author: Chief Justice Damrou

text:
    (No. 2938
    Edward Weimer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Andrews & Young, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor and Robert V. Ostrom, Assistant Attorneys General, for respondent.
   Chief Justice Damrou

delivered the opinion of the court:

Edward Weimer, the claimant, on September 24, 1935, while employed by the respondent in the Division of Highways, Department of Public Works and Buildings as a laborer in Henry County was injured by falling off a truck which moved unexpectedly, so that claimant fell upon the upright handle of a shovel crushing and injuring himself, in the region of the urethra.

On the following day he reported to and was treated by Dr. J. M. Young of Kewanee, Illinois, who found upon examination that the claimant’s bladder was filled with blood and the urethra was constantly hemorrhaging. Claimant’s bladder was washed with warm antiseptic solution and was irrigated for many days. A catheter was used by the physician two or three times a day.

On November 27th, 1935, Dr. Young filed an accident report with the Division of Highways in which he stated:

"I removed blood from the bladder by irrigation each day. Allayed irritation and finally got him so he could urinate, and injury repaired. He has discontinued treatment so he probably returned to work.”

On February 11, 1936, claimant again called at Dr. Young’s office for further treatment, complaining of soreness in his back and at the point of injury and stated he was not able to work. Dr. Young stated that in view of the fact that almost three months had passed since his last examination of the injured he felt that he was not in a position to make a statement that this condition is the direct result of the accident and for this reason suggested that claimant be taken to a Gr. U. Specialist for an examination to determine whether or not complications had arisen from the injuries sustained at the time of the accident.

The claimant was taken to Chicago on orders of the Division of Highways, and was examined by Dr. Charles M. McKenna, Professor of Urology, College of Medicine of the University of Illinois. This examination took place at Dr. McKenna’s office in Chicago on April 7th, and at the St. Joseph’s Hospital on April 8th.

The evidence consists of the testimony of the claimant and Dr. J. M. Young on his behalf, and of Dr. Charles M. McKenna on behalf of respondent. Claimant testified that he was fifty years of age at the time of the accident, and claimed to be wholly disabled, and unable to do any manual labor, however his testimony shows that on July 5th., 1938 he was employed by the W. P. A., which required him to sand at the schools, paint and varnish and to do the raking at the athletic field. He continued in this employment until April 5, 1939. That since that time he has done no work of any kind, because he was bothered with his back. That his legs became swollen when he worked, and at that time he was unable to do anything except house work. He gave his weight at about two hundred forty pounds.

The question before the court is whether or not claimant is permanently disabled as the result of the injury suffered September 24, 1935, and it is incumbent upon claimant under the law to establish by a preponderance of the evidence a causal connection between the injury and his claimed present ill-being.

Dr. J. M. Young, in qualifying as a witness testified that he had practiced as a physician for twenty three years. That he graduated from Loyola University in 1913, that he had served internships in the Norwegian Deaconess Hospital, the Central Manufacturers District Hospital, and Lying-In Hospital all in Chicago, Illinois. He was asked:

Q. “What is the nature of your practice in Annawan of recent years?”
A. “Well, it is about half surgery and half medical.”

In answer to a question Dr. Young testified:

“At the time of my first treatments I found that claimant had a mass in the region of the prostatic urethra, by rectal bi-manual examination, and a mass in the bladder about the size of two fists which was rather firm. On examining the point of injury, there again was a spongy mass. In the last examination I made of him there was little that I could determine for sure other than the symptoms stated by the patient, because it was practically disappeared. I couldn’t feel anything. I would judge this was in February 1937.”

He was asked the following questions and made the following answers:

Q. “Prior to this examination in February when was the last time you made an examination before that?”
A. “I couldn’t say because at various times when he would come in I would look at him and express an opinion that he seemed to be doing alright. After the examination .in Chicago I didn’t examine him because I felt that they were more capable than I, and I did not go into detail or make any further examination.”
Q. “Doctor, you do not specialize in urology?”
A. “No, sir."
Q. “Nor diseases of the genito-urinary system?”
A. “No, I do not."
Q. “Then, with the exception of this blood that you observed in February, 1937, after the masses to which you have made reference were dissipated, there were no objective symptoms in any of your examinations, is that correct?”
A. “Yes, sir."
Q. “And you based your analysis and formed your opinion from the subjective symptoms that were given to you by the claimant himself?”
A. “Yes, sir.”

Dr. Charles M. McKenna testified on behalf of respondent. In qualifying as an expert he stated he had been admitted to practice medicine in the State of Illinois in 1905, and has practiced continuously since that time. That he was head of the Department of Urology of the University of Illinois.

It is unnecessary for the court to recite the qualifications of Dr. Charles M. McKenna since the attorney for the claimant admits that Dr. McKenna was -without question an accomplished and highly reputed specialist.

Dr. McKenna testified regarding his findings of the examination he made of the claimant on the 7th and 8th of April, 1936. He stated that he used a cystoscope; catheter on both kidneys and made an examination of the specimen which was negative. On examination of the bladder it appeared to be normal. The vesicle neck appeared to be normal. That this was confirmed by the fact that he had no difficulty in passing a 28 sound, and no obstruction was encountered. That he found no abrasion or stricture in' the urethra. The urethral examination revealed a prostate normal for a man of his years.

Dr. McKenna was asked the following questions:

Q. “Doctor, did you find any objective symptoms that would cause pain in the back in the region where the belt goes around, in any of your examinations?”
A. “No, I didn’t find anything like that. Most of his symptoms referred to the crotch where he was struck.”
Q. “A blow such as the claimant gave you a history of, would, if causing an injury, cause what injury?”
A. “Such an injury possibly, that might occur with that kind of a blow, would be to the urethra such as- a rupture or trauma sufficient to produce a stricture, which was negative on the examination.”

It is the duty of this court to weigh and consider the evidence in .the record and if it is found that the evidence fails to support the averments in the complaint this court must deny the claim. Liability under the Compensation Act cannot rest upon imagination, speculation or conjecture or upon a choice between two views equally compatible with the evidence, but must be based upon facts established by a preponderance of the evidence.

Berry vs. Ind. Comm., 335 Ill., 374.

And further, awards for compensation cannot be. based upon possibilities or probabilities, but must be based upon sufficient evidence showing, that claimant has incurred a disability arising out of and in the course of his employment.

Standard Oil Co. vs. Ind. Comm., 322 Ill., 524.

In the view we take of this record the claimant has failed to prove by a preponderance of the evidence that there is a causal connection between the subjective symptoms and the trauma received on September 24, 1935, an award for permanent total disability accordingly must be denied.

Claimant, however is entitled to an award for temporary total disability. He was injured on September 24, 1935, and the period of temporary total disability could not by any reason extend beyond April 8, 1936, the date of the examination by Dr. Charles M. McKenna, and probably did not extend that long. On that date his condition was found to be normal, and will be taken by this court as the period of temporary total disability.

From September 24, 1935 to April 8, 1936, is a period of twenty-eight (28) weeks. Under Section 8(b) of the Workmen’s Compensation Act claimant is entitled to fifty per cent of his weekly earnings during the period of his total disability. Claimant’s rate of pay was fifty cents an hour for eight hours a day. On a minimum basis of two hundred days a year with an eight hour day, the annual wage would be $800.00 or $15.38 weekly wage. His compensation rate, therefore would be $7.69. At that rate for twenty-eight weeks equals $215.32 due claimant for temporary total compensation.

It appearing that claimant was paid $52.50 for unproductive work this amount must be deducted from the award leaving a sum due claimant of $162.82.

An award is further entered in this case for the use of Dr. J. M. Young for services rendered to claimant, as per exhibits, in the sum of $63.54, making a total award of $226.36.

An award is therefore entered in favor of claimant in the sum of $226.36, all of which has accrued and is now payable in a lump sum.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees- and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Eckert, J.

license: Public Domain

text:
    (No. 3636
    Virgil White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    R. M. Michaelbee, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On May 6, 1941, the claimant, Virgil White, was an employee of the State of Illinois, Department of Public Works and Buildings, Division of Highways, in District No. 7, with headquarters at Effingham, Illinois. While he was backing a truck toward a storage bin, the truck struck the end of the bin and threw claimant forward against the steering wheel. He alleges that he sustained an injury to his back as a result of this impact. After the accident, however, he continued his work without interruption until May 19th, when he complained of a severe pain while turning a lever of a grader. He was taken to his home, but returned to work the following day. He was then given light work at the district garage where he continued until May 24. He was formally discharged as an employee of the Division on May 26, 1941.

On June 6, at the request of the respondent, claimant was treated by Dr. J. W. Gillesby of Effingham; on June 10th an x-ray was taken of claimant’s back with revealed no fracture or bone injury. Claimant, however, continued to complain of pain and on July 8th was sent to Chicago and placed under the care of Dr. H. B. Thomas, Professor of Orthopedics, University of Illinois Medical College, where he remained until August 1st. On September 14th he resumed treatment with Dr. Thomas, and on September 19th Dr. Thomas reported to the Division as follows:

“Mr. Virgil White has had four physiotherapy treatments and feels improvement. The leg does not trouble him as much now as it did before he returned to us this last time. He has requested to go home. I believe it is a reasonable request and that he is able to go to work. There is a disuse atrophy of the muscles of the back and their strength should be built up gradually and cautiously with physical efforts accompanying his work. We find no objective symptoms.”

Claimant has received compensation for temporary total disability from May 25th to September 21st, 1941, inclusive, in the amount of $280.64. Respondent has also paid on account of medical services for claimant the sum of $238.58. At the time of the alleged injuries, the employer and employee were operating under the provisions of the Workmen’s Com-, pensation Act of this State; notice and claim for compensation were made within the time provided by the Act.

Claimant testified that after the second accident, in June 1941, at Dr. Grillesby’s suggestion, he obtained work at the Ford Motor Company, at Detroit, Michigan, but was unable to continue after the fourth day because of the pain in his back. Between August 1 and September 14, he worked for the Vulcan Last at Effingham, Illinois, but after two weeks found he could not stand on the floor all day. In November, 1941, he again went to work for the Vulcan plant but could not do physical labor. He also testified he had been asked to return to the Ford Motor Company, and has been asked to report for work at a camp near Detroit, Michigan, but had accepted neither of these offers because he felt he had not been released by the doctors, and because his back hurt him whenever he tried to work.

Dr. Gillesby, who first treated claimant on June 6, 1941, diagnosed his condition as traumatic myositis of the right lumbar muscle. The doctor testified that the symptoms were subjective and that he had to go by what claimant said. “The symptoms were merely subjective; that is, only what the patient tells. You couldn’t tell them by laboratory tests.” Dr. Gillesby stated further: “The x-ray man reported that x-rays were negative for essential pathology of the bones and joints. The x-rays did not show anything on muscle tear.” Dr. H. B. Thomas, who treated claimant after July 1, 1941, likewise reported that he could find no objective symptoms of any kind.

Claimant cannot prove his case by subjective symptoms only. Section 8, Sub-section (i) (3) of the Workmen’s' Compensation Act of this State provides:

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

Neither claimant’s own testimony, nor the medical testimony, shows any objective condition or symptom. The evidence fails to satisfy the requirements of this section of the Act.

The motion of the respondent to dismiss is therefore granted and an award denied.


author: Chief Justice Damron

text:
    (No. 3526
    Esther Widdes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

      Petition of Claimant for leave to file.

      Amended complaint filed Oct. 7, 1942.

      Petition granted Nov. 10, 1942.

      Motion of Respondent to Dismiss allowed Dec. 17, 1942.

      Petition of Claimant to reinstate case filed Jan. 18, 1943.

      Denied March 9, 1943.

      F. Patrick Gonlon and Irwin H. IIelman, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claimant seeks an award of Fifteen Thousand ($15,-000.00) Dollars for personal injuries claimed to have been sustained by her, as the result of the wilful and wanton conduct and negligence on the part of the agents, officers or employees of the State of Illinois, the respondent herein.

Claimant alleges that on July 13, 1939, she was lawfully on the premises of what is known as Montrose Avenue beach, located on Lake Michigan, at the foot of Montrose Avenue in Chicago, Illinois; that said beach was, at' the aforesaid time owned or under the jurisdiction and control of the Lincoln Park District, a governmental adjunct of the State of Illinois.

She further alleges that the Lincoln Park District at the aforesaid time and place, by its agents or servants in that behalf, had constructed and maintained a certain life guard’s lookout post consisting of an iron circular framework tower attached to an iron base situated on a wooden pole some twenty (20) feet above the surface of the beach. That the Lincoln Park District, that is the State of Illinois, by its agents or servants' in that regard, knew or by the use of ordinary care should have known that divers arid numerous people would be present on the beach in the immediate proximity to this life guard’s lookout structure and would be using and enjoying the beach in a position directly under same, as was claimant, and it was their duty to use ordinary care and caution for the safety of the claimant and other individuals who were lawfully present in close proximity to the aforesaid structure, and to maintain said structure in a reasonably safe condition of repairs; that they were likewise under a duty not to inflict personal injury upon claimant and others by any wilful, wanton and malicious conduct, but that not withstanding its duties as aforesaid, the Lincoln Park District, that is the State of Illinois, by its agents or servants at the aforesaid time and place allowed the said structure to become defective; that this defective condition was known to the respondent or could have been ascertained by the exercise of ordinary care.

That as a. direct and proximate consequence of the negligence and wilful and wanton conduct of the Lincoln Park District, that is the State of Illinois, through its agents and servants, the said structure was caused to fall down upon the body of the plaintiff with great force and violence, throwing her to the ground causing the claimant to suffer severe injuries for which she seeks the above amount of money from the respondent as damages.

The Attorney General has filed a motion to dismiss for the reason that the claim is predicated upon an alleged liability of the respondent for the negligent and wrongful acts of its officers, agents or employees while engaged in a governmental function, and. therefore does not set forth a claim which the State as a sovereign commonwealth should discharge and pay.

It is a rule of very general application in this, and other States that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minier vs. State Board of Agriculture, 259 Ill. 549; Love vs. Glencoe Park District, 270 Ill. App. 117; Stein vs. West Chicago Park Comm., 247 Ill. App. 479; Hendrick vs. Urbana Park District, 265 Ill. App. 102; Gebhardt vs. Village of LaGrange Park, 354 Ill. 235; LePetre vs. Chicago Park District, 374 Ill. 184.

And this court has repeatedly held that in all cases where the State is in the exercise of a governmental function there is no liability on its part for the negligence of its servants and agents. Trombello vs. State, 8 C. C. R. 56; Price vs. State, 8 C. C. R. 85; Monaco vs. State, 9 C. C. R. 90; Johnston vs. State, 9 C. C. R. 381.

The fact that the negligence is gross or wanton, or that the injured person is an infant of tender years, does not change the rule. Stanley vs. State, C. C. R. 146; Garbutt vs. State, 10 C. C. R. 37.

This court, regardless of the merits of a claim for damages, for personal injuries or damages to property sustained as a result of such negligence or the seriousness of such injuries or the decree of negligence is without power to make an award where the claim is predicated on the negligent act of a servant or agent of the respondent, and no award can be made on the grounds of equity and good conscience. Braun vs. State, 6 C. C. R. 104; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 9 C. C. R. 241; Kelly vs. State, 9 C. C. R. 339.

The Court of Claims has jurisdiction to recommend an award only where the State would be liable in law or in equity in a court. Crabtree vs. State, 7 C. C. R. 207.

Under the laws applied by this court in the cases above cited the motion of the Attorney General must be sustained. Motion to dismiss allowed. Case dismissed.


text:
    (No. 3363
    Marjorie Wheeler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

      Rehearing denied November 10, 1942.

    Sears, 0 ’Brien & Steeit (Barnabas F. Sears and Ralph C. Putnam, Jr. of Counsel), for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

This action is brought under Section 3 of the Workmen’s Occupational Diseases Act (Illinois Revised Statutes, 1941, Chapter 48, Section 172.3) by Marjorie Wheeler, an employee of the respondent, for damages sustained as a result of contracting tuberculosis while working as. an attendant at the Elgin State Hospital, Elgin, Illinois. Claimant is a single woman, twenty-seven years of age, and was first employed by the respondent on April 18, 1934. Prior to that time she had lived at home on a farm, was a strong and healthy young woman, and had had no serious illness of any kind.

During the first nineteen months of her employment, claimant worked at Burr Cottage, the women’s infirmary, in' which there were confined fifty to seventy-five tuberculosis patients. The majority of these were constantly confined to their beds. Although the tubercular ward was a large room, the windows could be opened only three or four inches from the bottom and top because of the danger of patients escaping, and there was no other means of ventilation. Claimant bathed and fed these women, gave them medications, made their beds, and took their temperatures. Being insane, they were uncooperative and not mentally able to control their coughing and expectoration. Frequently they would hemorrhage on the beds and floors, and even on the nurses. The air was foul. Claimant wore the usual uniform of an attendant, but was not provided with a special gown nor with a mask or any kind of covering for the mouth and nose. She conscientiously followed the only precautionary instruction given her, not to remain with the -patients any longer than necessary, and on her own initiative frequently washed her hands. She worked eight hours a day, six days a week, but for long periods, because of lack of attendants, worked a seven-day week with no time off.

From Burr Cottage, claimant was transferred to General Belief, which consisted of working in women’s wards and cottages throughout the institution while steady employees were off duty. During that period, nearly a year, she occasionally worked at Burr Cottage. She was then assigned to the General Hospital, caring for sick employees, surgical patients, patients needing • special care and treatment, and patients being observed and examined for tuberculosis. Two of these latter patients were nurses who had worked with claimant while she was in Burr Cottage and had contracted tuberculosis. Here, too, she frequently worked more than forty-eight hours per. week. On October 1, 1937, she was transferred to the Deceiving Ward in the Diagnostic Building where she remained until October 19th.

While claimant was working at the General Hospital, she began feeling tired and 'experienced shortness of breath. Although prior to that time she had been an active swimmer, tennis player, and dancer, she was unable to continue these activities, and spent her free time sleeping. She gradually lost weight. In April, 1937, because of this condition, she had an x-ray picture taken of her lungs, but it was negative. Her fatigue increased, and in September, 1937, she expectorated blood and began to cough. On October 16th or 17th, a second x-ray was taken which was positive for tuberculosis. She was then placed in the General Hospital whefe she remained until November 10th when she was removed to the Kane County Springbrook Sanitarium. All necessary hospital, medical, and nursing services were furnished by the respondent while claimant was in the General Hospital.

At the Springbrook Sanitarium, where claimant remained until August 1, 1938, she received pneumo-thorax treatments for tuberculosis. Board, room, and medical services were furnished without charge by Kane County, excepting certain special medications for which claimant paid $45.00. After August 1st, she was examined and x-rayed every three months until she returned to work at the Elgin State Hospital on March 1, 1939. She is now fully recovered and working continuously. She can take only limited physical exercise, however, and if she swims, or dances, or climbs stairs, she becomes very short of breath. She is troubled somewhat with pleurisy, and still consults her physician for check-ups and x-rays every six months.

Dr. Kenneth G-. Bulley, superintendent and medical director of Springbrook Sanitarium, a specialist in diseases of the chest, including tuberculosis, and consultant at the Elgin State -Hospital, testified on behalf of the claimant. He stated that at the time she was employed at Burr Cottage, it was used for the isolation of tuberculosis patients; that conditions there ‘ ‘ so far as infection is concerned with tuberculosis, are such that there is a much vaster likelihood of infection being incurred in the wards of these tuberculosis patients than almost any other place ’ ’; that the likelihood of a breakdown of an individual in the environment of Burr Cottage as it then existed, and the probabilities of infection were greater by 30 to 100 times than the risk of a breakdown or infection under ordinary working conditions throughout the State at large; that the conditions of ventilation present in Burr Cottage were a definite contributing factor. He also testified that the attendants at Burr Cottage were not supplied with masks although it was then customary in the care of tuberculosis patients to supply nurses with such protection.

Dr. Bulley testified that, in all probability, claimant’s disease was contracted as the result of her taking care of tuberculosis patients at the Elgin State Hospital; that the risk of infection reached its peak in an institution where there is insanity among tuberculosis patients. In his opinion, claimant received a massive and heavy infection of bacilli while working in wards with tubercular patients, and in due course of time, possibly aggravated by subsequent reinfection from other cases, the disease followed its natural tendency to progress to a clinically visible and evident form of active disease. The fact that the x-ray taken in April, 1937, showed no tuberculosis did not mean that the infection had not then occurred, because even after infection occurs there may be a period of two months before any visible lung findings can be determined on the x-ray.

Dr. Bulley stated that it is necessary for claimant to-take every precaution to prevent a recurrence of the disease; that there may be a relapse during succeeding years after an arrested infection such as hers. He was unable to state with reasonable medical certainty what her future condition would be, but thought the likelihood was that she would remain well if she took care of herself. He stated, however, her chances of breakdown with active tuberculosis are several times greater than those of the general public, because of her previous infection.

Claimant contends that the State of Illinois may properly be made respondent, in the Court of Claims, in an action for damages for injury to health, resulting from a disease contracted by a state employee in the course of his employment, and proximately caused by the State’s, negligence, under the terms and provisions of the Workmen’s Occupational Diseases Act. The State never having elected to pay compensation pursuant to Section 4 of the Act, claimant bases her claim upon Section 3, which gives an employee a right of action for damages against an employer who has not elected to provide and pay compensation, and which provides in part as follows:

Where an employee in this State sustains injury to health or death by reason of a disease contracted or sustained in the course of the employment and proximately caused by the negligence of the employer, unless such employer shall have elected to provide and pay compensation as provided in Section 4 of this Act, a right of action shall accrue to the employee whose health has been so injured for any damages sustained thereby; provided that violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act enacted by the Fifty-ninth General Assembly at the third special session, or .violation by the employer of any statute of this State, intended for .the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section;

Section 5 of the Act construes the term “employer” to include the State, and the term “employee” to include “every person in the service of the State, . . . under appointment or contract of hire, express or implied, oral or written. ...” The State of Illinois is thus expressly included as employer, and persons employed by it, as employees, for the purposes of the Act, including the provisions' of Section 3.

The State being within the terms of the Act, it is contended that this court has jurisdiction of claims made by State employées and arising under this negligence section. There are two jurisdictional provisions in the Act. Section 15 provides that the Industrial Commission shall have jurisdiction “over the operation and administration of the compensation provisions of this Act.” Causes of action arising under Section 3 are left to courts of general jurisdiction, being rights of action for damages and not compensation. Section 18 provides that all questions arising under the Act, -if not settled' by an agreement between the parties, shall, “except, as otherwise provided,” be determined by the Industrial Commission. It may be contended that by this provision, jurisdiction of claims against the State under the Workmen’s Occupational Diseases Act is in the Industrial Commission. If such contention were correct, the decisions of the Commission against the State, unlike all other decisions of the Commission would be unenforcable, and Sections 19(f) and 19(g) of the Act, providing for writs of certiorari from the decision of the arbitrator or the Industrial Commission, would be unconstitutional where the State is respondent (Article 4, Section 26, Constitution of 1870). Nothing in the Act indicates the Legislature intended it to be constitutional in one instance and unconstitutional in another; or intended the Industrial Commission to act in a merely advisory capacity; or intended to include the State within its provisions, yet leave claimants without a forum in which to present their claims. It appears, rather that the Legislature intended Section 18 of the Workmen’s Occupational Diseases Act to be restricted to questions of compensation and to be inapplicable to claims arising under Section 3. By Section 15 of the Act, it is “otherwise provided” that the jurisdiction of the Industrial Commission does not include causes of action arising under Section 3.

There is no specific provision, however, in the Workmen’s Occupational Diseases Act giving this court jurisdiction, but it is contended that such jurisdiction is had- under Section 6, Sub-section 4, of the Court of Claims Act, (Illinois Revised Statutes, 1941, Chapter 37, Section 432), which provides that this court shall have power:

To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay.

Standing alone, this section is insufficient to sustain the contention, (Crabtree vs. State, 7 C. C. R. 207); but considered in relation to the provisions of the Workmen’s Occupational Diseases Act the contention is correct. Section 5 of the latter act includes the State and its employees; Section 3 provides a cause of action for which a claimant would be entitled to redress against the State were it suable in courts of general jurisdiction; the Court of Claims Act provides for the hearing and determination of that cause of action. This court, therefore, has jurisdiction to hear and determine claims-against the State of Illinois arising under Section 3 of the Workmen’s Occupational Diseases Act.

The court having jurisdiction, the question then arises whether claimant is entitled to an award. Respondent contends that there is no liability for an occupational disease at common law; that the only guide in this case as to what shall constitute negligence is provided by Section 3 of the Workmen’s Occupational Diseases Act; and that claimant has failed to show respondent guilty of such statutory negligence. Section 3 of the Act provides that violation by an employer of any statute of this State, intended for the protection of the health of employees, shall constitute negligence of the employer within the meaning of that section. . It is apparent from the record that claimant was frequently required to work more than 48 hours per week. This was a violation of “An Act Concerning the Hours of Employment of Females in Certain Occupations,” (Illinois Revised Statutes, 1941, Chapter 48, Section 5), which provides:

No female shall be employed ... in any public or private institution or offices thereof, incorporated or unincorporated in this State, more than eight hours during any one day or more than forty-eight hours in any one week ... 4

The violation of this statute by the respondent is clearly a violation of a statute intended for the protection of the health of employees, and constitutes negligence under Section 3.of the Workmen’s Occupational Diseases Act. (Grutzius vs. Armour & Co., 312 Ill. App. 366.)

It is contended, however, that the statute is not applicable here because general legislative enactments do not apply to the State, its properties or activities unless such an intent is clearly expressed; that the rights of a sovereign are never impaired by a general legislative enactment unless such an intent is expressly declared. (People vs. Oregon Savings Bank, 357 Ill. 545.) There it was contended that the Illinois Banking Act of 1919, being a revision of the law relating to banks and banking and a restatement of the law on that subject, and evincing a legislative intent to substitute its provisions for an earlier law on the same subject, showed also a legislative intent to waive the common law prerogative of the State to priority in the payment of its claims, in that the Act failed to provide affirmatively for such preference. The court held, however, no such legislative intent appeared in the Act and that in the absence of a statutory provision clearly manifesting such an intent, the sovereign prerogative must be upheld. Here, however, by Section 5 of the Workmen’s Occupational Diseases Act, the Legislature has expressly included the State as an employer; by Section 3 it has expressly provided for a cause of action for an injury occasioned by negligence of such an employer; and by the same section it has expressly provided that violation by such an employer of any statute of this State intended for the protection of the health of employees shall constitute negligence. The Workmen’s Occupational Diseases Act contains the express legislative intent lacking in the Oregon Savings Bank case. That the statutes of this State, to which reference is made in Section 3 of the Workmen’s Occupational Diseases Act, may be general legislative enactments not otherwise applicable, is immaterial because of the express legislative intent shown by the Workmen’s Occupational Diseases Act.

Tuberculosis being the disease which caused the injury to claimant in this case, consideration must be given to the effect, if any, of Section 6 of the Act. That section provides in part as follows:

In this Act the term “occupational disease” means a disease arising out of and in the course of the employment, Ordinary diseases of life to which the general public is exposed outside of employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this Section . . .

Tuberculosis is a disease referred to in this section as one of the ordinary diseases of life, and therefore not compensable except as an incident of an occupational disease. (Stewart Warner Corporation vs. Industrial Commission, 376 Ill. 141; Visoni vs. Industrial Commission, 379 Ill. 608.) Neither of these cases, however, arose under Section 3 of the Act. Both were compensation cases in which the employer had made his election to pay compensation rather than to respond in damages under the provisions of Section 3. The question involved was one of compensation, and not recovery of damages.

Section 3 of the Act refers only to a disease contracted or sustained in the course of the employment; it makes no reference to an “occupational disease,” or to a disease “arising oui of” the employment. Section 6, on the other hand, defines an “occupational disease,” and refers to a disease “arising out of” the employment, one which does not come from a hazard to which workmen would have been equally exposed outside of the employment. It clearly provides that ordinary diseases of life shall not be compensable, but it does not provide, even by implication, that no recovery may-be had for injuries to health caused by ordinary diseases of life under the provisions of Section 3.’ The meaning of the term “compensable” in Section 6 is clear.

Throughout the Act, the Legislature has distinguished between causes of action under Section 3, and claims for compensation after an election by the employer under Section 4. Different remedies are provided, and recovery under Section 3 is not limited to specific amounts, except that damages in case, of death shall not exceed $10,000.00, whereas claims for compensation are limited to the amounts provided in Sections 7 and 8. Actions arising under Section 3 of the Act must be commenced within 3 years after the last day of the last exposure, and in case of death, within one year after the death and within 5 years after the last day of the last exposure; proceedings for compensation under Section 24 can be maintained only if claim for compensation has been made within 6 months after the occurrence of the disablement, and recovery can be had only if application for compensation is filed within one year after the date of the disablement, or within one year after the date of the last payment of compensation. Various other sections of the Act consistently distinguished between claims for compensation and actions for damages under Section 3. All the provisions of the Workmen’s Occupational Diseases Act should be construed as a whole and read together to determine the legislative intent. (People vs. Ryan, 371 Ill. 597.) Section 6, and the Stewart-Warner and Visoni cases construing that Section, are not applicable to causes of action arising under Section 3 of the Act.

The claimant here has met all of the requirements of that Section and the record amply sustains the allegations of her complaint. She seeks damages in the total sum of $5,000.00. She was confined to her bed for a period of approximately nine months. She had previously earned $63.00 per month and maintenance of the value of $30.00 per month. For a period of 7 months after her discharge from the sanitarium she was unable to work and spent $30.00 per month for her own support. Her future health is uncertain, and her present physical condition is not that of a normal young woman of the same age. She will always be confronted with the danger that her tuberculosis, now arrested in its development, may be reactivated. The court is of the opinion that claimant is entitled to damages under Section 3 of the Workmen’s Occupational Diseases Act in the amount of $1,500.00. An award is therefore entered accordingly.


author: Eckert, J. Pee Ctjbiam:

text:
    (No. 3629
    John J. Kickels, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

      Supplemental opinion filed September 9, 1942.

    Shapiro & Lauridsen, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

The complaint in this case alleges that prior to August 28, 1939, claimant, John J. Kickels, on many different occasions visited his father and mother who resided at the Manteno State Hospital, a public institution owned and operated by the State of Illinois, his father being the head farmer at that institution; that while visiting his parents, claimant • drank water supplied and furnished for drinking purposes by the Manteno State Hospital; that the water was contaminated and impure and contained many disease germs and typhoid bacilli; that as a result of drinking this water, claimant became ill with typhoid fever on August 28, 1939, was unable to work for a long period of time, and incurred doctor, hospital, and nursing bills in the amount of $450.00; that as a result of the illness, claimant suffered a permanent impairment of his health. In addition to the claim for medical services and supplies, claimant seeks damages in the amount of $5,000.00. The respondent has filed a motion to dismiss.

The claimant was not an employee of the State, so that he does not come within the provisions of the Workmen’s Compensation Act. The complaint contains no allegation of any contractual relationship between claimant and the respondent, contains no allegation of any applicable statutory or constitutional provision, and contains no allegation of any legal or equitable duty or obligation. It contains no allegation of any breach of duty, and it is insufficient to state a cause of action in tort.

Furthermore, the State, in the maintenance of the Manteno State Hospital is engaged in a governmental function, and when so engaged, it is not liable for the negligence of its officers, servants, • or agents. The doctrine of respondeat superior does not apply. Hardware Mutual Casualty Company vs. State of Illinois, 11 C. C. R. 300.

Awards can be made by this court only in those cases where claimants would be entitled to redress against the State either at law or in equity, if the State were suable. Unless claimant can bring himself within the provisions of a law giving him the right to an award, he can not invoke the principles of equity and good conscience. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.

Bespondent’s motion to dismiss is therefore sustained, and the claimant given thirty days in which to amend his complaint; in the event he declines or fails so to amend, this order, dismissing the claim shall become final.

Pee Ctjbiam:

The prior order of this court dismissing this claim became final on June 12, 1942. On July 11, 1942, claimant filed herein his motion for leave to amend his original complaint by adding the following paragraph after'paragraph 1 of said original complaint:

la. That it then and there became the duty of the State of Illinois to furnish to claimant drinking water free from contamination of any kind, and that respondent, in breach of said duty and obligation, failed to furnish such drinking water free from contamination of any kind.

The motion not having been filed in apt time must be denied. Furthermore, the proposed amendment is an allegation of negligence. As we have already stated, the State in the maintenance of the Manteno State Hospital is engaged in a governmental function, and when so engaged, it is not liable for the negligence of its officers, servants, or agents. The doctrine of respondeat superior does not apply. Hardware Mutual Casualty Company vs. State of Illinois, 11 C. C. R. 300.

Claimant, however, cites in support of his motion Permanent Construction Company vs. Industrial Commission, (Lorraine M. Brown, et al.) and Permanent Construction Company vs. Industrial Commission, (Edward A. St. Peter), Docket Nos. 26329-30 — Agenda 41 — March, 1942, recently decided by the Supreme Court of Illinois. The only question involved in those eases was whether or not typhoid fever, contracted by certain employees of the Permanent Construction Company, doing construction work at the Manteno State Hospital, arose out of the employment within the meaning of the Workmen’s Compensation Act. There is nothing in the record in this case to indicate that the claimant is within the provisions of that Act.

Claimant’s motion for leave to amend is therefore denied.


author: Eckert,' J.

text:
    (No. 3633
    Helen Turner, Administrator of the Estate of Roy Turner, Deceased, Darrell C. McCleary and Mary Stack, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 22, 1942.

    A. J. B. Showalter, Albert Tuxhorn and Charles E. Keller, (O. L. McCaskill, of counsel) for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert,' J.

About seven-thirty o’clock in the evening of October 5, 1940, on State Route 39 between Mahomet and Champaign, Illinois, a collision occurred between a car driven by Roy Turner, deceased, and a car driven by Darrell C. McCleary. A six-inch depression in the concrete pavement, which had existed for more than three weeks prior to the accident, and of which the respondent had notice, caused the Turner car to swerve to the right and then to the left across the black line in the center of the highway. It crashed into the oncoming McCleary car, in which the claimant, Mary Stack, was a guest. There was no sign, no barricade, no light to warn motorists of this defect in the pavement.

As a result of the accident, Roy Turner, a young man twenty-eight years of age, in excellent health, regularly employed and earning $60.00 per week was killed. He was supporting a wife and a five year old daughter. The wife, Helen Turner, as administrator of his estate, seeks an award in the amount of $10,000.00.

Darrell C. McCleary was cut and bruised about the head, face, and neck, and suffered a fracture of the right lower jaw, which penetrated the ear canal wall, and set up a temporary infection. At the time of the accident he was earning $120.00 per month, but was unable to return to his employment for three and one-half months. He has expended $235.00 for medical services, $118.70 for hospital services, and has sustained a total loss of his automobile. He suffered, however, no permanent injury. He seeks an award of $3,000.00.

Mary Stack, a young woman thirty years of age, in perfect health before the accident, and employed at a salary of $8.00 per week, was permanently injured and disfigured. She received a serious skull fracture and a permanent, painful injury to her eye. Her face is also permanently disfigured. She has paid $324.00 for medical services, $225.21 for hospital services, and $120.00 for nursing services. She is required to undergo a further operation at a cost of approximately $250.00, and faces the possibility of being financially dependent upon others for the rest of her life. She seeks an ward of $10,000.00.

Claimants allege that the negligence of the respondent, in failing to erect proper warning signs, or in failing to repair the depression, was the proximate cause of the accident. There was no contributory negligence on the part of any of the claimants, or on the part of the deceased, Boy Turner. Bespondent moved to dismiss the complaint on the ground that the State, in the exercise of a governmental function, is not liable for the negligence of its officers, agents, or employees; that this court has jurisdiction to make an award only in those cases where the State would be liable at law or in equity in a court of general jurisdiction were it suable.. The court having indicated its desire to consider the motion with the testimony, the case proceeded to hearing. At the close of claimant’s testimony, respondent renewed its motion to dismiss, and the case is now before the court on that motion.

The motion of the respondent rests upon the decision of this court in Crabtree vs. State, 7 C. C. R. 207, in which it was held that Section (4) of paragraph (6) of the Court of Claims Act defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same; that unless a claimant can bring himself within the provisions of a law giving him a right to an award, he can not invoke the principles of equity and good conscience to secure such an award. Claimants contend that this decision, which has been uniformly followed since 1933, is contrary to the intent of the Legislature as expressed in the Court of Claims Act, is contrary to sound policy, and is not binding upon, and should not be followed by the present members of the court.

The Constitution of the State of Illinois, adopted in 1870, (Article 4, Section 26), provides that the State shall never be made defendant in courts of law or equity. It makes no provision for payment of claims against the State, and the Legislature itself considered such claims until 1877, when a Commission of Claims was established for that purpose, succeeded in 1903 by the Court of Claims. Since that time it has been frequently contended that the Legislature, in creating the court, intended to authorize payment of all claims thought to be just and equitable without regard to principles of law followed by courts of general jurisdiction; that the State, having no legal liability under the Constitution, claims made against it should be determined only by generally just and moral principles.

' In its earlier decisions, however, the court made awards only to claimants having such legal or equitable claims against the State as would have been recognized in courts of general jurisdiction were the State in fact suable. The court repudiated the contention that it was created to make awards regardless of the law otherwise applicable in courts of general jurisdiction. It held that the Legislature, in creating the court, intended that claims made against the State should be heard and determined as such claims would be heard and determined if it were possible for claimants to proceed in the general courts; that the Legislature, recognizing that the State was not, in the strict use of the term, liable in any case, nevertheless desired the court to determine the State’s accountability as if the Constitutional prohibition did not exist. The court early adopted the use of the term “liability” in reference to the State with this Legislative intent in mind, and denied contentions that" it was created to make awards regardless of such legal liability. Schmidt vs. State, 1 C. C. R. 76; Henke vs. State, 2 C. C. R. 11; Jorgenson vs. State, 2 C. C. R. 134; Morrisey vs. State, 2 C. C. R. 254; Looney vs. State, 3 C. C. R. 18; Gillett vs. State, 3 C. C. R. 95. The court recognized the fact that the Legislature itself could make awards without regard to a legal or equitable cause of action, but held that it did not intend the court to do likewise. Frequently, in the earlier cases, claims were denied without prejudice to claimants to seek an award directly from the Legislature. Looney vs. State, supra; Gillett vs. State, supra.

The decisions remained uniform until 1920, when a claim was allowed on the basis of equity and justice without regard to a legal or equitable cause of action. Good vs. State, 4 C. C. R 90. Thereafter many awards were made on general principles of equity and good conscience; others were denied. It is difficult to determine what guided the court in separating those cases which came within the principles from those which did not. When this inconsistency became apparent to the court, it endeavored to define justice and equity. Perry vs. State, 6 C. C. R. 81. This, however, proved unsatisfactory, and in 1932, in Lindsey vs. State, 7 C. C. R. 103, the court denied an award on the grounds of equity and good conscience because no gross carelessness or wanton negligence was shown on the part of the respondent. Shortly thereafter, in Pachesa, et al. vs. State, 7 C. C. R. 123, an award was made on the grounds of equity and good conscience, gross negligence being shown on the part of the respondent and no contributory negligence appearing on the part of the claimant. From its attempts to limit the broad field of equity and good conscience in the Perry case, the court reached the limitations in the Pachesa case. These were followed in Miller vs. State, 7 C. C. R. 129; Cavender vs. State, 7 C. C. R. 199; Sprague Dairy Company vs. State, 7 C. C. R. 227; Connote, et al. vs. State, 7 C. C. R. 232.

In the decision in the Crabtree case, the court returned to its earlier holdings. Since that decision, it has consistently held, that regardless of the power of the Legislature, to pay claims on its own initiative, this court can exercise only such authority and power as has been delegated to it by the Act creating it, and that by the Act, awards are limited to cases in which the claimant would be entitled to redress against the State either at law or in equity if the State were suable. In tort cases, it followed the common law and held that the doctrine of respondeat superior had no application to the State in the exercise of its governmental functions. Kelly vs. State, 9 C. C. R. 339.

The claimants in this case, recognizing the numerous opinions and authorities which support the motion of the respondent, and admitting that they reflect a pattern followed by this court for many years, contend that they are opinions of outgoing members of this court which were expressly a repudiation of the opinions of their predecessors. Claimants contend that if precedent was not binding upon the prior members of this court, it is not binding upon the present members. They contend that, although the decisions of the court so far as practicable should be uniform, the rights of litigants here are not dependent upon uniformity as in courts of law and equity, because litigants in this court have in fact no rights to assert, but are merely suppliants of such dispensation as the Legislature may properly make. They conclude that the doctrine of stare decisis has no application to the Court of Claims.

It is' true that the doctrine of stare decisis should not be blindly followed. It is highly desirable that courts remain flexible, but it has always been considered of greatest importance that, there be a consistent body of precedent in the law. The law must not remain static, but neither must determinations of the law vary from day to day or from year to year. When this court followed the loose doctrine of equity and good conscience rather than precedent, awards to_ all intents and purposes were based upon the eloquence of counsel, upon the influence of claimants, or upon the sympathies of the court. This was highly undesirable from the point of view of the State, of claimants, of counsel, and of the court.

All the age-old arguments as to the value of precedent are as applicable to the Court of Claims as to courts of general jurisdiction, and the fact that a claimant against the State of Illinois can not, under the Constitution, make the State defendant in a court of law or equity, does not lessen the need for precedent: The Legislature, harrassed with claims of all sorts in increasing number and complexity, established a tribunal to hear and determine claims against the State, not in a haphazard fashion, but according to established legal and equitable principles. The fact that the original Commission of Claims was composed of a Judge of the Supreme Court and two Circuit Judges of the State, is indicative of the' Legislature’s desire to have such claims heard and determined by the same law applicable to them in courts of general jurisdiction were it not for the Constitutional prohibition. The Legislature indicated like intent when it abolished the Commission of Claims in 1903 and established the Court of Claims. Lack of precedent, lack of judicial standards, and lack of legal and equitable principles in the consideration and determination of claims made against the State were evils which the Legislature endeavored to abolish. It is to the benefit of all concerned that this court follow sound precedents in its decisions, which in turn may be guides for prospective claimants and their counsel, and which may merit the confidence of the Legislature itself. The doctrine of stare decisis should be followed by this court to the same extent and for the same reasons it is followed by courts of general jurisdiction throughout the English-speaking world.

Considerable emphasis is placed by the claimants upon the fact that the outgoing members of the court were all appointees of- the late Governor Horner; that the Crabtree case was one of their first decisions; and that bills passed by the Legislature, making awa'rds on claims not first presented to the Court of Claims were vetoed by the Governor. The contention is made, that whether the doctrine of the Crabtree case originated with the Governor or with his appointees, by executive order it became a fixed doctrine of the administration, and as such explains all the subsequent decisions. Such an explanation is not borne out by the facts.

Claimants concede that the question is one of legislative intent. It appears, however, that the members of the Legislature, cognizant of the decisions of the court, have recognized the limitations of its jurisdiction. In 1935, House Bill No. 576 passed both Houses of the Illinois Legislature; it provided that the Court of Claims should have the power:

“To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex-contractu and ex-delicto, which the State, as a sovereign commonwealth, should discharge and pay. To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex-contractu and ex-delicto, in respect of which the claimant would be entitled to redress against the State, if the State were suable. Where any person has suffered damage as a result of the performance by the State of any of its governmental functions, the doctrine of respondeat superior shall not apply; provided, however, that the court shall have the power to allow claims in cases now pending, or hereafter brought in said court to recover damages from the State for the death or injury of any person, or for the injury to or destruction of property, caused by the wilful and wanton act or conduct, or the negligence of an employee of the State while acting in the course of his employment, where there is no contributory negligence upon the part of such injured claimant.”

The bill was vetoed by the Governor because its provisions were “directly contradictory and impossible of interpretation, ’ ’ a criticism conceded to be just.

On March 15, 1937, House Bill No. 405 was introduced by the majority leader of the House. This was an Act to amend Section- (6) of “An Act to Create the Court of Claims, and to Prescribe its Powers and Duties,” and sought to add to paragraph (4) of Section (6) of the Act the following:

“In cases now pending or hereafter brought in said court wherein claims against the State for damages on account of death or permanent injury of persons other than employees of the State are made, the court shall have power to allow such claims when the death or permanent injury is caused by wilful and wanton negligence of an employee of the State while acting in the course of his employment, and when the person killed or permanently injured is guilty of no contributory negligence.”

This bill was ordered to the Committee on Judiciary, and was reported out of the committee with recommendation that it do pass. It was passed on April 14th; on June 5th, Governor Horner filed his veto message. The Legislature was then still in session, but there was no attempt to override the veto. Since that time, the Legislature has met at its regular sessions and has held several special sessions; no efforts have been made to indicate that the opinion of the court in the Crabtree case and those subsequent thereto are a “misinterpretation,” or a “complete misunderstanding” of the doctrine of “equity and good conscience” mandate in the Court of Claims Act, or a “repudiation and misinterpretation of said Act” as claimants allege.

In Governor Horner’s veto of House Bill No. 405, he stated:

“If this bill were to become law, it would only be the first step in extending the responsibility of the State for the acts of its employees. Next, it would be made liable in case of simple negligence. Later, it is conceivable that the fact that a State employee was involved in the accident might be made prima facie evidence of negligence on his part . . . For the several reasons I have stated, I am convinced that House Bill No. 405 is against sound public policy, and I therefore veto and withhold my approval from it.”

Prior to the introduction, passage, and veto of this bill, House Bill No. 908, making an appropriation to the estate of Adolph Pelli, was introduced by the Honorable Louie Lewis on April 13, 1935, and ordered to the Appropriation Committee. It was reported ont of the committee on June 6th with recommendation that it do pass. The bill was passed by the House, on June 27, 1935, and on June 29th it passed the Senate and was sent to the Governor. It was vetoed on July 10, 1935. In his veto message, the Governor said:

"The court refers to its own records and to the decisions of other courts to sustain itself in denial of this claim. (Lillian Pelli, Admrx. vs. State of Illinois, 8 C. C. R. 524).
“It discusses the theory of ‘equity and good conscience’ and says that ‘the facts in this case would appeal to the good conscience of any court, but public policy has long established, and the court is committed to the rule that the State can not be held to respond in damages arising out of the negligent acts of its employees or for injuries suffered by patients in its various penal and charitable institutions.’
“The facts in this case do appeal to our sympathy, but as the Governor of this State, I realize what great danger lies in the establishment of a precedent that will open the State Treasury to claims for damages for the ‘negligent acts of State’s employees or for injuries suffered by inmates of its penal and charitable institutions.’ To depart now from the long established policy of the State by approving this claim I should be setting a precedent the consequences of which might be disastrous to our State.”

It is to be noted that the Court of Claims had refused to give an award in the Pelli case although it was there alleged that a deceased inmate of a State institution had died from the effects of an attack by other patients. An autopsy had disclosed many fractured ribs and other bones of the deceased, and three attendants were discharged for abuse of the patient. Two physicians had been reprimanded and penalized for lack of diligence. In referring to this opinion, the Governor said:

“The Court of Claims has heard the evidence in this case, and has denied the claim in an opinion, the soundness of which can not be questioned. The court deals with the claim on legal grounds. It calls attention to the long established policy of this State in such matters and adds that the ‘State can not be properly asked to respond in damages for injuries sustained by any inmate of such institutions, whether due to the acts of other inmates or of attendants or employees therein.’ ”

Both House Bill No. 405 and House Bill No. 908 were heard in committee, and the Governor’s veto messages were available for discussion by members of the Legislature. It may reasonably be inferred that the Legislature disagreed with neither the arguments of policy made by the Governor, nor with the construction which the court placed upon the Act creating it. The fact that the Legislature subsequently took no affirmative action is certainly some indication' that the decisions of the court have not been contrary to its intent.

Furthermore, the Legislature, from time to time when it desired to do so, -has extended the jurisdiction of the court giving it jurisdiction of claims of State employees under the Workmen’s Compensation Act, of claims of officers and enlisted men under the Military-Naval Code, giving it jurisdiction of claims of State employees under the Workmen’s Occupational Diseases Act, and making provisions for refunds of various license fees erroneously paid. If the court’s jurisdiction were unlimited, such legislation would have been unnecessary. The Legislature apparently has not regarded the court merely as a court of conscience, but rather as a court which it established to determine legal and equitable causes of action against the State. If the Legislature has been burdened, as claimants allege, because the opinions of the court have restricted its usefulness to the Legislature and thrown the burden upon the Legislature itself to determine if there is “equity and good conscience” in the multitude of cases which the court has dismissed, the Legislature has failed to complain. Apparently it has not found, as claimants contend, that the opinions of this court have compelled a resort to partisan wire-pulling and political influence as a substitute for thorough investigation, in an orderly and impartial manner.

Claimants also contend that it is immaterial whether the Legislature acknowledges a liability or not, because the Legislature can not give consent to be sued; that liability is a private law concept; that the cases which respondent cites are a confused and fallacious mixing of private and public law concepts; and that to say the State, in the exercise of a governmental function, is not liable, is a mixture of legal concepts, because if the State can not be liable at all, it can not be liable whatever function it performs. Claimants contend that a distinction between governmental and private functions is made by the courts only as to defendants who are suable, but never as to defendants who are non-suable.

For generations, however, it has been an established rule of law that the doctrine of respondeat superior does not apply to a sovereign. If there were no Constitutional prohibition, and the State could be made defendant in courts of general jurisdiction, the doctrine of respondeat superior would not be there applied to the State. Whether this be socially desirable or not, is a legislative and not a judicial question. There is nothing in the Court of Claims Act from which this court can even infer that the Legislature intended it to disregard this long established principle. No matter what may have been the language of the decisions or the terminology used, it is clearly evident that both the Legislature and the court have recognized that the State is liable to no one, but that it is highly desirable for the State to respond in damages in those cases in which it would be liable were it not for the Constitutional prohibition. Nothing in the Court of Claims Act indicates that the Legislature considered it desirable for the State to respond to any greater extent. Citizens generally are presumed to know the law; certainly the same presumption must be applied to the members of the Legislature, and to an even greater degree. It must be presumed that the Legislature knew that the doctrine of respondeat superior, in courts of general jurisdiction, was not applicable to a sovereign. Courts have consistently held that sovereign immunities can be waived only by express legislative action. People vs. Oregon Savings Bank, 357 Ill. 545.

Knowing the long history of the protection and immunity of a sovereign, if the Legislature intended such immunity should be waived when considering claims against the State, it had only to provide that the doctrine of respondeat superior apply to the State in claims heard and determined in the Court of Claims. The Legislature made is possible by the Court of Claims Act for claimants against the State to obtain an award in those cases in which claimants might obtain judgment against the State were it suable in courts of general jurisdiction, in the absence of such a statute. The Legislature has not, however, by any statute, abrogated the sovereign prerogative of the State in the consideration of claims by the Court of Claims, nor made applicable to it the doctrine of respondeat superior.

Claimants also contend that the Act creating the Court of Claims itself creates whatever responsibility the State, by whatever terminology, has undertaken; that the Act creating the Court of Claims likens the State’s honorable obligation to the obligation it imposes upon its citizens in the courts, and for that reason adopts court terminology; that the State does not impose one standard of justice for its citizens and a different standard for itself, but imposes a respondeat superior obligation on its citizens' and assumes such obligation for itself, restricting the State only to claims which the State should pay in “equity and good conscience.”

' The question whether the State should have a less or greater liability than individuals, however, is entirely a matter of Legislative policy. Whether there should be one standard of conduct for the citizen and another for the State is a question of public policy and of legislative intent. This court originally held that it could make awards only in those cases in which the claimants would be entitled to redress either at law or in equity if. the State were suable in courts of general jurisdiction. Subsequently, it arbitrarily made awards without regard to legal or equitable causes of action, but after wandering in an obscure, bottomless, nether world, it returned to a sound interpretation of the law creating it. Despite the learned and persuasive arguments of counsel, the court is still of the opinion that the Legislature, in creating the Court of Claims, intended that it should make awards only in those cases in which the claimant would be entitled to redress against the State either at law or in equity if the State were- suable.

The Legislature has so far determined that the greatest good to the greatest number of citizens of this State is best served by limiting the jurisdiction of this court to claims founded upon a legal or equitable cause of action against the State, and by retaining in the consideration of such causes of action in this court its sovereign immunity from responsibility for the torts of its officers, agents or employees. The. motion of the respondent is therefore granted, and the case dismissed.


text:
    (No. 3717
    Letha Bennett, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Reed F. Cutler, for claimants. ,
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record in this case consists of the complaint, stipulation of facts and waiver of the right to file a statement, brief and argument by the respective parties hereto.

The complaint states that George McClellan Bennett was employed by the respondent as a Refund Investigator in the Motor Fuel Tax Division, Department of Finance, and had been so employed since June 1, 1941, and on the 30th day of December 1941, at about 4:00 o ’clock P. M., he was injured by reason of an accident sustained while working under the specific instructions of the director of said department. That the location of the accident in which he was injured was about a mile and a half south of Fairview on State Route No. 97, Fulton County, Illinois, and that he was taken to the Graham Hospital in Canton where he died on January 2,1942 as a result of the injuries sustained. That at the time of the accident, which caused his death, the said George McClellan Bennett was returning from Media, Illinois, where he had made an investigation for the respondent and while enroute to Canton, Illinois, the automobile which he was driving skidded and collided with another automobile on said highway.

That the employee’s salary at the date of the injury was at the rate of $175.00 per month, plus necessary traveling and living expenses while on duty.

That he received the following injuries: a skull fracture, and crushing injuries to the chest, which according to the verdict of the coroner’s jury caused his death.

That medical, surgical and hospital treatment expenses have been incurred because of such injuries for which the respondent has not assumed responsibility, viz:. Graham Hospital Association $43.38; Coleman Clinic $22.00; and Nursing Services $35.00.

That no compensation payments were paid by the respondent and that the deceased had received no salary or wages since the injury.

That claimants claim compensation as follows: (a) $100.48 for medical care and attendance; (b) $4,895.00 as compensation for death of employee.

That notice of the accident was served upon the Department of Finance of the State of Illinois on December 31, 1941. That the deceased was fifty-one years of age at the time of the injury and left surviving him one child, namely Alice Bennett, aged twelve years and Letha Bennett, his widow, aged forty-eight years, the claimants herein.

The facts in this case have been stipulated and are in accordance with the facts as set out in the claimants’ complaint.

Upon consideration of all the facts in the record we are of the opinion as follows:

1. That at the time of the accident in question on December 30, 1941, claimants ’ intestate and the respondent were both operating under and bound by the provisions of the Workmen’s Compensation Act.

2. That on said date claimants’ intestate sustained an accidental injury which arose out of and in the course of his employment which resulted in his death.

3. That notice of the accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of Section (24) of said Act.

4. That claimants’ intestate’s annual earnings during the year next preceding the injury were $2,100.00, and that his average weekly wages were $40.38, making his compensation rate $20.19.

5. That claimants’ intestate at the time of his death was fifty-one years of age, was married, and had one child under the age of sixteen years.

6. That claimants’ intestate incurred hospital, nursing and medical services in the sum of $100.38 as follows: Graham Hospital Association $43.38; Pauline Maher, Nursing Services $14.00; Mary I. Wilcoxon, Nursing Services $21,00; Coleman Clinic for Medical Services $22.00, and that no part of said necessary expenses have been paid by the respondent.

An award is therefore hereby made in favor of claimant, Letha Dennett, as the surviving- widow of George McClellan Be'nnett, deceased, and Alice Bennett, daughter of said deceased for the sum of $4,895.00 payable at the rate of $20.19 per week from the second day of January 1942.

Of said sum, $899.90 has accrued to the 10th day of November 1942, and is payable at the present time in a lump sum. The balance of $3,995.10 is payable in 197 weekly payments of $20.19 each, and one final payment of $17.67.

In addition to the foregoing a further award is hereby made to claimant for the use of the following creditors: Graham Hospital Association, $43.38; Pauline Maher, $14.00; Mary I. Wilcoxon, $21.00; and Coleman Clinic, $22.00 for services rendered to said injured employee, payable at once in a lump sum to the respective creditors, making a total award in the sum of $4,995.38, payable as above indicated.

. 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 June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable fromythe appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3744
    Ben Blum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Warner Wall, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This record consists of the complaint, bill of particulars ■ in support thereof, stipulation and report of the Director of Agriculture. The claimant was employed by the Department of Agriculture, in the Division of Foods and Dairies, as an inspector on the 20th day of August 1933, and continued in such position until the 14th day of April, 1941, at a salary of Two Thousand Three Hundred Forty Dollars ($2,340.00) per annum, plus expenses. Claimant was discharged from his employment on the 15th day of April, 1941.

Claimant seeks an award in the sum of $91.00 to reimburse him for services rendered to the respondent under his contract of employment for the first fourteen days of the month of April, 1941.

It is stipulated by and between the parties hereto, that the report of Howard Leonard, Director of Agriculture, dated September 14th, 1942, shall constitute the record in the case, which is as follows:

September 14, 1942.
Honorable George F. Barrett,
Attorney General,
Supreme Court Building,
Springfield, Illinois.
Dear Sir:
I have looked over the above entitled claim by Ben-Blum and the facts set up are correct.
The reason it is necessary for him to present his case to the Court of Claims is that the error was not discovered until the unexpended balance of the 61st biennium had been returned to the General Revenue fund.
Yours very truly,
Howard Leonard,
Director.
HL:AG
Enclosure.

This court has repeatedly held that where it clearly appears that claimant rendered services to the State at the request of its duly authorized officers, which were accepted by it, and for which an appropriation existed out of which payment could be made therefor, an award may be made for compensation for such services, in an amount not in excess of that agreed upon, where such appropriation lapsed before payment was made for same, on claim filed within a reasonable time.

Riefler vs. State, 11 C. C. R. 381.

From a consideration of the entire record the court finds that claimant Ben Blum was duly employed by the respondent; that the services for which payment is requested, were in fact rendered by claimant to the State of Illinois; that an appropriation out of which such expenses might be paid existed, and that a balance remained therein sufficient out of which such payment could have been made. The court further finds that payment for said services has not been made and that claimant is entitled to payment therefor.

An award is hereby made in favor of claimant, Ben Blum, for the sum of Ninety-one Dollars ($91.00).


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    (No. 3700
    The Board of Education of the City of Chicago, a Body Politic and Corporate, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Richard S. Folsom, for claimant.
    George F. Barrett, Attorney General; Robert V. 0strom, Assistant Attorney General, for respondent.
   Eckert, J.

Pursuant to an act of the General Assembly entitled, “An Act to enable School Directors, Boards of Education and Boards of School Inspectors to establish and maintain classes and schools for children, deaf, blind, and having defective vision, and providing for the payment from the State Treasury of the excess cost of maintaining and operating such classes and schools over the cost of maintaining and operating elementary schools for normal children, and to repeal a certain Act therein named,” (Section 675, Chapter 122, Illinois Eevised Statutes), claimant established and maintained a class for blind pupils and those having defective vision in the Francis Parker High School in the City of Chicago, from February 3, 1941, to the end" of school term, June 27, 1941. Claim is made under this statute for the excess cost of maintaining this special class in the amount of $897.50.

The Sixty-first General Assembly of the State of Illinois made an appropriation for the payment of such excess costs, and the Department of Public Welfare of the State of Illinois allocated the sum of One Thousand Dollars to the Francis Parker High School. Claimant filed its claim with the Department on January 5, 1942, but -payment was refused on the ground that time for filing claims expired on September 30, 1941. The entire appropriation had been expended or contracted for prior to June 30, 1941.

Section 6 of the Act provides that each board of education, school directors and board of school inspectors, shall keep an accurate, detailed and separate account of all moneys paid out by it for the maintenance of such classes and schools and for the instruction and care of the pupils attending them, and shall report the same to the Department of Public Welfare for approval, on vouchers prescribed by the department, on or before the third Monday in August in each year, together with the excess of cost for each pupil for each school year, ending in June, over the last ascertained average cost thereof, for the instruction of normal children in the elementary public schools of its school district for a like period of time of attendance. Section 7 of the Act makes the aggregate excess cost óf the maintenance of classes for the deaf and blind, “as determined, computed, and reported by the said school officials as provided in Section 6 of this Act,” a charge against the State of Illinois, and provides that “such excess cost shall be paid annually to such board of education, school directors, or board of school inspectors, as the case may be, on the warrant of the Auditor of Public Accounts out of any money in the treasury appropriated for such purposes on presentation of proper vouchers approved by the Department of Public Welfare.” Section 9 of the Act authorizes the Auditor of Public Accounts to draw warrants on the State Treasurer on or before the first Monday in September of each year for the respective sums of excess cost theretofore reported to him, as provided in Section 7, upon order of the Department of Public Welfare.

Claimant failed to comply with Section 6 of the Act. Instead of filing its report on or before the third Monday in August, 1941, it filed its report on January 5, 1942. The Department of Public Welfare and the Auditor of Public accounts were therefore unable to comply with Section 9 of the Act. Furthermore, the entire appropriation had been expended or contracted for prior to that time.

Under Section 19 of Article IV of the Constitution, the General Assembly is prohibited from authorizing the payment of any claim, or part thereof, created against the State under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts are null and void, with the exception that the General Assembly may make appropriations for expenditures incurred in repelling invasion or suppressing insurrection. Every claim or contract is void if not within the amount of appropriations already made, unless there is express authority of law for the creation of the debt or claim or the making of the contract.

“In Section 19 (of Article 4 of the Constitution) claims under any agreement or contract made by express authority of law are excepted, and if there is some particular and specific thing which an officer, hoard or agency of the State is required to do, the performance of the duty is expressly authorized by law. That authority is express which confers power to do a particular, identical thing set forth and declared exactly, plainly and directly, with well defined limits, and the only exception under which a contract exceeding the amount appropriated for the purpose may he valid is where it is so expressly authorized by law. An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied or not directly stated or given.” Fergus vs. Brady, 277 Ill. 272.

Although the statute under consideration in this case expressly authorizes payment by the State of the excess cost of educating deaf and blind pupils, it expressly authorizes payment only after a report has been filed with the Department of Public Welfare on or before the third Monday of August, and it authorizes drawing of warrants by the Auditor of Public. Accounts only before the first Monday of September, upon order of the Department of Public Welfare. Disregarding the limitation of, the Act which authorizes payment only “out of any money in the treasury appropriated for such purposes,” there is no express authority of law for the payment of this claim. Instead, it is based upon a violation of the provisions of the statute which otherwise might authorize its payment.

The express authority given by the Act under consideration, is to pay only after claimant has complied with the provisions of the Act itself; it is not an express authority to pay when claimant has violated those provisions. The claim does not fall within the exception under which an obligation incurred in excess of the amount appropriated for the purpose may be valid.

The claim is therefore denied.


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    (No. 3660
    Board of Education of the South Fork Community High School of Kincaid, Christian County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Claimant, pro se.
    - George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, The Board of Education of the South Fork Community High School of Kincaid, Christian County, Illinois, seeks an award in the sum of $99.31, for a balance alleged to be due from the State of Illinois for the school year 1940-1941, under the provisions of “An Act to enable school directors and boards of education to establish and maintain classes and schools for crippled children and providing for payment from State treasury of the excess cost of maintaining and operating such classes and schools over the cost of maintaining and operating schools for normal children,” approved June 19, 1923, as amended.

It is clear from the record that claimant was entitled to reimbursement in the amount of $100.00 under the provisions of this act for the services of one Evelyn Charles who assisted a crippled pupil throughout the school year. Without this assistance the crippled pupil would have been unable to attend school. Through a clerical error, claim was made only for $.69. Before the error could be corrected the appropriation for such reimbursement had lapsed. When the charge occurred, there remained a sufficient unexpended balance in the appropriation from which payment could have been made.

Award is therefore entered in favor of the claimant in the sum of $99.31.


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    (No. 3610
    Edwin T. Breen, as Trustee of the Worth Refining Co., Inc., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Granville Beardsley, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

The Worth Refining Co. Inc., operates a refinery at Worth, Illinois, and there converts crude oil into gasoline, kerosene, distillate and other fuel products. From August 1, 1938, to August 31, 1940, the corporation sold 2,021,351 taxable gallons of gasoline, and collected motor fuel tax on Such sales in the sum of $60,640.53, which was remitted" to the Department of Finance of the State of Illinois. The corporation incurred collection costs on such sales in the amount of $3,122.90.

Under Section 6 of an Act entitled, “An Act in relation to a tax upon the privilege of operating motor vehicles upon the public highways, based upon the consumption of motor fuel therein, and making certain appropriations in connection therewith,” (approved March 25, 1929) - the corporation had a right to deduct from the motor fuel tax paid to the Department the actual cost of making the collection and payment, not to exceed two" per cent of the amount collected. This the corporation failed to do, and claim is therefore made in the amount of $1,212.83, or two per cent of the tax collected in the amount of $60,640.53. The Worth Refining Co. Inc. being in the process of re-organization in the District Court of the United States, at Chicago, the claim is made on behalf of the corporation by Edwin T. Breen, the duly appointed, qualified, and acting trustee in the re-organization proceedings.

From the record it appears that in computing the amount claimed to be due for costs of collection, claimant failed to make allowance in several instances for taxable motor fuel used by claimant itself, either for taxable or non-taxable purposes, and which was neither sold nor distributed. After making this correction, the respondent concedes that there is due claimant for costs of collection during the period in question the sum of $1,211.28.

The Motor Fuel Tax is a privilege tax imposed upon the privilege of operating motor vehicles upon the public highways, and is based on the amount of fuel consumed in each motor vehicle. It is collected in the first instance by the distributor, and by the distributor paid over to the" State. The money collected by the distributor, and paid to the State,- is not the proceeds of a tax assessed against the distributor, but of a tax ultimately paid by the consumer. Silver Fleet Motor Express, Inc. vs. State of Illinois, 10 C. C. R. 396. The collection of the tax is made through the distributor who acts as the agent of the State in that behalf. People vs. Kopman, 358 Ill. 479.

The payment made by the claimant corporation was payment by a distributor as an agent of the respondent, fulfilling certain duties imposed upon the agent by law. It is essentially different from cases of voluntary payment of an illegal or excessive tax. Under the Act, the corporation was entitled to its actual costs in malting collection and payment of the tax, not to exceed two per cent of the amount so collected.

An award is therefore made in favor of the claimant in the sum of $1,211.28.


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    (No. 3273
    R. F. Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1942.

    Robert A. Barnes, State’s Attorney, Marshall County, Illinois, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

W. S. Osborne, as sheriff of Marshall County, Illinois, on March 4, 1937, conveyed and delivered to the Warden of the Illinois State Penitentiary, at Joliet, Illinois, two prisoners who had been convicted and sentenced at the October term of the Circuit Court of Marshall County. The prisoners were conveyed together by automobile by way of Illinois State Route No. 17 from Lacón to Dwight, Illinois, and by way of Illinois State Route No. 66 from Dwight, Illinois to the Illinois State Penitentiary at Joliet, a distance of ninety-three miles. For this service, the sheriff was entitled to be paid twenty-five cents per mile, in going only, or a total sum of $23.25. Because the sheriff did not have the statements of the presiding judge and the State’s attorney of the county for delivery to the warden, the sheriff’s receipt for the prisoners was withheld. The statements were sent to the warden by the State’s attorney on October 15, 1937. Claim was presented by the sheriff to the Department of Public Welfare by sending original vouchers to the Department on November 1, 1937; payment was refused because the appropriation from which these fees were payable had lapsed on September 30, 1937. The claimant, R. F. Brown, is successor to W. S. Osborne, and is the present duly elected, qualified and acting sheriff of Marshall County.

Under the law, claimant was clearly entitled to payment for the services rendered, submitted vouchers therefor within a reasonable time, and has not received payment. The non-payment is due to no fault of the claimant. When the charge was incurred there remained a sufficient unexpended balance in the appropriation from which payment could have been made. Claimant is therefore entitled to an award. Elgin, Joliet and Easter Railway Company vs. State, 10 C. C. R. 243; Litchfield and Madison Railway Company vs. State, 11 C. C. R. 455.

An award is therefore entered in favor of the claimant in the sum of $23.25.