author: Mr. Chief Justice Hollerioh Mr. Chief Justice Hollerich

text:
    (No. 2677
    Peter Bauer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

      Opinion on review filed June 20, 1938.

    Kurt Kiesow, for claimant.
    Otto Keener, Attorney General; Glenn Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

For more than a year prior to April 25th, 1934, claimant was in the employ of respondent as a highway maintenance patrolman on S. B. I. Route 20, Section 107, and on the last mentioned date was working on said route southwest of Waukegan, in Lake County.

On said date claimant and a fellow-employee were heating a barrel of “cut-back,” a mixture consisting largely of tar and pitch, which was used in the repairing of roads. In the process of heating, the barrel exploded and claimant was struck by portions thereof, and was burned about the spine, face, neck and arms by some of the mixture which was thrown upon him as the result of the explosion. He was rendered unconscious and remained in that condition for five days. Immediately after the accident he was taken to St. Theresa’s Hospital at Waukegan, and remained there until May 8th, 1934, when he returned to his home. While at the hospital he was under the care of Dr. L. E. Bovik, who continued to treat him after he returned to his home. Claimant remained at home until about July 1st when he was asked to and did substitute for a supervisor of maintenance while the latter was away on his vacation. He continued to work as a substitute supervisor for about five weeks, and then assisted in breaking* in a new supervisor, working in that capacity until September 8th, 1934. Apparently the only work he had to do as Supervisor was to ride around in an automobile and oversee the work being done, and afterwards to ride with the new supervisor until he became familiar with the new territory.

Claimant testified that his condition was such that he was unable to continue with such work after September 8th, and about that date he was notified to return to Dr. Bovik for further treatment. On September 10th, 1934 he again returned to the hospital where he remained for thirteen days. X-ray pictures were taken on July 31st, 1934, September 18th, 1934, and May 29th, 1936.

Claimant was sixty-seven years of age at the time of the accident,- was married, and had no children under the age of sixteen years.

Claimant’s salary was One Hundred Dollars ($100.00) per month, and he continued to receive his full salary from the date of the injury to November 1st, 1934. Thereafter, from November 1st, 1934 to May 1st, 1935 he was paid half of his regular salary, to-wit, Fifty Dollars ($50.00) per month.

After his return from the hospital on September 23d, 1934, he continued to go to the office of Dr. Bovik three times a week for light and rubbing treatments until February 10th or 12th, 1935.

Prior to the accident claimant had worked steadily and was not troubled with pains of any kind. He now claims that he has pain almost all of the time, particularly a gnawing pain in the back of his head, in his left ear, down his left shoulder and arm to the end of his fingers. He claims that when he sits still he is quite comfortable, but if he moves around he has considerable pain. He also claims that he has but little strength and when he attempts to lift anything he has pain all the way down his arm; that he has been lame in his left leg ever since the time of the accident.

Claimant has had but little education, always worked as a laborer, and never had any previous injury, except that when he was twenty-one-years of age he sustained an injury to his left knee. He claims he is now unable to do any substantial amount of work, but states that he putters around the house a little, mows the lawn, and pulls weeds in the garden sometimes, but that it tires him to do so. He also claims that he does not sleep well.

The evidence in the record on the question as to the extent of claimant’s disability consists of his own testimony, the testimony of Dr. Leslie E. Bovik, the attending physician, who was called by and testified on behalf of the claimant; Dr. Julius Brams who was called by the claimant and testified with reference to the X-rays in evidence; and Dr. H. B. Thomas, who was called by the respondent.

Dr. Bovik in summing up his conclusions, stated: “This man may not have a permanent total disability. He might have a permanent 90% disability, at least for a common laborer. That would be based upon the kind of common labor that this man might have to pursue. Throwing him into the field of common laborers and all things connected therewith, I would say that he was not fit for such work. ’r

Dr. Thomas was of the opinion that the claimant had a 20% disability of the neck. He was also of the opinion that the disability of the knee resulted from the injury sustained by claimant when he was twenty-one years of age, and was not service-connected. Dr. Thomas also was of the opinion that with the exception of the aforementioned disability of the neck and the disability of the knee, claimant ought to be able to do as much now as he did before, taking into consideration his age changes.

Dr. Brams stated: “I think he certainly would have a permanent partial disability. As to the exact percentage I can’t say. It would depend upon what type of work this man would do. If he does labor that is such that he subjects himself to greater possibility of injury to the spine, his degree of disability is that much greater. Certainly he is partially disabled, regardless of what he does.”

The evidence discloses that there is a narrowing of the inner space between the fourth and fifth, and between the fifth and sixth cervical vertebrae; that there is some lipping of the vertebral bodies, and an arthritic condition involving the aforementioned joints; that such condition can be caused by trauma or by infection. The several X-rays disclose that the pathology is increasing.

Dr. Thomas stated that as a result of his examination he found considerable arthritis in both the cervical vertebrae and in the joint, with some lipping, some wearing away of the cartilages. It also appears from the evidence that the claimant had an arthritic condition prior to the time of the injury here in question. It is a fair conclusion from all of the evidence that the accident in question either caused the present condition of the claimant, or it aggravated a preexisting condition, and thereby produced the claimant’s present disability.

It is well settled in this State that in either of such events, the respondent is liable under the terms and provisions of the Workmen’s Compensation Act. Big Muddy Coal Co. vs. Ind. Com., 279 Ill. 235; Rockford Traction Co. vs. Ind. Com., 295 Ill. 358; Ohlson vs. Ind. Com., 357 Ill. 335; Anger-stein’s “The Employer and the Workmen’s Compensation Act,” Volume 1, page 93, Section 52.

From a consideration of all of the evidence in the record, it is clear that the claimant has been seriously and permanently injured. He claims that his disability is total. The medical testimony on both sides of the case appears to be to the effect that the disability at the time of the hearing was partial rather than total, the extent of such partial disability being variously estimated by the several witnesses.

We therefore find that as the result of the accident in question, the claimant sustained a permanent partial disability. However, there is no evidence in the record upon which we can base an award for such permanent partial disability.

Section 8, paragraph D of the Workmen’s Compensation Act, relative to the amount of compensation payable for a permanent partial disability, provides as follows:

“If, after' the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty percentum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.”

The evidence shows that claimant’s annual wages prior to the accident were $1,200.00, but there is nothing to show what he has earned or is able to earn in some suitable employment after the accident.

There is evidence to show that while his superior officer was away on his vacation, claimant performed the duties of such officer and received the same compensation therefor as he earned prior to his injury. However, the only work he did was to drive around from place to place in an automobile and supervise the work done by others. Even such work was more than he was able to stand, and he had to return to the hospital for treatment. We therefore consider that such employment, constituted no criterion as to what claimant was able to earn after the accident.

In our consideration of cases under the Workmen’s Compensation Act, we are required by Section 6, paragraph 6 of the Court of Claims, Act to determine such cases “in accordance with the rules prescribed by the Act commonly called the Workmen’s Compensation Act.” The Court of Claims is so constituted that practice in this court necessarily must differ in material respects from practice before the Industrial Commission, and in matters of practice it is not possible for this court to follow in every respect the provisions, of the Workmen’s Compensation Act. In proceedings before the Industrial Commission, the usual practice is for the case to be heard in the first instance before the Arbitrator, and his decision is subject to review by the Industrial Commission, in accordance with the provisions of Section 19 of the Compensation Act, which section authorizes the taking of additional testimony on the hearing on review. We have no authority to appoint an arbitrator, or to designate one member of the court as an arbitrator to hear the case in the first instance. Nevertheless, we feel that either party to a compensation case in this court is entitled to a hearing on review, and to offer additional testimony on such hearing, in all respects as provided by Section 19 of the Workmen’s Compensation Act.

Award is therefore denied, but claimant is given the right to file a petition for review within the time and in the manner set forth in Section 19 of the Workmen’s Compensation Act. The evidence heretofore taken, and now filed in this court will stand as the agreed statement of facts or transcript of the record required to be filed pursuant to the provisions of paragraph B of Section 19 of the Act.

Opinion on Review.

Mr. Chief Justice Hollerich

delivered the opinion of the court.

This cause again comes before the court on claimant’s petition for review, pursuant to the provisions of paragraphs (b) and (e) of Section 19 of the Workmen’s Compensation Act.

An opinion was filed herein on March 25th, 1938, in which the court found that as the result of the accident in question, claimant was temporarily totally disabled, and also sustained a permanent partial disability, but award was denied for the reason that payments had been made to claimant in excess of the amount due him for temporary total disability, and there was no evidence in the record from which a computation could be made of the amount to which he was entitled for permanent partial disability under the provisions of paragraph (d) of Section 8 of the Workmen’s Compensation Act.

Since the filing of the petition for review, further proceedings have been had, from which it appears that claimant can now do light work, and is now able to earn the sum of $10.00 per week.

The facts with reference to the accident in question, the nature and extent of claimant’s injury, and the payments heretofore made to him are fully set forth in the original opinion of the court.

From the present record it appears that all medical, surgical and hospital services were furnished by respondent; that' claimant was temporarily totally disabled for the period of 43 2/7 weeks; that the average amount which claimant earned before the accident was $23.08 per week, and the average amount which he is able to earn in some suitable employment after the accident is $10.00 per week; that subsequent to the accident, respondent paid to claimant for wages and compensation the total amount of $916.66; that of such amount the sum of $214.31 was paid for productive time, and the remainder, to-wit, $702.35, must be considered as compensation, and deducted in computing* the amount now due the claimant.

Claimant is therefore entitled to recover the sum of $499.52 for 43 2/7 weeks temporary total incapacity at $11.54 per week, and in addition thereto, the sum of $2,437.55 for 372 5/7 weeks permanent partial disability at $6.54 per week. From the total of such amounts, to-wit, $2,937.07, there must be deducted the sum of $702.35 for compensation heretofore paid as above set forth, leaving a net amount of $2,234.72.

The accrued compensation to June 20th, 1938, computed as above, is $1,570.21, which amount, less the sum of $702.35 heretofore paid as aforesaid, to-wit, $867.86, is payable forthwith, and .The remaining balance of compensation, to-wit, $1,366.86 is payable in weekly installments of $6.54 commencing June 27th, 1938.

Award is therefore entered in favor of the claimant for the sum of $2,234.72, payable as follows, to-wit:

1) The sum of Eight Hundred Sixty-seven Dollars and Eighty-six Cents ($867.86) forthwith;

2) The sum of Thirteen Hundred Sixty-six Dollars and Eighty-six Cents ($1,366.86) in Two Hundred Nine (209) weekly installments of Six Dollars and Fifty-four Cents ($6.54) per week commencing on June 27th, 1938.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83), and being* by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Me. Chief Justice Holleeich

license: Public Domain

text:
    (No. 3234-3237, Consolidated
    Great Northern Chair Co., No. 3234 and Dennis Bros. Co., No. 3237, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1938.

    Claimants, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court.

Above cases involve similar states of fact, and the same principles of law, and are therefore combined for the purposes of this hearing.

On January 22d, 1938 the Great Northern Chair Co. paid to respondent the sum of Twenty-four ($24.00) Dollars as a license fee and tax for 1938 on its Dodge truck. On March 9th, 1938 this claimant sold said truck, and now asks for a refund of the pro rata share of the license fee and tax paid by it as aforesaid, for the unexpired portion of the license period.

Dennis Bros. Inc. paid the sum of Twelve Dollars ($12.00) as a license fee and tax for 1938 on its Ford truck. On March 12th, 1938 this claimant sold said truck, and now asks for a refund of the pro rata share of the license fee and tax paid by it as aforesaid, for the unexpired portion of the license period.

The Attorney General has entered a motion to dismiss, in each case, for the reason that this court has no authority to allow an award under the facts set forth in the complaint.

The general rule of law relative to the refunding of the unearned portion of a license fee, is set forth in 37 Corpus Juris, page 255, section 130, as follows:

“Where the fee or tax which has been paid was not illegal or unauthorized, it cannot be recovered back, irrespective of whether its payment was voluntary or involuntary, and although the method of its collection .was irregular.”

The identical question here involved has been considered by this court in a number of cases, and we have uniformly held that under the facts above set forth, claimants have no right to an award. Dealers Transport Co. vs. State, 8 C. C. R. 510; Freeport Floral Co. vs. State, 9 C. C. R. 149; Phillips vs. State, No. 3091, decided September Term, 1937; Eaid vs. State, No. 3157, decided January Term, 1938.

In the case of Phillips vs. State, No. 3091, we said:

“There is no provision of the Motor Vehicle Act, or any other Act, which authorized a return of a license fee under the facts set forth in the complaint. Had the legislature intended that licensees should be entitled to a return of the license fees paid by them, in the event of a sale of the licensed car, they would undoubtedly have made provision to that effect.”

For the reasons above set forth the motion of the Attorney General in each case must be allowed.

Motion to dismiss allowed in each case and case dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3203
    Harry Laurence, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1938.

    Philip S. Rosenthal, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court.

On February 10th, 1938 claimant filed his complaint herein in which he alleges that prior to and on December 7th, 1936 he was in the employ of the respondent as a fireman and general maintenance man at the 122d Field Artillery Armory, 234 Bast CMcago Avenue, Chicago, Illinois; that on said date, while engaged in drawing out clinkers from the firebox, the firing iron bent, whereby the back portion of both of his hands came in contact with the hot clinkers piled on the platform outside the firebox; that he was given first-aid treatment and other medical treatment; that after said accident he continued to work for the respondent, but was placed on watch or guard duty, which did not necessitate the use of his hands; that he continued on such guard duty until June 9th, 1937 and was paid his regular monthly salary of $90.00 per month; that on the last mentioned date he was released on account of a reduction in personnel; that for a period of twenty-eight (28) weeks after June 9th, 1937 he was temporarily disabled from engaging in his usual and customary occupation; that during said last mentioned period, regular medical treatments were required and obtained on account of the condition of his hands; — and claimant, in said complaint, makes claim for compensation for temporary total disability for said period of 28 weeks.

The Attorney General filed a motion to dismiss, for the reason that the complaint fails to show that claim for compensation was made within six months after the accident, and for the further reason that application for compensation was not filed within one year after the date of the injury, as required by Section 24 of the Workmen’s Compensation Act.

Thereafter claimant filed his amended complaint, in which he alleges that the respondent was notified of the accident immediately thereafter, and that a claim for compensation was made within six months after the accident.

Upon motion of the Attorney General, the motion to dismiss the original complaint was permitted to stand to the complaint as amended.

The amended complaint disposes of the objection that claim for compensation was not made within six months after the accident, but the objection that application for compensation was not filed within one year after the date of the injury or within one year after the date of the last payment of compensation remains to be considered.

Claimant contends that the rendering of medical services by the State for twenty-eight (28) weeks after June 9th, 1937, constituted a payment of compensation within the meaning of the Workmen’s Compensation Act, and that therefore application for compensation was filed within one year after the last payment of compensation.

In 1925 Paragraph (a) of Section 8 of the Workmen’s Compensation Act was amended so as to provide that the furnishing by the employer of medical, surgical or hospital services shall not be construed to admit liability on the part of the employer to pay compensation, “and the furnishing of any such services or appliances by the employer shall not be construed as payment of compensation.” Prior to such amendment our Supreme Court had held in a number of cases that the furnishing of medical, surgical or hospital services constituted the payment of compensation. However, such has not been the law since the amendment of 1925. Lewis vs. Ind. Com., 357 10 Ill. Ct. Cl. 333 309-314.

In Angerstein’s “The Employer and the Workmen’s Compensation Act,” page 481, Section 261, the author says:

“The furnishing of such services, not being a payment of compensation, should not in any way affect the period of time within which claim should be made or claim be filed.”

Our Supreme Court has held in numerous cases that the making of application for compensation within one year after the date of the injury or the last payment of compensation is jurisdictional, and a condition precedent to the right to maintain an action under the Compensation Act. City of Rochelle vs. Ind. Com., 332 10 Ill. Ct. Cl. 333 386; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511; DuQuoin School District vs. Ind. Com., 329 Ill. 543; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262.

Inasmuch as the claim was not filed within the time limited by the Compensation Act, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3151
    Victor Weidner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1938.

    Harris & Jafee and Irving Proctor, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on December 11, 1936, claimant was in the employ of the respondent as a laborer in the Division of Highways, Department of Public Works and Buildings. On the date aforementioned, he was working* with a tarring* crew on Harlem Avenue just north of Higgins Road in Cook County. While hooking the asphalt heating* kettle onto the truck, claimant’s foot slipped on the ice, the kettle tipped, and the hot asphalt spilled on him as he fell to the ground, whereby he received second degree burns about the left eye, left nostril, left ear, left side of face, neck and right wrist.

He was taken to St. Francis Hospital in Evanston where he remained until December 17th, 1936 when he returned to his home.

He was temporarily totally disabled from December 11th, 1936 until February 18th, 1937.

Respondent paid bills for medical services in the amount of Eighty-nine Dollars ($89.00), and hospital bills in the amount of Twenty-six Dollars ($26.00), and in addition thereto, paid the claimant the sum of One Hundred Fifteen Dollars and Twenty Cents ($115.20) for temporary total disability.

No further claim is made for temporary total disability, but claimant asks for compensation for serious and permanent disfigurement to his hand, head, neck and face, pursuant to the provisions of paragraph A, Section 8 of the Workmen’s Compensation Act of this State.

Claimant was personally present in court and submitted to a physical examination.

Claimant was in the employ of the respondent for less than a year, and his annual earnings computed in accordance with Section 10 of the Workmen’s Compensation Act, were Eight Hundred Dollars ($800.00), and his average weekly wag*e was Fifteen Dollars and Thirty-eight Cents ($15.38). He had two children under the age of sixteen years at the time of the accident.

From the evidence in the record and a personal examination of claimant, we find that although there is a slight discoloration on claimant’s right wrist, it does not constitute a serious disfigurement within the meaning of the Compensation Act. We further find that claimant has sustained a serious and permanent disfigurement to the face and neck, and in accordance with the provisions of Section 8-C of the Workmen’s Compensation Act, is entitled to compensation in the sum of Two Hundred Sixteen Dollars ($216.00), payable at the rate of Twelve Dollars ($12.00) per week, commencing February 18th, 1937.

The entire amount of such compensation having accrued at this time, award is- entered in favor of the claimant for the sum of Two Hundred Sixteen Dollars ($216.00).

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws 1937, p. 83), and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


author: Mr. Justice Yantis

text:
    (No. 3191
    Horst & Strieter Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court.

In the early part of the year 1935, the State of Illinois purchased a large number of Ford V-8 coaches through the authorized Ford dealer at Springfield, Illinois. These cars were then assigned to the several Highway Maintenance Police Districts, one of which was District No. 7 with headquarters at Rock Island, Illinois.

After the cars were placed in service, it was found that certain defects appeared. At that time the Division of Highways Maintenance Police decided that it would be best to have the replacements and service provided by the local authorized Ford dealer at Rock Island, thereby saving time and expense in bringing the cars to the Springfield Ford agency through whom they were purchased. The Horst & Strieter Company made application to the Ford Motor Company of Detroit, Michigan, to have certain replacements and services given at the expense of the Ford Motor Company. Those replacements and services were found to be a just charge against the Ford Motor Company, when the cars were brought in before the expiration of the guarantee period.

During the same period other replacements and services were provided by the Horst & Strieter Company, which in no way concerned the Ford Motor Company.

The Horst & Strieter Company kept all of its correspondence with the Ford Motor Company, invoices and bills on all the above materials and labor together until guaranteed replacements were all made. This, in a large measure, accounts for the delay in presenting the bills and invoices for payments.

All materials, service, and labor shown in the bill of particulars (invoices and bills) were provided by the Horst & Strieter Company and the charges made for each item is the regulation one made by Ford agencies.

The amount of services rendered by claimant on cars serviced by it for the State during the same period in whicjh guaranteed replacements were being made, amounts to a total of $46.92. This bill has not been paid for the reason that the appropriation out of which such payment could have been made had lapsed before the adjustment of accounts could be determined. It appears that at the time the appropriation lapsed there remained therein an unexpended balanee sufficient to pay for the bill in question, and that such bill represents the usual customary and standard charges made for such services.

In conformity with the Opinion heretofore rendered in Rock Island Sand & Gravel Company, vs. State, 8 C. C. R. 165, and other cases,

“Where claimant has rendered services or furnished supplies to the State on the order of one authorized to contract for same and a bill is thereafter submitted within a reasonable time but, through no negligence of claimant, is not presented, approved or vouchered before the appropriation from which it is payable lapses, an award for the reasonable and customary value thereof will be made, if at the time the obligation was incurred there were sufficient funds unexpended in the appropriation therefor to pay said account,”

an award is therefore allowed in favor of claimant in the sum of $46.92.


author: Mr. Justice Linscott

text:
    (No. 2873
    Sylvester Steskal, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1938.

    James E. Londrigan, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, Sylvester Steskal, was injured by reason of an accident arising out of and in the course of his employment in the Division of Highways, Department of Public Works and Buildings, on Christmas Day, 1935. The injury resulted in a total disability for several weeks and left several soars disfiguring his face. At the- time of his injury, he was engaged by the Highway Department plowing snow from the road. The snow plow broke causing the truck to telescope throwing him into the windshield and severely cutting his face and head.

No question arises as to the jurisdiction of the court and the only question ever open was to determine the amount claimant should be allowed for the scars upon his face.

The claimant appeared before the court in person and we found a scar on his right cheek, about 2% to 3 inches long, and rather irregular in shape, with rather jagged edges; also found a scar on his chin to the left of the center line about 1 inch long, and also creating rather a jagged appearance. There is also a scar on the left side of his face, a little to the front, and a little below the cheek bone, extending upwards and downwards. This also is about one inch long. There is a scar to the right of the center line on his forehead, maybe an inch below and a half an inch long. That is more regular.

At the time of his injury, claimant was married, and had one child who was eight years old at the time of the taking of the deposition on July 10, 1936. At the time of his injury, he was receiving One Hundred Twenty Dollars ($120.00) per month, and at the time of the accident he was twenty-seven years old.

Claimant is not claiming any compensation for loss of time. He had been paid his full wages for the three weeks that he was off. Claimant’s doctor and hospital bills amounting to Twenty-five Dollars ($25.00) and Fifteen Dollars and Thirty Cents ($15.30) respectively were paid by the State, and he is now asking the sum of One Thousand One Hundred Fifty-two Dollars and Eighty Cents ($1,152.80) as compensation.

This court has held, in numerous cases that in the maintenance of its hard-surfaced roads, the State is engaged in an extra hazardous business or enterprise within the meaning of Section 3 of the Workmen’s Compensation Act.
Manhart vs. State of Illinois, 8 C. C. R. 356 (357).
A highway maintenance patrolman injured in an accident arising during the course and out of his employment may receive compensation therefor.
Foster vs. State of Illinois, 8 C. C. R. 340.

Section 8, paragraph b, provides:

If the period of temporary total incapacity for work lasts more than six working days, compensation equal to fifty per centum of the earnings, but not less than $7.50 nor more than $15.00 per week, beginning on the eighth day of such temporary total incapacity and continuing as long as the temporary total incapacity lasts, but not after the amount of compensation paid equals the amount which would have been payable as a death benefit under paragraph (a), Section (7), if the employee had died as a result of the injury at the time thereof, leaving heirs surviving as provided in said paragraph (a), Section 7: Provided, that in the case where the temporary total incapacity for work continues for a period of more than thirty days from the day of the injury, then compensation shall commence on the day after the injury.”

The Act further provides:

“For any serious and permanent disfigurement to the hand, head or face, the employee shall be entitled to compensation for such disfigurement, the amount fixed by agreement or by arbitration in accordance with the provisions of this Act, which amount shall not exceed one-quarter of the amount of the compensation which would have been payable as a death benefit under paragraph (a), Section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving, as provided in said paragraph (a), Section 7: Provided, that no compensation shall be payable under this paragraph where compensation is payable under paragraph (d), (c) or (f) of this section, compensation for such disfigurement may be had under this paragraph.”

The claimant avers in his claim for compensation that he was paid his salary during his temporary total disability. He is asking for the sum of One Thousand One Hundred Fifty-two Dollars and Eighty Cents ($1,152.80), which is one-fourth the amount that his dependents would have been entitled to had he been killed. Under Paragraph D of said Section 8, he would have been entitled to compensation, (subject to the limitations of Paragraphs B and H of said Section 8), equal to fifty per centum of the difference between the average amount which he earned before the accident and the. average amount which he is earning or is able to earn in some suitable employment or business after the accident.

From the record it appears that he is earning as much now as he was prior to the time of the accident, if not a little more, and Section B provides that if his temporary total incapacity for work lasts more than six working days, he is entitled to compensation equal to fifty percentum of the earnings but not less than $7.50 nor more than $15.00 per week, beginning on the eighth day of such temporary total incapacity and continuing as long as the temporary total incapacity lasts, but not after the amount of compensation paid equals the amount which would have been payable as a death benefit under paragraph (a), Section 7, if the employee had died as a result of the injury at the time leaving heirs surviving. His temporary total incapacity lasted less than thirty days and he did receive his full salary.

The record shows that he was absent from work from December 25th until January 20th and he received One Hundred Two Dollars and Fifty-seven Cents ($102.57). Under the act, he was entitled to receive from the 8th day after the accident until the 26th day inclusive, at the rate of Fifteen Dollars ($15.00) per week or a total of Forty Dollars and Seventy-one Cents ($40.71), and therefore was over-paid Sixty-one Dollars and Eighty-six Cents ($61.86).

As we construe the law, the disfigurement must be serious and permanent. The scars above outlined are visible a distance from twenty to twenty-five feet. The healing period has long since passed. The basis for compensation for disfigurement is that the disfigurement has in some way affected the employee’s earning capacity either in directly affecting his ability to earn in the employment in which he is engaged, or in interfering with his ability later to obtain employment. It is sometimes said that the disfigurement may cause a workman to be at a disadvantage in the labor market by reason of the hideousness or seriousness of the disfigurement, or it may make him more timid in his application for employment. Obviously, a description as to all possible disfigurements could not be made in the act, so the general provision was made that the disfigurement must be permanent and serious and the determining of the proper amount payable is left to the parties or the commission within certain maximum limits.

The statute dos not require that there shall be a showing of loss of earning power before compensation can be made for a disfigurement, and we are not authorized to read such provision into the statute. The law in this respect is well stated in the case of Williams Co. vs. Industrial Com., 303 Ill. 352.

Ugly scars on the face are often more noticeable than disfigurement to the hands. Disfigurement to be considered serious need not cause a decrease in the earning capacity but it must be such disfigurement as to interfere with Ms securing work in Ms usual line. In tMs particular case it appears to us that that is claimant’s position. There is no set rule for determining the amount which should be paid in disfigurement cases, except the limit hereinabove referred to. We must, therefore, rely upon common sense and fairness of attitude.

With this in mind, we fix the amount of the award at Six Hundred Dollars ($600.00), in addition to all amounts heretofore paid to said employee.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937 p. 83), and being, by the terms of such Act, subject to the approval of the G-ovemor, is hereby, if and when such approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3162
    Martin Pfeiffer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

      Award vacated September 13, 1988.


text:
    (Nos. 3131-3140-3154-3174-3179
    Van V. Lain and Wm. V. V. Lain, Co-partners, Doing Business as Lain & Son, Nos. 3131, 3140 and 3154, O. L. Marston, No. 3174 and Daniel T. O'Regan, No. 3179, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

      Awards vacated September 13, 1938.


text:
    (Nos. 3175-3176-3177, Consolidated
    Edward R. Weerts, No. 3175, Victor A. Karcher and Frank A. Karcher, Doing Business Under and by the Firm Name and Style of Karcher Brothers Funeral Home, No. 3176 and Union Co-Operative Undertaking Association, No. 3177, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

      Award vacated September 13, 1938.


text:
    (No. 3220
    F. J. Fessant and Robert C. Clark, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

      Award vacated September 13, 1938.


text:
    (No. 3214
    N. W. Wilson, Doing Business as Wilson Funeral Service, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

      Award vacated September 13, 1938.


text:
    (No. 3213
    N. W. Wilson, Doing Business as Wilson Funeral Service, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

      Award vacated September 13, 1938.


text:
    (No. 3205
    Walter G. Scott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

      Award vacated September 13, 1938.


author: Me. Justice Yantis

text:
    (No. 3245
    Naperville Nurseries, Inc., Claimant, vs. State of Illinois.

      Opinion filed September 14, 1938.

    Mbcartney & Vail, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant, an Illinois corporation, at the request of O. J. Schneider, District Landscape Engineer, Division of Highways, Department of Public Works and Buildings, of the State of Illinois, furnished to the Highway Division at Elgin, Illinois certain nursery stock as shown by itemized statement filed herein. The nursery stock was duly delivered, accepted by the Highway Department and used by it along the highways of the State. Claimant submitted an invoice to the Division of Highways on March 21, 1938 but said invoice was not vouchered for payment, for the reason that on September 30, 1937 the appropriation from which said items were payable had lapsed. It appears that sufficient funds remained in the appropriation at that time from which said account could have been properly paid, and further that the bill submitted for such nursery stock was the customary and reasonable charge therefor. Claimant is legally entitled to payment of the amount of its bill and an award is hereby made in favor of claimant therefor, in the sum of Seven Hundred Ninety-seven ($797.00) Dollars.


text:
    (No. 3270
    Metropolitan Electrical Supply Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    J. B. Luse, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From the stipulation of facts herein it appears :

1. That on or about the 16th day of July, A. D. 1935, the claimant delivered to the respondent at the Chicago State Hospital, Chicago, Illinois, certain merchandise of the value of Twenty-eight Dollars and Sixteen Cents ($28.16), pursuant to a certain purchase order issued by the proper officer of said Chicago State Hospital.

2. That on September 6th, 1935, the managing officer of said Chicago State Hospital requested claimant to forward invoice in triplicate by return mail, but same was not received until December 7th, 1935, at which time the appropriation for the 1933-1935 biennium, out of which the bill should have been paid, had lapsed, and claimant was advised to file its claim in this court.

At the time of the issuance of such purchase order, and at the time of the delivery of the merchandise in question, there were sufficient funds remaining unexpended in the proper appropriation to pay for the same.

We have held in numerous cases that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, No. 3105, decided at the January Term, 1938, of this court; Goodyear Tire & Rubber Co. vs. State, No. 3155, decided at the March Term, 1938, of this court.

This claim comes within the requirements above set forth, and award is therefore entered in favor of the claimant for the sum of Twenty-eight Dollars and Sixteen Cents ($28.16).


author: Mb. Chibe Justice Hollebioh

text:
    (No. 3137
    Annie Nolan, Widow of William Leon Nolan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, September 14, 1938.

    David Alswang, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chibe Justice Hollebioh

delivered the opinion of the court:

The claimant, Annie Nolan, is the widow of William Leon Nolan, who, in his lifetime, was employed by respondent at the Illinois Industrial Home for the Blind, at Chicago, Illinois.

On August 18th, 1937 said William Leon Nolan, who was then seventy-eight (78) years of age, and totally blind, was working in the broom factory operated by respondent in connection with said Illinois Industrial Home for the Blind. He was employed on the second floor of the building, and apparently intended to go to the floor below. In so doing he missed his footing and fell down the stairs, whereby he sustained injuries from which he died on September 1st, 1937.

It is conceded that sharp cutting- tools were used in connection with the work done at such broom factory; that the accident in question arose out of and in the course of the employment of said decedent ; that his superior officer had immediate notice of the accident; and that claim for compensation was made within the time required by the Workmen’s Compensation Act.

Claimant asks for an award under the terms and provisions of the Workmen’s Compensation Act of this State. Bespondent contends that said William Leon Nolan was not an “employee of the State” within the meaning of those words as used in the Compensation Act, and that therefore claimant is not entitled to an award.

Section Three (3) of the Workmen’s Compensation Act provides that the Act shall apply automatically and without election to “all employers and all their employees” engaged in any department of the enterprises or businesses there enumerated.

Section Five (5) of such Act defines the term “employee”, and provides that: “the term 'employee’ as used in this Act shall be construed to mean: First: Every person in the Service of the State * * * under appointment or contract of hire, express or implied, oral or written, except any totally blind person.” * * *

Second: Every person in the service of another under any contract of hire, express or implied, oral or written * * * but not including any totally blind person,” etc.

Claimant contends that the clause excepting any totally blind person is unconstitutional; that the elimination of totally blind persons as employees is an unreasonable discrimination, and is in violation of Section Two (2) of Article Two (2), and of Section Twenty-two (22) of Article Four (4) of the Constitution of this State, which sections are more commonly known as the “Due Process” clause and the “Special Legislation” clause of the Constitution; that by reason thereof the claimant should be allowed an award as an employee under the provisions of the Act.

Our Supreme Court has had occasion in numerous instances to consider the aforementioned constitutional provisions. It is well settled that a statute which arbitrarily classifies individuals and subjects them to peculiar rules or imposes upon them special burdens and obligations from which other individuals similarly situated are exempt, is in violation of the Constitution.

It is also well settled that such constitutional provisions do not prohibit reasonable classifications for legislative purposes, and a statute cannot be considered “class legislation” merely because it affects one class and not another, provided it affects all members of the same class alike.

In the case of Casparis Stone Co. vs. Ind. Board, 278 Ill. 70, our Supreme Court, in passing upon the constitutionality of the "Workmen’s Compensation Act of this State, on page 80 said:

“U-nder the doctrine oí equal protection of the laws class legislation is prohibited by the Federal constitution, but there is no prohibition against a reasonable classification of persons and things for the purpose of legislation. (Gulf, Colorado and Sante Fe Railway Co. vs. Ellis, 165 U. S. 150.) Such classification, however, must not be capricious or arbitrary but must be reasonable and natural and based upon some principal of public policy; but if the classification is not wholly unreasonable and arbitrary and the statute is uniform in its operation on all the members of the class to which it is made applicable, no one is denied the equal protection of the laws guaranteed by the Federal constitution. (American Sugar Refinery Co. vs. Louisiana, 179 U. S. 89; 6 R C. L. 374, 379, 379.) In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction the State is permitted a wide range of discretion. The question of classification is primarily for the State legislature, and only becomes a judcial question when the legislative action is clearly unreasonable. (Magoun vs. Illinois Trust and Savings Bank, 170 U. S. 283.) The provisions of the constitution with reference to due process of law and equal protection of the law merely require that all persons subjected to such legislation shall be treated alike under like circumstances and conditions. (Central Lumber Co. vs. South Dakota, 226 U. S. 157.) The reasoning of these decisions as to classifications under the various State laws has been repeatedly approved by this court. (City of Chicago vs. Bowman Dairy Co., 234 Ill. 294; City of Chicago vs. Schmidinger, 243 Ill. 167; Ritchie & Co. vs. Wayman, 244 id. 509; People vs. Henning Co., 260 id. 554.) We think the classification provided for in this law bears a reasonable relation to the objects sought to be accomplished and is uniform as to all members of the class to' which it is made applicable, and that the law is not unconstitutional because of such classification.”

In the case of People vs. City of Chicago, 337 Ill. 101, it was contended that Section 12 of the Civil Service Act relating to cities, was unconstitutional in that it denied laborers the right to a hearing before their discharge from employment, whereas other persons coming under the provisions of the Act were entitled to such hearing. In that case the Supreme Court, on page 104, said:

"It may not be doubted that a law applicable only to one class of individuals must rest upon some actual, substantial difference between that class and other individuals of the State or community when considered with reference to the purposes of the legislation. It is necessary that there be a basis in reason and principle for regarding such class of individuals as a distinctive or separate class. The fact that the act discriminates against an individual or group is not of itself sufficient to render it invalid. Such discrimination, to violate constitutional guaranties, must be unreasonable and wanting in that basis required by law. A class may not be created by the arbitrary declaration of an act of the legislature and endowed with special legislative favors or subjected to special burdens. The classification, in such instance, must be based on a substantial and reasonable distinction in the situation and circumstances of the individuals who are embraced therein from those not so included, and the ground of such classification and distinction must have relation in reason and in principle to the privileges or burdens proposed to be granted to or laid upon such individuals as a class by the proposed legislation.”

In the case of Crews vs. Lundquist, 361 Ill. 194, in considering the same question, our Supreme Court, on page 197, said:

“In considering the reasonableness of the classification made by the General Assembly, courts will not attempt to assert their judgment on that matter as against the judgment of the General Assembly, nor refuse to uphold legislation merely on the ground that their judgment in this regard differs from that of the General Assembly. An act of the General Assembly is not to be regarded as class legislation merely because it affects one class and not another, provided it affects all members of the same class alike. Classification of persons or objects for purposes of legislative regulation is not open to constitutional objection if it be not arbitrary but is based upon some substantial difference bearing proper relation to the classification.”

In the case of The People vs. Ladwig, 365 Ill. 574, the court, in considering the “due process” clause, said on page 585:

“Whether an act is open to the charge that it denies equal protection of the laws depends, not on whether the parties affected have been discriminated against, but whether there is a reasonable basis for the classification made by the statute”.

In the case of Punke vs. Village of Elliott, 364 Ill. 604, the court, in discussing the question here involved, said on page 611:

“The classification of objects and subjects for legislative purposes rests in the legislative department. It is permitted a wide range of discretion in the exercise of such power. (Magoun vs. Illinois Trust and Savings Bank, 170 U.S. 283, 42 L. ed. 1037). The judicial department may not interfere with such classification when made unless it is clearly unreasonable. (Casparis Stone Co. vs. Industrial Board, 278 Ill. 77.) Nor is it necessary that classification be accurate, scientific, logical or harmonious, so long as it is not arbitrary and will accomplish the legislative design.”

There are numerous other decisions of our Supreme Court to the same effect. The difficulty arises not in stating the principles of law, but in the application of such principles.

It therefore becomes necessary to consider whether there was some substantial reason for the classification made by the legislature or whether such classification was entirely arbitrary.

The provision of the Compensation Act under consideration was inserted in such Act by an amendment effective July 1st, 1929. In considering such amendment, Angerstein in his work on The Compensation Act, 1930 edition, page 304, Section 139, says:

“By amendment to Section 5, effective July 1, 1929, to the first paragraph of Section 5, any totally blind person is specifically excepted in the construction of the term “employee”. Any such person therefore, employed in the service of the State, county, city * * * is not an employee within the meaning of the act and in the event of accidental injury or death arising out of and in the course of employment would not be entitled to compensation. A similar amendment was made at the same time to the second paragraph of Section 5 so that any totally blind person is not an employee under the act or entitled to compensation.
“There are of course no cases construing this provision and the only plausible reason for such amendment probably is that the legislature must have considered that with such an amendment a person totally blind might be more apt to secure some employment and earn some wage or remuneration, whereas without such amendment it would be highly improbable that any employer would give employment to any such person because of the great risk of accidental injury. It might also have been considered that if any such person had become totally blind as a result of accidental injury arising out of and in the course of his former employment he would have been entitled to a permanent total disability award in such case”.

Notwithstanding the fact that the amendment in question worked a hardship in the present case, we cannot escape the conclusion that such amendment was enacted for the purpose of benefitting totally blind persons, and enabling them to obtain employment which, in all probability, they would otherwise be unable to obtain; that such amendment does not constitute an arbitrary and unreasonable classification, but was based upon what the legislature apparently considered good and sufficient reasons.

We therefore hold that the amendment in question is not subject to the objections here urged against it; that claimant’s intestate was not an employee of the State within the meaning of those words as used in the Workmen’s Compensation Act; and that therefore claimant is not entitled to an award under the provisions of such Act.

Award will therefore be denied and the case dismissed.


author: Mr. Justice Tantis

text:
    (No. 3036
    Emil Neuhaus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Johnson & Potter, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award of Two Thousand Twenty-five ($2,025.00) Dollars for the total and permanent loss of use of his left arm, because of an injury incurred while employed by the respondent as an attendant at the Peoria State Hospital at Bartonville, Illinois.

While acting as such attendant on January 1,1936, claimant was attacked by an inmate and thrown to the floor, causing a fracture of his left shoulder. Surgical and medical services were furnished him by respondent through the institution. A report from the Department of Public Welfare states that claimant received a fracture of the left clavicle at the junction of the outer with the middle third of the bone; that the function of his left arm and hand is markedly interfered with and that he is able to use it only slightly. Dr. Henry Knowles, who attended claimant, gives an opinion of fifty (50) per cent permanent disability of the use of the left arm. According to claimant’s testimony he was nearly seventy-two years of age at the time he entered the employ of the hospital on July 7, 1933. At the time of the attack he was in Cottage 5C, being one of the locked buildings in which the more troublesome patients are kept. The injury arose out of and in the course of his employment and as an immediate result thereof, claimant was absent from his work for a period of one month up to February 1, 1936, during which time he paid his regular salary which was for non-productive time. The State furnished all medical and surgical services required, and after returning to work on February 1, 1936 claimant continued to work until the 1st of February, 1937. During the year immediately preceding his inju'ry Mr. Neu.haus received a salary of Fifty-eight ($58.00) Dollars per month plus commutation for board, room and laundry of Twenty-four ($24.00) Dollars, making a total monthly salary of Eighty-two1 ($82.00) Dollars, or an annual salary of Nine Hundred Eighty-four ($984.00) Dollars, or an average weekly wage of Eighteen and 92/100 ($18.92) Dollars.

There was no break in claimant’s hand, wrist or elbow; the only break being in the collar bone. He is unable to lift a weight in his left hand or to lift the arm normally.

Dr. Henry M. Wilson, of Peoria, called by claimant, testified that he had examined claimant and that the latter’s left arm could be moved backwards only about ten (10) degrees and forward about thirty (30) degrees; that he had a decided loss of grip and restricted flexion of the hand; that there is an over-lapping fracture of the left clavicle and a fragment of bone broken off the first left transverse process of the thoracic vertebra which could only have occurred from some very violent blow; that the present condition is the result of the traumatic injury to the soft part of the shoulder; that such condition is permanent, and that claimant cannot use the arm in pursuit of any gainful occupation. Dr. Wilson further testified that there was some limitation both as to supination and pronation in the elbow joint and loss in flexion of about twenty (20) per cent in the wrist joint.

At the time the employment of Mr. Neuhaus was terminated a year after the accident then his son was employed as an attendant in his place. At that time Dr. Walter H. Baer, managing officer of the Peoria State Hospital stated that claimant was being released because of physical incapacity; that he was seventy-five years of age, had a mature cataract on the left eye and the beginning of one on the right, that his hearing was poor, that he had a large scrotal hernia, impaired muscle power of the left hand and arm and serious heart irregularity.

We find from the evidence the following:

1. That claimant had no children under sixteen years of age at the time of his injury.

2. That the accident arose out of and in the course of his employment.

3. That claimant and employer were at the time of the accident engaged in such work as to entitle claimant to the benefit of the Workmen’s Compensation Act of Illinois.

4. That he has heretofore been overpaid for temporary total disability, the sum of $34.11. This sum having been for non-productive time should be deducted from any award hereinafter made.

5. That plaintiff has suffered a fifty (50) per cent loss of use of the left arm as a result of the accident in question.

6. That proper notice of the accident and demand for compensation has been given.

7. That claimant is entitled to an award at the rate of $9.46 per week for one hundred twelve and one-half (112%) weeks for fifty (50) per cent loss of use of the left arm, as provided for under Section 8 (e), 13 and 17 of the Workmen’s Compensation Act of Illinois.

An award is therefore hereby made in favor of claimant for the sum of One Thousand Sixty-four and 25/100 ($1,064.25) Dollars for fifty (50) per cent partial permanent loss of use of his left arm. From said amount there should be deducted Thirty-four and 11/100 ($34.11) Dollars for overpayment of temporary total disability heretofore made, leaving a balance of One Thousand Thirty and 14/100 ($1,030.14) Dollars. This award would be payable on a weekly basis of Nine and 46/100 ($9.46) Dollars per week, but as the entire amount has heretofore accrued since the accident, same is payable at the present time in one sum.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Sess. Laws 1937 p. 83), and being, by the terms of such act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 3247
    William H. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Claimant, pro se.
    Otto Kebnee, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant herein represents that during the month of February, A. D. 1932 he was engaged by the Department of Public Works and Buildings of the State of Illinois to furnish certain plumbing, labor and material upon the 124th Field Artillery Armory, at Chicago, and pursuant thereto proceeded to furnish same as per statement attached to his complaint, in the amount of Seventy-nine and 94/100 ($79.94) Dollars. The claim recites that request for payment was presented to the Department of Public Works and Buildings “on several occasions,” but it does not state when the last of the work and material was furnished, or when the demand for payment was first made. The claim further recites that the said Department of Public Works and Buildings was unable to pay the bill as there were no funds available and that “the Department promised to pay the bill as soon as funds were available, ’ ’ and that the last of such promises was made on March 18,1936.

The claim was filed April 22, 1938. The conclusion reached from the wording of the complaint is that the last of the materials and labor were in fact furnished in February, 1932.

The Attorney General has filed a motion to dismiss the complaint because more than five years have passed since claimant’s right of action accrued and the claim is therefore barred under the provisions of Section 10 of the Act Creating the Court of Claims. (Par. 436, Ch. 37, Ill. Revised Statutes of 1937.)

The claim fails to state a sufficient cause upon which an award could be made. The debt due claimant matured on final delivery of material when the performance of the work was completed. (Wolff Co. etc. vs. State, 9 C. C. R. 41). The conditional assurance from the Department of Public Works and Buildings that the claim would he paid whenever it had money for such purpose is not sufficient to toll the running of the statute. The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 3124
    John F. Ford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Joseph W. Koucky, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was employed as a guard at the Chicago State Hospital, at Dunning, Illinois. On August 27, 1937 one of the patients made an attack on one of the institution doctors. Claimant went to the latter’s aid and in attempting to restrain the patient, the latter struck him over the hands with a shovel. Treatment was given claimant at the hospital and X-rays of his left hand revealed a fracture of the second metacarpal bone of the left hand in its middle third with some overriding of the distal fragment. The right hand was swollen. Claimant’s left hand was placed in a cast and while in the cast claimant again hurt his hand and the swelling made the cast so painful that claimant removed same. Dr. Goldstein, of the institution staff, then placed claimant’s left hand in a banjo splint. No definite evidence of bony pathology was disclosed with respect to the right hand by the X-ray. By reason of the overlapping of the bones in the left hand, the index finger has been shortened about one-half inch. There is a lump on the back of the hand and claimant cannot grip tightly because the index finger will not close tightly in the palm of the hand. A part of the present condition of the left hand is due to the premature removal of the cast by the plaintiff himself, and there is nothing in the record to show the circumstances under which he incurred the later injury which caused him to remove the cast. However,- the testimony of both Dr. G-oldstein and Dr. Adams substantiates the plaintiff’s claim as to injury from the accident that arose out of and in the course of his employment at the hands of an inmate of the institution. The testimony in the record supports a finding of thirty (30) per cent total permanent disability of the left hand, and twenty (20) per cent permanent partial disability of the right hand. In his duties as a gardener claimant used sharp-edged cutting tools, and as an attendant he had the care of dangerous patients of the institution. His employment was within the terms of the Workmen’s Compensation Act and his injury is compensable under that Act. He was an unmarried man and was receiving a salary of Sixty-three ($63.00) Dollars per month plus maintenance valued at Twenty-four ($24.00) Dollars per month, or an annual wage of One Thousand Forty-four ($1,044.00) Dollars. His average weekly wage therefore was Twenty and 08/100 ($20.08) Dollars. Under the provisions of Sub-paragraph 12, Sub-section (e) of Section 8 and Sub-paragraph 17 of the same Section of the Workmen’s Compensation Act claimant is entitled to compensation as follows:

For thirty (30) per cent partial loss of use of the left hand, fifty (50) per cent of his average weekly wage for 51 weeks .................................................$ 512.04
For twenty (20) per cent partial loss of use of the right hand, fifty (50) per cent of his average weekly wage for 34 weeks ..................."........................... 341.36
Total ............................................? 853.40

Said award is payable on the basis of weekly payments of Ten and '04/100 ($10.04) Dollars per week. As the accident occurred the 27th day of August, 1937, payment for fifty-four (54) weeks will have accrued by September 10, 1938, in the sum of Five Hundred Forty-two and 16/100 ($542.16) Dollars. This amount should be paid to claimant at the present time and future payments made to him on the basis of Ten and 04/100 ($10.04) Dollars per week for a period of thirty-one (31) weeks, commencing September 17, 1938 and continuing until the further sum of Three Hundred Eleven and 24/100 ($311.24) Dollars has been paid to him.

An award is therefore hereby made in favor of claimant for the sum of Eight Hundred Fifty-three and 40/100 ($853.40) Dollars, payable as follows :

Five Hundred Forty-two and 16/100 ($542.16) Dollars for compensation accrued to September 10, 1938, and monthly payments thereafter covering a period of thirty-one (31) weeks, commencing on September 17, 1938 and continuing until the further sum of Three Hundred Eleven and 24/100 ($311.24) Dollars has been paid.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensatio nClaims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937 p. 83), and being, by the terms of such act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such act.


text:
    (No. 3201
    Railway Express Agency, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    John A. Dill and Emil Sebrtjp, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges in substance that at divers times during the months of August and September, A. D. 1937, the claimant made application to the Secretary of State for additional trailer licenses, as follows: August 17th, one license; August 21st, two license's; September 25th, three licenses; that it remitted the sum of Ten Dollars ($10.00) as a license fee for each such license; that the proper licenses were thereafter duly issued and received; that the trailers in question were purchased by claimant subsequent to July 1st, 1937, and were not put in use until after that date, and therefore the proper license fee, in accordance with Sections 8 and 9 of the Motor Vehicle Law was Five Dollars ($5.00) for each trailer; — and claimant therefore asks for a refund of the excess which it claims to have paid as aforesaid, to-wit, the total sum of Thirty Dollars ($30.00).

The Attorney General has moved to dismiss the complaint on the ground that claimant is not entitled to a refund under the facts set forth in the complaint.

It is apparent from the facts set forth in the complaint that the license fees in question were paid voluntarily, without compulsion, and with a full knowledge of all the facts, and that the only mistake involved in the several transactions was a mistake of law, to-wit, a mistake as to amount of the license fee required to be paid under the provisions of the statute.

It has-been repeatedly held that where an illegal or excessive tax or license fee is paid voluntarily with a full knowledge of all the facts, it cannot be recovered; also that where such license fee or tax is paid under a mistake of law, it cannot be recovered. American Can Co. vs. Gill, 364 Ill. 254; Richardson vs. Kinney, 337 Ill. 122; Board of Education vs. Toennigs, 287 Ill. 469; Yates vs. Royal Ins. Co., 200 Ill. 202; Butler Co. vs. State, 9 C. C. R. 503; Western Dairy Co. vs. State, 9 C. C. R. 498; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517.

Under the fact set forth in the complaint, the claimant is not entitled to an award, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3227
    P. M. Hupp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    M. D. Morahn, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

From the complaint filed herein it appears that the State had employed plaintiff to cut weeds along the highway on Route No. 69 at a section about ten miles north of Ottawa, Illinois; that plaintiff was to receive therefor the sum of Six ($6.00) Dollars per day for his services and the use of his team of mules and mowing machine. It further appears that on June 14, 1933, instead of plaintiff operating such mower he had one of his employees, named Dwain Hupp, mowing the grass and weeds. The complaint then recites that the State had negligently and carelessly permitted an old sharp rusty steel culvert to remain in the highway, and that because of its sharp jagged edges such culvert was dangerous to persons or livestock traveling along the side of the road; that plaintiff’s employee did not know of the dangerous condition of the highway and was unable to see the culvert because of the high grass, and that he drove plaintiff’s team of mules over and across the hole in the culvert and that one of the mules stepped into the hole thereby cutting its left hind-foot so bady that the mule had to be killed; for all of which claimant seeks an award of Two Hundred ($200.00) Dollars.

The Attorney General has filed a motion to dismiss the complaint as failing to state a legal ground for an award, and contends that no award can be properly paid to claimant under the facts alleged.

Claimant was the one apparently hired by the State to do the work in question. He saw fit to employ someone to take his place, who was not familiar with the conditions along the roadway. He contends however that the accident to his mule was due solely to the negligence of the employees of the State in permitting the dangerous culvert to remain in the highway. As the State cannot be held to respond in dam■ages for the negligence or torts of its servants and employees in the absence of a special statute, the motion of the Attorney General must be allowed. A similar case appears in the matter of Gust Calsyn vs. State, C. of C. No. 2678, wherein the court held:

“The right of redress by an injured employee is fixed by the terms of the Workmen’s Compensation Act, but there is no rule of law by which the State can be held to insure the property .of an employee that is being used ■by such employee while in the discharge of his duties. The probability of such loss or damage is a risk incident to the employment.”

When the Legislature created the Court of Claims and clothed it with power to hear claims against the State, it did not intend to waive the right of the State to interpose legal or equitable defenses to such demands. Before a claimant can have an award against the State he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. As the complaint fails to state facts upon which an award could be made, the Motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 3268
    A. W. Allen, M. D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Teevor, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

From the stipulation of facts herein it appears:

1. That on June 15th, 1937 one A. M. Porter, a State highway maintenance police officer, sustained accidental injuries which arose out of and in the course of his employment.

2. That upon authorization of his superior officer, the claimant rendered medical and surgical services to said A. M. Porter, from June 15th, 1937 to July 9th, 1937.

3. That claimant submitted to the respondent two bills for the services rendered by him as aforesaid, one bill covering the period from June 15th, 1937 to June 23d, 1937, both dates inclusive, and the other bill covering the period from June 24th, 1937 to July 9th, 1937, both dates inclusive.

4. That the first bill was duly paid, and the second bill was returned to claimant with the suggestion that a bill be rendered for the period from June 24th, 1937 to June 30th, 1937, both inclusive, and a separate bill for the period from July 1st, 1937 to July 9th, 1937, both inclusive, as the same were required to be paid from different biennium appropriations, to-wit, the first from the 59th and the last from the 60th biennium appropriations.

5. By the time separate bills were rendered the 59th biennium appropriation had lapsed.

6. That the services were rendered by claimant as set forth in his statements, and that the charges therefor were the reasonable and customary charges for like services in that vicinity.

7. That claimant was paid for all of the services so rendered by him, except as to the services rendered between June 24th, 1937 and June 30th, 1937, both inclusive, for which there is due and owing to the claimant the sum of Ten Dollars and Fifty Cents ($10.50).

We have repeatedly held that where services have been properly rendered to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable and customary value of the services will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Elgin, Joliet & Eastern Ry. vs. State, No. 2164, decided at the January Term, 1938, of this court; Goodyear Tire & Rubber Co. vs. State, No. 3155, decided at the March Term, 1938, of this court.

The facts in this case bring it within the rule above set forth, and award is therefore entered in favor of the claimant for the sum of Ten Dollars and Fifty Cents ($10.50).


author: Mr. Chief Justice Hollerigh

text:
    (No. 3192
    Philip Arrabito, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Elliott, Gaudas & Gilbert, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerigh

delivered the opinion of the court:

Claimant filed his complaint herein on January 25th, 1938, and alleges therein that on May 2d, 1936 he made application to the Illinois Liquor Control Commission, at the Chicago office of such commission, for a license to sell alcoholic beverages at retail; that the clerk in charge informed him that he would have to pay the sum of $8.33 to cover the period from April 30th, 1936 to June 30th, 1936, and that in addition thereto he would have to pay the further sum of $50.00 for the fiscal year commencing July 1st, 1936 and ending June 30th, 1937; that thereupon he paid the total sum of $58.33 as requested, and received a receipt therefor; that he continued to operate his business under such license until about June 1st, 1936, when he sold the business and retired therefrom; that he received his formal license on June 6th, 1936, after he had ceased to operate the business, said license being for the fiscal year commencing July 1st, 1936; that thereafter he made a demand upon the Liquor Control Commission at its Chicago office, for a refund of the license fee for the fiscal year commencing July 1st, 1936; that he was “unnecessarily caused to prepay” the license for such fiscal year, and that had he known that he could then have obtained a license for the period from April 30th, 1936 to- June 30th, 1936, he would have paid only for that period.

The Attorney General has entered a motion to dismiss the complaint and the case comes before the court on such motion.

The only cases in which a refund of the license fee is authorized under the terms and provisions of the Illinois Liquor Control Act (Ill. Rev. Stat. 1937, Bar Assn. Ed., Chap. 43) are the following, to wit:

(1) Where the application is denied (Art. 7, Sec. 2).

(2) In case of the death, insolvency or bankruptcy of the licensee, where the unexpired term exceeds the allowable operating period provided for under the statute (Art. 6, Sec. 1).

(3) Where the political subdivision, district, precinct or group of precincts in which the licensed premises are situated becomes prohibition territory during the term of the license (Art. 9, Sec. 16).

The legislature having* provided for a refund in certain cases, we have no authority to allow a refund in any other cases. It is a rule of general application that a licensee upon the surrender of his license is not entitled to a rebate or a refund of the whole or any part of the fee paid by him, in the absence of a statute expressly authorizing* such rebate or refund. 33 C. J. 572, sec. 180; 37 C. J. 255, sec. 130; 15 R. C. L. 315, sec. 76.

It is also a well settled rule in this State that where an illegal or excessive license fee or tax is paid voluntarily and with a full knowledge of the facts, it cannot be recovered; also that where such license fee or tax is paid under a mistake of law, it cannot be recovered. Richardson vs. Kinney, 337 Ill. 122; Board of Education vs. Toennigs, 287 Ill. 469; Yates vs. Royal Ins. Co., 200 Ill. 202; Butler vs. State, 9 C. C. R. 503; Western Dairy Co. vs. State, 9 C. C. R. 498; Stotlar-Herrin Lumber Co. vs. State, 9 C. C. R. 517.

The claimant contends that the payment in this case was involuntary, for the reason that he was advised by the clerk in charge of the office that he was required to make application for the total period of fourteen months, whereas he might have made application for two months only.

Assuming that he was misinformed by the clerk as to the law in the matter, yet that does not make the payment involuntary. The terms “voluntary” and “involuntary”, when used with reference to payments of taxes, are not applied in their ordinary sense. Note, 64 A. L. R. 11. In Yates vs. Royal Ins. Co., supra, the court quoted with approval from Cooley on Taxation, 2d Edition, 810, as follows:

“All payments are supposed to be voluntary until the contrary is made to appear. Nor is the mere fact that a tax is paid unwillingly, or with complaint of any legal importance, but there must in the case some degree of compulsion, to which the taxpayer submits at the time but with notification of some sort equivalent to reservation of rights.”

Claimant, as well as. the clerk, was charged with knowledge of the law, and the most that can be said on claimant’s behalf, is that the payment was made under a mistake of law. That, however, does not give him the right to an award under the authorities above cited.

The question here involved has been presented to this court in several different cases, and we have uniformly held that the claimant was not entitled to recover. Block vs. State, 9 C. C. R. 453; Beals vs. State, 9 C. C. R. 456; Yott vs. State, No. 3035, decided at the September Term, 1937, of this court; Ulie & Moreno vs. State, No. 3101, decided at the September Term, 1937, of this court; Pudenz vs. State, No. 3015, decided at the May Term, 1937, of this court.

The only difference between the cases above cited, and the present case, on the facts, is the statement made by the claimant in the present case that he was required by the clerk to make payment for the full period of fourteen months. As hereinabove set forth, such statement does not make the payment involuntary, and does not distinguish this case on the law from the cases above cited.

On the law and the facts we have no authority to allow an award.

Award will therefore be denied and the case dismissed.


author: Mb. Justice Yantis

text:
    (No. 3196
    Thomas F. Shortell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1938.

    Claimant, pro se.
    Otto Keener, Attorney' General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant is a physician and surgeon engaged in the practice of his profession in the City of Chicago, Illinois. Joh¡n Conlin was an Illinois State Highway Maintenance Policeman, who, on March 24, 1935, was driving a motorcycle owned by the State of Illinois during the course of his employment, and while going westward on Jackson Bivd., was struck by a car and suffered various injuries, necessitating* his becoming a patient at the Cook County Hospital. Plaintiff treated the injured employee on April 1, 1935 and continued giving him professional care until July 15th. Conlin had suffered serious cuts across the right eye, nose and forehead, making it impossible for him to close the eye. Medical treatments were administered for the purpose of making it possible to more nearly close the eye, during his sleeping moments. The care given Conlin was authorized by Lieutenant Prank Jarzembowski, his superior in the department. A report made by Engineer of Claims, M. K. Lingle, states that the injury received by Conlin was brought to a permanent stage about July 15, 1935 by the treatments administered by Dr. Shortell. At the conclusion of claimant’s services a bill was submitted to Walter Williams, Superintendent of the Illinois State Highway Maintenance Police, and the latter was of the opinion that the services were essential and that the fees were reasonable and customary, but as he believed that the third party who had injured Conlin was responsible for the medical care, he did not submit the bill of the claimant for payment. Meanwhile, the appropriation from which the bill could have been paid lapsed, and the bill has never been paid. At the time such appropriation lapsed there remained therein sufficient unexpended balances to pay for the services rendered.

The record discloses that the employee John Conlin and the State of Illinois were governed at the time of the accident in question and of the rendering of the medical care, by the Workmen’s Compensation Act of Illinois.

Under Sub-section (a), Section 8 of the Act the employer in such case is obligated to furnish the medical services necessitated by an injury sustained by the employee which arises out of and in the course of the employment.

“Where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no negligence or fault on the part of claimant same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where, at the time the obligation was incurred, there were sufficient funds remaining unexpended in the appropriation to pay for the same.”
Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165.

An award is therefore hereby made in favor of claimant in the sum of One Hundred Ninety-five ($195.00) Dollars.


text:
    (Nos. 2703-2704-2705, Consolidated
    Josephine Tyrrell, Bernard Tyrrell and Wilbur P. Tyrrell, Jr., Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Frank J. Tyrrell and Paul J. Donovan, for claimants.
    Otto Kerner, Attorney General; Glenn A. Trevor and Murray F. Milne, Assistant Attorneys General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Wilbur P. Tyrrell was employed by the Department of Public Welfare, at the St. Charles School for Boys. He was an electrical engineer under the classified Civil Service of the State of Illinois. He was first assigned to Chester in April, 1934 and was later transferred to the St. Charles School for Boys. His duties were to install, operate and repair electric light, power and telephone equipment and electrical work in connection with the maintenance and upkeep of State buildings. On July 18, 1934 while attempting to repair an electrically driven grist mill in a bam or storehouse on the premises of the St. Charles School for Boys, he was killed.

Separate claims were originally filed by Josephine Tyrrell, his widow, and by each of Ms two minor cMldren, Bernard Tyrrell and Wilbur P. Tyrrell, Jr.

A motion to dismiss was filed by respondent for each of said claims, and thereafter an amended complaint was filed and a joint motion to consolidate the three cases was allowed.

The evidence discloses that claimant JosepMne Tyrrell and the deceased were married June 1, 1917. On the day of the accident and death of Wilbur P. Tyrrell, July 18, 1934, their son Wilbur was fifteen years of age and their son Bernard was of the age of twenty-one months. All three were living with deceased at the time of his death and were dependent upon him for support. The widow had not remarried at the time the testimony in tMs case was taken, on July 14, 1938.

The motor which operated the grist mill was an unusually large one. It was mounted on a large plank platform. The shaft from the motor ran in an easterly and westerly direction, and to tMs was fastened a large pulley and from it a belt wMch ran to the grist mill in the far end of the building. The motor had been giving some trouble and it had been the custom of the boys at the School to start it with a crowbar. The deceased was apparently working on the motor and while it was ruiming the pulley broke and the spokes flew from same, one or more of them striking the deceased. When other employees reached Mm he was lying on the floor in a pool of blood with particles of brain tissue showing on one of the spokes. Parts of the wheel went through the roof, and upon examination of same there had apparently been a crystallization or a defect in same.

John F. Tyrrell, a brother of decedent, communicated with Robert F. Havlik, Superintendent of St. Charles School for Boys, on the day of the Coroner’s inquest, stating that he represented Mrs. Tyrrell and the children in regard to their claim for compensation, and was informed that the matter would be communicated to the Department of Public Welfare. On the 19th day of July, 1934, a written request was made by him on behalf of the widow and children to Superintendent Havlik for compensation under the Workmen’s Compensation Act. On July 26, 1934 a copy of the Rules of the Court of Claims was sent to Josephine Tyrrell with a letter from the Department of Public Welfare over the signature of Malden Jones, Personnel Officer, suggesting the proper procedure for her in furthering her claim for an award under the Act. Claimant’s annual wages during the year preceding his death were One Thousand Eight Hundred Seventy-two ($1,872.00) Dollars, being at the rate of Seven and 20/100 ($7.20) Dollars per day on the basis of five days of work per week, or an average of Thirty-six ($36.00) Dollars per week. The court finds from the record:

1. That the deceased Wilbur P. Tyrrell and respondent were, at the time of the accident and death of the former, both operating within the terms of the Workmen’s Compensation Act.

2. That the injury and death of Wilbur P. Tyrrell was caused by an accident which arose out of and in the course of his employment by the State of Illinois.

3. That respondent had actual notice of the accident and that notice of claim, and application for compensation were made within the statutory limits prescribed by said Act.

4. The deceased’s annual earnings for the year preceding his death in the employment in which he was then engaged were One Thousand Eight Hundred Seventy-two ($1,872.00) Dollars, or an average weekly wage of Thirty-six ($36.00) Dollars.

5. That he left surviving him as his widow, Josephine Tyrrell, and his two sons, Bernard Tyrrell and Wilbur P. Tyrrell, Jr., both of the latter being under the age of sixteen years on the date of said accident, each of said persons being equally dependent upon the deceased for his or her support.

6. That under the terms of the Illinois Workmen’s Compensation Act in force on July 18, 1934, Paragraphs (a), (g) and (h), Section 7, the amount of compensation due under the foregoing facts would be four times the average annual earnings, but not greater than Four Thousand ($4,000.00) Dollars plus Eight Hundred ($800.00) Dollars because of said two children, making a total of Four Thousand Eight Hundred ($4,800.00) Dollars. That such compensation should, in the opinion of the court be payable to the said surviving widow Josephine Tyrrell for the benefit of herself and the said two minor children.

7. That said award is payable in weekly installments of Sixteen ($16.00) Dollars per week by reason of the increase from the usual maximum of Fifteen ($15.00) Dollars to Sixteen ($16.00) Dollars, by reason of the existence of two children under the age of sixteen years at the time of the injury.

8. That two hundred twenty-two (222) weeks of compensation will have accrued to October 11,1938 which amounts to Three Thousand Five Hundred Fifty-two ($3,552.00) Dollars, which is payable at this time and the balance of said compensation, i. e. One Thousand Two Hundred Forty-eight ($1,248.00) Dollars is payable in seventy-eight (78) weekly installments of Sixteen ($16.00) Dollars per week, commencing October 18, 1938.

An award is therefore hereby entered, in the sum of Four Thousand Eight Hundred ($4,800.00) Dollars, payable to Josephine Tyrrell for the use of herself and Bernard Tyrrell and Wilbur P. Tyrrell, Jr.; the sum of Three Thousand Five Hundred Fifty-two ($3,552.00) Dollars being payable immediately; and the sum of One Thousand Two Hundred Forty-eight ($1,248.00) Dollars being payable at the rate of Sixteen ($16.00) Dollars per week in seventy-eight (78) weekly installments, commencing October 18, 1938.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3, 1937 (Sess. Laws 1937 p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Mb. Chief Justice Hollebich

text:
    (No. 3249
    Ray Cairns, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 11, 1938.

    Baker, Niven & Crabtree, for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

On December 26th, 1937 claimant was driving his Chevrolet truck in a westerly direction on S. B. I. Route No. 116 in Livingston County; said truck being loaded with thirty-two ten-gallon milk cans filled with milk.

At the same time, one Ralph Jones, an employee of the respondent at the Illinois State Penitentiary at Pontiac, Illinois, was driving a certain Buick sedan owned by the respondent, in a westerly direction on said highway, and was approaching the truck driven by the claimant.

The complaint alleges that when the car of the respondent was several hundred feet behind his truck, he signaled that he was going to turn- to the left and immediately slackened the speed of such truck, and turned the same to the left; that said employee of the respondent then and there drove said Buick sedan in such a careless and negligent manner that it was caused to and did run into claimant’s truck, whereby said truck was turned over and damaged, the milk spilled, five of the milk cans were damaged and rendered worthless, and claimant was deprived of the use of said truck for the period of four weeks while the same was being repaired; — for all of which he seeks an award in this proceeding.

The Attorney G-eneral has moved to dismiss the case on the ground that the State is not liable for the acts of its servants and agents under the doctrine of respondeat superior.

In the maintenance of its penal institutions, the State is acting’ in a governmental capacity, and it is well settled in this State that the State, in the exercise of its governmental functions, is not liable under the doctrine of respondeat superior, for the careless, negligent or wrongful acts of its servants or agents, in the absence of a statute making it so liable. Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; Tollefson vs. City of Ottawa, 228 Ill. 134; Kinnare vs. City of Chicago, 171 Ill. 332; City of Chicago vs. Williams, 182 Ill. 135; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; 25 R C. L. p. 407, sec. 43; 13 R. C. L. p. 944, sec. 8; 8 R. C. L. Supp. p. 5580, sec. 43; see also Parks vs. State, 8 C. C. R. 535; Myers vs. State, 9 C. C. R. 470, and cases there cited.

The liability, if any, rests upon the negligent employee, and not upon the State.

Under the facts set forth in the complaint, we have no authority to allow an award, and the motion of the Attorney General must therefore be sustained. •

Motion to dismiss allowed. Case dismissed.