author: Mr. Chibe Justice Hollerich

text:
    (No. 3133
    Nellie McKee, Widow of Walter McKee, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1939.

    John W. Fbibley, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerich

delivered the opinion of the court:

On several occasions prior to July 1st, 1937, one Walter McKee was employed by the Division of Highways of the Department of Public Works and Buildings of the respondent. On the last mentioned date he was working with the maintenance patrolman in District No. 7, and was engaged in repairing the State highway designated as TJ. S. No. 40, at a point approximately two miles east of the City of Vandalia.

On said 1st day of July, McKee and the maintenance patrolman were engaged in the work of “cutting expansion joints,” which work consisted of cutting the asphalt which raised above the level of the concrete, at the various expansion joints, as the result of the expansion of the concrete slab on account of the heat. The work of cutting was done with a scraper (an instrument similar to a straightened-out hoe) with a wire attached to the lower part of the blade. In using this instrument the patrolman pulled on the wire, and McKee pushed on the handle. They continued cutting expansion joints until noon, at which time they drove to a small shed where their supplies were kept, and ate their lunch. After lunch, to wit, at one o’clock P. M., and before leaving the shed, they loaded their truck with fine crushed rock, and a barrel containing asphalt, having a total weight of from 150 to 200 pounds. In loading such barrel, one man was on each side, and they lifted or tipped it into the truck, the box being-four feet above the ground. The evidence indicates that the work of cutting expansion joints was more strenuous than the work of lifting the barrel onto the truck.

After loading the truck, they drove out on the highway and commenced repairing holes in the pavement. The truck was left on the highway, and the patrolman did the repair work just in front of it, while McKee stood behind the truck with a flag, for the purpose of directing the traffic and thereby protecting the patrolman. After they had been working about fifteen minutes, being between two and three o’clock P. M., . and while the patrolman was engaged in repairing a hole in the pavement, he heard McKee cough twice, and looking up, saw that McKee was bleeding from the mouth and nose. He immediately placed him on the truck and started for Vandalia. The bleeding continued and the patrolman stopped at a station and called for an ambulance. As soon as the ambulance arrived, McKee was placed therein, but died before he reached the hospital.

The evidence discloses that on July 7,1936 (approximately one year prior to his death) McKee sustained a heat stroke while working for a private construction company engaged in the construction of buildings at the Vandalia Penal Farm. Dr. A. K. Stanbury of Vandalia attended him at that time and diagnosed McKee’s condition as “cerebral hemorrhage causing a pressure on the vocal cord and causing the inability- of the vocal cord to act. ’ ’ Prior to that time McKee had been a very stout man, and in good health. After the heat stroke, however, he did not recover his former condition, was subject to spells of coughing, and could hardly speak above a whisper.

McKee was a married man, and his widow, Nellie McKee, is the claimant in this proceeding. She contends that the exertion of lifting the barrel containing asphalt into the truck was the cause of the death of her husband; that the injury arose out of and in the course of his employment; and that she is entitled to the compensation provided by the terms and provisions of the Workmen’s Compensation Act of this State.

The respondent contends that there was no causal connection between McKee’s employment and his death; that he did not die as the result of an accidental injury which arose out of his employment; and that there is no liability on the part of the State for his death.

The only medical evidence in the case is the testimony of Dr. Stanbury who treated McKee at the time of his heat stroke on July 7, 1936, and for some time thereafter. Dr. Stanbury, however, stated that he had not treated McKee at any time within six months prior to his death, and made no examination of the body at the time of death. The evidence discloses that no post mortem examination was made, and no autopsy was performed.

Claimant’s case rests almost entirely upon the testimony of Dr. A. R. Stanbury who stated that, in his opinion, the sunstroke “paralyzed some of the upper part of the bronchial tube and the lungs” and also gave it as his opinion that such paralysis caused an aneurism of the arteries of the upper part of the lung; that the hemorrhage sustained on July 1st, 1937 was caused from the aneurism in the upper part of the lung.

Dr. Stanbury on direct examination was asked the following question: “Doctor Stanbury, based upon your own knowledge of the conditions of Walter McKee which you observed in your treatment of him during the year before he died, based upon your knowledge of medicine and your practice of medicine and surgery over a period of twenty-eight years, and based upon the testimony of Curt Kile which you have listened to, who was the witness who immediately preceded you, and upon the stated fact that Walter McKee had during the morning of the date of his death been engaged in cutting asphalt from expansion joints in the hard road during which period of time he used a scraper holding it by a handle before him, pushing against this handle with his hands and chest, and upon the fact that he immediately prior to his death had lifted a barrel of asphalt weighing one hundred and fifty to two hundred pounds, have you an opinion based upon a reasonable degree of medical certainty as to what caused the death of Walter McKee?”; — to which question he replied that he had an opinion and expressed such opinion as follows: ‘ ‘ My opinion is that this exertion kept thinning the aneurism down until there was no more protection and with just a little exertion it might burst it, which caused his death. ’ ’

The question propounded to Dr. Stanbury was apparently intended to be, but was not, a hypothetical question. Furthermore, it was based in part, upon the doctor’s knowledge of the condition of Walter McKee which he observed in his treatment of him during the year before he died, but the doctor had previously stated that he had not examined McKee for six months prior to his death, and did not examine him at the time of his death, nor did he make a post-mortem or perform an autopsy.

Dr. Stanbury’s opinion was also based in part, upon the hypothesis that in cutting the asphalt from expansion joints, McKee was holding the scraper by the handle, pushing against such handle with his hands and with his chest, and upon the further hypothesis that immediately prior to his death McKee had lifted a barrel of asphalt weighing 150 to 200 pounds. There is no evidence in the record whatsoever that the handle of the scraper at any time came in contact with McKee’s chest, and the testimony with reference to lifting the barrel of asphalt was that such barrel was lifted by the maintenance man and McKee jointly, and that the time of such lifting was at least an hour prior to the time of the hemorrhage.

In his cross-examination, • Dr. Stanbury was asked (Transcript page 34): “So your opinion as to the .cause of death is more or less based upon the evidence of what occurred at that time:”; — to which he replied: “The history of the ease and other cases similar of that type, that is the only thing that I have. I wouldn’t say that that is correct, but it is my opinion. ’ ’

Although Dr. Stanbury was the McKee family physician, yet he could not properly be called the treating physician of Mr. McKee, as he had not treated him for at least six months prior to the time of the hemorrhage, and did not make an examination of him at or after the time of the hemorrhage. Not being the treating physician, his opinion, based in part upon the history of the case, was not competent evidence. Wells Bros. Co. vs. Ind. Com., 306 Ill. 191; Lehigh Stone Co. vs. Ind. Com., 315 Ill. 431; Powers Storage Co. vs. Ind. Com., 340 Ill. 498.

Furthermore, he did not qualify, or attempt to qualify, as an expert witness. ■

Considered from any angle, the opinion of Dr. Stanbury does not constitute the basis for an award.

Our Supreme Court has held in .numerous cases that in proceedings under the Workmen’s Compensation Act, the rules respecting the admission of evidence and the burden of proof are the same as those that prevail in common law actions for personal injury. Chicago Daily News Co. vs. Ind. Com., 306 Ill. 212; Kivish vs. Ind. Com., 312 Ill. 311; Atlas Brewing Co. vs. Ind. Com., 314 Ill. 196-200; Mehay vs. Ind. Com., 316 Ill. 97-102.

Such court has also held in numerous cases that liability under the Workmen’s Compensation Act cannot rest upon imagination, speculation, or conjecture, or upon a choice between two views each compatible with the evidence, but must be based upon facts established -by a preponderance of the evidence; and there can be no award where death ensues from a pre-existing disease and not from an injury. Berry vs. Ind. Com., 335 Ill. 374-377; Conreaux vs. Ind. Com., 354 Ill. 356; Harding Co. vs. Ind. Com., 355 Ill. 139-144; Sanitary District vs. Ind. Com., 343 Ill. 236-242.

The question as to the proper meaning of the words “arising out of” and “in the course of,” has come before the courts in numerous cases. In McNicol’s Case, 215 Mass. 487, the Supreme Court of Massachusetts said:

“An injury arises ‘out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person, familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

This definition has been approved by our Supreme Court in numerous cases. Central Illinois Service Co. vs. Ind. Com., 291 Ill. 256; Vincennes Bridge Co. vs. Ind. Com., 351 Ill. 444; Mazursky vs. Ind. Com., 364 Ill. 445.

The difficulty in this case lies not so much with the principles of law involved, as with the application of the facts to. such principles.

In the case of American Steel Foundries Co. vs. Ind. Com., 327 Ill. 615, an employee named Cochran was operating an electric crane in the foundry of the respondent. The crane was operated from a cage about ten feet above the floor and about eighteen or twenty feet from the furnaces. The operator’s duty was to move a controller, which was similar to the controller of a street car, and was operated about as easily. While operating the crane a sharp pain struck the employee in his right arm. He testified that before the pain struck him the fumes from the furnaces made his lungs burn.

There was no question but what defendant’s lung collapsed, and the only question in the case was whether such collapse was the result of gases escaping from the furnace or whether it resulted from some other cause. There was medical testimony to the effect that the collapse of the lung was the result of a tubercular condition of the hilus gland, which ate a small hole through the parietal pleura, permitting the entry of air into the lung covering.

After considering the testimony the court said:

“It is apparent that the evidence not only did not show that the disability resulted from an accidental injury arising out of and in the course of Cochran’s work, but the contrary. * * *
“Here there was no evidence that Cochran suffered an accidental injury which arose out of and in the course of his employment except the fact of his disability occurring while he was at work, and the cause of his disability was clearly shown to have been not an accidental injury but a tubercular condition which permitted the access of air to the space between the visceral and the parietal pleura”; — •

and reversed the decision of the Industrial Commission and the decision of the Circuit Court allowing an award.

Numerous other cases of a similar nature have come before our Supreme Court, but a complete review thereof would serve no useful purpose, as each case is based upon its own peculiar facts, and a brief reference to a few of such cases will suffice.

The case of New Staunton Coal Co. vs. Ind. Com., 307 Ill. 408, involved a miner who was stricken while shoveling coal into a car; the case of Selz-Schwab & Co. vs. Ind. Com., 326 Ill. 120, involved a worker in the stock room who was stricken while in the performance of the usual duties of his employment; the case of Hahn vs. Ind. Com., 337 Ill. 59, involved a pipe fitter who fell from a ladder on which he was standing, while engaged in cutting a groove in a post; the case of Jolly vs. Ind. Com., 341 Ill. 46, involved a hotel employee who became sick while engaged in the performance of her usual duties in the kitchen. A physician was summoned and found that she was suffering from a strangulated hernia. An operation was performed the same day, and she died a few days later.

The case of Cruzan vs. Ind. Com., 350 Ill. 407, involved an employee who died from the effects of peritonitis following perforation of the duodenum due to duodenal ulcers, the perforation occurring while the employee, in the performance of his duties, was stooping down to pick up a toy trunk; — and in each of such cases the Supreme Court held in substance that the plaintiff had failed to establish a causal connection between the accident and the death; had failed to prove an accidental injury arising out of the employment; — and denied an award. In the last mentioned case, the court said:

“There must be some cause or (causal?) relation between the injury and the employment, and if the injury is sustained by reason of some cause having no relation to the employment it does not arise out of the employment. It is not enough that the injured person may be present at the place of the accident because of his work unless the injury is the result of some risk of the employment.
“One claiming compensation under the Compensation Act for the death of an employee must prove by direct and positive evidence, or by evidence from which the inference can fairly and reasonably be drawn, that death was caused by an accidental injury which occurred not only in the' course of the employment of the deceased but also arose out of such employment. While compensation may be awarded even though there is a pre-existing disease, if the disease is exaggerated or accelerated by an accidental injury the' accidental injury must be the immediate or proximate cause of death."

The facts in the present case show that at no time prior to the hemorrhage did McKee complain to the patrolman with reference to the work, or with reference to his own physical condition; that the work of cutting expansion joints was more strenuous than the work of lifting the barrel into the truck; that the work of cutting expansion joints occupied the entire morning, and the lifting of the barrel into the truck was done at least one hour prior to the time the decedent sustained the hemorrhage; that McKee did not undergo any exertion of any kind from the time the barrel of asphalt was loaded into the truck until he started coughing just prior to the hemorrhage, aside from the ordinary work of getting on and off the truck and standing on the pavement holding a flag.

Dr. Stanbury stated that in his opinion the aneurism was located in the upper part of the left lung*. He was then asked the following question: “If there were an aneurism in the upper part of the left lung, how long an interval would there be between the bursting of such aneurism and the expulsion of blood through the mouth?”; — to which he replied, “Immediately.” He also stated that the bursting of an aneurism might occur to a man wandering down the street; that it might result from almost an imperceptible amount of exertion; that it could be caused by mental excitement or nervous strain, by jumping off a wagon, or a sudden jar.

If the exertion connected with the work of lifting the barrel of asphalt into the truck was the cause of the hemorrhage, it would seem, under the testimony of Dr. Stan-bury, that death would have resulted almost immediately thereafter. The fact that the hemorrhage did not result for more than an hour after the asphalt was loaded into the truck, would tend to prove that the exertion in loading such asphalt was not the cause of the hemorrhage.

From all of the competent evidence in the record, we are of the opinion that the claimant has failed to establish that the death of Mr. McKee was the result of an accidental injury arising out of his employment, and award must therefore be denied.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 3263
    Goodyear Service, Retail Division of the Goodyear Tire & Rubber Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On June 3, 1935, pursuant to State Purchase Order No. BO 7652, the claimant delivered to respondent at Chicago State Hospital, Dunning, Illinois, two 40x6 notched A. W. B, tractor type casings, of the value of $103.74.

Claimant alleg’es that a bill for such merchandise was presented to the respondent, but if presented, it was overlooked or mislaid, as the record shows that on September 6, 1935 respondent requested claimant to furnish triplicate invoices covering the merchandise in question. However, such invoices were not received until after the lapse of the appropriation out of which the same were payable. At the time the purchase order was issued, and at the time the merchandise was received by the respondent, there remained in the appropriate fund a sufficient unexpended balance to pay for the same.

We have repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Goodyear Tire & Rubber Co. vs. State, No. 3155, decided at the March Term, 1938, of this court; Metropolitan Electrical Supply Co. vs. State, No. 3270, decided at the September Term, 1938, of this court.

This case comes within thé rule above set forth, and award is therefore entered in favor of the claimant for the sum of $103.74.


author: Mr. Justice Yantis

text:
    (No. 2985
    J. Binnie Wolfe, Administrator of the Estate of Charles R. Miller, Deceased, and Edith Miller, Substituted Claimant, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1939.

    Eoswell B. 0’Habra and John L. Fisher, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The original claim herein was filed by Charlie R. Miller on September 23, 1936, alleging that while working as a laborer in the Highway Division of the Department of Public Works and Buildings, on September 25,1935 on S. B. I. Route No. 9 in McDonough County, he suffered accidental injuries which resulted in loss of time and disability which necessitated an operation for the removal of a tumor and the right testicle. Claimant sought an award of Six Thousand ($6,000.00) Dollars for temporary and partial permanent disability. On December 4, 1936 Roswell B. O’Harra as attorney for claimant filed a report of the death of claimant.

Leave of court being first had and obtained on March 9, 1937, J. Binnie Wolfe, administrator of the estate of Charlie R. Miller and Edith Miller, surviving- widow of decedent, filed herein their amended and supplemental complaint.

The case comes before the court upon the foregoing and the transcript of evidence „and the written briefs of the respective parties filed herein, together with a report by Theo. Plack, District Engineer for the Division of Highways, filed herein on July 13, 1938.

Prom the record it appears that Charlie R. Miller was working with one Sherman Adair cleaning ditches along the highway on September 25, 1935; that they had a piece of sod about five feet long two feet wide and six inches thick which they were attempting to lift with their shovels from the ditch onto a truck; that when they had the sod almost to the top of the truck Adair’s shovel slipped and the entire weight of the sod was thrown upon Miller.

Adair testified that Miller immediately complained of having hurt his back or side; that “he seemed in quite intense pain — he seemed to have quite a bit of pain at once.” This happened in the afternoon and they continued to work that afternoon.

His wife, Edith Miller, testified that the next day it rained and no work was attempted; that he went back to work the following day and worked for the next three days until that particular job was finished, and that he did not work from that time until his death. She further testified that he was in apparent pain all the time, that the right testicle began to swell and that there was no' apparent bruise but there was a redness on the testicle. He went to Dr. B. -A. Harrison at Colchester on October 7, 1935. The patient was treated by the latter and the doctor attempted to diagnose his trouble. In December he was taken to Dr. Arp at Moline. The latter’s examination pronounced his condition to be the result of a strain, and the Doctor instructed him to continue under the care of Dr. Harrison. In January he and another man attempted to open up a coal mine but he was only able to work one morning. He then went to a Dr. Dillon whose only treatment was to give him something* to relieve the pain from which he was suffering. At Dr. Harrison’s request Mrs. Miller took her husband to- a hospital at Iowa City. X-ray pictures and blood tests were taken and an operation was performed and the right testicle which was found to be a malignant tumor was removed. He was then removed to his home where he died three weeks later, on October 9, 1936. .

The deceased was in apparent good health and physical condition prior to- the day of his accident. His wife testified that he had never been sick from the- time they were married in June, 1929, and had never had any injury that she knew of prior to that on September 25, 1935. Sherman Adair testified that he had known the deceased for approximately a year and a half before the accident, and .had worked with him on the hard road for some time prior to that date; that they were working in the same gang and that Miller was in apparent good health and possessed of ordinary physical strength and ability. Archie Martin testified that he was maintenance patrolman, had known Charlie Miller all of his lifetime; that he had hired him for this job. The witness saw Miller about ten days after the accident when the latter was on his way to see Dr. Harrison. Martin got a medical report from Dr. Harrison and sent it to the State Highway Department at Peoria, later sending a second report. This witness further testified that he had seen Charlie Miller working prior to the day of the accident; that he was apparently ablehodied and able to do a man’s work. The witness further testified that he saw Miller from time to time after the accident; that he then complained of severe pain and that he rapidly fell off in weight.

Another witness, Thomas Booth, testified that he had worked with Charlie Miller on a W.P.A. project prior to September 25, 1935; that he had also worked with Miller in coal-mining; that prior to the time of his accident Miller was apparently ablebodied and able “to carry a full load.”

Dr. Clarence Van Epps testified that he is associated with the Medical School of the University of Iowa and specializes in nervous diseases; that in addition thereto1 he engages in private practice and in the course thereof saw Charlie R. Miller on August 30, 1936 at the hospital in Iowa City; that Miller at that time was emaciated and had an enlargement of about two hundred (200) per cent of the right testicle which was hard and irregular; that a complete medical examination of the patient was made which disclosed enlarged glands in the groin with abdominal pains suggesting1 testicular malignancy with retro-peritoneal. The doctor was given a history of the accident and testified that he did not think the trauma described to him was the essential cause of the testicular tumor. The doctor further testified that it is not possible in a case of malignant tumor to definitely state the cause thereof; that some malignant tumors are of traumatic origin but that in his opinion the testicular tumor which he found in this patient was not of traumatic origin. The doctor modified this opinion in cross-examination by stating that if the history of the case disclosed the patient was struck on the right testicle at the time of the accident it would have made a difference in his conclusion.

The wife of Charlie R. Miller testified that when he came home from work on September 25, 1935 he told her of his accident. That during the days that followed he complained constantly of pain. That there were no bruises apparent; that there was a swelling in the right testicle and that there was a redness there for three or four days after the accident. Claimant began to lose weight, then in January he began to feel better. The pain was not so severe and had moved into his side, but when he attempted to open a coal mine he was unable to do the work and Dr. Harrison ordered him to a hospital. The operation there resulted in the removal of the right testicle with a laboratory report of malignant tumor. According to the record Mr. Miller was never sick from the time of his marriage in June, 1929 until after the accident in question. That he was ill continually after that time until his death. A coroner’s jury returned a verdict, “Death from injury sustained while in the employ of the Division of Highways,” and the conclusion to be drawn from the testimony of all the witnesses and the facts and circumstances in evidence is that there was a causal connection between Mr. Miller’s death and the accident in question. His previous good health, the concurrence in time between the speedy development of his condition of ill health with the time of his accident, and the fact that a malignant growth developed immediately after the accident in question, and that the beginning thereof was evidenced by redness and swelling immediately following such accident, all lead to a conclusion that the accident was the beginning of Mr, Miller’s trouble.

Dr. VanEpps stated on direct examination that he did not think that the trauma described to him in the history of the case was the essential cause of the testicular tumor; that it is not possible in a case of malignant tumor to definitely state what was the cause of the tumor; that some malignant tumors are of traumatic origin. On cross-examination he stated however that if the patient was shown to have been in good physical health prior to the time of the injury, it would have a bearing on the question; that if he was apparently in normal condition before the accident, then the accident might have played some part in the subsequent developments. That in Mr. Miller’s case the malignancy did not only involve the right testicle but that the glands were involved up into the abdomen.

It further appears from the testimony of Dr. Smith that Mr. Miller suffered a loss of "thirty pounds in weight during the one and one-half to two months’ time following the injury.

Counsel for respondent contend that the case of Simpson Co. vs. Ind. Comm. 337 Ill. 454 cited by claimant is not applicable, but in this we caimot agree. We know that the medical profession is still earnestly seeking for knowledge as. to the cause of cancer, and they are disagreed as to what may or may not cause cancer in a particular case.

In the Simpson case the court said:

“The evidence shows that prior to the day oí the accident Carr was a strong, vigorous and active man. He had never been sick and had never required the services oí. a physician. The evidence of Hammond shows what happened at the time Carr pulled on the rope. He was never well after that time but grew steadily worse until his death. There is no question, under the evidence, but that he died from a lymphatic sarcoma. There is medical evidence which shows that the sarcoma was the result of the strain or sprain of the muscles of the back. If the death is fairly chargeable to an accident suffered in the course of his employment as an efficient cause, compensation may be awarded although the sarcoma existed prior to the accident, provided the sarcoma was exaggerated or accelerated by the injury, but there must be a direct relation between the accident and the subsequent death. (Springfield Coal Co. vs. Industrial Com., 303 Ill. 455; Jones Foundry Co. vs. Industrial Com., 303 id. 410; Keller vs. Industrial Com., 302 id. 610; Centralia Coal Co. vs. Industrial Com., 301 id. 418.) If the act of Carr in pulling on the rope either caused a sarcoma or aggravated or accelerated a sarcoma which already existed, and his death resulted therefrom, his widow was entitled to compensation."

The court finds in the case at bar:

That Charlie R. Miller died as the result of an accident which arose out of and in the course of his employment; that at the time of his injury he was married and stood in the relationship of loco parentis to his two stepchildren, being respectively of the age of eight and ten years at the time of said accident. (See Fader vs. Ind. Comm, 352 Ill. 115.) Both of said children and their mother resided with and were wholly dependent upon the said Charlie R. Miller for support and care.
That said employee had been in the employ of respondent for less than one year and would be governed in his employment, by the statute of two hundred (200) working days per year; that his wages were Forty (40) Cents per hour on an eight-hour basis and that his annual wages would therefore be computed at Six Hundred Forty ($640.00) Dollars. That he was entitled to temporary total compensation from the date of the injury September 25, 1935 to the date of his death, October 9, 1936, or a period of fifty-four (54) weeks at the rate of Twelve ($12.00) Dollars per week.
That four times his average annual earnings would amount to Two Thousand Five Hundred Sixty ($2,560.00) Dollars which said sum is increased under the1 provisions of paragraph 7 (h) of the Workmen’s Compensation Act to Three Thousand One Hundred ($3,100.00) Dollars as a minimum amount payable in case of death under the Act when there are two dependent children surviving.
That through the death of said employee, Charlie R. Miller, two causes of action have been created under the terms of Par. 8 (g) of the Workmen’s Compensation Act — one in favor of J. Binnie Wolfe, Administrator of the Estate of Charlie R. Miller, Dec’d, for the amount due for temporary total disability to the date of the employee’s death, and also for the medical and hospital bills incurred for his care; and the other in favor of his dependents, as a result of his death. (American Steel Foundries vs. Ind. Comm, 361 Ill. 582.)
That the sum of Twenty-seven ($27.00) Dollars has heretofore been paid by respondent to Dr. Harrison, leaving a balance of Twenty ($20.00) Dollars unpaid upon his bill.
We further find that the children’s share of the compensation due and arising out of the death of the said Charlie R. Miller should be paid to their mother, Edith Miller, for their support.
An award is therefore hereby made in favor of J. Binnie Wolfe, Administrator of the Estate of Charlie R. Miller, Dec’d, for temporary total disability due Charlie R. Miller to the date of the ■ latter’s death, in the sum of.................................... $648.00

To J. Binnie Wolfe, administrator of the estate of Charlie R Miller, dec’d, for the use of the following, to-wit:

Dr. B. A. Harrison.................................. $ 20.00
Dr. Clarence VanEpps .............................. 10.00
Dr. Fred M. Smith.................................. 50.00
Dr. Nathaniel G. Alcock............................. 75.00
For the use of University of Iowa Hospital, et ah, for
hospitalization.................................... 214.00
Dr. Dillon.......................................... 15.00
- $384.00
A further award in addition to the foregoing is hereby allowed to Edith Miller for the use of herself and the said children, in the sum of $3,100.00, less the sum of $648.00, hereinabove allowed as temporary total disability compensation, payable in weekly installments at the rate of $12.00 per week, making a net award in favor of the said Edith Miller of............................... $2,452.00

Of the said sum of $2,452.00 so due the said Edith Miller, there has heretofore accrued and is due to the 10th of February, 1939, the sum of $1,452.00 which said sum is payable at this time to the said Edith Miller, leaving a balance of $1,000.00, payable in eighty-two (82) weekly installments of $12.00 each and one final installment of $16.00.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation by Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof, ’ ’ approved July 3, 1938 (Sess. Laws 1938 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.


author: Mb. Chief Justice Hol-lebich

text:
    (No. 3219
    Jelmar Olson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, February 14, 1939.

    William G. Thon, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hol-lebich

delivered the opinion of the court:

For more than a year prior to December 24, 1937, claimant was employed by respondent as a painter at the Illinois Eye and Ear Infirmary at Chicago. On the last mentioned date, while standing on a sink washing walls, claimant slipped and fell, and thereby sustained a fracture of the neck of the right femur.

He was taken to the Illinois Research and Educational Hospital, an X-ray was taken, and the leg- placed in splints. He made a good recovery, sustained no specific loss, and no permanent disability, and returned to work on July 12th, 1938. He was paid his regular wages for the entire month of December, 1937.

From the facts in the record we find as follows:

1. That on December 24th, 1937, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

2. That on said date claimant sustained an accidental injury which arose out of and in the course of his employment.

3. 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.

4. That the annual earnings of the claimant during the year next proceeding the injury were $2,600.00, and his average weekly wage was $50.00.

5. That claimant at the time of the injury was a married man, and had no children under the age of sixteen years.

6. That all necessary first aid, medical, surgical and hospital services were provided by respondent, except as to $4.00 expended by claimant for X-rays taken on the day of the injury.

7. That as the result of the injuries so sustained, claimant was temporarily totally disabled from December 24, 1937 to July 12, 1938.

8. That under the provisions of Section 8, Paragraphs (a) and (b) of the Workmen’s Compensation Act, claimant is entitled to have and receive from the respondent, compensation for 28-3/7 weeks at Fifteen Dollars ($15.00) per week, to wit, Four Hundred Twenty-six Dollars and Forty-three Cents ($426.43), and in addition thereto is entitled to the sum of Four Dollars ($4.00) for money advanced by him for X-rays.

9. That all of such compensation has accrued at this time.

10. That the sum of Fifty Dollars ($50.00) has been paid to apply on such compensation.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Eighty Dollars and Forty-three Cents ($380.43).

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


author: Mb. Justice Linscott

text:
    (No. 3129
    Leo Rosenthal and Max Rosenthal, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 15, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Mubbay F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

This, is a claim for the sum of Ten Thousand Dollars ($10,000.00) filed against the State of Hlinois, wherein it is alleged that the death of Clara Rosenthal, which occurred in a State charitable institution, was caused by the negligence of the agents of the State. The only charge in a four page, single-spaced, typewritten complaint is: “My claim is based on negligence, foul play, false reports, and wilful hiding of facts as to my sister’s condition.”

The Attorney General moved to dismiss the complaint on the grounds that claimants failed to set forth a claim which the State of Illinois, as a sovereign commonwealth, should discharge and pay in that said claimants seek an award predicated upon liability in the respondent for the death of claimants ’ sister, an inmate of a charitable institution operated and maintained by respondent; said death alleged to have been caused by the wrongful and negligent acts and conduct of officers and employees of respondent employed at said institution.

The sister, Clara Rosenthal, was admitted to the Chicago State Hospital at Dunning, Illinois on November 10, 1932, and died at that institution on November 30, 1932. The claim was filed on October 8, 1937.

The complaint in this case is very lengthy and more or less argumentative and many immaterial things are set out, and no direct specific allegation is made of any conduct on the part of the officers or agents or employees of the State, which resulted in the death of claimants’ sister. Neither is it shown the claimants were dependent upon this sister. The complaint is drawn on the theory that mistreatment and improper care at the institution wasi the cause of the death.

The State, in the operation of a charitable' institution is engaged in a governmental function and is not liable for injury to, or death of, an inmate, resulting* from the negligent or wrongful conduct of its officers or employees.

Monahan vs. State, No. 3057;
Court of Claims Opinion filed Aug. 19, 1937;
Hollenbeck vs. Winnebago County, 95 Ill. 48;
Minear vs. State Board of Agriculture, 259 Ill. 549;
Tollefson vs. City of Ottawa, 288 Ill. 134;
Kinnare vs. City of Chicago, 171 Ill. 332;
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234;
Fitzmaurice vs. State, 6 C. C. R. 247;
Hazelvood vs. State, 6 C. C. R. 259;
Heise vs. State, 6 C. C. R. 267;
Derby vs. State, 7, 145;
Jefferson vs. State, 8, 228;
Parks vs. State, 8 C. C. R. 535.

The doctrine of “respondeat superior” does not apply to the State. The State, in the absence of statute, is not liable for the negligence or wrongful conduct of its agents, officers or employees.

Walen vs. State, 8 C. C. R. 501;
Jefferson vs. State, 8 C. C. R. 228;
Childress vs. State, 8 C. C. R. 223.

Where no liability exists upon which the State could be sued at law or in equity if it were suable, the Court of Claims has no jurisdiction to make an award.

Crabtree vs. State, 7 C. C. R. 207.

It will, therefore, be seen that respondent’s position must be sustained.

It is well established that the State in the operation of a hospital for the insane is engaged in a governmental function and not liable for the wrongful or negligent acts of officers or employees of such institution resulting in injury to or death of a patient or inmate.

It is set forth that claimants’ intestate, at the time of her death, was a patient of the state hospital for the insane located at Dunning, Illinois, and the claim is based upon the theory that the death was caused by mistreatment or improper care received at the hands of officers or employees of the institution.

The Court of Claims of this State' has repeatedly denied such claims. The legal question involved has in the past been given thoroug'h consideration. This Court has repeatedly held that in the management and operation of its charitable and penal institutions, the State is engaged in a governmental function, and has also repeatedly held that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents under the doctrine of “respondeat superior” in the absence of a statute making it so liable.

From the above and foregoing, we determine that there is no liability on behalf of the State, and the claim should be, and is hereby dismissed.


author: Mr. Justice Linscott

text:
    (No. 2438
    James P. O’Keefe Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 15, 1939.

    Crahen, Sullivan, O’Toole & Sullivan, for claimant.
    John E. Cassidy, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Claimant filed its petition for award in this case on July 19, 1934, in the office of the Clerk of this Court, alleging that it is an Illinois Corporation; that on December 16, 1932, it entered into a contract with the proper Department of the State of Illinois for Grade Separation Pavement Contract No. 5049, and referred to as “State Bond Issue, Route No. 4, Federal Aid Project, Section 430V-X” in Cook County.

A proposal had been made by claimant pursuant to a notice sent out by the Division of Highways to contractors. The notice contained information that sealed proposals for the improvement in question would be received by the Department of Public Works and Buildings at the Division of Highways, Springfield, Illinois, until ten o’clock A. M., October 14, 1932, and at that time publicly opened and read. A description of the work was given in this notice to contractors, and instructions were also given; through the office of the District Engineer, plans for this work were available for office examination only; and plans for this work could .be purchased by prospective bidders at the office of the Division of Highways, Springfield, Illinois. This notice also contained information that proposal forms could be obtained from the office of the Division of Highways, Springfield, Illinois, or from the District Engineer, and the Department reserved the right to reject any and all proposals. This notice was dated September 28, 1932 and signed by the Chief Highway Engineer.

Special Provisions were also forwarded to claimant prior to the time of the bid concerning “Standard Specifications for Road and Bridge Construction,” adopted January 2,1932, which govern the construction of State Bond Issue Route No. 4, and also this project, and the claimant was notified that in case of conflict with any part or parts of said specifications, the special provisions should take precedence and should govern.

In the Proposal of the claimant, it was proposed that the plans for the work were to be those prepared by the Chief Highway Engineer and approved by the Director of the Department of Public Works and Buildings on September 28, 1932, which plans are designated as State Bond Issue Route 4, Section 430 V-X Cook County, and which cover the work described in the proposal. The specifications were to be those prepared by the Department of Public Works and Buildings and designated as “Standard Specifications for Road and Bridge Construction” adopted by it January 2, 1932, with certain amendments specifically set out and of which, claimant had notice.

The contract was dated December 27, 1932, and entered into between The State of Illinois, by the Department of Public Works and Buildings and claimant. The second paragraph thereof provided as follows :

“2. Witnesseth: That for and in consideration of the payments and agreements mentioned in the proposal hereto attached, to be made and performed by the party of the first part, and according to the terms expressed in the bond referring to these presents, the party of the second part agrees with said party of the first part at his/their own proper cost and expense to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in full compliance with all of the terms of this agreement and the requirements of the engineer under it."

And the third paragraph of said contract provided as follows:

“3. And it is also understood and agreed that the notice to contractors, special provisions, proposal, and contract bond, hereto attached, and the plans for State Bond Issue Route No. 4, Federal Aid Project No. Section 430 V-X, in Cook County, dated September 28, 1932, and the ‘Standard Specifications for Road and Bridge Construction,’ adopted by the Department January 2, 1932, are all essential documents of this contract and are. a part hereof.”

The contract was to be performed by the following July 1, 1933.

Claimant contends that subsequent to the execution of the contract and in accordance with the terms and provisions thereof, it began the work and in all respects complied with the terms and provisions of the contract, and all of the work was completed by claimant on July 26, 1933; that prior to the execution of the contract and at the time the bids were submitted in reference to the cost of the work, certain plans and specifications were submitted to the claimant herein by the respondent; that the plan notes and blue prints submitted to the claimant had marked across the face in large type the word “Void” and that other provisions enumerated were obliterated. Claimant further contends that in accordance with the plans and specifications, it submitted its bill for the cost of said work on a unit basis.

Claimant also charges that during the course of the work, rock was éncountered, and it became necessary to drill,-blast and excavate the rock in the construction of a culvert at Station 498-67, and the expense of excavating this rock in this culvert amounted to $2,695.75.

Claimant also charges that under the terms and provisions of standard specifications for road and bridge construction, namely,- — Article 37.2 Construction Methods, it is provided that:

“If solid rock is encountered which is not shown on the plans or mentioned in the special provisions, additional compensation will be allowed therefor as provided herein under ‘Basis of Payment.’ Solid rock shall include all boulders measuring one-half (%) cubic yard and upwards, and all solid or hard ledge-rock which requires continuous drilling and blasting for economical removal.”

It is charged that the plans and specifications submitted to the claimant did not show solid rock would be encountered, and claimant, therefore, asks compensation on the basis of costs plus, and that in view of the fact that the blue prints and other specifications submitted were unintelligible and failed to show that the rock in question was to be removed without cost, by virtue of such facts, claimant is entitled to compensation in the amount above set forth. This, part of the contract was completed on February 23, 1933; that the claimant afterwards submitted a bill, but the same has not been paid or any part thereof.

Claimant is also requesting that it be allowed compensation for the reason that the State Department conducting this work had agreed that the Consumers Company was to furnish all material for the fill on this improvement; that agreement was as follows:

“The Consumers Company agree to furnish the fill material for the approaches to the grade separation structure and the State agrees to use the fill so furnished.
“(A) The material is now located on Consumers Company property at McCook, Illinois, and lies adjacent to the rim of the quarry of the Consumers Company at that place.
“(B) The Consumers Company agrees to load free of charge said material on equipment of the State or State’s contractor as material is called for, provided reasonable notification is given the Consumers Company when hauling operations are to begin.”

It is contended that Consumers Company were given the proper notice but failed and neglected to furnish and load the necessary material to claimant as called for under the terms of the contract and the delay was caused in part by reason of the fact that the Consumers Company was endeavoring to use old and defective equipment which from time to time became disabled and therefore the claimant was unable to secure the necessary material to proceed with the work; that from December 29, 1932 up until April 11, 1933, the break-down hours amounted to 173 hours; that during this time it was necessary for the claimant to maintain five ton dump trucks and chauffeurs to operate the same, and that the fair, reasonable and customary charge per hour for trucks such as were used by the claimant amounted to $3.82 per hour, or a total charge of $660.86; that a fair, reasonable and customary charge per hour for chauffeurs hire was $1.00 per hour, or $173.00; that it was necessary to expend gas and oil in maintaining the trucks during the 173 hours; that the total cost of the gas and oil was $104.49; that the cost of compensation insurance during said period of time amounted to $10.92, making a total charge of $949.27.

Claimant further contends that all during this time it was ready and willing to carry out its terms of the contract, and that the State has refused to pay this hill.

Claimant also charges that the State failed to furnish cement as agreed under the terms of the original contract, and the claimant having received no notification of any kind from the State that there was to be any delay in the furnishing of the cement, was ready, willing and able to proceed with the execution of the work, and by virtue of the fact that said material was not furnished by the State, it became impossible for the claimant to proceed with said work from May 29, 1933 up to and including June 8, 1933, and claimant charges that the labor and material furnished by claimant during this period of time, caused an expense to this claimant in the sum of $3,307.03, and none of these hills have been paid.

Claimant further charges that there is now due and owing to claimant, the sum of $6,952.05 for labor and materials furnished. ,

We will first determine whether or not claimant, for the reasons alleged in the complaint, is entitled to compensation on account of the rock removed in the construction of the culvert. Plans for the proposed improvement were put in evidence by claimant. There appears to be fourteen sheets of blue prints. Each page is approximately 23 inches wide and 36 inches long. The index to the sheets on the first page shows that page 2 contains general notes. The right half of this page is set off on white straight lines on a blue back ground in rectangular form. The white lines are twenty inches long and parallel to each other and the end lines are approximately fourteen inches long and parallel to each other. The matters set forth in the page are paragraphed and each paragraph has a word or two showing the title of the paragraph underscored about the center of the page. There are all told on this page, twelve different paragraphs and the third paragraph is marked in white letters one-half inch wide “Void,” and that is about the center of the page. It appears that someone has attempted to erase that particular paragraph which is marked “Void.” The letters of the word “Void” are placed lengthwise to the paragraph and parallel to either of the end lines. The letters of the word “Void” do not overlap or appear in any other paragraph. It is a matter of common knowledge that blue prints exposed to strong sun-light will fade in color. These blue prints appear to have had much usage, and it is quite probable they were exposed to strong light.

It also appears from the evidence that the proper State Department in its notice to contractors before the contract was entered into or figured upon, stated that the plans for the work were available for office examination only at the office of the Division of Highways, Springfield, and notice was given where plans could be purchased.

It also appears from Sheet No. 4 on the left hand side of the page, in letters clearly legible, the following:

Note: In Constructing the Trench for Laying the Proposed Pipe, Rock. May Be Encountered. See Special Provisions.

On the right hand side of the page, below the center thereof, appears three lines in letters of white on a blue back ground and clearly legible. Those lines are as follows:

1. Profile of crown of proposed improvement.
2. Profile of existing ground line.
3. Approximate profile of top of rock.

On the extreme right-hand side of this sheet, are the datum lines. From each of the lines above mentioned, arrows, consisting of white straight lines with an arrow on the end, directly connect each of the lines to the place which the line describes, and an index of this particular sheet is in the upper left hand corner of the first page, and is as follows:

Sheet No. 4 Plan & Profile Station 483 + 00 to Station 503 + 00.

Mr. James P. O’Keefe, President of plaintiff corporation, testified as follows: (Page 25 of the transcript.)

Q. Prior to the time that you entered into this contract, will you tell us briefly, what, if anything, was done?

A. Before we got the contract we went out and looked it over and when the bids were being sent in, we sent our bid in. We check the plans and — there was a quantity of rock in there, but—

Q. Before we go into that, Mr. O’Keefe, did you receive any communication from the State of Illinois, prior to the time you signed the contract, no notice—

A. We received notice that they would be letting on different jobs; that was the only job we bid in for.

On page 2 of the plans, (one of the paragraphs of which claimant testified that he took for granted were void), was the following with the headline underscored:

“Excavating For Culvert.
“Rock may be encountered in extending the existing culvert. If rock is encountered no extra compensation will be allowed.”

No where in the evidence does it appear that any misrepresentations were made to claimant concerning the rock or any effort of any kind made to mislead claimant. It appears from Mr. O ’Keefe’s own testimony:

A. Before we got the contract we went out and looked it over and when the bids were being sent in, we sent our bid in. We checked the plans and — there was a quantity of rock in there, but—

The plans and specifications were made a part of the contract, and the “Standard Specifications” were a part of the contract. This consists of a book of 368 pages. Under these circumstances, we feel that claimant is estopped from now making a claim for extra compensation on account of the rock, and public policy would deny claimant any rights for additional compensation for the reasons hereinbefore set forth.

“A party proposing the terms of a contract cannot be heard, to object to them.”
Faunce vs. Burke, 16 Pa. St. 469.
“In the absence of fraud or misrepresentations, when a party has executed a written contract, he is estopped to deny its terms.
“If a party to a contract had any objections to the provisions of a contract he signed, he should have refused to make it. Having executed it, his mouth is closed against any denial that it superseded all previous arrangements.”
Parish vs. United States, 8 Wall. 489, 19 U. S. (L. ed.) 472.

The word “Void” over the third paragraph on page 2 of the plans, clearly only applied to that paragraph. Nothing appears in the record that would lead claimant to assume that the word “Void” as appeared on page 2 invalidated that whole page and all paragraphs thereon contained. Particulary is this true when one considers the reference made to rock on page 4, which showed a profile of the part of the improvement known as the culvert, and the Standard Specifications which provides that rock may be encountered in extending the existing culvert, and if rock is encountered, no extra compensation will be allowed. We, therefore, hold that claimant is not entitled to this part of the claim.

It is next urged that claimant is entitled to compensation because the Consumers Company did not carry out its agreement to load free of charge, either material or equipment of the State or State’s contractor as material is called for, provided reasonable notification is given the Consumers Company when hauling operations are to begin. This company was to furnish the “fill” for the improvement and did advise claimant that the Consumers Company would load the material as called for, apparently meaning to put the filling material in the trucks of the State or the contractor, after having received notice. Due notice was given, but no limit was placed upon the number of trucks that were to be used in hauling the fill. When claimant entered into the contract with the State, it had notice of what the Consumers Company was to do by way of furnishing this fill, but the Consumers Company undertaking is quite vague and indefinite. No where does it appear that there was any consideration given to the State or that the State paid any consideration for the fill. No where does it appear that claimant ever discussed with the Consumers Company what means they were to use in loading this material, or the amount to be loaded in one day, but it is clear that if there is any default on behalf of the Consumers Company, claimant should look to it for reimbursement. The Consumers Company had agreed to load this material either for the State or its contractor at a place adjacent to the rim of the quarry of the Consumers Company.

The law is settled in this state that if a contract is entered into for the direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right of recovery thereon. This rule has been announced without variation in numerous cases decided by the Supreme Court of Illinois. ' See Carson Pirie Scott & Co. vs. Parrett, 346 Ill. 252, and cases therein cited.

Compensation to claimant on this contention will, therefore, be denied.

Lastly, the claimant requests compensation because it was delayed eleven days on account of the failure of the State Department to furnish cement as provided in the contract. The contract required that claimant should fully perform his contract by July 1, 1933. It did not fully perform its contract for twenty-five days thereafter, or until July 26, 1933, so claimant was in default.

Mr. Hoehl testified for claimant and he was asked these questions and made the following answers: (Transcript 46.)

Q. Did any information come to you before you began paving the highway, Mr. Hoehl, that the State might not be able to furnish the cement?

A. No.

Q. No word came to your Company?

A. As far as I know, no information reached us.

Q. As far as your own information goes, then there was never any trouble between the Cement Companies and the State of Illinois, about furnishing cement, is that right?

A. Yes. I mentioned that before.

Engineer Holloway testified for the State (Transcript 61) that various times before claimant was ready to do any paving - on this job he had had conversations concerning the furnishing of cement; that he talked to Mr. 0 ’Keefe and Mr. Hoehle; that he had been informed by the proper department that there would be a delay in furnishing cement.

A letter was sent to claimant under date of May 5, 1933, and is known as Respondent’s Exhibit No. 1. That letter is as follows:

“As you undoubtedly are aware by this time, the State is having some difficulty in furnishing cement for the work for which you have a contract. We do not know at this time just when this situation will be cleared up.
“The purpose of this letter is to caution you regarding starting any new work or operations which will require cement, until such time as the cement situation is definitely cleared up. As soon as we have knowledge that cement will be available we will so inform you.
Tours very truly,
Kendrick Harger,
Acting District Engineer.”

Neither of the parties to this contract contemplated that the State should furnish any cement for claimant immediately after the contract was entered into, which was in the month of December, 1932. It was well known that the claimant did not need cement at that time of the year or for sometime thereafter and until many other things were done. The fill for this overhead had to be made and properly packed. It appears that Utilities Companies, such as the Telephone Company, had certain rights which had to be respected. The evidence shows that the first cement was furnished during the first week of June, 1933. The evidence also conclusively shows-that the telephone Company was installing cables over this improvement which they had a right to do under the contract, and that other work was being done by the claimant on this improvement up to about that time. No where does it appear that claimant was delayed in removing its machinery to another job or was delayed in another job by reason of the failure of the State to furnish cement. The evidence does show that the claimant placed its concrete mixer and other paving appliances on the job on May 29,1933, four days after it had notice from the State that there would be a delay in furnishing cement. It was a matter of common knowledge that the cement producers were demanding exorbitant prices from the State for cement. The people of the . State of Illinois were vitally interested. It might well be assumed that cement manufacturers knew that the State had agreed to-furnish cement to numerous contractors and that contracts were then in existence for public improvements which the State had entered into. It also might well be assumed that the public officials of the State of Illinois, through its Chief Executive, the Governor of the State of Illinois, rightfully felt that the action of the cement manufacturers or dealers was such as to make those public improvements so costly as to be prohibitive and against public policy.

The meaning of the phrase “public policy”.is vague and variable; courts have not exactly defined it, and there is no fixed rule by which to determine what contracts are repugnant to it. It is impossible to define with accuracy what is meant by that public policy for an interference and violation of which a contract may be declared invalid. It may be understood in general that contracts which are detrimental to the interests of the public as understood at the time fall within the ban.

Pope Mfg. Co. vs. Gormully, 144 U. S. 224, 36 L. ed. 414.

Courts have however, frequently approved Lord Brougham’s definition of public policy as the principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare. This principle, it has been said may be termed “policy of the law or the public policy in relation to the administration of the law. ’ ’

People vs. Monroe, 349 Ill. 270; People ex rel. Peabody vs. Chicago Gas Trust Co. 130 Ill. 268;

The question what is public policy in a given case is as broad as the question what is fraud in a given case and is addressed to the good common sense of the court. The relations of society become from time to time more complex. Statutes defining and declaring public and private rights multiply rapidly. Public policy often changes as the laws change, and therefore new applications of old principles are required.

Wakefield vs. Van Tassell, 202 Ill. 41.

The exorbitant price demanded by cement manufacturers effected the whole State. of Illinois, and it must be conceded that such action was injurious to the public. This claim for damages arising- from the fact that the State could not furnish cement must be denied on the grounds of public policy.

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

Assuming for the sake of the argument that everything was in readiness for claimant to use cement. No paving was laid for the reason that the State did not furnish cement for that purpose. The State, through its Chief Executive, was objecting to the exorbitant prices that cement manufacturers were attempting to charge the State. Owing to the unusual situation in this regard, the press of the State, as news items, daily reported the controversy, which lasted some considerable time, and the subject was much discussed privately, but it is said that the State entered into this contract with claimant and agreed to furnish the cement when claimant was ready. The question is: Should the State be held to the same rules as any private party entering into a contract of this kind?

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

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

In the Jones Case, 1 Ct. Claims, 388, the court said: “The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defendants.”

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

The action of the State Highway Department in denying these claims is held to be proper, and the claims will, therefore, be denied.


author: Me. Justice Linscott

text:
    (No. 2936
    Illinois Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1939.

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

delivered the opinion of the court:

The claimant filed its complaint on the 31st day of July, 1936, alleging that for many years last past it had been lawfully engaged in the business of a common carrier of freight and passengers for hire to and from points in the State of Illinois, and to and from points within the State of Illinois to points within the State of Illinois to points without the State of Illinois, and in the general business of conducting a railroad; that it owns a tract and right of way adjacent to the grounds of the Kankakee State Hospital, Kankakee, Illinois; that for the purpose of serving the Kankakee State Hospital, claimant agreed to lay out and construct a switch track or tracks connecting the main track with coal storage plant, power plant, generating plant and other buildings belonging to the State of Illinois at the Kankakee State Hospital.

It is further alleged that in order to maintain the tracks and equipment so as to be in safe and proper condition for operation and for service to the State Hospital at Kankakee, it became necessary to make certain repairs on the switch track and roadbed; that the claimant, made the necessary repairs and replacements as are set forth in an itemized statement attached to the complaint. It is also alleged that such repairs were made at the direction and under the order of the officer there in charge of said track and grounds for the State of Illinois, pursuant to the custom and practice in such cases.

It is also alleged that after the work was done the items charged were approved and accepted by the officer in charge of the premises representing the State of Illinois.

A full and complete blue print showing the location of the tracks, and an itemized statement for the materials and services furnished, were attached to the complaint. The total bill amounts to $1,053.01.

The evidence shows there were 3,460 feet of track on the hospital grounds, and that such track was in a very bad state of repair; that it was unsafe to take a heavily loaded car or an engine over the track; that the ties were rotted and the rails were very apt to spread and as a matter of fact the rails had become too far apart. The evidence conclusively shows that this track was unfit for use; that it was necessary to have the track in proper repair because the hospital with a population of about 4,000 inmates, plus its officers and attendants, daily needed, in the colder months, shipments of coal, and during all months, shipments of necessary supplies. The track was in daily use. Claimant repaired this track and made it safe to use — put many new ties in it, straightened the rails, furnished the spikes, plates and all necessary repair.

This track was originally constructed at the time the hospital was built — about 1878. The track west of Highland Avenue is maintained by the State. John Gallagher was the track supervisor in the employ of claimant. Sam Defiglia was the section foreman who had charge of the track involved. When the track needed repairs the section foreman would report to the supervisor, John Gallagher. Mr. Gallagher would then take it up with the hospital authorities for permission to make repairs on the track. The hospital was billed the actual cost, plus ten per cent. It was a part of Mr. Gallagher’s duties to report the condition of the tract. For many years last past, the authorities of the State Hospital at Kankakee would acknowledge the bill and cause it to be paid. Mr. Gallagher, the superintendent, dealt direct with the Ground Superintendent. Mr. William L. Eieck, a resident of Kankakee, was Superintendent of Grounds at the time the repairs in question were needed. His title was Ground Superintendent. Among other things, it was a part of his duty to see that this track was cared for. The track served the power house, boiler room and warehouse, where supplies were received by the carload and unloaded on that track. All coal, grocery supplies and general supplies were brought in over that track. Mr. Eieck testified that he remembered that the section foreman advised him that the track was in need of repair and asked for permission to make the repairs, and he, Eieck, as Ground Superintendent, authorized him to go ahead, and gave him a letter, a copy of which letter is marked Exhibit One and is as follows:

“Illinois Central Railroad
Gentlemen: You are hereby allowed to proceed with the repairing of our' switch as per the recommendation of your foreman, Sam Defiglia.
Kankakee State Hospital,
W. L. Rieck,
Ground Superintendent.”

Pursuant to this letter, the claimant proceeded to make repairs as it had done many times in the past.

The Attorney General contends that Rieck had no authority to authorize the repairs; that under the statute, the Director of the Department of Public Welfare had such power, and had power to examine every plan and specification for new construction or repair exceeding in estimated value one thousand dollars, and shall examine into every plan and specification of new construction or improvement, if such improvement exceeds two hundred dollars in cost: Provided, that all contracts for new construction, improvement or repair must be approved by the State architect or his consulting engineer and by the board, if they exceed in value one thousand dollars, and by the fiscal supervisor, if they exceed in value two hundred dollars: Provided, further, that such approval is also required when such work is undertaken by the management of any institution without contract. There is also a provision pertaining to emergency, such as the breaking down of equipment.

As we view this matter, an emergency did not occur. The track was allowed to become in a bad state of repair by the neglect of the State employees located at Kankakee Hospital. The condition of the tract was not the result of an accident but the natural wear and tear that would occur to any track, and must have been known to all parties concerned. Here is a statute dealing directly with the subject in question, and this case illustrates the necessity of such a statute. The authority given the Illinois Central Railroad Company to make the repairs was so vague and informal that only those of the utmost integrity and good faith, such as the claimant, would fail to take advantage of the situation. Certainly, had the claimant been less honorable, under the circumstances, the State would have received a much larger bill. This manner of making repairs had been going on for many years, but it is the generally accepted rule that any usage or custom in conflict with an existing statutory enactment is void.

We cannot make an award in this case for these materials and repairs because of the statute.

In the case of Green & Sons Company, a corporation vs. State of Illinois, 9 C. C. R. 218, we held that there can be no recovery of amount fixed in express contract for services rendered thereunder, where the said contract is prohibited by law and a subsequent action will not lie to recover on quantum meruit for reasonable value of said services rendered under said contract on an implied contract to pay for same as no contract will be implied in a case where an express contract is forbidden and an award based on such claim must be denied. In that opinion we referred to the exhaustive annotation to the case of Johnson County Savings Bank, et al. vs. City of Creston, (212 Iowa 929) reported in 84 A. L. E. 926. Many additional authorities may be found in a similar annotation to the case of United States Rubber Products vs. Batesburg, 110 A. L. R. 144.

Counsel for claimant filed an able and persuasive reply brief but we are compelled to hold that whoever deals with a municipality does so with notice of the limitations on it or its agents’ powers. All are presumed to know the law, and those who contract with it or furnish it supplies do so with reference to the law, and, if they go beyond the limitations imposed, they do so at their peril. This may seem unjust to the claimant but the ansiver to that is: That it is better that a private individual suffer as plaintiff must do in this case than have this court let doAvn the bars and permit statutory enactments for the benefit of the public at large to be ignored so that the unscrupulous may unfairly and unjustly obtain public moneys. We cannot recognize or put the stamp of approval on the actions of the State officials in entering into such an informal contract.

The claim of the plaintiff, therefore, must be denied.


text:
    (No. 2538
    William Wasson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 14, 1939.

    Charles E. Lee, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

It is claimed that William Wasson, while aiding in the removal of a stairway was severely injured about the back of his head, neck and shoulders when the staircase slipped and fell on him on July 20, 1934. It is charged that the accident was witnessed by a number of fellow workers. Notice was given to the Macon County Illinois Emergency Belief Commission, and claimant was treated by Dr. W. P. Davidson of Decatur, Illinois. At the time of the accident claimant was being paid at the rate of $1.10 per hour but was only employed partial time, receiving $39.60 each two weeks. It is charged that from the date of the injury, July 20,1934 until November 13, 1935, claimant was “practically incapacitated from work of any sort” and that from that time until the date of the hearing he had worked occasionally under the Emergency Belief.

At the time of the accident he was married and stood in the relationship of parent to four children under sixteen years of age.

Claimant is asking Thirty-one Hundred Dollars ($3100.00) based on total and permanent disability as an employee of the Illinois Emergency Belief Commission.

It is true that at least five other men were working with him at the time of the removal of the staircase in question, but none of them knew of any accident to the claimant or of any injury received by him although they were there all of the time, and none of them knew of the staircase slipping or falling or of anything unusual having occurred during the removal of the staircase. Claimant finished his day’s work and worked a day or two after that, and then he was directed to consult Dr. W. P. Davidson of Decatur, Illinois, and later Dr. F. E. Smith and his associate, Dr. Pence. He has received direct relief, having no employment and not being employed because of his alleged injuries. Medical services have been rendered to claimant on order of the Macon County Emergency Relief Committee.

The alleged accident did not leave any objective symptoms. The testimony discloses that there were no lacerations, abrasions, swellings or discolorations.

Under the facts in this case, a claim for award must be denied. Before one may recover a claim of this kind, the burden is upon him to prove by a greater weight oh preponderance of the evidence that he suffered an accident and that he received an injury.

Section 145, Chapter 48, Illinois Revised Statutes 1937 sub-paragraph (i) 3 states that:

“Provided, further, that all compensation payments named and provided for in paragraphs (b), (c), (d), (e) and (f) of this section, shall mean and be defined to be for injuries and only injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.”

Claim for award will, therefore, be denied.


author: Mb. Justice Yantis

text:
    (No. 3022
    Clement Warkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

It appears from the record that claimant went to work in the highway department on December 19, 1935 as an extra man in grubbing trees. He worked December 19th, 23rd, 28th, 30th and 31st. On the later date they were on S. B. I. No. 89 near Kasbeer grubbing ont trees under the direction of James Beilly. They had! cables and ropes attached to a tree and stretched across the hardroad ready to pull the tree over. The traffic was heavy and according to the foreman they waited to let as many cars get by as they could. One car came along and when the driver seemed impatient, the workmen unhooked the tacklebloclcs and let them down flat on the slab; then motioned to the driver to go ahead. When he drove over the ropes one of the ropes caught on the car and jerked claimant’s feet out from under him and dragged him about ten or fifteen feet. There were several inches of snow on the ground at the time, and when claimant got to his feet Mr. Beilly asked him if he was hurt and whether he should go to a doctor. Claimant said “No, that he was not hurt and would be all right.” He then returned to his work and finished the day. Foreman Beilly had received orders to lay off the extra men at the close of work that day and claimant was notified before leaving the job. Two or three days after this Foreman Beilly was told by a filling station attendant that claimant desired to see him. Beilly called at Warkins’ home and was told by the latter that his finger hurt. Beilly took the doctors’ copy of the accident report and went to see the doctor and had the latter make out the report according to the facts as given them. This report under date of January 7, 1936, signed by Dr. J. M. O’Malley, shows the nature of the injury to be, ‘ ‘ Contusion of muscles of right leg below the knee and injury to the knee joint.” The treatment prescribed was, “Best, hot applications and bandaging,” and the length of his disability was estimated at “one week.” A letter to Mr. Goeke of the highway department from Dr. O’Malley states that he saw the patient but once and that his bill for services to claimant had been paid. The only evidence of any payment is the amount of $1.00, paid by Mr. Goeke and this would indicate that only one treatment by the doctor was necessary or was incurred.

Claimant contends that he was disabled until the last of February and that he should be entitled to $1.60 per day for the months of January and February, or a total of $94.40.

Unless the period of temporary total incapacity for work lasted for more than six working days immediately following the accident, no award is due under the terms of the Workmen’s Compensation Act.

We find from the record that claimant suffered an accident which arose out of and in the course of his employment. While he was apparently unemployed thereafter for a period of two months, the record does not support a finding that claimant suffered any temporary total incapacity for work as a result of such accident for a period in excess of six days thereafter. Dr. O’Malley’s report, dated January 7, 1936, shows that patient would be able to return to work in one week, and that there would be a complete recovery within that time of the injuries then complained of.

On April 29, 1936 Dr. O’Malley wrote a letter to Mr. G-oeke of the highway department, stating that he saw the claimant but once, and that in his opinion at that time he should have been able to return to work in a week. In this letter he further stated that, “From the evidence I now gather it appears he was disabled for a much longer time * * * but he did not come to see me and I was not aware of his condition.”

In his testimony at the hearing on March 12, 1937, Dr. 0 ’Malley stated that at the time he made out the above report and at the time he wrote the above mentioned letter, he thought the statements therein made were correct, and that to the best of his opinion they were correct. Apparently the only evidence as to claimant’s condition that Dr. O’Malley had, as referred to in his letter, were statements made to him by the claimant on or about the time the doctor wrote the letter in question.

Foreman Reilly testified that immediately after the accident claimant got to his feet and when asked if he was hurt said, “Ño, he thought he would be all right,” and that claimant proceeded to work the balance of the day. That he laid him and the other extra men off that evening as that was the last work he had for them at that time.

There is no competent and sufficient evidence in the record upon which to support an award for any period in excess of two weeks.

Claimant was unmarried and had no children under sixteen years of age at the time of the accident, and his rate of pay would bring him within the minimum allowance of Seven and 50/100 Dollars ($7.50) per week compensation. As no compensation is payable for the first week’s disability, when such disability is for a period of less than 30 days, an award can be allowed herein for only one week.

An award is hereby made in favor of claimant on the basis of Seven and 50/100 Dollars ($7.50) per week for one weeks’ disability from January 7, 1936 to January 15, 1936 in the sum of Seven and 50/100 Dollars, ($7.50) in full satisfaction for injuries growing out of said accident.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Com-., pensation Claims of State Employees and Providing’ for the Method of Payment Thereof,” approved July 3, 1938 (Sess. Laws 1938 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 Eoad Fund in the manner provided for in such Act.


text:
    (No. 3342
    Herman Perry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Harris B. Gaines, for claimant.
    John E. Cassidy, Attorney General; Murray’ F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

On October 5,1933 claimant became an inmate of the Illinois State Prison at Joliet, Illinois. On October 19, 1935 while on the prison grounds he was struck by some railway cars that broke loose and ran down grade on a prison track. His complaint alleges that by such accident he suffered a broken left leg, his forehead was cut and injured, his side and back were injured and that he received internal injuries, all of which have left him permanently crippled.

The Attorney General has filed a motion to dismiss the complaint for the reason that same does not state any matters upon which an award could be based.

It is the established law and this court has many times held that,

“The State in the maintenance and operation of its penal institutions, is engaged in a governmental function and is not liable for injuries to inmates occasioned by the wrongful or negligent conduct of its officers, agents, servants or employees.”
Schaeffer vs. State, 9 C. C. R. 94;
White vs. State, 9 C. C. R. 259;
Monohan vs. State, No. 3057, C. of C. (Unpublished.)

The complaint also recites that claimant was paroled from said Institution on the day of the injury. The question of when he was paroled is immaterial to the decision in the case as the rule would apply in any event. The complaint is dismissed.


author: Mr. Justice Tantis

text:
    (No. 3340
    John W. Haase, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 15, 1939.

    Trimborm & Babb, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant was involved in an automobile accident on July 27, 1938 on Mannheim Road near Touhy Avenue in Cook County. His complaint recites that while exercising all due care and caution for his own safety and that of others lawfully upon the highway, one Fred Bowen then operating a State-owned truck assigned to the State Military Division, so carelessly, negligently and unlawfully operated such truck that he caused same to collide with claimant’s car. That as a result of such accident claimant suffered cuts, bruises and broken bones and was unable to attend to his duties for a period of nine weeks for which he expended Fifty ($50.00) Dollars for medical treatment and lost Five Hundred Eighty-five ($585.00) Dollars in wages; further, that his motor vehicle was damaged to the extent of One Hundred Ninety ($190.00) Dollars; that said accident was caused by said Bowen failing to come to a full and complete stop at the stopsign then and there erected at the crossing at Mannheim Road, and because said truck was traveling at a high and dangerous rate of speed and being then and there operated with faulty brakes.

The Attorney General has filed a motion to dismiss the complaint because same is predicated upon alleged negligent and wrongful conduct of an agent or servant of respondent, and that there is no law by which the latter could be held to respond in damages- for the negligent and tortious acts of such agent or servant. The law has been definitely settled and this court has frequently held that,

“In the organization, maintenance, operation and training of the' Illinois National Guard the State is engaged in a governmental function and is not liable for the negligent or wrongful acts of its officers, agents, servants, employees or members of the Illinois National Guard.”
Peterson vs. State, 8 C. C. R. 9;
Curry vs. State, 9 C. C. R. 6.

No recovery could be authorized upon the facts stated in the complaint and the motion of the Attorney General is therefore hereby allowed. Claim dismissed.