text:
    (No. 2096
    Louis Olsen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

      Rehearing denied January 13, 1938.

    Marshall Solberg and Kellam Foster, for claimant.
    Otto Keener, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent; Carl Dietz, of Counsel.
   Mb. Justice Yantis

delivered the opinion of the court:

At the April term, 1931, the Village of Fox Lake instituted proceedings in the Circuit Court of Lake County for condemnation in its own name, against Louis Olsen, to secure certain lands for public highway purposes. Three parcels of land were included therein, but only one is involved in the present claim. On May 15,1931, a trial was had and a verdict rendered, with judgment entered against the Village of Fox Lake and in favor of Louis Olsen for right-of-way, and damages, if any, to land not taken, in the sum of One Thousand Three Hundred Fifty ($1,350.00) Dollars. Prior to the condemnation suit an old road had existed at the point in question, called Sayton Road. After the condemnation suit the State constructed a section of S. B. I. Route No. 60 at said point; and it was for the purpose of inducing the construction of this section of hard road that the Village of Fox Lake condemned the land in question. It was the intention of said village to acquire a strip of land bordering on the east side of Sayton Road and extending from the north to the south limits of claimant’s property. Through some inadvertence a small area was omitted from the description of parcel No. 3 which they sought to acquire. The hard road when constructed included within its bounds the five (5) foot strip in question and a piece of ground approximately 19.90 feet, x 57.71 feet. Claimant now avers that such additional footage has been improperly, wrongfully and illegally used by the defendant and is still being so used without the claimant having received anything in compensation therefor. He claims damages for the wrongful taking of the strip and for the shortening of his lots fronting on Route No. 60 as a result thereof. Claimant further contends that the Department of Public Works and Buildings changed the grade along the frontage of claimant’s property, making his property inaccessible to said road and rendering same valueless as a result thereof; that such grading was unnecessary, and that such road could have been constructed with a reduction of the grade, thereby saving damage to claimant’s property.

Claimant further contends that representatives of the Department of Public Works and Buildings represented to him that the fixed grade of the road would be-low enough so that they could and would fill in his lots to a level therewith at no expense to him; that prior to this time, in reliance upon his belief that the grade of the road would not be raised, claimant had filled in his land to about the level of the former road, at an expense of Twenty Thousand ($20,000.00) Dollars, and that the expense to which he would now be put in order to raise his grade to the newly established grade would involve an expense of approximately Twenty-six Thousand ($26,-000. 00) Dollars more.

In his original complaint claimant asks damages:

1. For the strip of land taken and for damages due to the shortening of the property frontage, in’the sum of.................. $ 3,000.00
2. For expense of 34,716 cubic yards of fill required to re-establish a fill to bring his abutting property to the newly established grade ..................................................... 26,037.00
3. Additional damage suffered by reason of raising of grade and rendering claimant’s property less accessible................ 3,500.00
$32,537.00

Thereafter, an Additional Count to Claimant’s Declaration was filed, with Bill of Particulars attached, in which he alleges his damages as follows:

1. Reasonable market value of strip of land described in Bill of Particulars, known as claimant’s “Exhibit C,” taken, occupied and used by respondent and part of Route No. 60, for which no compensation has been paid to claimant.................. $ 2,000.00
2. Decrease in the reasonable market value of claimant’s premises not taken from $35.00 a front foot to $15.00 a front foot along a 915 foot frontage......................................... 18,30.0.00
$20,300.00

Respondent filed a Demurrer, to Plaintiff’s Declaration, now treated as a motion to dismiss, and same has been considered with the case. A large amount of evidence has been taken, and the court, because of the extensive record and the amount involved, has personally viewed the premises in order to better familiarize themselves with the matter appearing in such evidence.

The variance in measurements used in the construction of the hard road in question seems to have resulted from the fact that years ago a five (5) foot strip was at first withheld and later added to Sayton Road, and thereafter when measurements were made for the construction of the hard road in question, such measurements were apparently taken from the fifty-five (55) foot dividing line instead of the fifty (50) foot dividing line, but in the condemnation proceedings the additional five (5) feet were omitted, and as a result of such variance the actual construction work included the five (5) foot strip for the length of claimant’s property, without same having been included in the condemnation proceedings. Claimant was present at the construction site at various times, consulting with the local engineer as to the location of culverts and other matters of interest to him, as an adjoining land owner, and neither he nor anyone else apparently observed from the location of survey stakes and such construction work that same was encroaching upon any land not intended to have been included in the condemnation proceedings. Claimant first observed or learned of such discrepancy when he saw the plat in the office of Mr. Ball, one of the engineers of the State Highway Department, (Transcript P. 58). Claimant’s acreage from which the strip of ground was acquired for such roadway purposes is at the edge of the Village of Fox Lake, adjoining the railroad tracks and is a low poorly drained tract. Condemnation proceedings were resorted to for the purpose of acquiring the ground desired for the construction of the section of hard road in question. The jury in such proceedings viewed the premises, returned a verdict, and a judgment was entered upon such verdict fixing the just compensation for the taking of the property described therein at the sum of One Thousand Three Hundred Fifty ($1,350.00) Dollars. That verdict contained the following finding: “We, the jury, further find, from the evidence, that there is no damage to the fair cash market value of the adjoining premises of the defendant herein as described in the cross-petition filed in this cause.” It appears that a conference was held at the time the condemnation proceedings were being had at Waukegan, in the spring of 1931, at which time there were present, Mr. Olsen and his Attorney Mr. Hall, Mr. Hollister the Mayor of Fox Lake, Mr. Hurley their Village Attorney, and Mr. L. W. Gfunn of the Lake County Highway Office. Others present were, Mr. Frank Howard and Mr. Skiller, owners of other properties involved, and the former’s Attorneys Messrs. Schultz and Rosch. The conference was in Judge Dady’s Chambers and he was present a part of the time. Mr. Leo A. Murphy, a Civil Engineer in the employ of the State Highway Department at that time, attended the meeting by request and answered various questions put to him as to the amount of fill that would be taken out of the roadway in the course of construction, near Mr. Olsen’s frontage. Claimant testified:

“The burden was brought on me to settle this without a hearing, and I agreed to take it if they would put it back in the same condition and make the same grade. I asked for it, to have it in writing and Mr. Hollister (Mayor of Fox Lake) stated he could not give it in writing, as he had nothing in writing from the Highway Department to show that he could get that (14,000 cu. yds. of fill), only what they told him. Judge Dady said I could take Hollister’s word for it that I would get that if the Engineers give them the fill."

Claimant further testified (Transcript P. 46):

“The engineers said they had that amount of fill to put in there * * * I said to Hollister * * * if he was to be holdup man he could just as well do it openly and not go behind my back.”

It appears elsewhere in the record that only approximately half of the amount of fill was taken from the roadway and placed on claimant’s land that was anticipated in advance, and as hereinabove noted. This fact forms a part of the basis of plaintiff’s claim.

There is much conflicting evidence in the record as to curves, grades, elevations, value of claimant’s land before and after the improvement, and the cost of additional fill to establish certain grades. The court has carefully considered all of same; but in the view we take of the claim it is not necessary to comment at length in regard to a large part thereof.

The State of Illinois did not acquire the right-of-way in question in the first instance. The Highway Department of Illinois would not interest itself in the construction plans until the village acquired such right-of-way. Being unable to agree with claimant and obtain a deed for the required footage, they resorted to condemnation proceedings. A transcript of such proceedings appears as a part of the record in this case. Counsel’s contention that the comments made by the mayor of Fox Lake, Assistant Engineer Murphy and others in the conference during the condemnation proceedings would constitute an agreement or stipulation in open court to do certain things which would reduce the injury to property not taken, and thereby prevent damages that would otherwise occur or exist, are not concurred in by the court. We agree with the following statement and citation as a matter of law, as contained in Counsel for Claimant’s Reply Brief, to-wit:

“In reference to the agreement to furnish fill in Elgin, Joliet and Eastern Illinois Railroad Co. vs. Fletcher, 128 Ill. 619, 626, where the court said: ‘We think it is competent upon the trial of a condemnation case, for the party seeking condemnation to bind itself by an offer in open court to the performance of duties like those here offered to be performed, (agreement in open court to maintain fences along its right-of-way over property of land owners and to construct and maintain an undercrossing) and to thereby, and to the' extent that such performance will prevent damages that would otherwise occur, abridge the claim by the land owner for damages.’ ”

In the case at bar however, no stipulation appears in the record and the only statements that can be construed as an offer to furnish fill in any quantity to claimant, were the engineer’s answers as to the amount of fill that might be expected, as shown by the specifications and Judge Dady’s statement to claimant that the latter could take Mayor Hollister ’s assurance that he would get such fill, “if the engineers gave it to them. ’ ’

■ The court is of the opinion that there is nothing contained in the record by which to attach any liability to the State for damages to lands of claimant not taken. Both by the jury’s findings to that effect in the condemnation proceedings, and from the further taking of the five (5) foot strip and additional footage involved in this complaint, the court at this time on its own account, finds, from the evidence now before us, that there is no damage to the fair cash market value of the adjoining premises of the defendant herein as described in the complaint herein filed. We believe claimant is entitled to further recompense for the number of feet of ground taken by the State in the actual construction of the section of the road in question. Some doubt remains after a careful study of the record as to whether he in fact understood that the highway was to occupy the actual physical quantity of ground which would include the area now in dispute, or whether he knew where the boundary lines would be, as disclosed by the description appearing in the condemnation proceedings, but the fact remains that the disputed area was not included in the condemnation proceedings; that it was owned by claimant; that it was taken by the State and is now being used, as a part of S. B. I. Route No. 60; and that no payment has in fact been made for same.

As previously stated by the court, we believe it fundamental for the State to observe that Section of the Constitution which reads, “Private property shall not be taken or damaged for public use, without just compensation.” Sec. 13, Art. 2.

The value of the land included in the condemnation proceedings has been established by the verdict and judgment rendered in such proceedings. No better basis for determining the value of the additional footage which would without doubt have been included in the description, if the necessity therefor had been known, can be used than by applying a proportionate value on the basis of the One Thousand Three Hundred Fifty ($1,350.00) Dollars previously paid. A computation of the acreage for which Olsen was paid is 0.7878. The acreage in the piece not described and for which compensation is now asked is 0.1290, or 16.3% of the land paid for. Claimant is therefore entitled to 16.3% of One Thousand Three Hundred Fifty ($1,350.00) Dollars, or Two Hundred Twenty and 05/100 ($220.05) Dollars. The Demurrer of Respondent is therefore denied, motion to dismiss overruled and an award is hereby allowed in favor of claimant LOUIS OLSEN for the sum of Two Hundred Twenty and 05/100 ($220.05) Dollars, in payment of land taken for highway purposes as described in the complaint herein.


source: Caselaw Access Project

author: Me. Justice Linscott

license: Public Domain

text:
    (No. 2840
    Clarence Vaughn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

    K. C. Ronalds and Chas. E. Combs, for claimant.
    Otto Keener, Attorney General; Glenn A. Tbevor, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

For more than one year prior to August 26th, 1935 claimant was employed by respondent as a guard at the Illinois State Farm, a penal institution conducted by the respondent at Vandalia, Illinois. On the night of August 25th, 1935 claimant slept in the quarters provided by the respondent for its guards, who were called for duty shortly before five o ’clock A. M.

Under the regulations in force at such State Farm, all guards, while on duty, are required to carry revolvers. About 4:55 A. M. on said 26th day of August, 1935, while claimant was getting dressed after the regular call for duty, his revolver slipped off the bed where he had temporarily placed the same, and struck the floor, whereby it was discharged, and a 32-caliber bullet therefrom struck the claimant on the right shin bone, causing a longitudinal fracture of the right tibia.

Claimant was taken to the Mark Greer Hospital at Vandalia, where he remained about three weeks, and was then removed to his home. He was treated at the time of the accident by Dr. Miller Greer who continued to treat him until the time of the hearing herein. X-ray pictures taken shortly after the accident disclosed that the main body of the bullet has passed, through the leg; also that there were numerous * lead scrapings along the bone; — which it was considered inadvisable to disturb. The leg continued to swell while in use, for a year after the accident, and claimant still walks with a limp. Claimant is thirty-five years of age, six feet tall, and weighs two hundred twenty-five pounds.

The only medical evidence in the case is to the effect that claimant has sustained a permanent loss of 50% of the use of his right leg.

The evidence in the record clearly shows that the operation of the institution at which claimant was employed is an extra-hazardous enterprise, within the meaning of those words as used in Section Three (3) of the Workmen’s Compensation Act.

From the testimony in the record we find as follows:

That claimant and respondent were, on the 26th day of August, A. D. 1935, operating under the provisions of the Workmen’s Compensation Act of this State; that on said date the claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act; that the average annual earnings of the claimant during the year preceding the injury in question were $1,188.00; and his average weekly wage was $22.85; that claimant at the time of the injury was a married man and had one child under the age of sixteen years; that the necessary first-aid, as well as all medical, surgical and hospital services have been provided by respondent; that claimant was totally disabled from the date of his injury as aforesaid to November 4th, 1935, to-wit, for a period of ten weeks; that claimant has sustained a permanent loss of fifty per cent of the use of his right leg, and has been paid the sum of One Hundred Seventy-three Dollars ($173.00) to apply on the compensation due him.

Claimant is therefore entitled to have and receive from the respondent the following sums, to-wit:

1. Twelve Dollars and Fifty-seven Cents ($12.57) per week for ten (10) weeks, that being the period of temporary total disability.

2. The further sum of $12.57 per week for ninety-five (95) weeks, to-wit, Eleven Hundred Ninety-four Dollars and Fifteen Cents ($1,194.15), for the permanent loss of fifty per cent (50%) of the use of his right leg, as provided by Section Eight (8), paragraphs E-15, E-17, and J-l of the Workmen’s Compensation Act; — all of which compensation has accrued at this time.

The total amount of compensation for temporary total disability and for specific loss as above set forth, is Thirteen Hundred Nineteen Dollars and Eighty-five Cents ($1,319.85). From this amount there must be déducted the sum of One Hundred Seventy-three Dollars ($173.00) which has heretofore been paid to the claimant as above set forth, leaving a balance due claimant of Eleven Hundred Forty-six Dollars and Eighty-five Cents ($1,146.85), which is payable at this time.

Award is therefore entered in favor of the claimant for the sum of Eleven Hundred Forty-six Dollars and Eighty-five Cents ($1,146.85).

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 of 1937, page 83), is, by the terms of such Act, subject to the approval of the Governor, and upon such approval, is payable from the General Fund, in the manner provided by such Act.


author: Mr. Justice Yantis

text:
    (No. 3164
    Elgin, Joliet and Eastern Railway Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

    Knapp, Allen & Cushing, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of One Hundred ($100.00) Dollars for freight demurrage on two of its ears. The record discloses that on December 12, 1935 pursuant to orders received through the Department of Public Welfare, the two cars in question were set out for loading with crushed stone at the Illinois State Penitentiary, Joliet, Illinois, and were on that date duly loaded with crushed stone; that after •having been so loaded they remained at the penitentiary quarry until December 31, 1935, at which time orders were given claimant to move the cars to the new prison at Joliet.

During the above period of time there was in effect a duly published tariff, whereby the shipper was granted forty-eight (48) hours free of demurrage time, after loading cars within which to give orders for disposition of same. After the expiration of such forty-eight (48) hours, a daily demur-rage charge of Five ($5.00) Dollars per day is provided for under the tariff regulations.

Under the Average Demurrage Agreement Rule as provided for in Jones’ Demurrage Tariff, No. 4-P, E. J. & E. ICC 2855, Item 740, Rule 9, the demurrage for the two cars amounts to One Hundred ($100.00) Dollars. At the time such charge was incurred, there remained a sufficient unexpended balance in the appropriation from which such payment would have been made, which appropriation however lapsed on September 30, 1937.

The Attorney General on behalf of respondent concedes the merit of the claim. The service was lawfully ordered, was given in good faith, and while no reason is shown as to why the ears were held over the extended period of- time, the failure to move same was not that of the claimant.

The case falls within the ruling heretofore made in the case of Rock Island Sand & Gravel Co. vs. State, 8 C. C. R., 165, and similar cases wherein the court has held—

“Where claimant has rendered services or furnished supplies to the State on orders from an official authorized to contract for same and submits a bill therefore within a reasonable time, and has not received payment therefor, and such non-payment is due to no negligence or fault on the part of claimant, an award for the reasonable and customary value of such service will be made if, at the time the obligation was incurred, there were sufficient funds remaining unexpended in the appropriation to pay for same.”

An award is hereby allowed in favor of claimant in the sum of One Hundred ($100.00) Dollars.


author: Mr. Justice Tantis

text:
    (No. 3157
    John E. Eaid, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

    Frank P. Mies, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On or about the 1st day of August, A. D. 1937 claimant applied to the Secretary of State for registration of a 1923 Buick automobile, and forwarded a check for $10.50 for a license for the balance of the year 1937. In due time, according to Ms complaint, he received his license and the automoMle plates, and the check was duly cashed by the Secretary of State.

On December 6, 1937 claimant filed his claim for a refund, stating that his wife had been in some character of accident and had suffered severe injuries, and that claimant had been unable to make use of the license plates.

The Attorney General has filed a motion to dismiss the claim, as being predicated upon no rule or basis upon which a refund could legally be made.

No basis for a refund is shown by the complaint. The motion is allowed and the claim is dismissed.


author: Me. Justice Tantis

text:
    (No. 3156
    Illinois Commercial Telephone Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

    F. W. Addis, for claimant.
    Otto Keener, Attorney General; .Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

A stipulation of facts filed herein, discloses that claimant was engaged in 1936 and 1937 in supplying telephone service to the Illinois State Police Headquarters at DuQuoin, Illinois, the latter being operated by the State through its Division of Highways, Department of Public Works and Buildings. In December, 1936 certain changes were made by claimant, at the request of respondent, in the type of equipment and services rendered such Police Headquarters. These changes resulted in a change of rate from $9.08 per month to $14.73 per month, with an additional “service connection”-charge of $3.00. It further appears that through no fault of claimant, a portion of the charge wMch had accrued was not paid, and R. R. MacLeod, Chief Accountant, Division of Highways, reports under date of December 15,1937 that a balance of $10.40 remains due and owing to claimant. The appropriation from which payment might have been made lapsed September 30, 1937, and at the time the indebtedness was incurred and at the time said appropriation lapsed, there remained therein an unexpended balance sufficient to have paid such bill.

This case comes within the rule that,

“Wliere claimant has rendered services to the State upon lawful request, and due to no fault upon claimant’s part the bill therefore is not paid before the appropriation from which it is payable lapsed, an award will be made, where at the time the debt was incurred there were sufficient funds remaining unexpended in the appropriation to pay for same.”
Rock Island Sand & Gravel Co., 8 C. C. R. 165.

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


text:
    (No. 3086
    Willard H. Atkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1938.

    Dixon, Devine, Bracken & Dixon, for claimant. -
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant had been employed at the Dixon State Hospital as a domestic for several years. On the 16th day of October, A. D. 1936 while operating a bread slicing machine, the first and second fingers of claimant’s left hand came in contact with the slicing blade, and the latter cut off: the index finger through the second phalanx, and the second finger was amputated at the joint surface on the distal end of the second phalanx.

The record shows that the respondent had actual notice of the accident through claimant’s superiors, immediately thereafter; that oral demand was made of the Managing Officer for compensation, within thirty-five (35) days after the occurrence of the accident, and that claim for compensation was filed within seven (7) months after the injury occurred.

At the time of the injury claimant was receiving Sixty-two ($62.00) Dollars per month in cash, Twelve ($12.00) Dollars of which was partial maintenance, and his maintenance allowance was further figured at an additional Twelve ($12.00) Dollars per month, making a total wage and maintenance of Seventy-four ($74.00) Dollars per month. All medical and hospital bills were furnished by respondent. Plaintiff’s claim recites that, although he was absent from 'work for thirty-three (33) days during which time he was totally disabled, he received his full wages during the time of such disability and non-performance of duties.

From the facts appearing herein it is admitted by all parties that both claimant and respondent were operating under the terms of the Workmen’s Compensation-Act. In describing various extra-hazardous enterprises the Workmen’s Compensation Act provides as follows:

“7yz. Any enterprise in which sharp-edged tools, grinders or implements are used * * * etc.”
(Sec. 3 and Sub-sec. 7% of Sec. 3, W. G. A.)

As plaintiff’s temporary total incapacity lasted for more than thirty (30) working days he was entitled to compensation therefor of fifty per cent (50%) of his earnings, in a sum of not less than Seven and 50/100 ($7.50) Dollars and not more than Fifteen ($15.00) Dollars per week. (Sec. 8 (a), (b), W. G. A.)

Paragraph 8 (e) 7 of the Act provides that the loss of more than one phalange shall be considered as the loss of the entire finger. The court therefore finds from the record that claimant is entitled to an award for the total loss of the first finger and the loss of one phalange of the second finger. His total wages for the year preceding the accident were Eight Hundred Eighty-eight ($888.00) Dollars. This amounts to Seventeen and 92/100 ($17.92) Dollars per week, fifty per cent (50%) of which is Eight and 96/100 ($8.96) Dollars. We find that claimant is entitled to an award as follows:

For the loss of the first finger of the left hand, $8.96 for 40 weeks............................................... $358.40
For the loss of one phalange of the second finger of the left hand, $8.96 per week for 17% weeks..................... 156.80
For temporary total disability for 33 days, i. e., 4 weeks and
5 days, at $8.96 per week................................ 42.24
$557.44
Credit for payment of wages paid in full during disability.. 74.00
Balance of award due................................. $483.44

An award is therefore hereby made in favor of claimant Willard H. Atkins, in the sum of Four Hundred Eig’hty Three and 44/100 ($483.44) Dollars.

As time of payment of the entire amount due has accrued between the time of the accident and the present, payment of the award in full should be made at this time, as having been already earned.

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. Justice Linscott

text:
    (No. 2666
    L. O. Stanton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1938.

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

delivered the opinion of the court:

This claim was filed pro se, and alleges that on December 13,1935, claimant was driving his automobile on Route 6, at its intersection with Wolf Road, in Joliet, and stopped at the gas station at the southeast comer; that he turned back onto Route 6, going west, and when near the center of the highway, Illinois highway maintenance truck, No. 338, sideswiped his automobile, bending in and slightly breaking the upper rear right panel of the body, and crushing both right rear and front fenders and breaking off the right front hub cap. Claimant further alleges that the road at this point is a full four track concrete highway and was dry and free of ice and snow and the driver of the truck had full view of the car, with plenty of room to pass on either side.

Under these facts, the driver of the truck would be liable and most every other employer would be liable, but the State would not be liable.

The estimated cost to repair his car was $48.35, but claimant arranged to have the labor job done for $20.00.

Claimant assumes that the State stands in the same position as an individual or a corporation, and is liable for all damages caused by the negligence of its agents or employees. In this, claimant is in error.

The Attorney General has made a motion to dismiss and that motion must be sustained for the following reasons:

That the rule is universal that the State is never liable for the negligence of its agents and employees unless there is a statute making it so liable. This rule has been so often announced by this and other courts that it would seem it should now be well known. The following are but a few of the many cases announcing the rule: United States vs. Kirkpatrick, 9 Wheaton, 720; Story on Agency, 9 Ed., Sec. 319; Johnson vs. State, 2 Ct. Cl. 165, and many others too numerous to mention.

The motion of the Attorney General to dismiss will, therefore, be sustained and the cause is dismissed.


author: Mr. Justice Linscott

text:
    (No. 2602
    Lester Hampleman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1938.

    Weight & Ivamin, for claimant.

      Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Lester Hampleman, claimant, filed his claim to adjust his claim under the Workmen’s Compensation Act, with the Clerk of this court, and alleges that on the 30th day of August, 1934, he was employed by the State of Illinois, as a helper in the kitchen in the Illinois State Hospital for the insane at 6400 Irving Park Blvd., Chicago, Illinois, and on that date he was grinding cabbage, and the grinding knife cut off the end of his index finger. Claimant was given first aid. He alleged that he was temporarily disabled for a period of five weeks and in addition thereto, sustained a permanent injury to the index finger of the right hand. He also alleged that he received his wages during the time that he was incapacitated and was allowed to live at the institution. He received $48.60 per month as salary, and it is charged that his board and room was of the value of $24.00 per month, in addition thereto.

No question arises as to notice.

The facts are all stipulated, and it appears from the stipulation that as a result of the accident claimant underwent an operation on the index finger of the right hand; that he made an uneventful recovery from said injury and operation; that Dr. E. Perry Vaughan, would testify to the same effect as the affidavit attached to the stipulation. In this affidavit the Doctor states that the index finger of the right hand is shorter by the length of one phalanx than the index finger of left hand.

Claimant is 25 years of age, and has no children. He makes no claim for medical or surgical services, or for tempor rary total disability.

It has been the holding of this court that:

Not every state employee is under the Workmen’s Compensation Act, but it is only where the employee is engaged in an employment, extra-hazardous in fact, or employed in a department of the State' which is engaged in an enterprise declared to be extra-hazardous by Section 3 of the Workmen’s Compensation Act of Illinois, that such employee is under the Act and legally entitled to an award for injuries sustained in the course of and arising out of the employment.

The statute gives this court jurisdiction of the parties and the subject matter.

The claimant was an employee of the Illinois State Hospital and under Section 5 of the Compensation Act, the hospital is defined to be an employer within the meaning of the Act.

Under Subparagraphs 2 and 6 of Subsection (e) of Section 8, it is provided that compensation for the loss of the first phalange of the index finger of the right hand is equal to one-half of fifty percentum of the average weekly wage for forty weeks.

Under the facts in this case, we hold that claimant is under the Compensation Act and entitled to compensation. His employment apparently is definitely within Subsection 7% of Section 3 of the Compensation Act, and declared to be extra-hazardous thereunder. That provision declares to be extra-hazardous—

“Any enterprise in which sharp edged cutting tools, grinders or implements are used, including all enterprises which buy, sell or handle junk and salvage, demolish or reconstruct machinery, except as provided in sub-paragraph 8 of this section.”

Claimant was injured while operating a grinder used for grinding cabbage, and his employment would, therefore, be declared to be extra-hazardous.

Claimant’s wages were $48.60 a month, plus maintenance valued at $24.00 per month, making an annual wage of $871.20, and an average weekly wage of $16.75. The record shows that he had been employed in this capacity for more than a year. He is, therefore, entitled to compensation for the loss of the first phalange of the index finger, which under the statute is equal to one-half of fifty per centum of the average weekly wage for forty weeks, or the sum of $167.50. He did, however, receive compensation from the State during his temporary total disability from August 30 to October 12, a period of 5 5/7 weeks, in the total amount of $95.71. Under Subsection (b) Section 8 of the Compensation Act, claimant was entitled to compensation for temporary total incapacity in a sum equal to fifty per centum of his weekly wage for 5 5/7 weeks, or $47.85. Therefore, claimant was overpaid $47.85 for his temporary total compensation. Deducting this amount from $167.50, the amount due for the specific loss, leaves a balance of $119.65.

An award, therefore, is hereby made to Lester Hampleman in the sum of $119.65, payable in a lump 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 the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 2707
    Margaret M. LaVelle, Widow and Thomas F. LaVelle, a Minor and Next of Kin of Leo James LaVelle, Deceased, by Margaret M. LaVelle, His Mother and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1938.

    Carl I. Dietz and Ben T. Reidy, for claimants.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On March 8, 1933, Leo James LaVelle was employed by the Division of Highways, Department of Public Works and Buildings of the State of Illinois, as a State highway maintenance policeman at a salary of $1,800.00 per annum, and was later assigned to active duty in District No. 7 of the Illinois State Highway Maintenance Police, with headquarters at Bock Island, Illinois. He was continuously employed in that capacity until September 24, 1934 when he suffered fatal injuries in a motor vehicle accident occurring on State Bond Issue Boute No. 80, in the Village of Bapids City, County of Bock Island, State of Illinois.

On that date, at about 2:00 p. m. Officer LaVelle was driving a motorcycle owned by the State, east on said State Boute No. 80, in the performance of his regular duties at a speed of about thirty-eight miles per hour, and was passing through the Village of Bapids City; that upon reaching the intersection of First Street with said State Boute No. 80, he was struck by, or collided with an automobile owned and operated by one Mary M. Hubbs, of East Moline, Illinois, and incurred serious personal injuries, viz.: fracture of the right tibia and fibula and the knee joint, fracture and posterior dislocation of the right femur at the hip joint, severe cuts and lacerations on the head and right leg; internal hemorrhages of the abdomen seriously impairing the functioning of the stomach, pancreas and liver, also a severe nervous shock.

Officer LaVelle was immediately taken to the Moline City Hospital where he received medical care and attention, and thereafter, he was operated upon on two different occasions. Dr. E. F. Condon of Bock Island, Illinois, was the physician and surgeon in charge of the case and he was assisted by Dr. Daniel F. Paul of Bock Island, Illinois, and Dr. P. A. Bendixon of Davenport, Iowa, was also called in for consultation and assistance during the operations. LaVelle remained in the hospital until November 24, 1934 when he died as the result of the injuries incurred.

Sergeant James Vickrey was LaVelle’s immediate superior, and was immediately notified of the accident and made an investigation thereof, and on September 25, 1934, made an official report thereon to his superior, Officer L. M. Taylor, the then Acting Superintendent of State Highway Police, Springfield, Illinois.

The respondent paid the several physicians and hospital expenses, being a total sum of $1,303.13. Dr. Condon is claiming a further fee of $25.00.

Following the accident and death of claimant’s intestate, his personal representatives took action to recover damages from Mary M. Hubbs, and pursuant to an order of this court, James L. Hughes, as executor of the estate of Leo James LaVelle, deceased, was authorized by this court to make a settlement with Mary M. Hubbs. It appearing that there were no eye witnesses to the accident and that officer LaVelle was driving at the rate of 38 miles per hour in the Village of Rapids City, it was deemed better to make the settlement than to risk a trial by a jury. The sum of $2,500.00 was paid and Mary M. Hubbs was given a release for all damages.

LaVelle was forty years old at the time of the injury and left his wife, Margaret M. LaVelle, and one minor child, Thomas F. LaVelle, age four years, who were dependent upon him. His wife was appointed guardian of the child by the Probate Court of Rock Island County, on the 23rd day of June, 1937.

No question arises as to the jurisdiction of the court or other jurisdictional matters.

It has been the holding of this court that the construction and maintenance of a hardsurfaced paved public highway is the maintenance and construction of a structure- under the Workmen’s Compensation Act.

Bond vs. State, 7 C. C. R. 198, 199;
Pennington vs. State, 7 C. C. R. 253, 255,

and that a highway maintenance patrolman is entitled to the benefits of the Workmen’s Compensation Act.

Church, et al. vs. State, 7 C. C. R. 256;
Lightner vs. State, 8 C. C. R. 354;
Ferguson vs. State, 8 C. C. R. 589.

If the employee leaves any widow, child or children whom he was under legal obligations to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event that two thousand five hundred dollars, and not more in any event than four thousand dollars, shall be allowed, except where there is a child under sixteen years of age. Section 7a of the Workmen’s Compensation Act provides that whenever in paragraph (a) of this section a maximum of $4,000.00 is provided, such maximum shall be increased in the following cases to the following amounts: Four thousand four hundred fifty dollars in case of one child under the age of sixteen years at the time of the death of the employee.

Claimants contend that they should be paid the sum of $4,450.00, but admit that the sum of $2,500.00 should be subtracted therefrom. In the present case, the widow has remarried, but the right of compensation is not extinguished but continues in favor of the child surviving.

Angerstein, 1930 and 1937 Ed. Sec. 195.

Under the Act, because the decedent left one child under sixteen years of age, the award normally would have been $4,450.00 because decedent’s salary was $150.00 per month. The amount paid, however, by Mrs. Hubbs of $2,500.00 must be deducted therefrom. After the accident and before his death, the decedent was paid his salary and this was in excess of what he would have received under the Compensation Act, and amounted to the sum of $300.00, and any compensation payments other than necessary medical, surgical or hospital fees or services shall be deducted in ascertaining the amount payable on death, under Section 7a of the Workmen’s Compensation Act. Dr. Condon’s bill in the sum of $25.00 must be denied because it appears from the evidence it was for the services of a pathologist in making an analysis of the vital organs of the deceased after his death, and these services were not rendered to the deceased in endeavoring to cure him. Deducting the amount paid by Mrs. Hubbs and the over-payment of salary in the sum of $300.00, there appears to be a total amount of $1,650.00 still due and owing. The widow having remarried, this should go to the minor son, Thomas Francis LaV elle. The widow, Margaret LaV elle, now Margaret LaVelle Belyea has been appointed his guardian and has agreed that all payments should be made payable to her, as guardian of Thomas Francis LaVelle.

Ordinarily, this compensation would have been paid at the rate of Fifteen Dollars ($15.00) per week from the time of the death. It is contended by the Attorney General that $2,500.00 having been paid, these payments should not commence until that sum would have been paid out at the rate of Fifteen Dollars ($15.00) per week. The claimants contend that the sum of $2,500.00 having been paid by a person not under the Compensation Act, and not as the result of any efforts on behalf of the respondent, and owing to the time that has elapsed since the death of decedent, the full sum of $1,650.00 is now past due, and we are inclined to take the latter view.

It is, therefore, the holding of this court that an award in the sum of $1,650.00, shall be paid to Margaret LaVelle Belyea, guardian of Thomas Francis LaVelle, a minor.

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 the appropriation from the Road Fund in the manner provided for in such Act.


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    (No. 2511
    Robert Snyder, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1938.

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

delivered the opinion of the court:

This is a claim for compensation under the Compensation Act and claimant alleges that on the 12th day of August, 1934, he was employed by the State of Illinois in the Department of Public "Works and Buildings, Division of Highways, and at the time of the accident he was engaged in lifting steel forms which were used in paving State Highway No. 147; that in lifting one of the steel forms, he had his left foot on the concrete slab and his right foot on the bank, about eighteen inches higher than the slab; that the form was covered with mud and very heavy; that he heard something “pop” in his back and fell to the ground and had to be assisted by a fellow-workman to his feet, and was unable to proceed with his work.

Claimant was receiving fifty cents an hour and worked eight hours per day; had been working for the State hardly three days when the accident occurred, and says that it was four months before he was able to do any work, and at the time of his testimony he claimed to be bothered some by it. The injury was in his right hip. Shortly after the injury, Dr. Hargan taped claimant’s back and gave him some medicine. The taping was renewed every two weeks and claimant remained under his care for four months. No bill was received for medical attention and the doctor died before the hearing. The last part of January and the forepart of February, claimant went to work clearing brush on a farm and worked four weeks in June, and since November, 1935, claimant worked on PWA jobs.

It has been the holding of this court that the State when engaged in the maintenance and repair of a structure, that is when such structure is commonly called hard surfaced roads, the employees of the state working in said Division are engaged in an employment governed by the provisions of the Illinois Workmen’s Compensation Act.

Manhart vs. State, 8 C. C. R. 356.

No question-arises as to the State having received notice of claimant’s injury. It is the contention of the Attorney General that the temporary total disability was four months or sixteen weeks, and this is a fair construction of the evidence. Claimant was not in the employ of the State for a year prior to his injury and there is nothing in the record to show a full time basis the year around. Therefore, the services can be computed only under subsection (e), section 10, Illinois Workmen’s Compensation Act on a basis of 200 working days. (Stellwagon vs. Industrial Commission, 359 Ill. 557). No proof of medical or hospital bills has been made and consequently no award can be made for them.

It appears that the claimant had no dependents. He was not married, but stated that he had a fourteen year old boy dependent upon him, but it does not appear why such dependency exists.

As we view this case, claimant would be entitled to an award for sixteen weeks total temporary disability. He had worked for the state only three days, and the evidence does not disclose a full time basis the year around. His compensation was $4.00 per day and must, therefore, be based on 200 working days under the statute. This would make his annual compensation, $800.00. This sum divided by 52 weeks equals $15.38 as the average weekly wage. He would, therefore, be entitled to $7.69, pursuant to subsection (b), section 8, Illinois Workmen’s Compensation Act, as his weekly compensation payment. Having been disabled for a period of sixteen weeks, he would be entitled to the sum of $123.04, and there being no proof of medical or hospital bills, and there being no evidence to show that he had suffered a permanent partial incapacity, an award in the sum of $123.04 will be made. Claimant is asking for the sum of $288.00 as compensation for a period of 24 weeks, but the proof does not sustain that claim.

An award, therefore, in the sum of $123.04 is made in favor of the claimant, Robert Snyder.

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 the appropriation from the Eoad Fund in the manner provided for in such Act.


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    (No. 2509
    Charles A. Novak, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Thomas A. Murphy and Frank B. Eagleton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant by his counsel asks for additional compensation and avers that he was, on the 24th day of August, 1931, appointed Chairman of the Industrial Commission of the State of Illinois, by the Honorable Louis L. Emmerson, then Governor of the State, duly qualified as such and became actively engaged as such Chairman commencing September 15, 1931.

Claimant further avers that at the time of his appointment the salary of said office was fixed by Section 14 of the Workmen’s Compensation Act of the State of Illinois, at $7,500.00 per year, and continued to remain at said figure until Ms successor was appointed and qualified and had taken over the powers and duties of said office effective February 1, 1933, and that thereafter until June 1,1933, he held over as an Industrial Officer in the Department of Labor, during wMch period Ms salary was fixed by Statute, Section 14 of the Workmen’s Compensation Act at the rate of $6,000.00 per year; that notwithstanding the salary of said Chairman of said Industrial Commission was fixed at $7,500.00 per annum, the Fifty-seventh General Assembly appropriated only $6,000.00 per annum for this office, as shown by the Session Laws of the State of Illinois, 1931, Page 149, and he was paid at said rate for Ms services as an industrial officer of the State of Illinois, while Chairman of the Industrial Commission, and he claims damages in the sum of $2,520.83.

We had occasion to consider tMs question in the case of Charles F. Wills vs. State of Illinois, No. 2329, and we held: “The Civil Code and not the Workmen’s Compensation Act apparently controls and fixes the salaries of Industrial Officers, and the salaries are there fixed at Five Thousand Dollars ($5,000.00) per year. As claimant has received the full sum of Five Thousand Dollars ($5,000.00) per year for Ms service as an Industrial Officer, and has apparently been paid the full amount of salary fixed by Law, an award herein must bedemed.”

For like reasons, the award in the instant case is demed and claim accordingly dismissed.


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    (No. 2223
    Gus H. Karoukes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Nicholas P. Conglis, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

In presenting his claim for compensation, the claimant alleges that he went into the employ of the Attorney General of this State on February 1, 1925, and worked in the Chicago office; that on July 15, 1931, while attending to his duties, he was injured by the collapse of a chair upon which he was sitting; that from July 15, 1931 until March 12, 1932, he was treated by Dr. H. L. Peterson, and that on March 12, 1932, because of severe pains, he was forced to remain away from his duties, and thereafter until July 18, 1932, he was required to wear a brace to strengthen his back; that on said last mentioned date, he went to the Mayo Clinic at Rochester, Minnesota, where X-ray pictures were taken, and said pictures disclosed a forward displacement of the fifth lumbar vertebra; that an operation was necessary to correct the injury and as a result thereof, he was unable to work from July 18, 1932 until the claim was filed, and he further alleged in his complaint, that he would be unable to do any kind of work ' until January 1, 1934.

Claimant further alleged that his salary was Two Hundred Dollars ($200.00) per month, and that he spent much money endeavoring to be cured, and he asks that this court grant him snch compensation as is just and equitable according to the statute in such case made and provided.

The original claim was filed on August 4, 1933. The Attorney General filed a demurrer to the claim, and on March 27, 1936, Nicholas P. Conglis, filed his appearance as attorney for the claimant, and on April 25, 1936, the claimant filed an amended claim. In the amendment it is alleged that the State of Illinois is one of the several states of the United States, and had full power and authority to create, maintain and keep within its territory several offices, among which is the office of the Attorney General; that the Attorney General was empowered to maintain and keep several offices in several cities in the State of Illinois, among which he has an office in the City of Chicago; that the claimant went into the employ of the Attorney General on the 1st day of February, 1925; that on the 16th day of July, 1931, while the claimant was engaged in the performance of his duties, he was injured when he attempted to sit on a certain swivel chair furnished by the State of Illinois, and located in the office of the Attorney General. It is also alleged that the injury became permanent; that he continued in the employ of the State up to and including the 1st day of January, 1933; that said injury increased and became complicated, and it became necessary for the claimant to have performed a serious operation on his spine; that on January 31, 1933, he was discharged by the State by reason thereof, and on several occasions thereafter, he filed his claim with the Honorable Otto Kerner, Attorney General of the State of Illinois, but no payment was made to him on account of his injuries. He further alleges that on the date of his injury there was in force in this State, the Workmen’s Compensation Act, and reference is made to Section 3 thereof. It is charged that this statute automatically applied to the State and it became the duty of the State by reason of the statute to provide for claimant the necessary medical expenses and to pay to claimant the compensation payable to persons injured, when such injuries arose out of and in the course of their employment. Claimant avers that he served notice upon the Attorney General at Chicago, Illinois, of his injuries on July 15, 1931; that on the 3rd day of August, 1933, being within a year from the date of the last payment received by the claimant from the State, claimant filed his original claim with the Clerk of this court; that on several occasions he communicated with the office of the Attorney General at Chicago and presented his claim for additional compensation, including compensation and reimbursement for medical services. He claims compensation at the rate of Fifteen Dollars ($15.00) per week from the 1st day of January, 1933 for permanent injuries, said compensation to continue until the amount paid equals the amount which would have been payable as a death benefit.

A second count was filed and therein claimant alleged that it became the duty of the defendant, the State of Illinois, to exercise due care and caution for the safety of its employees, and to exercise such due care and caution to supply, maintain and keep the place where its employees were performing their duties in a safe and secure condition, but the State disregarded this duty and permitted a certain swivel chair to become in bad repair and condition; that the claimant was in the exercise of due care and caution for his own safety, and by reason of the defective condition of the chair, he sustained injuries. This amended declaration was filed on April 25, 1936.

The Attorney General filed a motion to dismiss the amended complaint and also the original complaint on the grounds that the claimant was not under the Compensation Act while in the performance of his duties as a clerk in the Chicago office of the Attorney General, and on the further grounds that neither the first claim filed herein, nor the amended claim, were filed within the time specified under Section 24 of the Compensation Act, and on the further ground that the employment in which the claimant was engaged is not within the terms and provisions of the Compensation Act.

In the second count of the amended complaint, an attempt is made to state a cause of action at common law.

The motion of the Attorney General must be sustained for several reasons. We have repeatedly held that the Workmen’s Compensation Act does not apply automatically to the State or to municipal corporations unless they are engaged in an enterprise or business declared to be extra-hazardous under Section 3 of the Compensation Act.

Village of Chapin vs. Industrial Commission, 336 Ill. 461;
Garvin vs. State, 7 C. C. R. 236;
Harrison vs. State, 6 C. C. R. 397;
Scrioner vs. State, 6 C. C. R. 521.

No facts are alleged to show claimant to have been engaged in an extra-hazardous employment. Again it is the law that where the State is in the exercise of a governmental function it is not liable to respond in damages for the negligent acts of its officers, servants or employees and the doctrine of respondeat superior does not apply.

Pelka vs. State, 6 C. C. R. 390;
Sturrock vs. State, 7, C. C. R. 157;
Walen vs. State, 8 C. C. R. 501.

Claimant avers that he was paid for some medical services, but even so, that does not bring him within the provisions of the Compensation Act because the furnishing of medical, surgical and hospital services for an injured employee is not a payment of compensation and the time within which to make claim for the same is not governed by Section 24 of the Workmen’s Compensation Act but by the general five year limitation period.

Wolfe vs. State, 8 C. C. R. 333.

There was a time in Illinois when payment of medical, surgical and hospital services was considered a payment of compensation or an acknowledgment of liability under the Compensation Act. The effect of this was to deprive claimants of payment of any medical services until liability under the Compensation Act was definitely established. The Act was amended by the legislature to the effect that the payment by the employer of hospital bills, medical services, etc., was not a payment of compensation.

Under no circumstances is the State liable at common law for any of the injuries sustained, and the claimant not having brought himself within the provisions of the Workmen’s Compensation Act, the motion of the Attorney General must be sustained.


text:
    (No. 3159
    Charles Day, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Everett Lewis and R. E. Smith, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed his petition on the 8th day of December, 1937, with the Clerk of this Court, alleging that on the 22nd day of August, 1937, the State of Illinois, had created a military unit of the State government of the State of Illinois and designated the same as the State Militia of the State of Illinois and said department was composed of regiments and companies of enlisted men and that among said companies was Howitzer Company, 130th Infantry, located at Mt. Vernon, Jefferson County, Illinois. It is also averred that the State had issued to its various military companies, war materials consisting of bombs, shells and other like high explosives, and that it was the duty of said companies, including Howitzer Company, 130th Infantry, to use the highest care and caution with said explosives in and about keeping the same securely packed or out of the reach of the general public, and at all times in the use of said explosives, not to permit any shell, bomb or explosive to be left in a position to be picked up or handled by any person not authorized so to do, but notwithstanding its duty in this behalf, the Howitzer Company, above mentioned, by and with the authority of the State of Illinois, established and maintained what is known and designated as a Rifle Range, south of Salem, in the State of Illinois, which Rifle Range was for the purpose of practice by the members of said company in the firing, setting off, and exploding of the various and different kinds of shells and ammunitions of war so issued by the State of Illinois.

It is also averred that it is the duty of the State Militia to use the highest care and caution in and about the handling and the exposing of said shells and ammunitions of war, to insure the safety of persons at, upon or near the said Rifle Range, but the said State Militia company did carelessly, negligently and without regard for the safety of- the general public, leave a certain shell loaded with high explosives upon, at or near the Rifle Range, and in consequence thereof, the shell was left in view of persons passing by said Rifle Range.

It is also averred that the danger in the handling of said shells and high explosives so issued, is only known by persons trained so to do, and that on the 22nd day of August, 1937, a shell or bomb, the exact name being unknown to the claimant, was picked up from the ground upon, at or near said Rifle Range and was given to the claimant, and while the claimant was using due care and caution for his own safety to the best of his knowledge, the shell or bomb exploded in his hand, tearing away one finger and a great portion of his right hand, and permanently injurying the same, to the damage of the claimant in the sum of Four Thousand Dollars ($4,000.00).

The Attorney General has made a motion to dismiss this case on the ground that no cause of action is stated.

It goes without saying that the State of Illinois in its sovereign capacity has the right to maintain a State Militia or National Guard and to train the members thereof in the methods of modern warfare. In doing this it is a matter of common knowledge that the implements of war, including shells and bombs, and the handling thereof, are exceedingly dangerous, and it frequently happens that even the best informed suffer serious injuries in handling such dangerous explosives. It is not averred that the claimant had any right upon the premises where the bomb was found or that he was in the performance of any duty to the State. For aught appears in the complaint, the claimant was a trespasser upon the premises, and the person who gave the claimant the bomb, or shell, was a trespasser.

It frequently happens that inquisitive people meddle with things that do not concern them in any way and suffer injuries thereby. Certainly, such people would not be entitled to damages in case of injury. The complaint avers that this shell or bomb “was picked up from the ground up oh, at or near said Rifle Range and was given to this claimant and while the claimant was using due care and caution for his own safety to the best of his knowledge, the said shell or bomb exploded in the hand of this claimant, * * It. is our opinion that such conduct on behalf of the claimant is inconsistent with the term “due care and caution.” It is inconceivable that any person using “due care and caution” would handle a shell or bomb found at or near a rifle range.

This court has repeatedly held that the doctrine of respondeat superior does not apply to the State of Illinois, and we have repeatedly held that the State, in the organization, maintenance and operation of the Illinois National Guard and the training of the same, is engaged in a governmental function and is, therefore, not liable for death, personal injuries or property damage, occasioned by the negligence of the officers or members of the Illinois National Guard, or the officers, employees or agents of the State charged with the organization, maintenance, operation or training of said National Guard. (Peterson vs. State, 8 C. C. R. 9; Winnebago County Forest Preserve Dist. vs. State, 7 C. C. R. 95.)

The motion of the Attorney General to dismiss this case will, therefore, be allowed.


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    (No. 3155
    The Goodyear Tire & Rubber Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Grover 0. Hoee, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

A stipulation between the parties show the facts to be that claimant is a corporation duly organized under the laws of Illinois; that pursuant to an order and request by respondent, through Boss E. Bowman, its stockroom clerk at the Illinois State Highway Central Garage, Division of Highways, Department of Public Works and Buildings, Springfield, Illinois, claimant on August 25,1936, delivered to the said garage, the merchandise in question, which consisted of four automobile casings of the value of $15.90 each and four red tubes at $3.03 each, amounting to $75.72, and the receipt of this merchandise is acknowledged, and no question arises about the price; that through an oversight, claimant neglected to send a bill for said merchandise to the Division of Highways before the lapse of the appropriation from which the same was properly payable; that there was money for the payment of these bills at the time of the sale, and the appropriation lapsed on September 30,1937. No warrant was issued in payment of said merchandise and no other person, firm or corporation has any interest in this claim.

We have frequently held that 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.

It appears that this merchandise was ordered on August 25, 1936. No good reason really appears why the claimant did not present its bill prior to September 30, 1937, and the fact that the agent of the claimant did not know that when that particular appropriation had lapsed there was no funds out of which the proper officer could make the payment, is no valid, legal excuse. The only extenuating circumstance is the fact that there is a five year statute of limitations law in this State, and they probably felt that the Statute of Limitations did apply to the State the same as it did to every person, firm or corporation in the State, and that coupled with the fact that the proper agents of the State did receive the merchandise for official use, we feel justifies us in making the award, but this court is not adopting this as a general rule to make payments in cases of this kind.

An award, therefore, is made in the sum of Seventy-five Dollars and Seventy-two Cents ($75.72).


author: Mb. Justice Yantis

text:
    (No. 3171
    Ted Street, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Hiqkman & Schwartz, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Under a claim filed February 15, 1938 plaintiff seeks an award of Eight Hundred Seventy-two and 18/100 ($872.18) Dollars for loss of time and injury to the thumb of his left hand, while employed on September 23, 1937 as a Highway workman on S. B. I. Route No. 1, near the City of Lawrence-ville, Illinois. The record discloses that claimant was assisting a fellow-workman transfer a drum of asphalt from a truck to a heating kettle on the machine used for putting a traffic stripe on the cement highway. In so doing, the thumb of claimant’s left hand was caught in a pulley and the injury necessitated amputation of the thumb at the Distal joint. Medical bills which were incurred, in the sum of Thirty-nine and 50/100 ($39.50) Dollars, have heretofore been paid to Dr.' A. R. Lindsay of Lawrenceville, Illinois, and Dr. W. A. Bittner of Paris, Illinois. Claimant has received temporary compensation in the sum of Fifty-five and 32/100 ($55.32) Dollars, covering temporary total disability for four (4) weeks and three (3) days.

At the time of the accident he was being paid Fifty (50) Cents per hour for eight (8) hours a day. Neither he nor others similarly employed had been working as much as two hundred (200) days per year, and the latter figure is therefore, under the provisions of the Workmen’s Compensation Act, to be taken as the minimum period in determining claimant’s average annual earnings. Upon this basis his average annual earnings would have been Eight Hundred ($800.00) Dollars and his average weekly wage would be computed at Fifteen and 38/100 ($15.38) Dollars. He was paid for his temporary disability for four (4) weeks and three (3) days, the sum of Fifty-five and 32/100 ($55.32) Dollars, but upon the basis of fifty (50) per cent of his average weekly wage of Fifteen and 38/100 ($15.38) Dollars, or Seven and 69/100 ($7.69) Dollars per week he should have been paid Thirty-four and 06/100 ($34.06) Dollars, and an over-payment appears to have been made of Twenty-one and 26/100 ($21.26) Dollars.

He is further entitled, under the provisions of the Illinois Workmen’s Compensation Act, to a specific award for the loss of the first phalange of his left thumb. Section 8 (e) 1 of the Act provides for “Fifty (50) per cent of the average weekly wage during seventy (70) weeks for the loss of a thumb,” and Section 8 (e) 6 provides, “That the loss of the first phalange of the thumb shall be considered to be equal to the loss of one-half of such thumb, and compensation therefor shall be one-half of the amount due for the total loss of the thumb. ’ ’

An allowance of Seven and 69/100 ($7.69) Dollars per week for thirty-five (35) weeks, being fifty (50) per cent of the average weekly wage, multiplied by one-half of the number of weeks allowed for total loss of the thumb, equals Two Hundred Sixty-nine and 15/100 ($269.15) Dollars. Such amount is due the claimant, less the amount heretofore overpaid for temporary total disability of Twenty-one and 26/100 ($21.26) Dollars.

An award is therefore hereby allowed to claimant in the sum of Two Hundred Forty-seven and 89/100 ($247.89) Dollars. We further find that all of such compensation has accrued prior to this date.

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 Road Fund in the manner provided for in such Act.


text:
    (No. 3127
    James Gallagher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant James Gallagher of Brookville Township, Ogle County, Illinois, herein seeks an award of $2,770.00 as compensation for injuries sustained by him while employed by the State of Illinois. The record is meager and unsatisfactory, due doubtless to the fact that claimant has endeavored to handle a compensation claim pro se. The record consists of a sworn complaint, filed September 23, 1937; a Departmental Report by M. K. Lingle, Engineer of Claims; a signed statement by claimant, approving or disagreeing with the respective statements made in such report; a waiver of the right to submit further evidence, signed by claimant and filed January 6, 1938; Statement, Brief and Argument by respondent; reply by claimant; respondent’s reply; and claimant’s second or supplemental reply. A number of matters are brought out and discussed in the Argument that do not appear in the evidence itself, and the only evidence that is properly before the court is that contained in the sworn statement of facts and the Departmental Report, signed by Mr. Lingle.

From this evidence it appears that claimant was employed by the State of Illinois on November 14, 1936 as a workman in the construction of State Highway No. 77. While so employed, his foot slipped beneath the wheel of a highway division truck while the latter was backing up to dump its load at the point where claimant was working. Claimant was removed to the Dixon Public Hospital and was attended by Dr. L. M. Griffin of Polo, Illinois, who stated in his report that claimant had suffered a fracture of four Metatersals, first and second Phalanx and the lower third of the Fibula. X-rays were taken and treatment rendered at the hospital from November 14th to November 20th. The east that had been placed on his foot was removed by Dr. Griffin on December 1st, and he continued to treat claimant until January 5, 1937 when he dismissed the case with the statement, “claimant unable to do manual labor; injury not at a permanent stage; a slight deformity to result from injury.” On January 19th claimant was again examined at the Dixon State Hospital and was found to be unable to work and should be given further treatment. On March 3rd, 1937 he was taken to Chicago and examined and treated by Dr. H. B. Thomas, Chief of the Department of Orthopaedics of the University of Illinois. While there he was lodged and fed at the Y. M. C. A. Hotel at the expense of the Highway Division. Claimant traveled back and forth from his home to Chicago at various times, remaining in the latter city for further treatment, and was finally released by Dr. Thomas on May 10th, 1937, at which time the latter stated, “that the patient’s disability had been reduced seventy-five (75) per cent by Physiotherapy * * * present disability at that time fifteen (15) per cent.” Compensation payments were stopped on May 15th, 1937 by the Highway Division, as it then considered the patient’s case at a permanent stage.

Claimant had worked for the Highway Division from September 26th, 1936 until November 14th, 1936, during which time he received $128.50. Total compensation had been paid to him from the date of his injury, November 14, 1938, until May 15, 1937, in the amount of $10.00 per week, or a total of $260.00. In addition thereto, hotel, hospital and medical bills have been paid for him in a total sum of $297.78, as shown by the Departmental Report. While the present claim is prosecuted pro se, it further appears that on two different occasions Robert L. Bracken of Dixon. Illinois requested, as attorney for .claimant, copies of Dr. Thomas’ Report on G-allagher’s condition; both of such requests were apparently complied with.

Claimant seeks an award of $1,847.00, under Section 8, paragraphs (d) and (h) of the Workmen’s Compensation Act, averring’ that previous to his injury his weekly wage was $20.00, and that since said accident the only work he has been able to do was for a period of three (3) weeks at an average weekly wage of $11.22.

He seeks further damages in the amount of $923.00, under the provisions of Section 19, paragraph (k) of the Act, alleging, “That the State has been guilty of unnecessary delay in conducting his case and in closing the same before the injury was at a permanent stage, and without his knowledge, thereby depriving him from any income for the period of May 15,1937 to August 14,1937.”

It does not appear that there has been any unreasonable or vexatious delay of payment or intentional under-payment of compensation, or any frivolous delay upon the part of respondent, which would justify a penalty, under the provisions of Section 19 (k) of the Act. Whatever dissatisfaction claimant may have experienced is apparently to be attributed to his lack of competent legal guidance.

It is evident from the record that except for claimant’s temporary total disability, his rights under the Act are for a specific loss of use of the foot. Section 8 (d) of the Act grants specific payment of fifty (50) per cent of the difference between the average amount which an employee earned before the accident and the average amount which he is able to earn in some suitable employment thereafter. Such provision however contains the further limitation that such payment shall govern, “except in the cases covered by the specific schedule set forth in paragraph (e) of Section 8.” Said latter section provides, ‘1 That an injured employee shall receive compensation for the period of temporary total incapacity in accordance with the provisions of paragraphs (a) and (b) of said Section 8 for a period not to exceed sixty-four (64) weeks, and shall receive in addition thereto, compensation for a further period subject to limitations as to amount as in said Section 8 provided, for the specific loss, but shall not receive a/ny compensation for such injury under any other provision of the Compensation Act.”

Said Section 8 (e) thereafter provides, under Sub-section 14 as follows:

“For the loss of a foot or the permanent and complete loss of its use fifty percentum of the average weekly wage during one hundred thirty-five (135) weeks.”

Also, Sub-section 17 provides as follows:

“For the permanent partial loss of use of a member * * * fifty percentum of the average weekly wage during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member * * * which the partial loss of use thereof bears to the total loss of use of such member.”

At the time of the accident claimant was receiving* pay at the rate of Fifty (50) Cents per hour on the basis of eight (8) hours per day. As his employment was not constant he comes within that minimum provision of the Act which provides for a basis of two hundred (200) days for compensation of wage average. Under such computation an annual wage estimate of $800.00 would result in average weekly wages of $15.38. Twenty-six (26) weeks of total temporary disability at fifty (50) per cent of such average weekly wage, or $7.69 would have entitled him to $199.94 temporary total disability. During* the period of such temporary total disability he received in fact $260.00, or an over-payment of $60.06. The evidence as it now appears in the record supports a fifteen (15) per cent specific loss of use of one of claimant’s feet. No place in the record can one ascertain which foot was injured. Under the provisions of the Compensation Act, and on the basis of the average weekly wage above stated, claimant would be entitled to $7.69 for 20.25 weeks for such specific loss, amounting* to $155.72. From this should be deducted the sum of $60.06 heretofore over-paid on temporary total disability, leaving a net award due of $95.66. An award is hereby made in favor of claimant for said sum of $95.66, all of which has heretofore accrued.

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 B-oad Fund in the manner provided for in such Act.


text:
    (Nos. 2582 and 2583
    John Redenbaugh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Francis T. Carson and Lloyd S. Engert, for claimant.
    Otto Keener, Attorney General; Murray F. Milne and Sveinsjoen Johnson, Assistant Attorneys General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

These cases have been consolidated and will be considered together.

In the first instance, John Redenbaugh avers that he was employed at the University of Illinois, and was an employee of the State of Illinois, and had been an employee of the State since May 24, 1934; that his wages were fifty-seven and one-half cents per hour, for forty-four hours per week, and that while he was employed in ditching and laying of pipe, on the 16th day of August, 1934, and while in the course of his employment, a piece of pipe which was being laid, struck a street light, causing the globe on said light to fall and cut claimant’s arm at his right elbow. Claimant further avers that he incurred a hospital bill at the Burnham City Hospital in the sum of Forty Dollars and Ten Cents ($40.10), and incurred a doctor’s bill in the sum of Forty-one Dollars ($41.00).

Claimant presented the claim to the University of Illinois and no question of jurisdiction arises upon the record. He claims that he was temporarily totally incapacitated for work for a period of two weeks after the time of the accident.

Claimant is a married man and earns Twenty-five Dollars .and Thirty Cents ($25.30) per week and files his claim for compensation in the sum of Fifty Dollars and Sixty Cents ($50.60), in addition to his doctor and hospital hills.

It was stipulated that claimant was employed as a laborer from May 24, 1934 to December 11, 1934, at a compensation of fifty-seven and one-half cents per hour and that on August 16, 1934, he suffered an injury to his right elbow, by reason of a twelve inch water main which the claimant was assisting to unload. The pipe rolled down between a tree and a light post, and hit the light post and broke the globe. The globe fell and cut claimant’s arm, breaking a blood vessel near the right elbow, and also cut the back of his hand.

Claimant had three children under sixteen years of age.

Claimant contends that he was unable to work for a period of two weeks and has received no compensation whatever, and claims to be still suffering, some disability.

The record discloses that the University of Illinois is a corporation created by statue.

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 * * The claimant in this case received Twenty-five Dollars and Thirty Cents ($25.30) per week. One-half of this sum is Twelve Dollars and Sixty-five Cents ($12.65). Paragraph (j) of the same section further provides: “Whenever in this section there is a provision for fifty percentum, such percentum shall be increased five percentum for each child of the employee, including children who have been legally adopted, under sixteen years of age at the time of the injury to the employee until such percentum shall reach a maximum of sixty-five percentum.

Claimant, therefore, would be entitled to Sixteen Dollars and Forty-five Cents ($16.45) for compensation, not being-entitled to anything- for the first week, together with his hospital bill in the sum of Forty Dollars and Ten Cents ($40.10) and his doctor’s bill in the sum of Forty-one Dollars ($41.00), or a total of Ninety-seven Dollars and Fifty-five Cents ($97.55).

This same claimant was injured a second time. He received the same amount of compensation as in the first instance, and on the 8th day of October, 1934, while in the course of his employment, he was struck in the right forearm by a pick which was in the hands of Woodrow Wilson, who was also working on the ditch. He alleges that a tendon in the forearm was completely severed, and that this tendon was tied by the attending doctor, and he claims a partial disability resulted.

In this instance his medical bill was Thirteen Dollars ($13.00), and apparently he had no hospital bill, and he contends that he was temporarily totally incapacitated for work for a period of two weeks after the time of the accident. He now claims to have had five children under the age of sixteen years of age, and claims- One Hundred Dollars ($100.00) for permanent partial disability and Fifty Dollars and Sixty Cents ($50.60) for total temporary incapacity for work for a period of two weeks, or a total of One Hundred Fifty Dollars and Sixty Cents ($150.60) in addition to his doctor’s bill of Thirteen Dollars ($13.00).

A stipulation was entered into the effect that claimant was employed as a laborer from May 24, 1934 to December 11, 1934 at a compensation of fifty-seven and one-half cents per hour; that on October 9, 1934, he suffered an injury to his right forearm, and the stipulation is to the effect that at the time of the injury the plaintiff had three children dependent upon him under the age of sixteen years; that he was 46 years of age; that he is a citizen of the United States, and a resident of Champaign County, State of Illinois.

He testified that he was actually struck with a pick in the hands of a fellow worker; that the pick entered his right forearm about half-way between the elbow and the wrist, and that two leaders “popped up.” He was asked if this injury broke the skin, and he replied that two leaders ‘1 popped up. ’ ’ He testified that he was helped in a truck and taken to the Health Office of the University where he saw Dr. Blackstone, and was sent from there to Dr. Dalton; that Dr. Dalton’s bill was Sixteen Dollars ($16.00), and he testified that as the result of the injury, he was unable to return to work until October 22, and has not received any compensation. No question arises concerning notice. He testified that the injury still effects his arm; that it feels numb; that at night he wakes up and finds it hurting- and has to rub it; that it has poor circulation. He was asked this question by his counsel:

Q. Do you think it makes you somewhat weaker and unable to work as well as you did prior to the injury?

His answer was “Yes.”

On cross examination he was asked if he felt that the arm was improving and if there was any change in the condition of the arm, and he answered: “No. I can’t say that there is.”

Dr. Dalton was called. He was a physician in Champaign County and had been practicing 28 years. He attended the claimant on the 9th day of October, 1934, and treated him for a laceration of the forearm. Dr. Dalton testified that there was a lacerated wound extending beneath the skin; that he did not know of any tendons being exposed, and it was his recollection that the wound extended probably through the fascia; that he treated him until the 23rd day of October, 1934; that he did not think that there could be any permanent disability from a wound of that kind; that the wound extended into the muscle tissue but not the tendons.

Dr. Dalton was asked this question:

“In your experience have you ever known of a case where such an injury might have caused partial permanent disability?”

To this he replied:

“At times it is possible.”

In answer to a question put to Dr. Dalton he testified that in his opinion there was no permanent injury.

Dr. J. Howard Beard testified and was questioned by claimant’s counsel. Dr. Beard did not examine him at first himself. Claimant came again to the Health Service. This had nothing to do with his treatment. At that time he reported that he was coming along first rate. On November 6, he came in again and was given a form for Dr. Dalton to fill out as required by the Court of Claims. Later on he brought the form back and made a report to the effect that there was no permanent disability. Dr. Beard again examined the claimant on February 26, 1936. He examined the claimant to find out the function and strength of the arm. He first tested the arm to see whether he had proper pronation, supination, flexion and extension, and found them to be all normal. He then testified that he tested his strength and found that he had strength and range in the action of the muscles of his arms. Dr. Beard gave him further tests and the claimant showed normal power in flexion, and showed better than average strength. Claimant contended that he had been off work for several weeks and then when he started working again he found difficulty in having a good grip, but Dr. Beard did not think that was possible.

Dr. Dalton was again recalled and he testified that he had examined the claimant since he had testified before. The gist of his testimony was that having examined the claimant it was his opinion that the claimant would have the possibility of some slight impairment, but that was merely a possibility. It was the doctor’s opinion that there was the same amount of function in both hands, and he couldn’t determine any difference in claimant’s two arms, and on cross-examination, Dr. Dalton testified that claimant had good use of the arm, and he thought it would remain the same. It affirmatively appears that subsection 7% of Sec. 3 of the Workmen’s Compensation Act applies herein and the work in which plaintiff was engaged at the time of both his injuries, was “an enterprise wherein sharp-edged cutting implements were used.” He is therefore entitled to the benefits of said Act, under the authority of the case of Forest Preserve vs. Ind. Comm. 357 Ill. 389.

In this state of the record no allowance can be made for any permanent disability.

Figuring compensation as was done in No. 2582, the claimant would only be entitled to one week’s compensation for the second injury, or Sixteen Dollars and Forty-five Cents ($16.45), to be paid in the same manner as the prior claim, plus the doctor’s bill in the sum of Thirteen Dollars ($13.00), plus Ninety-seven Dollars and Fifty-five Cents ($97.55) for items due in connection with the first injury as- heretofore enumerated.

All of the money so found to be due the claimant herein is for temporary total disability and hospital and medical expenses and items incidental thereto, and are payable from the appropriation made under Senate Bill No. 483 from the “University of Illinois Revolving Fund,” (Senate Bill No. 483, Sess. Laws, 1937 p. 239 — -No. 8), in the usual manner of disbursements therefrom, by the University authorities.


author: Mr. Justice Linsoott

text:
    (No. 2587
    William Moore, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Alexander White, Jr., for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

William Moore a soldier in the late war filed a petition with the clerk of this court setting forth that on the 18th day of January, 1924, the State of Illinois was indebted to him in the sum of Three Hundred Dollars ($300.00) by virtue of an Act entitled “An Act to provide payment of compensation to certain persons who served with the military or naval forces of the United States in the recent war with Germany,” approved May 3, 1921.

Claimant charged that on January 8, 1924, the proper state officer issued a draft and mailed it to him at Willow Springs, Illinois, at which time claimant was not living there. This draft was for the sum of Three Hundred Dollars ($300.00) and was issued to him in payment for military services. The draft was cashed and returned to the State Treasurer and bore the signature of William Moore and also the signature of a man named John T. Allison. Moore claims that he never received the draft and that no other person has any rightful interest in the draft, and he asks an award from this court in the sum of Three Hundred Dollars ($300.00), plus interest at 6% per annum, from January 8, 1924, and the claim is based upon the equity and good conscience doctrine.

The claim is properly sworn to and evidence was taken. The evidence is quite convincing that somebody forged Moore’s name to the draft. The name John T. Allison also appears on the draft and it is not claimed that that was a forgery. It appears that Allison is a man of some property, but nothing in the record disclosed why demand was not made upon Allison, who' subsequently died, or upon his estate, but the claim was not filed until January 31, 1935, more than eleven years after Moore claims the payment was due him.

The Attorney General contends that this court does not have any jurisdiction because it is barred by Section 10 of the Court of Claims Act, which provides as follows:

“Every claim against the State cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the secretary of the court within five years after the- claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.”

The evidence does not disclose that Moore was .under disability of any kind. This court, therefore, has no jurisdiction to enter an award in this instance and for that reason, the claim is hereby dismissed.