text:
    (No. 2421
    Gladys Hulbert, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied May 14, 1935.

    D. C. Thompson, for claimant, Gladys Hulbert.
    Alva L. Hulbert, Burrell M. Hulbert and Helen Hulbert, intervening petitioners, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This is one of the claims arising out of the National Guard motor bus fire accident that occurred near Pana, Illinois on the 26th day of July, 1933; being the only one of such claims in which claimant appears by an attorney; all other claimants having filed their claims pro se.

Wilburn Hulbert, from whose death this claim arises, was a member of Howitzer Co. 130th Inf. Ill. National Guard. Immediately prior to the 26th day of July 1933 he had been on actual and active duty at Taylorville, Christian County, Illinois, under orders of the Governor of this State, assisting in restoring peace in a mine strike existing there. On said date said Company, under command of Capt. Edward G. Johnston, was ordered by proper authority to return to its headquarters at Mt. Vernon, Illinois, and at the time of the accident in question, Wilburn Hulbert, with other members of his Company, were being transported in an automobile bus, chartered by the State through its Military Department from the Illinois Terminal Transportation Company.

At a point about four miles northwest of Pana, Illinois the bus caught fire and flames quickly spread^ throughout the interior of same. Wilburn Hulbert, like several of Ms comrades, was seriously burned and was compelled, because of the sudden spreading of the flames, to leap from the moving bus. His head, face, body, arms and legs were burned; such burns covering about five-sixths of the surface of his body, and as a result thereof he died the following day, July 27, Í933.

The Military Board of Inquiry found that the injuries received by Wilburn Hulbert were sustained in the line of duty, as a member of said Company, and that such injuries occurred through no fault or neglect on the part of any officer or enlisted man of the Illinois National Guard.

The young man, at the time of his death, was nineteen years, of age, he left no wife nor children, but left as his heirs-at-law — his father, John L. Hulbert; a brother, Alva Hulbert; a brother, Burrell M. Hulbert; and a sister, Helen Hulbert. Alva Hulbert had been married for a number of years and maintained a home for himself and his immediate family. The brother, Burrell Hulbert, was married about the year of 1931 and lived with his wife several months, but was living as a single man at the time of the accident. He also, was a member of the National Guard. Helen Hulbert was a minor and at the time of the accident was residing with her brother, Alva Hulbert. Wilburn Hulbert’s mother died about 1926, and on the 18th day of July, 1928 an order was entered in the County Court of Jefferson County, Hlinois, upon petition duly filed and heard, finding Wilburn Hulbert to be a dependent child, by reason of the neglect by the father and the immoral condition of the latter’s home; further ordering that the boy be taken from the care, custody and control of the father, John Hulbert; that he become a ward of the court, and placed in the custody of his brother, Alva Hulbert until the further order of the- court. A similar order at the same time was entered in regard to the dependency, care and custody of Helen Hulbert, who at that time was eleven years of age.

John L. Hulbert married his present wife, Gladys Hulbert, in October, 1929. She was appointed Administratrix of the Estate of Wilburn Hulbert and filed this claim as such administratrix, but later John L. Hulbert was, by a stipulation, substituted as claimant in her place.

An intervening petition has been filed by Alva L. Hulbert, Burrell M. Hulbert and Helen Hulbert, alleging that Wilburn Hulbert contributed to the family expenses of Alva L. Hulbert and Helen Hulbert and also to the family expenses of John L. Hulbert, and that inasmuch as Burrell 'Mi Hulbert was making his home at such times as a part of the family circle of either Alva L. Hulbert or John L. Hulbert; that Wilburn Hulbert was also therefore contributing to the living expenses of his brother, Burrell M. Hulbert. The Intervening Petitioners therefore ask that consideration be given to their rights and that they individually be awarded such portion of any award that may be made, as the court may deem proper.

From the testimony it appears that for a short time after the legal custody of the son and daughter were taken from John L. Hulbert, the latter and all the children lived at the home of his son, Alva L. Hulbert. Later the father and his two younger boys rented a place and lived together, Wilburn then being about sixteen years of age. In February, 1930 John L. Hulbert, having re-married, went to Wayne County where he lived for about a year, and the two boys lived in Mt. Vernon, Wilburn staying most of the time in the home of his brother Alva. From September, 1931 until July, 1933 Wilburn lived part of the time in his father’s home, part of the time with his brother Alva, and part of the time he and his brother, Burrell, roomed with other parties. Some time between two weeks and a month prior to leaving for riot duties at Taylorville the two boys left their father’s home and from then on either made their home with their brother Alva, or roomed with-third persons.

Wilburn Hulbert was apparently an industrious young-man and had been employed with the Mt. Vernon Furnace Company more or less regularly for several years. His earnings were from $13.00 to $15.00 per week. Prior to 1926 the father, John L. Hulbert, was a railroad engineer. At the time of the hearing he was employed by th'e CWA four days á week for eight hours a day at Forty Cents (40c) per hour. The wife, Gladys Hulbert, testified that she was employed picking chickens, but had not worked any after January 3, 1933. The deceased soldier paid board and room rent of $3.50 to $4.00 per week to his brother Alva L. Hulbert, during the time that he stayed there. This brother testified that after his father “got out of his trouble he came to my house; the boys were working, so I thought they could support my father.” During the time Wilburn Hulbert lived at the home of his father it does not appear that he paid a definite stated amount for room and board, but apparently he contributed to the payment of rent, helped buy furniture on the installment plan and from time to time gave his father sums in cash. Burrell M. Hulbert testified to having contributed from $60.00 to $70.00 toward his father’s support during the eight months that he lived there.

The sister, Helen Hulbert, testified that her brother Wilburn had bought most of her clothes and gave her money whenever he could spare it, and that he also bought her school books; that whenever she wanted anything to help feed and clothe herself she got it from Wilburn; that she did not pay board while living at her brother Alva’s, and at the time of the accident, and for a short period prior thereto, she was working at the farm home of a Mr. Johnson for her room and board.

Burrell M. Hulbert testified that he had not been working for about two years; that his brother Wilburn was working during that time and whenever he wanted money he would get it from Wilburn; that Wilburn helped him buy clothing and that he was rooming with Wilburn for several weeks before they went to Taylorville with the militia. He also testified that Wilburn was the owner of an automobile. He also testified that during an eight month’s period Wilburn contributed to his father’s support, “all he made”. In view of the fact that the record shows that Wilburn at all times paid his own way and bought his own clothing he could not have contributed to his father’s support, everything that he earned. Andrew S. Grant, a witness called on behalf of claimant, testified that John L. Hulbert, the two younger boys and Helen lived in one of his apartments for about six weeks; that one of the boys paid the rent and the other paid the grocery bills. John L. Hulbert testified that during the last two years of Wilburn’s life, the latter contributed about $438.00 per year to his support.

" From all the foregoing it is apparent that while no regular contributions were made by Wilburn Hulbert to any member of his family, he did indirectly through payment of board, the buying of furniture and gifts of money and clothing, contribute to the support of his father, stepmother, two brothers and sister.

"In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded, or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial' help or assistance and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

Sec. 11, Art. XVI, Military Code.

Claimant, John L. Hulbert, asks that the total amount of such award as may be made shall be paid to him; that such award should be figured under the Workmen’s Compensation Act and that such claimant should be allowed not less than $2,500.00 and any sum the court may see fit above that up to $4,000.00.

The existence of dependency and the extent of it are questions of fact. There is a distinction between the mere receiving of contributions, and claims to compensation by reason of the dependency of the parent linked with the fact of contributions by a deceased. The rule is that dependency must be based on evidence that the parent was dependent on the deceased for support at the time of the death of the deceased and that the latter had been contributing to the parent in a substantial manner. (Yellow Cab Co. vs. Ind. Com. 333 Ill. 49). Such dependency must be shown to exist at the time of the decease of the employee. Where dependency existed but terminated before the accident, it as a matter of law, does not exist. (Wedron Silica Co. vs. Ind. Com. 312 Ill. 119)' The fact that the father expected to be dependent upon the deceased in the future or that he was saving money for the time, is not sufficient to support an award, as the dependency must be at the time of the death and not a contemplated future dependency. (Hamer-Paskins Co. vs. Ind. Com. 331 Ill. 65.)

In Bauer & Black vs. Ind. Com. 322 Ill. 165, it was held that the parents were not entitled to compensation for the death of an adult daughter who had made payments not exceeding the value of board and room.

The Court of Claims is not definitely committed to observance of the Compensation Act provisions in determining* what awards shall be made in cases arising under the' Military Code, but has in many instances followed such Act as a reasonable guide. Under Sec. 7, Par. C, of the Workmen’s Compensation Act, if an employee leaves any parent who at the time of injury was partially dependent upon the earnings of the employee, such parent shall receive such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less than $1,000.00 and not more than $3,750.00 in any event. The record indicates an average wage' of $14.00 per week when deceased was working, but that he only worked a portion of each year. His annual earnings could not have apparently exceeded $728.00 per year. Four times that amount would be $2,912.00. The record does not disclose any satisfactory way in which the proportion of the amount spent by deceased on himself and what part he contributed toward the support of his father, brothers and sister can be determined. It is apparent that he spent $7.00 or $8.00 a, week for lodging, board, clothes and automobile. If an average of $7.00 is taken it would leave $7.00 per week which might have been contributed to the father, brothers and sister. Four times this amount on an annual basis would be $1,456.00, being a fair proportion as contemplated under Par. C. of Sec. 7 of the Compensation Act.

If we adhered strictly to the Compensation Act there is some doubt whether an award to either of the claimants could be justified, for the deceased was living separate and apart from all, except his brother Burrell at the time of the accident in question, and is not shown to have been contributing any sum to either of claimants for several weeks prior thereto.

Under the authority granted the court, however, under the Military and Naval Code and considering the merits of the claim of each member of the family of Wilburn Hulbert, deceased, the court is of the opinion that a total award herein o.f $1,456.00 is legal and just, and is such as the merits of this case demand.

In the absence of any set rule by which we should determine a division of an award herein, the following order is entered: An award of One Thousand Four Hundred Fifty-six Dollars ($1,456.00) is made because of the death of Wilburn Hulbert, by reason of the estimated contributions made by him to his family’s support as hereinabove set forth; said sum shall be divided into four equal portions, one of which shall be payable to each of the following in the amounts stated, and awards are made as follows:

To — John L. Hulbert...................................... $364.00
Alva L. Hulbert.....................„................. 364.00
Burrell M. Hulbert................................... 364.00
Helen Hulbert....................................... 364.00
Total $1,456.00


source: Caselaw Access Project

author: Me. Justice Linsoott

license: Public Domain

text:
    (No. 1831
    Robert W. Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    B. M. Davison, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Linsoott

delivered the opinion of the court:

The claimant, Robert W. Johnson, filed his declaration on November 16, 1931 alleging that the State of Illinois was possessed of a certain State Aid Road in Sangamon County, Illinois, and it was the duty of the State to maintain and keep the highway in a good and safe condition and in a proper state of repair, and notwithstanding its duty in this behalf on the 13th day of August, 1931, the claimant was driving-over the road in the night-time, and near and between station 12-00 and 13-50, which was a part of that portion of the highway known as State Aid Road 5-15-D, he struck a pavement brick on the edge, which caused the plaintiff to lose control of his automobile and the car left the pavement and struck a telephone pole, and the claimant did sustain very serious injuries, consisting of a fracture of the elbow, dislocation of the right shoulder and vertebra of lower neck, besides various cuts and bruises.

The declaration avers that the claimant spent Two Thousand Dollars ($2,000.00) in endeavoring to be cured, and Thirty Dollars ($30.00) in repairing* his automobile, and damages in the sum of Two Thousand Thirty Dollars ($2,030.00) is asked.

This court has on many occasions held that the doctrine of respondeat superior does not apply to the State.

The State exercises governmental power in the construction and maintenance of its highways and is not liable for the misfeasance, malfeasance, or negligence of its officers. The State would become liable only where a claimant could show a legal or equitable right to recover.

Walsh vs. State, 6 C. C. R. 421.

Stoddard vs. State, 6 C. C. R. 27.

Peterson vs. State, 6 C. C. R. 77.

The cause will, therefore, be dismissed.


author: Mr. Justice Tantis

text:
    (No. 2448
    Clifford R. Karch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Clifford B. Karch, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Clifford B. Karch was a member of the Howitzer Co. 130th Inf. I. N. G. and was in the military bus-fire accident that occurred near Pana, Illinois on July 26, 1933.

Claimant testified that both ears and both hands were " burned in the bus-fire, his hip was bruised and the hair was burned off the back of his head. In Ms claim he stated he had lost two weeks work at $30.00 per week.

A Military Medical Board examined claimant at Camp Grant, on August 8, 1934 and found that he suffered no permanent disability. Claimant stated in the record that he agreed with this finding.

Private Karch was employed by the Mt. Vernon Furnace Mfg. Co. and was paid approximately Forty Cents (40c) an hour. On the basis of a nine-hour, six-day a week job his wages would have been $21.60 per week.

The record further discloses that Private Karch received the burns on Ms hands in tearing the burning clothes off Private Harper. The latter, as is indicated in other claims filed in connection with this same accident, died as a result of the burns he received. While no permanent disability exists in this case, claimant was incapacitated from active labor for approximately 10 days and an award is hereby made in line with the provisions of the Workmen’s Compensation Act, in his favor on the basis of his usual wages over a ten day period in the sum,of Sixteen and 20/100 Dollars ($16.20).


author: Mr. Justice Yantis

text:
    (No. 2459
    Howard L. Leggee, a Minor, by Eunice Leggee, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13. 1935.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant is another of the members of the Howitzer Co. 130th Inf. of the I. N. G. that was a passenger in the military bus that burned near Pana, Illinois on July 26,1933. According to the record he was earning $20.00 per week at the time of the accident. The medical board’s report of his physical examination, made on August 8,1934, shows some slight scars on the forearm but no disability from any of the injuries. Two or three days after the accident claimant went to Camp Grant with his Company and received the usual pay for his services there. His testimony in this record states that after his return from Camp Grant he was disabled for about three weeks. He has indicated that he agrees with the report of the medical board that he received no permanent disability from the accident. His medical bills have been assumed by the State in the sum of Seven and 501/100 Dollars ($7.50). (See Case vs. State — C. of C. No. 2469.)

In view of the record an award, based on his wages and loss of time is made in the sum of Thirty Dollars ($30.00), under authority of the Military and Naval Code.


text:
    (No. 2457
    Joe F. Lovin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Joe F. Lovin, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Joe F. Lovin was a member of the Howitzer Co. 130th Inf. I. N. G. and was one of the soldiers injured in the Military bus-fire accident that occurred near Pana, Illinois on July 26, 1933. A Military Medical Board under a report dated August 8, 1934 found that there is no disability and no disfigurement except a slight fullness of the left side of the lower lip, noticeable only when direct examination of same is made. Claimant testified herein that he was employed by his father under the latter’s contract as a mail messenger and received from his father Sixty Dollars ($60.00) per month and board and room, the latter items being estimated by him to be worth Forty Dollars ($40.00) per month. Claimant is married and has one child, three and one-half years of age. He testified that while he went to Camp Grant and received regular pay while there as a soldier, that upon his return from Camp Grant, he lost approximately two weeks employment in his regular work, because of his physical condition resulting from the fire. Taking the Workmen’s Compensation Act as a guide and figuring claimant’s wages at $25.00 per week with an additional allowance for one child, an allowance of Twenty-seven Dollars and Fifty Cents ($27.50) would be computed.

An award is therefore made in the sum of $27.50.


author: Me.' Justice Tantis Mb. Justice Yantis

text:
    (No. 2460
    Carl M. McIntire, a Minor, by L. L. McIntire, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing granted May 14, 1935.

    Carl M. McIntire, a minor by L. L. McIntire, Ms next friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me.' Justice Tantis

delivered the opinion of the court:

Carl M. McIntire filed his claim as a minor by his next friend, L. L. McIntire. Claimant was a member of the Howitzer Co. 130th Inf. of the I. N. G. on the 26th day of July, 1933 and was in the military bus-fire accident of that date. Claimant testified before the Military Board that was called in said matter on July 26,1933, and at that time stated that Ms hair was only singed on the back of his head and that he had a contusion of the left shoulder and a sprain of the left hand, caused by Ms fall in escaping from the burning bus. Further evidence found in the record discloses that immediately prior to the time of the accident he was employed as a lifeguard at the City Swimming Pool in Mt. Vernon, Illinois at wages of $3.00 per day; that he was unable to work on account of the injuries received in said accident for a period of twenty-five days. The military board directed him to the care of Dr. C. O. Hamilton of Mt. Vernon and the claim filed herein shows that medical bills amounting to Eleven Dollars ($11.00) have been paid or assumed by the State. (See Case vs. State — C. of C. No. 2469.) Claimant was apparently unmarried, and according to the record an allowance estimated under the rules of the Compensation Act on a basis of $3.00 per day, seven days per week for 3 4/7 weeks, or Forty-one and 07/100 Dollars ($41.07) would be a proper award. In view of the fact that the claim shows that actual wages were lost for a period of twenty-five days at Eighteen Dollars ($18.00) per week, an award in reimbursement thereof in the sum of Sixty-seven and 50/100 Dollars ($67.50) is allowed, under authority of the Military and Naval Code.

Opinion on Rehearing.

Mb. Justice Yantis

delivered the opinion of the court:

This matter again coming before the court upon the application of claimant by E. G. Johnston, Capt. of the Mt. Vernon Howitzer Co., 130th Ill. Inf. for the allowance of a further award in the sum of One Hundred Dollars ($100.00) for a facial scar resulting to claimant from the injury suffered in said accident, and it appearing to the court from a re-examination of the evidence that such additional award is in conformity with the evidence herein, same is allowed and the order heretofore entered in this cause recommending an award of Sixty-seven and 50/100 Dollars ($67.50) to Carl Mclntire is reconsidered and a total award is hereby made in his favor in the sum of One Hundred Sixty-seven and 50/100 Dollars ($167.50).


text:
    (No. 2452
    Lee C. Moore, a Minor, by Morton Moore, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Lee C. Moore, a Minor by Morton Moore His Next Friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Lee C. Moore, a member of the Howitzer Co. 130th Inf., I. N. G., was in the military bus-fire accident that occurred near Pana, Ill., on July 26, 1933.

Claimant filed his claim as a minor, but at the time of the hearing testified that he was now twenty-one years of age. Immediately prior to his military service at Taylorville he was engaged as a truck driver at Mt. Vernon, Illinois. While his testimony does not show what his regular wages were, his sworn claim states that the loss of time suffered by him was three weeks at $24.00 per week. His claim also sets forth that he lost personal property in the fire to the value of $25.00 but there is no evidence in the record of that fact. A Military Medical Board passed upon his physical condition on August 8, 1934, and reported that he had received no permanent disability. Plaintiff testified that his left knee, both hands and a place on his hip were burned; that he was unable to perform his regular duties for about a week after his return from Camp Grant. Plaintiff further testified that he does not know at this time whether the injuries to his knee will interfere with his earning capacity in the future.

The record indicates that claimant merits an allowance for one and one-half weeks temporary disability. If the Compensation Act rules were applied an allowance of $7.50 per week would be merited. An award is therefore made in the sum of Eleven and 25/100 Dollars ($11.25), in favor of claimant.


author: Mr. Justice Linscott

text:
    (No. 1891
    Medusa Portland Cement Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Medusa Portland Cement Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The Medusa Portland Cement Company, 1002 Engineers Building, Cleveland, Ohio, presented its claim for the balance due on three hundred (300) barrels of cement that it sold to the State on the 21st day of May, 1931, to be used at the St. Charles School for Boys, St. Charles, Illinois, claiming a balance of Eiglity-two Dollars and Forty Cents ($82.40). The claim was filed March 28,1932, for this amount.

The State authorities thought that this charge could all be taken care of by a return of empty sacks on hand, but credits were allowed as empty sacks were returned, and there still remained due the sum of Eighty-two Dollars and Forty Cents ($82.40). The final bill was not presented until the appropriation lapsed and payment could not be made.

“Where the facts are undisputed that the State received supplies as ordered by it, and that bill therefor was not presented for payment before lapse of appropriation out of which it could be paid, an award for amount due will be made. Shell Petroleum Corp. vs. State, 7 C. C. R. 224; Franklin County Coal Co. vs. State, 7 C. C. R. 114; H. Channon Co. vs. State, 7 C. C. R. 97.”

The claim, therefore, in the sum of Eighty-two Dollars and Forty Cents ($82.40), in favor of the Medusa Portland Cement Company, 1002 Engineers Building, Cleveland, Ohio, will be allowed and recommendation made that an appropriation be made for that amount.


text:
    (No. 2400
    Donalda Elizabeth Morrison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Donalda Elizabeth Morrison, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Six Hundred Fifteen and 34/100 Dollars ($615.34) for injuries sustained by her on March 11, 1934. The complaint avers that on that date she was employed by the State of Illinois as Director of the Health Service for the State Teachers’ College at DeKalb, Illinois; that she was enroute from performing duties as Director of the Health Service to the performance of duties as Director of the Dining Boom Service, and was going from her clinic in the administration building to the college dormitory; that as she walked down the west stairway on the second floor of the administration building, a portion of the marble slab on the top step became loose from its position by her stepping upon same, causing her to fall eight or ten steps, thereby injuring her spine and causing her pain and suffering from March 11, 1934, to April 26, 1934 — and causing her to expend for medical, hospital and nursing fees a total of Six Hundred Fifteen and 34/100 Dollars ($615.34).

Claimant’s wages were One Hundred Eighty Dollars ($180.00) per month for eleven months per year. Her duties listed in detail in her complaint were, in general, to organize and supervise the physical condition of Freshmen students, to maintain a clinic for such purpose and in addition to her supervisory duties as a nurse, to examine and supervise the preparation of foods for the students.

Under an amendment to her complaint, claimant represents that the buildings owned and controlled by the State at DeKalb, known as the Northern Illinois State Teachers’ College, include a three-story brick building, known as the administration building; a four-story brick building with elevators and fire escapes, known as Williston Hall and several other buildings; all heated by a central steam heating plant located in the administration building; that certain statutes and ordinances in existence at the time of the accident required the maintenance of fire escapes in a portion of these buildings and also specified certain provisions in regard to the construction thereof.

The only question involved is whether plaintiff’s claim comes within the provisions of the Workmen’s Compensation Act.

Under the facts stated and from a consideration of such facts and the cases and statutes cited, plaintiff is apparently entitled to an award and same is recommended in the sum of Six Hundred Fifteen and 34/100 Dollars ($615.34).


text:
    (No. 2450
    Ralph R. Pate, a Minor, by Ralph R. Pate, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Ralph R. Pate, a Minor by Ralph R. Pate, His Next Friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Ralph R. Pate, a member of the Howitzer Co. 130th Inf., I. N. G., was in the military bus-fire accident that occurred near Pana, Ill., on July 26, 1933. (See Case vs. State, C. of C. No. 2469.)

Private Pate was a school boy at the time of the accident; his only employment being such odd work as he could obtain during vacation periods. At the time of the hearing upon this claim Ralph R. Pate, Jr., was absent, and his father and next friend testified that six weeks after the accident his son joined the U. S. Marines; that during the time between the accident and September 1st, he suffered from burns on his left leg below the knee and burns and cuts to his hands; also that his ears and eyelashes had received some burns.

Apparently Private Pate suffered no permanent disabilities or he would not have been accepted for service in the Marines. Under the testimony, the authority of the Military Code, and following the rule adopted in certain similar cases, an allowance on the basis of $7.50 per week for six weeks, or $45.00, seems merited. An award is therefore made in favor of Ralph R. Pate, Sr., for the use of Ralph R. Pate, Jr., in the sum of Forty-five Dollars ($45.00).


text:
    (No. 2310
    Cornelius Reardon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Cornelius Reardon, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff herein has filed his claim for eighty-one (81) days legal services, in the amount of Four Thousand Fifty Dollars, ($4,050.00) — and the following expenses: Telephone Tolls, Ten Dollars ($10.00); Witness Fees to George Arundale, Twenty Dollars ($20.00); for services of Louis Johnson and Clarence Johnson in setting stakes for right-of-way, Fifteen Dollars ($15.00) each, making a total claim of Four Thousand One Hundred Ten Dollars ($4,110.00). The claim grows out of the removal of an old bridge across the Illinois River at Morris, Illinois, and the construction of a new bridge near that point, on State Route No. 47.

When the State was about ready to advertise for bids for the construction work, an injunction was granted by the Circuit Court of Grundy County, enjoining the Highway Department from letting a contract for the bridge in question. On January 21,1933, a number of the business and professional men of the City of Morris attended a meeting of their local Chamber of Commerce for the purpose of working out plans to obtain .a speedy construction of the new bridge. Plaintiff, on January 23, 1933, wrote a letter to the Attorney General, informing’ him of the meeting and the desires of the people of the community, as expressed at such meeting. Thereafter a number of communications were exchanged between plaintiff and the Attorney General’s office, and plaintiff apparently took an active part, both in outside efforts and court procedure, to obtain a dissolution of the injunction, and to expedite the plans for the construction of the bridge in question.

In his complaint, plaintiff seeks an award for services in connection with said injunction suit and various condemnation suits that followed, on the theory of an original employment as an attorney by the Attorney General, based upon the letters and telegram received by plaintiff from the Attorney General. In his written brief and argument, plaintiff states that:

“Regardless of whether or not the correspondence between claimant and the office of the Attorney General amounted to a contract of employment, the State of Illinois, through the office of the Attorney General and through the Department of Highways, has received the benefit of my labor and expenditures.”

In claimant’s Exhibit “I” appears a letter from him to the Attorney General, dated January 18, 1933, as follows:

“I believe you will realize the importance of instituting condemnation proceedings through your office at a very early date, and if I can be of any further help to you locally, I am at your service.”

In a letter dated January 23, 1933, claimant wrote as follows:

“A committee was appointed for the purpose of extending cooperation on the part of those assembled with the Highway Department and your office, but with no inclination on our part to dictate a course of procedure.” * * *
“I am somewhat reluctant to press this matter to your attention at this time but the seriousness of the situation makes me feel justified in what I am doing.”

In a letter from claimant to the Attorney General on February 11, 1933, appears the following:

“The writer was chosen as eljairman of a committee to try to get some action on this matter and I am approached daily by some of those business men inquiring what progress is being made. * * *
“I trust, therefore, that you will pardon me for my persistency in this matter and I again offer my services to represent you in court in an effort to have the pending injunction suit dismissed which seems logically the first move to be made.” * * *

The Attorney General replied to this letter under date of February 18, 1933, as follows:

“I appreciate your offer of services and should it be necessary I will be pleased to avail myself of your very kind offer.”

From the examination of the record, there can be no doubt but that plaintiff rendered valuable service in helping end the difficulties surrounding the construction of the bridge in question, but it is also apparent that he entered into active participation in the matter as a local citizen of the community of Morris, just as did the other citizens who participated in the meeting of the Chamber of Commerce, about which plaintiff wrote to the Attorney General. The Attorney General’s office apparently accepted plaintiff’s proffer of local aid and cooperation in the spirit in which it was apparently offered, and every act taken by claimant was apparently in behalf of the citizens of Morris.

The Attorney General denies that claimant was ever employed by his office as an attorney for the State and the record fails to support claimant’s contention that he was so employed. Neither can any award be granted on the theory of an “Implied Contract.” Plaintiff was apparently acting for the community in which he lived and in the interest of himself and his neighbors.

The claim therefore is hereby denied.


author: Mb. Justice Yantis

text:
    (No. 2383
    Laura Redding, Adm’rx., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    James M. Barnes and W. H. Absher, for claimant:
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Charles 0. Bedding was employed by the State of Illinois on and prior to the 26th day of November, A. D. 1933, as a fireman at the Illinois State School for the Deaf at Jacksonville, Illinois. On the day stated at about 1 o’clock in the morning he was engaged in firing the boilers used in heating and lighting the school, and while so doing suffered a hernia attack. The record shows that while engaged in firing the boiler he was suddenly seized with severe pain in the right lower part of his abdomen; that he was unable to stand and was immediately taken to the hospital. In a consultation between the State physician and other doctors, it was found that the patient had a right inguinal hernia requiring immediate operation. The patient died on December 17,1933. Medical proof shows that the operation was a result of the accident and that pneumonia set in thereafter as a result of the shock and trauma of the operation.

The proof shows that the hernia was of recent origin; that its appearance was accompanied by pain; that it was immediately preceded by trauma arising out of and in the course of the employment and that the hernia did not exist prior to the injury. The deceased left surviving him — his wife, Laura Bedding of 624 South Diamond Street, Jacksonville, Illinois, and a grandchild thirteen years old, being a deceased daughter’s child, by the name of Marjorie Beerup, who had lived and been supported by deceased ever since her birth; her father’s address being unknown and no help having been given by him. Mr. and Mrs. Bedding had been married forty years, and she and the grandchild were fully dependent upon deceased for their support. The wife files this claim as administratrix of his estate.

A stipulation filed herein states that the salary of deceased was $130.00 per month, subject to a voluntary cut of ten per cent (10%); also that the hospital and medical services had been necessarily incurred in the sum of $219.62, none- of which have been paid. An amendment to the complaint further alleges that the building where deceased was employed is a brick one-story building, housing the power plant, boiler plant, boilers, coal bunkers, machinery, electric motors and dynamos.

The proof justifies an award for the death of claimant’s intestate as a result of the hernia in question. Counsel for claimant has raised the question of whether any additional amount may be legally claimed because of the thirteen year old grandchild of deceased, who lived in the home and was dependent upon him for support.

An award herein must be based under Section 7-A of the Workmen’s Compensation Act which provides that if the employee leaves any widow, child or children, whom he was under legal obligation to support at the time of his injury, then in case of death a sum is payable equal to four times the average annual earnings of the employee, but not less in any event than Two Thousand Five Hundred Dollars ($2,500.00) and not more in any event than Four Thousand Dollars ($4,000.00).

Although the grandchild of deceased resided in the latter’s home, it does not appear that she was ever legally adopted as a child by the grandfather and the court is without authority under the Workmen’s Compensation Act and proof to classify such grandchild as a child of the deceased.

We therefore find that under the provisions of the Workmen’s Compensation Act the claimant is entitled to an award of Four Thousand Dollars ($4,000.00) payable in weekly installments of Fifteen Dollars ($15.00) per week commencing on the 26th day of November, 1933. Payment by the respondent in weekly installments, however, is not practicable under existing laws and the award will therefore be commuted to an equivalent lump sum in accordance with Section 9 of the Workmen’s Compensation Act.

The amount due claimant, Laura Bedding, after commutation to an equivalent lump sum as aforesaid, is Three Thousand Eight Hundred Thirty-five and 60/100 Dollars ($3,835.60).

An award is therefore entered in favor of claimant for Three Thousand Eight Hundred Thirty-five and 60/100 Dollars ($3,835.60).


author: Me. Justice Tantis Mr. Justice Yantis

text:
    (No. 2466
    Stanley F. Russell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing granted May 14, 1935.

    Stanley F. Bussell, claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Tantis

delivered the opinion of the court:

This is apparently the second most serious claim presented by those who survived the military bus-fire that occurred about four miles northwest of Pana, Illinois, on July 26, 1933. Further reference to the details thereof are here omitted because they are fully set forth in other cases involved in the same accident, among which is that of Marlow Case vs. State, No. 2469, and Gladys Hulbert, Admx. vs. State, No. 2421.

The record herein discloses that claimant Stanley Bussell was a private in the Howitzer Co. 130 Inf. I. N. G. and on the 26th day of July, A. D. 1933, was a passenger with his comrades in the motor bus in question; that after the fire a military board considered his case. Their report and the evidence presented herein disclose that claimant suffered extensive second and third degree burns to his right thigh, left thigh from knee to hip, left arm, preventing the flexing of the fingers of the left hand, and wrist; shoulder burns and deep scars on the face with severe burns of the eyelids. The medical board estimated the permanent partial disability of fifty-five per cent (55%). Dr. H. M. Swift of Mt. Vernon, Illinois estimates the permanent disability to the left arm at seventy-five per cent (75%) and to the right hand at twenty-five per cent, (25%); also about twenty-five per cent (25%) disability to the left shoulder. Claimant’s eyes are affected with a nervous paralysis and he is unable to fully close the lids. The medical testimony is that such disability will increase with time. Claimant also has suffered about twenty per cent (20%) disability of the left leg because of burns on the thigh.

Claimant has received payments through the Adjutant General’s office and the Military Department, from July 25, 1933, to February 22, 1934, in the sum of Four Hundred Thirty Dollars ($430.00); also an emergency allowance during said time of One Hundred Eighty Dollars ($180.00). In addition thereto, this court has authorized further payments, under the provisions of the Military Code, which to this date, if they have been made, will amount to approximately Seven Hundred Ninety Dollars ($790.00). Plaintiff’s complaint recites that the further sum of One Thousand Two Hundred Fifty-eight and 40/100 Dollars, ($1,258.40) has been paid or assumed by the State of Illinois for medical, nursing and hospital fees. A further award is asked by claimant under the provisions of the Military and Naval Code, because of the injuries suffered by him.

Claimant is twenty-nine years of age; is married and' resides with his wife and two children, one seven years of age and the other eight years of age. He had been a member of the Militia Company for three years prior to the accident. Prior to that time he had conducted a five-acre truck farm for a living and has been unable to do so since that time because of his physical condition. He is unable to close the left hand and testifies that he has no grip in the right hand. Prior to his truck farming he worked for four ye’ars as an attendant at the Illinois State Hospital at Dixon, Illinois.

This case, as was stated in the Opinion of the Marlow Case claim, appeals most strongly to the sympathy of the court. In the absence of any better rules to guide us in determining a proper and just award to be made under the authority granted in Section II, Article XVI of the Military and Naval Code of Illinois, the provisioiis of the Workmen’s Compensation Act afford the most liberal guide for our determination. In making our award we do not take into account the. considerable sum of One Thousand Two Hundred Fifty-eight and 40/100 Dollars ($1,258.40) paid by the State for medical and hospital attention, or the advancement made through the Adjutant General’s office of approximately One Thousand Four Hundred Dollars, ($1,400.00).

Claimant’s compensation if figured under Section 7 of the Workmen’s Compensation Act would amount to Two Thousand Five Hundred Dollars ($2,500.00), with an increase to Three Thousand One Hundred Dollars ($3,100.00) because of two children under the age of sixteen years. The percentage of permanent disability indicated by the Medical Board, i. e., fifty-five per cent (55%) of the total death benefit, would indicate a loss of One Thousand Seven Hundred Fifteen Dollars ($1,715.00).

Because of the serious and permanent disability disclosed by the evidence and under the authority of the Military Code, an award is herein made in the sum of Five Thousand Five Hundred Dollars, ($5,500.00); and it is further ordered that payments heretofore authorized to be made through the Adjutant General’s office shall cease upon the issuance of a State warrant in payment of said award.

Supplement Oedee on Eehearinu.

Mr. Justice Yantis

delivered the opinion of the court:

This matter again coming before the court upon the application of claimant by E. G. Johnston, Capt. of the Mt. Vernon Howitzer Co., 130th Ill. Inf. for the allowance of further hospitalization to relieve claimant of partial effects from the injuries complained of, and the court being further advised in the premises and it appearing that said claimant, Stanley F. Russell, is still in need of medical or surgical treatment, which it is represented will relieve him to some extent from the injuries and disfigurements, under which he now suffers, and that it has been recommended by a Military Medical Board which examined claimant that he be sent to Dr. Blair at St. Louis, Missouri, for plastic surgery.

It is Therefore Hereby Ordered that this cause remain upon the docket of this court for the further allowance of such sums, if any, as may be properly allowable for surgical services and hospitalization rendered claimant hereafter in obtaining further relief from the effects of said accidental injuries.

It is Further Ordered, that the award heretofore made in favor of Stanley F. Russell in the sum of Fifty-five Hundred Dollars ($5500.00) shall be paid to the Adjutant General of the State of Illinois for the use of said Stanley F. Russell and his family; and the warrant shall issue accordingly; said award to be disbursed by the Adjutant General as follows: One Thousand Dollars ($1,000.00) to be paid to said Stanley F. Russell upon receipt of the warrant by the Adjutant General; the balance remaining, i. e., Four Thousand Five Hundred Dollars ($4,500.00) shall be paid by the Adjutant General to said Stanley F. Russell as follows, to-wit: At the rate of One Hundred Dollars ($100.00) per month until the further order of this court.

The court hereby retains jurisdiction of this cause for the purpose of making such other and further orders herein as the facts may hereinafter justify.


text:
    (No. 2307
    Linda Schenk, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Gael A. Swenson, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The claimant, Linda Schenk, is the surviving widow of Henry Schenk; the latter being employed as a carpenter and sub-foreman in the Maintenance Division at Camp Grant, Illinois; his employment usually lasting from July to October. His wages were Eight Dollars ($8.00) per day. He died on the 15th day of September, 1933, and plaintiff claims that his death was due to injuries resulting in an accident arising out of and in the course of his employment on the 22nd day of July, A. D. 1933. The proof fails to support the claim. A stipulation as to the testimony of Dr. Charles L. Leonard states that the latter attended Schenk in his illness; that the cause of death of said Henry Schenk was “acute decompensation of the heart due to long standing hypertension.” Plaintiff testified that from the 18th to the 21st of July, 1933, her husband went to work each day but that he was “weak and all in.” The question at issue is as to whether or not Henry Schenk suffered an accidental injury which arose out of and in the course of his employment. There is an entire absence of any evidence in the record as to any accidental injury having occurred.

The testimony of Dr. Bourland is that from examinations made by bim this employee had been suffering from Arteriosclerosis over a period of more than a year prior to August 29, 1933, and that his heart condition at the latter date did not indicate anything in the nature of an acute strain or injury having occurred, but that the examination disclosed an extensive disease of the heart and blood vessels with no evidence of traumatism, which would ordinarily show in case of an injury.

The theory of plaintiff is apparently that her husband engaged in lifting and in heavy work which put an additional strain upon his heart and was a contributory factor in his death. The evidence does not support this.

A fellow-employee, John Volla, testified that he saw Henry Schenk and five or six other men lifting platforms on the 18th day of July and that evening he called on Schenk at his home and the latter was complaining of his side near the heart.

C. B. Knodle testified to seeing men working at Camp Grant on the 13th and 14th of July putting up tents “and noticed Henry working with those men.” Boy W. Wilson, a fellow-employee, testified that “Schenk complained of his stomach. ’ ’ This witness further testified that he was a truck driver and helped the men in loading the tent platforms and that Schenk “told me where to put them and which ones to take out”; further, “that he did not see Schenk lifting platforms at any time,” but that “he showed me how to do the work — he told me he had trouble with his stomach.” This witness further testified that the loading of the platforms was handled by seven or eight men and that the platforms would weigh about 500 pounds.

It appears from the testimony of Schenk’s foreman, Dan Sullivan, that Schenk had stored the tent supplies in previous years and knew where they were and that the foreman instructed Schenk to keep the blue prints, and not to do anything but just show the men where the material was to go. The testimony in general and the evidence of the doctors disclose that the death of Henry Schenk was due to heart trouble of long standing and there is no proof by which an award under the Workmen’s Compensation Act can be justified. The claim is therefore dismissed.


author: Me. Justice Yantis

text:
    (No. 2463
    Charles J. Stevenson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Chaeles J. Stevenson, claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Charles J. Stevenson was a member of the Howitzer Co. 130th Inf., I. N. G., and was in the military bus-fire accident that occurred near Pana, Illinois, on July 26,1933. (See Case vs. State, C. of C. No. 2469.)

Claimant received no injuries in the accident. His regular business at the time of the accident was operating a radio service shop. Claimant was not working for wages but testified that during the three days he worked at the armory between the fire and the time he left for Camp Grant he lost the benefit of sales and service charges to the amount of Twenty-five Dollars ($25.00). No allowance can be made for probable profits, but claimant should be compensated for the three days spent in the service of the State between the time of the bus-fire and leaving for Camp Grant. Ordinarily he would receive regular military pay but we believe that because of the circumstances, it should be increased to the equivalent amounts under the Compensation Act, and an award is therefore made in claimant’s favor in the sum of Ten Dollars ($10.00).


text:
    (No. 2464
    Floyd Stockton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Floyd Stockton, claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Floyd Stockton was a corporal in the Howitzer Co. 130th Inf., I. N. G., and was in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933. (See Case vs. State, C. of C. No. 2469.)

Claimant testified herein that his occupation prior to the accident was that of a barber; that as a result of the accident he could not work at his trade for about six weeks, because of stiffness in his thumb and finger. He further testified that such condition still interferes in his speed as a barber. Claimant also testified that because of such slowness he now averages in earnings about Seven or Eight Dollars per week less than he formerly earned; his previous earnings having averaged around Thirty-five Dollars ($35.00) per week.

A Military Medical Board which convened on August 8, 1934, made a physical examination of Corporal Stockton and found that he had no visible scars and no disability.

Under the authority granted the court under the Military Code to adjust the claim as the merits of same seem to demand, an allowance in compensation of the time lost by claimant will be made and an award is hereby entered in his favor in the sum of Ninety Dollars ($90.00).


author: Mb. Justice Linscott

text:
    (No. 1894
    William J. Swift, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

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

delivered the opinion of the court:

The declaration in this case charges that on the 13th day of August, 1931, the claimant was injured by reason of an accident arising out of and the course of his employment. The claim was filed on April 19, 1932. The claim set forth is in accordance with the regular forms used by the Industrial Commission of the State of Illinois, and alleges that William J. Swift was a major in the Illinois National Guard and that he tripped on a sapling while at Camp McCoy, Wisconsin, and requests that he be allowed the sum of $275.00 on account of medical care and attendance; $15.00 per week for ten weeks temporary total disability; $15.00 per week for 190 weeks loss or loss of use of leg under Paragraph (e) of Section 8.

This case is pending upon a motion to dismiss.

Major Swift was the senior Medical Officer of his outfit, and over his own signature in his annual physical report he stated that he had received a fracture of the left tibia in 1931 and had a complete recovery.

The rules of this court require that the declaration show whether or not the claim has been presented to any department, etc., and, if so, the action, if any, taken thereon. There is no allegation in the declaration showing that the claimant complied with this rule.

The Military Code of this State provides for adequate relief to officers and enlisted men injured in line of duty.

This claim is made on the theory that the Workmen’s Compensation Act applies. Claimant is in error in this. An exception is made in the case of an official of the State. We hold that Major Swift was an official within Section 5 of the Compensation Act.

The motion to dismiss will, therefore, be sustained. Case dismissed.


text:
    (No. 2458
    Timmie D. Tolbert, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Timmie D. Tolbert, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

See Case vs. State, C. of C. No. 2469.

Timmie D. Tolbert, a member of the Howitzer Co. of the 130th Inf., I. N. G., injured in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933, testifies herein that he received a scar on his left leg and that both arms were skinned and his hair was scorched when he jumped out the window of the bus to escape the fire. A Military Medical Board convened on August 8,1934, and certified that there is no permanent disability or disfigurement except a small superficial scar on the left thigh. Medical fees have been paid or assumed by the State in the sum of Three Dollars ($3.00).

Claimant continued to draw wages after the accident, and agrees with the medical board’s finding that he suffered no permanent disability.

Upon the evidence herein and under authority of the Military and Naval Code a nominal allowance seems justified and an award is therefore made in the sum of Ten Dollars ($10.00).


text:
    (No. 2445
    Cecil Trout, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied March 14, 1935.

    Cecil Trout, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Cecil Trout, a member of the Howitzer Co. 130th Inf., I. N. Gr., was in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933.

Plaintiff in his claim asks reimbursement for loss of employment for four days. A Military Medical Board examined claimant on August 8, 1934, while at Camp Grant and found that there were no signs of disability of any kind. In his testimony Private Trout stated he agreed with this report.

Two days intervened between the bus-fire accident and the time Private Trout went to Camp Grant. He testified that he was able to perform all of his regular duties. Apparently he did not lose any wages and was fortunate in apparently not receiving any serious injuries. Under the conditions of the record there is apparently no basis for making any award and no recommendation for an award is therefore made. Claim dismissed.


text:
    (No. 2465
    Harry B. Warner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Harry B. Warner, claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Harry B. Warner, a member of the Howitzer Co. 130th Inf., I. N. G., was in the military bus-fire accident which occurred near Pana, Illinois, on July 26, 1933. (See Case vs. State, C. of C. No. 2469.)

Claimant received burns on Ms hands and elbow and his left leg was injured and he testified that his back was sprained; also that after he returned from Camp Grant, where he went following the accident, there were frequent times when he was unable to perform his farm duties because of pains in his back and that he got a boy to work in his place for two weeks after he returned home.

A Military Medical Board at Camp Grant on August 8, 1934, found that claimant had a small scar on his left elbow, also on the third and fourth fingers and thumb of the left hand; a scar on the thumb of the right hand; that none of them caused any disability or disfigurement; further, that there was no evidence of any injury to the back or disability resulting from the accident. Because of the time lost an award of Thirty Dollars ($30.00) in favor of the claimant is hereby made, under authority of the Military Code.


text:
    (No. 2449
    John W. Yeager, a Minor by Adolph Yeager, His Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    John W. Yeager, a Minor by Adolph Yeager, His Next Friend, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

John W. Yeager, a member of the Howitzer Co. 130th Inf., I. N. G., was in the military bus-fire accident that occurred near Pana, Ill., on July 26, 1933. (See Case vs. State, C. of C. No. 2469.)

A Military Medical Board made a physical examination, of claimant on August 8,1934, at Camp Grant, and found that there is no permanent disability or evidence of scars. Claimant in his testimony agreed with this report but stated that he received temporary injuries to his right elbow and right hand; that he was employed at Coin’s Swimming Pool near Mt. Vernon, Illinois, and that after he returned from Camp Grant he was unable to perform some of the duties of his employment and that such partial disability extended over a period of six weeks. His wages, according to his claim, were $25.00 per week. What percentage of his labors he was unable to perform or what actual partial loss of wages he sustained is not fully disclosed, but under all the facts shown in the record, an allowance under the provisions of the Workmen’s Compensation Act at $7.50 per week seems merited and an award is therefore allowed in favor of claimant in the sum of Forty-five Dollars, under authority of the Military Code.


text:
    (No. 2470
    Eugene Young, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

      Rehearing denied May 14, 1935.

    Eugene Young, pro se.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Eugene Young was a member of the Howitzer Co. 130th Inf., I. N. G., and was in the military bus-fire accident that occurred near Pana, Illinois, on July 26, 1933. (See Case vs. State, C. of C. 2469.)

Examination of claimant by a Military Medical Board on July 26,1933, disclosed a bruise on his left knee with a finding that probably it would require treatment for two weeks. The report of the Military Medical Board at Camp Grant, on August 8, 1934, shows no permanent disability. In the claim which plaintiff has filed herein no specific damages are alleged, but he asks such award as the merits of his claim may demand. Under the authority of the Military Code and on the basis of the military board’s reports, a minimum award for one week’s disability at $7.50 is allowed.


text:
    (No. 1832
    John Walen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Isaac 0. Goldstine, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this case charges that on the 11th day of August, 1931, he was the owner of an automobile and driving the same over a road under the jurisdiction and control of the State of Illinois, in Cook County, known as Archer Road, at about 11:30 p. m.; that the State was repairing a part of this road and that it had excavated a large portion to a depth of approximately one and one-half feet; and at the end of a day’s work, the State failed to barricade the opening and to place lighted lanterns at or near the excavation, and while the claimant was proceeding in the exercise of due care and caution for his own safety and the safety of others, he was unable to see or ascertain the condition of the highway at the point of the repairs, and as the result of said excavation being left unguarded and unlighted he ran his automobile into the excavation and the car turned and fell into the opening; that on the 24th day of August, he gave notice to the Highway Department.

It was further alleged that the automobile was greatly damaged and broken, and the claimant was deprived of the use of the automobile for a long period of time and suffered damages in the sum of Three Hundred Dollars ($300.00).

Claimant filed a Bill of Particulars showing the cost of the repairs of Two Hundred Fifty-one Dollars and Forty Cents ($251.40).

Claimant testified that on the night in question, he was driving on the road about thirty-five miles per hour, at about 11:30 o’clock; that he hit a hole and turned over. On cross, examination he stated that there was a detour sign up ahead, but that the part he was on was not blocked off. Claimant was not sure whether the accident happened on the 4th day of August or on the 11th. He further testified that he had been over the road three or four days before the accident and that it was under repair at that time.

The State demurred to this petition. The watchman for the State, E. W. Lundin, a conductor for the Chicago, Joliet Railway Company, who passed over this road every fifteen minutes, A. P. Doenitz and D. Kinnamon, 5332 S. Mobile Avenue, Chicago, all claimed they passed once sometime before the accident and said there were lights at the proper places. The watchman claimed that the claimant knocked over two of the three lights that had been placed there.

In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions, it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a Statute creating such liability. Such has been the settled decision of this court for many years.
The General Assembly has never enacted a law malting the State liable for damages caused by the negligent construction or maintenance of a public road and this court has no power to make an award for such damages in the absence of such a Statute.

Minear vs. State Board of Agriculture, 259 Ill. 549;

Bucholz vs. State, 7 C. C. R. 243; Derby vs. State, 7 C. C. R. 145; Chumbler, Admrx. vs. State, 6 C. C. R. 138.

It appearing that there was no wilful or wanton negligence on behalf of the State, the claim, therefore, will be denied. Case dismissed.


text:
    (No. 2143
    C. D. Wood, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1935.

    Abthub Roe, for claimant.
    Otto Kebneb, . Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The claimant, C. D. Wood, filed his claim in this court on the 5th day of April, 1933, and alleges that he is a resident of Fayette County, Illinois, and that sometime prior to the year 1930 he was employed as a special laborer in assisting or superintending the putting in of drainage tile at the Illinois State Farm at Vandalia, and that on or about August 1,1930, while he was so working as a special laborer in and about putting in drainage tile and working along the tile ditch one Kenneth Peterson, an inmate of the Vandalia institution, was working in the ditch and assisting in placing tile therein, and while the claimant was walking along the edge of the ditch he stooped over looking down to inspect the work and some of the dirt that had been thrown out of the ditch rolled back on Peterson and Peterson became suddenly frightened and threw a shovel which he had in his hands over his shoulder and struck the claimant in the eye with the shovel, which caused the eye to become inflamed and very sore.

The claimant reported the accident to C. J. Metzger, who. at the time was superintendent of the State farm, and within a few days thereafter Dr. Mark Greer, who was the physician and surgeon for the State farm, treated his eye, but the eye became worse and that on or about the first day of January, 1931, he completely lost the use of that eye and has no vision in said eye. The petitioner alleges further that he reported this accident to Metzger, the then superintendent of the farm, and asked him in regard to filing claim or being paid for the loss of said eye; that the said Metzger told him that if he filed a claim or made any application for compensation or damages he would lose his job. It is also averred that later on the said Metzger, so the claimant is informed and believes, did take up the matter with the Superintendent of Prisons and kept promising claimant that he would see about it, and the said Metzger failed and neglected to do so, and this it is averred is the reason why there is a delay in filing the petition, and damages in the sum of Three Thousand Dollars ($3,000.00) is claimed.

An amendment of the declaration was filed on November 2, 1933, and alleges that the cause of the accident was that Peterson, the man in the ditch, ‘ ‘ threw his hands over his head and struck your petitioner in the eye with his thumb nail,” and also amends the declaration so as to read that the vision of the eye was completely lost in January, 1932.

The evidence shows that the claimant* was an employee of the State on June 9, 1930, to February 16, 1931; that he went back to work on September 29, 1931, and worked until the last day of February, 1933. Claimant- was not quite sure what date he received the injury but thinks that it was about the first day of August, 1930; that at that time they were laying an eighteen inch tile in a nine foot ditch; that the ditch had been caving in and as the claimant was walking along the ditch he came up by some men and dropped down on his knee on the dirt that was thrown out and looked down and as he dropped down he knocked a clod down and it fell and hit this man along on the hip and when it did he jumped and threw up his arms and hit the claimant in the left eye with his thumb nail on his left hand. Claimant testified that he went to the emergency hospital and an inmate there in charge put some medicine in his eye, and he “made inquiry for an accident blank” which the institution did not have. The eye caused considerable pain and the next morning he went to the doctor of the institution and he put some medicine in the-eye and treated it a couple or three times.

Claimant further testified that when he found that the-“eye was out” he went to Metzger and told him to do something for him and was sent to Dr. Greer and Dr. Greer recommended that he be sent to a specialist. Nothing was done and the claimant went back to Dr. Greer. He states that he went back to the office a little later and saw a letter lying on Dr. Greer’s desk concerning his eye from the Board of Claims, which read: “We will settle any reasonable amount of claim for the eye.” Claimant also testified that Dr. Greer did not say anything to him about the letter; that claimant went to the doctor and kept dragging it along, and in the course of six months he saw Dr. Greer four times, and finally he told Mr. Metzger that if nothing was done for him, he would file a claim, and Metzger said: “If you file a claim you have got to quit your job.” That was in December, 1932.

Claimant also testified that he saw a letter apparently from Colonel Whipp, telling Mr. Metzger “to do something for that man” concerning claimant’s eye. That was sometime in December, 1932. Claimant also testified that a few days after that he was sent to Dr. Greer by Metzger.

Claimant testified that he was being paid $125.00 per month and maintenance, which included board, room and washing. On cross examination he testified that he was a married man and had a wife and one child; that they had been separated about three years; that while he was employed by the State, he was giving his wife and child $40.00 per month.

Dr. Greer recommended that the claimant be sent to an eye specialist for treatment and the doctor confirmed the testimony of the claimant that the claimant had lost the vision of the left eye.

Under the Workmen’s Compensation Act it is provided that the provisions of this Act shall apply automatically and without election to the State * * * and to all employers and all of their employees engaged in any department of the following enterprises or businesses which are declared to be extra-hazardous. (Then follows a list of the various enterprises or businesses which are declared by law to be extra-hazardous.) Sub-paragraph 8 of this section provides: * * * Provided, nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tilling of the soil, or stock raising, or to those who rent, demise or lease land for any such purposes, or to any one in their employ or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. ’ ’

Item 6 of Section 6 of the Court of Claims Act authorizes the Court of Claims to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the “Workmen’s Compensation Act.”

The Supreme Court of this State in the case of Noverio vs. Industrial Commission, 348 Illinois, 137, held:

An employer whose business consists of laying tile on farms is not liable for an injury received by one of his employees as the Compensation Act expressly exempts • by its provisions any work done on a farm or country place. No work could be more fundamentally a part of farming than drainage to put the soil in shape for cultivation. That it was being done by one not engaged in general farming himself is immaterial.

With this view of the law, it will be unnecessary to discuss the facts of this case with regard to Section 24 of the Compensation Act, even though we may be perplexed as to how a man standing in a ditch nine feet deep could strike another man on his knees on the top of the ditch with his thumb nail.

We must decide these cases in accordance with the provisions of the Workmen’s Compensation Act. The claimant clearly comes within the provisions of that part of the Act exempting farm labor. The claim for compensation must, therefore, be denied. Case dismissed.


text:
    (No. 2527
    The Arundel Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Knapp, Tucker & Thomas, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff is a Maryland corporation, duly authorized to do business in the State of Illinois. On or about June 12,1933, it received an annual franchise tax statement from the Secretary of State of Illinois in the sum of Two Hundred Dollars ($200.00), which it paid on or about June 22, 1933. The complaint avers that the tax was assessed under a Statute then in force and that the Statute was thereafter declared to be unconstitutional and void by the Supreme Court of the State of Illinois; that notwithstanding the rule of law which prevents the recovery of money paid under a mistake of law, plaintiff now seeks a refund of said sum of Two Hundred Dollars ($200.00) under a general claim of equity and good conscience.

Under a stipulation of facts it is agreed that the minimum franchise tax on foreign corporations as fixed by Section 107 of the General Corporation Act of Illinois, under which the said tax of Two Hundred Dollars ($200.00) was assessed, was declared unconstitutional.

While the correct amount which claimant would have been compelled to pay was only Seventy-seven and 49/100 Dollars ($77.49), if it had availed itself of its statutory rights, this court is not in a position to allow an award, when plaintiff has failed to exercise such rights. This claim falls clearly within the rule as to refunds under unconstitutional Statutes. The same section involved here, i. e., 107 of the General Corporation Act was under consideration in the case of Marx and Haas vs. State, 7 C. C. R. 140 in which an award was denied.

“It is well settled in this State that a tax voluntarily paid cannot be recovered back in the absence of a Statute providing for such a recovery. It is also well settled that the fact that the Statute under which the tax was levied and collected was unconstitutional will not authorize an action for its recovery by the party paying it. (Oppenheimer & Co. vs. State, 6 Ct. Cl. 465; Board of Education vs. Toennigs, 297 Ill. 469.) The fact that the Secretary of State had no legal right to demand the tax and claimant was under no legal obligation to pay it is of no consequence unless the payment was compulsory in the sense of depriving claimant of its free will. (Ill. Glass Co. vs. Chicago Tel. Co., 234 Ill. 535; School of Domestic Arts vs. Harding, 331 Ill. 330; Western Electric Co. vs. State, 6 Ct. Cl. 414.)”

Wm. Wrigley, Jr. Co. vs. State, 7 C. C. R. 153.

Yates vs. Royal Ins. Co., 200 Ill. 202.

Under the existing authority the claim is denied.

Case dismissed.


text:
    (No. 2553
    J. E. Bangs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

      Rehearing denied September 11, 1935.

    Gbobge 0. Dixon, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Plaintiff seeks an award for the loss of a watch, fountain pen and various articles of clothing of the alleged value of $139.70, that are claimed, on information and belief, to have been stolen by escaped inmates of the Dixon State Hospital.

The claim is based upon the fact that the State of Illinois was on the day in question, i. e., February 14, 1934, operating a State colony for the care and treatment of those suffering from epilepsy, etc.; that such institution is under the direction of the Department of Public Welfare of the State of Illinois; that on the said day several inmates or patients escaped from the institution and that a theft of the chattels in question occurred from the premises of plaintiff, at the hands of some persons unknown to petitioner.

The Attorney General has filed a motion to dismiss said claim and contends that, even though the complaint alleged and the facts proved that the theft in question was perpetrated by inmates of said institution who had escaped therefrom, there would still be no basis upon which this court could legally grant an award against the State.

The Dixon State Colony or Hospital, is one of the State charitable institutions, and in maintaining it, the State is exercising its governmental functions. It has been held repeatedly that in the conduct of its charitable and penal institutions, neither the State nor any of its agencies are liable for damages caused by the acts of those in charge of or employed in such institutions, even though such employees may have been guilty of negligence in the manner complained of. The institution is maintained solely for the benefit of the public and the agency maintaining it incurs no liability for the negligence of its officers, servants or employees.

Johnston vs. City of Chicago, 258 Ill. 494;

Pelka vs. State, 6 C. of C. 390.

Counsel for plaintiff has argued that the theft in question occurred because of the negligence of the State employees to sufficiently guard and restrain the activities of the inmates of the Dixon Colony; that as a result of insufficient enclosures and control, the inmates escaped and the thefts occurred. If counsel’s theory were approved, the State would be responsible for every theft or crime committed by an inmate of any institution who escaped therefrom. There is no provision of law upon which this court could base such award and the decisions, as above suggested, are contrary thereto.

The motion by respondent to dismiss the complaint is allowed. Case dismissed.


author: Mr. Chief Justice Holderich

text:
    (No. 2521
    Alvina Barth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Frederick L. Habbegger and Springer & Springer, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holderich

delivered the opinion of the court:

Prior to and on the 21st day of July, A. D. 1934, one Louis Barth was employed by the respondent in the maintenance and repair of S. B. I. Route No. 11, in Madison County, Illinois. On the last mentioned date, while working on said road, he was struck by an automobile and thereby sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same date. Said decedent left him surviving the claimant, his widow, but left no child or children.

Notice of the accident was given and claim for compensation made according to law. Said employee had been in the service of the respondent less than a year, and the average annual earnings of persons in the same class in the same employment and location was Nine Hundred Sixty Dollars ($960.00), per year.

Under the provisions of Section 7-a of the Workmen’s Compensation Act, the claimant, as widow of said decedent, is entitled to compensation in the total amount of Thirty-eight Hundred Forty Dollars ($3,840.00), which compensation is payable in weekly installments of Nine Dollars and Twenty-three Cents ($9.23), commencing on July 22, 1934. Payment by the respondent in weekly installments, however, is not practicable under existing laws, and it is to the best interests of all parties concerned that the compensation to be paid as aforesaid be commuted to an equivalent lump sum in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

As we compute it, the total amount of compensation to be paid as aforesaid, after commutation to an equivalent lump sum, is Thirty-five Hnudred Thirty-two Dollars and Forty-eight Cents ($3,532.48). o

It is Therefore Ordered that an award be and the same is hereby entered in favor of the claimant, Alvina Barth, for the sum of Thirty-five Hundred Thirty-two Dollars and Forty-eights Cents ($3,532.48).


author: Mr. Chief Justice Hollerich

text:
    (No. 2150
    Dealers' Transport Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Bernard Yedor, for claimant.
    Otto Kernbr, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

From the stipulation of facts herein it appears that prior to and on the 1st day of January, A. D. 1931, the claimant was engaged in the business of transporting motor vehicles by truck from factory to dealer; that its 'tractors and semitrailers were sixty (60) feet in length; that on said date the law permitted the use of motor vehicles and trailers not to exceed sixty-five (65) feet in length; that the Legislature by an enactment adopted July 1, 1931, approved July 8, 1931, amended Section three (3) of the Motor Vehicle Act so as to provide that the length of any single vehicle, or combination of tractor and semi-trailer shall not exceed thirty-five (35) feet; that on the 21st day of July, 1931, an injunction was issued out of the United States District Court for the Eastern District of Illinois restraining the enforcement of said amendment; that the Legislature by an enactment adopted July 8, 1931, effective January 1, 1932, amended Section nine (9) of the Motor Vehicle Act so as to provide that vehicles and tractors with one semi-trailer each, having a gross weight of more than 16,000 pounds and not more than 20,000 pounds, including the weight of the vehicles and maximum load, shall pay a license fee of One Hundred Ten Dollars ($110.00); that claimant applied for two (2) sets of license plates on April 16, 1932; two (2) sets on April 26, 1932; and two (2) sets on May 9, 1932, in all six (6) sets, and paid therefor the sum of $110.00 per set, to-wit, a total of Six Hundred Sixty Dollars ($660.00); that on July 1, 1932, the aforementioned injunction was dissolved; that upon the dissolution of such injunction, claimant withdrew its said vehicles from the highway and did not thereafter use the same; that on November 22, 1932, claimant returned the aforementioned six sets of license plates to the Secretary of State.

Claimant asks for a refund of $330.00, being that portion of the license fees paid by it for the period from July 1, 1932, to December 31, 1932, together with interest on such amount from July 1, 1932, at five per cent (5%) and bases its right to an award upon the following propositions advanced by it:

1) “The unearned portion of the money paid for a license may be recovered by the licensee, where the license has become inoperative by acts or circumstances over which he has no control and without his volition as where he is deprived of his license by a Statute or ordinance which prohibits the occupation for which the license was obtained.”
2) “Where a license fee or tax illegally or unlawfully assessed has been involuntarily paid, the illegal or unlawful excess may be recovered. License taxes are not voluntarily paid within the rule that precludes a recovery even if illegally exacted where the failure to pay is a penal offense and payment is made to avoid proceedings to enforce the penalty.”
3) “The Court of Claims has power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience discharge and pay.”

In support of its first proposition claimant has cited a large number of cases from other states, all of which are cases in which licenses were issued for the sale of intoxicating liquor, and in which the licensee’s right to operate under such license was thereafter terminated through no act or fault on his part; as the result of which he was deprived of the unearned portion of the license fee. All of such cases are readily distinguishable on the facts from the present case.

In this case the license fees in question were paid in April and May, 1932, and were for the use of the public highways of this State during the calendar year 1932 by three tractors and semi-trailers, each having a gross weight of more than 16,000 pounds and not more than 20,000 pounds.

It must be borne in mind that the licenses in question were for the operation of vehicles of certain gross weights; that the license fee was fixed by the gross weight of the vehicle and load; and that the length of the vehicle had no bearing whatsoever on the amount of the license fee or upon the issuance of the license. The length of the vehicle was ■ limited by another statutory provision, which, however, had no connection with the issuance of the license, or the license fee, such fee being based entirely upon the gross weight of the vehicle and load.

There was nothing done by the respondent after the issuance of such licenses which limited in any way the right of the claimant thereunder. Its rights were fixed and determined at the time it paid such license fees, and there was no revocation or limitation of such rights thereafter. Under such licenses claimant retained the right, at all times during the year 1932, to use the public highways for three vehicles consisting of a tractor and semi-trailer having a gross weight of more than 16,000 pounds and not more than 20,000 pounds.

Claimant seems to assume that prior to the dissolution of the injunction on July 1, 1932, it had a right to operate vehicles sixty (60) feet in length, and that such right was taken away by the dissolution of the injunction. Claimant’s rights were determined by the law adopted July 8, 1931, effective January 1, 1932; and such rights were the same prior to the dissolution of the injunction as they were thereafter. The ability of the State to enforce such law and collect the penalties provided for the violation thereof, was suspended during the pendency of the injunction proceedings, but the rights of the claimant thereunder remained the same at all times after the law became effective.

There is no analogy whatsoever between this case and the cases cited by claimant in which a license was issued to the licensee for the purpose of engaging in the liquor business within a certain territory and where the licensee was thereafter forced to discontinue his business on account of some act on the part of the licensing authorities, or an account of the fact that the territory thereafter became ‘ ‘ dry ’ ’ territory.

As to claimant’s second contention that the license fee was illegal or unlawfully assessed and has been involuntarily paid and that he is therefore entitled to recover the same, we are forced to the conclusion that the fee was neither illegal nor unlawfully assessed, nor was it involuntarily paid.

The Statute fixing the amount of the tax was adopted on July 1,1931, and became effective on January 1,1932. Claimant and others who obtained the restraining order from the District Court of the United States apparently contended in that court that the law was unconstitutional, but the action of the District Court in subsequently dissolving the injunction disposes of that contention.

On the question as to whether the tax was paid voluntarily or under compulsion or duress, claimant takes the position that the payment was made for the purpose of avoiding a penalty to which it would otherwise be subject and must therefore be considered involuntary. In support of this contention claimant has cited the following cases from Illinois, to-wit: City of Chicago vs. Klinkert, 94 Ill. App. 524; City of Chicago vs. Waukesha Brewing Co., 97 Ill. App. 553; City of Chicago vs. Northivestern Mutual Ins. Co., 218 Ill;. 40; Cook County vs. Fairbank, 222 Ill. 578.

The Klinkert case was a suit in assumpsit to recover amounts paid for a brewery license under an ordinance which was conceded to be invalid. In that case the evidence showed that the several payments were made under protest and because a police officer threatened the licensee with arrest if license fee were not paid. Under such facts the verdict of the jury finding that the payment was not voluntarily made was upheld.

The Waukesha Brewing Co. case was another suit to recover money paid for a brewery license under an ordinance which was conceded to be invalid. The evidence disclosed that the license fee was paid under a demand by police and collection officers sent out by the city to the licensee ?s place of business, and that threats were made by such officers that unless the fees demanded were paid, the licensee would be prosecuted, and its drivers arrested; that the licensee paid the sum demanded under the influence of such threats and to prevent its employees from being arrested. In that case the court in holding that the payment was involuntarily made, said:

“In this State, when a man carrying on a lawful business in a lawful manner is obliged, in order to prevent the forcible interruption of the same by governmental authority to submit to the unlawful demand of such government, whatever under such circumstances he so pays is not paid voluntarily and may be recovered in an appropriate action.”

The Mutual Insurance Company case was an action in assumpsit to recover certain water charges paid by the plaintiff under protest. In that case the plaintiff obtained title to certain property, and the City of Chicago sought to charge it with back water rates, for water supplied to former owners or tenants, which said former owners or tenants had failed to pay. The purchaser refused to pay the charges for back water rates, but was informed by the City of Chicago that unless such bills were paid, it would proceed at once to shut off the water from the premises and it did'in fact shut off the water from certain premises. Thereafter the plaintiff paid the back water rates by check enclosed in a letter stating that payment was made under protest, and for the sole reason that appellant had threatened to shut off or had shut off the supply of water from the premises. Under such state of facts the court held that the payment was made under protest and was not voluntarily made, and in the course of its opinion said:

“It is the well settled rule of this State that where one is compelled to make payment of money which the party demanding has no right to receive, in order to prevent injury to his person, business or property, such payment is, in law, made under duress and may be recovered from the party receiving it; and it makes no difference that the demand was made with full knowledge of all the facts provided it was made under duress. Appellee at the time of the payment, expressly stated that it was made under protest and to avoid trouble and damage to his property. The payment was illegally exacted and appellee had the right to recover in an action of assumpsit.”

The Fairbank case was an action in assumpsit to recover the sum of $1,250.00 docket fees paid to the clerk of the Probate Court of Cook County under protest, pursuant to a law which required the payment of docket fees based upon the size of the estate. The clerk refused to issue letters testamentary unless the plaintiff paid him, as a condition precedent to the delivery of such letters, a docket fee of $1,250.00 which had been taxed by him against said estate. The plaintiff protested in writing against the payment of the docket fee on the ground that the Statute requiring the same was unconstitutional and void, but the clerk still persisted in his refusal; whereupon plaintiff made payment thereof, and commenced proceedings to recover the same. The Supreme Court held that the Statute in question authorizing the collection of such docket fee was unconstitutional and void and quoted with approval the foregoing extract from the case of City of Chicago vs. Northwestern Mutual Insurance Co.

It is important to note that in the Klinkert case and in the Waukesha Brewing Co. case, the payments were made under ordinances which were admitted to be illegal, and that such payments were made under protest and for the purpose of avoiding a threatened arrest; that in the Northwestern Mutual Insurance Co. case payment was made under protest and to prevent a threatened and unlawful shut-off of the water supply; that in the Fairbank case payment was made under protest and for the purpose of obtaining letters of administration which it was necessary for the plaintiff to have, and which he could not obtain unless the docket fees were paid as a condition precedent thereto. Such cases are authority for the proposition that where license fees are illegally or unlawfully exacted, and payment thereof has been made under protest, such payment is considered involuntary, and may be recovered back. In order to warrant a recovery under the rule laid down in such cases, two things must coexist, first, there must be an invalid law or ordinance, or an unlawful exaction; second, payment must have been made under such circumstances to make the same involuntary.

All of such cases, however, differ materially on the facts from this case. In this case the law under which the license fees were paid was passed on July 1, 1931, and was effective January 1, 1932. Claimant paid its license fees on April 16th, April 26th and May 9, 1932. There is nothing whatsoever in the record to indicate that the amendment effective January 1, 1932, was illegal or invalid in any respect; consequently any payments made pursuant thereto cannot be said to have been illegally or unlawfully exacted. Nor is there anything in the record to show that the payments were paid involuntarily, under protest, or under threat of arrest. Hence the cases cited by claimant have no application to this case.

As to claimant’s contention that it is entitled to an award on the ground of equity and good conscience, what we have heretofore said disposes of that contention. Furthermore, this court as now constituted, has repeatedly held that we have no authority to allow an award solely on the ground of equity and good conscience, unless there would he a legal liability on the part of the State to make payment if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January, 1934, term of this court; Van DerLaan vs. State, No. 2324, decided at the October 1934, term of this court.

There being no such liability on the part of the State, award must be denied. Award denied. Claim dismissed.