author: Justice C. H. Linscott

text:
    (No. 3107
    Frederick H. Bartlett, as Trustee Under the Provisions of a Trust Agreement, Dated January 2, 1923 and Known as the Fred'k H. Bartlett Realty Co., Trust, Chicago Title and Trust Company, a Corporation, as Trustee, Under the Provisions of a Trust Agreement Dated October 29, 1928 and Known as Trust No. 21768, and Fred'k H. Bartlett Company, a Common Law Trust, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1939.

      Rehearing denied November 14, 1939.

    Mark W. Bemis and Hadley & Leren, for claimants.

      John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Justice C. H. Linscott

delivered the opinion of the court:

The complaint in this ease charges that Frederick H. Bartlett as Trustee under the provisions of a trust agreement dated January 2, 1923, and known as the Fred ’k H. Bartlett Realty Company Trust, and the Chicago Title and Trust Company a corporation as trustee under the provisions of a trust agreement dated October 29, 1928 and known as trust No. 21768 and Frederick H. Bartlett Company a common law trust under the provisions of respective trust agreements, are nominal claimants and the actual claimant herein is Frederick H. Bartlett Company. The Bartlett Company was engaged in Real Estate business primarily as a sub-divider and developed many subdivisions in the counties of Cook, DuPage and Lake in the State of Illinois and other subdivisions in Wisconsin, Indiana and Michigan.

The complaint charges that on October 29, 1928 the Chicago Title and Trust Company a corporation as trustee, was the legal owner and was lawfully possessed of certain land containing 69 acres more or less and described as follows:

The North East Quarter of the North East Quarter and that part of the North East Quarter of the North West Quarter, lying East of Joliet Road in Section Twenty-three (23), Township Thirty-nine (39) North, Range Ten (10) East of the Third Principal Meridian, DuPage County, Illinois.

The trustee held the legal title to this property for the use and benefit of Frederick H. Bartlett Company, one of the claimants. It is further charged that in the year of 1928 the Frederick H. Bartlett Company subdivided the tract of land above described into a subdivision known as Roosevelt Hills Addition comprising 13 blocks containing 290 lots of various sizes which subdivision is located entirely within the corporate limits of the village of Glen Ellyn, DuPage County, lilinois and the proof shows is approximately 22% miles west of the city of Chicago. The north boundary of this subdivision is the Illinois State Bond Issue Route No. 330 also known as Roosevelt Road and is directly connected with Lincoln Highway on United States Route No. 30 at a point west of Geneva, Illinois.

The East boundary of this subdivision is known as lili-' nois Route No. 53 which crosses the Roosevelt Road, and the West boundary of this addition is the Joliet Road, a north and south Public Highway with a macadam surface maintained by the town of Milton, DuPage County, Illinois and the south boundary of the Roosevelt Hills addition is the South corporate limits of the Village of Glen Ellyn.

It is charged that this tract of land was ideally situated for the development of a first class subdivision containing some lots platted for business, located along Route 53 and 330 and also for residental purposes. That after the subdivision of the above described premises, the claimant Frederick H. Bartlett Company spent considerable money in advertising these lots for sale and the employment of a sales force. They did some grading and improving streets and made other expenditures that would increase a demand for these lots. A considerable number of the lots were sold on real estate contracts until the improvements made upon Route 53 and hereinafter referred to.

That on and subsequent to November 2, 1933, the Chicago Title and Trust Company, a corporation, as trustee under the provisions of a trust agreement dated October 29, 1928 and known as trust No. 21768, was the legal owner and lawfully possessed certain premises described in the complaint. It is charged in the complaint that the legal title of said premises was vested in Frederick H. Bartlett, as trustee and the Chicago Title and Trust Company as trustee and that they held title to respective lots for the use and benefit of said Frederick H. Bartlett Company. The object and purpose of the trust agreement does not appear in the pleading but sufficient evidence appears to show that part of the premises are held in trust.

It is charged that about the first of November, 1932 pursuant to an Act of the General Assembly of Illinois, the State Highway Department built a by-pass under the Roosevelt Road on what is known as State Highway No. 53 in front of some of these premises and along the eastern boundary thereof beginning at a point approximately 500 feet south of the North Bast corner of the subdivision which point was at the intersection of routes 53 and 330, so that the said Route 53 was depressed and lowered on a certain grade below the level of certain of the lots to a depth of approximately 22 feet at the extreme North lot and the Highway Department also did erect an iron railing on top of and along the retaining wall adjoining said Highway and directly in front of a part of the premises hereinbefore referred to.

It is charged that because of this construction the value of the entire subdivision known as Roosevelt Hills Addition was greatly damaged and destroyed and the value of the lots facing route 53 and platted for business purposes was entirely destroyed so that said lots had no value whatsoever for business or residential purposes and there is no means of ingress or egress to and from said lots facing said route 53 from the intersection of the said route 53 with said route 330, south to a point where the said route 53 reaches the normal grade level; that the value of said lots facing Route 330 has been destroyed for business purposes and are not suitable for residen-, tial purposes due to their location upon a four lane arterial highway and due to the depressing of Route 53 as aforesaid and that the value of the lots located south of the said Route 330 and west of said Route 53 so platted for residential purposes, was nearly destroyed due to the destruction and loss of value of the business lots adjoining and facing said Routes Nos. 53 and 330.

That since the construction of Route 53, many of the persons purchasing the lots in Roosevelt Hills Addition have failed to make the. payments as therein specified and have allowed their rights to become delinquent and forfeited due entirely to the loss in valuation of the said premises by virtue of the construction and depression of said Route 53.

That since the construction of this under-pass, it is charged that the Frederick H. Bartlett Company has been unable to sell any of the lots remaining unsold prior to the construction of Route 53 and has been unable to sell any of these lots sold by contract previous to construction of Route 53.

The complaint charges damages to the extent of $50,000. Considerable evidence was taken and the court viewed these premises personally. No' buildings of any kind have been put upon either of the lots described, and although the subdivision was made several years ago, no business property has been erected. It is a matter of common knowledge that the Country has gone through a great business depression and these premises as well as all other premises have suffered accordingly. There is much area in DuPage County that has been platted and many of these lots so platted have not been sold and this is true in areas that have joining underground Highway passes and areas that do not join underground Highway passes. As said above the object and purpose of the Trust Agreement does not appear but from the information averred in the complaint the Trust Agreement apparently was executed prior to the time of the construction of Route 53 and the' question of whether or not the Trust Agreements referred to were made for the purpose of securing the payment of debts or obligations out of the sale of these lots, is one of conjecture.

The testimony shows that these premises are about a mile and a half from Cien Ellyn. Cien Ellyn is a strictly residential village and from 85 to 90% of its working population commute to the city of Chicago and are executives or semi-executives in Chicago Business Institutions. Cien Ellyn is approximately 22% miles from Chicago. The rail facilities between Cien Ellyn and Chicago are the Aurora and Elgin and the Chicago and North Western with 165 trains a day. Roosevelt Road, St. Charles Road and North Avenue are main highways between Chicago and Cien Ellyn. When the testimony was taken it was stipulated that claimant’s claim should be limited to the following described property:

Lots 31-32-33-35-36-38-39-40-41-42-43-44-45-46 in Block 1.
Lots 1-2-6-7 and 9 in block 5.

Roosevelt Hills subdivision of the North East Quarter of the North East Quarter and part of the North West Quarter of the North East Quarter of Section 23, township 39 North range 10 east of the 3rd principal meridian, DuPage County, Illinois. It was also stipulated that such title to said lots 31, 32, 33, 35, 36, 38, 40, and 44 in Block 1 and lots 6 and 7 in block 5 is vested in the claimant, Frederick H. Bartlett, trustee, and Title of said lots 39, 41, 42, 43, 45 and 46 in Block 1 and lots 1, 2 and 9 in block 5 Roosevelt Hills Addition is vested in the claimant Chicago Title and Trust Company as trustee and that the beneficial interest in said amounts is held and retained by claimant Frederick H. Bartlett Company, a common law trust. The improvement on Route 53 as it passed under Route 6 or Route 330 at the South line of Roosevelt Road was 18 feet and it gradually came to a grade at a distance of 440 feet South of the South line of Roosevelt Road and there is a similar construction on the North side of Roosevelt Road. On either side of Route 53, concrete walls from 12 to 14 inches thick at the top, 42 feet apart between the curb and 44 feet between the two walls, were constructed; and a bridge on Roosevelt Road across Route 53 of reinforced construction with four lanes of concrete 40 feet wide was also constructed; and on either side of the travelled portion of the Highway, a sidewalk and a hand rail were built.

Bryant Avenue is Route No. 53. At a point approximately 800 feet West of Route 53 on what is known in this subdivision as Nicoli Way, a concrete road was built South from the main Highway on Roosevelt Road, across Taft Avenue and East on Pershing Street to Bryant Highway. Lots 31, 32, 33, 35, 36, 38 and 40 in Block 1 are on the South Half of Block 1 and front on Taft Avenue and each are 50 feet wide and approximately 129 feet in depth. They extend from a public alley way southerly to Taft Avenue.

Lot 44 in Block 1 fronts on Bryant Avenue and is 25 feet in width and 110 feet in depth between the wall on the West side of Bryant Avenue and at the East front of this lot there is a strip some 20 or 25 feet in width. The title of the last named lot is vested in Frederick H. Bartlett, trustee and title to lots 39, 41, 42, 43, 45 and 46 in' Block 1 and lots 1, 2 and 9 in block 5 in this said addition is vested in the Chicago Title and Trust Company. Block 5 lies immediately south of block 1 and fronts on said Taft Avenue. Taft avenue is. 66 feet wide and the north portion of Block 5 is approximately 160 feet from the South side of the Roosevelt Road Highway. Lots 1 and 2 in block 5 are approximately 66 feet wide and 116 feet in depth and front in an easterly direction. Lot 9 is approximately 56 feet in width, 134.9 feet in depth and faces a northerly direction. Neither the lots fronting on Bryant Avenue or Route 53 nor other lots in this Addition have been improved. Nicoli Way was improved by concrete Highway at the cost of the people of the State of Illinois and it must be admitted that the value of the lots along the western end of Blocks 1 and 2 have suffered little if any in damages by construction of the underground pass hereinbefore referred to.

Charles W. Boardman was called as a witness on behalf of the State. He testified he resided at 731 Highland Avenne, Glen Ellyn, Illinois; that he had lived in Glen Ellyn since 1924 and immediately prior thereto he had lived in Chicago. He had a license as Real Estate Broker and had been in the Real Estate business in Glen Ellyn for 12 years and had handled over 100 properties. He testified the highest and best use of these properties was for subdivision purposes. He was familiar with the work done by the State on Route 53. He knew of no sales in this particular vicinity since or before January 3, 1932 except what had been sold by the LaSalle Realty Company. He testified that the fair market value of-all of these lots is $5.00 a front foot. He also testified that lots north of the subdivision known as the Roosevelt Garden Home Site had been offered at figures from $200.00 a lot upwards for 50 feet lots where there were no improvements and that lots immediately north were listed for sale in his office during 1928 and 1929 at prices of $200.00 and upward. That he did not take the trouble to list them for the reason that there was no demand for lots in that vicinity. While in some instances this witness’ testimony was perhaps not technically correct, considering his experience in the sale of lots in this vicinity and his knowledge of values, we would not be justified in ignoring his testimony. This witness also had an opinion as to those lots bordering on Nicoli Avenue and that these lots had been increased somswhat in value because Nicholi Avenue which is paved with concrete, brought them closer to the main travelled Highway on a road that had been paved. Evidence was introduced by the claimant and Hugo W. Celander who had been in the employ of the Frederick H. Bartlett Company for 21 years selling these subdivision properties. He testified that he was familiar with the several lots above referred to and his attention was directed to the particular lots in question. He testified that lots 41, 42 and 43 in Block 1 were sold on January 12, 1930 for the sum of $6,775.00 and Lot 44 in Block 1 was sold on April 18, 1931 for $4,000.00 and Lots 45 and 46 in that same block were sold on October 1,1930 for $7,000.00. They were sold on contracts but the contracts were not carried out and were evidently cancelled after the year of 1932. Other sales for groups of lots were made for ■ the sum of $40,000.00.

Roy Spaulding also testified. He lived at Glen Ellyn and had been in the Real Estate business for 33 years in Glen Ellyn. He had built 198 houses in Glen Ellyn, bought the vacant property and had opened up about six subdivisions in that vicinity. These subdivision contained from 10 up to 250 lots, and was mostly since 1918. Generally speaking this witness was of the opinion that these lots on Bryant Avenue were worth $30.00 per front foot cash in 1932. This was the value before the construction improvement and that after the construction improvement, these lots for business purposes were valueless. It was his opinion that there had been a depreciation ofl the value of Lots 1 and 2 in Block 5 of 25% to 50%. Lot 2 in Block 5 would be a 50% loss on a basis of $30.00 per front foot and lots 31, 32, 33, 35, 36, 38, 39 and 40 prior to the separation of Grade would have sold for at least $10.00 per front foot and that after the separation of the Grade these properties were depreciated 25% that is from $10.00 a front foot to $7.50 per front foot.

Joseph Wagoner also testified for the claimant. He was a Real Estate Broker who lived at Glen Ellyn "and had been in the Real Estate business since 1915 selling residential and subdivision property. He said that these properties under discussion were approximately a mile and a half from the business section of Glen Ellyn; that he had examined this property for the purpose of testifying and was familar with all the circumstances. He was of the opinion that the lots along Bryant Avenue prior to the construction of the improvement were worth $35.00 a front foot because these had been sold for business purposes and that after the construction of the improvement, they were ruined as far as business property was concerned'.

We have gone into the evidence sufficiently to show the general trend of the proof now before the court and from an ' examination of these premises and the surrounding premises including premises located near Chicago and also premises near to Glen Ellyn, and we are strongly impressed with the fact that these lots and lots in this vicinity back in 1928 and 1929 were sold at high and speculative values and it is difficult for us to see how lots 6, 7 and 9 in Block 5 have been affected by this improvement and it is also difficult for us to see in what degree if any, lots 31, 32, 33, 35, 36, 38, 39 and 40 have been greatly affected. The more reasonable view, it seems, would be that these lots are just a part of a large area that has been subdivided, are unimproved and are on the same basis as much other similar property in that locality now; there being no residents for quite an area close to lots 41, 42, 43, 44, 45 and 46 upon which no improvements were ever made, these having been zoned for business purposes, these lots never had any value for business purposes except perhaps a speculative value. Zoning country property for business in unimproved localities and on ordinary farm land that does not contain population, does not of itself create values which a court can recognize. If there had been improvements upon this property or if settlements had been made in these vicinities where there would be a use for grocery stores, meat markets, garages and the like, this court would look at this problem in a different way and what has been said of the other lots also applied to Lots 1 and 2 in Block 5.

We are of the opinion that the testimony introduced by the State is fair and reasonable and this testimony is also considered in the light of a personal inspection of these premises.

An award, therefore, on the grounds hereinbefore specified, is denied.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 3199
    Jesse G. Fivash, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1939.

    Wheatley & Combe, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein was employed by the Division of Highways, Department of Public Works and Buildings, State of Illinois. On December 8, 1936 while engaged as a rodman in a party of engineers’ on State Aid Route No. 20 in Williamson County, Illinois, he slipped on some icy ground and fell on his right hip causing an intertrochanteric fracture of the right femur. There was some delay in procuring an ambulance but as soon as possible he was taken to the Herrin Hospital where first-aid, medical and surgical attention was furnished to him by the State and he was there placed under the care of Dr. W. R. Gardiner of Herrin, Illinois, at the request of the Highway Department. Dr. Gardiner took an X-ray picture of .the injured pelvis which disclosed the fracture, with some displacement of the ends of the femur. The fractures were reduced and weights attached to the limb, and after about two weeks a cast was applied to the limb,.but this had to be removed because the claimant developed pneumonia. The patient remained in the hospital until February,. 1937, and was then removed to his home at Marion, Illinois, where he continued under the treatment of Dr. Alonzo N. Baker, of that city. His condition became worse and on February 18, 1937 the State Highway Department caused him to be removed to St. Andrews Hospital at Murphysboro where he was placed under the care of Dr. R. S. Sabine who discovered that the patient’s right foot was beginning to drop and to pull inward. On March 2, 1937 he was returned to his home at Marion under the care of Dr. Baker. During all of this period he had continued to run temperature and could not move except by the use of two crutches. On May 1, 1937, under instructions from the State Highway Department at Carbondale, claimant returned to work and a “make-shift job” was provided for him. He was supposed to draw gasoline and make out tickets at the Carbondale Highway Office, buf was unable to do any substantial work because it was necessary for him to use his crutches at all times and apparently the only work he did during that month was a few clerical duties. On May 29, 1937 Dr. Baker found that gangrene had developed on the right foot. The latter was red and discolored.. The patient was taken to St. Luke’s Hospital in Chicago on orders from Mr. Lingle of the Highway Office, and was there placed under the care of Dr. Thomas. Applications were given and the foot treated to reduce the swelling, and according to Mr. Fivash’s' testimony the development of the gangrenous condition was stopped. On June 9, 1937 he was sent to the Y. M. 0. A. Hotel in Chicago by the State, but was unable to carry out the medical instructions because of lack of facilities and being unable to wait on himself. Mr. Pelzman from the Research Laboratory called on him each day and treated him with light rays and massage, and patient called at the Research Hospital twice to see Dr. Thomas. Claimant returned to his home July 23, 1937 under the care of Dr. Baker who also prescribed massage of the injured limb. On August 11, 1937 claimant was again taken to Chicago by the Highway Department, where he stayed in the Y. M. C. A. Hotel under the care of Mr. Pelzman who resumed his former treatments under the direction of Dr. Thomas. The latter ordered a brace applied to the lower part of the injured limb in an effort to prevent the foot-drop. Patient again returned home August 31, 1937; went back to Chicago in September to St. Luke’s Hospital under the care of Dr. Thomas where he received physiotherapy treatment. He returned home November 1, 1937 and was sent back to the Y. M. C. A. in Chicago from December 8th to December 21st, 1937, and received treatments similar to those previously given.

At the hearing claimant testified that there was no improvement in his leg during his Chicago treatments; that he still had to use crutches; that his left arm was gradually becoming lame; and that his lungs were troubling him during all of this time. That when he complained of his lungs in Chicago he was told that he was being, treated there for the injured leg and if he needed treatment for other conditions he would have to go elsewhere for same.

The record shows that on December 29, 1937 claimant was notified by M. K. Lingle that Dr. Thomas wanted him to return to complete the treatments for his leg, and that transportation and board and lodging at the Y. M. C. A. in Chicago had been arranged for. On January 3, 1938 Mr. Fivash notified Mr. Lingle as follows:

“It will be impossible for me to return to Chicago today for further treatment, as per your request, due to the fact that to date I have failed to see any material improvement in my foot and leg, and I am badly in need of other medical attention which has been denied me. in Chicago, as Dr. Thomas has told me that all he was getting paid for was to treat my foot; therefore, it will be necessary for me to remain at home to obtain this attention. Also due to the fact that my compensation has been cut down to such a small amount, it is impossible for me to stay in Chicago and provide anything for my family at home. Thanking you for all past favors, I am, Yours very Resp.”

On January 7% 1938 Mr. Lingle .notified Mr. Fivash that if he failed to avail himself of the further treatment offered by Dr. Thomas, such action would serve as a definite refusal of treatment and that the State might avail itself of the provisions of the Compensation Law of Illinois to suspend compensation when an employee refuses to submit to such medical, surgical or hospital treatment as offered by the employer.

Mr. Fivash made no reply and did not return to Chicago for any further care.

All expenses for ambulance service, medical, surgical, x-ray, railroad, street car, bus, hotels, nursing, and appliances from the date of the injury December 8, 1936 through December 31, 1939, so far as is known to the Highway Department have been paid by the State in a total amount of $1,501.63.

Since he discontinued the treatments in Chicago his limb has continued to have a drop-foot condition, and at a physical examination in open court before the members thereof in April, 1939, the right foot was found to. be in a diseased, swollen, inflamed state, and drainage in the bottom of the foot that indicated a continuing gangrenous condition. There was some movement from the hip but in a highly reduced measure. Claimant could not use the foot but of necessity walked with a crutch, and he still wore a brace extending from below the knee and fastened underneath the ball of the foot for the purpose apparently of aiding in the correction of the drop-foot condition. The continued wearing of this brace with any binding effect therefrom doubtless tends to restrict circulation in the foot.

Extensive evidence appears in the record from the testimony of the various doctors and others regarding the injury suffered by Mr. Fivash and the later lameness of his left arm, and the resultant effects from the pneumonia which he had in the early period of his hospital treatment. Counsel for claimant contend that the combination of these conditions h(as resulted in his becoming permanently and totally disabled, and that he is entitled to compensation on such basis in the sum of $4,450.00, less compensation paid, with an annual pension thereafter during his lifetime equal to eight (8) per cent of said sum of $4,450.00.

Respondent contends that claimant, having failed to return to Chicago in January, 1938 when requested so to do by the Highway Department, forfeited his right to an award, under the theory that his original fracture which resulted from the accident in question was fully healed, and that his present condition is entirely the result of his negligence and failure to continue with the treatments offered him at the hands of Dr. Thomas in Chicago.

Section 19(d) of the Workmen’s Compensation Act provides as follows:

“If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the commission may, in its discretion, reduce or suspend the compensation of any such injured employee.”

Under the foregoing it is for the Industrial Commission, or in this instance the Court of Claims, in its discretion to reduce or suspend the compensation of any injured employee when it is brought to the attention of the court that such employee is persisting in injurious practice. In the present instance no application was ever made to the court in regard to claimant’s failure to return to Chicago, and the record does not establish that his failure to return has imperiled his recovery, or that he did not receive adequate care after declining to return to Chicago.

We do not desire to attempt to recapitulate all the evidence of the various witnesses, but the court has carefully studied the testimony of all such witnesses and has had the benefit of personally viewing claimant’s condition.

Our conclusion is:

That claimant is entitled to an award under the Workmen’s Compensation Act for temporary total disability for a period of sixty-four (64) weeks, and for specific loss of use of the right leg. Dr. J. B. Moore, of Benton, Illinois, a witness called by claimant, was unable to explain the apparent involvement of the left arm.

Dr. E. H. Deppe, of St. Louis, Missouri, called by claimant, testified that the latter had an almost complete paralysis of the right foot and toes.

Dr. Zach Hudson, of Marion, Illinois, claimant’s family physician, testified that he thought the complaint in the left arm was due to crutch pressure; that he made a test for tuberculosis and found no tuberculi germs.

Dr. R. N. Baker testified to a complete paralysis of claimant’s right leg from the knee down but found nothing seriously wrong with his left arm.

Dr. Charles W. Miller, of St. Louis, examined claimant on May 21, 1938 and testified that he found no evidence of any pulmonary trouble, and that a complete physical examination and x-ray of the chest disclosed the latter to be normal.

As above indicated, we find that the evidence does not support an award for permanent total disability.

Claimant’s annual earnings were $1,200.00 per year and his average weekly wage was $23.08. He had one child under sixteen (16) years of age at the time of the accident, and his compensation, based on fifty-five (55) per cent of his average weekly wage, should be computed at $12.69 per week. Claimant was paid compensation until January 22, 1938 and his temporary total incapacity should extend to the maximum period of sixty-four (64) weeks. We therefore find that claimant is entitled to an award as follows:

For temporary total disability at $12.69 per week for 64 weeks......$ 812.16
Specific loss of use of the right leg, 190 weeks at $12.69 per week____2,411.10
$3,223.26
Less compensation paid from Dec. 9, 1936 to Jan. 22, 1938.......... 715.32
Balance due for award........,................................$2,507.94

Compensation has accrued from the date of the injury to November 3,1939 — 147 weeks at $12.69 per week, or $1,865.43.. Claimant has been paid the sum of $715.32 to apply on his compensation, leaving a balance of accrued compensation to November 3, 1939 of $1,150.11. Claimant is entitled to an award in the amount of $2,507.94 payable as follows, to-wit:

$1,150.11 forthwith and the balance in weekly installments of $12.69 per week. The first installment being due and payable on November 10, 1939. An award is hereby made in favor of Jesse G-. Fivash in accordance with the foregoing, in the sum of $2,507.94 payable as hereinabove stated.

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 (Session Laws 1937, page 83), and being subject further to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Monies Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly” (S. B. 123 as amended), approved July 8, 1939; — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for by the foregoing Acts.


author: Mr. Justice Linscott

text:
    (No. 3141
    Socony-Vacuum Oil Company, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1939.

    Wilson & McIlvaine, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this suit alleges that it paid license fees to the State of Illinois in an amount in excess of the amount required to be paid under the terms and provisions of the statute. These fees were paid to the Secretary of State’s office, the automobile department, at 120 South Ashland Avenue, Chicago, Illinois, which was the agency authorized to receive such license fees.

Claimant further alleged that it owned and operated in Illinois, two 4-wheel trucks which come under the classification of second division vehicles under Section 2, Chapter 95%, 1937 Illinois Revised Statutes; that one of said trucks weighs 23,810 pounds when fully loaded and the other weighs 23,360 pounds when fully loaded; that claimant erroneously believed that the trucks each weighed over 24,000 pounds when fully loaded, and paid to the State of Illinois, $250.00 each for truck license plates for these two vehicles, that being the sum required by law for 4-wheel vehicles weighing more than 24,000 pounds when fully loaded.

Claimant further alleged that sometime after these payments were made, it discovered that each of the trucks weighed less than 24,000' pounds when fully loaded; that it paid $500.00 for the license plates for both vehicles; that under Section 9, Chapter 95% Illinois Revised Statutes, 1937, it should have paid $150.00 each, or a total of $300.00 for license plates for both trucks, because each weighed over 20,000 pounds when fully loaded but less than 24,000 pounds.

Claimant asks for an award against the State for $200.00, being the amount of the overpayment.

The Attorney General has made a motion to dismiss on the grounds that the claimant does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay in that therein claimant seeks an award representing a refund of a portion of an automobile registration fee paid in 1937 without protest and correctly assessed on the basis of an application filed by claimant.

The facts averred in the complaint are taken as true and it appears that the claimant itself furnished all the facts to the Secretary of State upon which the license plates for these two vehicles were issued. The payments were not made under protest and the Secretary of State relied absolutely upon the information furnished by claimant.

In the Attorney General’s brief, reliance is placed upon several cases heretofore decided by this court where it is held that where an illegal or excessive tax is imposed by reason of the negligence or inadvertence of the taxpayer, and thereafter paid by him, such payment is not made under a mistake of fact, and therefore cannot be recovered.

The claimant contends that the present case is not of the same nature as the cases relied upon by the Attorney General, but that the present case is based upon an entirely different principle, and that there is nothing in this case that would justify the assumption of- the Attorney General that the tax was paid with full knowledge of all the facts or that it was paid as a result of any negligence or inadvertence of the taxpayer.

In the case of American Can, Co. vs. Gill, County Collector, 364 Ill. 254, the Supreme Court of this State in its opinion filed October 14, 1936 held that taxes voluntarily paid cannot be recovered or refunded unless the statute expressly authorizes such recovery or refunding. The Supreme Court also held in that case that even though it is admitted that a misplaced decimal point in the assessment books resulted in multiplication of the valuation by 100, the taxes resulting from such erroneous increase in valuation do not constitute double taxation within the meaning of Section 268 of the Revenue Act, and such excess taxes, voluntarily paid for three successive years before the error is discovered, cannot be recovered under said section.

It is conceded by the Attorney General that the amount paid by claimant for the license plates of the two vehicles in question, was in excess of the amount which claimant was required to pay under the law.

In LeFevre vs. County of Lee, 353 Ill. 30, the Supreme Court of this State again held that taxes paid voluntarily and not under duress cannot be recovered by the tax-payer even though the tax be illegal.

We have examined many authorities of this State, and this principle of law has always been applied, so far as we have been able to ascertain, by the Supreme Court, and we cannot, in a suit by a tax-payer seeking to recover funds wrongfully paid to an officer of the State, where he is acting ■within the scope of his authority, waive the rules of law established by the Supreme Court of this State. These payments were not made under duress and only upon the information furnished by the claimant.

In the case of Standard Oil Co. vs. Bollinger, Director of Finance, et al., 348 Ill. 82, it was held that the mere filing, at times of payment, of protests against the legality of a tax is of no avail in an action to recover the tax paid where .evidence of other conduct of the party so paying indicates a willingness to comply with the act imposing the tax and shows that the payment of the tax is voluntary, and the fact that the complainant believed that the penalties provided by the statute in question, would be operative against it if the tax were not paid is not sufficient to show involuntary payment.

It is apparent that in this instance the claimant did that which it believed the law required of it, but this does not change the situation.

In the case of Richardson Lubricating Co. vs. Kinney, 337 Ill. 122, the rule is laid down that one who makes payment of a legal demand cannot be said to have made such payment involuntarily merely because he does so in the fear and belief that unless such payment is made he will be subjected to the penalties of a valid act, as the law presumes that every citizen freely and voluntarily discharges every duty which he believes it imposes upon him, and no person will be heard to say that he was coerced to do that which he believed the law required of him.

In the case before us there is not the slightest suggestion of coercion or duress.

In the case last cited it was held that in the absence of fraud, taxes voluntarily paid cannot be recovered even though they are illegal because laid under an invalid law, where there is no statute authorizing such recovery.

Claimant does not point out any statute authorizing-a recovery and we are of the opinion that this case comes on principle within the decisions of the, Supreme Court of Illinois herein referred to.

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


author: Mr. Chief Justice Hollebich

text:
    (No. 2685
    Stella A. Thiedor, Executrix, Estate of Emily Hillier, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1939.

    Arthur, H. Shay, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opinion of the conrt:

On March 1st, 1934 Emily Hillier entered the service of the respondent as an attendant at the Elgin State Hospital, Elgin, Illinois, and continued to perform the duties of an attendant at that institution until October 26th, 1934. On the last mentioned date, she was instructed by the nurse in charge of Burr Cottage to take one Buth Alpert, an inmate" of the institution, to the dental office which was about three blocks away. Said Buth Alpert had been an inmate of the institution for some time, was then about thirty-three years of age, and was about five feet, nine or ten inches tall. .She was strong and vigorous and very stubborn and resistive; was difficult to handle, and was known as a runaway patient. Ordinarily, resistive and runaway patients were sent to the dental office by bus, but on the day in question, no bus was provided, and Emily Hillier walked to such office with the patient. On the way back to the cottage the patient was very resistive. She stamped on the attendant’s feet, kicked her in the legs, attempted to get away, and resisted strenuously all the way from the dentist’s office back to the cottage. The nearer she got to the cottage, the worse she behaved, and the attendant had to hold her arms and push and drag her back to the cottage. As she approached the cottage, Mrs. Hillier felt herself getting weak, and she collapsed and became unconscious just after she got inside the doorway.

She was immediately placed in an ambulance and taken to the General Hospital on the institution grounds, where she remained until December 4th, 1934. After she left the hospital she stayed with her son in Elgin for about a week, and then returned to her daughter’s home in Streator, where she continued to live up to the time of the hearing herein.

She claimed that she was totally and permanently disabled as the result of injuries sustained on October 26th, 1934 as aforesaid, and on June 17th, 1935 she filed her complaint in, this court. On June 19th, 1938, while her claim was still pending in this court, she died. On October 13th, 1938 her death was suggested of record, and pursuant to leave of court, Stella A. Thiedor, as Executrix of the Last Will and Testament of Emily Hillier, deceased, was substituted for the decedent as plaintiff in this cause.

The Attorney General raises the following questions, to-wit:

1. Were the employer and the employee operating under the provisions of the Workmen’s Compensation Act at the time of the occurrence on October 26th, 1934?

2. Did Mrs. Hillier sustain an accidental injury?

3. If so, did the same arise out of and in the course of her employment ?

I.

Were the Employer and the Employee Operating Under the Provisions of the Workmen’s Compensation Act?

It appears from the evidence in the record that the grounds of the Elgin State Hospital, including the Farm Colony, comprise about 900 acres; the exact number of buildings thereon is not disclosed by the evidence, but reference is made therein to the Main Building which has four stories, basement and attic; also an electric lighting plant; a general hospital; a machine shop; and a number of cottages, including Burr Cottage, Salster Cottage, Hogan Cottage, and Holden Cottage. The electric light plant is of the size ordinarily used in cities of 10,000 to 15,000 population. There is an electrically operated laundry; a machine shop with a lathe and mill, which machine shop contains sharp-edged cutting tools and instruments.

From the foregoing statement, there can be.no question but what the respondent, in the operation of the Elgin State Hospital, is engaged in an enterprise or business, within the meaning of those words as used in the Compensation Act, and as defined by our Supreme Court. Uphoff vs. Industrial Board, 271 Ill. 312; Hahnemann Hospital vs. Ind. Com., 282 Ill. 316; Board of Education vs. Ind. Com., 301 Ill. 611.

The claimant contends that the enterprise in which the respondent was engaged, is an enterprise in which statutory or municipal ordinance regulations were then imposed for the regulating, guarding, use, or the placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein; also that such enterprise is an enterprise in which sharp-edged cutting tools or implements are used; — and that by virtue of Section Three (3) of the Workmen’s Compensation Act, the provisions of such Act apply automatically to the employer and the employee therein.

The Attorney General contends that municipal ordinance regulations have no application to State institutions and buildings, and that statutory regulations have no application to the State unless they are specifically made to apply to it.

The facts in the record, however, disclose that the machine shop on the hospital grounds contains sharp-edged cutting tools, and consequently the enterprise in question is directly within the provisions of Paragraph 7% of Section Three (3) of the Compensation Act, and therefore the claimant’s intestate and the respondent were automatically bound by the provisions of the Compensation Act. It therefore becomes unnecessary to consider the question raised by the Attorney General as to the application of the provisions of Paragraph Eight (8) of Section Three (3) of the Compensation Act relative to statutory or municipal ordinance regulations.

II and III.

Did the Claimant’s. Intestate Sustain an Accidental Injury; and If So, Did the Same Arise Out of and in the Course of Her Employment?

The record shows that Mrs. Hillier was sixty (60) years of age at the time she entered the employment of the respondent ; that she worked continuously from the time she entered such employment on March 1st, 1934 until October 26th, 1934, except for three days when she was in the hospital on account of a cold, and two or three days' when she was laid up on! account of vaccination, and that the time she so lost was afterwards made up by her.

Dr. George L. Wilson, who was the family physician of the claimant’s intestate, testified that he examined her in the fall of 1933; that she then had diabetes millitis, a light case; that she had an increased blood pressure, sometimes 185, sometimes 200; that there was nothing in her blood pressure that would interfere with the performance of ordinary labor; that she had a slig’ht heart murmur; that the heart muscle was well compensated, and that there was nothing in any of such conditions which would interfere with the performance of ordinary labor on her part; that he also examined her on the last of January, 1934, and her condition was about the same as at the time of the previous examination.

Claimant; was also examined at the institution when she reported for work on March 1st, 1934. Her examination at that time showed a heart lesion, high blood pressure, and some diabetes. Notwithstanding that fact, she was accepted for work and continued to perform her duties regularly and satisfactorily until October 26th, 1934 except for the few days that she was in the hospital as hereinbefore set forth.

After her release from the hospital subsequent to the occurrence of October 26th, 1934, claimant’s diabetes was worse and she began taking insulin, which she had not taken prior to that time; — she also complained very much of anginal pains.

Dr. Wilson also testified that Mrs. Hillier’s condition at the time of the hearing was such that she could not perform ordinary labor, and that she would never be able to do such work; that in his opinion her then condition could result from her struggle with the patient; that such struggle would have a tendency to increase the diabetic condition and increase and aggravate the heart condition; also that there was nothing in Mrs. Hillier’s history or physical condition to explain her condition at the time of the hearing except the occurrence of October 26th, 1934.

Dr. Wiltrakis, Senior Physician of the institution, who was in charge of the acute medical and surgical service, testified that he had charge of claimant during the time she was in the hospital from October 26th, to December 4, 1934; that in consultation with Dr. Gabby of Elgin, a diagnosis of coronary thrombosis was established; that in his opinion a violent struggle by a person in whom pre-disposing causes then existed, would aggravate and bring on coronary thrombosis.

It appears from the medical testimony that thrombosis may result from an injury, or it may result from disease. However, if it is due to a trauma, it is of swift onset, whereas if it is due to disease, it is of slow onset.

■ It is well settled in this State that where there is a preexisting disease or condition, if such disease or condition is aggravated or accelerated under circumstances which can be said to be accidental, and disability results, such disability is the result of an accidental injury. C. & A. R. R. Co. vs. Ind. Com., 310 Ill. 502; Hahn vs. Ind. Com., 337: Ill. 59; Cameron Joyce & Co. vs. Ind. Com., 324 Ill. 497; Simpson Co. vs. Ind. Com., 337 Ill. 454.

Considering the physical condition of Mrs. Hillier prior to the occurrence of October 26th, 1934, and her condition subsequent to that time, in connection with the medical testimony in the case, there can be no question but what the occurrence of October 26th aggravated the diabetic and coronary conditions which had previously existed, and produced the condition which existed at the time of the hearing; also that her condition at the time of the hearing was such that she could not perform ordinary labor, and would never thereafter be able to do so. We conclude, therefore, that claimant’s intestate sustained an accidental injury within the meaning of those words as used in the Compensation Act.

The question as to the construction of the words ‘ ‘ arising out of and in the course of the employment,” has been before our Supreme Court in numerous cases, and the meaning of such words has been quite definitely determined.

The rule as to when an accidental injury may be said to arise “out of” the employment is stated in the case of Mueller Construction Co. vs. Ind. Board, 283 Ill. 148, as follows :

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

The rule there announced has been consistently followed by the Supreme Court. Vincennes Bridge Co. vs. Industrial Commission, 351 Ill. 444; Mazursky vs. Ind. Com., 364 Ill. 445; Scholl vs. Ind. Com., 366 Ill. 588.

The rule as to when an accidental injury may be said to arise “in the course” of the employment is stated by our Supreme Court in the case of Atlantic & Pacific Tea Co. vs. Ind. Com., 347 Ill. 596, as follows:

"An injury occurs in the course of the employment, within the meaning of the Workmen’s Compensation Act, when it takes place within the period of the employment, at a place where the employee has the right to be, and while he is engaged in performing the duties of the employment or something incidental to it.”

Such rule has been followed in numerous cases since decided. Landon vs. Ind. Com., 341 Ill. 51; Mt. Olive Coal Co. vs. Ind. Com., 355 Ill. 222; Wabash Ry. Co. vs. Ind. Com., 360 Ill. 92.

Mrs. Hillier’s injuries were sustained by her while she was in the performance of her ordinary duties, and by applying the rules above set forth, we reach the conclusion that Mrs. Hillier’s disability arose out of and in the course of her employment, within the meaning of those words as used in the Compensation Act, and that she was completely disabled from the time of such injury on October 26th, 1934 until the date of her death on June 19th, 1938.

The record does not disclose whether her death resulted from the injuries she sustained on October 26th, 1934 or from other causes.

Notice of the accident was given to the respondent, and claim for compensation on account thereof was duly made within the time required by the Compensation Act.

Mrs. Hillier’s annual earnings, computed in accordance with the provisions of Section 10 of the Compensation Act, were Eight Hundred Forty-nine Dollars and Sixty Cents ($849.60), and her average weekly wage was Sixteen Dollars and Thirty-four Cents ($16.34).

Claimant’s intestate was totally disabled from the time of her injury on October 26th, 1934 until the date of her death on June 19th, 1938, and the claimant is therefore entitled to an award for One Hundred Ninety and one-seventh (190-1/7) weeks’ compensation at Bight Dollars and Seventeen Cents ($8.17) per week, to wit, Fifteen Hundred Fifty-three Dollars and Forty-seven Cents ($1,553.47), payable in accordance with the provisions of the Workmen’s Compensation Act.

The total amount of such compensation has accrued at this date, and award is therefore entered in favor of the claimant for Fifteen Hundrtd Fifty-three Dollars and Forty-seven Cents ($1,553.47).

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,” (Illinois Revised Statutes 1939, State Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act Making Appropriations to the Auditor of Public Accounts for the Disbursements of Certain Moneys Until the Expiration of the First Fiscal Quarter After the Adjournment of the Next Regular Session of the General Assembly, ’ ’ approved July 1st 1939 (Session Laws 1939, page 117);— and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided by the foregoing Acts.


author: Mr. Justice Linsoott

text:
    (No. 3271
    Alphonsus L. Diel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 15, 1939.

    Wilber H. Hickman, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

This claim was filed on June 8, 1938, asking damages in the sum of $10,000.00 because of injuries incurred by claimant while a guard at the Illinois Penitentiary, Joliet branch, on or about November 10, 1937.

It appears from the record that claimant had been employed in the same capacity in-which he was working at the time of the accident since May, 1934. During the forenoon, and to the best of claimant’s recollection, on November 10, 1937, the claimant was guarding some prisoners on the honor farm and they were hauling in posts and using a hay-rack. Claimant was standing on this rack which was about three and one-half feet from the ground. When the horses started, claimant lost his balance and in an attempt to protect himself, jumped to the ground, injuring his right foot. He continued in the employment, although there were days that he was unable to work, until February 8, 1938, when he went to the hospital at the institution. It appears from the record that on the suggestion of the Warden, Mr. Hagen, because the institution hospital was not properly equipped to take care of the claimant, the claimant, who was a veteran of the World War, went to Hines Veterans Hospital on February 10, 1938, and remained there until May 28, 1938. His right leg was amputated on March 4, 1938 above the knee. The claimant returned to work at Joliet Penitentiary on August 12, 1938 at the same rate of pay that he received prior to the accident.

It appears from the record that claimant drew his full pay up to March 1, 1938, although he had been at the Hines Hospital since February 10th of that year.

The complaint in this case was filed on June 8, 1938, and proper notice was given by the claimant within thirty days after the accident.

During the year immediately prior to the date of the injury, he had received $112.75 per month, and in addition thereto he. had received board and room, laundry, barber work, cleaning and pressing and a garage for his automobile, and he is willing to compute those services at the rate of $24.00 per month. On July 1, 1937, his pay was raised to $118.75 per month. It appears that at that time his wife came to live at Joliet from their home in Paris, Illinois; that she came sometime during the month of July, 1937, and thereafter the claimant continued to receive the benefits previously received, except that he no longer occupied a room at the penitentiary. Although married, he has no children.

The State did not pay any of his bills at the Hines Hospital ; that because of the fact that he was a former soldier, the Federal Government paid these bills and furnished him with an artificial leg.

Claimant’s right leg was amputated half way between the knee and the hip. Prior to the date of the injury he had never had any trouble with his right foot, and had no other injury after the accident before his foot and leg became infected. The foot was at first sore and slightly discolored on the bottom. The skin then broke open and infection set in on the ball of the foot between the second and third toes just at the toe.

The court finds that it has jurisdiction of this case under the Workmen’s Compensation Act and that due notice was properly given and the complaint filed within one year.

The Compensation Act provides that:

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

Other provisions of the Compensation Act provide that:

“For the loss of a leg, or the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred and ninety weeks.”

In the case of Payne vs. Industrial Commission, 296 Ill. 223, at 229 it was held that no distinction is made under the Act between the loss of the whole leg and the loss of a part of the leg. The loss of any substantial portion of the leg constitutes the loss of the leg within the meaning of the Act, and the court held that the amputation of the leg ten inches above the ankle joint entitled claimant to compensation for the loss of the leg.

The entire period of temporary total disability need not follow immediately after the injury but is concluded when the injury has reached a permanent stage.

Peabody Coal Co. vs. Industrial Commission, 308 Ill. 133.

Under Sections 7 and 8 of the Compensation Act it is necessary to refer to Section 10 of the same Act for the basis for computing the compensation:

(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
(i) To determine the amount of compensation for each installment period, the amount per annum shall he ascertained pursuant hereto, and such amount divided by the number of installment periods per annum.

This court has held in the cases of Clarence E. Vaugh, which was decided by this court on February 8, 1938 and William E. Bauer, which was decided by this court on May 11, 1938, numbers 2840 and 2934 respectively, as follows, that:

“A guard or attendant at a State penal or charitable institution is entitled to the benefits of the Workmen’s Compensation Act of Illinois even though his duties may pertain to inmates who work on farm land constituting a part of such institution.”

From the facts in this case, we find that the claimant’s injuries arose out of and in the course of his employment.

It appears from the facts in this case that claimant was paid for non-productive time and that he made a demand for compensation six months from the date of the injury is not denied but admitted by the State. It also appears that he made a demand upon Warden Bagen on February 10, 1938, before he went to Hines Hospital.

Claimant had received an increase in salary on July 1, 1937, from $112.75 to $118.75. His wife went to live with him at Joliet on or about July 1,1937, and from then on he did not occupy his room at the institution. Using the customary basis of $24.00 per month for maintenance and which the claimant admits against his own interest though stating that the maintenance was worth more than that, but that he is willing to accept for the purposes of this claim and using the further customary basis of $6.00 per month for room, it appears that the maintenance which the claimant did not avail himself of to the extent of $6.00 per month from July 1, 1937, was offset by the increase in pay which he received beginning July 1, 1937.

From the facts in evidence, it appears that from November 10, 1936 to July 1, 1937, a period of 7 2/3 months, the claimant was paid at the rate of $112.75 and in addition received maintenance valued at $24.00 per month, or a total of $136.75 per month, which for the period of 7 2/3 months would amount to a total wage payment of $1,048.42. It further appears that for the period from July 1, 1937 to November 10, 1937, the claimant was paid on a basis of $118.75 plus maintenance which he received in kind, of a value of $18.00 because he did not occupy the room ¡which would have been furnished him by the institution had he desired, making a total wage payment of $136.75 per month for a period of 4 1/3 months or a total wage payment during that period of time immediately preceding his accident of $592.58. The total wages received by claimant while employed by respondent in the same capacity totals $1,641.00, per year, or the sum of $31.55, as the average weekly wage. One half of $31.55 amounts to $15.77, which is more than the maximum provided by the Compensation Act. Claimant did not have any children under sixteen years of age. He is, therefore, only entitled to the sum of $15.00 per week compensation. His temporary total disability did not commence until February 8, 1938 when he went to the hospital at the institution and continued until August 12, 1938 when he returned to his work at the Stateville Penitentiary, or a period of 185 days, or 26 3/7 weeks. On the basis of $15.00 per week for the period of 26 3/7 weeks, claimant would be entitled to the sum of $396.43 temporary total disability compensation. However, the claimant was paid his full salary during the month of February, 1938, although he only worked seven days, which was one-fourth of that month of twenty-eight days, and he received one-fourth of his maintenance of $18.00 or $4.50, or a total of $123.25, while he should have received one-fourth of $136.75, the total of his cash wages and his maintenance, or $34.19, which is the amount which the claimant actually earned during the month of February, 1938 as against the amount which he actually received of $123.75. The claimant was, therefore, over-paid the sum of $89.06 for that amount. This should be deducted from the sum of $396.43, which leaves a balance of $307.37, being the amount of temporary total disability to which the claimant is entitled.

Having lost his right leg about midway between the knee and the hip, he is also entitled to 190 weeks at the rate of $15.00 per week, or the further sum of $2,850.00 for the specific loss of the leg.

Claimant also claims that there is due him the further sum of $79.50 for other and additional hospital and medical services. Under Exhibits 3, 6, 7, 8 and 9 of his own testimony, he is only entitled to $50.42, the difference of $29.08 not being shown either in any Exhibit or in his own testimony, and we can only allow the sum of $50.42.

■ We, therefore, hold that claimant is entitled to the sum of $307.37, being the amount of temporary total disability, the sum of $2,850.00, being for the specific loss of the right leg, and the sum of $50.42 for other and additional hospital and medical services, or the total sum of $3,207.79; and that claimant is now entitled to have and receive from the respondent the sum of $307.37, being the amount of temporary total disability, the sum of $50.42 for other and additional hospital and medical services, and the sum of $981.43 being the amount of compensation that has accrued from August 12, 1938 to November 13, 1939, (being 65 3/7 weeks at $15.00 per week), in all, the sum of $1,339.22; and the remainder of said award to-wit the sum of $1,868.57 to be paid to him at the rate of $15.00 per week, said sums to be paid on the dates when claimant usually received his salary checks.

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 (Session Laws 1937 page 83), and being subject further to the ¿terms of an Act entitled “An Act making appropriations to the Auditor of Public Accounts for the disbursement of certain moneys until the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly” (Senate Bill 123 as amended) approved July 8, 1939; — and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided .for by the foregoing Acts.


author: Mr. Chief Justice Hollerich

text:
    (No. 3203
    Jane Kehoe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 16, 1939.

    A. J. Clarity and Frank R. Eagleton, for claimant.
    John E. Cassid-y, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For some time prior to, and on the 18th day of August, A. D. 1937, claimant’s son, Donald Kehoe, was employed as a laborer in the maintenance department of the Division of Highways, Department of Public Works and Buildings of the State of Illinois, and on the last mentioned date was engaged in painting Turtle Creek Bridge, located on S. B. I. Route No. 2 just north of the Village of South Beloit, Illinois. While engaged in the work of his employment, the ladder upon which he was working was struck by an automobile driven by one Herbert Johnson, as the result of which said Donald Kehoe was thrown against one of the beams of said bridge and sustained a fracture of the skull, as well as other injuries, from which he died within the course of a few minutes.

From the evidence in the record it satisfactorily appears that on the 18th day of August, A. D. 1937, the said Donald Kehoe and the respondent were operating under the provisions of the Workmen’s Compensation Act of this State; that on said date the said Donald Kehoe sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same day; that notice of the accident was given to the respondent, and claim for compensation on account thereof was made within the time required by the provisions of the Compensation Act; that said Donald Kehoe was not in the employ of the respondent for the full year immediately preceding the accident; that his daily wage was Fifty Cents (50c) per hour, and he worked eight (8) hours per day; that at the time of the accident in question he was twenty-five (25) years of age, and unmarried; that he left him surviving the claimant Jane Kehoe, his mother, with whom he resided at the time of his death, as well as eight (8) brothers and sisters; that Donald Kehoe’s father left the family about twenty-two (22) years prior to the accident in question, and has not since been heard from; that said Donald Kehoe was the only one of claimant’s children who contributed anything towards her support within the period of several years prior to the death of said Donald Kehoe.

The evidence satisfactorily shows that Herbert Johnson, who was the driver of the automobile which struck the ladder on which claimant’s intestate was working, died as the result of the accident in question; that he owned no money or property out of which a judgment could be satisfied either in whole or in part.

The only questions in dispute are:

1. The basis upon which the compensation is to be computed.

2. The extent of the dependency of the claimant Jane Kehoe.

3. The amount of the compensation to which she is entitled under the provisions of the Workmen’s Compensation Act.

The basis for computing the compensation to be paid under the provisions of the Workmen’s Compensation Act in cases of this kind is fixed by Section 10, Paragraphs (a), (b), (c), (d), and (e) which read as follows:

“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
(b) Employment by the same employer shall be-taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.
(c) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual- earnings which persons of the same class in the same employment and same location, (or if that be impracticable, of neighboring employments of the same kind) have earned during such period.
(d) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings in such computation.
(e) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings: Provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.”

Claimant contends that Kehoe was engaged in the work of maintaining highways; that such work is an employment in which it is the custom to operate throughout the working days of the year; that Kehoe’s annual earnings should he determined in accordance with the provisions of the aforementioned paragraph (d); that under the provisions of such paragraph, his annual earnings should be determined by multiplying the amount of his daily wage, to wit, Four Dollars ($4.00), by three hundred (300).

The respondent contends that Kehoe was working as a painter; that painting is an employment in which it is the custom to operate for a part of the whole number of working days in each year; that Kehoe’s annual earnings should be determined in accordance with the provisions of the aforementioned paragraph (e); that under the provisions of such paragraph, his annual earnings should be determined by multiplying the amount of his daily wage by 200.

The basis upon which the compensation is to be computed, therefore, depends upon the proper construction of the several paragraphs of said Section 10 of the Compensation Act.

The matter of such construction was before our Supreme Court in the case of Ruda vs. Industrial Board, 283 Ill. 550, where the- court, on page 543, said:

“It is a cardinal rule in construing statutes that they are to be construed so as to give effect to each word, clause and sentence, so that no word, clause or sentence -shall be considered superfluous or void, (Crozer vs. People, 206 Ill. 464; People vs. Flynn, 265 id. 414; 36 Cyc. 1128); and a statute should be so construed, if possible, as to give to each word and sentence its ordinary and accepted meaning. (Crozer vs. People, supra.) The word ‘minimum’ is defined as ‘the least possible quantity, amount or degree that can' be assigned in a given case or under fixed conditions.’ (New Standard Dict.; 27 Cyc. 793.) In reaching the proper construction to be placed upon any provision of a statute the whole should be construed together in order to get the intention of the legislature, as one part may furnish an explanation of another. (Maiss vs. Metropolitan Amusement Ass’n., 241 Ill. 177.) Reading all of said section together we think it is quite manifest that the legislature intended, if the employment operated all the working days of the year and an injured employee’s wages were not determinable otherwise, that three hundred should be taken as a basis from which to calculate his compensation; that if the employment operated only a part of the working days, such number, if the injured employee’s annual earnings were not otherwise determinable, should be taken as a basis, but that in any event no less than two hundred days should be used in such computation. Paragraph (c) has reference, obviously, to a situation where the employee has not worked for the same employer a full year prior to the accident, whether persons in that employment customarily worked all of the working days in the year or not. Paragraph (d) has reference solely to a situation where the employment operated all of such working days and provides the method of computing compensation if not otherwise determinable, while paragraph (c) is intended to cover a different situation — that is, ascertaining a basis where the working days are intermittent — and where in this proviso an express limitation is added, viz., that no less than two hundred days shall be taken as the minimum. (Harper on Workmen’s Compensation, sec. 172.) Paragraph (c) does not provide, as do some of the other paragraphs, that if the annual earnings are not otherwise determinable two hundred days shall be used as a basis but does clearly state that in any event the minimum shall not be less than two hundred days, and this was the construction put upon this statute by the Industrial Board in this proceeding and it has been so construed by the board in other cases.”

The only other authorities cited by counsel for either side, bearing upon this question, are the following: Stellwagen vs. Ind. Com., 359 Ill. 557; Truax-Traer Coal Co. vs. Ind. Co., 362 Ill. 75; and Puttkamer vs. Ind. Com., 371 Ill. 498; 21 N. E. 2d, 575.

There is nothing in any of such cases which conflicts in any way with the views expressed in the Ruda case, supra.

In the Stellioagen case, the employer was engaged in the real estate business, and although his business apparently operated all of the working days of the year, yet the work of the employee was part time work. In that case the court said:

“The employment of defendant in error was such that it would customarily engage him only a part of the whole number of working days, depending upon the weather and circumstances. In such case Section lOe applies, and the award was properly based on a daily wage of $8.00 multiplied by the two hundred day minimum to determine the average annual earnings.”

As we view the matter, the several provisions of Section 10 must be considered together in order to obtain the true intent and meaning of the section.

Although the work of some of the divisions of the Highway Department continues throughout the working days of the year, yet the work in which claimant’s intestate was engaged at the time of his death operated less than 200 working days during the year.

Claimant’s intestate was not engaged in the employment of the State for the full year immediately preceding the accident, and the annual earnings during such period, of persons of the same class, in the same employment and same location, does not appear from the record.

Considering said Section 10 as a whole, and considering also the aforementioned decisions of our Supreme Court construing the meaning of such section, and considering the facts in the record, we conclude that the annual earnings of the claimant’s intestate must be ascertained by multiplying his daily wage, to wit, Four Dollars ($4.00), by the two hundred (200) day minimum.

The extent of the dependency of the claimant, Jane Kehoe, is a question of fact, and the amount of compensation to which she is entitled must be determined in accordance with the provisions of Section Seven (7) of the Workmen’s Compensation Act.

Counsel for claimant contends that she was totally dependent upon the earnings of her son for her support, and that the amount of compensation to which she is entitled must be computed in accordance with the provisions of paragraph (b) of said Section Seven (7) which provides, in effect, that where an employee does not leave a widow, child or children whom he was under obligation to support, but leaves a parent, husband, child or children who at the time of the injury were totally dependent upon the earnings of the employee, then the compensation shall be “a sum equal to four times the average annual earnings of the employee, but not less in any event than two thousand five hundred dollars and not more in any event than four thousand dollars.”

The respondent contends that the dependency of the claimant upon the earnings of her son was but partial, and that the amount of compensation to which claimant is entitled must be computed in accordance with the provisions of Section (c) of said Section Seven (7), which provides, in effect, that if the employee leaves no widow, child or children whom he was under legal obligation to support, but leaves any parent or parents, child or children, who at the time of the injury were partially dependent upon the earnings of the employee, then the compensation shall be “such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to the total dependency, but not less in any event than one thousand dollars and not more in any event than three thousand seven hundred fifty dollars.”

It is clear from the facts in the record that the claimant was iiot totally dependent upon the earnings of her son for her support. For several years prior to the death of her son, claimant maintained a rooming house in which she kept one or two regular boarders, and also served meals to such boarders and others. Her earnings were not large, but they constituted a substantial portion of the cost of her maintenance, and consequently the amount of compensation to which she is entitled must be considered on the basis of partial dependency rather than total dependency.

The facts in the record show that Donald Kehoe was an exceptionally fine young man; that he was extremely devoted to his mother; that he was the only one of her children who provided for her support, all of her other children being married and having families of their own; that during the school year he attended school at Dubuque and worked before and after school hours and on holidays at any work he might be able to get, and thereby provided for his own support, maintenance and education; that during the summer months he was extremely active and managed to keep employed the greater part of the time at some kind of work; that during the year preceding his death his earnings in the summer months from his employment by the State of Illinois aggregated $223.70, all of which was turned over to his mother; that in addition to such sum he earned small amounts from other employers during the summer and thereby provided for his own wearing apparel and miscellaneous items of living expenses and made small contributions to his mother.

No amount of money that this court could award the claimant would compensate her for the loss she has sustained by reason of the death of her son. However, in allowing awards in compensation cases, we must be governed solely by the provisions of the Workmen’s Compensation Act, and our award can be determined only in accordance with the provisions of such Act.

After carefully considering all of the evidence in the case, including the earnings of the claimant from her rooming house and from serving meals, as well as the earnings and contributions of her son, we have concluded that the dependency of the claimant upon the earnings of her son was fifty per cent (50%) of the total dependency.

Four times the average annual earnings of Donald Kehoe, as hereinbefore set forth, aggregates Thirty-two Hundred Dollars ($3,200.00), and therefore the amount of compensation to which claimant is entitled in accordance with the provisions of the Workmen’s Compensation Act, is Sixteen Hundred Dollars ($1,600.00), payable in weekly installments of Seven Dollars and Sixty-nine Cents ($7.69), commencing August 19, 1937.

Compensation has accrued from August 19, 1937, to November 15, 1939, to wit, for One Hundred Seventeen (117) weeks; that is to say, the sum of Eight Hundred Ninety-nine Dollars and Seventy-three Cents ($899.73).

Award is therefore entered in favor of the claimant for the sum of Sixteen Hundred Dollars ($1,600.00), payable as follows, to wit: The sum of Eight Hundred Ninety-nine Dollars and Seventy-three Cents ($899.73) shall be paid forthwith ; and the balance of said award, to wit, the sum of Seven Hundred Dollars and Twenty-seven Cents ($700.27), shall be paid in weekly installments of Seven Dollars and Sixty-nine Cents ($7.69), commencing November 22, 1939.

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” (Illinois Revised Statutes 1939, State Bar Association Edition, Chapter 127, Pars. 180-181), and being subject also to the terms of an Act entitled “An Act making Appropriations to the Auditor of Public Accounts for the Disbursement of Certain Moneys until the Expiration of the First Fiscal Quarter after the Adjournment of the next Regular Session of the General Assembly,” approved July 1, 1939 (Session Laws 1939, page 117); and being, by the terms of the first mentioned Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided by the foregoing Acts.


author: Mr. Justice Tantis

text:
    (No. 3406
    John James Cratty, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1939.

    Mary Doubet - Cassell, Clarence W. Heyl and Richard J. Kavanagh, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On September 25,1937 plaintiff was employed as an automobile salesman by one Joe Fisher. His complaint recites that on that date while engaged in the performance of his duties, he called upon a prospective customer at a building located on what is commonly designated as “Plank Road” in Peoria County, lying below and parallel with State Route No. 116 at a point where a certain bridge built by the State of Illinois connects with said Route; that Route No. 116 is about thirty-five or forty feet above “Plank Road,” and that there is a flight of steps leading down to the road from said Route. The stairway was erected by the State of Hlinois to provide a connection from the road to the Route. It is constructed of cement and an iron railing is placed along the edge of the stairway to be used as a support for persons traveling such stairs.

The complaint further alleges that the State by its agents and servants in so constructing and maintaining the stairs, carelessly, negligently and recklessly failed to securely fasten the iron railing, and permitted same to remain in a dangerous and unsafe condition, and that plaintiff being unaware thereof, while ascending the steps on the day stated took hold of the railing which gave way, causing him to lose his balance and to fall a distance of thirty feet from said steps to the “Plank Road.” Claimant suffered serious injuries as a result of the fall which confined him to the hospital for almost eleven months, and incurred hospital and medical bills aggregating Three Thousand Nine Hundred Ninety-nine ($3,999.00) Dollars.

At the time plaintiff was injured he and his employer were operating under the Workmen’s Compensation Act of Illinois, insurance thereunder being carried with the Travelers Insurance Company of Hartford, Connecticut. Payment of compensation was contested before the Industrial Com-, mission but eventually a settlement was made whereby the Insurance Company paid claimant Four Thousand Three Hundred Forty ($4,340.00) Dollars. The hospital and medical bills were settled for One Thousand Nine Hundred Fifty-seven ($1,957.00) Dollars. The claim recites that in case of any award hereunder, said Insurance Company would be entitled to subrogation in the above sum of Four Thousand Three Hundred Forty ($4,340.00) Dollars, and claimant herein seeks an award of Twenty-five Thousand ($25,000.00) Dollars to cover medical and hospital bills past and future, and loss of earning ability, permanent disability, pain, and suffering.

The Attorney General has filed a motion to dismiss the complaint for the reason that same does not set forth a compensable claim, in that it is predicated upon alleged liability of the State to respond in damages for personal injuries alleged to have been caused by the negligence of the agents and servants of the State in the construction of said stairway and rail; that the rule of “Respondeat Superior” not applying to the State, no legal liability rests upon the State for the negligence of its agents, and that even if the condition as alleged be true no right to an award would accrue.

We have held in numerous cases that in the maintenance and construction of its hard surfaced roads the State is engaged in a governmental function, and that in such construction and maintenance the State is not liable for damages caused by defects in construction or negligence upon the part of its employees or agents. (Harmon vs. State, 9 C. C. R. 26; Cavatio vs. State, 9 C. C. R. 245.)

As there is no statute in Hlinois by which the State is made liable for the negligence of its employees, this court is without authority to enter an award against the State for the unfortunate injuries suffered by claimant. The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 3361
    United Oil Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 12, 1939.

    Kenworthy, Shallberg & Harper, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

This claim was filed February 17, 1939, seeking an award of One Hundred Forty-six and 26/100 ($146.26) Dollars as a refund of inspection fees, on petroleum products shipped outside of the State of Illinois during the years 1934-35-36-37. During that period claimant was engaged in the distribution of such products in the City of Bock Island, Illinois, and paid to the Department of Finance inspection fees on gasoline received by it. Certain portions of such products were shipped outside of the State after inspection.

Section 13 of the Oil Inspection Act (Par. 13, Ch. 104, Ill. Bevised Statutes. — 1935) as it read during the period covered by this claim, provided as follows:

“The fee for inspecting petroleum products shall be at the rate of 3 cents for each 100 gallons contained in the total quantity represented by the samples.
“However, when petroleum products shall be shipped outside of the State after inspection, the person so making such shipment shall be given credit by the department for such fees, if notice of such shipment out of the State, properly acknowledged and sworn to before. a 'Notary Public is given the department, together with such other and further information relating to such shipment as the department may require, not later than the 15th day of the following month.”

In its claim claimant recites—

“Notice of such shipments out of the State, properly acknowledged and sworn to by P. L. Welch, as President, before a Notary Public, was given the Department of Finance of the State of Illinois in accordance with said statute”;

further,

“That on receipt of said notices claimant was immediately billed by the Department of Finance of the State of Illinois for inspection without allowance of any credit to claimant for the gasoline gallonage shipped outside of the State of Illinois.”

The Attorney G-eneral filed a motion to dismiss the claim on the ground that it was insufficient upon its face. This contention was overruled and the motion to dismiss was denied. The claim is now submitted upon a stipulation whereby the claim is to be considered upon the complaint and a report filed herein by the Supervisor of Motor Fuel Tax and Oil Inspection Divisions.

The report in question gives an itemized list of the dates on which the reports to the Motor Fuel Tax Division of the Department of Finance were filed by claimant for the respective months; also the month which such report represented and the dates of the respective monthly reports upon which same were acknowledged, as shown by the Notary’s Affidavit.

The report discloses that the earliest date at which any of the reports were filed was the 18th day of the following month for which such report was made, and others varied from that date up to the 23rd of the month following that for which a report was then being made.

The Notary Public’s acknowledgment dates on the respective reports vary from the 16th to the 19th of the respective subsequent months.

It is apparent that compliance with the requirements of the statute above cited, was not made whereby a refund might be obtained if the required report was made “not later than the 15th day of the following month.”

This court has been repeatedly called upon to hold that the only basis upon which moneys paid into the State for a legitimate tax can be refunded, is where such payment is made under a mistake of "fact, or where the statute under which the payment is required, contains some proviso directly authorizing a refund under stated conditions.

"Where such proviso for a refund is contained in the statute, and the taxpayer shows compliance with such conditions, a payment can be made. Where a failure to so comply is shown, this court has taken the position and does now believe that it is without authority to authorize an award to the claimant for such refund. (National Lock Co. vs. State, 8 C. C. R. 320.)

The claim is hereby denied and the cause dismissed.


text:
    (No. 3113
    J. Burrell Davenport, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1940.

    Frank M. Ramey, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On August 14, 1937, claimant filed his complaint in this court alleging that on March 26, 1933, the claimant was in the employ of the State of Illinois as a State Highway Patrolman or as a Highway Maintenance Policeman of the Division of Highways, Department of Public Works and Buildings of the State; that on said date, while in the course of his employment in the City of Hillsboro, on Route 16, and while taking an injured person to a hospital at Hillsboro, and driving through the traffic, both bones in his right leg" were broken in an accident, and claimant was thereby hindered and prevented from attending to and transacting his duties; that his leg never fully recovered; that he now suffers a permanent injury to this leg, and that he is in great pain and suffering.

That at the time of the accident, claimant was receiving One Hundred Fifty Dollars ($150.00) per month for services as such Highway Patrolman; that he was paid a salary up to and including June 15,. 1933; that the respondent has paid the sum of One Hundred Fifteen Dollars and Twenty-five Cents ($115.25) to the Hillsboro Hospital on account of services rendered to the claimant, and the respondent has also paid the sum of One Hundred Fifty Dollars ($150.00) an account of doctor and medical bills rendered on account of said injury. Claimant alleges that there is now due from the respondent to claimant the sum of Fifteen Dollars ($15.00) per week from June 15, 1933 to December 22, 1933, being twenty-seven weeks, amounting to the sum of Four Hundred and Five Dollars ($405.00) as computed according to the provisions of the Workman’s Compensation Act of the State of Illinois and according to Section 6 of the Court of Claims Act of the State of Illinois; that there is also due from respondent to claimant, compensation for permanent disability on account of the injury to his right leg; that no claim has been presented to any State Department of the State of Illinois, or to any State Officer of the State of Illinois. A Bill of Particulars was attached to the complaint, making’ the same claim.

The Attorney General filed a motion to dismiss and as one of the grounds stated that the application for compensation was not filed within one year after the date of the injury or within one year after the date of the last payment of compensation, as provided by Section 24 of the Illinois Workmen’s Compensation Act and Section 6, subsection 6 of the Court of Claims Act.

Counsel for claimant argues that he is not limited to one year in which to file this claim, but that the statute of limitations in this kind of a case is five years. Among other things, counsel argues that Section 10 of the Court of Claims Act provides for a limitation of five years and that this is controlling.

If the claimant in this case has any claim at all, it is under the Workmen’s Compensation Act.

Section 6 of the Court of Claims Act gives the court the power to hear and determine the liability of the State for accidental injuries or death suffered by any employee of the State, etc., in accordance with the rules of the Workmen’s Compensation Act. Here is a statutory direction to determine this case in accordance with the .rules of the Workmen’s Compensation Act.

Section 24 of the Workmen’s Compensation Act provides that an employee has only one year to file a claim after the receipt of the last payment of compensation. This is jurisdictional. See Crabtree vs. State of Illinois, 7 C. C. R. 207; DuQuoin School District vs. Ind. Com., 329 Ill. 543; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 611.

This claim was not filed for more than four years after the accident. It is averred that he was paid, apparently for unproductive labor, up to June 15, 1933. Holding this to be a payment under the Compensation Act, much more than a year elapsed between then and the date of filing this claim, which was August 14, 1937.

The motion of the Attorney General must be sustained and the claim dismissed.