text:
    (No. 3069
    Ruth Ratliff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, March 25, 1938.

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

delivered the opinion of the court:

On October 29, 1936 claimant was engaged in the performance of her duties as a house mother at one of the cottages of the Illinois Soldiers’ and Sailors’ Children’s School, Normal, Illinois. On the day stated while attempting* to discipline one of the children, a scuffle ensued in which the little finger of claimant’s left hand was broken. Immediate medical attention was given and claimant submits that the fracture was properly cared for, but a contracture developed and resulted in Claimant’s, finger being stiff, and as she alleges it is practically useless in the performance of the duties required of her, and in the use of her hand in her former occupation as a radio performer in playing a g'uitar. In attempting to obtain relief from the injury, claimant spent one week at the Research and Educational Hospital in Chicago, under the care of Dr. H. B. Thomas, and she seeks reimbursement for railroad fare and expense in connection therewith of $17.55 and $25.00 for medical care rendered to her by Dr. Ray W. Doud, of 205% North Street, Normal, Illinois, in addition to an award for spcific disability for the loss of use of her finger.

The respondent submits as the first question, whether the employment of claimant was of such a nature as to bring* her under the benefits of the Workmen’s Compensation Act. Under the previous rulings made by this court as to similar employments in similar institutions, and under the evidence appearing in the record, we find that Respondent" was operating* said institution and that claimant was employed within the terms of the Workmen’s Compensation Act; that the accident arose out of and in the course of her employment, and that she is entitled to the benefits of said Act. At the time of the accident claimant was receiving a salary of Fifty ($50.00) Dollars per month and a maintenance allowance of Twenty Four ($24.00) Dollars per month. The claim was filed within five months after the date of the accident. Claimant was necessarily absent from work as a result of said injury for twelve (12) days, and received full pay for that period. Under Section 8 (d) of the Act, an injured employee is entitled to compensation for total temporary incapacity from the day following* the injury, only in case such total temporary incapacity lasts for a period of more than thirty (30) days thereafter. In the present instance such temporary total incapacity only lasted for twelve (12) days, and under Section 8 (b) claimant would not be entitled to compensation for the first seven days. She was therefore entitled to receive compensation for only five-sevenths (5/7) of a week, figured on the basis of $8.54 per week compensation, making $6.10 for the time she was disabled. During this period of twelve (12) days she received her wages in full, which on the basis of $17.08 per week amounted to $29.28, part of which was in cash and part in maintenance. Allowing* her maintenance during the entire period of disability, she would have been entitled to $6.10 compensation and $9.49 maintenance, or a total of $15.59. Having received cash and maintenance of $29.28 for such period, she has received an over-payment therefor of $13.69, which amount should be deducted from any award now to be made. Under Section 8 (a), providing for necessary first-aid, medical and surgical services, an allowance should be made for the $25.00 medical bill and for the sum of $17.55 necessarily expended in obtaining such care. The record does not disclose that claimant had any dependent children under sixteen years of age at the time of the injury, and compensation is based upon one-half of an average weekly wage of $17.08, or $8.54 per week. Claimant contends that her little finger on the left hand is totally and permanently disabled, but except for her own statement, the most favorable testimony for claimant as to the loss of use of her fourth or little finger is that of Dr. Bay W. Doud who testified that the stiffness or ankylosis of the finger joint limits the extension of the finger to about forty-five (45) degrees; that such condition is permanent, and that the disability results in about twenty (20) per cent loss of use thereof.

The compensation to be paid under the Act for the complete loss of use of such finger is on the basis of twenty (20) weeks. Under Section 8 (d) 7, she would be entitled to twenty (20) per cent loss of use of such finger, or to one-fifth (1/5) of twenty (20) weeks, or four (4) weeks times fifty (50) per cent of her average weekly wage, or $34.16. Deducting the $13.69 over-payment of temporary total disability leaves a balance of $20.47 in claimant’s favor.

An award is hereby allowed in favor of claimant for the said sum of $20.47; also for $17.55 expenses incurred in connection with medical treatment, making a total of $38.02, and a further award to claimant for the use of Dr. Bay W. Doud, for medical services, in the sum of $25.00.

The full amount of such compensation has heretofore accrued, and is payable in full at this time.

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


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 3016
    Leona Murray, Widow of B. Warren Murray, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March, 25, 1938.

    Cassidy & Knoblock, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case was filed by Leona Murray, widow of B. Warren Murray, deceased, and alleges that B. Warren Murray, her husband, was employed by the State of Illinois, from the 24th day of April, 1934, as Junior Engineer in the Division of Highways, Department of Public Works and Buildings, until the time of his death on September 18, 1936; that for more than one year prior to September 18, 1936, decedent had received a salary from the State in the sum of One Hundred Fifty Dollars ($150.00) per month; that on the 17th day of September, 1936, he had an appointment at eight o’clock A. M. at the Mac Asphalt Company, McCook, Illinois, to inspect the mixing of mackasphalt, which was to be used upon a certain State highway at Sterling, Illinois; that he left his home about seven o’clock in the morning and about seven thirty o’clock in the morning, he collided with a truck at the intersection of Ninety-fifth Street and Harlem Avenue, Chicago, Illinois; that the truck was driven by Julius Caskasy, who lived at 1313 Van Burén Street, Gary, Indiana; that the decedent was removed from the scene of the accident and taken to the Little Company of Mary Hospital, where he died at noon on the following day; that a coroner’s jury returned a verdict of accidental death.

Claimant further alleges that decedent was employed as inspector of miscellaneous materials, and went from place to place where his services were needed, especially on asphalt; that Julius, Caskasy carried no public liability insurance and has no financial standing.

The State paid Drs. M. A. Dolan, and Eric Oldberg of Chicago for medical services and paid the hospital fees, for expenses incurred between the time of the accident and his death; and also, one S. W. Steen of Chicago was paid for nursing’ services.

The facts are all stipulated.

The duties of the decedent were directly connected with and a part of the construction of the highway. He inspected and examined materials which were used in the construction of highways, and he also inspected, and examined highways in the course of their construction, and at the time of his death he was enroute to make an inspection at the Mac Asphalt plant at McCook, Illinois, of certain materials which were to be used in the construction and building of certain highways for the State.

For several years the State of Illinois has been engaged in the enterprise or business, of maintaining and repairing’ its hard-surfaced, concrete highways. In this respect the State of Illinois comes under the Workmen’s Compensation Act because in this work its employees in so performing their duties in repairing and maintaining hard-surfaced concrete highways and in constructing highways used and manipulated sharp-edged cutting tools and implement, such as spades, shovels, picks, and moving machines which have sharp-edges ; and also employed numerous truck drivers.

Forest Preserve District of Cook County vs. Industrial Commission, et al. 357 Ill. 389;
The City of Rock Island, vs. Industrial Commission, et al. 287 Ill. 76.

In this case actual notice was given to the State on the day of the accident and the claim was filed within apt time.

The claim is made for $4,000.00 compensation, $50.00 doctor bill, $23.62 hospital bill, $21.00 nursing and $425.00 funeral expenses. There is no provision in the law for us to allow the payment of funeral expenses and that part of the claim is denied.

This court has held and also the Supreme Court of the State of Illinois that the construction and maintenance of a hard-surfaced paved public highway is the maintenance and construction of a structure under the Workmen’s Compensation Act.

City of Rock Island vs. Ind. Com. 287 Ill. 76, 79;
Bond vs. State, 7 C. C. R. 198, 199;
Pennington vs. State, 7 C. C. R. 253, 255.

There appears to be no dispute that the decedent at the time of the accident was an employee of the State; that notice was had by the State and the claim was filed within six months after the accident. He was apparently employed on State highway maintenance and construction work and was under the provisions of the Act as previously decided by this court.

Under Section 7a of the Workmen’s Compensation Act, if the employee leaves any widow, child or children whom he was under legal obligations to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event than two thousand five hundred dollars, and not more in any event than four thousand dollars, shall be allowed. His annual earnings were $1,800.00 per year. He left no child under sixteen years of age, and all doctor and hospital bills have been paid.

An award, therefore, in the sum of Four Thousand Dollars ($4,000.00) is made to claimant, payable at the rate of Fifteen Dollars ($15.00) per week from the time of his death.

Accrued compensation is as follows: from September 18, 1936 up to March 4, 1938, being 76 weeks, the sum of One Thousand One Hundred Forty Dollars ($1,140.00) now payable; the balance to be paid at the rate of Fifteen Dollars ($15.00) per week. Any right to receive money hereunder, shall be extinguished by the re-marriage of the widow.

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


author: Mr. Chief Justice Hollerich

text:
    (No. 3027
    Casper Siekmann, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Turner, Holder & Ackerman, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is the owner of a small triangular tract of land situated at the intersection of S. B. I. Routes 12 and 157 at ' French Village in St. Clair County, said premises being improved by a one-story frame dwelling house with tar-paper roof and sides, and by a filling station.

The original Route 157 extends in a northerly and southerly direction a short distance east of claimant’s property. S. B. I. Route 12 extends in an easterly and westerly direction just south of claimant’s premises, and formerly intersected said S. B. I. Route 157 at grade. Some time prior to February 4th, 1936, the Department of Public Works and Buildings, Division of Highways, decided upon a grade separation, and plans and specifications were prepared for the elevation of S. B. I. Route 157 so that it would cross said Route 12 and several railroad tracks immediately adjoining said Route 12 on the south, at an elevation of about twenty (20) feet above the level of the ground on which claimant’s property was located. Such elevated roadway was constructed a short distance west of the original S. B. I. Route 157 and adjoins the premises of the claimant on the west; in fact, a portion of the west side of claimant’s premises were taken for right-of-way purposes for the construction of such elevated roadway.

There are some bluffs to the north and east of claimant’s property, and prior to the construction of such elevated roadway, the surface drainage from the bluffs was over claimant’s property to the west. As the result of the construction of such elevated roadway along the west side of claimant’s property, such property was left in a pocket.

On July 18th, 1936 a very unusual rainstorm occurred, something in the nature of a cloudburst, which lasted for about thirty minutes. The water from the bluffs flowed onto claimant’s property in large quantities, and on account of the construction of the aforementioned elevated roadway, it did not flow off as usual, but accumulated to the depth of ten or twelve inches on claimant’s property. When the water subsided a large amount of mud and silt was left on claimant’s premises, whereby he claims that his property has been damaged to the extent of $335.00.

Prior to the construction of such elevated roadway, claimant had a tile drain running in a southwesterly direction from his property under S. B. I. Route 12, hut in the course of the construction of such elevated roadway, said tile drain was broken by the continual passing thereover of the heavy trucks of the several contractors and the public, so that it was not operating at the time of the aforementioned rainstorm.

On or about February 4th, 1936 claimant and his wife, by quit-claim deed, for the consideration of $1,748.00, conveyed to the County of St. Glair, for public road purposes, a tract of land off of the west side of the premises then owned by him. After the description of the real estate conveyed, such deed contained the following provision: “All the above being situated in the County of St. Clair, in the State of Illinois, hereby releasing all claims to damages to land not taken, owned by the grantors, by reason of the construction and maintenance of said public road.” The work of construction was commenced in March, 1936, and continued during practically all of such year.

The plans and specifications for the construction of such elevated roadway were examined by claimant before he executed the deed in question. He states that such plans contained no provision for the construction of a tile drain; and admits that he forgot about that matter when he made the deed. He states that after the work of construction commenced, but before the aforementioned rainstorm, he complained to the representatives of the respondent in charge of the work, about the absence of a tile drain, and was assured that the matter of drainage would be taken care of when the work was completed; also, that a tile drain was constructed after the heavy rain of July 19th, and that he has had no difficulty with surface water since that time.

The complaint herein is based upon the negligence of the servants and employees of the respondent in the construction of the elevated roadway in question, but claimant after-wards shifted his position, and now bases his right of recovery on Article 2, Section 13 of the Constitution.

The Attorney General contends that the construction of the elevated roadway in question was a governmental function, and that the respondent is not liable for the negligence of its servants and agents in connection therewith; also, that the claimant is barred by the provisions of his aforementioned deed and release from the recovery of any damages to property not taken.

In reply to such contentions, claimant states:

“It is our contention that the compensation as paid did not include any damages that arose subsequently out of the construction of this public improvement.”

This court has held in numerous cases that in the construction of its hard-surfaced highways, the State is exercising a governmental function, and that in the exercise of such functions, the State is not liable for the acts of its servants and agents. However, where private property is taken for public use without just compensation, in violation of Section 13, Article 2 of the Constitution, another question is preseuted, and notwithstanding the position taken by claimant in his complaint, we will consider his claim in the light of the aforementioned constitutional provision.

It is apparent that claimant’s right to an award depends upon the legal effect of the deed and release in evidence. It is well settled in this State that where there is a deed of conveyance, the legal effect of such deed is the same as a judgment in condemnation. The consideration for the deed constitutes a release of all damages, including damages to property not conveyed, which results from the proper construction of the road in question. C.R.I.&P.Ry.Co. vs. Smith, 111 Ill. 363; Atterbury vs. C. I. & St. L. Ry. Co., 134 Ill. App. 330; Watkins vs. State, 6 C. C. R. 172; Lampp vs. State, 6 C. C. R. 342; Baber vs. State, No. 2221, decided December, 1935.

In Lewis on Eminent Domain, Second Edition, page 705, Section 294, the rule with reference to a release is set forth as follows:

“A release of damages has the same effect as the assessment and payment of damages under the statute.”

As to the effect of a judgment in condemnation, our Supreme Court in the case of C. R. I. & P. Ry. Co. vs. Smith, supra, on page 371, in a case similar to the case at bar, said:

“The rule is, that the appraisement of damages in a case of condemnation embraces all past, present and future damages which the improvement may thereafter reasonably produce.”

The rule there laid down is in accordance with the previous, as well as many subsequent decisions of such court.

In the case of C. & A. R. R. Co. vs. J. L. & A. Ry. Co., 105 Ill. 388, the court, on page 394, said:

“Since the decision in the case of Jacksonville and Savanna R. R. Go. vs. Kidder, 21 111. 131, the practice has always been, in condemnation cases, to admit in evidence the plans of the work proposed to be done or the land taken, otherwise it could not be so well known how the projected improvement would affect the residue of the property. It is practicable, of course, to so construct a public improvement as to make it of greater or less, damage to the land over which it passes, and the extent of such injury cannot be justly estimated unless the character of the work to be done shall be first ascertained from plans and specifications that shall be thereafter adhered to by the corporation condemning the land to its use.”
“Any marked departure from the plans, as shown in the profile submitted, or from the stipulation in evidence, as to the character of the work to be done, would subject the corporation making the condemnation to an action for damages, in favor of the land owner.”

In the case of C. P. & St. L. Ry. Co. vs. Brinkman, 47 Ill. App. 287, the court, on page 291, said:

"Therefore we hold if a road is constructed in accordance with the profile offered in evidence on condemnation proceedings, and no change is made in the plans and profiles so offered, then no recovery can be had in an action on the case by reason of a mistake of the jury in determining the amount of damage, or by reason of a failure to allow a sufficient sum as damage to contiguous lands or a compensation for lands taken, nor by reason of a wrong description of the profile where it is open alike to be described by witnesses offered by the railroad company or by the land owner; and all damages consequent on the construction of the road in accordance with the implied agreement made by the company that it would be constructed according to the profile, when it is so constructed, are by the condemnation proceedings res judicata.”

The claimant examined the plans and specifications before he executed the deed and release, and consequently, at the time of such execution, he was in possession of all of the facts with reference to the location of the roadway in question, the height of the elevation, the extent of the fill, as well as the fact that such plans made no provision for surface drainage from claimant’s property. Claimant had owned such property for a considerable period of time and was familiar with the lay of the land and the direction in which the surface waters naturally flowed. He must have known therefore that one of the principal items of damag’e to the property not taken would be the damage resulting from the obstruction to the flow of the surface waters in their natural course. Knowing such facts, and having executed his deed and release with the full knowledge thereof, he is barred from recovering any damages resulting from the construction of the roadway in accordance with such plans and specifications.

The deed and release must be considered as having been based upon the construction of the improvement in accordance with the plans and specifications. If the improvement in question was constructed in substantial accordance with, the plans and specifications, claimant is barred from the recovery of any further damages, for the reason that all damages resulting from the construction of the improvement in accordance with the plans and specifications must be considered as having been within the contemplation of the parties at the time of the execution of the deed and release.

It is true that a tile drain which had previously extended from claimant’s property across Route 12 had been broken by the continual passage thereover of the trucks owned by the several independent contractors who were working on the construction of the improvement, and by the public generally, but the State cannot be held responsible for the actions of any independent contractor. If any liability resulted therefrom, such liability is on the part of the contractor causing the damage and not upon the State.

There is nothing in the record which indicates that there was any substantial departure from the original plans, and under the facts and the law as above set forth, claimant is barred by his aforementioned deed and release, from any further recovery for the damages set forth in the complaint, and award must therefore be denied.


author: Mr. Justice Linsoott

text:
    (No. 3144
    Alice E. Pelikan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

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

delivered the opinion of the court:

This claim is for the sum of Twenty-six Dollars and Five Cents ($26.05) for expenses incurred by claimant while acting in her official capacity as Secretary of the Illinois Board of Pharmacy, Division of Registration, Department of Registration and Education. Claimant alleges that she was a member of the Illinois Board of Pharmacy, acting at the request of the Department of Registration and Education, in attending Board Meetings and conducting* examinations in Chicago, Illinois, during the period of time in which expenses, were incurred, to-wit: March and June, 1937. It is further alleged that these expenses were incurred in the furtherance of the duties of claimant for the use of the State of Illinois, and at its request.

A stipulation of facts was entered into by the claimant and the Attorney General. She filed a proper Bill of Particulars showing itemized statement of expenses, with the Department of Registration and Education, but the same was not filed until after the appropriation had lapsed.

No question arises about the facts. The stipulation discloses that the services were rendered; that she was authorized and directed to render these services by the proper State authorities, and we have held that where claimant has rendered services or furnished supplies to the State on the order or request of an official authorized to contract for the same, and submits a bill therefor within a reasonable time, and due to no neglig’ence or fault on the part of claimant, same is not approved and vouchered for payment before the appropriation from which it is payable lapses, an award for the reasonable and customary value of the services or supplies will be made where, at the time the expenditure was incurred, there were sufficient funds remaining unexpended in the appropriation to pay for the same. The stipulation shows that there were sufficient funds remaining unexpended in the appropriation for this purpose at the time the services were rendered.

We are of the opinion that the claimant should be reimbursed for the money she has expended, and, therefore, will make an award to her in the sum of Twenty-six Dollars and Five Cents ($26.05).


author: Mr. Justioe Linscott

text:
    (No. 3158
    Niles Smothers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

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

delivered the opinion of the court:

This claim was filed on the 8th day of December, 1937, in the office of the clerk of this court, and sets forth a claim based on the same alleged cause of action as was stated in the case of Charles Day vs. State of Illinois, No. 3159, with the exception that in this case it was alleg’ed that on the 22nd day of August, 1937, a shell or bomb, the exact and correct name for the same being unknown to the claimant, was picked up from the ground upon, at or near the Rifle Range mentioned in the Day complaint, and given to one, Charles Day, and while the said Charles Day was using due care and caution for his own safety to the best of his knowledge, the said shell or bomb exploded in the hand of said Charles Day, and the claimant, being within a few feet of said Charles Day, and also in the exercise of due care and caution for his own safety, was injured, to the damage of the claimant in the sum of One Thousand Dollars ($1,000.00).

It was not alleged that Charles Day was an officer or agent of the State of Illinois, or that the claimant had any right to be upon the premises where he was; and what is said by the court in the Day case, applies with equal force in this ease.

The motion of the Attorney General, will, therefore, be allowed and the case dismissed.


author: Mr. Justice Yantis

text:
    (No. 3193
    Ralph Baker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

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

delivered the opinion of the court:

The Claim of Plaintiff herein presents a situation which causes the court to wish that it had arbitrary discretion in the allowance of claims. The record discloses that claimant, on August 13, 1937, was the owner of a Ford sedan; that during the night of the date stated the automobile was parked on one of the streets in Rockford, Illinois; that while so parked, one Sergeant Costello, then and there assigned to Military Police duty in connection with summer maneuvers of the Illinois National Guard, backed a State owned automobile which he was driving’, into the front part of claimant’s car, resulting in damages to the fenders and hood which were repaired at a cost of $42.76. The claim was submitted to the attention of a Board of Officers of Headquarters Special Troops, 33rd Division, who found, “That the driver of the Government vehicle was responsible for the accident and recommended allowance of the claim for $42.76.” Claimant was notified that the report was being submitted to Carlos E. Black, Adjutant General of Illinois, and on November 18, 1937 the latter notified claimant as follows, “Report of the Board of Officers * * indicate that this accident occurred through no fault of yours. This Department is not permitted by law to make payment for damages. Any claim that you might have should be submitted to the Court of Claims.” Plaintiff thereafter filed his claim on January 27, 1938, and the Attorney General has filed a motion to dismiss, for the reason that the claim discloses on its face that it is predicated upon the alleged negligence and carelessness of one in the service of the State, and that under the law, the State cannot be held liable for damages resulting from the negligence or wrongful acts of its- officers-, agents, servants or employees, and the Doctrine of Respondeat Superior does not apply to the Sovereign State.

The contention made by the Attorney General must be sustained, and the claim dismissed, but the Court cannot refrain from indicating its view that further effort should be made by those in authority over Sergeant Costello in holding him responsible for the damages that have heretofore been shown before the Military Board to have resulted from his negligence.

The motion to dismiss is sustained and the claim dismissed.


text:
    (No. 3186
    Ford Murray Decker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Claimant, pro se.

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

delivered the opinion of the court:

Claimant herein seeks an order of this court, directing that the Auditor’s Office deliver to him Illinois State Warrant No. 338139, for $100.00, heretofore issued payable to “Napoleon Bross Decker” but withheld from delivery to the latter for the apparent reason that no address had been provided to which it could be sent. A report from the Hon. C. N. Black, Adjutant General of Illinois, states that Tracy Kilpatrick Decker, a World War Veteran, was killed in action in France in June, 1918. A claim for the Illinois bonus was filed under No. 252343 and $300.00 was allowed thereon to be divided equally between his two brothers and sister, i. e. Ford Murray Decker, Napoleon Bross Decker and Margaret Decker Shols. Illinois "Warrant No. 338138, for $100.00, was delivered to and cashed by Ford Murray Decker. Warrant No. 338139 for $100.00, was not forwarded to the payee Napoleon Bross Decker, for the reason that he apparently provided no address to which it could be sent. Voucher No. 5312 of the State Treasurer’s records carries the following notation, “Hold check for address.” This Warrant is still held in the files of the State Auditor.

“ Claimant bases his claim on the following purported fact, i. e. that his brother Napoleon Bross Decker assigned to him his claim to the said $100.00.

The Adjutant General’s report states that the purported assignment was made and is held in the Adjutant General’s Office. That it was supposedly signed and sworn to on March 4, 1930 in Cook County, Illinois, and that the said Napoleon Bross Decker was then a resident of Bridgeport, Connecticut. That such assignment was some three months after Ford Murray Decker had stated to that office that he was the sole heir of Tracy Kilpatrick Decker. The Adjutant General’s Office notified claimant herein on March 6, 1930 that the assignment or waiver in question was illegal.

The Attorney General has filed a motion to dismiss the present claim and denies the right of this court as a matter of jurisdiction to issue an order commanding the Auditor’s Office to issue said warrant; it being the contention of the Attorney General that if claimant is legally entitled to said warrant he has a remedy in the courts of general jurisdiction; further, that claimant’s complaint shows upon its face that his claim at this time is barred by the statute of limitations.

We are of the opinion that the objection-as to the jurisdiction of the court to grant relief in the nature of an injunction or mandamus must be sustained. The. Court of Claims has no authority to enter an order compelling State officers to deliver a warrant. Recourse of such nature must be had by claimant in the Civil Courts.

Where claimant has a complete and adequate remedy at law the Court of Claims will not take jurisdiction. (Mohawk Carpet Mills vs. State, 8 C. C. R. 37.)

As jurisdictional rights are not being taken by the Court of Claims, it is not essential to pass upon the other questions raised.

The motion of respondent to dismiss the application is allowed and the claim dismissed.


author: Mb. Justice Linscott

text:
    (No. 2528
    Tony Debevec, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 25, 1938.

    Max Przyborski, for claimant.
    Otto Keener, .Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

This is a suit at common law filed on the 26th day of October, 1934, and alleges that on the 17th day of April, 1934, the claimant was operating- a motorcycle in a southerly direction along and upon State Route No. 68, between Washington Street and Belvidere Road, presumably Cook County. It is charged that the State negligently and carelessly permitted the West half of the highway known as State Route No. 68 to be and remain out of repair- and become broken and depressed, thereby causing deep holes to be and remain in that part of the highway customarily used by traffic moving in a southerly direction; that the highway was uneven, rough, and unsafe for traffic, and of this condition respondent had notice of the situation for a long’ time prior to the date of the accident.

Claimant further averred that there were no warning signs to apprise the claimant of the situation, and that while he was driving a motorcycle, using due care for his own safety, he ran upon, over and into the rough, uneven and depressed portion of the highway and thereby sustained an injury; that he was thrown upon the highway with great force and violence by reason of which his right leg was fractured and other parts of his body were cut and bruised.

A Bill of Particulars was filed for doctor’s bill, hospital bill, loss of time from his employment and for pain and suffering, totalling $579.75. A motion to dismiss was filed on behalf of the Attorney G-eneral, and for legal reasons this motion must be sustained and no comment will be made upon the evidence.

This court has repeatedly held that:

“In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance or negligence of its officers or agents in the absence of a statute creating such liability. Such has been the settled decision of this court for many years.”
Morrissey vs. State of Illinois, 2 C. C. R. 454; Minear vs. State Board of Agriculture, 259 Ill. 549.
“The General Assembly has never enacted a law making the State liable for damages caused by the negligent construction or maintenance of a public road and this court has no power to make an award for damages in the absence of such a statute.”
Chumbler vs. State of Illinois, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241.

The facts in this case come within the rule mentioned in the decisions above referred to and for the reasons therein stated, the claim will be dismissed.


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    (No. 3118
    Bernice Tamulis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1938.

    Martin Walsh, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein is the surviving widow of Frank J. Tamulis who was employed by the respondent as a State Highway Policeman. On the 9th day of August, 1937, Frank Tamulis was killed, and his widow files her claim for an award of Four Thousand ($4,000.00) Dollars, under the terms of the Workmen’s Compensation Act, alleging that his death was the result of an accidental injury arising out of and in the course of his employment by the State.

From the evidence herein it appears: That Mr. Tamulis was a police officer of the State of Illinois, with headquarters at 123rd & Cicero Ave., Chicago, Illinois, and residing at 4924 S. Honoré St., Chicago. His patrol section was the Southwest Highway. On August 9th, 1937 he worked on the patrol shift from 4 o’clock in the afternoon until 12 o’clock midnight. When relieved from duty he started home, using a police motorcycle for such purpose. About 12:30 A. M. at a point approximately one and one-half blocks East of Cicero Avenue, on S. B. I. Route No. 7, he drove the motorcycle into the rear of a Model T Ford truck, then being driven along the highway in the same direction that he was traveling. The truck was fully equipped with proper lights, but the night was somewhat foggy. The driver of the truck felt the impact, stopped his truck and walked back to determine the cause and found the motorcycle and its rider lying on the pavement. Another police officer, Samuel McDowell, of 4241 Drexel Ave., Chicago, testified that he was driving a police squad car on the'Southwest Highway east of Cicero, between 12 and 12:30 A. M. on August 9th; that he did not see the actual collision but saw* sparks fly through the fog and immediately after-wards reached the body of Officer Tamulis lying on the South lane of the highway; that the driver of the truck came running back and aided in putting Officer Tamulis in another car which took him to the hospital, upon arrival at which he was found to be dead. Officer McDowell further testified that Tamulis had finished his work at 12 o ’clock midnight, and at the time of his death was not on duty but was on his way home; that although he was riding a motorcycle, it was not the custom of the officers to take motorcycles home with them and that they had orders that motorcycles were not to be ridden home, and they were only to take them when they had specific instructions to do so. No one testified that Officer Tamulis had any instructions to ride his motorcycle home. One of his associate officers, Frank Webster, testified that he talked with him at the Police Station about five minutes after 12 o’clock on the morning he was killed; that it was time to go home and Frank Tamulis told him they were to go on a funeral detail together the next morning, but Officer Webster further testified that he found out later they were not supposed to go on the funeral detail, and that no permission or authority for same had been made. The only importance of the funeral assignment is that if Tamulis had been ordered to go on such assignment in the morning, it might follow that he had received authority to take the motorcycle home that night. If such was the case we agree with Counsel for Claimant that although Captain Barnheoft, Commanding Officer of the Station, was absent from the City when the proof was taken in this case, yet there should have been some one who was able to testify as to the facts in regard to this matter, if any such permission had in fact been given.

Even though the record disclosed however that Officer Tamulis had permission to ride the motorcycle home on the morning in question, the circumstances would still not be , sufficient to support a finding that the accident in question arose out of and in the course of his employment. The general rule is that a man’s employment does not begin until he reaches the place where he is to work and does not continue after he has left. There may be circumstances under which an employee in going to and returning from his place of employment can be held to be in the line of his employment, but such cases are governed and controlled by their own particular facts and circumstances. It definitely appears from the evidence in this case that Officer Tamulis ’ employment and duty had ceased at 12 o’clock when he left the State Highway Police Station. He had no further duties to perform until he again reported to his superior officer, and regardless of whether he was riding the State-owned motorcycle with or without permission, there are no circumstances in the case which take it out of the general rule, that “An employer is not liable under the Workmen’s Compensation Act for injuries received by an employee while on the road to or from his employment.” This ruling is supported by the decision of our courts in a long line of cases including Shegart vs. Ind. Comm., 336 Ill. 223. The cases cited by claimant do not bring the circumstances of this case within the exceptions shown in the several cases cited. An award will therefore be denied and the case is hereby dismissed.


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    (No. 2842
    Walter J. Wolf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1938.

    Ode L. Rankin and Ben A. Stewart, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The claimant charges that his automobile was being driven and operated by his father, Charles J. Wolf, on January 6, 1936 at about 9:45 A. M. on Washington Boulevard at and near Lathrop Avenue in the Village of River Forest, Cook County, Illinois, and at that time a truck owned by the State Highway Department and operated by one of its employees was being operated in the same direction as his automobile; that the truck suddenly swerved to the left without signalling the driver of the automobile, and ran into and struck the automobile to plaintiff’s damage in the sum of approximately One Hundred Dollars ($100.00).

The Attorney General filed a motion to dismiss this cause for the reason that it sought to recover damages sustained by the automobile of claimant in a collision with a truck owned and operated by the Division of Highways, it being alleged that such collision was the result of the negligence and carelessness of the driver of the truck, who was an employee of the Division of Highways, and therefore the State is not liable for such damages.

The Attorney General filed his brief and therein stated that as a proposition of law the State is not liable for damages_to property caused by the negligent and careless operation of one of the trucks by its employee, the doctrine of respondeat superior not being applicable to the State, and cited

Wetherholt vs. State, 8 C. C. R. 100;
Trompeter vs. State, 8 C. C. R. 141;
Unverfehrt vs. State, 8 C. C. R. 577.

The claimant filed a brief in opposition wherein it is contended that this claim comes within the exception to the general rule relied upon by the Attorney General in support of his motion to dismiss. However, they say in their brief that “the general rule is well established that the doctrine of respondeat superior does not apply to the State in the exercise of its governmental functions, ’ ’ and then argue that this court has recognized exceptions to the general rule of non-liability where the injuries complained of are directly attributable to grossly reckless wanton or wilful acts on the part of a servant of the State and the claimant is free from all contributory negligence in connection with the injury.

It is also argued that this claim should be allowed on the grounds of equity and good conscience.

This court has had occasion and has passed upon the liability of the State in cases of this kind, many, many times, and we have held that such liability does not exist. Several years ago there were a large number who felt that a distinction should be made in cases where an employee of the State had been guilty of gross negligence and caused damage to another when such injured person had been entirely free from negligence. At two different times bills were introduced in the legislature to correct this situation, but neither time did either bill become a law, so it may be said that the public policy of Illinois so far as this rule is concerned, is pretty well established.

In this case, counsel rely upon equity and good conscience rule.

In Crabtree vs. State of Illinois, 7 C. C. R. 207, we held that the provisions of paragraph 4 of Section 6 of Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.

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


author: Mr. Justice Tantis

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    (No. 3108
    Roscoe Blanton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1938.

    Bttbbel Babash, for claimant.
    Otto Kebneb, Attorney General; Glenn A. Tbevob, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant, Eoscoe Blanton, was and still remains, according to the record, employed hy the State as a highway maintenance patrolman. On November 18, 1935 while loading a gravel truck near Williamsfield, Illinois, in the performance of his duties, a cave-in occurred which covered claimant to the waist with gravel and dirt, resulting’ in a broken bone in the left leg about six inches above the knee. He was immediately attended by Dr. Wm. H. Maley of Galesburg, who pronounced the injury a compound fracture of the left femur about five inches above the knee. Due apparently to some splintered bone, the patient did not show proper recovery and Dr. Maley operated and continued in charge of the case until June 3, 1936 when the patient was transferred to Dr. H. B. Thomas, Orthopedic Surgeon, of 30 N. Michigan Ave., Chicago. Dr. Thomas operated on June 5, 1936 and reported that he removed a muscle lying between the two bones which prevented a union, and that new bone was put from the tibia around the fracture. Dr. Thomas retained the case until the patient was given a final medical discharge on March 1, 1937. At that time the patient was suffering from a stiffness of the knee, and Dr. Thomas estimated a permanent partial loss of use of the leg of twenty-five (25) per cent. On December 24, 1937 Dr. Thomas reported that under continued physiotherapy treatments patient’s condition has improved and his range of knee motion had increased from fifty (50) per cent to sixty-six (66) per cent; that in his opinion it would continue to improve but that at the present time he has a disability of partial loss of use of the leg of twenty (20) per cent. Dr. Thomas is Professor and head of Orthopedics at the College of Medicine, University of Illinois and Research and Educational Hospitals. Dr. Maley testified that there is excessive ankylosis of the knee and a bow of the thigh bone, and that three of the toes on the left foot are badly ankylosed and their motion limited, resulting in a limited flexion or motion 'of the left knee and foot of forty-five (45) degrees; that in his opinion the patient has a permanent partial loss of thirty-three and one-third (33 1/3) per cent of the use of the left leg.

The State has expended large sums in giving to the claimant the best of care. It has paid Dr. Maley Four Hundred ($400.00) Dollars; Dr. Thomas, Six Hundred Sixtv-one ($661.00) Dollars; St. Mary’s Hospital, at G-alesburg, Five Hundred Seventy-one and 50/100 ($571.50) Dollars; and St. Luke’s Hospital, in Chicago, Three Hundred Fifty-four and 60/100 ($354.60) Dollars. The entire amount paid by the Highway Division for the above items, together with nurse hire, board, etc., is Two Thousand Two Hundred Seventv-six and 91/100 ($2,276.91) Dollars.

In addition thereto, there was paid to the claimant be-was no evidence in the record from which a computation tween the date of his injury on November 18, 1935 and his final medical discharge on March 1, 1937, the following items:

November, 1935 (19th to 30th inclusive)................... $ 48.00
December, 1935 to May, 1936, inclusive, 6 months at $120.00.. 720.00
June 1936 to February, 1937, inclusive, 9 months at $60.00.. 540.00
$1,308.00

Claimant had been regularly employed as a highway maintenance patrolman from June 25, 1934, and during the year immediately prior to the accident had received salary at the rate of One Hundred ($100.00) Dollars per month up to September 5, 1935 and from then on at One Hundred Twenty ($120.00) Dollars per month, making a total yearly salary of One Thousand Two Hundred Ninety-one and 25/100 ($1,291.25) Dollars, or an average of Twenty-four and 83/100 ($24.83) Dollars per week. Under the provisions of Paragraphs (a) and (b) of Section 8 of the Illinois Workmen’s Compensation Act, claimant was entitled to surgical care and also to compensation equal to fifty (50) per cent of his'earnings but not in excess of Fifteen ($15.00) Dollars per week. The evidence shows that claimant is married and has one child, but that such child was not under sixteen years of age at the time of the accident. Claimant now seeks an award, under the provisions of Paragraphs (e), 15-17, Section 8 of the Act, for the partial loss of use of his left leg. Said Paragraph (e) provides, that, “The compensation which claimant can be paid for the period of temporary total incapacity shall not exceed sixty-four (64) weeks.” The Attorney General contends that the sum of One Thousand Three Hundred Eight ($1,308.00) Dollars previously paid to claimant is all for compensation; that claimant was entitled to temporary total disability for only a period of sixty-four (64) weeks from November 18th, 1935 to February 8th, 1937; further, that any over-payment is to be credited against such amount as claimant may be entitled to for specific partial loss of use of his left leg.

Claimant contends that the payment at the rate of One Hundred Twenty ($120.00) Dollars per month made to him by the Highway Department from the date of his accident to May 31,1936, in a total sum of Seven Hundred Sixty-eight ($768.00) Dollars was made voluntarily as wages and must be regarded as having been made gratuitously or in the expectation of saving the life of the employee or reducing his disability and reducing the total compensation for which the employer would eventually be liable; that under the authority of Crescent Coal Co. vs. Ind. Comm., 286 Ill., 102 and Western Cartridge Co. vs. Ind. Comm., 327 Ill., 29, there is no authority for the court to deduct any part of said amount, as an over-payment of temporary compensation, from any amount found to be due for specific loss. The latter case is misconstrued by counsel. The statement therein made is, “An allowance for temporary total disability is not deductible from an allowance for partial permanent or total permanent disability. ” This does not mean that if an over-payment has been made for temporary total disability such over-payment cannot be entered as a credit to the employer when called upon to pay specific loss or partial or total permanent disability.

Claimant contends that the only point at issue in this case is the amount of specific loss to his leg, and that the court has no right “to delve into the amount of temporary compensation paid or to order a deduction of any over-payment made thereon, from any award now made to claimant for specific loss.” Counsel for claimant state that, “they have found no provision in the Act which furnishes any authority whereby the court would have jurisdiction to make any such deduction.” Claimant has received and now seeks further payments from his employer for injuries that were the result entirely of his own negligence. He is only entitled to receive such payment because of a special remedial statutory law granting to him specific rights. Claimant is entitled only to the specific sums of money which the terms of such Act designate. We therefore hold that in considering the amount of money which any employer is called upon to pay for injuries and loss of time growing out of an accident, the court has authority to take into account any and all payments of compensation that have been made to claimant, in determining what further amount may be due him.

Whether or not the payments made to claimant for the period from November 18, 1935 to May 13, 1936 should be treated as payment of wages or of compensation is not easily determined from the record. During all of such period claimant was incapacitated from work and was receiving surgical treatment from Dr. Maley, but received pajunents from month to month in the full amount of his regular wages. After June 1, 1936, to March 1, 1937 he received payments of Sixty ($60.00) Dollars per month. Claimant cites the case of Lewis vs. Ind. Comm., 357 Ill. 309 in support of his contention, that the payments should be treated as wages. No notice of claim for compensation was made within six months after the date of the employee’s injury, but a claim was filed by his widow within six months after the date of the last of the three payments. Counsel for claimant there contended, that the demand for wages constituted notice of claim for compensation within the meaning of Section 24 of the Act. The court held, that the request for his wages conveyed no intimation that he asserted any legal right to compensation; that there was no evidence showing that the employer had any notice of any accident until more than six months thereafter; that the requests were for his wages and not for compensation; that the employer in that case, according to an established custom, paid the wages which the employee would have received had he been engaged in the performance of his duties, and that such payments were apparently made voluntarily and without reference to any provision of the Workmen’s Compensation Act; that the employee’s wife receipted for such payments as wages. The court further held, that the question whether a claim for compensation has been made as required is a question of fact to be determined like any other similar question. The present case is to be distinguished from the Lewis case. Here, the employer at once knew of the accidental injury and immediately began furnishing surgical care. The funds paid to claimant were all for unproductive time, while he was disabled from the accident in question. The payment of full wages during a period of disability, although under a Company policy of paying full wages while employees are away from work on account of sickness or injury, will be treated as a payment of compensation when the employer knew that the employee was disabled on account of an accidental injury and when such employer at the time of such payments does not deny liability. In other words, where the employer knows that the disability or inability to work is due to the accidental injury and he makes payments, even under a policy of paying full wages during inability to work, with no denial of liability for compensation, such payments will be regarded as payment of compensation. This rule is fully set forth in the case of United Air Lines, Inc. vs. Ind. Comm., 364 Ill. 346. In that case the court said:

“The defendant in error concedes that he made no claim for compensation against the employer within the six-months’ period and that he did not malte an application for compensation with the Industrial Commission within the one-year period, but he insists that he did make an application for compensation with the Industrial Commission within one year after the last payment of compensation. His contention in this regard is the vital question in the case. The facts are very similar to those in Field & Co. vs. Industrial Com., 305 Ill. 134, in which the rule was laid down that where an employer makes payments to an injured employee during a period of time when the employee is unable to work, and liability under the Compensation Act is not denied, such payments will be construed to have been made in consequence of the employer’s liability. This rule is based upon the doctrine that when the employer has knowledge of the injury and does not deny liability, the employee has a right to regard the payments as having been made under the Act and is not bound to malte demand for further compensation as long as the payments are continued. It is the duty of an employer to provide an employee who has suffered an accidental injury arising out of and in the course of his employment, necessary first aid and medical, surgical and hospital services, and, in case of temporary total incapacity for work, to pay compensation as long as such incapacity lasts, subject to the limitations provided by sub-section (b) of Section 8 of said Act. The mer.e fact that the company has adopted a policy of paying its employees when they are unable to work, and does so, is not sufficient to bar the right of the employee to claim compensation when the employer ceases to make further payments. Any other doctrine would be in contravention of the purpose and the. spirit of the Compensation Act.”

The total amount paid claimant herein during the period of his disability will therefore be regarded as compensation and will be taken into account in computing the right to an additional award and for any further payment, to which he may now be entitled.

Claimant is entitled to an award for specific disability. The evidence shows that his left leg is one inch shorter than the right, and that there is a stiffness of the knee and ankle joints and of three toes, and forty-five (45) degrees limited motion in the left ankle and in the bending of the left knee.

From an examination of the entire record including the testimony of Dr. Maley and Dr. Thomas, we find that claimant is entitled to an award of twenty-six (26) per cent specific loss of use of the left leg; such loss resulting from the accidental injury suffered by claimant while an employee of the State of Illinois on the 18th day of November, 1935. Claimant’s average weekly wage for the year preceding said accident was Twenty-four and 83/100 ($24.83) Dollars. Under the provisions of Section 8 (e) 15-17 of the Act he is entitled to payment for specific loss of fifty (50) per cent of said sum for the period of 49.40 weeks, or Six Hundred Thirteen and 05/100 ($613.05) Dollars for 26% loss of use of his left leg. He was entitled to compensation for temporary total disability at the rate of Twelve and 41/100 ($12.41) Dollars per week for sixty-four (64) weeks, or Seven Hundred Ninety-four and 24/100 ($794.24) Dollars. This added to the amount due for specific disability totals One Thousand Four Hundred Seven and 29/100 ($1,407.29) Dollars. He has heretofore received One Thousand Three Hundred Eight ($1,308.00) Dollars, leaving a balance due on the present award in the sum of Ninety-nine and 29/100 ($99.29) Dollars.

It is therefore ordered that an award be and the same is hereby made in favor of Eoscoe Blanton, claimant herein, for the sum of Ninety-nine and 29/100 ($99.29) Dollars. As the total amount of such award has heretofore accrued, same is payable in full at this time.

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


text:
    (No. 3075
    Steve Nemeth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1938.

    George N. Blatt, Jr., for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant herein is now and was at the time of the matters complained of, the owner of certain farm land in Will County, Illinois, as described in his complaint. According to the latter, the State of Illinois, in the month of September, 1930, constructed a two-lane concrete highway known as S. B. I. Route No. 7 in front of claimant’s property. In his complaint he alleges that prior to such construction his property naturally drained across and under the then existing dirt and gravel roadway; that in order to provide for the drainage of claimant’s property after the improvement, the State improperly constructed a culvert under the new highway and connected same with claimant’s drainage tile; that the culvert was improperly constructed so that the lower or bottom level of same was several feet higher than that of the original culvert and of the natural drainage level; the result of such alleged improper construction "being to prevent the surface water flowing under the highway, and causing it to back up into the claimant’s tiling system, thereby flooding his property. Claimant also alleges that in the construction of such highway, the respondent graded and filled in the right-of-way to the east and west of his property so that the natural watershed that previously ran to the east of the entrance to his home was changed from a northerly direction, and now for approximately one and one-half miles flows down upon claimant’s property. Notwithstanding the foregoing charges of negligent construction, the complaint further alleges that prior to the year 1934 the ditches along such highway were in good repair and took care of the surface water, but that due to the neglect of the respondent these ditches, were not maintained in good repair, were not cleaned at regular intervals, and that the surface water which drains through and over such ditch carried silt, dirt, rocks and debris to the culvert under such highway, causing the latter to be filled up to within six inches of the top and preventing the natural flow of water under such highway, thereby obstructing the flow of water from claimant’s property and causing his tiling system to become obstructed. That by reason of the foregoing, fifteen (15) acres of his property was flooded during the years 1934-1935-1936, and that an additional ten (10) acres became untillable, and that fifteen hundred (1500) feet of twelve (12) inch tile, and one thousand (1000) feet of seven (7) inch tile, and eight hundred (800) feet of five (5) inch tile was cracked by freezing. Claimant asks damages for the cost of such tile, the labor necessary to replace same, and Five Hundred ($500.00) Dollars per year for the loss of production of crops on such acreage, all to a total damage of Two Thousand One Hundred Ninety One ($2,191.00) Dollars, for which he seeks an award.

The complaint was filed April 1, 1937, and the damages sought therein as appears from the foregoing are based, first —on improper construction work in the original building of the highway in 1930, and secondly — because of the alleged negligent maintenance by the State of the drainage along said highway in the years 1934-35-36. This improvement was originally known as S. B. I. Route No. 53, Construction Section 136, now known as S. B. I. Route No. 7. It appears from the testimony herein that claimant was very active in obtaining the construction of this highway and freely gave a strip of two (2) feet of ground along the frontage of his property for the purpose of aiding in the building thereof, receiving nominal compensation of Twenty ($20.00) Dollars, only because respondent insisted on paying some consideration for the land. It appears that such construction was completed between 1931 and 1932, and from the testimony it would appear that more than five years elapsed from the time of the construction of the highway and the filing of the complaint on April 1, 1937. As to that portion of the complaint which is based upon improper or negligent construction of the culvert under the highway, the court must find that claimant’s rights are barred by the Statutes of Limitations. If such were not the case however, the record would not support an award upon that portion of plaintiff’s claim. In fact he negatives the merit thereof in Ms complaint itself, for in paragraph 5 of his complMnt he states that from 1930 to 1934 the surface water was properly cared for by the drainage ditches, but that in the latter year, due to the neglect of respondent to keep these ditches in good repair and to clean same, etc. debris was carried into the culvert and the latter became filled up, thereby obstructing the natural flow of water from claimant’s property and obstructing the tiling system existing on said land. The law is that, in arriving at the damage to property, such damage is determined by the difference between the fair cash market value of the property just prior to the time the making of the improvement commenced, and its fair cash market value just after the improvement is completed. (Ross vs. City of Chicago, 91 App. 416.) No evidence was introduced by which such difference in value, if any, could be determined in the present case. The evidence does disclose however (Claimant’s Testimony Transcript p. 22) that prior to the building of the hard road the highway became muddy and bad and that “we needed the highway”; that before the concrete highway was constructed the water in flood time flowed across claimant’s fields from his neighbor’s field on the north, then through a water course around the back of his building across his fields and then south through a large culvert into the ditch along the highway, thus describing about half circle around claimant’s land; that since the construction of the concrete highway the water comes straight east down through the culvert and into the south ditch, so that claimant’s land which lies north of his buildings has been benefited by not having the water run over it (Tr. p. 29). It further appears that the road ditch on the north side of the pavement is larger than the old ditch which had become grown up in grass and weeds. Claimant further testified (Tr. p. 30) that shortly after the highway was constructed the fresh silt and clay that neither he nor the State Highway Department expected, washed into the ditch on the south side of the road such an amount that it clogged up the ditch, thereby holding back the water in the tiles, and clogging the culvert to within a foot of the top, and thus clogging the outlets to his tile. This culvert is at approximately the same location as the culvert that existed previous to the construction of the hard road. Claimant has not only failed to establish damages resulting from the construction of the pavement in question, but has established that certain benefits to the value of his land should have resulted therefrom.

The Attorney General contends that no damages, based upon any alleged negligence upon the part of the Highway Department in the maintenance of said highway, can be legally allowed to claimant. The testimony of claimant as to the neglect upon the part of the Highway Department to keep the silt and debris cleaned out of the culvert and ditch in question, stands uncontradicted by any other competent evidence. Claimant testified that if the silt was kept out of this large culvert and into the south ditch all of his troubles could be avoided; that at different times he applied to the Highway Department by letter and in person at the Elgin Office, requesting that they terrace the ditches, but that this was not done until three years after the highway was built, and that during this period the silt and dirt continued to wash out of the ditch and down into the water course; that the Highway Department cleaned out the culvert in 1934 and again in 1936 and that the road ditch to the west of the culvert has now been terraced. Claimant further testified that with the fill removed and the ditch and culvert cleaned out, he is able to get proper tile drainage, and that same is now working fine. (Tr. p. 47.) The testimony of claimant further shows the breaking of tile as complained of, but it shows that these tile became frozen and cracked during a recent winter when the temperature was 20° below zero, and that such a freezing temperature had not been previously experienced since the time the tile were originally laid. Taken in all, the evidence is not conclusive that the damages suffered by claimant are due entirely to any negligence upon the part of the State Highway Department, but if such were true, the objection raised by the Attorney General to any award upon that ground would have to be sustained for the reason, as stated in the case of Wentworth vs. State, 9 C. C. R. 240.

“The State exercises a governmental function in the construction and maintenance of a public highway, and does not become liable for the negligence of its agents or employees in the maintenance thereof, in the absence of a statute specifically creating such liability.”

The legislature of Illinois has not seen fit to pass any legislation creating a liability upon the part of the State covering the complaint as here presented, and the court is of the opinion that no award can be properly allowed.

An award is denied and the claim dismissed.


text:
    (No. 3187
    The Borden Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1938.

    George F. Barry, for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

During May and June, 1936, claimant, The Borden Company, sold and delivered eighteen (18) gallons of “ice cream sherbet” to the Illinois Industrial Home for the Blind, one of the charitable institutions maintained and operated by the State of Illinois. The records at the institution show that the merchandise was received and used, and it further appears that there were unexpended funds remaining in the appropriation for said institution, out of which the bill for same could have been paid. It further appears that such appropriation lapsed however before said claim was presented for payment; that $23.40 is the usual and customary charge for such merchandise, and that the bill has never been paid. As heretofore held in the case of Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165 and other cases,

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

No sufficient showing of negligence or fault upon the part of claimant to justify non-payment of the bill appears, and pursuant to the rulings heretofore made, an award is hereby allowed in favor of claimant in the sum of $23.40.


text:
    (No. 2934
    William E. Bauer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

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

delivered the opinion of the court:

On August 27th, 1921, claimant entered the employ of the respondent as an attendant at the Elgin State Hospital, Elgin, Illinois, and continued in such employment until December 17th, 1935. On the last mentioned date, while claimant was on night duty at one of the farm cottages known as Farm Colony No. 3, he was struck and tripped by one of the patients, whereby he fell to the floor and fractured his left hip. He was taken to the Hospital Hnit of such institution and remained there continuously until August 19th, 1936. While at such hospital he was under the care of Dr. George A. Wiltrakis, Senior Physician and member of the staff at the Elgin State Hospital. Dr. Wiltrakis has seen the claimant at infrequent intervals since he left the hospital, and supervised the taking of a number of X-ray pictures, the last of which was taken February 28th, 1938. Such pictures show a fracture of the neck of the femur; also that the broken fragments have failed to unite, and also that there is some absorption of the neck of the femur.

There is no dispute in the testimony as to the nature or extent of claimant’s injury. From the medical testimony in the record it appears that claimant’s condition is permanent; that it reached a permanent stage about three months after the injury; that claimant will never be able to use his left leg; that he is able to move about now with the use of a cane and crutch; that in walking his left foot turns outward from the normal position; that his left leg is approximately two inches shorter than his right. Since the time he left the hospital claimant has continued to reside in one of the cottages at the institution.

It appears from the evidence that the Elgin State Hospital is located on a tract of land consisting of approximately 800 acres; that there are about fifty buildings, the main building being four stories in height; that at the time of the accident there were approximately 4,700 patients and 650 employees at the institution; that the institution has a central heating plant, a power plant for the generation of electricity, a water plant, machine shop, carpenter shop, electric shop, tin shop, laundry, etc.

The institution is primarily a hospital, but maintains a farm in connection therewith which serves the two-fold purpose of providing an industrial occupation for some of the patients, and also provides farm products for the patients and employees. The farm colony is an integral part of the institution; it consists of three patients ’ cottages, employees ’ cottage, barns and other farm buildings, and is located about three and one-half miles from the main buildings.

Upon a consideration of the record we find:

1. That on December 17th, 1935 claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State.

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

3. That notice of the accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act.

4. That claimant’s annual earnings were $969.00, and his average weekly wages were $18.63.

5. That claimant at the time of the injury was 70 years of age and unmarried.

6. That all necessary first aid, medical, surgical and hospital services have been provided by respondent.

7. That claimant was temporarily totally disabled from December 18th, 1935 to March 18th, 1936.

8. That as the result of such accident claimant has sustained the permanent and complete loss of the use of his left leg.

9. That the sum of $60.00 has been paid to apply on the compensation due him.

10. That claimant is entitled to have and recover from the respondent the following sums, to-wit:

a) The sum of $9.31 per week for 13 weeks, to-wit, $121.03, for temporary total incapacity as aforesaid;
b) The sum of $9.31 per week for 190 weeks, to-wit, $1,768.90, for the permanent and complete loss of the use of his left leg; pursuant to the provisions of paragraph E-15, Section 8 of the Compensation Act.

The amount which claimant is entitled to receive as above, is $1,889.93, less the sum of $60.00 heretofore paid to him, to-wit, $1,829.93.

Award is therefore entered in favor of the claimant for the sum of $1,829.93, payable in 196 weekly installments of $9.31 each, commencing on January 29th, 1936, and one final installment of $5.17.

Compensation has accrued from January 29th, 1936 to May 11th, 1938, to-wit, the sum of $1,107.89. The aforementioned award of $1,829.93 is therefore payable as follows: the sum of $1,107.89 is payable forthwith, and the balance of $722.04 is payable in 77 weekly payments of $9.31 each, commencing May 18th, 1938, and one final payment of $5.17.

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 Revenue Fund in the manner provided for in such Act.


author: Mr. Chibe Justice Hollerioh

text:
    (No. 3090
    Benton Denham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

    Wirt Herrick, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerioh

delivered the opinion of the court:

Prior to and on October 29th, 1934 the claimant was in the employ of respondent as a patrolman’s helper in the Department of Public Works and Buildings, Division of Highways. On the last mentioned date, while engaged in driving a truck in the course of his employment, at a point about three and one-half miles east of Tuscola, the steering mechanism became defective, the truck skidded and overturned, and claimant was severely injured. No formal notice of the injury was given to the respondent, but claimant’s superior officer had knowledge of the injury within twenty-four hours thereafter.

Claimant is a married man and had one child under the age of sixteen years at the time of the accident. His annual earnings computed in accordance with the provisions of Paragraph E of Section 10 of the Workmen’s Compensation Act, were Six Hundred Forty Dollars ($640.00). Respondent paid the claimant the sum of Thirty-three Dollars ($33.00) per week for eight (8) weeks after the date of the injury, and also paid medical, surgical and hospital .bills in the total amount of Four Hundred Sixty-two Dollars and Thirty Cents ($462.30).

The Attorney G-eneral has moved to dismiss the case for the reason that application for compensation was not filed within one year after the date of the injury, or within one year after the date of the last payment of compensation, as required by Section 24 of the Workmen’s Compensation Act of this State.

Claimant has consented to a consideration of the claim upon the facts set out in the report made by M, K. Lingle, Engineer of Claims of the Division of Highways.

Such report shows that claimant was injured on October 29th, 1934; that he was paid compensation for approximately two months after the accident; that the last medical treatment he received was on March 1st, 1935; that application for compensation was filed herein on April 28th, 1937, to--wit, more than two years after the last payment of compensation.

Section 24 of the Workmen’s Compensation Act provides that “unless application for compensation is filed with the Industrial Commission within one year after the date of the injury, or within one year after the date of the last payment of compensation, the right to file such application shall be barred.”

The Supreme Court of this State has repeatedly held that compliance with the foregoing provision is jurisdictional. Haiselden vs. Ind. Com., 275 Ill. 114; Bushnell vs. Ind. Com., 276 Ill. 262; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Duquoin School District vs. Ind. Com., 329 Ill. 543; City of Rochelle vs. Ind. Com., 332 Ill. 386.

Claimant in his complaint also asks for an award in the amount of One Hundred Ninety-five Dollars and Fifty Cents ($195.50) for medical services incurred by him, for which services payment has not yet been made. Under the facts set forth in the aforementioned report of Mr. M. K. Lingle, we are not justified in allowing an award for such medical services. However, if any medical or surgical services were rendered to the claimant under circumstances which would entitle the person rendering such services to an award therefor under the provisions of the Workmen’s Compensation Act, the persons rendering such services may file their individual claims in this court therefor.

Under the law as above set forth, the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 3221
    Phillips Petroleum Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

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

delivered the opinion of the court:

A stipulation, signed by claimant and respondent, has been filed herein. From the recitals thereof it appears that during the months of April and June, 1937 an order was placed by the Division of Highways under No. 87855 for the delivery to the Highway Division of certain gasoline and motor oil as set out in Claimant’s Exhibits “A” and“B,” and that such supplies were furnished during the period mentioned to a total value of $81.13.

A report by M. K. Lingle, Engineer of Claims, from the Division of Highways, states that the supplies in question were duly delivered, received and used by respondent at the times and places stated, and that the prices charged are in accord with those contained in the contract between the parties; that the bills were not presented for payment until after September 30, 1937 and were not eligible for payment out of the 59th Biennium Appropriation, for the reason that such appropriation had lapsed. It further appears that at the time the purchase order was issued and at the time the supplies in question were delivered, there remained unexpended in the appropriation from which the same was properly payable, a balance sufficient to pay for same.

As heretofore held in the case of Rock Island Sand & Gravel Co. vs. State, 8 C. C. R 165, and other cases,

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

No sufficient showing of negligence or fault upon the part of claimant to justify non-payment of the bill appears, and pursuant to the rulings heretofore made, an award is hereby allowed in favor of claimant in the sum of $81.13. The application of claimant for interest on the amount of said bill is denied as there is no statute in the State which permits the payment of costs and interest. (See Southern Kraft Corp. vs. State, 9 C. C. R 306.)


text:
    (No. 3218
    Swift & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

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

delivered the opinion of the court:

The facts herein have been stipulated, and from such stipulation it appears that pursuant to the order and request of the respondent, claimant herein on June 1st, 1937 delivered to the respondent for the use of the Alton State Hospital, a State charitable institution located at Alton, Illinois, 240 dozen eggs; that the reasonable value of such merchanclise at such time and place was $53.93; that claimant thereafter submitted a bill therefor, but through no fault or neglect on the part of the claimant, the bill was not vouchered for payment prior to the lapse of the appropriation from which the same was payable; that at the time such merchandise was purchased, there remained in such appropriation an unexpended balance sufficient to pay for such merchandise in full.

We have repeatedly held that where supplies have been furnished to the State on the order or request of an official authorized to purchase the same, and a bill therefor has been submitted within a reasonable time but the same has not been 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 supplies will be made, where at the time of the purchase thereof, there were sufficient funds, remaining unexpended in the proper appropriation to pay for the same. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, No. 3105, decided at the January Term, 1938.

Award is therefore entered in favor of the claimant for the sum of Fifty-three Dollars and Ninety-three Cents ($53.93).


text:
    (No. 3209
    Pure Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

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

delivered the opinion of the court:

From the stipulation of facts herein it appears that between June 6th and June 20th, 1937, the claimant, pursuant to proper authorization, order and request furnished and delivered to the respondent at Naperville, for use in connection with the operation and maintenance of certain motor vehicles used by the Division of Highways, Department of Public Works and Buildings of the respondent, thirty-six gallons of gas and eleven pounds of grease; that the usual and customary charge therefor at that time and place was $9.14; that no bill therefor was presented prior to September 30th, 1937, the date on which the appropriation lapsed out of which payment should have been made; that at the time such merchandise was puchased, there was an unexpended balance in the appropriation out of which payment should have been made, sufficient to pay such claim in full.

We have repeatedly held that where supplies have been furnished to the State on the order or request of an official authorized to purchase the same, and a bill therefor has been submitted within a reasonable time, but the same has not been 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 supplies will be made, where at the time of the purchase thereof, there were sufficient funds remaining unexpended in the proper appropriation to pay for the same. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, No. 3105, decided at the January Term, 1938.

Claimant presented its claim within a reasonable time, and under the facts and the law as above set forth, is entitled to an award.

Award therefore is entered in favor of the claimant for the sum of Nine Dollars and Fourteen Cents ($9.14).


author: Mb. Chief Justice Hol-lebich

text:
    (No. 3183
    Coleman Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1938.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hol-lebich

delivered the opinion of the court:

From the stipulation of facts herein it appears that on April 14th, 1937 claimant delivered to the respondent at Peoria State Hospital, for use at such institution, pursuant to the order of the Chief Clerk thereof, sixty-five gallons of motor oil; that the usual and customary charge for such merchandise at the time and place of the delivery thereof was $28.60; that claimant thereafter submitted its bill to the Chief Clerk of such institution, and through no fault on the part of the claimant, such bill was not vouchered for payment prior to the lapse of the appropriation out of which the same should have been paid, to-wit, on September 30th, 1937; that at the time such merchandise was ordered, there remained in the proper appropriation an unexpended balance sufficient to pay such bill in full.

We have held in numerous cases that where supplies have. been furnished to the State on the order or request of an official authorized to purchase the same, and a bill therefor has been submitted within a reasonable time, but the same has not been 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 supplies will be made, where at the time of the purchase thereof, there were sufficient funds remaining unexpended in the proper appropriation to pay for the same. Rock Island Sand and Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Wabash Telephone Co. vs. State, No. 3105, decided at the January Term, 1938.

Under the facts and the law as above set forth, claimant is entitled to an award.

Award is therefore entered in favor of the claimant for the sum of Twenty-eight Dollars and Sixty Cents ($28.60).


author: Mb. Chief Justice Hollerich

text:
    (Nos. 3215-3216, Consolidated
    James H. Wolfe, No. 3215 and Metropolitan Trust Company, No. 3216, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1938.

    Lloyd T. Bailey, for claimants.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Both of above claims grow out of the same accident; both claimants are represented by the same counsel; and the claims are therefore consolidated for the purpose of this hearing.

The respective complaints allege in substance that about 3:30 A. M. on the 27th day of September, A. D. 1936, the claimant, James H. Wolfe, was driving his automobile in a northerly direction on Cicero Avenue in the City of Chicago; that his wife, Marie Wolfe, was riding as a passenger in said automobile; that said James H. Wolfe and said Marie Wolfe were each in the exercise of all due care and caution for his and her own safety; that said Cicero Avenue was then a State highway known as Route No. 50; that between 39th and 42nd Streets in said City of Chicago, said Cicero Avenue intersects a certain viaduct and passes under the tracks of the Chicago and Alton Railroad Company; that it was dark and raining; that said automobile so being driven by the claimant, James H. Wolfe, as aforesaid, then and there ran into and struck a pillar supporting said viaduct; that as a direct and proximate result thereof said Marie Wolfe sustained injuries from which she died on the same day; said James H. Wolfe was seriously and permanently injured, and said automobile was damaged to the extent of $150.00; that said Marie Wolfe left her surviving- her husband, James H. Wolfe, and her infant daughter, Marie Ann Wolfe; that the Metropolitan Trust Company was duly appointed Administrator of the Estate of said Marie Wolfe; that the accident in question resulted from the carelessness and negligence of the respondent in the construction and maintenance of said highway and in failing to provide lights, signs or other warnings on said viaduct and the pillars supporting the same.

Both complaints also allege that on March 9th, 1937 the claimants filed their respective complaints in the Circuit Court of Cook County, ag-ainst the City of Chicago and The Alton Railroad Company; that on January 27th, 1938 the Presiding Judge dismissed both cases for the reason that said highway at the point in question was a State highway; and that the respondent herein was therefore charged with the duty to care for and maintain the same.

The Attorney General has entered a motion to dismiss in each case, for the reason that the respondent is not liable for the negligent and wrongful acts of its employees in the construction and maintenance of its highways.

We have repeatedly held that in the construction and maintenance of its system of State highways, the State is acting in a governmental capacity. Spurrell vs. State, No. 2228, decided September Term, 1937; Tivnan vs. State, 9 C. C. R. 495; McGready vs. State, 9 C. C. R. 63; Baumgart vs. State, 8 C. C. R. 220; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104.

It has been uniformly held in this State that in the exercise of its governmental functions, the State is not liable for the negligence of its agents or employees, in the absence of a statute making it so liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; City of Chicago vs. Williams, 182 Ill. 135; Royal vs. State, 9 C. C. R. 67; Ryan vs. State, 8 C. C. R. 361; Wilson vs. State, 8 C. C. R. 72; 25 R. C. L. p. 407, sec. 43.

Furthermore, as to the case of Metropolitan Trust Co., No. 3216, the complaint was filed in this court on March 1st, 1938, to-wit, more than, one year after the date of the death of said Marie Wolfe.

Our Supreme Court has held in numerous cases that the one year period fixed by the Injuries Act for commencing an action for wrongful death is not to be considered merely as a statute of limitations but is a condition of liability, and that if suit is not commenced within the time fixed by the statute, plaintiff cannot recover. Hartray vs. Chicago Railways Co., 290 Ill. 85; Goldstein vs. Chicago City Railway Co., 286 Ill. 297; Carlin vs. Peerless Gas Light Co., 283 Ill. 142.

For the reasons above set forth, the motion to dismiss in each case must be allowed.

It is Therefore Ordered that the motion to dismiss, in each case, be allowed, and the case dismissed.