/

We have given this case much careful thought. We find that the claimant did not file a statement, brief and argument. It is always encumbent upon the claimant, in civil proceedings, to prove its case by a greater weight or preponderance pf the evidence, and no award will be entered against the State unless a claim has been clearly proven and it is shown that some legal or equitable right has been denied the claimant. The burden of proof is always upon the plaintiff. We do not find sufficient allegations to warrant a finding for the claimant, and there is a total lack of any proof to show where the State has done a legal wrong or deprived the plantiff of its rights. There undoubtedly was a written contract but this does not appear from the record; and it does not show how the State violated this contract.

We, therefore, deny any award and direct that the complaint be dismissed.


author: Me. Justice Linscott Mr. Justice Linscott

text:
    (No. 2385
    Madison Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

      Rehearing granted May 11, 1938.

      Opinion on rehearing filed September 13, 1939.

    Terry, Gueltig & Powell, for claimant.
    Otto Keener, Attorney General; Murray F. Milne and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The complaint alleges that the State of Illinois, acting through its Department of Public Works and Buildings, duly gave notice to contractors and to this claimant that sealed proposals for the improvement of a State highway, known as State Bond Issue Route 150, Federal Aid Project Number 194, Section 1922, in Jackson-Randolph County, near Rock-wood, Illinois, by constructing a paved roadway eighteen (18) feet wide with eleven (11) feet of earth shoulders, would be received by the Department on September 7,1932, and as part of said notice to contractors stated that cement for said work would be furnished by the Department.

The claimant made a proposal which was accepted and the contract was awarded to the claimant, and the State and the claimant entered into a contract which was dated October 17, 1932. Under this contract the State was to furnish the cement necessary for the improvement and claimant was to furnish the labor and other materials.

Paragraph' 3 of the claim is as follows:

“The claimant, thereupon and pursuant thereto made a proposal to the said Department for the construction of said road improvement, and the said proposal was, by the said Department, accepted and the work and contract awarded to the claimant, and thereafter the State of Illinois entered into the contract with the claimant which is in words and figures as follows:
Contract.
“1. This agreement, made and concluded his 17th day of October, 1932, between the State of Illinois, acting by and through the Department of Public Works and Buildings, known as the party of the first part, and Madison Construction Company, his/their executors, administrators, successors or assigns, known as the party of the second part.
“2. Witnesseth: That for and in consideration of the payments and agreements mentioned in the Proposal hereto attached, to be made and performed by the party of the first part, and according to the terms expressed in the Bond referring to these presents, the party of the second part agrees with said party of the first part at his/their own proper cost and expense
to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in full compliance with all of the terms of this agreement and the requirements of the Engineer under it.
“3. And it is also understood and agreed that the Notice to Contractors, Special Provisions, Proposal, and Contract Bond, hereto attached, and the Plans for State Bond Issue Route No. 150 Federal Aid Project No. 194, Section 122, in Jackson-Randolph County, dated. August 17th, 1934, and the “Standard Specifications for Road and Bridge Construction,” adopted by said Department January 2, 1932, are all essential documents of this contract and are a part hereof.
“4. In witness whereof, The said parties have executed these presents on the date above mentioned.
The State of Illinois,
By the Department of Public Works and Buildings
By H. H. Cleaveland, Director.
Attest:
Frank T. Sheets,
Acting Superintendent of Highways. Party of the First Part
(If a corporation)
Corporate
Name Madison ' Construction Co.
By Orlie T. Dunlap, President.
Attest:
M. D. Powell, Secretary. Party of the Second Part.
(Corporate Seal Attached).”

The complaint- sets forth' several provisions from the Standard Specifications for Road and Bridge Construction adopted by the Department on January 2, 1932.

It is. averred that ¿fter entering into the contract, complainant immediately entered upon and commenced doing the work according to the contract and employed various persons as managers, superintendents, foremen, machine operators, watchmen, timekeepers and others in perfecting an organization to do the work efficiently and promptly, and placed its machinery and equipment necessary in service at the location of said work, and was prepared to promptly complete the work according to the contract without delay. Under the terms of the contract the work was to be completed July 1, 1933.

It is further averred that upon completion of all the preliminary work necessary to commence laying concrete, the claimant requested the Department to furnish the cement therefor in accordance with the contract, and on January 3, 1933, the Department authorized the claimant to obtain the cement therefor from the Marquette Cement Manufacturing Company of Chicago, Illinois, and afterward on April 5, 1933, the Department authorized the claimant to obtain the cement from the Alpha Portland Cement Company, and the claimant being ready for the use of the cement, instructed the Alpha Portland Cement Company to ship six cars of cement on April 25, 1933, and thereafter, five hundred barrels of cement per day until further notice, said cement to be used upon this improvement.

It is further alleged that notwithstanding the authorization to obtain cement, that on or about April 25, 1933, the State withdrew its consent for the shipment of the cement and instructed the cement company to make no shipments until further notice, and by reason of the refusal of the Department to comply with its contract and furnish the cement as required, the claimant was compelled to suspend operations indefinitely and wait for cement, and the work was suspended from April 27, 1933, to June 27, 1933, at which time the Department furnished the cement and the work was continued until completed.

It is also charged0 that during the time the work was suspended, which was two months, the claimant paid its manager, its superintendent and other employees, and its machinery and equipment was held ready for use on the job and could have been used in said work on nearly every day during the period of time it was waiting for cement, and it had other contract jobs in which it could have used its machinery and equipment, and because of the failure of the State to furnish cement, the claimant avers that it is entitled to the sum of Twenty-one Thousand Two Hundred Twenty-one Dollars and Sixty-six Cents ($21,221.66).

From the evidence it appears that claimant did everything he could reasonably do to obtain cement.

It is a well known fact that during this time the cement dealers had greatly increased the cost of cement without any apparent reason. On April 27, 1933, claimant wrote the Highway Department to the effect that it had been put to huge expenses on account of unavoidable conditions, and for it to assume additional heavy expenses to cooperate on a bad situation, which could be avoided, it could not fully agree to do, unless the Department agreed to reimburse it for all of its losses. The claimant stated in this letter that it had carefully studied all of the correspondence relative to the matter, and found only a “request” not to order cement had been made, and it positively stated that it had construed that to mean a “request” instead of positive instructions was given to avoid any liability, and claimant informed the State that if the State would assume the financial liability and expenses it would be glad to cooperate with the “request” and Governor Horner, but otherwise claimant was not willing to assume the expense of stopping the work and laying up the equipment. Claimant further called the State’s attention to the fact that there were no provisions in the contract which permitted the State to cancel the contract or suspend the work at its option whenever the arrangements for securing cement by the State were not as satisfactory as the State had expected, and stated in its letter that the condition confronted was not brought about by the failure of the State to secure the cement, but simply, as claimant understood it, the State desired more favorable price or terms, and claimant stated that it was not responsible for this, and emphasized the fact that the State should be responsible for the loss and not the contractor. This is the substance of Claimant’s Exhibit 10.

Claimant’s Exhibit 13 is a letter from the Governor to the claimant. In this he acknowledged receipt of a telegram and stated while he was in sympathy with the claimant’s situation, “you surely do not expect your State to submit to the efforts of a combination of cement manufacturers to impose an arbitrary and excessive price upon the State. Personally, I expect every good citizen to stand behind my efforts to prevent the State being mulcted.”

From the above we see the attitude of both claimant and the State. It is very apparent that the claimant was delayed from April 27th to June 27, 1933. The contract provided for the work to be completed by July 1, 1933. Claimant finished paving on Section No. 122 on July 29,1933, and clean up work and shouldering were completed October 14, 1933. It is not claimed that there was any increased cost in shouldering or cleaning caused by rise of price of labor or materials, or that claimant’s paving equipment was held on the job for this worki

The Attorney General argues that there were nineteen days on which weather conditions would have prevented operation, even if the cement was available, and there does not seem to be anything in the record to controvert this.

The State offered testimony that claimant’s method of arriving at its loss incurred by reason of idle equipment during the two months period included items which were not applicable to idle equipment for which claimant made charge. Claimant’s testimony with reference to its expense for the equipment during the two months period was based upon the average cost of ownership as compiled by the Associated General Contractors of America, Inc., rather than upon claimant’s actual experience in regard to the particular items of equipment involved.

The report of the Division of Highways disclosed that on January 20, 1934, the final estimate had been prepared by the engineer, and the claimant was paid the sum of $9,669.98, which was the last payment for this job; that the claimant accepted the warrant issued for this amount and cashed the same.

Several questions have been raised upon the record both by claimant and the State.

The State argues that under no circumstances would the claimant be entitled to compensation for the delay referred to for the period of time from July 1, 1933, to July 29, 1933, for the reason that claimant was to finish the job on July 1, 1933, and it eventually finished the paving job on July 29, 1933, and that nineteen days during the period in which the cement was not furnished were unsuitable for operation on account of weather conditions, and the State cites authorities to that effect.

The claimant argues that under its system of figuring damages, it was entitled to compensation, but under our view of the case it will not be necessary to decide which system was proper.

It is averred in claimant’s complaint, Paragraph 3, Section 3 thereof, that Standard Specifications for Road and Bridge Construction, adopted by the Department on January 2, 1932, is an essential part of the contract, and made a part thereof. The Standard Specifications provide that the acceptance by the contractor of the last payment shall operate as and shall be a release to the Department from all claims or liability under the contract for anything done or furnished or relating to the work under the contract, or for any act or neglect of the Department relating to or connected with the contract. Claimant does not dispute this, but says that at no time was this question raised until it was raised in the brief filed by the Attorney General, and that it was greatly surprised and, therefore, this Court should not consider it. That payment was finally made is not denied. This provision of the contract is set forth in the complaint. Just how they were taken by surprise does not appear. It was a part of the contract and certainly known to the claimant at the time the contract was entered into.

In the case of Urech vs. State of Illinois, 8 C. C. R., page 212, this Court held that “where party is paid amount provided in contract, and it is provided therein that acceptance of payment shall release State from any and all claims and liabilities thereunder, an allowance for an additional amount claimed as damages would constitute extra compensation and is prohibited by the Constitution of the State of Illinois.”

The claimant cannot now be heard to say that it did not know that such a provision was in the contract. This was a contract that was voluntarily and fairly entered into by both parties.

At the time the claimant received the final payment, it must be held to have been familiar with this provision of the contract, and the constitutional provisions herein referred to, and for these reasons we hold that the claimant, if entitled to an award, has waived that right. An award, therefore, will be denied.

Opinion on Rehearing.

Mr. Justice Linscott

delivered the opinion of the court:

This cause now comes before the Court on an order allowing Petition for Rehearing.

It was charged in the Petition for Rehearing that the decision of the Court is against the claimant on the sole ground that the contract provides that acceptance by the contractor of the last payment shall operate as and for a release to the Department of Highways for all claims in connection with the work. The release was not pleaded and was not an issue at the trial.

After the Petition for Rehearing was granted, proof was introduced by O. T. Dunlap, president and manager of the claimant, and many exhibits were offered in evidence. Several other witnesses testified, being O. M. Hathaway, Charles York and Clarence A. Hamlin, all tending to show that the provisions of the original contract concerning final payment had been waived on behalf of the highway officials of Illinois.

The original complaint alleges that the State of Illinois, acting through its Department of Public Works and Buildings, duly gave notice to contractors and to this claimant that sealed proposals for the improvement of a State Highway, known as State Bond Issue Route 150, Federal Aid Project Number 194, Section 1922, in Jackson-Randolph County, near Rockwood, Illinois, by constructing a paved roadway eighteen (18) feet wide with eleven (11) feet of earth shoulders, would be received by the Department on September 7, 1932, and as part of said notice to contractors stated that cement for said work would1 be furnished by the Department.

The claimant made a proposal which was accepted and the contract was awarded to the claimant, and the State and the claimant entered into a contract which was dated October 17, 1932. Under this contract the State was to furnish the cement necessary for the improvement and claimant was to furnish the labor and other materials.

Paragraph 3 of the claim is as follows:

“The claimant, thereupon and pursuant thereto made- a proposal to the said Department for the construction of said road improvement, and the said proposal was, by the said Department, accepted and the work and contract awarded to the claimant, and thereafter the State of Illinois entered into the contract with the claimant which is in words and figures as follows:
Contract.
“1. This agreement, made and concluded this 17th day of October, 1932 between the State of Illinois, acting by and through the Department of Public Works and Buildings, known as the party of the first part, and Madison Construction Company, his/their executors, administrators, successors or assigns, known as the party of the second part.
“2. Witnesseth : That for and in consideration of the payments and agreements mentioned in the Proposal hereto attached, to be made and performed by the party of the first part, and according to the terms expressed in the Bond referring to these presents, the party of the second part agrees with said party of the first part at his/their own proper cost and expense to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in) full compliance with all of the terms of this agreement and the requirements of the Engineer under it.
“3. And it is also understood and agreed that the Notice to Contractors, ■ Special Provisions, Proposal, and Contract Bond, hereto attached, and the Plans for State Bond Issue Route No. 150 Federal Aid Project No. 194, Section 122, in Jackson-Randolph County, dated August 17th, 1934, and the “Standard Specifications for Road and Bridge Construction,” adopted by said Department January 2, 1932, are all essential documents of this contract and are a part hereof.
“4. In witness whereof, The said parties have executed these presents on the date above mentioned.
The State of Illinois
By the Department of Public Works and Buildings
By H. H. Cleaveland, Director.
Attest:
Frank T. Sheets,
Acting Superintendent of Highways. Party of the First Part
(If a corporation)
Corporate
Name Madison Construction Co.
Attest:
M. D. Powell, Secretary. By Orlie T. Dunlap, President.
(Corporate Seal Attached).” Party of the Second Part.

The complaint sets forth several provisions from the Standard Specifications for Eoad and Bridge Construction adopted by the Department on January 2, 1932.

It is averred that after entering into the contract, complainant immediately entered upon and commenced doing the work according to the contract and employed various persons as managers, superintendents, foremen, machine operators, watchmen, timekeepers and others in perfecting an organization to do the work efficiently and promptly, and placed its machinery and equipment necessary in service at the location of said work, and was prepared to promptly complete the work according to the contract without delay. Under the terms of the contract the work was to be completed July 1, 1933.

It is further averred that upon completion of all the preliminary work necessary to commence laying concrete the claimant requested the Department to furnish the cement therefor in accordance with the contract, and on January 3, 1933, the Department authorized the claimant to obtain the cement therefor from the Marquette Cement Manufacturing Company of Chicago, Illinois, and afterward on April 5, 1933, the Department authorized the claimant to obtain the cement from the Alpha Portland Cement Company, and the claimant being ready for the use of the cement, instructed the Alpha Portland Cement Company to ship six cars of cement on April 25,1933, and thereafter, five hundred barrels of cement per day until further notice, said cement to be used upon this improvement.

It is further alleged that notwithstanding the authorization to obtain cement, that on or about April 25, 1933, the State withdrew its consent for the shipment of the cement and instructed the cement company to make no shipments until further notice, and by reason of the refusal of the Department to comply with its contract and furnish the cement as required, the claimant was compelled to suspend operations indefinitely and wait for cement, and the work was suspended from April 27, 1933, to June 27, 1933, at which time the Department furnished the cement and the work was continued until completed.

It is also charged that during the time the work was suspended, which was two months, the claimant paid its manager, its superintendent and other employees, and its machinery and equipment was held ready for use on the job and could have been used in said work on nearly every day during the period of time it was waiting for cement, and it had other contract jobs in which it could have used its machinery and equipment, and because of the failure of the State to furnish cement, the claimant avers that it is entitled to the sum of Twenty-one Thousand Two Hundred Twenty-one Dollars and Sixty-six Cents ($21,221.66).

From the evidence it appears that claimant did everything he could reasonably do to obtain cement.

It is a well known fact that during this time the cement dealers had greatly increased the cost of cement without any apparent reason. On April 27, 1933, claimant wrote the Highway Department to the effect that it had been put to huge expenses on account of unavoidable conditions, and for it to assume additional heavy expenses to cooperate on a bad situation, which could be avoided, it could not fully agree to do, unless the Department agreed to reimburse it for all of its losses. The claimant stated in this letter that it had carefully studied all of the correspondence relative to the matter, and found only a “request” not to order cement had been made, and it positively stated that it construed that to mean a “request” instead of positive instructions was given to avoid any liability, and claimant informed the State that if the State would assume the financial liability and expenses, it would be glad to cooperate with the “request” and Governor Horner, but otherwise claimant was not willing to assume the expense of stopping the work and laying up the equipment. Claimant further called the State’s attention to the fact that there were no provisions in the contract which permitted thé State to cancel the contract or suspend the work at its option whenever the arrangements for securing cement by the State, were not as satisfactory as the State had expected, and stated in its letter that the condition confronted was not brought about by the failure of the State to secure, the cement, but simply, as claimant understood it, the State desired more favorable price or terms, and claimant stated that it was not responsible for this, and emphasized the fact that the State should be responsible for the loss and not the contractor. This is the substance of Claimant’s Exhibit 10.

Claimant’s Exhibit 13 is a letter from the Governor to the claimant. In this he acknowledged receipt of a telegram and stated that while he was in sympathy with the claimant’s situation, “you surely do not expect your State to submit to the efforts of a combination of cement manufacturers to impose an arbitrary and excessive price upon the State. Personally,! expect every good citizen to stand behind my efforts to prevent the State being mulcted. ’ ’

Prom the above we see the attitude of both claimant and the State. It is very apparent that the claimant was delayed from April 27th to June 27, 1933. The contract provided for the work to be completed by July 1, 1933. Claimant finished paving on Section No. 122 on July 29,1933, and clean-up work and shouldering were completed October 14, 1933. It is not claimed that there was any increased cost in shouldering or cleaning up caused by rise of price of labor or materials or that claimant’s paving* equipment was held on the job for this work.

Since the original opinion was rendered in this cause this court, in passing upon similar facts in the case of James P. O’Keefe Company, a Corporation, vs. State of Illinois, No. 2438, said: “It also might well be assumed that the public officials of the State of Illinois, through its Chief Executive, the Governor of the State of Illinois, rightfully felt that the action of the cement manufacturers or dealers was such as to make those public improvements so costly as to be prohibitive and against public policy.” In that same opinion we also quoted Pope Mfg. Co. vs. Gormully, 144 U. S. 224, 36 L. ed. 414, wherein it was held that courts have not exactly defined the term “public policy” because it is impossible to define .with accuracy what is meant by that phrase, for an interference and violation of which a contract may be declared invalid. There the court said: “It may be understood in general that contracts which are detrimental to the interests of the public as understood at the time fall within the ban. ’ ’

It appears from the record in this case that the State had entered into a contract with the claimant at a time when the price of cement was satisfactory to all concerned, and as we understand it, it is common practice to let contracts of this character at various seasons of the year, and at times when the contract is not to be performed for several months. The questions here presented are of much importance for those reasons. The exorbitant prices demanded by cement manufacturers affected the whole State of Illinois. This claim for damages arising from the fact that the State could not furnish cement, could, therefore, be denied on the grounds of public policy.

In the O’Keefe case, supra, we said: “It may be contended that in repudiating any liability on behalf of the State for its failure to furnish cement under the circumstances in this case is an unconscionable act. The answer to this is that in a situation of this kind the interest of the public, rather than the equitable standing of individual parties, is of determining importance; and we base our opinion upon principles of public policy and to conserve the public welfare. ’ ’

It is admitted by claimant that there were times, owing to weather conditions, when the work could not have proceeded and no paving could have been laid, even if the State had furnished cement.

A much bigger and broader question, however, is presented than arises or could possibly arise under that provision of the contract wherein it is claimed that claimant has waived its right to further compensation, and that question is: Should the State be held to the same rules as any private party entering into a contract of this kind? That question has been determined by the Supreme Court of the United States and other Federal Courts.

In the case of United States vs. Warran Transportation Company, 7 Fed. (2d) 161, in discussing a similar feature, the Court said: “When the United States-is a party litigant it assumes one of two characters; it may appear in the character of a sovereign or in the character of contractor.” Continuing, the court held: “It follows, therefore, that when the United States appears as a contractor, it cannot be held liable for an obstruction to the performance of its contract resulting from its public and general acts as sovereign, whether legislative or executive.” The court cited numerous authorities.

The Supreme Court of the United States in the case of Horowitz vs. United States, 267 U. S. 458, 69 L. Ed. 736, dismissed the petition, on demurrer, for failure to state a cause of action. On December 20, 1919, the claimant submitted a bid for certain silk, and at that time an agreement was made that the claimant would be given an opportunity to resell the silk before completing the payment of the purchase price, and that the “departments of the government having jurisdiction in matters of this kind” would ship the silk, which was then in Washington, within a day or two after shipping instructions were given. On December 22 claimant was notified by the board that the sale of the silk to him" had been “approved,” and claimant thereupon paid part of the purchase price, and on January 30, 1920,- he sold the silk to a silk company in New York. On February 16 he paid the balance of the purchase price and wrote the board to ship the silk at once, by freight, to the silk company. Two days later claimant was notified by the board that it had received the shipping instructions and had ordered the silk to be shipped. Thereafter the price of silk declined greatly in New York market until March 4. On that date the. claimant learned that the silk was still in Washington and had not been shipped because the government, through one of its agencies, the United States Railroad Administration, had, prior to March 1, 1920, placed an embargo on shipments of silk by freight, and that the shipment of silk for claimant had been held up. Afterwards the government shipped the silk to the, consignee by express. It arrived in New York on or about March 12. The consignee then refused to accept delivery on account of the fall in the prices. And “by reason of the government’s breach of the contract and agreement in placing an embargo, and failing to sMp the silk either by express or freight prior to March 4, 1920, the price of silk having declined, the claimant was forced to sell the said silk for $10,811.84 less than the price the consignee had agreed to pay for same had it been delivered in time.” The petition alleges that the claimant is entitled to recover from the United States the said snm of $10,811.84 “for and on account of the violation of the said agreement” and prayed judgment. The court affirmed the Court of Claims and held that the United States, when sued as a contractor, cannot be held liable for an obstruction to the performance of a particular contract, resulting from its public and general acts as a sovereign. Deming vs. United States, 1 Ct. Claims, 190, 191; Jones vs. United States, 1 Ct. Claims, 383; Wilson vs. United States, 11 Ct. Claims, 513.

In the Jones case, 1 Ct. Claims, 383, the Court said: “The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant Would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defendants.”

By a parity of reasoning the same rules would apply to the State of Illinois acting in its sovereign capacity.

Basing our conclusions on the language of the Supreme Court of the United States in the Horowitz case, supra, we must hold that when the State of Illinois is sued as a contractor on a contract entered into by the Highway Department, it cannot be held liable for an obstruction to the performance of a particular contract, resulting from its public and general acts as a sovereign. The Governor of the State of Illinois was acting on behalf of the People of Illinois. No other person could have performed those acts. The Governor himself well stated his reasons in Claimant’s Exhibit 13, which was a letter from the Governor to the claimant. In this the Governor acknowledged receipt of a telegram and stated that while he was in sympathy with the claimant’s situation, “you surely do not expect your State to submit to the efforts of a combination of cement manufacturers to impose an arbitrary and excessive price upon the State. Personally, I expect every good citizen to stand behind my efforts to prevent the State being mulcted. ’ ’

The facts justified the acts of the Governor. It is unfortunate that-this claimant lost money, but as said above, “in a situation of this kind the interest of the public, rather than the equitable standing of individual parties, is of determining importance.”

Irrespective of whether the release relied upon by the Attorney General was or was not pleaded, under the conclusions above stated, we find that on the grounds of public policy, and under the holdings of the Supreme Court of the United States in the case of Horowitz vs. United States, 267 U.. S. 458, 69 L. Ed. 736, the claim made by claimant cannot be allowed, and same is therefore denied and cause dismissed.


author: Me. Justice Linscott

text:
    (No. 1887
    J. Malcolm Strelitz et al., Claimants, vs. State of Illinois, Respondent.

      Opinion on rehearing filed September 13, 1939.

    Gunn, Penwell & Lindley, for claimant.
    John E. Cassidy, Attorney, General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

An opinion was heretofore rendered in this cause allowing the claimants $192.86, and thereafter a petition for rehearing was filed by the Attorney General and said petition was granted on January 12, 1938.

A stipulation of facts was filed herein on March 14, 1936.

The Court finds that in granting an award for the claimants it did miscontrue the facts. The claimants charged that on January 30, 1930, and on February 13, 1930, the Electric Shovel Coal Corporation filed in the office of the Secretary of the State of Illinois annual reports for the year 1929, for the purpose of paying franchise taxes and initial fee taxes, showing that the Electric Shovel Coal Corporation’s capital stock, represented by business transacted and property located in the State of Illinois was 34.45 per cent of the total issued capital stock; that the total issued' capital stock was given in said reports as $3,900,500.00, making the proportion taxable in Illinois $1,343,722.00, which at five cents per $100.00 made the annual franchise tax $671.86, and that an initial fee having previously been paid on $1,025,379.00 under the aforesaid reports, there was therefore due an additional initial fee on $318,343.00, or the sum of $109.07. The Electric Shovel Coal Corporation paid by its draft dated June 28, 1930, to the State of Illinois the aforesaid sums of $671.86 and $109.07. Claimants then charged that the above figures thus submitted by them to the Secretary of State were erroneous, and that in fact and in truth the proportion of said Electric Shovel Corporation’s corporate capital stock represented by business transacted and property located in the State of Illinois was 34.45 per cent on $3,195,240.00, or $1,000,760.18, and that therefore the annual franchise tax due was five cents per $100.00 on $1,000,760.18, or the sum of $500.38, making an over payment of $171.48, and that an over payment was therefore made on the initial fee amounting to $109.07, or a total of $280.55.

Under the stipulation of facts filed a further correction is made upon the computations involved, and it is agreed that the total correct amount of tax due at the time in question was $588.07; that the tax actually paid was $780.93 and that the over payment made by claimant was $192.86.

It appears from the file that these taxes were voluntarily paid under a mistake of law and cannot be recovered.

The Arundel Corp. vs. State, 8 C. C. R. 506;
Mohawk Carpet, Mills vs. State, 8 C. C. R. 37;
Chicago Foundation Co. vs. State, 8 C. C. R. 22.

In the ease of Handy Button Machine Co. vs. State No. 2786, which opinion was filed in this Court under date of February 10, 1937, we held that where the claimant had an adequate remedy at law and failed to take advantage thereof and paid the tax with full knowledge of all the facts, payment must be considered as having been voluntarily made and claimant is not entitled to a refund.

This court has further held that when the statute provides a limitation for the taxpayer and he fails to take advantage thereof he cannot claim that the tax was involuntarily paid.

Butler Co. vs. State, 9 C. C. R. 503;
Western Dairy Co. vs. State, 9 C. C. R. 498;
Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517.

There does not appear to have been any fault or negligence on behalf of the Secretary of State, and we cannot see that there was any mistake of fact. The claim .herein was computed and collected by the Secretary of, State in accordance with law, based on information submitted by claimant, and a claim for rebate of a part thereof alleged to have been excessive on account of error in information furnished by claimant will be denied.

Seth-Seiders, Inc., vs. State, 7 C. C. R. 9;
Emerick vs. State, 9 C. C. R. 510.

The report of the Secretary of State shows that the original tax assessment for the year 1930 was made upon the report furnished by the Electric Shovel Coal Corporation, and further shows that the assessment was correctly made upon the amount shown in such report. From the facts presented to the Secretary of State the tax was correctly assessed and the amount was paid voluntarily. The true facts were known only to the claimant, and any mistake therefore was not a mutual mistake of fact, but was a mistake known only by the officers of the corporation of which claimant was the receiver.

An award, therefore, will be denied.


author: Mr. Justice Yantis

text:
    (No. 1480
    Judson P. Wetherby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1939.

    M. D. Morahn, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This cause now comes before the Court upon Supplemental Briefs and Arguments filed by claimant and respondent, respectively, on August 14, 1939, and August 4, 1939.

The claim was originally filed April 12, 1929, asking for an award for injuries suffered by claimant on September 20, 1928, while engaged in his duties as a Highway Engineer, Department of Public Works and Buildings of the State of Illinois. In an opinion filed May 19, 1929, appearing in Volume 6, Court of Claims Reports, page 290, an award, of Four Thousand ($4,000.00) Dollars was granted to claimant. The Court there found that claimant up to that time had incurred medical, hospital and ambulance expense to the extent of Three Thousand Seven Hundred Ninety-four ($3,794.00) Dollars as a result of his injuries.

The accident occurred while claimant with others was supervising the blowing out of trees and stumps on a proposed right-of-way. A large piece of wood struck petitioner, knocking him down and breaking his right leg in ten places between the knee and the ankle and also breaking the ankle. Both large and small bones of the leg were broken and petitioner suffered a long series of operation and treatment in various hospitals. On April 10,1931, claimant filed his further petition in which he represented that, he had received a permanent injury to his leg’, and that since the payment of the award of Four Thousand ($4,000.00) Dollars he had necessarily incurred expenses in an effort to relieve and cure himself of the effects of his injury, in sums aggregating' Three Thousand Six Hundred Thirty-four and 25/100 ($3,634.25) Dollars, for which he then sought a further award, together with such compensation for the period during which he had been unable to work as the court might see fit to grant. He further represented that the injured leg had not healed at that time and was still draining, and that such condition might continue for two years. On May 14, 1931, the court disallowed any additional claim, and in its Opinion stated as follows:

“This Court is of the opinion that some definite sum should be claimed and determined to cover the damages sustained by the Claimant. It would not seem fair that the State of Illinois as tax-payer should wait in suspense as to possible liability, and this Court is of the opinion that no recommendation should be made until the full and permanent liability of the State is established.”

Thereafter, on January 11, 1933, a rehearing was granted. Claimant thereafter filed his amended statement on November 16, 1933, wherein it appears that of the amount of Three Thousand Six Hundred Thirty-four and 25/100 ($3,634.25) Dollars sought to be recovered by the amended petition of May 14, 1931, the State Highway Department had subsequently paid Two Thousand Four Hundred Twenty and 70/100 ($2,420.70) Dollars; that there remained due for money expended for hospitalization and medical care the sum of One Thousand Three Hundred Ninety-eight and 55/100 ($1,398.55) Dollars, plus other additional moneys which claimant has subsequently expended. Claimant contends that he has suffered a fifty (50) per cent loss of use of the right leg as a permanent disability and now seeks an award for such fifty (50) per cent total loss of use of the right leg and for the sum of One Thousand Three Hundred Ninety-eight and 55/100 ($1,398.55) Dollars for additional medical, surgical and hospital care paid out by him in seeking recovery.

It further appears from a Highway Departmental Report filed herein on September 17, 1938, that claimant was injured on September 20, 1928; that he returned to work on June 9, 1930; that during this entire period of disability of ' 20-19/30ths months he was paid his full salary in the amount of Four Thousand Three Hundred Thirty-three ($4,333.00) Dollars. He had no children under the age of sixteen years at the time of the accident, and under the terms of the Workmen’s Compensation Act then in effect was entitled to receive compensation at the rate of Fourteen ($14.00) Dollars per week for 89-3/7ths weeks of temporary disability, amounting to One Thousand Two Hundred Forty-six ($1,246.00) Dollars. Claimant therefore received an over payment of temporary disability compensation in the amount of Three Thousand Eighty-seven ($3,087.00) Dollars.

The compensable sum for the loss of use of a leg is fifty (50) per cent of the average weekly wage for a period of 190 weeks. Under claimant’s contention and the evidence in support thereof, for a fifty (50) per cent loss of use of such right leg, claimant would be entitled to the sum of One Thousand Three Hundred Thirty ($1,330.00) Dollars. A tabulation of the sums which claimant has received and to which he might have been entitled is as follows:

Surgical and hospital expense prior to May 8, 1929......*...........$3,794.00
Paid by Respondent under award................................. 4,000.00
Subsequent bills incurred for medical care.......................... 3,634.25
Paid to Claimant by Highway Department for medical expense...... 2,711.30
Balance of medical and hospital expense for which Claimant has not been directly repaid............................................. 716.95

According to the Departmental Report, he was further entitled to 89-3/7ths weeks temporary total disability at Fourteen ($14.00) Dollars per week, or One Thousand Two Hundred Forty-six ($1,246.00) Dollars. He has heretofore been paid wages in full for non-productive time for 20-19/30ths months, or Four Thousand Three Hundred Thirty-three ($4,333.00) Dollars, or an over payment of Three Thousand Eighty-seven ($3,087.00) Dollars. If an award were granted to him for a fifty (50) per cent loss of use of his right leg in the sum of One Thousand Three Hundred Thirty ($1,330.00) Dollars, and for the further sum of Seven Hundred Sixteen and 95/100 ($716.95) Dollars, balance of medical care for which he has not previously been directly reimbursed, said two items would amount to Two Thousand Forty-six and 95/100 ($2,046.95) Dollars, which sum subtracted from the over payment heretofore made to him of wages chargeable as compensation still leaves an over payment to him of One Thousand Forty and 05/100 ($1,040.05) Dollars.

This court is charged with the duty of administering the provisions of the Workmen’s Compensation Act in matters pertaining to State employees. We are charged with determining the rights of claimants under the limitations of that Act. There is no basis upon which we can legally justify making-an award for additional payment of funds to an employee, however grievously injured, when the record discloses that such employee has already received from the State an amount in excess of what his rights would entitle him to under the provisions of the Workmen’s Compensation Act. He seeks his award by virtue of that Act, and he and the court must be governed by its provisions. Any further award is hereby denied and the claim dismissed.


author: Mr. Chief Justice Hollerioh

text:
    (No. 3135
    Mollie Graf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1939.

    Harry C. Daniels, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

From the stipulation of facts herein it appears that the claimant, Mollie Graf, on September 12, 1936, and for some time prior thereto, was employed by the respondent as a cook at the Elgin State Hospital, Elgin, Illinois; that on the last mentioned date, while at such institution and in the performance of her duties, she slipped and fell, fracturing her right wrist; that she was immediately taken to the institution hospital, the fracture was reduced and a cast applied; that subsequent X-rays revealed the necessity for a further' reduction of the fracture, and claimant was sent to the Illinois Research and Educational Hospital at Chicago, where she was operated and received treatments which eventually resulted in her recovery with no loss of function of the injured wrist or hand, and she returned to her work on February 1,1937.

Upon a consideration of all of the facts in the record, the Court finds:

1. That on the 12th day of September, 1936, claimant and respondent were operating under and bound by the provisions of the Workmen’s Compensation Act of this State.

2. That on said date the claimant sustained accidental injuries which arose out of and in the course of her employment.

3. That notice of the accident was given and claim for compensation on account thereof was made within the time required by the Compensation Act.

4. That the annual earnings of the claimant for the period of one year prior to the injury in question were $1,188.00 and the average weekly wage was $22.84.

5. That claimant at the time of the injury had no children under the age of sixteen (16) years.

6. That necessary first aid, as well as all medical, surgical and hospital services were furnished by the respondent, but the claimant was required to and did expend the sum of $32.05 in connection with her treatment at the Illinois Research Hospital.

7. That claimant was temporarily totally disabled from the date of her injury as aforesaid, to wit, September 12, 1936, to February 1, 1937, and has been paid the sum of $55.00 to apply on the compensation due her.

8. That claimant is therefore entitled to have and receive from the respondent, for temporary total disability as aforesaid, the sum of Eleven Dollars and Forty-two Cents ($11.42) per week for twenty (20) weeks, to wit, the sum of Two Hundred Twenty-eight Dollars and Forty Cents ($228.40), in accordance with the provisions of Paragraph (b) of Section Eight (8) of the Workmen’s Compensation Act of this State, as amended, and is also entitled to have and receive from the respondent the sum of Thirty-two Dollars and Five Cents ($32.05) for money advanced by her for expenses as hereinbefore set forth, making a total of Two Hundred Sixty Dollars and Forty-five Cents ($260.45); that respondent is entitled to a credit of Fifty-five Dollars ($55.00) for compensation heretofore paid to claimant, as hereinbefore set forth; that the net amount due claimant as aforesaid is Two Hundred Five Dollars and Forty-five Cents ($205.45).

9. That all of such compensation has accrued prior to this date.

Award is therefore entered in favor of the claimant for the sum of Two Hundred Five Dollars and Forty-five Cents ($205.45).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and providing for the Method of Payment Thereof,” approved July 3, 1937 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled ‘ ‘ An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly” (Senate Bill 123 as amended) approved July 8, 1939; — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given made payable from the appropriation from the General Revenue Fund in the manner provided for by the foregoing Acts.


author: Mr.. Chief Justice Hollerich

text:
    (No. 3348
    Susan Marie Hertel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1939.

    Gerald C. Snyder, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr.. Chief Justice Hollerich

delivered the opinion of the court:

For more than one year prior to October 17th, 1938, Leo Nicholas Hertel, deceased husband of the claimant herein, was employed as a day laborer in the Division of Highways of the Department of Public Works and Buildings of the respondent. On the last mentioned date, while in the performance of his duties, he sustained accidental injuries which resulted in his death on the next succeeding day.

Just prior to the time of the accident which resulted in his death, said Leo Nicholas Hertel was working with several other employees on U. S. Boute No. 41, about one mile north of the Village of Gurnee, in Lake County. Boute No. 41 is essentially a north and south route, but at the point of the accident is more nearly east and west. The roadway at that point consists of two pavements, each thirty feet in width, with a boulevard between them, and each pavement is divided into three traffic lanes.

Hertel was engaged in pouring tar into pavement cracks and expansion joints in the concrete roadway. On account of the fact- that the workmen were continually moving along the highway, no “Men Working” signs were placed on the highway, but the workmen were protected by a flagman. The maintenance patrolman had instructed the flagman to take the Division service truck and get a supply of fresh drinking water, and at the same time instructed Hertel to stop pouring operations until the flagman returned.

Hertel started to move off the pavement, but stopped to pour tar into a longitudinal joint between the outside and middle traffic lane. At that time an automobile was approaching from the west, in the outside traffic lane. The driver “tapped” the horn when he was approximately 'fifty feet from Hertel, and slackened the speed of his car. Apparently Hertel did not hear or see the approaching car, as he kept on moving, and walked into the left front side of the' car and was struck by the left front fender.

The maintenance patrolman was facing in the opposite . direction and did not see the accident, and the only eye witnesses were the driver and the passengers in the car.

The only question involved in the case is whether claimant is barred from maintaining a proceeding under the Workmen’s Compensation Act by reason of the fact that at the time of the accident her husband was violating the instructions of his superior officer in failing to cease pouring operations until the return of the flagman.

A similar question was considered by our Supreme Court in the case of Republic Iron Co. vs. Ind. Com., 302 Ill. 401, and the rule was there laid down as follows: (page 406)

“The rule is, that 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. (Union Collier Co. vs. Industrial Com., 298 Ill. 561.) As was said in the case just cited in quoting from the case of Jackson vs. Denton Colliery Co., W. C. & Ins. Rep. 91, (7 B. W. C. C. 92), it does not matter in the slightest degree how many orders the employee disobeys or how bad his conduct may have been if he was still acting in the sphere of his employment and in the course of it the accident arose out of it.”

The rule there announced is in accordance with the previous decisions of the court. Chicago Ry. Co. vs. Ind. Board, 276 Ill. 112; Union Colliery Co. vs. Ind. Com., 298 Ill. 561.

In the case of Imperial Brass Co. vs. Ind. Com., 306 Ill. 11, the court quoted from the decision in the Republic Iron Co. case, and after a consideration of the previous authorities on the subject, adhered to the rule above set forth.

At the time of the accident in question, Hertel was acting within the sphere of his employment and in the course of it, and consequently his failure to obey the orders of his superior does not constitute a bar to this action.

Upon a consideration of all of the evidence in the record, we find as follows:

1. That- on October 17th, 1938 claimant’s intestate, Leo Nicholas Hertel, and the respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

2. That on said day said Leo Nicholas Hertel sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the next succeeding day.

3. That notice of the accident was given to the respondent, and claim for compensation on account thereof was made within the time required by the provisions of the Workmen’s Compensation Act.

4. That the necessary first aid, medical, surgical and hospital services were provided by the respondent.

5. That said Leo Nicholas Hertel left him surviving the claimant, Susan Marie Hertel, his widow, and Donald Hertel, Howard Hertel, and Earl Hertel, his children, all of whom were totally dependent upon the earnings of said Leo Nicholas Hertel for their support; that all of said children were under the age of sixteen years at the time of the accident.

6. That the earnings of said Leo Nicholas Hertel during the year next preceding the injury were Twelve Hundred Forty-eight Dollars ($1,248.00), and his average weekly wage was Twenty-four Dollars ($24.00).

7. That under the provisions of Sections 7-a and 7-h-4, the amount of compensation to be paid to the dependents of said Leo Nicholas Hertel, is Five Thousand Dollars ($5,000.00); that such compensation is payable in weekly installments of Fifteen Dollars ($15.00) per week, commencing October 19th, 1938.

8. That the share of such compensation which otherwise would be payable to said Donald Hertel, Howard Hertel and Earl Hertel, should be paid to their mother, Susan Marie Hertel, for the support and maintenance of such children.

9. That said Susan Marie Hertel is now entitled to have and receive from the respondent the sum of Seven Hundred Five Dollars ($705.00), being the amount of compensation which lias accrued from October 19th, 1938 to September 13th, 1939, to-wit, forty-seven (47) weeks, at Fifteen Dollars ($15.00) per week.

It Is Therefore Ordered that the share of such compensation which otherwise would be payable to the said Donald Hertel, Howard Hertel and Earl Hertel, shall be payable to their mother, Susan Marie Hertel, for the support and maintenance of such children.

It Is Further Ordered that an award be entered herein in favor of the claimant, Susan Marie Hertel, for the sum of Five' Thousand Dollars ($5,000.00), payable as follows, to-wit:

The sum of Seven Hundred Five Dollars ($705.00), being the amount of compensation which has accrued from October 19th, 1938 to September 13th, 1939, shall be paid forthwith.

The balance of such compensation, to-wit, the sum of Forty-two Hundred Ninety-five Dollars ($4,295.00), shall be paid in Two Hundred Eighty-six (286) weekly installments of Fifteen Dollars ($15.00) each, commencing September 20th, 1939, and one final installment of Five Dollars ($5.00).

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Session Laws 1937, page.83), and being subject further to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly,” approved July 1st, 1939 (Session Laws 1939, page 117); — and being by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Mb. Chief Justice Hollebich

text:
    (No. 3150
    Illinois Central Telephone Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1939.

    Hopkins, Suttee, Halls & DeWolfe, for claimant.
    John E. Cassidy, Attorney General; Murbay F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

The claimant, Illinois Central Telephone Company, a Corporation, seeks an award in the' amount of $13,287.42, being the amount paid by it to the respondent during the period from August 14th, 1935 to January 12th, 1937 inclusive, as a tax on its gross receipts from the transmission of telephone messages pursuant to the provisions of an Act entitled “An Act in Relation to a Tax Upon Persons Engaged in the Business of Transmitting Telegraph or Telephone Messages, or of Distributing, Supplying, Furnishing or Selling Water, Gas or Electricity,” approved June 27th, 1935, commonly known as The Public Utility Tax Act (Smith-Hurd Ill. Rev. Stat. 1935, Chap. 120, Sec. 440 et seq.), which Act was declared unconstitutional by the Supreme Court of this State. in the case of City of Chicago vs. Ames, 365 Ill. 529.

Claimant contends that the payments made by it as aforesaid were made under a mistake of law, and that it is entitled to have the same refunded pursuant to the provisions of Section Six (6) of the aforementioned Public Utility Tax Act, which said Section provides as follows:

“Sec. 6. If it shall appear that an amount of tax, penalty or interest has been paid which was not due under the provisions of this Act, whether as the result of a mistake of fact or an error of law, then such amount shall be credited against any tax due, or to become due, under this Act from the public utility which made the erroneous payment, or such amount shall be refunded to such public utility by the department.”

The Attorney General has moved to dismiss the claim, and the case now comes before the court on such motion.

In the case of City of Oglesby vs. State, No. 3097, decided at the November, 1938, term of this court, the facts were similar to the facts in this case, and the same legal questions were involved.

After a full consideration of the record, and the questions raised thereon, we held that the tax in question was paid voluntarily and with a full knowledge of the facts, and that therefore the claimant was not entitled to have the same refunded, and further, that the provisions of the aforementioned Section 6, relative to a refund of taxes paid, by the express terms thereof applied only to cases in which the taxes paid were not due under the provisions of the Public Utility Tax Act. In that case, as in the present case, the taxes paid by the claimant were due under the provisions of the Public Utility Tax Act, and therefore the provisions of said Section 6 could have no application thereto, even if the validity of the law had been upheld by the Supreme Court.

The decision in the City of Oglesby case was followed by this court in the case of Village of Deerfield vs. State, No. 3223, decided at the May Term, 1939, and in the consolidated cases of Wabash Telephone Co. et al. vs. State, Nos. 3146, 3147, 3148, 3149, and 3150, decided at the present term of this court.

For the reasons set forth in the aforementioned cases, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.