text:
    (No. 4436
    Edward Burgess, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    James O. Monroe, Jr., Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Edward Burgess, seeks to recover from respondent under the Workmen’s Compensation Act for an injury to his left hand, as the result of an accident that arose out of and in the course of his employment as a common laborer in the Department of Public Works and Buildings, Division of Highways.

Claimant was 60 years of age, and had no children under 16 years of age dependent upon him for support at the time of the injury. He was first employed by the Division of Highways on May 10,1950 at a wage rate of one dollar an hour. He continued in this same classification, and at the same wage rate, from the date of his employment until the date of his injury on June 2,1950.

Other employees working in the same capacity as claimant ordinarily work less than 200 days a year. Therefore, under Section 10 of the Workmen’s Compensation Act, claimant is presumed to have earned $1,560.00 in the year preceding the accident.

On June 2, 1950, Mr. Burgess was one of a group assigned to widen an expansion joint in the concrete pavement surface of U. S. Route No. 50, one quarter mile east of East St. Louis. At approximately 1:30 P.M.,

Mr. Burgess was swinging á sledge and striking a steel point held against the concrete pavement, thus chiseling away a small portion of the pavement slab. As the sledge struck the point, a small metallic particle broke off of either the point or the sledge, flew through the air, and became imbedded in the back of Mr. Burgess’ left hand.

The Division took Mr. Burgess to Dr. W. W. Brown, Collinsville, who gave first attention to Mr. Burgess. Dr. Brown submitted the following report on June 8, 1950:

“Nature of Injury — Laceration of dorsal vein, left hand with foreign body dorsal surface at base of second metacarpal. Treatment — Skin clips — local dressings — penicillin—tetanus anti-toxin. X-Rays — Negative for fracture — foreign body dorsal surface left hand. Remarks — No attempt made to remove foreign body. Estimated date of discharge — 10 days. Estimated date patient able to work — No disability. What permanent disability do you expect? — Indefinite.”

In the forepart of July, 1950, Dr. Brown went on vacation, and transferred Mr. Burgess to the care of Dr. J. L. Verneuil, Collinsville. On July 6, 1950, Dr. Verneuil removed the steel particle from the hand of Mr. Burgess, and submitted the following report and note on August 18, 1950:

“I treated Mr. Burgess at the request of Dr. Brown while Dr. Brown was on vacation. He had a foreign body (steel) in the dorsum of his left hand. I removed the steel on July 6, 1950.
I treated Mr. Burgess until July 15, 1950, and, at the time he was released from my care, I estimated that he would be totally disabled until July 22, 1950.
Nature of Injury — Puncture wound dorsum left hand. Treatment — Removed piece of steel from dorsum of left hand on July 6, 1950. X-Rays — None. Remarks— Dr. W. W. Brown left on a vacation, and turned this case over to me. Estimated date of discharge — July 22,1950. (On July 22,1 sent this patient back to.Dr. Brown for final check-up and care.) Estimated ability to return to work — July 22, 1950. What permanent disability do you expect?- — None.”

On August 21, 1950, Dr. Brown submitted his final report, which is as follows:

“Nature of Injury — Puncture wound left hand (dorsum). Treatment — Local dressings. July 6, 1950, Dr. Verneuil removed piece of steel from dorsum left hand. X-Rays — June 2, 1950, Foreign body left hand. Remarks — Dr. Verneuil returned Mr. Burgess to my care on July 22, 1950. Date patient was discharged — August 19, 1950. Date able to work- — -July 22, 1950. Permanent disability — None. Temporary disability when discharged — Small area of fibrosis over site of injury.”

No jurisdictional question is raised. ■

The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, transcript of evidence, original supplemental Departmental Report with attached exhibits, copy of supplemental Departmental Report, order of Chief Justice granting claimant an extension of time in which to file abstract of evidence, and abstract of evidence.

Claimant’s weekly compensation rate would be the maximum of $15.00. Since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making his compensation rate $22.50 per week.

The Division’s original report showed that Mr. Burgess was totally disabled from July 6 through July 22, 1950, and that he was paid compensation from July 13 to 22, inclusive, in the amount of $32.15. The Division failed to note that Mr. Burgess had worked July 13 and 14 at the time his compensation payments were made.

. From a review of the evidence, and the observations of Commissioner Frank Summers, we are of the opinion that claimant is entitled to an award for a 20% permanent loss of use of his left hand.

Claimant is entitled to an award under Section 8, Paragraph (e) (12) of the Workmen’s Compensation Act for 34 weeks at the compensation rate of $22.50 per week, or the sum of $765.00.

An award is, therefore, made to claimant, Edward Burgess, in the sum of $765.00, all of which has accrued, and is payable forthwith.

T. W. Elliott was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $42.00 were incurred for the services, which are fair, reasonable and customary. An award is, therefore, entered in favor of T. W. Elliott in the amount of $42.00, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4475
    Exchange National Bank of Chicago, as trustee under trust no. 1004, and not individually, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Fisher, Hassen and Fisher, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Exchange National Bank of Chicago, as Trustee under Trust No. 1004, and not individually, hereinafter referred to as Exchange, filed its complaint, alleging that respondent owes it rent totalling $3,900.00 for the months of July, August, September and October, 1951, for a building located at 4814-18 West Belmont Avenue, Chicago, Illinois.

On June 13, 1946, as Lessor, Pioneer Trust and Savings Bank, as Trustee under Trust No. 9299, hereinafter referred to as Pioneer, entered into a lease with respondent, acting through the Director of Labor, covering the above described premises. The lease commenced on July 1, 1946 and ended June 30, 1950, and called for a total rental of $46,800.00, payable in 48 equal monthly installments of $975.00.

On January 17, 1947, Exchange succeeded to the interests of Pioneer by virtue of the transfer of the premises and the lease to Exchange as Trustee under Trust No. 1004.

The habendum clause of the lease reads as follows;

“The lessee to have and to hold the said premises for the, term of forty-eight (48) months, beginning on the first day of July, 1946, and ending on the 30th day of June, 1950, unless the term hereby demised shall be sooner terminated as hereinafter provided.”

The lease also contained a termination clause, which reads as follows:

“It is further mutually stipulated and agreed between the lessor and the lessee that the lessee only may terminate this lease on the last day of any calendar month of the term hereof by giving ninety (90) days’ notice in writing to the other party of such intention to terminate the lease. Provided further that notice shall be computed from the date of mailing.”

The lease also contained a renewal clause, which reads as follows:

“(6) The lessor covenants with the lessee that at the expiration of said lease the lessor will renew the lease for a further period of two years, or any portion of the two year period, upon the same terms and conditions, provided said lessee shall give thirty (30) days’ notice in writing to said lessor of its intention to take said two (2) years’ renewal of said lease. Provided further that notice shall be computed from the date of mailing.”

On May 9, 1950, respondent notified Exchange in writing that it intended “to renew said lease for a term of two (2) years, beginning July 1, 1950, for the same consideration and on the same terms as provided in the aforesaid lease, under the provisions of the renewal clause thereof.”

On March 13, 1951, respondent notified Exchange in writing that it was terminating the lease on June 30, 1951.

Respondent did not occupy or use any portion of the premises in question during the months of July, August, September and October, 1951.

Respondent has filed a motion to dismiss predicated, inter alia, on the ground that it had full right to terminate the lease by giving the ninety days’ notice provided for in the termination clause quoted above.

The older cases in this State drew a sharp distinction between the renewal and extension of a lease. If the lease provided for an extension, no new lease was required, if it was elected to exercise a right of extension given in the lease. However, in the case of a renewal, it was definitely held that a covenant to renew was not a present demise, and if it was elected to renew, a new lease would be required. Hunter vs. Silvers, 15 Ill. 174; U. S. Brewing Co. vs. Wolf, 181 Ill. App. 509; Sutherland vs. Goodnow, 108 Ill. 528; Eichorn vs. Peterson, 16 Ill. App. 601; Fuchs vs. Peterson, 315 Ill. 370. The cases cited do not draw any distinctions between options or covenants to renew, or the privilege of renewing.

However, the Forcible Entry and Detainer Act of 1874, as amended, Ill. Rev. Stat., 1951, Chap. 57, Secs. 1-22, has rendered academic the refusal or failure of a lessor to execute a new lease, which the renewal clause requires, since the possession of a lessee in such situation is with right, and the lease is for all practical purposes continued for the additional period provided in the renewal clause. Eichorn vs. Peterson, 16 Ill. App. 601; Fuchs vs. Peterson, 315 Ill. 370. And, insofar as the State is concerned, the constitutional inhibition against making it a defendant in an action at law, or a suit in equity (Ill. Const., Art. IV, Sec. 26) is a complete bar to either a blameless or derelict lessor.

Furthermore, in case of renewal on the same terms and conditions as the original lease, the new lease should contain all of the original provisions except a renewal clause. Meyer vs. Surkin, 262 Ill. App. 83. This rule removes the sting of a possible perpetuity.

In the case before us, a new lease was never executed after respondent gave Exchange written notice of its intention to renew. In the final analysis, this omission, however, resulted in a renewal for not more than two years on the same terms and conditions as provided in the original lease, and continued in effect the termination clause quoted above. Fuchs vs. Peterson, 315 Ill. 370; Hindu Incense Mfg. Co. vs. MacKenzie, 403 Ill. 390.

Although the last cited case, in effect, puts extensions and renewals of leases in the same legal niche, it does categorically hold that an option to renew a lease “on the same terms and conditions”, when exercised, carried with it an option to purchase the premises during the new term, and the language used by Justice Thompson is certainly broad enough to support a holding by us that respondent’s election to renew the lease in question “on the same terms and conditions” operated to renew the entire contract, including the termination clause.

Therefore, respondent’s written notice of March 13, 1951, that it was terminating the lease on June 30, 1951, having been given more than ninety days prior to the termination date set forth therein, operated to end the lease on June 30, 1951, and respondent is not liable to Exchange for the rent claimed in the complaint.

The other grounds of respondent’s motion to dismiss have been shelved, not because of lack of importance, but rather because, if decided in favor of respondent, they would not be decisive of the ultimate issues in the case.

The motion of respondent to dismiss the complaint is allowed, and the complaint is dismissed.


author: Schuman, C. J.

text:
    (No. 4477
    B & F Hi-Line Construction Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Thomas and Davis, Attorneys for Claimant.

      Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The respondent has filed a motion to dismiss the claim herein, and for gróunds of said motion alleges:

1. That the Board of Trustees of Southern Illinois University is a corporate body, which may sue and be sued, and, therefore, the Court has no jurisdiction of claims against it.

2. That contracts are void unless entered into under an existing appropriation.

The claim is not predicated on a recovery of the contract price, but based on expenses incurred because of delay in payment, due to the fact that there was no appropriation made for the contract. The claim on its face shows the delay was due to the fact that no appropriation was made. There is no contention made that the claim is based on income producing improvements, where the board would have power to issue revenue bonds to pay for the same.

The Court is of the opinion that the Board of Trustees, being a corporate body with the right of being sued, that a court of general jurisdiction would be the place to bring such a suit, and for this reason this Court is without jurisdiction.

It is not necessary for the Court to consider the second point raised in the motion.

For the reasons heretofore assigned, the motion to dismiss is allowed, and the claim dismissed.


text:
    (No. 4479
    Howard L. Delaney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Anton B. Mutz, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The respondent has filed a motion to dismiss the claim filed herein on the ground that the complaint is insufficient in law, because it fails to allege respondent had actual or constructive notice of the defect alleged in the complaint.

In order to charge the State with negligence, it is necessary to allege that the State had actual or constructive notice of the defect, and that said defect was dangerous and unsafe for ordinary travel.

The complaint fails to charge such notice, and the motion to dismiss is sustained.


text:
    (No. 4482
    Harold T. Seigle and Jerome Roth, doing business as Elgin Lumber and Supply Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    Ben Rifken, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimants, Harold T. Seigle and Jerome Roth, are partners, and in 1946 and 1947 they conducted a lumber and building materials business in Elgin, Illinois, under the name of Elgin Lumber & Supply Co.

On October 9, 1946, respondent, acting through the Division of Purchases and Supplies of the Department of Finance, purchased certain lumber for use at the Dixon State Hospital, Dixon, Illinois. The lumber was delivered to the hospital on August 27, 1947.

Apparently claimants neglected to request payment of this account in the amount of $915.00 until February, 1951, and such account has never been paid by respondent.

A motion to dismiss has been filed by respondent on the ground that this Court is without jurisdiction to hear and determine the case, because the complaint herein, which was filed on November 30, 1951, was filed more than two years after claimants’ claim first accrued.

The applicable portions of Section 22 of the Court, of Claims Act, Ill. Rev. Stat., 1951, Chap. 37, Sec. 439.22, read as follows:

“Every claim cognizable by the court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the clerk of the court within two years after it first accrues,.....”

The complaint shows on its face that more than four years elapsed between the date claimants’ claim first accrued, and the date their complaint was filed. This Court is, therefore, without jurisdiction to hear and determine the case, since it has become forever barred by lapse of time. Ross vs. State, 16 C.C.R. 116.

The motion of respondent to dismiss is allowed, and the complaint is dismissed.


text:
    (No. 4484
    Oscar E. Hoff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

    James J. O’Toole, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The respondent has filed a motion to dismiss this case, alleging that the claim filed herein is barred by the two (2) year statute of limitations. The claim, on its face, shows that it was filed more than two years after it had accrued.

The motion of respondent to dismiss is sustained, and the claim is dismissed.


author: Delaney, J.

text:
    (No. 4335
    John Kroencke, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1952.

    Schmiedeskamp and Deege, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, John Kroencke, filed his complaint herein on September 18, 1950, wherein he alleges that he sustained damages to his personal property and to certain growing crops by reason of a flood, which occurred on July 20, 1949. He brings this action to recover the said damages, and contends that the flood resulted from the negligence of the State of Illinois in maintaining a highway.

At the time of the flood, claimant, John Kroencké, was a tenant farmer. The farm where Mr. Kroencke lived, and where the damages are alleged to have occurred, is located in the southern part of Adams County, Illinois. It is approximately three miles north of Hull, Illinois. State Route No. 57 adjoins the farm, and the house and buildings lie to the northeast, or up-stream side. A creek, known as Possum Hollow Creek, flows along the north side of the farm, and through a large culvert or bridge under the highway. A levee extends in an easterly direction from the highway to the bluffs to protect the property of John Kroencke.

Prior to the construction of Route No. 57, an old road, which was not a State road, crossed Possum Hollow Creek just to the northeast of the present culvert or bridge. A concrete slab was laid on the creek bottom to provide a ford on the old road. This slab had been lying there for years.

The pavement on the hard road was laid in 1947. The culvert, or bridge, had been installed several years before, but during the War the road was not paved. The culvert consists of four separate sections, each of which is a passage seven feet high and twelve feet wide.

On July 20, 1949, heavy rains fell in an area from Quincy south, approximately forty miles to Pleasant Hill. At the farm where John Kroencke resided, a flood occurred causing damage to claimant’s property. When the water subsided, it was discovered that the concrete slab, which had been lying on the bottom of Possum Hollow Creek, was leaning against the culvert, and partially blocking the two center sections. Steel re-enforcement rods protruded from the concrete slab helping to block the culvert with trees, logs, stumps, brush, sticks and other debris.

Claimant alleges the loss and damage of 400 bushels of corn; 4 tons of hay; 4 tons of straw; 600 bushels of oats; damage to tractor; damage to other farm machinery; damage to small tools; damage to garden; damage to 2 acres of growing corn, and damage to 2 electric motors.

The record consists of the following: Complaint, amended complaint, transcript of evidence, abstract of evidence, statement, brief and argument of claimant, motion of claimant for leave to amend complaint, order of Acting Chief Justice Lansden granting claimant’s motion for leave to amend complaint, amendments to complaint, statement, brief and argument of respondent, order granting claimant an extension of time in which to file reply brief, reply brief of claimant, and notice of intention to make oral argument.

The Court is of the opinion that a reasonably prudent person could have foreseen the concrete slab in question disintegrating and blocking the culvert during a flood, and that the negligent omission of the respondent was the proximate cause of the alleged damages. The law attaches to such omission of duty the charge of negligence.

An award is, therefore, entered in favor of claimant in the amount of Fifteen Hundred Dollars ($1,500.00).


text:
    (No. 4406
    Lola Greer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 8, 1952.

      Petition of Claimant for rehearing denied March 11, 1952.

    Charles D. Winters and D. L. Duty, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This complaint was filed February 26, 1951. The record consists of the complaint, Departmental Report, stipulation waiving briefs of both parties, transcript of evidence, claimant’s exhibits Nos. 1, 2 and 3, and Supplemental Departmental Report. No jurisdictional questions have been raised, and all have apparently been complied with.

■ The claimant, Lola Greer, 47 years of age, was on August 31, 1950 employed by respondent in the Department of Public Welfare at the Dixon State Hospital, Dixon) Illinois. On the above date, at about 3:30 P.M., an explosion of a hot water tank occurred in the dining room of the hospital. Hot water from the tank scalded claimant’s back and legs. The explosion also caused a large object to strike the claimant in the back on the right side.

The claimant lost nineteen days compensable time as a result of the injuries, for which she has been paid the sum of $83.32.

Claimant’s exhibits Nos. 1 and 2 show her to be suffering from arthritis, and from a hemorrhagic condition resulting from menopause. A report of Dr. Ben Fox, dated March 9, 1951, shows claimant’s condition is not due to injuries received in the course of her employment- on August 31, 1950.

The evidence fails to show claimant suffered from injuries resulting from the accident. The claimant, having failed to establish by the evidence that she is entitled to an award, her complaint must be dismissed.

Award denied.

Helen Cox was employed to take and transcribe the testimony before Commissioner Summers. Her charges amount to $48.00, and an award is entered in her favor for such sum, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


text:
    (No. 4425
    Arthur L. Jenkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, March 11, 1952.

    Schmiedeskamp and Jenkins, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Arthur L. Jenkins, claimant, filed his complaint herein on April 16, 1951, alleging that on December 19, 1949 he was employed by the Department of Revenue, Division of Petroleum and Oils. Claimant was travefing from his home to the laboratory in Peoria, Illinois with samples of gasoline in an automobile owned by the respondent, State of Illinois. He passed a number of cars; and, as he pulled back into the proper lane of traffic, a defective steering gear caused the automobile to veer to the left and strike another car. Claimant was removed from the scene of the accident in an ambulance, and taken to the hospital.

Claimant was treated by Dr. James Merritt at respondent’s request. The report of Dr. Merritt, dated December 21, 1951, stated:

“The movements of the right shoulder were entirely normal. The right elbow showed limitation of extension some 10 degrees and limitation of flexion some 8 degrees. Pronation and supination of the right forearm were normal.
The movements of the right wrist were entirely normal.
The movements of the right thumb were entirely normal.
In viewing the dorsal aspect of the right hand, it is to be noted a small ab- ■ normal bony prominence over the head of the second metacarpal. This was the site of the previously markedly displaced comminuted fracture.
The movements of the right index finger at the metacarpal phalangeal joint reveals complete extension. Flexion of the metacarpal phalangeal joint of the right index finger is 120 degrees. Flexion of the proximal interphalangeal joint of the right index finger is 85 degrees. Extension of the proximal interphalangeal joint of the right index finger is limited 41 degrees.
Examination of the distal interphalangeal joint of the right index finger reveals complete extension is present, but it flexes only 25 degrees from the position of complete extension.
The metacarpal phalangeal joint shows complete extension and flexion 86 degrees from position of complete extension. Extension of the proximal interphalangeal joint is limited 20 degrees. Flexion of the proximal interphalangeal joint is entirely normal. Flexion of the distal interphalangeal joint of the ring finger is only 62 degrees. Extension of the distal phalangeal joint is entirely normal.
All the movements of the right little finger are entirely normal.
There is no sign of atrophy of the right arm, forearm and hand. Exception— There is now evidence of atrophy of the interrosseous muscles of the right hand.
It is my opinion that the atrophy of the interrosseous muscles of the right hand, which is present at this time, and, which was not in evidence at the time of my previous examination of him on October 30,1950, constitutes no further disability, and came about from not using the fingers, which he already could not use when I previously examined him.”

The record consists of the complaint, motion of respondent to dismiss, notice to call up the motion to dismiss, memoranda of claimant in opposition to the motion of respondent to dismiss, Departmental Report, transcript of evidence and Supplemental Departmental Report.

No jurisdictional question was raised. The claimant and respondent were operating under the Workmen’s Compensation Act, and the accident arose out of and in the course of his employment.

From the medical report of Dr. Merritt, and the examination of Commissioner Summers of this Court, we are of the opinion that the claimant has suffered a 40% permanent loss of use of his right hand.

On the date of the accident, claimant was 53 years of age, and did not have any children under 18 years of age. Claimant started to work for respondent in June of 1949, and received $286.50 per month, which indicates that he receives more than $1,560.00 per year. He was injured on December 19, 1949, and was released by his doctor and returned to work on April 19, 1950. Claimant received full pay during this time, a period of 17 1/7 weeks. Although Mr. Jenkins received $1,227.77 for the period he was unable to work, the Department of Revenue should have paid claimant his compensation rate of $22.50 per week, or the sum of $385.71, which means that claimant was overpaid the sum of $842.06, which must be deducted from his award.

Claimant is entitled to an award under Section 8, Paragraph (e) (12) of the Workmen’s Compensation Act for 68 weeks, or the sum of $1,530.00, from which must be deducted the sum of $842.06, or a total award of $687.94.

Claimant’s weekly compensation rate would be the maximum of $15.00. Since the accident occurred subsequent to July 1, 1949, this must be increased 50%, making the compensation $22.50 per week.

An award is, therefore, made to claimant, Arthur L. Jenkins, in the sum of $687.94, all of which has accrued, and is payable forthwith.

Helen Woolley was employed to take and transcribe the evidence at the hearing before Commissioner Summers, and has submitted a statement therefor in the amount of $40.75, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Helen Woolley, in the amount of $40.75, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


text:
    (No. 4465
    Mary Hoyt Baar, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1952.

    Kix Miller, Baar and Morris, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

On November 7, 1950, at about 12:30 P.M., claimant, Mary Hoyt Baar, got off the Chicago, North Shore and Milwaukee Railway Company train at its Lake Bluff Station, Illinois. She walked to the south end of the platform at said station, descended the steps of the platform to the ground, and walked a short distance to a three foot opening, or gate in a fence, which fence is parallel to IT. S. Highway No. 41, and about 8 feet 5 inches west of the west edge of the concrete slab of said highway. She passed through this opening in the fence or gateway, then turned to the left, and proceeded in a northeasterly direction. At the time the claimant was accompanied by Margaret P. McEvan, who preceded her through the opening, or gate in the fence, and was some distance, approximately 10 feet ahead of her, and slightly to the left. After claimant had walked approximately 4 to 6 feet beyond the gate, in a northeasterly direction towards said highway, and while turning her head slightly to the left to talk to Margaret P. McEvan, she stepped into a concave shaped hole about 12 inches in diameter and two or three inches deep, fell on her right knee, and received a deep cut about three inches long, which gaped open about three-quarters of an inch on her right knee.

Immediately after the incident in question, claimant received medical attention, and remained at home in bed for about a week after the accident. Claimant was unable to do her ordinary house work, but after the expiration of about three weeks, she was able to attend to her normal duties, and, outside of soreness on touch, the wound gave her no difficulty. The testimony shows that she has a scar on her right knee about 2 inches long as a result of the wound. It also shows that she had incurred bills in a total of about Forty-five Dollars ($45.00) for medical expenses. There was no testimony that a permanent disability of any kind resulted from her injuries.

The evidence without dispute shows that the day was clear, pavements dry, that claimant was familiar with the passageway in question, and had been across it frequently before.

It was the duty of the claimant to establish by a preponderance or greater weight of the evidence that the location of the hole, which she complained of, was on State property, and that the State was under a duty to maintain the area where the particular hole was located. The evidence is without dispute that the State maintained a highway near the location in question, and it was stipulated that the State’s right-of-way extended three feet beyond the edge of the concrete slab. There is no direct evidence in the record that the hole was in the right-of-way of the State highway.

There was a plat introduced in evidence by the respondent, which indicated that the hole in question was apparently not in the right-of-way proper. It would have been an easy matter for the claimant to have had the exact location measured without guessing as to the exact distance, so as to determine whether or not the hole was on State property. Another serious question that presents itself in this record is the liability of the State for a passageway across a shoulder on the highway where the State is only under a duty to maintain it in a reasonably safe condition for motor traffic.

The Court is of the opinion, after reading the record in this case, that the preponderance of the evidence does not show that the hole complained of was in the right-of-way of the State highway, nor is it shown that the State was under any duty to maintain any portion of its shoulder for a passageway as contended in this case. It was a bright, clear day. Claimant had been over the area on other occasions, was familiar with the passageway, and by the exercise of reasonable care and caution could have seen the hole in question, and the Court is of the opinion that there is nothing in the record to indicate any negligence on behalf of the State, or a duty on the State to maintain the area in question.

For the reasons assigned, the claim is denied.


text:
    (No. 4478
    Tide Water Associated Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 11, 1952.

    Tide Water Associated Oil Company, Claimant, pro se.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

During the period from May 9 to May 29, 1951, the Department of Public Works and Buildings of the State of Illinois, Division of Highways, purchased and received under Purchase Order No. F-57961 various amounts of gasoline and kerosene from the claimant, Tide Water Associated Oil Company. Three invoices were presented, which amounted to $44.80.

It is stipulated by and between the parties hereto that the Report of the Department of Public Works and Buildings, Division of Highways, filed on March 3, 1952, shall constitute the record in this case.

The report admits that the allegations of the complaint are correct; that gasoline and kerosene were purchased by the respondent; that the merchandise was received; that the gross value of the purchases is as represented by claimant; that the appropriations were in existence, and an unexpended balance remained in them at the time the items described herein were purchased for the payment of claimant’s invoices had they been presented for payment before the appropriation lapsed.

We find from this record that claimant has fur'nished supplies for the respondent, the purchase of which was properly and duly authorized. Claimant submitted its invoices to the respondent within a reasonable time, and has not received payment therefor; such non-payment is due to no fault on the part of the . claimant. When the charges were incurred, there remained a sufficient unexpended balance in the appropriation, from which payment could have been made. Claimant is, therefore, entitled to an award.

Johnson vs. State, 16 C.C.R. 96.

The Texas Co. vs. State, 16 C.C.R. 55.

Standard Oil Co. vs. State, 16 C.C.R. 85.

Northwest Ignition & Radiator Service vs. State, 16 C.C.R. 91.

Shell Oil Co. vs. State, 16 C.C.R. 91.

Wenthe Brothers Co. vs. State, 18 C.C.R. 32.

An award is, therefore, entered in favor of the claimant, Tide Water Associated Oil Company, in the sum of Forty-four Dollars and Eighty Cents ($44.80).


text:
    (No. 4264
    James Montgomery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

      Petition of Claimant for rehearing denied April 14, 1952.

    Luis Kutner, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant was indicted, tried and convicted for the crime of rape, and sentenced to the Illinois State Penitentiary on February 5, 1924. No appeal was taken from this conviction. A petition for a writ of habeas corpus was filed in the Circuit Court of Lake County, State of Illinois, and denied on August 21, 1948. A certiorari was sought in the Supreme Court of the United States to review the denial of the habeas corpus proceedings, and this was denied on October 11, 1948.

A petition for a writ of habeas corpus was. then filed in the United States District Court. A motion to dismiss this proceeding was filed by the Attorney General of Illinois, which was denied. A hearing was had, and evidence was introduced by claimant, but no evidence was introduced by the State. Judge Michael L. Igoe held that claimant’s conviction and sentence were void, being in violation of the Fourteenth Amendment to the United States’ Constitution, and discharged claimant on August 10, 1949.

The claimant files his claim in this Court seeking to recover the sum of $250,000.00 for unlawful indictment, conviction, sentence and incarceration at the hands of the State of Illinois. He bases his claim on the grounds that Secs. 2 and 9 of Article II of the Illinois Constitution were violated, and his right to a recovery under Secs. 19 and 20 of said Article II. He asserts his claim under Sec. 8 A of the Court of Claims law on the theory that the constitutional provisions above stated affords him a remedy, in that his claim would be founded upon said law.

The Court of Claims law was amended in 1945, and the pertinent provision in question was added at that time. Prior to the 1945 amendment, all of the decisions of this Court held that the State could not be held accountable for wrongful or negligent acts of its agents or servants. (Newman vs. State, 17 C.C.R. 187.) However, by the 1945 amendment, the Court was given jurisdiction in tort cases, and the previous rule as to non-liability in such cases was removed- by Sec. 8 C.

The claimant does not predicate his claim under Sec. 8 C of the Court of Claims Act, but under Sec. 8 A. The question before the Court to decide is: “Does this Court have jurisdiction to determine whether the conviction was unlawful, and to award damages if it finds the conviction unlawful?”

The first question is whether there is any law in this State upon which such a cause of action could be maintained, if the State were suable. There is no constitutional provision or statute authorizing such a suit. This Court has previously held that it could only recommend an award where the State would be liable in law or in equity in' a court of general jurisdiction, if it were suable. (Crabtree vs. State, 7 C.C.R. 207; Durrett vs. State, 12 C.C.R. 384.) While it is true that Article II, Sec. 19 of the Illinois Constitution, provides that every person ought to find a remedy in the law for all injuries and wrongs to his person, property or reputation, the same Constitution also provides under Article IV, Sec. 26, that the State can never be made a party defendant in any court of law. It, therefore, follows that for this Court to have jurisdiction, the Legislature, by express provision, should have created an act providing for such a remedy.

Judge Igoe, in his opinion, stated that his decision was based on and in accordance with the New Federal Judicial Code effective September 1, 1948. The opinion was predicated on the facts that the State’s Attorney suppressed evidence, introduced false testimony, and that claimant was denied due process.

The claim presented here is based on the same set of facts; namely, the wrongful acts of the State’s Attorney. The pertinent inquiry is: “Can the State of Illinois be liable for the wrongful acts of a State’s Attorney?” If a suit were presented in a court of record, and if the State were suable, on the theory that a violation of the Constitution was a “claim founded on a law of the State”, it would be necessary to determine whether or not a State’s Attorney was an agent of the State, and, if so, was the act one that would make the State liable.

It has been held by this Court that a State’s Attorney is not an agent of the State or a State officer, but a County officer. In Cram vs. State of Illinois, 11 C.C.R. 282, the Court, on page 285, held:

“Although the State’s Attorney represents the People of the State of Illinois in all criminal proceedings in his county, yet he is not considered a State Officer.”

In the case of Cook County vs. Healy, 222 Ill. 310, the Court, on page 316, in considering the status of the State’s Attorney of Cook County, said:

“The State’s Attorney is a county officer, and his status, as such, is fixed by the Constitution, which creates his office. He is elected for and within a county to perform his duties therein, and is not distinguished in any manner from the clerks of the courts, the sheriff, coroner, and other officers connected with the administration of justice within the county.”

The Healy case was quoted with approval in the case of The People vs. Newcomer, 284 Ill. 315, where the Court, on page 324, citing the Healy case, said:

“The State’s Attorney is a county officer elected for and within a county to perform his duties therein, and is by statute charged with certain duties.
The State’s Attorney being a county officer, the mere fact that money was advanced to him for expenses in a criminal case, even under a promise to return the same, does not give a right of action against the State. If any right of action exists, it is against the officer who received the money and promised to return the same.
The complaint does not state a cause of action against the State, and the motion of the respondent must therefore be sustained.”

In Ashton vs. County of Cook, 384 Ill. 287, the Court, on pages 296 and 297, held:

“Section 22 of Article VI of the Constitution creates the office of State’s Attorney and provides for his election. Section 32 of the same article refers to the residence, the performance of the duties of the State’s Attorney, and other officers, and the manner in which vacancies in any of such offices may be filled. It is provided that ‘All officers, (which includes State’s Attorneys) where not otherwise provided for in this Article, shall perform such duties and receive such compensation as is or may be provided by law.’ It will be observed that these constitutional provisions do not prescribe the specific duties of the State’s Attorney. It has been held that the State’s Attorney is an officer provided for by the Constitution, and that he is a county officer. (Cook County vs. Healy, 222 Ill. 310.) Section 5 of the State’s Attorneys Act (Ill. Rev. Stat., 1941, Chap. 14, Par. 5.) directs it shall be the duty of the State’s Attorney ‘to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in his county, in which the people of the State or county may be concerned,’ and second, ‘to prosecute all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, or to any school district or road district in his county * * * * which may be prosecuted in the name of the People of the State of Illinois'.”

This Court, therefore, concludes that the State’s Attorney in the instant case is not, and could not be an agent of the State.

In order for the claimant to sustain his claim, he must base it on the fact that the State violated a constitutional enactment. That the State cannot violate the Constitution has been decided by our Supreme Court. In the case of Owens vs. Green, 400 Ill. 380, the Court, on page 490, held:

“Where an action at law or suit in equity is brought against a State officer or the director of a department upon the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiffs under an unconstitutional act, or assumes authority which he does not have, the action is not against the State. The presumption obtains that the State, or a department of the State, will not, and does not, violate its Constitution and laws, but that the violation, if it occurs, is by a State officer or the head of a department of the State, and the officer or the head may be restrained by appropriate action instituted by a citizen. (Schwing vs. Miles, 367 Ill. 436; Noorman vs. Department of Public Works and Buildings, 366 Ill. 216.) We are of the opinion that the present action is one aganist the defendant State officers and not against the State of Illinois, and that, consequently, the State is not an indispensable party, as contended by defendants.”

It would lead to an absurdity for this Court to say that the State of Illinois could be held liable for a violation of its Constitution.

For this Court to hold the State liable for the unlawful acts of a State’s Attorney would create a situation making the State liable for malfeasance and unauthorized acts of State’s Attorneys throughout the entire State, and would result in endless difficulties, which would be subversive to the public interest.

The facts in this case show that the claimant was sentenced by a court of competent jurisdiction. For this Court to review evidence to overrule a decision of that court, without a statute authorizing it to do so, would be to assume jurisdiction never contemplated. This Court, without a statute authorizing it to award damages in such a case, cannot assume jurisdiction.

The claimant states that the Court should enter an award as an act of social justice. This Court has repudiated this doctrine in many cases, and has held that, in order for claimant to recover, he must come within the provision of some law making the State liable to him on his claim. (Kelly vs. State, 9 C.C.R. 339).

For the reasons above assigned, this Court is without jurisdiction to hear and determine this claim.


text:
    (No. 4409
    Margaret M. Weese, admx., et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1952.

    Hemphill and Kelsey, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Margaret M. Weese, as administratrix of the estate of Charles F. Weese, is the claimant in this case. She was appointed administratrix of the estate on July 19, 1950 by the County Court of Macoupin County, Illinois. It is alleged in the complaint that the said Charles F. Weese came to his death on March 11, 1950, as the direct and proximate result of the negligent and careless manner in which the respondent maintained one of its highways, to-wit, Illinois State Route No. 111.

The record consists of the original copy of complaint with attached Letters of Administration, copy of complaint, motion of respondent for an extension of thirty days in which to file pleadings, answer of respondent, reply of claimant to answer of respondent, transcript of evidence, abstract of evidence, and waiver of claimant of right to file statement, brief and argument.

The testimony of witnesses showed that at about 8:00 A.M. on the date of March 11, 1950 the claimant’s intestate, Charles F. Weese, was driving and operating ah automobile in a general northerly direction, upon, along and over Illinois State Highway No. 111. At a point approximately three miles south of the Village of Brighton, Jersey County, Illinois, his automobile was driven over a part of the highway, which it is claimed respondent had allowed to become and remain in a dangerous and hazardous condition. It is further claimed that the surface of the highway at this point had become uneven, and there was a large hole between 3 inches and 6 inches in depth, and about 36 inches across. At that same point on the highway the hole, when struck by the automobile in which Mr. Weese was riding, caused his automobile to be thrown into and upon the west lane of the said highway into the path of a truck, which was being driven in the opposite direction. This collision between the truck and Mr. Weese’s automobile resulted in Mr. Weese receiving fatal injuries.

Melvin Stone testified that the speed of Mr. Weese’s car, at the time of the accident, was under 45 miles per hour. The car of deceased traveled about 150 feet after hitting the hole, and before colliding with his truck. His truck struck the car of deceased where the door fastens on the windshield.

George Kruse testified that he drove over the spot where the accident occurred five days a week, and also about ten minutes before the accident occurred. He stated that there was a rough black top patch at that point, which was down about 3 inches.

James L. Benson testified that the truck and car stopped after the accident about 100 feet from the break in the pavement.

Wilson Shultz testified, when asked to describe the break in the pavement where the accident occurred, that “it was not too big a break, and it was noticeable”.

Marion L. Laubscher, in his testimony, stated that the condition of the highway at the place of the accident on March 10, 1950 was wavy, with no holes.

Alfred Watson, in his testimony, stated that he 1 passed over the break in the pavement on March 11, 1950 at a speed of 45 miles an hour to see how rough it was. He stated that his steering wheel did not jerk, nor turn the wheel.

Claimant, having failed to present sufficient proof of any negligence on the part of the respondent, the State of Illinois, as being the proximate cause of the collision between the truck and Mr. Weese’s automobile, and resulting fatal injuries to Mr. Weese, must be denied an award, and said cause is hereby dismissed.


text:
    (No. 4434
    Julia Anna Meyers, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1952.

    Harry L. Peters and William A. Redmond, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Julia Anna Meyers, widow of Harvey C. Meyers, seeks to recover under the Workmen’s Compensation Act for the death of. her husband, allegedly as a result of a coronary thrombosis suffered by decedent on February 7, 1951, while he was employed as Chief of Fiscal and Office Administration, Illinois State Employment Service, Division of Unemployment Compensation for the Department of Labor.

Decedent had been employed by the State of Illinois since 1933, and his earnings for the year preceding his death were $7,992.00. He had no children under 18 years of age at the time of his death, and the oldest child was 28 years of age. No jurisdictional questions are raised. At the time of his death he lived with his wife, and two children, namely, Dolores, aged 21, and Charles, aged 19.

The claim is predicated on the ground that decedent died of a coronary thrombosis caused by the great strain and pressure of his duties, and apparently based on the ground that the strain and stress covered a long period of time. Julia Anna Meyers, decedent’s widovf, testified that on the Friday and Monday immediately preceding decedent’s death he stayed at home on account of illness, which might have been a touch of the flu; that he worked on Tuesday, the day before his death, but came home tired that day; and, that he generally came home in a tired condition. She further testified that decedent was in good health, outside of the attack of flu, which had kept him home the Monday and Friday prior to his death. He had had a physical examination, and she knew of no previous heart condition.

On February 7; 1951, he reported for duty at the Unemployment Compensation Office at about 8:20 A.M. (He lived in Glen Ellyn, Illinois, and there is no direct testimony as to how he travelled from his home to the office on that day, but he usually and customarily took the train to the Northwestern Railroad Station, and walked from there to the Merchandise Mart.) Decedent was seen walking down the aisle and entering his office by B. Robert Bobisud, one of the department heads, who occupied the adjoining office, at about 8:20 A.M. A few minutes thereafter Neely W. Keith, an employee in the office, entered decedent’s office, took a seat at his desk, and talked with him for about twenty minutes. Then Mr. Keith had a telephone call, and went to answer it in his office. After talking on the phone about five minutes, he heard decedent call him. Mr. Keith cut short his telephone conversation, and re-entered decedent’s office. At that time, Mr. Bobisud was there, too, and decedent was still sitting at his desk. B. Robert Bobisud testified that decedent, as he was sitting at his desk, was perspiring on his forehead, and had pallor of skin and face. He asked decedent what was wrong, and decedent answered, “I got a pain across my chest.” He then took a handkerchief and wiped his forehead, and called a nurse. Mary Keenan, a registered nurse, entered decedent’s office about 8:45 A.M. She testified he was sitting at his desk, and had a pain in the cardiac region; that his pulse was about 70; that he had cold perspiration, and was pale; that she removed his tie and belt, and had a cot put in decedent’s office, so that he might lie down. Dr. Smith at this time examined decedent, took his blood pressure, and administered a hypodermic. Then Dr. W. F. Ferris, a general practitioner in the building, who had been called, arrived at decedent’s office, and attended him between 9:15 and 9:30 A.M.

Dr. W. F. Ferris testified decedent was lying there in his office in severe pain; that he was pale and breathing rapidly, pulse was weak and rapid; and, that decedent complained of severe pain in his left chest, and perspiration with cold clammy sweat. He was conscious until his death at 10:00 A.M. A pulmotor squad was called, and came to his assistance, but failed to revive him.

Dr. Ferris further testified that he had never seen decedent before, and attended him as an emergency physician; that he diagnosed the cause of death as coronary thrombosis, which he defined to be the result of a condition affecting the coronary arterial system, meaning the muscles of the heart, and a trauma, which occurs in the muscle wall of the coronary arteries, causing a blood clot. He further testified that that is where decedent had the coronary thrombosis, and his condition was his circulation to the arteries with the resulting symptoms of severe pain and pallor, and a clammy skin condition.

John F. McCarthy, an employee of the Division of Unemployment Compensation in charge of investigations regarding personnel and the unemployment compensation program, testified as to a certain investigation made by him in connection with said Department, which occurred about a year and a half before decedent’s death. Alfred C. Sorenson, property consultant, employed by the Unemployment Compensation Division of the Department of Labor, testified as to problems connected with locating leases, space locations for various offices, the control of property and equipment, and the operation and maintenance of equipment used in furnishing these offices. B. Robert Bobisud, Supervisor of Budget and Cost Accounting, Unemployment Compensation and Employment Service Division of the Department of Labor, testified as to the operations of that Department, and stated that the decedent did not appear to be working under any nervous tension, stress or strain. Neely N. Keith, accountant in the Fiscal and Office Administration Section of the Unemployment Compensation and Employment Service Division of the Department of Labor, testified as to the accounting problems of this Section, and also with reference to some correspondence had by decedent through his superior, Commissioner Samuel C. Bernstein, with the International Business Machines Corporation relative to changing the older equipment used in the office for newer and more modern equipment. At this time the payroll division was using I.B.M. machines. Milton Radice, present Chief of the Fiscal and Office Administration, Unemployment Compensation and Employment Service, Division of the Department of Labor, and successor to the position held by decedent at the time of his death, testified as to the duties of the office; i. e., that the hours are from 8:30 A.M. to 4:30 P.M.; his duties, and that of his predecessor, the decedent, were to provide for all office services and duplicating facilities; supervise the mail room, mimeograph service, et cetera; to be responsible for purchases, leasing space, State budgets, and the administration of funds of major State agencies, which amounted to approximately eight to eleven million dollars a year; to be responsible for general accounting, as well as the accounting for all expenditures and receipts of funds for administration purposes. There were between 125 and 150 people employed in the office over which decedent had supervision.

From the testimony of the above witnesses and Samuel C. Bernstein, Commissioner of Placement for the Unemployment Commission, it appears that decedent was a conscientious, energetic, diligent and efficient executive; that he approached his duties very seriously, was concerned with all details of the various departments or sections, and was in close touch with his subordinates concerning same; that he was a normal individual, but at times excitable and upset in the course of his duties during frustration and difficulties, and became excited on minor issues.

From an examination of the record it is shown that decedent was a highly efficient administrator, who became nervous and excited over various problems confronting him. This, the claimant contends, caused stress and strain, which brought about the heart attack.

The question for the Court to determine is whether decedent’s death was caused by an accidental injury arising out of and in the course of his employment. This brings about the additional question as to whether the work decedent was doing at the time of his attack, caused, or contributed to the cause of his collapse and death.

There is no evidence in the record of any unusual occurrence on the morning that decedent suffered the attack. On the contrary, he had just arrived at work, and was sitting in his office, apparently not doing any work when the incident occurred. There is no evidence of an “accidental injury” on the morning in question, which would have caused the attack. The mere fact that deceased was at his desk in his place of employment would not constitute an “accidental injury”.

In Marsh vs. Ind. Com., 386 Ill. 11, the Court, on page 14, quoted as follows:

“In Matthiessen & Hegeler Zinc Co. vs. Industrial Board, 284 Ill. 378, where a fireman in a smelting plant became sick and died from breathing fumes, it was held this constituted an accident entitling recovery under the Workmen’s Compensation Act. Accidental injury was defined as such as is ‘traceable to a definite time, place, and cause, and the injury occurs in the course of the employment, the injury is accidental within the meaning of the Act’.”

In Town of Cicero vs. Ind. Com., 404 Ill. 487, the Court held:

“We have often held that the award of the Commission must be based upon something more than surmise and conjecture, and it must be shown by competent evidence, not only that the deceased sustained an accidental injury resulting in death, but that such injury arose out of and in the course of the employment. ......It is a well-settled rule that where an employee, in the performance of his duties, and, as a result thereof, is suddenly disabled, an accidental injury is sustained even though the result would not have been obtained had the employee been in normal health. (Marsh vs. Ind. Com., 386 Ill. 11; Carson-Payson Co. vs. Ind. Com., 340 Ill. 632; Powers Storage Co. vs. Ind. Com., 340 Ill. 498; Jones Foundry and Machine Co. vs. Ind. Com., 303 Ill. 410; Baggot Co. vs. Ind. Com., 290 Ill. 530.)”

The cases of Town of Cicero vs. Ind. Com., supra, Fittro vs. Ind. Com., 377 Ill. 532, Marsh vs. Ind. Com., supra, involved cases of physical exertion while engaged in the performance of their duties.

It is apparent from a reading of these cases that decedent must sustain an accidental injury traceable to a definite time, place and cause. The record in this case is based on facts showing emotional strain, frustration and excitement over a long period of time.

Dr. W. T. Ferris testified that he was a general practitioner and not an expert; that in his opinion decedent came to his death as a result of a coronary thrombosis, which is associated with individuals of the executive type, and also dietary; that he could not give an opinion as to decedent because he was not acquainted with him; that he could not give a positive statement, but added that the work of a person, employed in an executive capacity, shouldering a series of responsibilities, and subjected to pressure in the way of frustration, could be a contributing cause; and, that he would have to know more about the decedent than he did in order to say that tension would be a contributing factor.

The Court concludes that there is no evidence in the record that the work the decedent was doing at the time of the attack caused, or contributed to the cause of his collapse and death. There is no evidence of an “accidental injury” traceable to a definite time, place and cause, but the evidence is based on a series of events prior to the heart attack sustained on February 7, 1951.

In the case of LeTourneau, Inc. vs. Ind. Com., 396 Ill. 435, the Court held at page 438:

“It is to be noted that in the instant case the medical testimony all introduced on behalf of the claimant was to the effect that there are several causes contributing to a detached retina. There is no testimony in the record that the work performed by the claimant caused the injury. The testifying physician stated only that strain could cause the detached retina, and we are left to infer that the strain testified to by the claimant was the cause of his injury. The case is similar in this respect to the situation in Sanitary District of Chicago vs. Ind. Corn., 343 Ill. 236. In that case the medical testimony was to the effect that there might or could be a direct causal connection between the accident and the condition described in a hypothetical question. Citing, with approval, Sears Roebuck and Co. vs. Ind. Corn., 334 Ill. 246, we said: ‘It is very clear from the testimony of all the doctors that in concluding that there was causative relation of the accidental injury to the death the witnesses were considering the mere possibilities.’ The same situation applies here. The medical testimony in his record leaves the cause of the injury to pure conjecture.”

The medical testimony in this case is based on possibilities, and leaves the cause of death to pure conjecture.

For the reasons assigned, the claim is denied.

William J. Cleary and Co. was employed to take and transcribe the evidence before Commissioner Anderson, and a charge of $155.40 was incurred for such services, which is reasonable and customary. An award for such amount is hereby entered in favor of William J. Cleary and Co., and is payable forthwith.


text:
    (No. 4445
    James E. Broadway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1952.

    Morris B. Chapman, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, James E. Broadway, was employed on January 23, 1951 as a common laborer by respondent in the Department of Public Works and Buildings, Division of Highways. On that day, Mr. Broadway was one of a group of men engaged in placing oil drums on a rack in the Division’s storage shed in Stallings, Madison County, Illinois. At approximately 8:30 A.M., Mr. Broadway was rolling a metal drum of kerosene up a board to place it on a service rack. While doing this, the board on which the drum was being rolled broke, causing the drum to fall to the ground. Mr. Broadway’s left middle and small fingers were caught between the end of the drum, which fell, and another drum on the rack. The palmar surface of the distal end of his left middle finger was cut and torn, and the distal end of the left small finger was severely bruised.

The Division took Mr. Broadway to St. Elizabeth’s Hospital, Granite City, where Dr. Irwin Wiesman was placed in charge of the case.

On January 24, 1951, Dr. Wiesman submitted the following report to the Division of Highways:

“Nature of Injury — Avulsion laceration of volar pad of distal end of left middle finger. Contusion to distal end of left 4th finger. Treatment — Wound closed with six sutures. 5,000 units tetanus anti-toxin given. Surgical dressings. X-Rays — None. Estimated date of discharge — 4 to 5 weeks. Estimated date patient able to work —About February 28, 1951. What permanent disability do you expect? — None.”

Dr. Wiesman submitted his final report on April 5, 1951, which is as follows:

“Nature of Injury — Avulsion laceration of volar pad of distal end of left middle finger. Contusion to distal end of left 4th finger. Treatment — Wound to left middle finger closed with 6 sutures. 5,000 units of tetanus anti-toxin given. Surgical dressings. X-Rays — None. Estimated date of ability to return to work — March 5,1951. Date patient was discharged — April 5, 1951. Permanent disability — Permanent scar left middle finger with minimal stiffening of finger. Estimated permanent disability 5%.”

Claimant was 44 years of age, and had no children under 18 years of age dependent upon him for support at the time of the injury. Other employees working in the same capacity as claimant ordinarily work less than 200 days a year. Therefore, under Section 10 of the Workmen’s Compensation Act, claimant is presumed to have earned $1,560.00 in the year preceding the accident.

An examination of the claimant’s hand by our Commissioner Frank Summers indicated that claimant received about a 10% total loss of use of his left hand as a result of the injury sustained. From a review of the evidence, and the observations of our Commissioner, we are of the opinion that claimant is entitled to an award for 10% permanent loss of use of his left hand.

Claimant is entitled to an award under Section 8, Paragraph (e) (12), of the Workmen’s Compensation Act, of 17 weeks at the compensation rate of $22.50 per week, or the sum of $382.50.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident arose out of and in the course of the employment. Respondent further furnished complete surgical, medical and hospital treatment.

Mr. Broadway was totally disabled because of this injury from January 24 to March 4, 1951, inclusive. He was paid compensation at the rate of $22.50 a week for the period of disability in the amount of $128.57. Compensation was terminated on March 5, the date on which Dr. Wiesman said he was able to return to work. Claimant’s weekly compensation rate would be the maximum of $15.00. Since the accident occurred subsequent to July 1,1949, this must be increased 50%, making the compensation rate $22.50 per week.

The record consists of the following: complaint, Departmental Report, stipulation waiving briefs of both parties, and transcript of evidence.

An award is, therefore, made to claimant, James E. Broadway, in the sum of $382.50, all of which has accrued, and is payable forthwith.

T. W. Elliott was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $28.15 were incurred for these services, which are fair, reasonable and customary. An award is, therefore, entered in favor of T. W. Elliott in the amount of $28.15, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


text:
    (No. 4472
    Robert Paul Scott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1952.

    Walter W. Geister, Jr., Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

On June 2, 1951, at about 8:45 A.M., Blanche I. Scott, aged 22, sister of claimant, and employed by respondent as a stenographer at the Illinois State Training School for Boys, St. Charles, Illinois, was operating a 1949 Chevrolet Tudor' Sedan, belonging to claimant, at 15 m.p.h. in a southerly direction upon the west half of a two lane black top roadway, which leads to the State grounds of said Institution. As she approached the entrance to said Institution, known as the “North Entrance”, a horse owned by respondent suddenly ran out of a pasture gate on the west side of the highway, which had been left open, and struck the right front fender of the automobile, damaging the hood, right front fender, aerial, and roof of the car.

Blanche I. Scott appeared at the hearing on behalf of claimant. She testified that the automobile in question was in good condition; that she had permission from claimant to use the car; and, that the black top highway where the accident happened is a two lane highway about 20 feet wide with a shoulder about 10 feet wide on each side. She stated she was driving 15 m.p.h. when the accident happened, and had been travelling on said roadway a distance of about a block. She first saw the horse when it ran out from the pasture, where the orchard is located, through an open gate on the west side of the road, and into the right front fender of the car; and, that the car was about even with the gate when the accident happened. After the impact she? traveled only a few feet, applied the brakes as soon as she saw the horse, and that the car slid on the pavement about a car’s length before it stopped. She swung the car to the left, and the car was turned in the middle of the road; that the whole horse came upon the car, and landed on the hood. After the car stopped, the horse slid off on the right side, and thereafter was lame for a while — a few days. She stated she was alone in the car at the time, and that no one was near the gate at the time. She further testified that she had a conversation with one Mr. Frost, a relief house parent at Polk Farm, and an employee of respondent, who came up to the car at the time and place in question, and told her that the Wilson boys (boys in the Wilson cottage) had left the gate open, and that she should go up to the office and get in touch with Mr.. Carft, the head farmer, and have him look at the horse, and call the veterinarian.

Claimant testified that he had given his sister, Blanche I. Scott, permission to use the automobile in question; that the automobile was in good mechanical condition, and that he had paid $172.45 to Kohlert’s Body Shop for repairs to his automobile for damages sustained in said accident. He stated that the American . States Insurance Co., the insurance company carrying collision coverage on his automobile, had reimbursed him in the amount of $122.45, leaving a balance owing him in the amount of $50.00.

Claimant’s exhibit No. 1, being a repair bill from Kohlert’s Body Shop in the amount of $172.45, was offered and admitted into evidence.

At the time of the accident Blanche I. Scott was on her way to work for respondent at said Institution.

It had been raining during the morning, and at the time of the occurrence it was drizzling, and the highway was wet. The horse in question was owned by respondent.

By stipulation of the parties hereto, and their respective attorneys, the American States Insurance Co. was added as a party claimant to this action by virtue of its subrogation interest.

After hearing the evidence in this case, it is the opinion of the Court that the respondent, through its agents and servants, was negligent in failing to keep the horse properly and securely locked up in the pasture connected with said Institution, and in leaving the gate leading to said pasture open, permitting the horse to leave the pasture at will. It is also the opinion of the Court that as a direct result of said negligence the horse left the pasture, passed through the open gate, and struck claimant’s car, damaging the same to the extent of $172.45.

The Court is further of the opinion that Blanche I. Scott was not guilty of contributory negligence in the operation of said automobile at the time and place in question; and, that she was in the exercise of due care and caution for her own safety and the property of others at the time of the accident.

An award should, therefore, be made to claimant for damages to his automobile, arising out of the accident in question.

Awards are, therefore, entered in this case as follows:

1. The sum of $122.45 to Robert Paul Scott for the use of American States Insurance Co.

2. The sum of $50.00 to Robert Paul Scott, claimant.


text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    John W. Preihs, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Elva Jennings Penwell, was injured on February 2, 1936, in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C.C.R. 365, in which awards were made to claimant in the amounts of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services expended or incurred to and including October 22, 1940, and an annual life pension of $660.00. On February 10, 1942, a further award was made to claimant for medical and hospital expenses, incurred from October 22, 1940 to January 1, 1942 in the amount of $1,129.82. On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942 to December 31, 1942 in the amount of $1,164.15. On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943 to and including September 30, 1943 in the amount of $853.07. On April 17, 1945, a further award was made to claimant for medical and nursing expenses, incurred from October 1, 1943 to and including February 28, 1945 in the amount of $1,955.29. On September 12, 1946, a further award was made to claimant for medical and nursing expenses, incurred from February 28, 1945 to and including April 1, 1946 in the amount of $1,646.12. .On June 5, 1947, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1946 to and including April 1, 1947 in the amount of $2,108.30. On September 22, 1948, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1947 to and including April 1, 1948 in the amount of $2,207.80. On April 19, 1949, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1948 to and including February 1, 1949. On May 9, 1950, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1949 to and including February 1, 1950 in the amount of $2,316.09. On April 10, 1951, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1950 to and including February 1, 1951 in the amount of $2,403.09. Claim is now being made for an additional award of $2,889.70 for medical and nursing expenses from February 1, 1951 to and including February 1, 1952.

Claimant remains totally paralyzed from the waist down, the paralysis being of a spastic type; her physical condition has not improved. She has no control over her lower limbs, nor over her urine and faeces. From February 1, 1951 to and including February 1, 1952 she has been required, to relieve her of her injury, to prevent deformity, to stimulate circulation, and to relieve bedsores, to employ and receive medical services of nurses or attendants to move her to and from her bed, to change her bed clothing at least three or four time a day, to administer light treatment to the affected parts of her paralyzed body, and to rub her body with ointments prescribed by her physician. Because of the complete paralysis of her lower abdomen and legs, the functioning of her kidneys and bladder is impaired, and medical attention is required to flush these organs, and to prevent infection arising from her impaired circulation and paralysis. The services of a physician are needed almost daily, and must be rendered in her home.

Claimant has, therefore, employed a physician on a -monthly basis at a charge of $90.00 per month, which is a lesser rate than ordinarily charged, and for which she seeks reimbursement in the total sum of $1,282.00, which sum includes massages and treatments. Claimant also seeks reimbursement, at the rate of $1.50 per day, in the amount of $547.50, for board and room of attending nurses. Such expenditure obviates the employment of both a day and a night nurse. In addition, claimant has expended for nursing services $730.35, and for drugs and supplies $329.85.

The record consists of the verified petition of claimant, the original receipts and vouchers showing payment of the respective items, waiver of claimant of right to file statement, brief and argument, and stipulation filed in lieu of evidence.

An award is, therefore, made to the claimant for medical and nursing expenses from February 1, 1951 to and including February 1, 1952 in the sum of $2,889.70, which has accrued, and is payable forthwith. The Court reserves for future determination claimant’s need for further medical, surgical and hospital services.


text:
    (No. 4297
    William A. Falls, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    Herman R. Tavins, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Claimant, William A. Falls, filed his claim in this Court, alleging that he, a't all times mentioned, was and is still a member of the National Guard of the State of Illinois, and that this action is instituted pursuant to the Military and Naval Code of the State of Illinois.

On June 11, 1949, while under orders, and in the exercise of due care and caution for his own safety and the safety of other members of his Company enroute to Camp Logan on a National Guard truck, claimant was struck with a rifle butt across his eyes, which resulted in the serious impairment of his vision. He lost a great deal of time from his employment, and incurred many bills in endeavoring to cure himself of said injuries; and, as a result of which, he has had to have repeated operations on his eye. He now seeks to recover from the State reimbursement for monies expended for medical expenses, loss of time, and such further amounts as the Court might deem equitable and fair for his injuries.

The facts show that William A. Falls was 36 years of age, and was injured while enroute to Camp Logan for rifle practice as a member of the National Guard of the State of Illinois. Claimant was lying asleep in the bed of a truck when a rifle fell, striking him across the eyes, and causing the injuries for which he seeks compensation. Claimant is married, the father of three minor children, ages 10, 9 and 4, and at the time of his injury was employed as a postal clerk in the City of Chicago, Illinois.

The facts further show that prior to the accident the claimant earned $3,770.00 a year as a postal clerk, and worked extra time as a waiter earning as mu6h as $30.00 to $40.00 a week. Since the accident, he has continued to work as a postal clerk, and his yearly-salary averages $4,100.00. However, he has not been able to do the extra work, which he did prior to the accident.

The evidence further discloses that the injuries to claimant’s eyes have necessitated two operations; on both occasions he was hospitalized and absent from his employment about sixteen weeks. The facts show that he lost about $1,100.00 in salary, as well as an estimated $2,500.00, which he would have been able to make as a waiter in the meantime. Claimant testified that he has not been reimbursed for the time he was absent from his employment, nor for $350.00, which he paid to the Provident Hospital, $234.00 paid to Dr. Brooks, $12.00 for glasses, as well as some sums for medication.. The facts further disclose that the State did reimburse him for the first operation, including hospitalization and medical expenses.

It was shown that at the time of the accident, claimant’s health was good, and that he had had no previous injury to his eyes, other than an infection in the right eye, which occurred some time in the year 1937. This necessitated the wearing of glasses for several years, but for the last ten years he had not worn glasses at all. The evidence further shows that he had been employed in the United States Post Office in the City of Chicago for some time, which position required the use of his eyes in the sorting of mail, examining addresses, and in other duties, all of which indicate his eyes were in good, condition immediately prior to the injuries in question. It is not necessary to detail all of the facts, other than to state that the record is replete with evidence showing that the claimant did receive rather serious injuries to his eyes as a result of the accident in question.

The Board of Inquiry, under the National Guard Act, in its report recommended reimbursement to the claimant for hospital and doctor bills, time lost through civilian occupation, payment of all drug bills incurred as a result of the accident, and reimbursement for stenographic duties performed in connection with the examination.

Claimant consulted Dr. Roosevelt Brooks in Chicago, who diagnosed the condition as being a detached retina of the right eye, and recommended an immediate operation. Claimant was operated on for this particular condition, and on February 1, 1950 suffered a recurrence. On February 22, 1950, he went back to Provident Hospital for another operation.

The testimony of Dr. Thaddeus Frank Bush, a Lieutenant Colonel connected with the National Guard, and the report of the Board of Inquiry, show that the injuries complained of were received in the line of duty; that claimant was not under the influence of alcohol or drugs at the time, and that as a result of the accident claimant has a detached retina in one eye. Dr. Bush testified that, from an industrial standpoint, claimant has lost 51.1% vision in his right eye, and 32.2% vision in his left eye. He further testified that a detachment of the retina will occur in over 60% of similar cases following operations.

There is no dispute as to the injuries having occurred while claimant was in the performance of his duties as a member of the National Guard, nor is there very serious, dispute about the nature and extent of his injuries. Apparently, the only question involved is the amount of damages to be allowed to claimant.

This Court, in similar cases, has seen fit to take as a guide, but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act in determining what payment would be reasonable for the loss of same. The Court feels that, under the present circumstances, the previous decisions of this Court in accepting the Workmen’s Compensation Act as a guide applies with equal force to the case here.

Section 8 (e) of the Workmen’s Compensation Act provides in the event of loss of vision in an eye, payment of 50% of the average weekly wage during 120 weeks. The Act further provides that for the permanent partial loss of a member, or sight of an eye, payment of 50% of the average weekly wage during that proportion of weeks provided for the loss of such member, or the sight of an eye, which the partial loss of use thereof bears to the total loss of use of such member, or sight of eye.

Claimant’s compensation rate, based on the fact that he was the father of three children under sixteen years of age dependent on him for support on the date of the accident, would be $23.40 per week. From the evidence in this case, the Court concludes that the claimant is entitled to an award for 25% permanent partial loss of use of the left eye, and 50% permanent partial loss of use of the right eye. Using the Compensation Act as a guide, and applying the percentage of loss in this case, the Court finds that the claimant would be entitled to the sum of $2,106.00 for the permanent partial loss of use of both eyes.

The Court further finds that the claimant lost 16 weeks of work, which, figured at the compensation rate of $23.40 per week, would be the sum of $374.40, which is hereby awarded to the claimant.

The Court further finds that claimant shall be reimbursed for medical payments in the amount of $320.80, and the amount of $233.00 payable to claimant for the use of Dr. Roosevelt Brooks.

An award is, therefore, entered in favor of claimant, William A. Falls, in the sum of $3,034.20.


text:
    (No. 4386
    Paul Combs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1952.

    Louie F. Orr, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant filed his complaint on January 19, 1951, alleging that on July 8, 1950 he was driving his 1941 Chevrolet Sedan along Route No. 3 between Chester and East St. Louis, Illinois, and that his car struck a stretch of broken pavement, which caused the automobile to swerve out of control, and turn over. Claimant, in his testimony, stated that he was traveling between fifty and fifty-five miles an hour when he hit the stretch of rough pavement, and the gap in the pavement extended between one hundred and one hundred and fifty feet in length. Claimant further testified that he saw no sign or warning as he approached the gap in the pavement. The last warning sign he observed was about five or six miles before he struck the gap. This sign said “end of bad pavement”. Mr. Combs testified that he did not receive personal injuries due to the accident. William T. Alston, an employee of the Mixon Motor Company, examined claimant’s car, and estimated the damages resulting from the accident to be in the amount of $185.00.

Mary Limbaugh testified that she and her husband had driven over Route No. 3 many times, and on July 8th they were driving along Route No. 3, and saw claimant’s car just after the accident. She stated that the gap in the pavement was about seventy-five to one hundred feet long, and that there were no warning signs in the vicinity of the accident. The closest warning sign was five miles away.

Frank J. Kolbohn, a witness, stated he was driving along Route No. 3, and arrived at the place of the accident just after it happened. He stated he saw claimant’s car turned upside down on a gravel stretch where the pavement had been removed, and that there were no notices or other warnings that the gap existed.

Claimant testified that it was 7:40 P.M. when the accident occurred, that it was just beginning to get dark, and that other cars were driving with their parking lights on.

The record consists of the complaint, and transcript of evidence.

Claimant, Paul Combs, has proved his case by a preponderance of the evidence. The evidence shows that there was an extended break in the pavement, and that there were no warning signs near the scene of the accident. Respondent was negligent in its maintenance of the highway.

An award is, therefore, entered in favor of claimant, Paul Combs, in the amount of One Hundred and Eighty-five Dollars ($185.00).


author: Schuman, C. J. Schuman, C. J.

text:
    (No. 4403
    Patrick Davern, Jr., a minor, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1952.

      Supplemental opinion filed May 13, 1952.

    David Alswang and David Mendelsohn, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter and Harry K. O’Melia, Assistant Attorneys General, for Respondent.
   Schuman, C. J.

The claim filed in this case is predicated on the grounds that the Board of Education of the City of Chicago was an agent of the State of Illinois; that it operated a playground in the City of Chicago; and that through its duly authorized servant and agent negligently caused the injury of Patrick Davern, Jr.

The State filed a motion to dismiss the complaint on the ground that it had no responsibility for the negligence of such a municipal corporation. The Court overruled this motion on June 8, 1951. The respondent then filed a motion to vacate said order, and the claimant filed his objections to said motion.

The question before the Court is one of jurisdiction. This Court, prior to the enactment of Section 8 C of the Court of Claims Law, consistently held that no claim could be filed predicated on tort liability of the State, and specifically refused to take jurisdiction of any case involving municipal corporations. (Smith vs. State, 16 C.C.R. 208.)

A Board of Education is created unwillingly, and is the method by which the Legislature has complied with the constitutional mandate to maintain a system of free education.

The cases all hold that a Board of Education is not a municipal corporation. In the case of Schreiner vs. City of Chicago, 406 Ill. 75, the Court held that the Board of Education of the City of Chicago was a separate and distinct entity from the City of Chicago.

In Lindstrom vs. City of Chicago, 331 Ill. 144, at 147 and 148, the Court, in holding that school districts are not liable for torts or negligence of their agents unless such liability is expressly provided for by statute, stated:

“The rule adopted in this State and generally followed throughout this country is, that corporations of the character of school districts are created nolens volens by the general law to aid in the administration of State government and are charged as such with duties purely governmental in character. They are, therefore, not liable for the torts or negligence of their agents unless such liability is expressly provided by statute. (People vs. Board of Education, 325 Ill. 320; City of Chicago vs. Jewish Consumptives Relief Society, 323 id. 389; Kinnare vs. City of Chicago, 171 id. 332.) The reason for this rule lies in the fact that a school district of the character here considered is created merely to aid in the administration of the State government. It owns no property, has no private corporate interests, and derives no special benefits from its corporate acts. It is simply an agency of the State having existence for the sole purpose of performing certain duties deemed necessary to the maintenance of “an efficient system of free schools” within its jurisdiction. In creating such district the State acts in a sovereign capacity for the more efficient exercise of governmental functions resting in the State, and such district is exempted from the obligation to respond in damages, as master, for the negligent acts of its servants to the same extent as is the State itself, unless liability is expressly provided by the statute. (Nagle vs. Wakey, 161 Ill. 387; Wilcox vs. City of Chicago, 107 id. 334; Town of Waltham vs. Kemper, 55 id. 346.) In People vs. Board of Education, 255 Ill. 568, and Bradbury vs. Vandalia Drainage District, 236 id. 36, the distinction between corporations liable for negligent or wrongful acts of their agents, and those which are not is made clear. The latter, being public, involuntary quasi corporations, which are mere political or civil divisions of the State created by general law to aid in the general administration of the government, are not so liable, while those which are liable are so liable because they have privileges conferred upon them at their request, which are a consideration for the duties imposed. To the same effect is Johnston vs. City of Chicago, 258 Ill. 494.
Appellants rely upon Winkelman vs. City of Chicago, 213 Ill. 360, as authority for their contention that an action of trespass will lie against defendant. That case and the one at bar differ in the fact that there the suit was against the City of Chicago, a municipal corporation. The Board of Education of the City of Chicago is not a municipal corporation.”

Respondent cites the case of Lincke vs. Moline Board of Education, 245 Ill. App. 459, and that Court in speaking of the liability of a Board of Education, on pages 462 and 463, stated:

“******It is simply an agency of the State having existence for the sole purpose of performing certain duties, deemed necessary to the maintenance of an “efficient system of free schools” within the particular locality of its jurisdiction. The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages as master for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.”

In all of the cases cited by claimant and respondent it is held that a Board of Education is a corporate entity, an agency of the State, and not a subdivision thereof.

Claimant predicates his case on the ground that a Board of Education is an agent of the State, and that Section 8 C of the Court of Claims Law gives this Court jurisdiction. Section 8 C reads as follows:

“All claims against the State for damages in'cases sounding in tort, in respect of which claims the claimants would be entitled to redress against the State of Illinois, at law or in chancery, if the State were suable, and all claims sounding in tort against The Board of Trustees of the University of Illinois; provided, that an award for damages in a case sounding in tort shall not exceed the sum of $7,500.00 to or for the benefit of any claimant. The defense that the State or The Board of Trustees of the University of Illinois is not liable for the negligence of its officers, agents, and employees in the course of their employment shall not be applicable to the hearing and determination of such claims.”

This section can only apply where the State would be liable for a tort action. The Section specifically gives a cause of action against The Board of Trustees of the University of Illinois in tort cases. It does not extend to any other corporate entity. If the Legislature intended to include Boards of Education, it could easily have done so. It certainly cannot be said that a Board of Education is an employee of the State of Illinois. The Legislature did not, under Section 8 C, extend the jurisdiction of this Court to cases involving tort liability of agents, servants, and employees of Boards of Education.

There is a distinction between work performed by the State through an agent, and work performed by a corporation in the exercise of a governmental function delegated by the State. The State did not employ the man, who is claimed to have caused the injury to the claimant. This man was employed by the Board of Education, and his salary paid by said Board of Education. Employees hired by a Board of Education in the performance of governmental functions are the employees of the corporation and not of the State.

The State, under a Constitutional provision, cannot be sued either at law or in equity, and it cannot by statute waive immunity. It can by appropriate action delegate to the Court of Claims jurisdiction to make awards on claims cognizable by it. This requires a definite action on the part of the State, and, having failed to extend the law to include Boards of Education, this Court is without jurisdiction to entertain such a claim.

For the reasons assigned, the Court is compelled to vacate its order of June 8,1951, to sustain the motion .of respondent, and to dismiss the claim.

Supplemental Opinion

Schuman, C. J.

The petition for rehearing indicates that claimant has .misconstrued the term “agency”, as applied to the Board of Education of the City of Chicago in the Court’s prior opinion.

In People vs. Barrett, 382 Ill. 321, the Supreme Court had before it the question of determining the status of the University of Illinois as a corporate entity, and its relation to the State government. The Court, on page 343, said:

“It functions solely as an agency of the State for the purpose of the operation and administration of the University for the State. In doing this, it functions as a corporation, separate and distinct from the State, and as a public corporate entity with all the powers enumerated in the applicable statutes, or necessarily incident thereto. It has and can exercise no sovereign powers. It is no part of the State or State government. (Emphasis supplied.)”

The Court, on page 347, said:

"In the sense that it is a department or branch of the State government, the University of Illinois is not an agency or instrumentality of the State. It is a separate, corporate entity, which functions as a public corporation.”

The Court, in its opinion, thought it had made the point clear that the Board of Education was a separate corporate entity functioning as a public corporation, and, in this sense, not acting as an “agent”, but in its own capacity. While it is an agency set up by the State, it is set up as a separate and distinct corporate entity, and functions in conformity with the statute creating it, and not as an agent.

The statute provides that the Board of Education is a body politic and corporate, and may sue and be sued in all Courts.

It is in the sense that the Board of Education is a corporate entity, and, as such, carries on its functions distinct from the State, that it does not come under Section 8 C of the Court of Claims Law, because, as such, it is not an agent of the State.

For the reasons above assigned, the petition for rehearing is denied.