text:
    (No. 2573
    James O’Neill, Clamant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Sims, Stransky & Brewer and T. I. McKnight, for claimant.

      Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

An opinion was. filed in this cause on October 17, 1935, wherein the motion of the Attorney General was allowed to dismiss the claim for failure of claimant therein to show that notice of claim had been given within six months after the accident, as required by Section 24 of the Workmen’s Compensation Act. An award was denied. Thereafter, on November 16, 1935, claimant filed his Petition for Re-hearing, and alleged therein that if such re-hearing was granted claimant would be able to show that such notice of claim had been duly given to respondent. The Petition was allowed and on February 6, 1937, claimant filed a Supplemental Brief citing the then recent decision of the Supreme Court of Illinois in the case of United Airlines vs. Ind. Comm. 364 Ill. 346, decided on October 27, 1936, wherein the court, in considering the effect of the payment of full wages upon claimant’s limitation of time for giving of notice of claim, said:

“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 make demand for further compensation as long as the payments are continued. * * * The mere 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.”

Supplemental evidence was filed herein on November 12, 1937, showing claimant’s present restricted earning capacity, and on November 15, 1937 claimant filed a further additional brief, again citing the United Airlines case (supra).

Contrary to the allegations in claimant’s Petition for Rehearing*, he did not upon the taking of additional evidence after such petition was granted, produce any evidence to show that notice had in fact been given by claimant to respondent of his intention to make claim for compensation for the accident in question, and the record now stands in that respect the same as it did when the original opinion was filed herein on October 17, 1935.

The decision in the United Airlines case was not handed down by the Supreme Court of Illinois for more than a year after the opinion of this court in the case at bar. Under that decision and under Field and Company vs. Ind. Comm. 305 Ill. 134, the rule is announced 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; further, that when the employer has knowledge of the injury, and does not deny liability, the employee has the right to regard the payments as having* been made under the Act and is not bound to make demand for further compensation as long* as the payments are continued. While this seems a broad construction to give to the wording* of Section 24 of the compensation Act, such has been the ruling* in regard to cases of industrial employment, and we feel impelled to follow such construction. Payment of wages were made to claimant until the time he was discharged on September 10, 1934. His claim was filed with the clerk of this court on January 9, 1935, and we therefore find that the court has jurisdiction of the subject matter and the parties hereto.

We further find that claimant on January 11, 1934, was an employee of the State of Illinois, and at the time of the accident in question was a highway policeman, employed by the State Highway Department; that on said date while in the course of his regular employment the automobile which he was driving was struck at the intersection of Western Avenue and Roosevelt Road in Chicago by a southbound automobile, driven by one Steve Pietrzyk who, in disregard of the signal light, crashed into the car driven by claimant, causing serious bodily injuries to the latter; that he was confined to the hospital for nine (9) days, and as a direct result of the injuries suffered in said accident, received a permanent injury to his vocal cords- and has since been unable to speak above a whisper, that such accident arose out of and in the course of his employment; that his wages at the time of said accident were Two Hundred Ten ($210.00) Dollars per month; that he suffered temporary total disability from January 11, 1934 to March 1, 1934; that he continued to receive his full wages until he was discharged on September 10, 1934. So far as the record discloses claimant is married but has no children. He has been employed at different occupations since being discharged by the State, having worked as a messenger in the City Hall at Joliet, at One Hundred Twenty Five ($125.00) Dollars per month, and as a farm hand, at One Hundred ($100.00) Dollars per month. The basis for his claim at this time is a permanent paralysis to his vocal cords which prevents, him from being able to speak above a whisper and which prevents him from obtaining certain employments which bn held prior to his employment by the State, such as serving as- an umpire in various baseball leagues, and as a railroad employee; his failure to obtain such jobs being attributed by him to his inability to speak above a whisper. In answer to a direct question (Transcript p. 9) of, “Whether his discharge was due to his physical condition or whether politics was responsible,” claimant stated, “That he always thought his discharge was- due to- politics.” However that may be, the record now discloses that claimant has a permanent partial disability, i. e., a throat injury, resulting from the accident in question and causing him to be unable to pursue his usual and customary lines- of employment. A report, filed by Dr. Charles J. Carlin and by Dr. E. W. Lennon of the New Prison Hospital at Joliet, states that claimant is suffering from “Paresis of the vocal cords, — is unable to speak above a whisper and in their opinion such condition is traced to the accident in question.” Claimant’s, wages at the time of his injury were Two Hundred Ten ($210.00) Dolías per month. The best wage which he has been able to obtain since his discharge by the State, was a messenger at One Hundred Twenty-five ($125.00) Dollars per month, which job he voluntarily resigned.

Section 8 (d) of the Act provides:

“If after the injury, etc., the employee as a result thereof becomes partially incapacitated, etc., shall etc. receive compensation, subject to limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of said section, equal to fifty per centum of the difference between the average amount which he earned before the accident and the average amount which * * * he is able to earn in some suitable employment or business after the accident.”

From the foregoing we find the difference between the average amount claimant earned before the accident and that which he is able to now earn is $1,020.00 per year. Fifty per cent thereof or $510.00 is the equivalent of $9.80 per week, or the weekly compensation to which claimant is entitled under the provisions of Section 8 (d) for permanent partial disability.

Claimant is entitled to compensation for temporary total disability of $15.00 per week from January 11, 1934 to March 1,1934, or $105.00.

He is also entitled to compensation for permanent partial disability from March 1,1934 for a period not to exceed eight (8) years at $9.80 per week, subject to the limitation of Section 8 (d).

Claimant has heretofore been paid at the rate of $210.00 per month from January 11, 1934 to September 10, 1934, being the equivalent of $48.46 per week for a period of thirty-four (34) weeks and four (4) days, or $1,679.92.

Figured to the most convenient current date, the compensation due him is as follows:

From January 11, 1934 to March 1, 1934, @ $15.00 per week........$ 105.00
From March 1, 1934 to September 10, 1934 @ $9.80 per week........ 271.12
From September 10, 1934 to December 9, 1937 @ $9.80 per week.... 1,651.29
$2,027.41
Heretofore paid .......................................... 1,679.92
Balance earned and due to December 9, 1937...................$ 347.49

such latter sum being payable instanter, and monthly payments thereafter being* due at the rate of $9.80 per week for a further period of two hundred and one weeks; and a final payment thereafter of Two Dollars and Seventy-nine Cents ($2.79), the total of such deferred payments being $1,972.59.

The motion of the Attorney General to dismiss the complaint is now denied and an award is hereby entered in favor of Claimant James O’Neill for the snm of Three Hundred Forty Seven and 49/100 ($347.49) Dollars, payable instanter, and) monthly payments thereafter at the rate of Nine and 80/100 ($9.80) Dollars per week for a further period of Two Hundred and One (201) weeks; and a final payment of Two and 79/100 ($2.79) Dollars; the total of such deferred payments being $1,972.59, and such deferred payments being made subject to the further order of this court, for which jurisdiction of this cause is hereby retained.

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.


source: Caselaw Access Project

author: Mr. Justice Tantis

license: Public Domain

text:
    (No. 3106
    Irene Emling, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1937.

    Levin, Frank &■ Rabiohow, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant is a former employee of the Illinois Emergency Relief Corn-mission. She files this claim “on behalf of herself and on behalf of all other persons who may at any time hereafter desire to become parties hereto.” Claimant alleges that she was in the employ of the commission from May 1, 1935 to April 30, 1936; that she was entitled to two weeks vacation with pay as such employee; that she did not receive snch vacation and therefore seeks an award for a snm equal to two weeks’ salary.

The Attorney General has filed a motion to dismiss the complaint.

Claimant’s petition recites that proceedings in mandamus were instituted in the Superior Court of Cook County in behalf of claimant and others, on October 26,1936, asking for a writ to be directed against the Illinois Emergency Belief Commissioners to pay the vacation salaries due claimant and others; that such proceedings were dismissed by the Superior Court. The Attorney General contends that this court should not now take jurisdiction, for the reason that in so doing it would be in effect reviewing the action of the Superior Court of Cook County, and that claimant should have proceeded with her action there if she desired to receive further consideration. Claimant, in her answer to the motion to dismiss, represents that the decision of the Superior Court was not on the merits of the claim, but “rather on a motion to dismiss, predicated mainly upon the ground that mandamus was not a proper remedy to enforce the rights of claimant.” If claimant had a right to a vacation period which was being denied, such right could have been enforced by mandamus, and this court will not review the action of the Superior Court in refusing to grant such right.

Similar demands to that here presented have recently been before the court, and awards therein denied. " (See Stephen O. Tripp vs. C. of C., No. 2248.)

Claimant places her demand upon Buie 7 of the Civil Service Commission, effective June 9, 1934, Sub-section 3 of Section 4, wherein it is provided:

“That all employees may be granted not to exceed two weeks’ vacation with pay during any one year.’’

The Attorney General contends that Section 22 of the Civil Administrative Code has no application to employees of the Illinois Emergency Belief Commission; such Section (Ch. 24 (a), Ill. State Bar Statutes, 1935) providing as follows :

“Each employee in the several departments shall be entitled, during each calendar year, to fourteen days’ leave of absence with full pay.”

Further, that in Paragraph 2 of the same Act it is provided:

“That the word ‘department’- as used in this Act shall, unless the context. otherwise clearly indicates, mean the several departments of the State government as designated in Section 3 of this Act, and none other.”

The Illinois Emergency Belief Commission is not designated in Section 3 of such Act, and in our opinion is not otherwise indicated by the context thereof. Nowhere in the Act creating such commission (Paragraphs 463-4-5, Ch. 23, State Bar Statutes, 1935) is there any provision which authorizes the employees of such commission to receive pay in lieu of vacation periods.

Claimant further contends that the Act creating the Illinois Emergency Belief Commission authorizes the officers to promulgate such rules and regulations as in their discretion deemed proper or advisable for the efficient administration of their department, (Section 1, Par. 463, Ch. 23, Cahill’s Ill. Bevised Statutes, 1935). Further, that acting under such authority, the commission, on May 26, 1935 issued Bulletin No. 2327 as follows:

“Vacations for employees have been authorized as follows: The vacation period will extend from May 1, 1935, to October 31, 1935. Employees who have been in the continuous employ of the Commission for a period of six months prior to May 1, 1935, will be entitled to one week’s vacation with pay, and if desired, one additional week without pay. In determining qualifications for vacations, the following rules shall apply:
(a) Qualifications for vacation depend upon continuous service.

Conceding for the moment, that the commission had authority to give vacations with pay, under authority of the foregoing statute and rule, claimant would still not be entitled to double pay for any portion of time for which she was actually in service, or entitled to any additional pay after her services to the State were terminated, even though she had failed to obtain a vacation which she might have requested. Attention is further called to the fact that in the wording of Section 1 above quoted, the commission is referred to as a distinct department. ' Such department is not included under the provisions of Section 22 of the Civil Administrative Code, Chapter 24 (a), State Bar Statutes, 1935.

The averment set forth in plaintiff’s claim and in the amendment filed thereto, on July 6, 1937, are not sufficient upon which to predicate an award. The motion of the Attorney General to dismiss is allowed and an award .denied.


author: Mr. Justice Yantis

text:
    (No. 2141
    Business Men's Assurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, December 15, 1937.

    Evan Howell) for claimant.
    Otto Keener, Attorney General; Gael Dietz and John Kasserman, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant is a Missouri corporation licensed to do business in Illinois, under the provisions of “AN ACT TO ORGANIZE AND REGULATE THE BUSINESS OF LIFE INSURANCE, Approved March 26, 1869.” Section 23 of such Act provides that the Superintendent of Insurance shall be paid Two ($2.00) Dollars for each Certificate of Authority; that another Insurance Law, i. e. “AN ACT CONCERNING THE BUSINESS OF CASUALTY INSURANCE, Approved April 22, 1899,” in Section 15 thereof prohibits the solicitation of business by an agent for any casualty company without first procuring from the Superintendent of Insurance, a Certificate of Authority, and without first paying a fee of Two ($2.00) Dollars for each such certificate.

Prior to July 13,1932 the Superintendent of Insurance of Illinois required that companies licensed to write insurance business in Illinois, should procure separate licenses under the two foregoing statutes. On July 13, 1932 Hon. Oscar E. Carlstrom, Attorney General of the State of Illinois, issued an opinion in which he announced in substance that agents of Life Insurance Companies operating under the provisions of the Act of 1869, and whose companies had also availed themselves of the provisions of the Act of 1919 to write accident and health insurance, should be permitted to write both lines of business by the issuance of one certificate to such agents and the payment of only one fee for each to the Insurance Department.

Claimant had voluntarily paid separate license fees under the two statutes for the years intervening between the dates of April 27, 1920 to July 13,1932, amounting to the sum of Seven Hundred Sixty-six ($766.00) Dollars, for which claimant now seeks an award. The Attorney General filed a motion to dismiss the complaint. A stipulation of the above facts has been filed and the motion is considered with the stipulation.

This case falls within that group wherein claims have been denied because the payment had been made under a mistake of law or because of the unconstitutionality of the law under which such payments were made.

“Taxes voluntarily paid cannot be recovered unless there is a statute authorizing such recovery. The fact that the law under which such tax was levied and paid is declared unconstitutional does not authorize the court to make an award for the recovery of same.”
Wm. Wrigley, Jr., Co. vs. State, 7 C. C. R. 153.
Marx & Hass Clo. Co. vs. State, 7 C. C. R. 139.

The motion of the Attorney General to dismiss is allowed ; award denied and claim dismissed.


author: Me. Justice Yantis

text:
    (Nos. 2005-2006, Consolidated
    D. H. Blue, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, December 15, 1937.

    M. D. Morahn, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The above entitled cause now again comes before the court upon a rehearing heretofore granted, following the rendition of the original opinion at the May, 1934 term. An award is sought for damages for overflow of farm lands in the possession of claimant as tenant, which is alleged to have occurred on or about March 15, 1928 and on or about July 4, 1928. In Claim No. 2005 claimant sought an award of three thousand four hundred thirty ($3,430.00) dollars, and in Claim No. 2006 his damages were averred in the sum of two thousand one hundred sixty ($2,160.00) dollars.

In both claims plaintiff alleged that the State of Illinois was the owner and in control, possession and operation of a certain improvement made upon the Illinois River at a point known.as “Starved Rock Dam Site” in LaSalle County, Illinois, and that the State, through a Deep Waterway Bond Issue, began and carried on the construction of said deep waterway, together with the construction of a dam, locks, run-ways, embankments and other work necessary to carry on the building and maintaining of a deep waterway; that it was the duty of the defendant, in the construction and maintenance thereof, to build, keep and maintain the water course in that vicinity reasonably clear of any and all obstructions as they emptied into the Illinois River, so as not to cause the natural flow of waters to be obstructed, or to cause any of the creeks or other waters flowing into the Illinois River to become dammed up or the course thereof changed in such manner as to cause such waters to change their course or to overflow on the adjoining land; that the defendant disregarded its alleged duty in this respect, and that through its agents and servants failed and neglected to keep the flow of water in and upon the natural course of a creek which ran adjacent to and through the property of plaintiff, and caused same to overflow by having constructed a large embankment along the Illinois River at the point indicated, thereby causing waters to flood the lands so rented by the plaintiff, and upon which the crops, alleged to have been damaged, were then growing.

An award was denied and the claim dismissed by the former opinion of the court because of those provisions of the statutes of Illinois contained in Paragraphs 113 and 114, Chapter 19 of Cahill’s Illinois Statutes in force at the time of the alleged losses.

After providing for liability upon the part of the State for damages occasioned by reason of the construction, maintenance or operation of the Illinois Waterway and its appurtenances, (Chapter 19, Par. 113) such statute provides as follows:

“All claims for damages to persons (except to employees) and all claims for damages to properly, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings, and paid out of any moneys which shall, from time to time, be provided for the payment of such claims.”

Said section then sets forth the manner in which the arbitration and determination of such claims shall be had, and then follows the following:

“All claims for damages to persons or property shall be filed with the Department of Public Works and Buildings within five years after the injury complained of.” (Chapter 19, Paragraph 114-)

In his petition for rehearing claimant alleged that his statement, brief and argument was not presented to the court before the rendering of the decision; that the jurisdiction which the legislature attempted to give to the Department of Public Works and Buildings to hear and determine damages is unconstitutional, does not supercede the Court of Claims Act and does not prescribe or make any provision for the payment of an award for damages which might be ascertained by the Board of Arbitration provided for therein, and that any action by such Department, under the provisions of the Illinois Waterway Act, would therefore be subject to the final jurisdiction of the Court of Claims.

In the brief filed by claimant, under date of May 4, 1934, claimant relies upon Section 13 of An Act to create the Court of Claims, etc., approved June 25, 1917, wherein it is provided that,

“The jurisdiction conferred upon the Court of Claims by this Act shall be exclusive. No appropriation shall hereafter he made by the General Assembly to pay any claims or demands over which the Court of Claims is herein given jurisdiction, unless an award therefor shall have been made by the Court of Claims.”

The Illinois Waterway Act was approved June 17, 1919 (Laws 1919, p. 977). We are of the opinion that when the legislature inserted therein the provision contained in section 24 of that Act that, “All claims for damages to property, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings,” used such words advisedly, and that purported damages arising through the construction or maintenance of such Illinois Waterway should first be inquired into and arbitrated under the direction of the Department of Public Works and Buildings.

In our former opinion we called attention to the fact that there is no provision in said Illinois Waterway Act authorizing the Court of Claims to take jurisdiction over claims arising in connection with such Illinois Waterway, except as to employees, who might be injured while working on same. Such statement is correct. Claimant in his petition for rehearing contends that the Court of Claims has original and exclusive jurisdiction to hear and determine damages arising out of the construction or maintenance of such waterway. We do not believe this contention to be correct. When the two Acts are considered together the legislative intent that arbitration of damage claims should first be had, is apparent. In such arbitration if damages were found to be due the claimant such damages would have been payable, under the terms of the Waterway Act (Sec. 24) “out of any moneys which shall from tim.e to time be provided for the payment of such claims.” There having been no compliance by the claimant with the provisions of the Waterway Act for arbitration of his claims and a determination of the amount thereof by the Department of Public Works and Buildings, his claims for damages are not properly before the court for consideration, because of his failure to comply with such preliminary requirements. We hold that the legislative provisions for such inquiry and determination of damages as prescribed by the Waterway Act were fully within the legislative province, and the original opinion of the court is reaffirmed and an award in the consolidated action by claimant is hereby denied.


author: Me. Justice Yantis Me. Justice Yantis

text:
    (No. 2007
    Frank F. Follett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1934.

      Rehearing granted September 15, 1937.

      Opinion on rehearing filed December 15, 1937.

    M. D. Morahn, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

The facts alleged in the complaint and the law pertaining thereto are identical with those set forth in Claims No. 2005 and No. 2006, D. H. Blue vs. The State of Illinois, except that the said D. H. Blue was the tenant of lands alleged to have been flooded by overflow waters, and the claimant herein, Frank F. Follett, as receiver, was the landlord and entitled as such to a portion of the rents and products of said land, as set forth in Claim No. 2005.

The Attorney General asks that his motion to dismiss in the other cases shall apply to this case, and it appearing by the recitals in said complaint that the matters therein alleged are within the provisions of the Illinois Waterway Act, this court is without jurisdiction and the motion to dismiss should be allowed. (See opinion in D. H. Blue vs. State of Illinois, No. 2005). Motion to dismiss allowed.

N. B. Additional Opinion on Rehearing.

Me. Justice Yantis

delivered the opinion of the court:

This cause again comes before the court after the allowance of a petition for rehearing. As stated in the original opinion filed in the above cause at the May term, A. D. 1934, the only variance between this action and that of D. H. Blue vs. The State Court of Claims, No. 2005 and No. 2006 is that claimant herein was the landlord of lands involved, and D. H. Blue was the tenant thereon.

This is also true in the consideration of this cause under the rehearing heretofore granted. An opinion has heretofore been filed in the other two cases, i. e. Blue vs. State, No. 2005 and No. 2006 reaffirming the former opinion, and denying an award. The views expressed in those cases apply to the instant case. The motion by the Attorney General to dismiss this case is allowed and an award denied.


author: Me. Chief Justice Hollerich

text:
    (No. 2760
    Josephine Pennie, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1938.

    George Holloway Webb, for claimant.

      Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

This case comes before the court on a stipulation of facts substantially as follows:

Claimant resides in the City of Chicago, and on September 19th, 1930 was certified by the Civil Service Commission to the position of senior department stenographer in the classified service of the State Athletic Association of Illinois, at a salary of $150.00 per month. She continued in such position until March 16th, 1933, upon which date Joseph Triner, then Chairman of the State Athletic Commission of Illinois, prevented her from working and ordered her not to work, and thereafter continued to prevent her from so working, and placed one Sarah Reedy in claimant’s position to do her work.

Claimant filed her protest with the State Civil Service Commission, which Commission, on August 17th, 1933, rendered its decision finding that claimant had not been legally discharged nor properly laid off, and that she ought to be continued in the same employment, and ordered the State Athletic Commission to reinstate her in the position of senior department stenographer and pay her salary from the date of her attempted dismissal to July 1st, 1933, in accordance with the prayer of her petition.

. On August 21st, 1933 claimant reported to said Joseph Triner for duty as senior department stenographer and requested that she be assigned to work. Said Triner refused to allow her to work and refused to obey the aforementioned order of the Civil Service Commission and continued in such refusal until May 16th, 1934.

On January 9th, 1934 claimant instituted mandamus proceedings in the Superior Court of Cook County to compel obedience to the aforementioned order of the Civil Service Commission, and in such proceedings presented her demand for back wages, substantially as claimed in this proceeding. Before said mandamus suit came to trial, to-wit, on May 16th, 1934, claimant was reinstated in her former position and thereupon dismissed the mandamus proceedings.

The salary of said senior department stenographer was $150.00 per month at the time of claimant’s original appointment, and continued at that amount until July 1st, 1933, on which date it was reduced to $112.50 per month, and so remained until May 16th, 1934.

Prior to the last mentioned date the money appropriated for the salary of said senior department stenographer had been paid to other employees.

Claimant seeks an award for the wages or salary of senior department stenographer from July 1st, 1933 to and including May 15th, 1934, to-wit, ten and one-half months, at $112.50 per month.

The Attorney General contends that claimant is not entitled to an award, and relies upon the rule laid down in the case of The People vs. Burdett, 283 Ill. 124, in which our Supreme Court said:

“One of the defenses interposed by appellants is that a de jure officer or employee who has been for a time wrongfully prevented from discharging the duties of his office cannot recover from the State the salary for such time when it has been paid to a de facto officer who has discharged the duties of the position during the period of time the de jure officer was prevented from discharging them. This was held to be a good defense in People vs. Schmidt, 281 Ill. 211, where the precise question here raised was passed upon and where it was held the de jure officer could not in such case recover.”

In the case of The People vs. Schmidt, 281 Ill. 211, referred to in the Burdett case, the court, on page 213, said:

“The general rule is, that if the payment of the salary or other compensation to be made by the government is made in good faith to the officer de facto while he is still in possession of the office, the government cannot be compelled to pay a second time to the officer de jure when he has recovered the office, — at least where the officer de facto held the position by color of title.”

The rule laid down in the Schmidt case and in the Burdett case was approved in the case of Hittel vs. City of Chicago, 327 Ill. 443, and in the case of O’Connor vs. City of Chicago, 327 Ill. 586.

In the consideration of the case now before the court, the following facts which have been stipulated must constantly be kept in mind, to-wit:

Claimant filed her protest with the State Civil Service Commission as provided by law; said commission had a hearing on said protest and rendered a decision therein on August 17th, 1933, finding that claimant had not been legally discharged nor properly laid off, and that she ought to be continued in the same employment, and ordered the State Athletic Commission to reinstate her in the position of senior department stenographer and pay her salary from the date of her attempted dismissal to July 1st, 1933; also that on August 21st, 1933 claimant reported for duty as senior department stenographer and requested that she be assigned to work, but the then Chairman of said Commission refused to allow her to work and neglected and refused to obey the order of the Civil Service Commission and continued to so neglect and refuse until May 16th, 1934.

The foregoing facts, stipulated as aforesaid, distinguish the present case from each and all of the cases hereinbefore referred to. In all of those cases the plaintiff sought to recover salary for a period of time prior to the time he was adjudged entitled to the position. In the present case, practically all of the time for which the claimant is seeking to recover salary is time which elapsed after she was adjudged entitled to the office, and' after the Civil Service Commission had ordered her reinstated, and after she had reported for work and was refused permission to perform the duties of her position.

The reason for the rule laid down in the foregoing cases is set forth in the Hittel case (327 Ill.), on page 447, as follows :

“The exigencies of society require efficient performance of official duties, and to secure such performance prompt payment therefor is an essential requisite. Disbursing officers of municipalities are not clothed with judicial power to determine whether or not a person vested with the indicia of an office and performing the duties of such office is, in fact, a de jure officer lohere there has been no judicial determination of such fact. To require the public authorities to withhold the pay of an incumbent or public officer until a judicial decision, or pay the same at the peril of having to pay the same a second time, would be a source of much embarrassment and greatly tend to impair the efficiency of the public service. In the instant case, during all the time for which the compensation in question is claimed, a person other than plaintiff was the de facto chief street engineer for defendant (People vs. Schmidt, supt'a) and received the compensation for his services. Plaintiff had not at that time been adjudicated the de jure chief street engineer. Payment to such de facto employee was a good defense to this suit, and the Circuit and Appellate Courts erred in holding otherwise.”

The language used by the Supreme Court in the Schmidt case, page 213, is significant. The court there said:

“The general rule is that if the payment of a salary or other compensation to be made by the government is made in good faith to the officer de facto while he is still in possession of the office, the government cannot be compelled to pay a second time to the officer de jure when he has recovered the office,” etc.

The natural inference from the language used is that the rule there laid down is confined to the time prior to the time when the officer de jure has recovered the office.

Attention is called to the fact that in the Hittel case the court in the quotation above set forth specifically limits the reason for the rule to cases “where there has been no judicial determination of such fact” Also, that such court, in speaking of the right of the plaintiff in that case to recover, specifically pointed out that “plaintiff had not at that time been adjudicated the de jure chief street engineer.”

The reasons set forth in the Hittel case, as the basis for the decision of the court, have no application to the present case, as to the period of time after the claimant had been adjudicated entitled to the position, and consequently the rule announced in such case cannot be held to apply in this case as to such period of time. The decision of the Civil Service Commission definitely established the right of the claimant to the position. As to the wages for the period prior to the time claimant was adjudged entitled to the office, the rule laid down in the Schmidt case, the Hittel case, and other similar cases undoubtedly applies, but as to the time subsequent to the decision of the Civil Service Commission, such rule has no application.

The rule announced in the Schmidt, Burdett and Hittel cases must be considered in the light of the facts in such cases, and cannot be extended to cover an entirely different statement of facts.

The only case in this State which we have been able to find in which the facts are similar to the facts in the case at bar is the case of The People vs. Thompson, 316 Ill. 11. In that case Thompson for some time prior to September 23d, 1922 was the legally appointed and qualified second assistant fire marshal of the City of Chicago, a position classified under the Civil Service law. On the last mentioned date he was brought before the commission on certain charges preferred against him and the commission entered an order directing his discharge. Subsequent to November 1st, 1922 one Patrick Egan discharged the duties of the office and received the compensation therefor.

In certain certiorari proceedings in the Circuit Court of Cook County, the record of the Civil Service Commission discharging Thompson was “quashed and for naught esteemed,” by the judgment of the Circuit Court in such proceedings, entered December 18th, 1922. On January 14th, 1923 Thompson served a written notice of the order of the Circuit Court upon the proper authorities of the City, and demanded that he be restored to his position, and that he be paid the salary appropriated for such office from December 18th, 1922, the date of the aforementioned judgment of the Circuit Court. The defendants refused to recognize Thompson as second assistant fire marshal and the defendant Egan continued to discharge the duties of the office and draw the pay therefor. In disposing of the question there involved, the court, on page 16, said:

“The rule in this State is, that the payment in good faith of the salary of an officer to a de facto officer constitutes a bar to an action by the de jure officer for the salary paid to the de facto officer. (People vs. Schmidt, 281 Ill. 211.) The well defined exception to the above rule is that where the relator is illegally removed from his office and the salary has been paid to another person illegally appointed in his stead a writ of mandamus will be awarded requiring the re-instatement of the relator in office and the payment of his salary during his illegal removal. (People vs. Brady, 262 Ill. 578; People vs. Stevenson, 270 id. 569; People vs. Coffin, supra). The relator in this ease was clearly entitled to be paid his salary from December 18, 1922, the date of the judgment of the circuit court in the certiorari proceedings, and is entitled to the writ to compel the payment of the same.”

The court recognized the general rule as laid down in the Schmidt case, but further recognized an exception thereto under the facts in the case before the court. The facts in the present ease are similar to the Thompson case, and in accordance with the rule there laid down, the claimant is entitled to recover the salary of her position from the date she reported for duty, to-wit, August 21st, 1933, to May 16th, 1934.

To sustain the contention of the respondent herein would be to destroy entirely the effectiveness of the Civil Service Law. Employees in the classified Civil Service could be discharged at the whim or caprice of the officer in charge, and others placed in such positions and paid the salary therefor. If recourse were had by the ousted employee to the Civil Service Commission, and an order entered directing the reinstatement of such employee, such order could be disregarded, and the de facto appointee could be continued in office and receive the salary thereof. If the ousted employee then had resort to mandamus proceedings, and a writ was awarded, the writ could still be disregarded, the de facto appointee could be still continued in office and paid the salary thereof, and the person who had been adjudged to be legally entitled to the office would have no relief. The person refusing to obey the mandate of the court might subject himself to proceedings for contempt of court, but under the rule contended for by the respondent, the de facto employee would continue to receive the salary of the position, and the ousted employee by reason thereof would be barred from recovery. Such cannot be the law.

The views here expressed are also supported by the opinion of the Supreme Court of the United States in the case of U. S. vs. Wickersham, 201 U. S. 390, 50 Law Ed. 798.

Award is therefore entered in favor of the claimant for the wages or salary of her position from the time she reported to work after the aforementioned decision of the Civil Service Commission, to-wit, August 21st, 1933, to May 16th, 1934, at $112.50 per month, to-wit, Nine Hundred Ninety-three Dollars and Seventy-five Cents ($993.75).


author: Mb. Chief Justice Hollerich

text:
    (No. 3105
    Wabash Telephone Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1938.

    Hopkins, Suttee, Halls & DeWolee, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

From the stipulation of facts herein, it appears that the claimant is an Illinois corporation, and that during the years 1933, 1934 and 1935 it supplied telephone service to the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois, a charitable institution maintained and operated by the State of Illinois through its Department of Public Welfare; that the respondent from time to time made payments on its account for telephone services rendered by the claimant, but between July 23d, 1933 and June 29th, 1935 there accrued an unpaid balance of $146.94 in long distance toll charges; that said charges were for telephone services rendered in connection with the official business of said institution, and were the usual and customary charges for the services rendered; that during all of the aforementioned period claimant rendered monthly statements to said School; that at the time said services were rendered, there were sufficient funds remaining unexpended in the appropriation from which the same were properly payable, but for some reason, and without any fault or neglect on the part of the claimant, such charges were not vouchered for payment and no warrant was issued in payment thereof; and that said appropriation lapsed September 30th, 1935.

There is no question but what the services were rendered as claimed, that the charges are the usual and customary charges for such services, that monthly statements therefor were rendered to the proper office of the respondent; and that the only reason why claimant has not heretofore been paid, is the lapse of the appropriation.

We have held in numerous cases that where services have been properly rendered to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable and customary value of the services will be made, where at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, No. 3098, opinion filed June 11th, 1937.

Award is therefore entered in favor of the claimant for the sum of One Hundred Forty-six Dollars and Ninety-four Cents ($146.94).


author: Mr. Justice Linscott

text:
    (No. 2224
    Carl E. Behr, Administrator of the Estate of Walter G. Behr, Deceased; Henry Behr and Minnie Behr, Carl E. Behr, Lincoln A. Behr and Charlotte Behr Buck, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 11, 1938.

    Kennedy & Kennedy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court :

On June 21st, 1933 Walter G. Behr was driving his automobile in an easterly direction on S. B. I. Route No. 7, within the corporate limits of the Village of Annawan in Henry County. Said S. B. I. Route No. 7 extends in an easterly and westerly direction, and is intersected at right angles within the corporate limits of said Village of Annawan by S. B. I. Route No. 78 which extends in a northerly and southerly direction. Said Route No. 7 is a through route and there are no stop signs or caution signs along said route near the aforementioned intersection. On said Route No. 78 there is a caution sign 350 feet south of such intersection, another caution sign 300 feet south of such intersection, and a stop sign 100 feet south of such intersection.

As said Walter Gr. Behr was approaching such intersection on said Route No. 7, two trucks owned by the respondent and operated by employees of its Highway Department, were approaching the said intersection from the south, on said Route No. 78, one truck being about 500 feet ahead of the other. Upon arriving at such intersection, the first truck, without stopping, turned to the right and proceeded in an easterly direction on said Route No. 7. Shortly after the first truck had so turned to the east, and while said Walter Gr. Behr was passing over and across such intersection, the second truck was driven into such intersection without stopping, at a speed of about forty miles per hour, and struck the automobile which the said Walter Gr. Behr was driving, whereby he sustained injuries from which he died on the same day, and his automobile was damaged and destroyed.

Claimant Carl É. Behr was duly appointed administrator of the estate of Walter Gr. Behr by the Probate Court of McLean County, Illinois and the other claimants comprise the heirs at law of said Walter Gr. Behr.

The complaint herein, as amended, seeks to recover damages for the pecuniary loss sustained by the claimants as the result of the death of said Walter G. Behr.

The Attorney General has moved to dismiss the case on the ground that the respondent is not liable under the doctrine of respondeat superior, for the acts of its servants and agents.

Claimants contend that the servant and agent of the respondent in charge of the truck which crashed into the Behr automobile was guilty of gross negligence, as well as wilful and wanton misconduct in the operation of said truck; that said Walter G. Behr was free from any contributory negligence, and that under such circumstances, claimants are entitled to an award.

This court has repeatedly held that in the construction and maintenance of its hard-surfaced roads, the State is engaged in a governmental function. We have also held in numerous cases that in the exercise of its governmental functions the State is not liable for the negligence of its servants and agents. George McCready, et al vs. State, No. 2604, decided at the September term, 1935; Lester A. Royal vs. State, No. 2595, decided at the September term, 1935; Peter Tivnan vs. State, No. 3051, decided at the May term, 1937; Cecil W. York vs. State, No. 2701, decided at the May term, 1937.

Claimants contend, however, that even if there is no liability on the part of the respondent for the negligence of its servants and agents, yet where such servants and agents are guilty of gross negligence or wilful and wanton misconduct, and the decedent was guilty of no contributory negligence, there is a liability on the part of the State.

This precise question was considered by this court in the case of George Franklin Garbutt, Admr. etc. vs. State, No. 2246, on rehearing, in which an additional opinion was filed at the September term, 1937. In that case we said:

“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable.”

Also :

“Even if it be conceded that the facts in the record do show that the servants and agents of the respondent were guilty of gross and wanton negligence, and that claimant’s intestate was free from contributory negligence, still under the repeated decisions of the court the claimant is not entitled to an award. * * *"

To the same effect, see Durkiewiecz vs. State, No. 2484,. decided at the September term, 1937; Pete Stanley, Admr. vs. State, No. 2697, decided at the November term, 1937.

The law as above set forth is decisive of this case.

.The motion of the Attorney General must therefore be sustained. Motion allowed. Case dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 3034
    Edward Kirby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1938.

    E. I. Dove, for claimant.

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

delivered the opinion of the court:

For a few days- prior to and on the 27th day of March, A. D. 1936, the claimant Edward Kirby was employed by the Respondent in the Department of Public Works and Buildings, Division of Highways, and on the last mentioned date was engaged in putting out trees and shrubbery along the right-of-way of S. B. I. Route No. 132, between Sullivan and Allenville, in Moultrie County.

He had finished some work on the west side of the right-of-way, and was moving to a new location farther south and on the opposite side of the highway. For that purpose he was traveling along and across the concrete slab, and was pushing or sliding a long-handled shovel along the concrete in front of him. While claimant was so engaged, one Leonard Vose was driving a truck along said highway in a northerly direction, approaching the claimant. When the truck was about a quarter of a mile from the claimant, it was being driven on the east side of the concrete roadway, and the claimant was walking in a southerly direction, just east of the center line of such roadway. As the truck approached, the claimant kept moving forward and toward the outer edge of the concrete slab. The driver of the truck pulled over to the west side of the roadway in order to pass the claimant, but just before reaching him, turned again toward the east side of the roadway. At the time of the accident hereinafter mentioned, the truck was just about astraddle of the center line of the roadway. The several witnesses; do not agree as to the exact position of the claimant at the time of the accident, but it seems that he was then about midway between the center line of the roadway and the eastern edge thereof.

Just as the body of the truck was passing the claimant he apparently lifted his shovel, and in so doing, it came in contact with the truck which was moving rapidly. The force of the impact was so' great that the handle of the shovel was driven into the muscle of claimant’s right arm, and his elbow, shoulder blade and collar bone were fractured. He was taken to the hospital at Mattoon where he remained approximately six weeks. He was then taken to St. Luke’s Hospital at Chicago and remained therein until May 27th. After that he was given treatments at the Illinois Research Hospital at Chicago until June 22d, 1937, when he returned to his home.

While at St. Luke’s Hospital he was treated and operated by Dr. Thomas of Chicago for osteomyelitis, or rotten elbow. The bad bone was removed, and an attempt made to obtain a complete ankylosis or stiff elbow; — the idea being that if the elbow were completely ankylosed, there would be more strength, though less motion, therein. The operation was successful, but the elbow is not entirely stiff, claimant having about three degrees of motion therein. He also has some limitation of motion in his right shoulder. His grip is not very good and his arm will never be as strong as it was prior to the accident. He is now working as a mechanic hut cannot work as hard or as steadily as he previously did. He now works as long as he can and then lays off. In this way he loses about one-third of his working time. Apparently there is still some trouble with the elbow, as the skin has broken open and there has been a running therefrom, on three occasions since his return home. He appeared personally in court and submitted to- an examination. Under the facts in the record there is no basis for a charge of negligence against the driver of the truck.

The Attorney General contends that the injury did not arise out of and in the course of claimant’s employment, and that therefore he is not entitled to an award. Such contention is based upon the following further contentions, to-wit: 1) The injury was the result of horseplay on the part of the claimant; 2) Claimant in walking along the concrete roadway was violating the orders of his immediate superior, who ordered all employees to walk along the side of the road.

As to the first contention, there is no evidence in the record which even tends to support the same.

As to the second contention, the violation of orders by the claimant, if any, was not of such a nature as to take the claimant out of the sphere of his employment.

The question here presented has been considered by our Supreme Court in a number of cases.

In Republic Iron Co. vs. Ind. Com., 302 Ill. 401, the employee was directed to take a letter to the railroad station, and to use the street car in doing so. He apparently had walked along the railroad track to the station, a distance of some fourteen blocks and was picked up, after being injured, at a place that was generally used by the public. There was also some evidence that he had been seen getting off a street car near the place of the accident. The court sustained an award of compensation, stating that the Commission might have found that he used the street car but that the decision would be the same even if he had disobeyed instructions and walked, and stated (p. 405):

"This court has many times decided that contributory negligence of a party injured is no bar to a recovery under the compensation Act. The most that may be said in favor of defendant in error’s contention is, that the deceased was guilty of negligence in not obeying the orders or directions of Olson. The rule is, that where the violation of a rule or order of the employer takes the employe© entirely out of the sphere of his employment and he is injured while violating such rule or order it cannot be then said that the accident arose out of the employment, and in such case no compensation can be recovered. If, however, in violating such a rule or order the employee does not put himself out of the sphere of his employment, so that it may be said he is not acting in the course of it, he is only guilty of negligence in violating such rule or order and recovery is not thereby barred. (Union Colliery Co. vs. Ind. Com., 298 Ill. 561.)”

In the case of Omaha Boarding and Supply Co. vs. Ind. Com., 306 Ill. 384, the deceased employee made a trip from Chicago to Barrington, Illinois, and on his return in an automobile owned by one of the officers of the company, sustained accidental injuries resulting in death. It was claimed that there were orders that he should use railroad trains in his travel. The court in sustaining an award of compensation, said (p. 389):

“The fact that he was returning in an automobile and not by railroad is of no significance, even if we should find, as defendant in error claims - that the direction of the company was that he should use the railroad trains in his travel while working at his employment. The fact that he traveled in an automobile against the direction of his employer did not take him out of the line of his employment. Violation of orders or directions of the employer by the employee does not defeat the right for compensation where such violation does not take the employee out of the sphere of his employment. Union Colliery Co. vs. Ind. Com., 298 Ill. 561.”

To the same effect, see Imperial Brass Company vs. Ind. Com., 306 Ill. 11; Pauline Embree vs. State, No. 3019, decided at the November Term, 1937.

Under the facts in the record, there is no merit in this contention.

From a personal examination of the claimant, and from a consideration of the facts in the record, we find as follows:

That claimant and respondent were, on the 27th day of March, 1936, operating under the provisions of the Workmen’s Compensation Act of this State; that on said day the claimant sustained accidental injuries which arose out of and in the course of his employment; 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; that the average annual earnings of the claimant during the year preceding the injury in question were Six Hundred Forty Dollars ($640.00), and the average weekly wage was Twelve Dollars and Thirty Cents ($12.30); that claimant at the time of the injury was a married man and had two children under the age of sixteen years; that the necessary first aid, as well as all medical, surgical and hospital services have been provided by the respondent; that the claimant was temporarily totally disabled from the date of his injury as aforesaid, to November 10th, 1936, and has been paid in full for such temporary total disability; that claimant has sustained the permanent loss of sixty-five per cent of the use of his right arm; that claimant is therefore entitled to have and receive from the respondent the sum of Twelve Dollars ($12.00) per week for One Hundred Forty-six and one-fourth (146%) weeks for the permanent loss of sixty-five per cent of the use of his right arm, as provided in Section 8, paragraphs E-13 and E-17 of the Workmen’s Compensation Act; that compensation for the period of sixty-one weeks, to-wit, the sum of Seven Hundred Thirty-two Dollars ($732.00), has accrued to January 11th, 1938.

Award is therefore entered in favor of the claimant for the sum of Seventeen Hundred Fifty-five Dollars ($1,755.00), payable as follows, to-wit:

The sum of Seven Hundred Thirty-two Dollars ($732.00) is payable forthwith.

The balance of said award, to-wit, the sum of One Thousand Twenty-three Dollars ($1,023.00), is payable in eighty-five (85) weekly installments of Twelve Dollars ($12.00) each, commencing January 18th, 1938, and one final installment of Three Dollars ($3.00).

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


text:
    (No. 2363
    The L. E. Myers Co., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1937.

      Rehearing denied January 13, 1938.

    Spitz & Adcock, for claimant.
    Otto Keener, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff’s claim herein rests upon two contracts awarded it in November, 1932. One provided for the construction of a concrete bridge in DuPage County, and the other provided for the construction of three concrete bridges in McLean County. Claimant seeks damages on the DuPage County job on the three following grounds:

(a) Change in plans by respondent.
(b) For labor difficulties encountered by claimant, resulting in winter construction and other expenses incident to a 90-day delay.
(c) Lack of cement.

Claimant seeks damages in connection with the McLean County contract on S. B. I. Route No. 119 on the alleged grounds as follows:

(a) Loss, due to delay in awarding contract incident to right of way.
(b) Additional expense" incurred because of interference from paving construction.
(c) Lack of cement.

The record discloses that on August 17, 1932 respondent, through the Division of Highways, of the Department of Public Works of Illinois, solicited bids for the work in question. On September 7, 1932 claimant’s bid for the DuPage County work, in the sum of Twelve Thousand Four Hundred Forty-nine and 08/100 ($12,449.08) Dollars, was declared to be the lowest bid. The next lowest bid being Eight Thousand Eight Hundred Forty-eight and 62/100 ($8,848.62) Dollars in excess of claimant’s bid.

Claimant’s bid was accepted on October 14, 1932, and on November 10, 1932 a written contract was entered into between respondent and claimant for the construction of said DuPage County bridge. Claimant was also the low bidder for the McLean County bridge work described in the complaint, and a contract was awarded to it on November 10, 1932. Under the specifications for the latter work same was to be finished by December 31, 1932, but it was discovered that the Division of Public Works lacked certain right of way releases for one of the bridges and a delay in signing the contract resulted, and such contract was not signed until December 27, 1932. On the same day that bids were submitted for the foregoing Bridge work, i. e. on September 7, 1932, bids were also received for paving a section of S. B. I. Route No. 119 in the territory where the McLean bridge work was to be constructed. A contract was awarded for same in the latter part of September, and such pavement was under construction during the time claimant was engaged in the building of such bridges.

Claimant complains that the delay in signing the contract, due to the absence of release of right of way, and the additional expense of getting its material to the bridge sites on account of interference from the paving construction work, and the further lack of cement in sufficient quantities at the times required, all resulted in a material loss to claimant, and they seek a total award for such alleged damages in the sum of Twenty-nine Thousand Five Hundred Seventy-nine and 13/100 ($29,579.13) Dollars.

The court has considered the testimony and exhibits in full and with earnest care. The evidence discloses a labor situation to have apparently existed in DuPage County, which would have justified claimant in instituting criminal procedure. There would be no purpose served for us to recount the testimony at length in regard to the nature of the labor difficulties encountered by claimant, for however deplorable such condition may have been, and whatever the loss to claimant therefrom, there is nothing in the record or in the law upon which claimant can herein predicate a claim for damages against the state. A. L. Nelson, vice-president of claimant company, testified (Transcript, p. 7-8) that he had investigated the condition in DuPage County, and had learned of the difficulty incident to the construction work which they might there encounter prior to the time that the contract for the work was signed; that they considered declining the contract but upon being urged by Mr. Cleveland, Director of the Highway Department at that time, they proceeded to execute the contract and commence the construction of the work. There is some conflict in the record as to what assurances were given by Mr. Cleveland as to what aid claimant might expect if they encountered the expected labor troubles, but the fact remains that claimant signed the contract, anticipating such troubles, and they cannot now justifiably expect an increase in their contract payments because of the fact that such labor troubles did arise. The record discloses that a conference was held with Mr. Cleveland in January, 1933 and claimant’s summary of this agreement is set forth in a letter from claimant to Mr. Cleveland, under date of January 5, 1933, in which they state:

1. That claimant would continue to keep work closed down until afforded an opportunity to operate under reasonable working conditions.

2. That they take immediate steps to remove such equipment from the site as represents rental expense incident to the work.

3. That they would protect property on the grounds and maintain watchman service; claimant expecting reimbursement for the carrying out of such arrangements together with rental of steel sheeting then in place.

4. Unless advised to the contrary, assumption by claimant that procedure would meet with approval of the Department.

To this letter Director Cleveland replied, under date of January 10th—

1. Correcting certain statements made in the above letter.

2. Authorizing a temporary shut-down of work from thirty to sixty days; claimant to secure cooperation from county authorities in protecting workmen.

3. No release from obligations.

4. Non-allowance of any extra compensation for additional costs resulting from temporary shut-down, either for watchman, protection of materials and equipment or rental charges; all of such items of cost to be borne by the contractor." '

We do not believe that the record justifies claimant’s charge that respondent’s letter of January 10th “was apparently written for the files” only.

Plaintiff’s claim for payment for extra work authorized by respondent on the DuPage County job is supported by the evidence. Under Paragraph 9 of the proposal it is provided that additional work not provided for in the original specifications may be called for and the costs thereof duly paid plus 15%. It apparently became necessary to lower the east abutment of the DuPage County bridge about two feet after the excavation work under the regular specifications had been completed. The Division authorized such additional work on March 3, 1933 and claimant proceeded with the construction under the revised plan. They now contend for an allowance of One Thousand Two Hundred Seventy-two and 69/100 ($1,272.69) Dollars as the amount due therefor, covering costs plus 15%. Respondent denies the correctness of these figures, particularly two items thereof, i. e. One Hundred Seventy-five ($175.00) Dollars and One Hundred ($100.00) Dollars in connection with placing and removing reenforcing steel and sheeting. Respondent contends that the award for such extra work, if any, should be in the sum of Eight Hundred Three and 71/100 ($803.71) Dollars. A portion of this work was done by a sub-contractor named Swanson. Respondent’s figure of Eight Hundred Three and 71/100 ($803.71) Dollars was arrived at partly from payroll data taken from the books of The L. E. Myers Company, and partly from the resident Engineer’s memory (respondent’s Exhibit 8). Claimant erected the concrete forms and placed the reenforcing steel according to the original plans, and when these plans were changed it apparently become necessary to remove the concrete forms and reenforcing steel in order to lower the footing the required two feet. It was then necessary to erect the concrete forms and to again replace the reenforcing steel. Thereafter respondent decided to widen the footing and claimant was again forced to dismantle the forms, remove reenforcement and again place same in their former position. Claimant’s request for allowance for such extra work in the sum of One Thousand Two Hundred Seventy-two and 69/100 ($1,272.69) Dollars, is we, believe, substantiated by the record.

We will now consider the situation under the McLean County Contract. Is claimant entitled to damage because of any delay in obtaining the right of way in connection "with the construction of the McLean County bridges'? The first portion of the delay complained of is, that while the hid was received on September 7, 1932 and the contract provided that the work must be completed by December 31, 1932, respondent did not in fact execute and deliver the contract until December 27, 1932, only four days prior to such completion date. Claimant contends that as a result of such delay it was required to commence its work under arduous winter conditions instead of in the autumn; that the expense thereof was much greater, and that they could have used their equipment to additional advantage had they been able to complete their contract within the time fixed by it. Unfortunately for claimant, the record is not in accord with their conclusions. When plaintiff signed the contract for the work in question on December 27th, they then knew and expected either to prosecute the work through the winter months or to have several months ’ delay because of winter conditions before they could complete same. Mr. Nelson testified (p. 103 transcript) that at the time he signed this contract he knew that the company would either have winter work to do, or that they would have to delay doing any work for.three months until spring came. He further testified that in now submitting this claim they are not claiming rental for their equipment on account of winter work but are making a claim because of extra expense encountered as a result of such winter work. The point is not that plantiff was unable to proceed with work in the early fall of 1932 as indicated by the completion date in the contract, but that they signed such contract at approximately the termination date thereof under conditions which they could not help but understand would entail difficulties from winter hazards not encountered in summer work, or that they might suffer additional delays by reason thereof. Of this, they cannot now complain. There is no merit to their complaint as to the delay occasioned in obtaining the right of way for one of the bridges. This question was disposed of prior to the time claimant signed its contract by an agreement entered into between claimant and the Highway Division, based upon claimant’s proposal that it would begin the construction of the two bridges in McLean County, and if the right of way for the third bridge in question was not obtained by the time the balance of the work on the other two bridges was finished, then claimant should not be required to complete its contract as to such third bridge. Claimant recites this in its complaint, and further that the Division finally awarded the contract on that basis, and same was signed and accepted by claimant.

The evidence discloses that the State acquired the right of way for the third bridge by the time the contractor was ready for same (transcript p. 84). Therefore, claimant was obligated to proceed with such construction and no demand for additional compensation for same is now allowable.

Under Paragraph 3 of the third count of plaintiff’s claim an award is sought because of additional expense to which claimant was put in making lengthy troblesome detours in getting material on the ground, due to the fact that paving work was under way at the same time, under a contract awarded to the Capitol Construction Company for paving a section of Route No. 119 contiguous to such bridge sites. We find from the testimony of Vice President Nelson (transcript p. 105), “That at the time when the letting of the bridge contracts in McLean County was advertised, there was also advertised at the same time a letting for the paving work in question.” Mr. Nelson further testified that he knew about that matter at that time, and that in his experience at times the contracts for slab and bridge work are let at the same time. The fact that claimant may have anticipated that the paving contractor would delay the construction of such pavement until claimants were through, is not justified by the record or by the custom for such construction work in Illinois, as indicated by the proof herein. No allowance for damages on this ground seems warranted.

A further objection is made by claimant on the ground of delay experienced in obtaining cement. It is common knowledge that respondent had a difficult situation to face in obtaining cement at reasonable prices for its highway construction work during the period covered by the contracts in question. A careful examination of the record herein has been made to ascertain whether claimant suffered from any such shortage. Their general statements to that effect are not conclusive as against the detailed evidence appearing in the record. It is disclosed therein that on April 28, 1933 plaintiff notified the Highway Department that it was in need of more cement (plaintiff’s Exhibit M). The date books maintained by respondent’s engineers disclose the following as to the dates immediately thereafter:

April 29th — Heavy rain, no work.
April 30th — Rain, no work.
May 1st — Rain, quit work on account of mud.
May 2nd — Rain, impossible to pave.
May 3rd — Too muddy to pave.
May 4th — Too muddy to pave.
May 5th — Rain.
May 6th — Water, no work.
May 7th — Heavy rain.
May 8th — Water on grade, pumping out coffer-dam, notified Mr. Payne that cement could be obtained at Route 122, Station 127, two and one-half miles to LeRoy.
May 11th — Rain and high water, no men working. Notified Mr. Payne to make arrangements to haul cement from R. 122.
May 12th — No men working. Mr. Nelson of The L. E. Myers Company on job; asked about securing cement. Informed him of securing cement from R. 119, S. 101, R. 122 at Hopedale. Inspected cement in storage at Hopedale.

For several days thereafter it continued to rain. Cement was in fact apparently secured from time to time in approximately sufficient amounts under existing weather conditions, and the record does not successfully show that any serious loss or disadvantage was suffered hy claimant upon such score.

It is the opinion of the court that all of plaintiff’s claim should be denied, except that portion appearing under the second count for extra work, in the sum of One Thousand Two Hundred Seventy-two and 69/100 ($1,272.69) Dollars for which latter amount an award is hereby entered in favor of claimant.


author: Mb. Justice Yantis

text:
    (Nos. 2295-2296, Consolidated
    John B. King, No. 2295 and Helena A. Hathaway, No. 2296, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 14, 1937.

      Rehearing denied January 13, 1938.

    Frank J. Jacobson, for claimants.
    Otto Keener, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimants herein seek damages as the result of an automobile accident, alleged to have been caused by the negligence of one Peter Sauber, a former employee of the State in the Highway Department. The complaint alleges that on March 30, 1932, about 4:30 P. M., on Route No. 64 about three miles west of St. Charles, Illinois, the claimants were riding in a Buick automobile owned by the mother of claimant, Mrs. Hathaway, and then and there driven by the owner’s colored chauffeur. That Peter Sauber was the owner of and in possession and control of a Model A. Ford Truck with which he drove out from a side entrance leading to a filling station, into the pathway of claimants, causing them to swerve back and forth across the road and to eventually crash into a nearby tree causing serious injuries to both claimants. Claimant in each case seeks an award of Fifteen Thousand ($15,000.00) Dollars, and as the facts, the law and the parties in each case are the same, the two actions have been consolidated and are hereivith considered under a single opinion. Rather extensive evidence has been produced, and comprehensive briefs and reply brief have been filed.

A motion by the Attorney General to dismiss the complaints was filed and argued orally before the court, but action thereon was postponed until a final hearing of the case on its merits. Plaintiffs contend that the record discloses the accident was caused by one who was then and there in the employ of the State and then and there engaged in the duties of his employment; that the accident having occurred through the negligence of one so employed, the State of Illinois should be liable as the master of such servant by reason of justice, equity and 'good conscience.

The Attorney General, on behalf of respondent, contends that although Peter Sauber was an employee of the State of Illinois, he was not, at the time of the accident, engaged in the performance of any work for his employer; that the accident was not the result of such employee’s negligence; that even though the employee was negligent and in the performance of his duties as an employee, the respondent could not be legally liable because of the fact that the doctrine of “Respondeat Superior” does not apply to the State in connection with the negligent acts of its employees. Counsel for claimant states:

“There can be no denial that the doctrine of respondeat superior does not apply to the State * * * as an ordinary legal defense, but placing ourselves squarely under the section of the enactment (Court of Claims Act) which provides for Equity Jurisdiction and Procedure, the fact that the doctrine of respondeat superior does not apply does not in any way abate claims before this Court * * *. That the court has been granted equitable powers for the purpose of hearing and determining matters in accordance with equity and good conscience.”

The evidence discloses that Peter Sauber was an employee of the State, engaged in assisting the Highway Maintenance Patrolman assigned to the territory in question: That he went to work at 7 o’clock A. M. on March 30, 1932; was off thirty (30) minutes for lunch, quit work at 4:30 P. M. and was employed and paid for nine (9) hours work on the day in question. That after he left his superior he drove his Ford truck to the Anderson Filling Station on the south side of Route No. 64 about three miles west of St. Charles, where he stopped and unloaded certain tools that were being kept there. His home was several miles west of that point and he drove out from the filling station onto Route No. 64 to go westward to his home.

Sauber testified that he saw plaintiff’s car coming from the west before he drove onto the highway; that it was traveling at a speed which he estimated at seventy (70) miles per hour, but that he drove in, on and across the highway to the north side thereof intending to let it go by; that the approaching car was going eastward and swung toward the north side of the pavement so that he found it necessary to swing to the left to avoid a collision; that he proceeded westward without knowing that any accident had occurred. Another car, driven by one Ebert Olson, was coming from the east at the time Sauber drove out onto Route No. 64 which Sauber testified he also saw; that at the time he drove onto the highway plaintiff’s car was about four hundred (400) yards away and traveling seventy (70) miles an hour; that the Olson car that was coming from the east at that time was “about again as far away,” but that he had no opinion as to the latter’s speed.

Olson testified that Sauber’s truck “came out of a driveway at the Barbecue Stand onto the highway. The next thing I noticed was that a car had to swerve out to miss him, had to go out into the other lane to miss hitting this truck and it was a good thing it wasn’t coming any faster; — in order for this car that swerved out to miss me he had to cut back. The next thing I knew he was in the ditch — I observed the truck as I approached the Barbecue Stand. It came out suddenly, then it kind of stopped or slowed down after it got in the road — it was right in the way of eastbound traffic.”

The evidence discloses that while it had been misty wet weather, the pavement was dry at the time of the accident. The witness Olson, observing that Sauber was leaving the scene of the accident without stopping, pursued him for three miles, then drove in front of him and compelled him to stop. Sauber testified that Olson then said to him, “Say, you sideswiped a car up there by Anderson’s and you’d better go back. I told him ‘hell I am late, I am going home.’ He says, ‘it will go harder with you if you don’t go back.’ I says to myself, ‘Is that possible?’ and I went back.’ ”

Meanwhile, King and Mrs. Hathaway had been removed from the scene of the wrecked car to the filling station. Both were badly bruised and bleeding. • The former suffered a fracture of the right Clavicle, a dislocation of the Humerus and injury to the Scapula, a scalp wound in front of the right ear and down the side of the face, and his teeth had gone through his tongue, making a slit that required several stitches. Mrs. Hathaway had suffered paralysis of the left facial nerve, a fracture of the right Pubic bone, a fracture of the right Radius and Ulna, a fracture of the first, second, third, fourth and fifth Metacarpal bones of the right hand, and a concussion at the base of the skull. Sauber testified that upon his return to the scene of the accident he did not talk to anyone except a neighbor who happened to arrive at that time, and that he then went home and called a local police officer and returned with him to the scene of the accident, at which time the injured parties had been removed. The testimony not only of Olson and the other witnesses, but that also of Sauber, shows that the accident was the result of the latter’s negligence and indifference to the rights of anyone other than himself. His employment by the State ceased a few months after the accident in question, and he is no longer employed by it. Claimants have, without doubt suffered serious injuries and pecuniary damages as a result of such accident.

It is not within the province of this court however, to make an award and to recommend the expenditure of State funds in favor of everyone who may have suffered some injury or injustice at the hands of the State or its employees. Counsel for Claimants in a most able manner presents his theory of the rights of this court to exercise its powers under a broad administration of the doctrine of equity and good conscience. Emphasis is given to the fact that prior to the creation of the original Claims Commission no action to enforce any claim against the State could be instituted in any court, and that it was necessary for any claimant to obtain the friendly and active intercession of a member of the legislature and obtain the benefit of a special Bill appropriating an amount for each specific claim. That many who had just and rightful demands were not fortunate enough to enjoy a political friendship or acquaintanceship which would enable them to have a Bill drawn or presented and were thus deprived of their opportunity for redress, while claims of a less meritorious character might receive preferment and recognition. Counsel argues that in the creation of the Claims Commission and later of the Court of Claims, the legislature intended to establish a forum so broad in its power that not only would there be a court to which the claimant might submit his demands against the State, but that the court in giving consideration thereto should be governed only by the demands of good conscience and social justice. Counsel further contends that by establishing the Court of Claims the legislature intended to say that no longer would it be the rule' that the Doctrine of “Respondeat Superior” does not apply to the State, but that thereafter the State should be liable for all such negligent acts of its servants and employees as the members of the court in conscience and equity might deem it responsible for.

The court cannot agree with Claimants’ Counsel in these views. When the State provided for a forum in which claims against it might be filed, first under the Commission of Claims Act of 1877 and later under the Court of Claims Act of 1903, a clause therein provided substantially as follows:

“In case said Commission (Court) shall reject any claim so filed as aforesaid, upon the hearing thereof; such rejection shall conclude all parties thereto, unless said Commission (Court) shall in their award, otherwise direct.”

The Court of Claims Act of 1917 contains no such provision. ' Guided doubtless by the wording of the earlier Acts, the commission (and court) handed down many decisions in which they quoted the above provision and thereafter added in substance the following:

“In order that claimant may present his claim to the Legislature we expressly direct, that under the power conferred upon us by the section, claimant shall not be concluded by the above finding rejecting any claim."
(Schmidt vs. State, 1, C. C. R. 76.)

In Rood vs. State, 2, C. C. R. 23, the court after rejecting the claim stated:

“inasmuch however, as we recognize that this is a case appealing strongly to sympathy, the sustaining of the demurrer is hereby declared to be without prejudice to claimant, and the rejection of the claim is not to barr claimant from further presentation of this claim to the Legislature.”

Later the court, as in Holmes vs. State 3, C. C. R. 17 declined to make an award, but nevertheless recommended that the legislature make an appropriation because they believed the claimant was entitled thereto.

After the Court of Claims Act of 1917 was passed with • its omission of the proviso of the earlier Act, the court, in certain instances after rejecting the claim for the reason that “under the law the State is not liable” then proceeded to exercise an arbitrary opinion in much the same language as found in Hunsacker vs. State, 4, C. C. R. 217, where after rejecting the claim the court said:

“Begardless however, of legal liability claimant has sustained injuries as a result of this accident, and the court recommends to the Legislature an allowance to claimant, as an act of social justice, in the sum of $2,000.00.”

and again in Moore vs. State, 4, C. C. R. 229, where it was stated,

“While this court has repeátedly held in this class of cases that the State is not liable, yet in view of the advanced age and poverty of the claimant, and in the interest of social welfare and equity, we have decided to make a small allowance for claimant, and we recommend the payment of $200.00."

Under the practice adopted by the members of the court we thus find awards being given and a recommendation for appropriation of funds made entirely on the basis of the personal views of the judge without regard to any established rule, or guide of law or conduct. As a result, we find a denial of relief of one case and an award of another, in cases on all fours with each other.

Eventually, the error in granting awards because of “good conscience,” and in cases wherein no legal basis for an award existed, the court returned to what had been the original concept of its duty and expressed itself as in the words of Justice Thomas, in Stoddard vs. State, 6 C. C. R. 29, wherein he said:

“We do not believe it was the intention of the Legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State. We are of the opinion further that it would be an exceedingly dangerous precedent to hold that the Commission had any such discretion.”

The present court in 1933 was called upon to construe the meaning of Paragraph 4 of Section 6 of the Court of Claims Act, with reference to the meaning of the words ‘ equity and good conscience ’ ’ as therein used. In the case of Crabtree vs. State, 7, C. C. R. 207, the following conclusion appears:

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: 'to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contracto and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defined the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can 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 such an award The claimant having failed to bring himself within the provisions of the law entitling him to an award, there is nothing this court can do but deny the claim.”

We re-affirm the foregoing at this time. We believe that in passing the Court of Claims Act the legislature recognized that in equity and good conscience the State should provide a means and manner in which claims against it might be heard, but that it did not in the creation of the court intend to create new liability against the State nor enlarge any then existing.

In Pomeroy’s Jurisprudence, Yol. 1, p. 343 the following conclusion is expressed:

“In following out the policy assumed to have been intended by the Legislature, it has been settled that the courts took no powers or jurisdiction over any equitable right or to administer any equitable remedy, except those plainly permitted by the express and positive language of the statutes.”

We believe that the use of the words “Claims — which the State in equity and good conscience should pay” refers to claims against the State for which there is a legal basis at law, but for which the claimant prior thereto had no adequate redress, because all other courts were closed to such claimant when seeking redress against the State.

"Another significance sometimes given to equity is that of judicial impartiality * * * the administration of the law according to its true spirit and import, uninfluenced by any extrinsic motives or circumstances * * * the application of the law to particular cases, in conformity with the special intention or general design of the Legislature.”
(Pomeroy Vol. 1, p. 36.)

We believe it is in this sense that the legislature used the word “equity” in prescribing the jurisdiction of the Court of Claims, and it is in this spirit that the court is endeavoring to consider the claims that come before it.

We therefore hold in the instant case that inasmuch as the claims herein are predicated upon the purported negligent acts of Peter Sauber as an employee of respondent, that the motion of the"” Attorney General to dismiss the complaints should be allowed, for the reason that the rule of “Respondeat Superior” does not apply to the State insofar as the negligent and tort actions of its employees and servants are concerned; that such being the rule and there being no legal basis upon which said claims may rest, no award can be allowed on the ground of equity and social justice, for the reason that this court has no authority to allow a claim unless the claimant can bring himself within the provisions of some law giving him the right to an award, and that in the absence thereof a claimant cannot invoke the bare principles of equity and good conscience to secure such an award.

As this case has been submitted upon the evidence as well as upon the motion, we feel constrained to add that the record in our opinion discloses without doubt that the accident in question and the injuries suffered by claimants were due to the wanton negligence of Peter Sauber, without contributory negligence upon the part of claimants; further that although Peter Sauber. was an employee of respondent, he was not, at the time of the accident in question, engaged in the performance of his duties for his employer; that he had worked nine hours for respondent on the day in question and had, according to the testimony in the record, completed bis day’s work at 4:30 in the afternoon; had unloaded all tools used by him in the performance of his duties, and at the time of the accident was performing no duties or services on behalf of his employer, and that in the absence of the exception to the rule of “Respondeat Superior,” there would be herein no legal basis for the assessment of an award against the State of Illinois.

Both upon the merits and upon the motion, an award must be denied.

The motion to dismiss the complaints is allowed, and an award in each case is hereby denied.