text:
    (No. 2630
    Catherine Knarr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Catherine Knarr, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant files her claim pro se, upon the following recital of facts:

Frank W. Knarr was a Private in the Army Signal Corps No. 45, being inducted into the Army, October 2, 1917 at Greenville, Illinois. His Army Serial Number was 1,986,240. He served overseas from September 18, 3918 until July 5, 1919, was honorably discharged July 14, 1919 at Camp Grant, Illinois and returned to his home at Smithboro, Illinois. On January 20,1923 he filed an application for the Illinois Bonus and was assigned No. 99,241. His claim was approved and vonchered for payment on September 1.7, 1923. State warrant No. 160,054 for Three Hundred Dollars ($300.00) was mailed to him at his home address. Between the time of his application and the mailing of the warrant Frank W. Knarr died. The warrant was mislaid and was later returned to the Treasurer of the State of Illinois and was cancelled by order of the State Auditor on July 16, 1934 and the money reverted to the Soldiers’ Compensation Fund. The warrant was never cashed and no one has ever received the compensation which the State awarded to Frank W. Knarr as payment of his Bonus claim.

Section 2, House Bill No. 127 (The original Bonus Act) approved May 3,1921, states that the beneficiaries are:

“The husband or wife- (if not re-married), child or children, mother, father, brother or sister in the order named.”

On March 8,1935 the mother, Mrs. Catherine Knarr, Box 28, Smithboro, Illinois was duly identified and proven to- be the beneficiary entitled to said Bonus.

In 1927 the Legislature passed an Act entitled:

“An Act terminating the service recognition board, and making provision for the payment of certain claims for compensation.”

(Cahill’s Ill. Statute Chap. 129 P. 2675).

Under the terms of the latter Act it is provided:

“In all cases.where claims for compensation have been heretofore or are hereafter allowed by the service recognition board but payment of compensation has not been made either because the claimant or his heirs have not been found, or any other reason, it is the duty of the Adjutant General, as' soon as satisfactory proof is furnished to him, locating or identifying the claimant or his heirs or as soon as the disability preventing payment is removed, to certify such fact to the State Treasurer, who shall make payment from the soldiers’ compensation fund, in the sum allowed by the service recognition board to the person entitled thereto.”

The above Act carried an appropriation of $140,647.50 for the payment of claims arising by virtue thereof.

House Bill No. 474, approved June 14,1929, appropriated the balance of this fund ($101,804.00) to the Department of Public Welfare for the relief of indigent widows and children of deceased World War veterans. This action left no funds from which a Bonus Claim could be paid.

The Adjutant General’s office has certified that satisfactory proof has been furnished to him locating and identifying claimant as the one to whom compensation is payable, but there is no existing appropriation out of which the Bonus payment can be made, and the claim properly comes before this court.

An Award is Therefore Allowed in favor of claimant in the sum of Three Hundred Dollars ($300.00).


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (Nos. 1951 and 1952, consolidated
    James Lahey, Jr., No. 1951, P. J. O’Reilley, No. 1952, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Claimants, pro se.
    Otto Keener, Attorney General, John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The declarations do not contain the names of counsel in either of the above cases.

Both claims arise from the same state of facts and on motion of the Attorney General were consolidated.

These claims were filed on July 18, 1932 and allege that on April 17, 1932, the plaintiff in No. 1951, James Lahey, Jr., was rightfully in possession of a 1930 Model A Ford Coupe automobile which was being driven by him in a southerly direction on Illinois State Highway Number 111, Macoupin County; that the State owned and by its duly authorized agent operated and propelled a certain automobile truck in a southerly direction on the same highway, without lights thereon, and carelessly and negligently stopped the truck directly in front of the automobile being driven by Lahey, without warning and the claimant was unable to avoid striking the respondent’s truck because of cars coming along on Route 111 in the opposite direction, and by reason of the negligence of the respondent, the claimant was injured and was caused to expend $119.43 for hospital services, drugs, etc., and $72.00 for medical services, and was forced to remain idle and away from his work for a period of two months, and claims a total damage of $311.43.

In No. 1952, P. J. O’Reilley charges that on the 17th day of April, 1932 in the evening after dark, one James Lahey, Jr., was rightfully in possession of this Ford Coupe, and that he, P. J. O’Reilley was the owner thereof. Similar facts are alleged as to the cause of the accident, and it is alleged that the accident caused the automobile to become afire and burn. The insurance company settled for and paid the claimant the sum of Two Hundred Dollars ($200.00) to cover the damage to the automobile by fire, but there was a further damage of Eighty-five Dollars ($85.00) caused by the collision.

The Attorney G-eneral has filed a motion to dismiss both of these cases on the ground that it is sought* to recover for injuries and damages caused by a collision of the automobile owned by claimant in No. 1951 with a truck owned by the State, it being alleged the collision was caused by the carelessness and negligence of an agent of the State.

The declaration is drawn on the theory that the State is liable for injuries caused by the negligent conduct of its employees, although there is no direct averment in the declaration that the driver of the truck in question was an employee of the State. It is alleged that the driver of the truck was the duly authorized agent of the State, but the name of the driver of the truck is not averred. In both declarations there are other averments which constitute conclusions of law. Neither is it shown why the qlaimant, O’Reilley, did not collect full damages from the insurance company, nor what the damage to the truck was in addition to the fire.

We therefore sustain the motion to dismiss, in each case.


author: Mr. Justice Linsoott

text:
    (No. 1936
    Dr. G. B. Lutyens, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    John M. Pfeifer, for claimant.
    Otto Keener, Attorney General, John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

This is a claim filed for medical services rendered to one Everett Poff, a private in Machine Gun Troop, 106th Cavalry, Illinois National Guard, on or about February, 1931, who, while a private in said Machine Gun Troop, was suffering from an injury to the periosteum of the os caléis, and a tenesynovitis.

This claimant is a physician and surgeon and was called to treat private Everett Poff by one Mark Plaisted, Jr., Troop Commander of this Machine Gun Troop.

This claim is for thirteen office calls of $2.00 each, and seven hospital and residence calls of $3.00 each, or a total of $47.00

In a letter dated July 7, 1932 from the Adjutant General it is stated that the statement from the doctor is correct, but that the bill was not submitted until February 9,1932. Owing to the fact that appropriations are made for biennial periods, the appropriation for the two year period, which included the time during which this service was rendered, expired June 30, 1931 and lapsed as of September 30, 1931. Claims of one biennial period cannot be paid from funds of another period.

It has been held that an award will be made for medical services furnished to a member of the Illinois National Guard while on duty.

Meyer vs. State, 5 C. C. R. 330.

While the declaration does not aver that this private was on duty at the time of the injury, nor does it aver the circumstances under which the injury was sustained, the Adjutant General certifies that the statement of the claimant is correct.

We, therefore, recommend an award in the sum of Forty-seven Dollars ($47.00), payable to Dr. G. B. Lutyens.


author: Mb. Justice Tantis

text:
    (No. 2044
    John Mara, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    John Haba, pro se.
    Otto Kebnbb, Attorney General; John Kassbbman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Claimant petitions for an award of Seventy-five and 32/100 Dollars ($75.32) and contends that he was employed by E. F. Throgmorton, then Fiscal Supervisor of the Department of Public Walfare, to purchase horses and mules to be used at the State Training School for Girls and the Lincoln State School and Colony. The proof shows that both of said Institutions were in need of mules and horses and that claimant, who was an experienced judge of animals, was requested by Throgmorton to secure such animals; that a Requisition was duly issued from the Department for such purchase; that claimant rendered the services necessary, selected and bought the animals desired and has never been compensated for services and transportation expenses incurred by him. In a report dated March 15, 1935 A. L. Bowen, Director of the Department of Public Welfare states:

"Mr. Throgmorton was Fiscal Supervisor of the Department of Public Welfare at the time — Mr. Throgmorton possessed this authority at the time."

When satisfactory service has been rendered to the State, the expense whereof has been legally incurred but not paid, an award is justified upon the recommendation of the head of the Department for which the service was rendered. The record indicates a lawful and legal claim and an award is hereby allowed in favor of claimant in the sum of Seventy-five and 32/100 Dollars, ($75.32).


author: Mr. Chief Justice Hollerioh

text:
    (No. 2561
    McKesson and Robbins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    McKesson and Robbins, pro se.'
    Otto Keener, Attorney General, John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On May 25,1933, pursuant to proper requisition, claimant shipped to the State Training School for Girls at Geneva merchandise for the use of such institution of the value of $9.00. Claimant billed the respondent therefor on the same day, but apparently the bill was overlooked. Duplicate bill was sent on December 15,1933 and another on February 19,1934.

On October 25, 1934 claimants were advised by John 0. Weigel, fiscal supervisor of respondent, that on account of the fact that the invoice antedates the current biennium, the same would have to be presented to this court.

The merchandise in question was ordered by respondent and was duly received by it, together with the bill therefor. The failure of claimant to receive payment therefor resulted from no fault on its part, and it is entitled to an award for the amount claimed.

Award is therefore entered in favor of the claimant for the sum of Nine Dollars ($9.00).


author: Me. Chief Justice Holleeich

text:
    (No. 2419
    A. E. Nicol, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    A. E. Niool, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

On July 10, 1933 claimant made application for a license to sell malt and vinous beverages at retail, and remitted with his application a money order for $50.00, being the license fee for a full year. However, a license could not be issued for a period beyond the end of the license year, to-wit, April 30, 1934, and license was therefore duly issued for the period ending April 30, 1934 and forwarded to claimant. The $50.00 remitted by claimant was deposited in the State Treasury, notwithstanding the fact that the amount of the license fee from the first day of the month in which application was made, to the end of the license year was $41.67, and no return was made to claimant on account of the overpayment made by him as aforesaid. Claimant is therefore entitled to the return of the amount so overpaid by him as aforesaid, to-wit, $8.33.

Award is therefore entered in favor of the claimant for the sum of Eight Dollars and Thirty-three Cents ($8.33).


author: Mr. Chief Justice Holleeich

text:
    (No. 2156
    Ned Odum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Jerome E. Finkle, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holleeich

delivered the opinion of the court:

Prior to and on the 16th day of October, A. D. 1932 claimant was employed by respondent as a poultryman at the Lincoln State School and Colony at Lincoln, Illinois. On the last mentioned date he sustained accidental injuries which he claims arose out of and in the course of his duties, and which he claims resulted in the permanent loss of 35% of the use of the right ankle or foot. Claim is made for compensation under the terms and provisions of the Workmen’s Compensation Act.

Before a claimant is entitled to an award under such Act, he must show, among other things, that he is engaged in some department of an enterprise or business which is extra-hazardous in fact, or which is declared to be extra-hazardous by the provisions of Section 3 of the Workmen’s Compensation Act, and must also show a compliance with the requirements of Section 24 of such Act relative to making claim for compensation within six months after the accident.

The complaint filed by the claimant does not contain any allegations with reference to such matters, and there is no proof in the record concerning the same.

Under the present state of the record, the case must be dismissed.


text:
    (Nos. 2616, 2617, 2618, 2619, 2620, consolidated
    Paul Reed, No. 2616, William Biscontine, No. 2617, Christian Wieland, No. 2618, Henry Fulgenzi, No. 2619, George Bryant, No. 2620, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Claimants, pro se.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

The above claims were filed pro se as individual claims but because they all grow out of the same transaction and are identical in character, they are being disposed of in one opinion.

The claims were all filed February 25, 1935, each for Seventy Five Dollars ($75.00.) Plaintiffs respectively aver that they were members of the Springfield, Illinois, Mine Rescue Team; that on December 24, 1932 there was an explosion at the mine of the Moweaqua Coal company; that on said date the respective claimants, at the request of John Gr. Millhouse, the Director of the Department of Mines and Minerals, went to Moweaqua to assist in the rescue work made necessary by the explosion; that they each continued in such work for a total period of six days. They presented their bill for services to the Moweaqua Coal Company, but received no payment therefrom because the latter was hopelessly insolvent. They were thereupon paid Sixty Dollars ($60.00) each by the State. The Seventy Five Dollars ($75.00) now requested is for Five Dollars ($5.00) each, transportation charges to and from Moweaqua and Seventy Dollars ($70.00) each, additional compensation for services rendered.

No averment appears and no showing is made as to why only a part of the amount due claimants was paid them heretofore, but in a statement from James McSherry, Director of the Department of Mines and Minerals, it is stated among other things:

“The Springfield team’s bill for the service they performed is necessarily much higher than the bill of any of the other teams for the reason that the Springfield team was on duty a greater portion of the time than any other team at the scene of the disaster * * * my personal opinion is that the bill is not at all excessive * *

Again in a report dated March 7,1935 Director McSherry states:

“As originally submitted to the department the bills for services in this case (The Moweaqua Mine Disaster) were based on a lower rate than it had been the custom to charge for such work for a number of years.”

In other claims for Mine Rescue Team work, filed in this court in connection with the Moweaqua mine disaster, proof has been made and awards allowed on the basis of a daily allowance of Sixteen Dollars ($16.00) per day. So far as its province permits, the court believes that awards made by it should be on a uniform scale.

Each of the claims filed herein is as follows:

Services, wearing a breathing machine (apparatus) 30
hours at $3.00 per hour................................. $90.00
40 hours at $1.00 per hour................................ 40.00
Transportation to and from Moweaqua..................... 5.00
Total ................................................ $135.00
Credit on above........................................... 60.00
Balance due ......................................... $75.00

These claims are supported by the record, and the merits thereof admitted.

Awards are therefore made as follows:

Paul Reed ..............................................; $75.00
William Biscontine ...................................... 75.00
Christian Wieland ....................................... 75.00
Henry Pulgenzi .......................................... 75.00 ■
George Bryant ........................................... 75.00


text:
    (No. 2524
    Minnie Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    John T. Elliff, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On September 27,1934, Arthur Thompson, husband of the claimant, Minnie Thompson, was employed by the Division of Highways of the State of Illinois, as an extra lab or or on S. B. I. Route No. 9, neari Morton, Illinois, and was earning $3.60 per day. The crew with which he was working was engaged in replacing pavement, and near the end of the day’s work on said 27th day of September, said Arthur Thompson was requested to help two other men who were setting* out warning* lights along the road where repair work was being done. In the course of such work said Arthur Thompson slipped or fell from the truck on which he was riding, and sustained injuries which resulted in his death on the same night. He left him surviving the claimant, Minnie Thompson, his widow, but left no child or children.

Notice of the accident was given and claim for compensation made in accordance with the requirements of Section 24 of the Workmen’s Compensation Act. Said employee had been in the services of the respondent less than a year immediately preceding the accident, and was engaged in an employment in which it is the custom to operate for a part of the whole number of working days in each year. The evidence does not disclose the actual number of working days per year in such employment, and consequently the minimum of two hundred days must be used as the basis for the year’s work, in accordance with the provisions of Section 10 of the Workmen’s Compensation Act. Thompson’s average annual wages, therefore, must be regarded as Seven Hundred Twenty Dollars ($720.00).

Under the provisions of Section 7a of the Workmen’s Compensation Act, the claimant, as widow of said decedent, is entitled to compensation in the total amount of $2,880.00, which compensation is payable in weekly installments of $7.50 commencing on September 28,1934.

Payment by the respondent in weekly installments, however, is not practicable under existing laws. Under all of the circumstances it appears to be to the best interests of all parties concerned, that the compensation to be paid as aforesaid be commuted to an equivalent lump sum in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

The total amount of compensation to be paid as aforesaid, after a commutation to an equivalent lump sum, is $2,648.06. Claimant is also entitled to be reimbursed in the amount of $14.50 for medical and hospital expenses paid by her as shown by the record.

It is Tecebefobe Obdbbed that an award be and the same is hereby entered in favor of the claimant, Minnie Thompson, for the sum of Twenty Six Hundred Sixty-two Dollars and Fifty-six Cents ($2,662.56).


text:
    (No. 1945
    Oscar Unverfehrt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Paul J. Carter, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

On July 15,1932, the claimant filed his claim for damages caused by a fire originally started by The State Highway Maintenance Patrolman, who was burning weeds and grass which had been mowed and raked on State Bond Issue Route No. 153, Section No. 101, Washington County, on June 18, 1931. The fire spread from the State Highway and burned an area of 2.1 acres sowed with wheat, and it was estimated that there was 78% bushels destroyed at $0.55 per bushel. The burned area had also been sown with sweet clover, about ten pounds of clover seed having been sown at $0.08 per pound. Damages are asked in the total amount of $44.85.

Claims founded upon similar principles have heretofore been filed in this court, and a well considered case is that of Lewis McGarrah, et al. vs. State, 6 C. C. R. 468. It was there held that the State in the construction of the state-wide system of durable hard surfaced roads exercises a governmental function and is not liable for the torts or negligence of its agents, and the same would be true where the State was maintaining the highway by cutting and burning grass and weeds that grew along said highway.

This case reversed a prior holding of this court in the case of A. N. Pierce, et al. vs. The State of Illinois, decided January 15, 1930. In the latter case it was held that for any loss of crops resulting by fire from an asphalt tank furnace used upon a State highway spreading upon claimant’s land, an award would be made, but no authorities were cited and no attempt was made to reason the liability of the State from established law.

In Kirmare vs. City of Chicago, 171 Ill. 332, cited in the McGarrah case, the Supreme Court of this State said: “When the State acts in its sovereign capacity it does not submit its actions to the judgments of courts, and is not liable for the torts or negligence of its agents.”

In view of the holding of this court in the McGarrah case and the decision of the Supreme Court just cited, we must hold that the State in the instant case is not liable.

The claim, therefore, will be denied.


author: Mr. Chibe Justice Hollerich

text:
    (No. 2566
    Beecher Williams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Beecher WTkliams, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerich

delivered the opinion of the court:

On November 7, 1934 claimant was driving his truck on S. B. I Route No. 34 south of Rudemont, Illinois. He turned off on an approach and attempted to cross a wooden culvert which was being maintained by the respondent, and which appeared to him to be substantial. The culvert collapsed on account of the decayed condition of the sills thereof, and the truck was thereby damaged to the extent of Twenty-eight Dollars and Ninety-five Cents ($28.95).

Claimant filed his claim hereon on January 7, 1935, apparently basing the same upon the negligence of the servants and agents of the respondent in failing to keep such culvert in a proper state of repair.

The Attorney General has filed a motion to dismiss the claim for the reason that the State, in the maintenance of its public highways, is engaged in a governmental function, and is not liable for the negligence of its servants and agents in the exercise of such functions, in the absence of a statute making it so liable. The contention of the Attorney General is in accordance with the previous decision of this court and the well established law of this State. Tuttle vs. State, 5 C. C. R. 3; Braun vs. State, 6 C. C. R. 104; Derby vs. State, 7 C. C. R. 145; Bucholz vs. State, 7 C. C. R. 241; City of Chicago vs. Williams, 182 Ill. 135; Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

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

Claim dismissed.


text:
    (No. 1581
    W. C. Armbruster and Rayna Mitchell, a Partnership Doing Business Under the Name of The R. H. Armbruster Mfg. Co., Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    The R. H. Armbrusteb Meg. Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimants, a partnership, consisting of W. C. Armbruster and Rayna Mitchell, a partnership doing business under the name of The R. H. Armbruster Mfg. Co. were engaged in manufacturing and selling tents, awnings and canvas goods products.

They alleged that the State of Illinois, through the Department of Purchases and Construction, bought from them under date of May 3, 1928, three pull awnings, which were to be installed, for the sum of $81.00, and on June 7, 1929, bought from them two pull awnings and removed, stored and erected three awnings, all of the value of $64.00, and an itemized statement is attached to the bill, claiming the State of Illinois is indebted to them in the sum of $145.00.

From the record appears a stipulation to the effect that the claimant had sold and supplied awnings and similar merchandise to various departments for many years; that in the fall of 1927, the claimants removed and stored for the winter months, certain awnings located on the south side, first floor of the Capitol Building and used by the Department of Purchases and Supplies of the State of Illinois; that in April, 1928, the claimants advised L. H. Becherer, State Purchasing* Agent, that new awnings were needed for certain windows and received an oral order from the said L. H. Becherer, State Purchasing Agent, for the purchase of three pull awnings for said windows. It was further stipulated that on May 2, 1928, pursuant to this order, three new pull awnings were properly installed with the understanding and expectation that a requisition for the purchase of said awnings would be issued in the customary way; that these awnings so installed have been and still are in use by the State of Illinois.

It was further stipulated that bills were presented to the Department of Purchases and Supplies on or about June 1,1928, and every thirty days thereafter for more than one year, these bills being in the amount of $81.00 which was the purchase price for said awnings but that the Department of Purchases and Supplies never issued requisition for the awnings and that payment therefor was never made by the State of Illinois.

The claimants filed their claim pro se on March 20, 1930,. . for $145.00.

In the report dated March 28,1930, from Henry H. Kohn, Director, Department of Purchases and Construction, it is stated:

“We are returning herewith statement of claim entitled as above and beg to report as follows:
“The State Purchasing Agent, of the Division of Purchases and Supplies, states his records fail to disclose an order was given for the item May 3, 1928, 3 pull awnings, $81.00; therefore, payment is not recommended.
“The item June 7, 1929, 2 pull awnings, $55.00, removal, storing and' erection of three awnings, $9.00, total $64.00, is correct and approved for payment.”

This court has held that where facts are undisputed and the State received supplies as ordered by it and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could be paid, an award for the amount due will be made.

While it may be true that Director Kohn, or those under him, did not directly order the three pull awnings valued at $81.00, from the stipulation it appears that in April, 1928, the claimants advised the State Purchasing Agent that new awnings were needed for certain windows, and did receive an oral order for the same, and that these three new pull awnings were actually installed in a proper manner, and the State has received the use and benefit of these awnings since that time, and this claim having been filed within the Statute of Limitations, we feel that the whole bill should be paid.

It being agreed that the balance of the bill amounting to $64.00 is correct and for the reasons herein stated, we recommend that an appropriation be made for the sum of $145.00, payable to W. C. Armbruster and Rayna Mitchell, a partnership doing business under the firm name and style of The R. H. Armbruster Mfg. Co.


author: Mb. Justice Yantis

text:
    (No. 2627
    The Carson-Payson Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    R. M. Shaw and Steely & Steely, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This claim was originally filed March 5,1933, for redress in the sum of Seven Thousand Three Hundred Fifteen and 82/100 Dollars ($7,315.82) by reason of delay and expense caused to claimant as a contractor, through poor material and delayed shipments by the State. The original claim was dismissed however and the claim in its present form was filed March 6, 1935, for Three Thousand Nine Hundred Sixty-six and 16/100 Dollars ($3,966.16). .

Claimant is an Illinois Corporation located at Danville and engaged as contractors in plumbing, heating and ventilation construction work. A contract for this character of work was awarded claimant on December 9, 1931, in the sum of Twenty Three Thousand Twenty-five Dollars ($23,025.00) in connection with the erection of the Medium Security Building at the State Reformatory for Women at Dwight, Illinois. The general contractor on this project was the Willadson Construction Company. The stone for the building was manufactured and furnished by the State and the latter furnished its own inspectors to inspect the material that was furnished and to see that the plans and specifications were strictly followed. Claimant’s damages are alleged to have resulted from delays caused by rejection of a large amount of stone work, some of which was ordered taken down after having been once placed by the masons; also further damage because of delay resulting from changes in the plans amounting to approximately one-fourth of the amount of the original contract, such changes having been made after construction was well under way. Claimant contends that as a result of these delays and intermittent changes, claimant’s men were forced to sit idly by causing an increased cost of labor to claimant. Plaintiff also complains that the general contractor failed to keep water pumped out of the basement and that plaintiff was forced to have his own employees remove the water at least ten times in order to be able to continue their work. Claimant was notified on June 4, 1932, that revised architectural plans would be forwarded in the near future and claimant was thereafter compelled to await preparation of these plans from day to day, and to remain in readiness to proceed any time same were delivered; that the authorized changes and enlarged plans were not received by claimant until September 16, 1932; that due to these delays between May 10th and September 16th a total loss of Three Thousand Nine Hundred Sixty-six and 16/100 Dollars ($3,966.16) represents a conservative total of the damage to claimant. No contention as to law or fact is raised by the State. The record shows that claimant did all of the installation work required of it a.s quickly as the construction of the building would permit; that during all of the delays claimant was required to maintain a superintendent and a certain force of workmen and foremen and equipment of supplies on the job; that at no time were the delays caused by claimant or its workmen, and that the delays caused claimant unjust losses. As these delays were largely caused by material changes and alterations in plans, it is legal and just that claimant should be paid therefor. The Architectural Department in a report dated March 21, 1935, states that the claim as now submitted has been thoroughly checked over by that Department and that the damages stated are justly and correctly computed.

An Award is Therefor Allowed in favor of claimant in the sum of Three Thousand Nine Hundred Sixty-six and 16/100 Dollars ($3,966.16).


author: Mr. Justice Yantis

text:
    (No. 1866
    Chicago Printers. Inc., a Corporation (Wm. L. O’Connell, Receiver, Congress Trust & Savings Bank), Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

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

delivered the opinion of the court:

This claim was originally filed by Chicago Printers, Inc. The Declaration alleges that claimant was formerly the Chicago Railway Printing Company, an Illinois corporation. By motion, Wm. L. O’Connell, Receiver of the Congress Trust and Savings Bank, was substituted as Party Plaintiff, for the reason that the claim in question had been assigned by the Chicago Printers, Inc. to the Congress Trust and Savings Bank, and thereafter came into the hands of Wm. L. 0 ’Connell as Receiver of said bank.

Claimant alleges that on April 26, 1929, the respondent - caused to be mailed to plaintiff an order or requisition to publish and print two thousand (2,000) copies of approximately six hundred (600) pages Roster of the Illinois National Guard and Naval Battalion as called by the President for “World War” service, for which respondent promised to pay what said Roster was reasonably worth; that said two thousand (2,000) copies were duly published and delivered to the State and that the publishing and printing thereof was reasonably worth the sum of Five Thousand Three Hundred Ninety-two and 66/100 Dollars ($5,392,66).

That on the 28th day of June, 1929, respondent mailed to the plaintiff a requisition to publish and print Three Thousand (3,000) copies of the Honor Roll, Vol. 1; that Plaintiff printed and delivered said Three Thousand (3,000) copies as provided in the terms of said requisition, for which the respondent promised to pay plaintiff what same was reasonably worth, and that the reasonable worth thereof was Ten Thousand Six Hundred Eighty-five and 93/100 Dollars ($10,685.93).

That about March 1, 1930, plaintiff presented a statement to the Department of Purchases and Construction, Division of Printing, for Ten Thousand Six Hundred Eighty-five and 93/100 Dollars ($10,685.93); that defendant paid plaintiff Six Thousand Seven Hundred Seventy-four and 80/100 Dollars ($6,774.80) on October 3,1929, and Four Thousand Five Hundred Fourteen and 81/100 Dollars ($4,514.81) on November 18, 1930, leaving a balance due plaintiff in the sum of Four Thousand Seven Hundred Eighty-eight and 98/100 Dollars ($4,788.98).

By an amendment to the Declaration filed September 24, 1934, plaintiff avers that the claims set forth in the Declaration come within one or more of the several appropriations made by the Legislature of Illinois prior to the date of the execution of said work, as set forth in said amendment.

The Attorney General has filed a motion to dismiss the claim on the ground that the Declaration contains no allegation that any appropriation was made for the purpose of printing and purchasing the books mentioned in the Declaration ; that in the absence of an allegation that there was such an appropriation in an amount sufficient to cover the alleged requisition, no recovery can be had. It appears that an appropriation of Five Thousand Five Hundred Dollars ($5,500.00) was made by the General Assembly for printing the Roster of the National Guard and Naval Militia as called for “World War” service; and that an appropriation of Seven Thousand Five Hundred Dollars ($7,500.00) was made by the General Assembly for Volume 1 of the “Roll of Honor. ’ ’

Any contract made by the Division of Printing in excess of the amount appropriated for that specific purpose is not legal, and if any order was placed for the work in question without specifying the cost thereof payment would only be legally authorized for same up to the amount appropriated therefor.

Section 18, Article IV of the Constitution of Illinois requires the General Assembly to make appropriation for the ordinary and contingent expenses of the government. The General Assembly determines what is a reasonable and proper amount to be expended by each Department of the State Government and makes appropriations therefor. For the two items in question the General Assembly made appropriations of not to exceed Five Thousand Five Hundred Dollars ($5,500.00) and Seven Thousand Five Hundred Dollars ($7,500.00) respectively.

Section 30 of the Act in relation to State finance 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 amount appropriated for such purpose. These provisions of the law are clear and under them the Superintendent of Printing had no power to contract for the work in question in excess of the appropriation made therefor.

It was clearly the intention of the 55th General Assembly in making the appropriation of Seven Thousand Five Hundred Dollars, ($7,500.00) “For Publishing and Distributing a Record of Burial Places in Illinois of Soldiers, Sailors, Marines and Army Nurses of the United States,” that said appropriation cover the full cost thereof. The full amount of both appropriations, i. e. Five Thousand. Five Hundred Dollars ($5,500.00) and Seven Thousand Five Hundred Dollars, ($7,500.00) were expended for the purposes stated, the Chicago Printers, Inc., having received Eleven Thousand Two Hundred Eighty-nine and 61/100 Dollars ($11,289.61) of the Thirteen Thousand Dollars ($13,000.00) so appropriated, the balance having been expended for incidental items in connection with the publishing, printing and distribution of said volumes. Plaintiff contends that a further appropriation of Ten Thousand Dollars ($10,000.00) or so much thereof as may be necessary - appropriated by the General Assembly under House Bill 375, Session Laws, 1929, Page 20, for preparing, compiling and printing a Roster of Persons who were in the military and naval service of the United States during the “World War,” could be considered as a proper appropriation upon which to base the contract in question. The Ten Thousand Dollar ($10,000.00) appropriation in question was for War Service Record Cards, being a specific record distinguished from the volumes in question and in the opinion of the court could not have been available for the payment of this claim and can therefore not be considered as a basis upon which an award might now be predicated.

As the Superintendent of the Division of Printing was without power or authority to contract for work in excess of the amount appropriated by the Legislature, the contract so far as it applies to such excess is void and no award can be made by this court for the payment thereof.

The entire amount of the claim herein being in excess of the amounts appropriated for the work in question, the motion therefore of the Attorney General to dismiss is allowed and the claim dismissed.


text:
    (No. 1907
    George Leon Davis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    George Leon Davis, pro se.
    Otto Keener, Attorney General; John- Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint alleges that on September 13,1931, George Leon Davis was employed as keeper at Stateville, and is still in the employ of the State; that on Sunday morning, September 13, 1931 about eight o’clock, while engaged in his official duties, he was letting certain inmates out of their cells who wished to attend Mass; that one inmate, McGuire, did not return to his cell, and claimant called Captain Taylor Davis to assist in removing this inmate from the cell. A general fight ensued between three inmates, Taylor Davis and the claimant, and during the fight the claimant was cut below the right eye extending from the nose to the level outer edge of the eye. There was a cut three quarters of an inch long on - the upper lip on the right side; an upper tooth was knocked out; six teeth were loosened; his nose was fractured, besides other severe and serious injuries. Claimant also claims to have lost a gold watch and chain, and an Eagle Fob, valued at $65.00.

It appears from the record that claimant received hospital bills and doctor bills, and he claims an injury to his eye and one testicle.

A demurrer was filed to the petition and we have considered the demurrer along with the merits of the claim.

From the evidence taken, it appears that the claimant was receiving the sum of $125.00 per month; that he was incapacitated for about thirty days but all doctor bills and hospital bills have been paid; that he had been employed as a keeper for a couple of years; that prior to that time he was a coal miner and earned in that business approximately $1600.00 per year.

He claims a permanent disability on account of facial scars, injury to the right eye and some permanent injury to one testicle.

From the testimony of Dr. Raymond Brown, an eye specialist, it appears that his vision shows, right eye 20-20 and his left eye 20-25, and he would advise the wearing of glasses, but this doctor testified: “Since he is nearly forty years old, the need of plus lenses might not be due in any way to the injury.7 7 The doctor testified that the injury to his eye could have arisen from the injury received in the fight with the convicts.

This claim is made on the theory that the claimant is under the Compensation Act. On no other theory would the State be liable in any manner whatsoever and treating the claim as if it did come under the Compensation Act, without deciding that point, we hold that he is not entitled to recover for the reason that his earning capacity has not been decreased; that he has received full compensation for all the time that he was incapacitated and it does not appear that his eye trouble was due to the injury received, and that he is now earning as much as he did before the accident and there is no serious disfigurement to his hand, head or face.

The burden is upon the claimant to show by proper evidence what his injuries were and that they did arise out of and in the course of his employment and he must prove by a greater weight of the evidence that his alleged injuries were a result of the fight.

While he may have some disability to a testicle, we are of the opinion that the evidence does not disclose such an injury as to require a removal of a testicle; and that his eye trouble is not necessarily a result of his injuries. It being incumbent upon the claimant to establish these facts, and he having failed to do so, we must hold that he is not entitled to recover.


text:
    (No. 2185
    Charles R. Ferguson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Frank E. Eagleton, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

In a claim filed May 31, 1933, claimant seeks an award of Two Thousand One Hundred Seventy Seven and 50/100 Dollars ($2177.50) for balance due on temporary total disability and for'‘partial permanent loss of the use of his right leg and for medical and ambulance service in connection therewith.

Claimant served as a Highway Maintenance Policeman for the State of Illinois from March 13, 1931 to August 19, 1932 at a salary of One Hundred Seventy Five Dollars ($175.00) per month. It was stipulated between the parties hereto that on the 19th day of August, 1932 while riding a motorcycle enroute from his home in Sumner, Illinois to Springfield, Illinois he struck some loose gravel that had been dragged on to the State hard road, thereby throwing him from his motorcycle into the guard rail; that he had been ordered to do police duty at the State Fairgrounds at Springfield and was enroute thereto at the time; that as a result of said accident he has lost the feeling in his fourth or little finger and his third or ring finger of the right hand; and that he also received a comminuted multiple fracture of the right Femur; that actual notice of the accident was given to the Chief of the State Highway Police within thirty days and that demand for compensation was made within six months after the accident; that as. a result of the injuries received claimant was in the Olney Sanitarium for a stated period and that the charges for the medical attention there received are fair and reasonable; that the ambulance bills necessarily incurred were reasonable and necessary and that the total amount of all such services is Three Hundred Seventy Two and 50/100 Dollars ($372.50) now due and unpaid to the respective persons furnishing such service, as per original Exhibits attached.

It is further stipulated that claimant received his salary of One Hundred Seventy Five Dollars ($175.00) per month through January, 1933 and was paid One Hundred Fifty Dollars ($150.00) per month for February and also for March, 1933, and that he was discharged from the service of the State effective as of April 1, 1933.

It further appears from the record that claimant, at the time of the accident, had three children, two of whom were under the age of sixteen years, to-wit: a boy, bom June 7, 1918 and a daughter, born November 18, 1931. In a Medical report, dated May 25, 1933, by Dr. James A. Weber, claimant was reported to have a permanent disability of fifty per cent (50%) because of the fracture of the right femur. In the same report the doctor states that there is a loss of sixty per cent (60%) in the motion of the right knee and that the angulation and stiffness of the knee will be permanent and will disable claimant for the remainder of his life. In a later report of an examination on June 26,1934 Dr. Weber states that the partial permanent disability to claimant is sixty per cent (60%) by reason of the facture of said leg and states that there is a shortening of approximately one and one-half inches (iy2").

Claimant contends that “under Paragraph ‘K’ of Section 19 of the Workmen’s Compensation Act he would be entitled to a fifty per cent (50%) penalty from February 10, 1934, to August 1, 1935, i. e. a penalty on seventy-six (76) weeks on the compensation due him for that period.”

In providing a forum, i. e. the Court of Claims, in which demands against the State might be considered, and if justified by law, allowed, we have repeatedly held that it was not the intention of the Legislature to authorize charging the State with interest or penalties in connection with any award recommended by this court and this contention of claimant meets with no favor.

Compensation to be allowed herein will be by virtue of Section 8 and Section 8 Sub-sections (b) — (e)—15—(h)— (j) and 17 of the Workmen’s Compensation Act; and as computed thereunder, claimant would be entitled to temporary total disability from August 19, 1932 to February 1, 1934, or seventy-six (76) weeks, subject to the minimum provision of sixty-four (64) weeks contained in Sub-Section (8e). This compensation would be on the basis of Sixteen Dollars ($16.00) per week or One Thousand Twenty Four Dollars ($1,024.00). He was paid from the time of his injury until the date of his discharge on April 1, 1933 the sum of One Thousand Two Hundred Thirty Five Dollars ($1,235.00), or an overpayment of Two Hundred Eleven Dollars ($211.00). The Compensation Act provides for fifty per cent (50%) of the average weekly wage for one hundred ninety (190) weeks for the permanent and complete loss of the use of a leg, which percentage is increased under Section 8(j) to sixty per cent (60%) because of the two children under sixteen years of age at the time of the injury. For the same reason the amount of weekly compensation applicable is Sixteen Dollars ($16.00). Under these provisions claimant is entitled to receive One Thousand Eight Hundred Twenty Four Dollars, ($1,824.00) for specific partial permanent disability of the left leg, from which should be deducted the excess payment of Two Hundred Eleven Dollars ($211.00) heretofore paid him. He would also receive the sum of Three Hundred Forty Five Dollars, ($345.00) with which to pay medical, hospital and ambulance expenses incurred by him, making a total allowance in the sum of One Thousand Nine Hundred Fifty Eight Dollars ($1,958.00).

An award is therefore entered in favor of claimant in the total sum of $1,958.00.


text:
    (No. 2508
    Mike Hannon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

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

delivered the opinion of the court:

Claimant seeks an award of Two Thousand Five Hundred Ninety One and 50/100 Dollars ($2,591.50) for permanent disability and medical expenses under the terms of the Workmen’s Compensation Act, for accidental injuries arising out of an accident in the course of his employment as Highway Maintenance Workman.

■ From a stipulation of facts it appears that claimant on April 7, 1934 was riding' a road drag while engaged in dirt work on S. B. I. Route 147; that a hitch-chain broke, throwing claimant under the drag, breaking his left ankle and throwing his left knee out of joint. Claimant’s foreman took him to a doctor and the accident was duly reported.

A report of the doctor under date of January 7, 1935 states:

“A fragment was broken off the lower end of claimant’s left fibula with marked deposit of calcium around the lower end of the tibia and fibula with existent swelling of the left ankle. Foot slightly out of alignment.”

In his report of January 7, 1935 Dr. C. D. Nobles states:.

“There is a loss of function at the present time of about 33 1/3%.”

In a supplemental statement dated January 29, 1935 Dr. Nobles also states:

“We only had reference to the 33 1/3 degree loss of the function of the left ankle * * *”

Claimant was earning Three and 15/100 Dollars ($3.15) per day or Eighteen and 90/100 Dollars ($18.90) per week. At the time of the accident he was the head of a family with three children under the age of sixteen years. He stipulates that he has received from the State of Illinois all expenses on account of medical care and attention and has also received the sum. of One Hundred Five and 33/100 Dollars ($105.35) as compensation. Claimant contends that the permanent injury amounts to 33-1/3% of the loss of the use of the left leg; that he was temporarily totally incapacitated for twenty-one (21) weeks, from April 7, 1934 to September 1, 1934; that he is entitled to:

$13.00 per week for the 21 weeks......................... $273.00
Less $105.35 heretofore received........................... 105.35
Balance ............................................. $167.65

that he is entitled to specific permanent disability allowance under Paragraphs 15 and 17 Sub-section “E” of Section 8 of the Workmen’s Compensation Act as follows:

1/3 of 190 weeks, or 631/3 weeks at $13.00 per week....... $823.33

Under the Workmen’s Compensation Act the leg is not divided up for the purpose of determining partial loss. There is a provision for the loss of a foot and a different provision for the loss of a leg, but there are no intermediate provisions. In the case of a total loss of a foot by amputation at or immediately above the ankle, we believe the loss should be construed as a loss of the foot and not a loss of the leg. Ill the present case the facts show that the existing permanent injury is in the ankle at the lower end of the Tibia and Fibula bones of the left leg. The award therefore must be predicated upon Section 8 (e) — 14 of the Workmen’s Compensation Act whereby the total loss of a foot is compensated for at the rate of fifty per cent (50%) of the average weekly wage during 135 weeks. The proof herein shows a 33-1/3% loss of use of the foot and shows three children under the age of sixteen years. The weekly minimum of Seven and 50/100 Dollars ($7.50) is increased to Thirteen Dollars ($13.00) and claimant is entitled to an allowance of Thirteen Dollars ($13.00) per week for forty-five (45) weeks or Five Hundred Eighty-five Dollars ($585.00) for specific permanent disability. To this last sum should be added the balance due for temporary total disability of One Hundred Sixty-seven and 65/100 Dollars ($167.65) making a total of Seven Hundred Fifty-two and 65/100 Dollars ($752.65).

An award is therefore entered in favor of claimant in the sum of Seven Hundred Fifty-two and 65/100 Dollars ($752.65).


author: Mr. Justice Tantis

text:
    (No. 2601
    Lillian Hesler, Conrad Hesler, Kenneth Hesler, Frank Hesler, Jr., George William Hesler, Rosemary Hesler and Wanda Jean Hesler, Minors, by Lillian Hesler, Their Mother and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    John W. Fribley and Wilton A. Carr, for claimants.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent. '
   Mr. Justice Tantis

delivered the opinion of the court:

Claimants seek an award of Five Thousand Five Hundred Dollars ($5,500.00) under the terms of the Workmen’s Compensation Act by reason of the death of Frank Hesler, the husband of claimant, Lillian Hesler.

A Stipulation of Facts has been filed herein showing that Frank Hesler was employed in the Division of Highways as a maintenance foreman at a salary of One Hundred Forty-five Dollars ($145.00) per month; that while engaged in such highway work on November 15, 1934, he was struck on the right leg below the knee by a wheel of a road grader. The injury did not seem serious at the time and he continued to work for several days thereafter; he was then advised to have medical attention for same and was, treated by Dr. Louis H. Miller of Pana and by Dr. N. J. Haughton of Greenup. The latter made an X-ray of the injured leg and testified that it did not affect the bone in any way. The stipulation further states that Frank Hesler died on December 16,1934, and that the doctor’s death certificate stated that death was due to heart trouble with the injury to the right leg being a contributory cause. It further appears that deceased was the father of six children under the age of sixteen years and that the claimants and deceased were living together as a family at the time of the accident, being supported by him.

Dr. Haughton testified that he had been the family physician of the Heslers for four or five years prior to Mr. Hesler 7s death and had treated him for hear¡t trouble since 1931 or 1932; that he had pneumonia at that time and was very sick for about three weeks; that deceased called on him on November 26, 1934, and that he examined his leg at that time; that the skin was not broken but that the leg showed it had been severely bruised; that the leg condition improved prior to Mr. Hesler’s death bu,t that the heart trouble became acute about the 15th of December, 1934. Dr. Haughton testified that the real cause of death was Myocarditis or heart trouble. He further testified that ,the heart trouble could have possibly been accelerated by reason of the injury to the leg; that while the injury to the leg was not directly the cause of the death, that it made the heart condition worse because it confined him to the bed and the pain kept him from res,ting.

Dr. Miller testified that he saw deceased on November 16, 1934, and that the latter was suffering pain and swelling in his limb and that there was a slight abrasion on the outer side of the right leg, about the middle third. Dr. Miller further testified that the pain and swelling in the leg would cause increased pressure on the circulation and would indirectly cause an increased load on the heart. In answer to the specific question “Do you recall whether the injury to his leg resulted in an open break in the skin?” Dr. Miller answering “Nothing more than an abrasion and I think it healed.”

As shown by the proof the accident .that Frank Hesler had in his employment on November 15, 1934, did not at the time apparently appeal to him as of a serious nature, for he continued to work for several days thereafter. According to Dr. Haughton, however, when he first saw Mr. Hesler on November 26, 1934, .the leg was paining so severely that Mr. Hesler could not walk on it; that he was able to be up but was complaining then of shortness of breath; that there did not seem to be much change in his condition until after December 8, 1934; that the next time he saw him on December 15th the pain in the leg had become less but the heart condition was worse. The deceased had suffered from heart trouble since 1931 and the cause of his death is definitely established as Myocarditis. The only question is whether the accident suffered by deceased on November 15, 1934, contributed sufficiently to the cause of death to authorize an award under the terms of the Workmen’s Compensation Act.

It has been established by the decisions of our courts tha,t:

“When a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under certain circumstances which are said to be accidental, his death results from injuries by accident.”

American Steel Foundries vs. Industrial Com., 327 Ill. 615;

Valier Coal Co. vs. Industrial Com., 339 Ill. 458;

Cameron Joyce & Co. vs. Industrial Com., 324 Ill. 497.

In the case at bar Dr. Haughton was asked the quéstion “Was the diseased condition of the heart aggravated or accelerated by the injury which he received?” and he answered “I think it was. There was a direct casual connection between his death and the injury received. ”

Dr. Miller testified that in his opinion the death was hastened and accelerated by the injury in question.

Under the testimony appearing in the record and the law applicable thereto the court is of the opinion that claimants are entitled to an award. The amount of compensation under Section 7 of the Workmen’s Compensation Act would be a sum equal to four times the average annual earnings of the employee but not less in any event than Two Thousand Five Hundred Dollars ($2,500.00) and not more than Four Thousand Dollars ($4,000.00). Section 7 (h)-3 provides that such maximum shall be increased to the amount of Five Thousand Five Hundred Dollars ($5,500.00) in case of three or more children under the age of sixteen years at the time of the death of the employee.

The average annual earnings of Frank Hesler were One Thousand Seven Hundred Forty Dollars ($1,740.00). The maximum award would therefore be Five Thousand Five Hundred Dollars ($5,500.00); Four Thousand Dollars ($4,000.00) being for the widow in her own right and One Thousand Five Hundred Dollars ($1,500.00) on account of the children. Under the rules of the Workmen’s Compensation Act such award should be made payable in weekly installments at the rate of Sixteen and 73/100 Dollars ($16.73) per week, but as payment in such manner is not feasible under existing conditions of State appropriations the award will be commuted under the rules pertaining to lump-sum awards and as so commuted an award is hereby made in favor of claimants in the sum of Five Thousand One Hundred Twenty and 50/100 Dollars, ($5,120.50), Three Thousand Seven Hundred Twenty-four Dollars ($3,724.00) of which is awarded to claimant, Lillian Hesler, in her own right and One Thousand Three Hundred Ninety-six and 50/100 Dollars ($1,396.50) thereof being awarded to Lillian Hesler as next friend for ,the use of Conrad Hesler, Kenneth Hesler, Frank Hesler, Jr., George William Hesler, Rosemary Hesler and Wanda Jean Hesler.


text:
    (No. 2615
    Illinois Power & Light Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Illinois Power & Light Corporation, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court’:

Claimant asks payment for a balance due of Twelve Dollars and Thirty-two Cents ($12.32) for electrical current furnished to the Eldorado Mine Rescue Station at Eldorado, Illinois. Service was furnished at the regular established rate at the request of the Department of Mines and Minerals and the latter in a statement under date of March 6, 1935 by James McSherry, Director, states that the claim is just and is unpaid because of the appropriation having lapsed before the proper presentation of the bill.

“Where the facts are undisputed that the State received supplies as ordered by it and that the bill therefor was not presented for payment before the lapse of the appropriation out of which payment could have been made, an award for the amount due will be made.”

Shell Petroleum Corp. vs. State 7 C. C. R. 224.

An award is therefore made in favor of claimant in the sum of Twelve Dollars and Thirty-two Cents ($12.32).


text:
    (No. 2661
    W. H. Pester, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    W. H. Pester, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant operates a blacksmith shop at Grays Lake, Illinois. The claim herein filed is for Ten and 40/100 Dollars ($10.40) for work done by him in 1931 and 1932 at the request of State Highway Maintenance men working under the direqtion of the Elgin office. C. W. Ross, Assistant Engineer of Maintenance, in a report dated May 7,1935 states:

“The items listed in this declaration were incurred by maintenance patrolmen who were replaced in February, 1933. We had no knowledge of these bills until after the close of the biennium ending June 30, 1933 — -it is our opinion the claim should be paid.”
“Where the facts are undisputed that the State received supplies — or labor — legally ordered by it and the bill therefor has not been presented for payment until after the lapse of the appropriation out of which such payment could have been made, an award for the amount due is proper.”

Shell Petroleum Corp. vs. State 7 C. C. R. 224.

An award is hereby allowed in favor of claimant in the sum of Ten and 40/100 Dollars ($10.40).


text:
    (No. 2533
    Verlie N. Roberts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Toliver & Monson and Nelson & Kidder, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant entered the employ of respondent on April 9, 1924 and on November 30, 1933 was engaged in active service as foreman on the construction work building an earth grade on S. B. I. Route 155 about three miles east of Prairie Du Rocher. Claimant and two others were operating two Baker Maney Road scrapers, same being pulled back of the tractor. While endeavoring to trip the dump lever claimant’s feet slipped out from under him and the right front wheel of the rear road scraper caught his left foot, and the front and rear right wheels of the road scraper passed over his foot, left leg, back and right shoulder, crushing and bruising him and . inflicting alleged permanent and serious bodily injuries. The injured man was given immediate attention by Dr. John T. Finley at the latter’s office and was then taken to the Fehrenbacker Hospital at Flora where he remained for three weeks. An X-ray examination disclosed four broken bones in the left foot, four broken ribs, the right shoulder blade crushed, the right collar bone broken and three cracks in the ball and socket joint of the right shoulder; also bruises to claimant’s left leg and back.

The claim was filed herein on October 1, 1934, asking an award of Twelve Thousand Dollars ($12,000.00) for partial permanent disability. All hospital and doctor bills have been paid by respondent and eleven (11) weeks compensation was paid to claimant at the rate of Fifteen Dollars ($15.00) per week.

The proof shows that the bones in the arch of claimant’s left foot have healed in a malformed condition which results in an absence of elasticity in the instep with resultant pain when claimant walks for any extended time upon that foot; that the bones of his right shoulder have healed in such a manner that he cannot raise his hand and forearm above his waistline; that the malformation in both instances is such .that no further surgical care will relieve the condition.

At the time of the injury claimant was receiving wages in the sum of Forty-three and 75/100 Dollars ($43.75) per week. The chief attending physician, Dr. Fehrenbacker, testified that all of the bones of the foot had healed properly except the one, and that it had resulted in a little deformity and a limp that will be permanent and would limit the use of his foot; that the injury to his arm and shoulder blade would affect only the arm and would have no effect upon any other portion of the body; that all of the permanent injuries suffered by Mr. Roberts are limited to the right arm and the left leg; that Mr. Roberts, in his opinion, will never be able to raise his arm above the shoulder level.

Dr. H. B. Dillman of Louisville, Illinois testified that he examined claimant on January 5, 1935; that his opinion from such examination and X-ray pictures is in line with the other medical testimony. Claimant is now engaged in farm work operating a farm of sixty-seven (67) acres, twenty-seven (27) acres being owned by him and the balance leased land. Dr. Dillman was asked if he had any opinion as to the percentage of limitation in the doing of ordinary farm work that would result from the injury described, and he replied that claimant would possibly be disabled from ordinary farm work to the extent of possibly or at least 50%; that he will never be able to perform labor that requires very much walking or the full use of his right arm. In their closing statement counsel for claimant asked that an award be made to claimant as compensation for the partial permanent injury to his left foot, right shoulder and arm, in the .total sum of Eight Thousand Eight Hundred Twenty Dollars ($8,820.00), under the provisions of Section 8-D of the Workmen’s Compensati on Act.

Respondent has made formal objection that no claim for compensation was made within six months after the accident. We do not believe the record supports this contention; nor does the record in our opinion support an award under Section 8-D for Eight Thousand Eight Hundred Twenty Dollars ($8,820.00) as contended for by claimant.

From a consideration of the entire record one reaches the conclusion that the partial permanent disability in this case is to the left foot and right arm and shoulder of claimant; further that the extent of disability therefrom is 50% of the total use thereof.

Under Section 8 (e)-14 claimant would be entitled to the maximum wage of Fifteen Dollars ($15.00) per week for sixty-seven and one-half weeks (67%) for fifty per cent (50%) loss of use of his foot and the maximum wage of Fifteen Dollars ($15.00) per week for one hundred twelve and one-half (112%) weeks for fifty per cent (50%) loss of use of the right arm, under Section 8(e)-13, making a combined total of Two Thousand Six Hundred Ninety mine Dollars, ($2,699.00). Of this amount One Thousand Five Hundred Sixty Dollars ($1,560.00) will have been earned by July 30, 1935, and would be due and payable at that time, and the balance in payments of Fifteen Dollars ($15.00) per month. As monthly payments are not feasible, such balance will be commuted and a lump-sum award for the entire amount due will be made. An award is accordingly made in favor of claimant in the sum of Two Thousand Six Hundred Seventy-five Dollars, ($2,675.00).


text:
    (No. 2284
    Scruggs-Vandervoort-Barney D. G. Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Scruggs-Vandervoort-Barney Co., pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

This claim was filed December 5, 1933 and claimant alleges that during the five years prior thereto it had sold various articles of merchandise to the Southern Illinois Penitentiary at Menard, Illinois, for all of which it had been paid except the items making up this claim; that on or about December 30, 1932 claimant, at the request of Mrs. Edna Tindall, matron of the penitentiary, sold and delivered to that Institution merchandise, as per Bill of Particulars attached, to the value of Seventy-six and 50/100 Dollars ($76.50); that the claim was approved by the warden but was not approved by the Department of Finance, the latter stating that the prices charged for certain items in the bill were excessive; whereupon, at the suggestion of the present Warden, Joseph E. Ragen, the claim was filed herein, although the items in question were purchased before Mr. Ragen became warden.

No contention of law or fact is raised by respondent. There was legal authority for the purchase, and the merchandise was duly delivered. The court is of the opinion the claim should be allowed.

An Award is Therefore Made in favor of claimant in the sum of Seventy-six and 50/100 Dollars ($76.50).


text:
    (No. 2649
    William D. Shields, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    Joe Frank Allen, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was one of the members of the Mt. Vernon Howitzer Company, 130th Inf. I. N. G. who was in the motor-bus-fire that occurred on July 26, 1933 near Pana, Illinois. The general facts in connection with the claims growing out of said accident appear in the matter of Marlow Case No. 2469.

By a Stipulation of Counsel this claim is submitted for decision upon the claim and the report of a Military Medical Board that convened in Mt. Vernon, January 14, 1934.

The claim recites that in said accident claimant suffered severe burns about the body, face, hands and legs and injuries to the eyes and lungs which are permanent in character, for which he has been paid the sum of Three Hundred Eleven and 95/100 Dollars, ($311.95), and for which he now seeks a further award of Five Thousand Dollars ($5,000.00).

The report of January 14, 1934 of the Military Medical Board (Approved January 22, 1934 by the Adjutant General) makes the following findings:

“The board is of the opinion that this man has had quite a severe contusion of the chest and shoulder, which does not constitute a permanent disability and at this time considers his conditions are fairly well healed. The board recommends that there is no need for further hospitalization or treatments and that his disability will be terminated February 26, 1934, and recommend that he be given pay to that date, and also emergency allowances of $50.00 per month to February 26, 1934 — in accordance with Article XVI, Sections 10 and 11, M. & N. Code of Illinois.”

There being nothing in the record upon which the court could base an award for permanent disability, and it appearing that the amounts recommended by the Military Medical Board have heretofore been paid in full, the claim for a further award is hereby denied and the claim dismissed.


author: Me. Justice Yantis

text:
    (No. 2356
    Dr. H. O. Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

    D. B. Reid, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

This claim is filed for the allowance of coroner’s fees, claimed to be due under Section 27, Chapter 85 of the Revised Statutes of Illinois for inquests held by claimant at the death of inmates of the Anna State Hospital for the Insane*. The claim as originally filed was for Two Hundred Twenty-six Dollars ($226.00). The amended claim listing additional inquests was filed April 25, 1933, making a total claim of Four Hundred Twenty-three Dollars ($423.00).

No contention of law or fact is raised by respondent. The Anna State Hospital for the Insane is located in Union County. Claimant, as shown by the record, is coroner of that county. The Managing Officer of the Institution under date of April 16,1934 reported that the claim was correct as to all items appearing therein. The record also includes a report in each instance showing the insolvency of the estate of the patient in question.

Section 26, Chapter 53 of the Fees and Salaries Act provides as follows:

“For holding an inquest over a dead body when required by law in counties of the first and second class Fifteen Dollars ($15.00). * * * All of which fees shall be certified by the court and tohen the same cannot Be collected out of the estate of the deceased, paid out of the county treasury, or in case of inmates of any State charitable or penal institution, by the Department of Public Welfare out of the State treasury."

It was apparently the intent of the Legislature that no county should be burdened, just because it had a State Institution, with the costs of inquests over inmates sent to said institutions.

An award is hereby allowed to claimant for the amount of the claim, to-wit: Four Hundred Twenty-three Dollars ($423.00).


text:
    (No. 2102
    H. C. Willadsen, Operating Under the Name of H. C. Willadsen Construction Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

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

delivered the opinion of the court:

This claim was originally filed for the recovery of Thirty Thousand Dollars ($30,000.00). Under an amended Bill of Particulars and statement of claim filed April 3,1935 plaintiff reduces his claim to Six Thousand Five Hundred Dollars ($6,500.00). The purported damages are alleged to have been occasioned through changes made by the State in a contract previously awarded plaintiff for the construction of the Medium Security Building at the State Reformatory for Women at Dwight, Illinois. The record discloses that on December 9, 1931 plaintiff’s proposal and bid for the construction in question was accepted in the sum of Ninety-one Thousand Five Hundred Dollars ($91,500.00) based upon plans and specifications prepared by respondent; that plaintiff entered upon the construction work incident to said contract and that in the course thereof changes were made in the plans and specifications which necessitated a loss of time and delay in the construction work with consequent damages and expense to claimant.

The record discloses that prior to the changes, an estimate of the cost thereof was obtained by respondent from plaintiff. The record further discloses that a careful checkup of the items upon which the claim is based has been made by the Division of Architecture and Engineering of the State and the report thereof appears under date of April 15, 1935 from that office. That department states that claimant was put to additional costs and to additional overhead due to delays beyond claimant’s control and from that report and a consideration of the entire record it appears that claimant is entitled to a payment of Six Thousand Five Hundred Dollars ($6,500.00) in full and final settlement of all its claims in connection with said contract and construction work; said allowance including an item of Six Hundred Dollars ($600.00) for Pierre Turck, his sub-contractor for painting under agreement with plaintiff. By his amended Bill of Particulars and statement of claim plaintiff has reduced his claim to the said amount of Six Thousand Five Hundred Dollars ($6,500.00); such action having been taken after numerous conferences between plaintiff and representatives of respondent. This claim presents similar questions to those presented in the claim of Carson-Payson Co. Court of Claims No. 2627 now under consideration in this court, in connection with other contracts incident to the construction of said building.

“Where claimant sustains a loss under his contract with the State, through no fault of his own but occasioned solely by the State, through a change of plans, an award will be made.”

Herdman vs. State, 7 C. C. R. 257.

Thornton Cartage Co. vs. State, 7 C. C. R. 245.

The claim of plaintiff is allowed in the sum of Six Thousand Five Hundred Dollars ($6,500.00) and an award is hereby made in his favor for that amount.


text:
    (No. 2520
    Armour & Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    T. C. Torrence, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant alleges that on April 27, 1933 it sold to the Illinois State Eeformatory at Pontiac, Illinois, 19 pieces of hind quarter of beef, weight 2501 lbs. at $9.10 per hundred weight, totalling the sum of $227.59, and 42 pieces of forequarter of beef, weight 6636 lbs. at $5.60. per hundred-weight, totalling $371.62, or a total bill of $599.21. It appears from the record that these items were duly received, and the total price of $599.21 is due the claimant. Some mistake had been made in the billing of this amount. It appears from a letter from O. H. Lewis, General Superintendent, under date of November 1, 1934, that the sum of $599.21 is correct. Where the facts are undisputed that the State has received supplies as ordered by it and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could have been paid, an award for the amount will be made. This has been held in the case of Shell Petroleum Corp. vs. State, 7 C. C. R. 224 and other cases.

We, therefore, make an award in favor of the claimant in the amount of $599.21.


author: Mr. Chief Justice Hollerich

text:
    (No. 2234
    W. Stuart Atteberry, Claimant v. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Jack McDonald and Leigh M. Kagy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on August 16, 1933 and seeks to recover compensation for injuries sustained by him on August 27, 1931 while in the employ of the Division of Highways of the respondent. It appears that on the last mentioned date claimant was doing some work in connection with the building of a bridge about one and one-half miles south of Waverly, in Morgan County; that in the course of his work he stepped on a nail which punctured the sole of his shoe and penetrated the ball of his foot; that notice of the accident was given and claim for compensation made within the time required by law; that claimant was treated by several different physicians and remained under the care of some one of them from the time of the accident until the 1st day of January, A. D. 1933, on which date he was discharged by Dr. A. D. Wilson of Carrollton, Illinois, as ready to return to work.

During the time that he remained under the care of the doctors, two operations were performed on his foot. All medical and hospital bills have been paid by the respondent except a bill of Dr. Wilson in the sum of $86.00 which remains unpaid.

The evidence does not disclose the amount of the earnings of the claimant during the period of one year prior to the accident. His daily wages, however, were $4.00 and under Section 10-d of the Compensation Act, his average annual earnings must therefore be regarded as $1,200.00, being $23.08 per week.

Claimant admits that he worked three or four days after the accident and was paid therefor, and that he has received the total sum of $169.00 from the respondent, which included his pay for the three or four days which he worked and compensation for the injuries received. Deducting from said sum of $169.00 the sum of $16.00 for four days’ work, leaves a balance of $153.00 which apparently was paid to him as compensation, and which should be deducted from any award of compensation made.

Under the evidence complainant is entitled to receive compensation for temporary total incapacity for seventy (70) weeks at $11.54 per week, to-wit: $807.80. Deducting therefrom the sum of $153.00 heretofore paid as aforesaid, leaves a balance of $654.80, which is the balance of compensation to which the claimant is entitled as aforesaid. In addition to such amount, claimant is also entitled to recover the sum of $86.00 for the doctor bill of Dr. A. D. Wilson as aforesaid, making a total of $740.80.

Award is therefore entered in favor of the claimant for the sum of Seven Hundred Forty Dollars and Eighty Cents ($740.80).


text:
    (No. 2166
    City of Blue Island, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Boy Massena, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its claim herein on May 4, 1933 and seeks to recover the sum of $31.50 for feeding and housing prisoners arrested by the State highway police and brought by them to the calaboose in the city of Blue Island. An itemized statement showing the names of the several prisoners housed and fed, the respective dates, and the amount charged in each case, is attached to the complaint.

The claim was investigated at the instance of Mr. L. M. Taylor, then Assistant Superintendent of State Police, who reported as follows:

“We have investigated this claim and find that it covers charges for cases which our State officers had taken to the jail and found necessary to hold over. In my opinion this is a just claim.”

It appears from the evidence that the amount claimed is justly due and owing by the respondent to the claimant, and It is Therefore Ordered that an award be and the same is hereby entered in favor of the claimant for the sum of Thirty-one Dollars and Fifty Cents ($31.50).


text:
    (No. 1933
    Board of Education, School District 86, Tazewell County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Ben L. Smith, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

This case is one of a group of cases known as the East Peoria Bridge cases, all of which arose by reason of the construction of the east approach to the Illinois River bridge known as the Cedar Street Bridge, which connects the cities of Peoria and East Peoria. The approach in question constitutes a part of S. B. I. Route No. 121, and the traveled portion thereof consists of a four-lane hard-surfaced highway.

The facts so far as they apply to all of this group of cases are fully set forth in the opinions heretofore filed in the following cases, to-wit:

George Treharne, et al. vs. State, No. 1934;

Albert J. Moore, et al. vs. State, No. 1975; and

Mamie Umdenstock, et al. vs. State, No. 1915;

all of which were decided at the present term of this court; to which cases reference is made for such facts.

The facts so far as they apply particularly to this case, are as follows:

The Board of Trustees of Fondulac Township, Tazewell County, Illinois, holds the legal title to Lots 595, 596, 597, 598, and 599 in Richland Place Addition to the City of East Peoria, which property is in the possession of the claimant and is used for the purposes of a grade school, the claimant having constructed thereon a modern eight-room brick-and-stone school building facing Globe Street, at a cost of approximately $93,000.00. The west or front portion of the building is two stories in height, has no basement, and is three feet ten inches above grade. The east or rear portion of the building is one story in height and is occupied as a gymnasium and boiler room. The top of the sill of that portion of the building is three to five inches above the level of the ground.

The premises in question are bounded as follows: — on the west by Globe Street, on which it has a frontage of two hundred (200) feet; on the south by Maple Street, on which it has a frontage of 136.2 feet; on the north by a fifteen-foot alley extending in an easterly and westerly direction, on which it has a frontage of two hundred seventy (270) feet; and on the east by the property of the Caterpillar Tractor Co.

Prior to the construction of the approach in question, Lots 557 to 564, both inclusive, in said Richland Place Addition bordered on the north side of the aforementioned alley, and were directly north of the aforementioned school property, being located between said school property and Roosevelt Street. The approach in question is constructed on said Lots 557 to 564 inclusive, and covers practically all of such lots except a small portion of the north end thereof; — the south right-of-way line of said S. B. I. Route 121 being approximately fifty-five (55) feet north of the north line of the school building. The grade or fill of such approach at the east line of the school property is approximately six feet four inches above the level of the ground there, and the grade or fill of such approach at the west line of said school property is approximately seven feet one inch above the level of the ground there. The grade or fill of the Globe Street approach to said S. B. I. Route 121 commences at the south line of Lot 595 and increases in height to three feet three inches at the north line of said lot.

Prior to the construction of the approach in question, claimant had constructed a tile drain which drained the toilets and lavatories of said school building and connected with a drainage ditch in that vicinity. In the work of constructing said approach, said tile drain was damaged and the claimant was required to rebuild 1,300 feet thereof, at a cost of $1,375.00.

Claimant produced, among others, a number of witnesses Avho were principally teachers and others connected with the school and who testified in substance that on account of the heavy traffic on the roadway, there is an additional hazard to the school children in going to and returning from school; that there is an added responsibility on the part of the teachers in caring for the children while at school; that there is an increased patrol duty; that the children are distracted from their work by the passing traffic; that the noise of the traffic interferes with the regular conduct of the lessons, and requires greater effort on the part of the teachers; that the fumes of passing automobiles interferes with the work of the school; that the efficiency of the school has been impaired, and that as the result thereof, the property has been damaged for school purposes.

Claimant also contends that its property has been damaged by interference with the access thereto; by interference with the natural drainage thereof; by dust blowing over the property in summer; by the noise of and fumes from passing vehicles; and by interference with the free circulation of air across said property.

Claimant’s witnesses estimated the damages to the property for school purposes, based on some or all of the aforementioned elements of damage, at various percentages, ranging from twenty-five (25) to seventy-five per cent (75%) of the cost of the building and grounds.

Respondent produced two witnesses on the question of damages, both of whom testified that in their opinion the value of the school property had not been affected as the result of the construction of the approach in question.

Claimant lays great stress on its claim that six of the eight rooms in the school building have a direct view of the hard road from where the children sit in their seats; that there is a large amount of traffic over such road, "and that inasmuch as such traffic is within the view of the pupils in their seats, the proper operation and management of the school has been materially interfered with.

Claimant originally asked for damages in the sum of Ten Thousand Dollars ($10,000.00), but thereafter increased the amount demanded to Twenty Thousand Dollars ($20,000.00).

In ordinary cases, where private property is not taken, but is damaged, for public use, the proper measure of damages is the difference between the fair cash market value of the property unaffected by the improvement, and its fair cash market value as affected by it. Department of Public Works vs. McBride, 338 Ill. 347; Department of Public Works vs. Caldwell, 301 Ill. 242; Brand vs. Union Elevated Co., 258 Ill. 133.

However, as stated by our Supreme Court in the case of City of Chicago vs. Farwell, 286 Ill. 415, “There are a few exceptional cases in which market value cannot be the legal standard because the property is of such nature and applied to such special use that it cannot have a market value, such as a church, college, cemetery, clubhouse or terminal of a railroad. * * * * * * As to such property, the law permits a resort to any evidence available to prove value, such as the amount of business done or the use made of the property, and the like.”

The only case in this State which has come to our attention involving a similar claim for damages to school property is the case of Illinois Central R. R. Co. vs. Trustees of Schools, 212 Ill. 406. In that ease the declaration averred that the defendant constructed its railroad track near plaintiff’s two-story brick schoolhouse, and that in passing, the locomotives emitted, discharged and threw out and stirred up great volumes of smoke, cinders, ashes and dust, and cast the same over, upon and into said premises, and that the trains caused loud and ominous noises and made the ground tremble, vibrate and shake, causing the school in said premises to be disturbed and frequently to suspend. In considering the right of plaintiff to recover in such case the Supreme Court said:

“There are certain injuries to property for which the owner may recover damages although no part of the property itself is actually taken for the public use. While there is but little difficulty in laying down general rules concerning the nature of such injuries, there is sometimes much difficulty in applying them to particular cases and drawing a definite line between injuries for which the law allows a recovery and those for which it affords no remedy. The provision of the constitution that private property shall not be damaged for public use was not intended to reach every possible injury that may be occasioned by a public improvement. There are certain injuries incident to ownership of property in towns or cities which directly impair its value, for which the law does not afford, and never has afforded, any relief. (Rigney vs. City of Chicago, 102 Ill. 64.) Those injuries are compensated for by the conveniences and advantages of civilization, and both injuries and benefits are common and public.”

The court there also quoted with approval from the case of Rigney vs. City of Chicago, 102 Ill. 64, and then said-:

“The important question is to determine what is a special damage and injury, within the meaning of that and other cases. One thing that is clear is, that the damage must be a damage to property and not a mere personal inconvenience or injury, such as a damage to trade or business. (Hohmann vs. City of Chicago, 140 Ill. 226.) If a right of action is merely personal, without reference to property, the constitution does not guarantee compensation. If the injury amounts only to an inconvenience or discomfort to the occupants of property, which would authorize a personal action but not affecting the value of the property, it is not within the provision. The injury must also be actual, susceptible of proof and capable of being approximately measured. It must not be merely speculative, remote, prospective or contingent. The special damage must be different in kind from that sustained by the general public, although it does not cease to be special because a considerable number are affected in the same way.”

From a consideration of such case'we are of the opinion that the additional hazard to the school children in going to or returning from school; the additional responsibility on the part of the teachers in caring for the children while at school; the increased patrol duty; the fact that the children are disturbed in their work by passing traffic; and that the noise of the traffic and the fumes from passing automobiles interfere to some extent with the schoolwork, and decrease the efficiency thereof, are elments which cannot be taken into consideration in estimating the damages which the claimant is entitled to recover in this case.

A review of the authorities on the legal questions involved in this claim, and a consideration of the several elements which may be taken into account in determining the damages to which claimant is entitled, are contained in the aforementioned case of Albert J. Moore, et al. vs. State, No. 1975, and there is no necessity for a repetition thereof in this case.

Upon a consideration of all of the evidence bearing upon the elements of damage which may properly be taken into consideration, as well as the view of the premises had by the court, we feel that the sum of Two Thousand Dollars ($2,000.00) is adequate compensation for the damages sustained, and an award is therefore hereby entered in favor of the claimant for such amount.


text:
    (Nos. 2021, 2022, consolidated
    Dora Brittin, Administratrix, No. 2021; Eva Bolin, No. 2022, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Richard F. Dunn, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

In the first case No. 2021, counsel has declared it common law that Bleve Bolin was on the 28th day of May, 1932 employed by the State of Illinois in McLean County in the maintenance of a hard road and was then struck by an automobile and died from the injury sustained on the evening of the same day, and alleges damage in the sum of Five Hundred Forty Dollars ($540.00), and No. 2022, the suit is commenced by Eva Bolin, a widow of the decedent, and was declared at common law. The Attorney General and this court elected to consider these claims under the Compensation Act, enough having been set forth in them to justify that action.

They were both filed November 26, 1932; case No. 2021 includes items for which there can be no recovery. In this suit they are claiming $25.00 for burial suit, $12.00 for digging the grave, $50.00 for Dr. O. H. Ball, $15.00 for St. Joseph’s Hospital, $6.00 for nurse, and $432.00 funeral expenses.

Unquestionably this case is under the Workmen’s Compensation Act and the injury received by the deceased arose out of and in the course of his employment. He had only worked three days and received forty cents an hour and worked nine hours a day and six days a week. He had been cutting weeds for the State along the highway and it was only customary for men who worked at this employment to work about six months of the year.

Pursuant to item “E” of Section 9 of the Workmen’s Compensation Act, we must figure his earnings as two hundred times his daily wage; that would be $720.00 per annum, and under the terms of Section “A” of paragraph 7, his widow would be entitled to four times that amount or the sum of $2,880.00. He was approximately seventy-seven years of age and his wife was sixty-eight years old at the time of his death, but he was in good health. They had no children.

The time elapsing from the date of the death of the deceased until July 1, 1935, when it will be assumed that payments will be made to the claimant, will be three years, one month and three days. She has not received any payments and on this July 1st next, she will be entitled to the sum of $1,811.80 which leaves a balance of $1,068.20. This sum must be commuted pursuant to the Compensation Act on the basis of three percent with annual rests. Under the Compensation Act she is entitled to payments at the rate of $11.30 per week or the sum of $1,034.03, that being the cash value as of July 1, 1935.

In addition to this she is entitled to the sum of $1,811.80 being the amount of the accumulated weekly payments or the sum of $2,845.83.

The decedent died the same day he received the injury and he was beyond medical care or attention at the time the doctor saw him. The claim of $50.00 is made for doctor’s services. We think $10.00 to be a reasonable fee. St. Joseph’s Hospital in Bloomington has a charge of $15.00 and the nurse a charge of $6.00 and we add $31.00 to the above and disallow the claim., for burial clothes and funeral expenses.

Therefore, we recommend that the widow claimant, Eva Bolin, be awarded the sum of $2,876.83.