text:
    (No. 2172
    The Modern Laundry Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    H. Clay Calhoun, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant paid motor license fees for the year 1932 in excess of the amount which it was legally required to pay, and asks for a refund of the amount which was paid in excess of the legal tax.

There is nothing in the complaint or in the proof which shows that the license fees in question were paid under protest, nor is it even suggested that the same were paid under duress or compulsion.

It is the well settled law of this State that a tax which is paid voluntarily and not under duress or compulsion cannot be recovered back. (S. Oppenheimer & Co. vs. State, 6 C. C. R. 465; Board of Education vs. Toennigs, 297 Ill. 469; Standard Oil Co. vs. Bollinger, 337 Ill. 353.)

It is Therefore Ordered that the claim be disallowed and the case dismissed.


source: Caselaw Access Project

author: Me. Chief Justice Holleeich

license: Public Domain

text:
    (No. 1538
    Mohawk Carpet Mills, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

      Rehearing denied May 8, 1934.

    Noah Gullett, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

On May 15, 1929 the claimant was assessed a franchise tax of One Thousand Dollars ($1,000.00). Such tax was paid to the Secretary of State on June 15, 1929, and was held by him until July_ 17, 1929, at which time it was turned over to the State Treasurer.

Claimant filed its complaint herein on September 18, 1929, and claims that it really should have been assessed the sum of Forty-six Dollars and Twenty Cents ($46.20) instead of One Thousand Dollars ($1,000.00), and asks for the return of Nine Hundred Fifty-three Dollars and Eighty Cents ($953.80), which it claims to have paid in excess of the amount actually due from it.

On account of the conclusion at which we have arrived in this matter, it is unnecessary to enter into a discussion of the question as to the correct amount of the tax which should have been paid by the claimant.

Claimant alleges that it protested against the payment of such tax, and advised the Secretary of State of its contention that such tax, and the sections of the Corporation Act providing for the assessment thereof, were unconstitutional, null and void; and alleges also that the Secretary of State advised the claimant of his contention to the contrary, and insisted that the tax be paid, and that the Secretary of State advised the claimant that if the samé were not paid, a penalty would be added thereto as required by the provisions of the then Corporation Act of this State, and, further, that he, the Secretary of State, would request the Attorney General to sue the claimant for the tax in an action of debt, in accordance with the then provisions of such Corporation Act, and that he would, also request the Attorney General to file an information in equity against the claimant and thereby enjoin it from further transacting business in this State.

Claimant avers that in order to avoid the accumulation of said penalty, and in order to be able to continue to transact its business in this State, it paid said franchise tax under protest to said Secretary of State on the 15th day of June, A. D. 1929.

The Attorney General has filed a general demurrer to ' the complaint and takes the position that the payment of the franchise tax by the claimant under the facts set forth in the complaint does not amount in law to a payment under protest, although the claimant at the time of payment stated to the Secretary of State that it protested the payment of the tax.

It is the well settled law in this State that a tax voluntarily paid cannot be recovered back in the absence of a statute providing for such recovery. In the case of S. Oppenheimer & Co. vs. State, 6 C. C. R. 465, the facts were very much the same as in this case, and this court there held that a demurrer to the declaration should be sustained.

In the case of People vs. Bandy, 239 Ill. App. 273, the court, in discussing the right to recover back a fine which had been paid upon a judgment of conviction which was thereafter held to be erroneous, on page 277 said:

“Of course, in one sense the payment of a fine is always involuntary since it would not be made if a criminal prosecution were neither instituted or threatened, but where a fine has been paid under the advice of counsel in order to settle the case or to avoid penalties for other offenses, or the trouble and expense of an appeal, the payment is said to be a voluntary one.”

In the case of Yates vs. Royal Ins. Co., 200 Ill. 202, the Supreme Court of this State held that the mere fact that the statute imposing a tax is unconstitutional, and the tax for that reason is illegal, is not sufficient to authorize an action to recover back the amount paid. In that case the court also said, page 207: and the court, after an examination of the testimony, concluded that there was no duress or compulsion as a matter of law, and that the tax was voluntarily paid and therefore could not be recovered back. The same conclusion was reached in the case of Board of Education vs. Toennigs, 279 Ill. 469; also in the case of Illinois Merchants Trust Co. vs. Harvey, 335 Ill. 284; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122; and Standard Oil Co. vs. Bollinger, 337 Ill. 353.

“If an illegal tax is, however, paid under duress or compulsion it may be recovered back. The appellee company contends that the statute under which the payment was made declared that the payment of the amount demanded thereunder as for taxes should be a condition precedent to its right to transact its business in the State; that it had established 290 agencies in the State and was engaged in transacting a large and profitable business, and that the payment sought to be recovered was exacted under threats on the part of the insurance superintendent that it would be denied the right to continue its business in the State unless the payment was made, and that it made the payment under the pressure of the situation, not voluntarily but under duress. It clearly appeared the superintendent of insurance believed the Act under which the payment was made was a valid law. Therefore the element of fraud, which might be involved if an illegal tax was collected with full knowledge that the law imposing the tax was invalid, does not enter into consideration. The question is then presented whether it appeared from the proofs the payment was made voluntarily, or under such circumstances as would constitute duress or compulsion”;—

Furthermore, under the provisions of Paragraph Thirty-five (35), Chapter 127b of Cahill’s Revised Statutes of 1929, the Secretary of State, in case of monies paid to him under protest, is required to hold the same for thirty days, and on the expiration of such period to deposit the same with the State Treasurer, unless the party making such payment shall within such period file a bill in chancery- and secure a temporary injunction restraining the making of such deposit, in which case such payment shall be held until the final order or decree of the court.

The claimant therefore had its remedy by a bill in equity but failed to use the same.

' Under the facts set forth in the complaint, and the settled law of this State, the payment to the Secretary of State by the claimant was not under duress or compulsion, but constituted a voluntary payment under the law, and the same cannot be recovered back.

The demurrer will therefore be sustained, and the case dismissed.


author: Mr. Justice Yantis

text:
    (No. 2233
    Johanna Morrisey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

      Rehearing denied September 13, 1934.

    G-eorge F. Doyle, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

In the declaration filed in this cause, claimant alleges damages arising from an automobile accident on February-25, 1933 on a public thoroughfare in the City of Chicago. Claimant alleges that while walking on the street, she was struck by an automobile driven by one James Duckham, an oil inspector of the Department of Finance of the State of Illinois. Claim is made for resultant injuries in the sum of Ten Thousand Dollars ($10,000.00), which the claimant later moves to reduce to an ad damnum of Two Thousand Dollars ($2,000.00). The declaration further recites that claimant has received the sum of One Hundred Fifty Dollars ($150.00) from the said James Duckham by reason of said injuries.

Respondent, by its counsel, moves the court to dismiss the claim on the grouilds that the declaration is substantially insufficient in Law and fails to state a proper legal cause of action against the respondent for the reason that the State is not liable for the misfeasance, malfeasance or nonfeasance of its officers or agents; it being contended by the respondent that claimant should be barred from maintaining her said action for the reason that the doctrine or rule of respondeat superior has no legal application to a sovereign state in the exercise of a governmental function. Claimant, in her objection to the motion, rests her right to an award upon the theory that regardless of any legal right, this court should grant an award upon the theory of equity and good conscience, .and for the reason, as alleged, that a failure to make an award to this claimant under the facts alleged, would be doing a social injustice. In support of her contentions, claimant quotes from and relies principally upon the case of Brawner vs. the State, 5 C. C. R. 194. The ruling in the Brawner case has not, as insisted by claimant, been consistently followed, and the court is of the opinion that it should not be. It is true there appears in the reports of this court a number of cases (some of which are cited by counsel for claimant), which hold:

“There is no question that as a matter of law, no recovery could be had upon this claim, and therefore the consideration of this claim must be directed upon the proposition of equity and good conscience.”

Hasson vs. State, 5 C. C. R. 224.

But, notwithstanding these decisions, the Law is correctly stated in the case of Tuttle vs. State, 5 C. C. R. 3, wherein it is said:

“It is, however, urged by the claimant that the doctrine of equity and good conscience should be applied. It is the opinion of this court that this rule should not be invoked in this particular case because in the first instance it does not appear to the court that the Legislature intended to have it so construed. As a matter of fact, if the Legislature intended that this court should be the medium through which the State becomes liable for this class of cases, then the Legislature should so specifically state. It is the opinion of the court that it is without the province of this court to indulge in presumptions.”

In the case of Watkins vs. the State, 6 C. C. R. 172, it is stated:

“Claimants seem to recognize the fact their claims are not legal, for they say ‘they know whatever is allowed them will be allowed out of equity and good conscience.’ The statute creating the Court of Claims gives it powers to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay. It is plain, from the language of this statute, that no claim against the State can be allowed by this court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State, he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he can not point to any law giving him the right to an award, he cannot invoke the principle of equity to secure such an award. Where there is no legal liability, equity can not create one.
(10 R. C. L. Sec. 132.)
Equity is not the court’s sense of moral right. It is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law.”

As stated by the Supreme Court of Massachusetts in construing a similar Statute in that state:

“We do not believe it was the intention of the Legislature to leave it discretionary with the Commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.”

The Watkins case just quoted was decided in 1929, subsequent to the amendment of the Court of Claims Act of 1917, and applies to the Act as now existing. The motion of the Attorney General to dismiss is allowed and cause dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 2158
    Fay V. Shumway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Hogan & Coale, for claimant.
    Otto Kernbr, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On April 19, 1933, about 6:30 o ’clock P. M,, claimant was driving west on Cook Street, a through street (Eoute 24) in the City of Springfield, Illinois. Traffic on Cook Street has the right-of-way over traffic from the north and south. As claimant was driving along Cook Street, at the intersection thereof with Eighth Street, a truck was driven south on Eighth Street and, without-stopping, passed onto the intersection and struck the car in which the claimant was riding, to wit: a Buick sedan, causing damage to the sedan in the amount of Two Hundred Thirteen Dollars and Ten- Cents ($213.10), and personal injuries to the plaintiff on account of which she was required to pay Eighty Dollars ($80.00) for doctor and hospital expenses.

The truck at the time in question was being operated by members of the Illinois National Guard at Springfield, and the claimant apparently contends that the State is liable for the damages sustained on account of the fact that the truck was being driven by a member or members of the Illinois National Guard; and also claims that she is entitled to recover as a matter of equity and good conscience.

As to the first contention, it appears that the driver of the truck at the time of the accident was driving it without permission, and in violation of existing orders, but even if the driver was acting pursuant to orders and in the course of his employment, there would still be no liability on the part of the State, as it is a well-settled rule of law that the State is not liable for the acts of its servants and agents in the performance of governmental functions. (Hinchscliff vs. State of Illinois, 2 C. C. R. 159; Derby vs. State of Illinois, 7 C. C. R. 145; Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; 25 R. C. L. p. 407, sec. 43.)

The right to recover as a matter of equity and good conscience is based upon Section 4 of Paragraph 6 of the Court of Claims Act which provides that the court shall have power “to hear and determine all claims and demands legal and equitable, liquidated and unliquidated, ex-contractu and ex-delicto, which the State as a sovereign commonwealth should in equity and good conscience discharge and pay.”

In the case of Crabtree vs. State of Illinois, 7 C. C. R. 207, this court, after a careful consideration of the question, and a review of the authorities since the time of the original creation of the Commission of Claims in 1877, held that the foregoing provision of the Court of Claims Act merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability. This court further held in that case that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, whether at law or in equity, if the State were suable; and this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; and that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

Claimant having failed to bring herself within the pro.visions of a law giving her the right to an award, It is Thebefore Ordered that the demurrer of the State be sustained. Case dismissed.


author: Mb. Justice Tantis

text:
    (No. 1773
    Levi P. Sons, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    Virgil W. Mills, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

This claim was filed May 13, 1931, for an injury to one of claimant’s great toes.

The facts are not in dispute. Claimant, while an employee of the State of Illinois on February 13, 1930, was working on the Illinois Waterway at Lockport. He was at that time fifty-nine years of age, and while putting gas in a Caterpillar Tractor Shovel, the operater of the Caterpillar pulled up the load and the machine moved forward about one foot or more over claimant’s right foot, injuring the great toe on the right foot. A portion of the first phalange was amputated by the State Physician and claimant was off duty fifty-three days. It was later found that not all of the first phalange had been amputated, and that the portion remaining had a loose uneven edge, causing pain and lameness. After an x-ray by Dr. J. T. Blakeley of Fairfield, Illinois, a further operation was performed by such doctor, removing the remainder of the first phalange. It is agreed between claimant and representatives for the State that the Workmen’s Compensation Act is applicable, and there is no dispute as to the facts. Average weekly earnings were Forty-four Dollars.

The temporary total disability having continued for fifty-three days, being seven and four-sevenths weeks at Fifteen Dollars per week would equal One Hundred Thirteen and 56/100 Dollars ($113.56). For permanent disability under sub-paragraph eight of Paragraph E of Section Eight W. C. A., the Act provides for fifty per centum of the average weekly wage for thirty-five weeks, but sub-section H of Section Bight provides further for a maximum of Fifteen Dollars ($15.00) per week, which would make a total of Five Hundred Twenty-five Dollars ($525.00). Sub-paragraph Ten of Paragraph B of said section reduces that amount one-half in the case of the loss of one phalange; thus making an allowance in this case of Two Hundred Sixty-two and 50/100 Dollars ($262.50). The bill of Dr. J. T. Blakeley for amputating one phalange of the great toe was Thirty Dollars ($30.00). An award is therefore made:

For temporary total disability.................... $113.56
For loss of one phalange of toe.................... 262.50
For medical account, Dr. J. T. Blakeley............ 30.00
$406.06


author: Mr. Chief Justice Hollerioh

text:
    (No. 2142
    H. O. Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

    D. B. Beid, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

The claimant, Dr. H. O. Taylor, was, on the 1st day of June, A. D. 1932, and since that time has been the coroner of Hnion County. On April 5, 1933 he filed his complaint herein asking for the payment to him of a total of Two Hundred Forty-four Dollars ($244.00) for his fees for holding inquests on the bodies of sixteen different patients, each of which patients at the time of death, was an inmate of the Anna State Hospital, and each of which patients died suddenly or mysteriously.

Section 27 of Chapter 85, Cahill’s Revised Statutes of 1931 provides as follows:

“In the event of a sudden or mysterious death of any inmate of any public or private hospital or asylum for the insane, a coroner’s inquest shall be held, as provided by law in other cases. Notice of the death of a patient and the cause thereof shall, in all cases, be given to the judge of the court having jurisdiction over such patient, and the fact of his death, with the time, place and alleged cause shall be entered upon the docket.
“In cases where the deceased patient was an inmate of any State charitable or penal institution, and the fees for holding such inquest cannot be collected out of the estate of such deceased inmate, such fees shall be paid by the Department of Public Welfare out of the State treasury.”

It is not contended that the fees for holding any of such inquests could be collected out of the estate of any of the deceased inmates, and under the statute the claimant is entitled to recover the amount of his fees as set forth in the declaration.

It is Therefore Ordered that an award be and the same is hereby entered in favor of the claimant for the sum of Two Hundred Forty-four Dollars ($244.00).


text:
    (No. 1682
    Waukegan Clinic, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

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

delivered the opinion of the court:

This claim is for medical attention given by claimant to Elzie Barnfield, an employee of the Division of Highways, State of Illinois, for an injury received May 1, 1929. No disagreement of facts appear. The' services in question were apparently accorded by claimant to the injured employee in the regular course of duty and at the request of superiors in the Highway Department. An allowance of the claim has been recommended by the Division of Highways. A statement of the latter in the record states: “The bill was not paid previously, inasmuch as the accident occurred shortly before the expiration of the previous appropriation, and before the bill could be passed on, the time limit for bills incurred under that appropriation had expired”. Allowance of the claim is recommended by .the Attorney General’s Office.

It is apparent that the claim would have been paid if it could have cleared the department in time for the appropriation then expiring.

The claim is therefore allowed and payment recommended in the sum of Twenty Dollars ($20.00).


text:
    (No. 1908
    James S. Whitehead, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1934.

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

delivered the opinion of the court:

This is a claim filed by petitioner under representation that he was employed as an attendant at the Alton State Hospital, Alton, Illinois on the 12th day of April, 1931; that while so employed, at said date, he was injured by one of the inmates who attacked claimant with a knife, inflicting various wounds. Claimant was confined for six and one-half days at the Alton State Hospital, and was given medical attention during that time by the State. He continued in the employ of the State and was still so employed at the filing of his petition on June 6, 1932.

The claim as now filed is for extreme suffering incurred during the attack and while claimant was recuperating therefrom, and because of the disfigurement'of claimant’s face, all in the amount of Fifteen Hundred Dollars ($1,500.00).

Motion was filed by the Attorney General to dismiss the claim for want of jurisdiction of this court, the grounds of such motion being that the declaration fails to show any demand having -been made for compensation within six months after the date of injury, and that the application for compensation was not filed within one year from the date thereof. The claim, if any, under the facts stated, would be under the Workmen’s Compensation Act, and the motion.of the Attorney General to the jurisdiction under said Act being well pleaded, such motion is allowed and the claim denied. Case dismissed.


text:
    (No. 1875
    T. S. Craig, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 1, 1934.

    T. S. Craig, pro se.
    Otto Keener, Attorney General; John Kasserhan, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For a long time prior to January 11, 1931, the claimant was head farmer at East Moline State Hospital, East Mo-line, Illinois, and just prior to the last mentioned date he was requested by Mr. A. C. Everingham, State Farm, Garden and Dairy consultant, with the approval of Dr. C. H. Anderson, Managing Officer of the East Moline State Hospital, to attend a meeting for all head farmers at the University of Illinois.

He attended such meeting from January 11 to January 16, 1931, inclusive, and in connection therewith incurred expenses in the amount of Twenty-five Dollars and Seventy-four Cents ($25.74). He neglected to present his bill for payment until after the appropriation under • which the indebtedness was incurred had lapsed, and was therefore required to file his claim in this court.

Dr. C. H. Anderson, Managing Officer of the East Moline State Hospital, states that the claim is just and remains unpaid, and the Attorney General advises that there is no objection to an award in favor of the claimant in the amount' claimed.

It is Therefore Ordered that an award be entered in favor of the claimant in the amount of Twenty-five Dollars and Seventy-four Cents ($25.74).


text:
    (No. 1826
    Elizabeth Isham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

    Hill & McBrian, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Shortly prior to July 1, 1929, claimant was employed by Clyde I. Backus, then Assistant Director of the Department of Registration and Education, as office manager of the Chicago office of the Department and as secretary to the Assistant Director. At the time she was employed it was agreed that her salary was to be $200.00 per month, being the amount which had been paid to her predecessor. Claimant worked from July 1 to October 16, 1929, at which time she left the employ voluntarily for the reason that she had been paid only $125.00 per month instead of $200.00 as agreed, and now seeks to recover the balance which she claims to be due her, to wit: $75.00 per month from July 1st to October 16th.

No complaint was made as to the manner in which she performed her duties and she was assured by the Assistant Director on several occasions that she would be paid her salary at the rate of $200.00 per month as agreed. It has been stipulated herein that the State of Illinois appropriated the sum of Two Thousand Four Hundred Dollars ($2,400.00) for manager of the Chicago office of the Division of Registration; — and no reason appears why the claim should not be paid.

Claimant is entitled to receive the sum of Seventy-five Dollars ($75.00) per month for three and one-half months, in payment of the amount due her, and It is Therefore Ordered that an award be entered in favor of the claimant for the sum of Two Hundred Sixty-two Dollars and Fifty Cents ($262.50).


author: Mr. Chief Justice Hollbrich

text:
    (No. 2184
    Clarence Kabat, a Minor, by Anna Kabat, His Next Friend, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

    Hortsman, Linder, Pelnar & Bernard, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

Clarence Kabat, by Anna Kabat, his mother and next friend, filed his complaint herein and seeks to recover damages for personal injuries sustained by said Clarence Kabát while a student in attendance at J. Sterling Morton High School at Cicero, Illinois.

The complaint alleges that-on September 1, 1930, said Clarence Kabat, who was then seventeen (17) years of age, was a sophomore at J. Sterling Morton High School, and in the course of his studies was required to melt some aluminum in a furnace maintained by the school, and thereafter carry the same to his work bench; that in carrying such melted and liquid aluminum to his work bench, he tripped and fell over a piece of tin which was laid upon the floor with the edges turned up, and as a result thereof, the melted aluminum was spilled, and Kabat’s left arm from his elbow to his hand, was severely burned. The complaint further alleges that the respondent was negligent in failing to provide a safe and secure place for the students to work, and in permitting such tin to lie loosely on the floor in such workroom.

The complaint also alleges that on November 12th, 1930 a policy of insurance was issued by the Fidelity and Casualty Company of New York to the Trustees of Schools of the School District in which the J. Sterling Morton High School is located, whereby such Trustees of Schools were indemnified against loss from the liability imposed by law upon such Assured for damages on account of bodily injuries or death suffered by any person not employed by the Assured while within the school premises; that such policy was in force at the time of such accident; that claim was filed with said Fidelity and Casualty Company of- New York; that such Company denied liability on the ground that the Assured was engaged in a governmental function; that said policy is a contract of indemnity and by the terms thereof indemnified against loss from the liability imposed by law upon the Assured; that no liability is imposed on such Assured in this case, either under the common law or by statute, for the reason that the Assured is engaged in a governmental function; that the Fidelity and Casualty Company of New York indemnifies the Assured against claims which cannot be maintained against it either by common law or by statute; that said contract of insurance is beneficial only to said insurance company and that the premium paid therefor is in the form of a gift from public funds of the State; that suit cannot be maintained directly against said Fidelity and Casualty Company of New York under said policy, and that no liability is imposed by law on Assured.

The complaint further alleges that said Fidelity and Casualty Company of New York should have notice of this proceeding, and that if judgment is rendered against the State, the said Fidelity and Casualty Insurance Company of New York should be required to show cause why it should not in equity and good conscience pay the same.

Claimant admits that the school authorities are not liable under the law on account of the fact that the maintaining of said school is a governmental function, but takes the position that the State should respond in damages because there is no legal liability on behalf of the school authorities.

The J. Sterling Morton High School is not maintained by the State, but is maintained by the local Board of Education, which is a municipal corporation having authority under the statute to sue and be sued.

The principle involved in this case is identical with that involved in the case of Raffaele Trombello, et al. Admrs. vs. State of Illinois, No. 2237, decided at the present term of this court. In that ease it was held that this court had no jurisdiction over a suit for damages arising* on account of the death of a small child who was drowned while playing in the Douglas Park lagoon which was under the jurisdiction of the West Chicago Park Commissioners. The rule announced in that case applies with full force to the present case, and is supported by numerous decisions set forth in the opinion rendered in the Trombello case. This court, therefore, has no jurisdiction in this case.

The fact that the Trustees of Schools obtained a policy of insurance which does not protect the claimant in this case, and which really affords no protection to anyone whatsoever, is not a matter concerning which this court can grant any relief.

It follows from the foregoing that this court can have no jurisdiction in this case, and the same is therefore dismissed.


author: Mb. Chief Justice Hollbrioh

text:
    (No. 1946
    W. H. Loges, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

    W. H. Loges, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollbrioh

delivered the opinion of the court:

Claimant has filed his claim herein for the recovery of damages in the amount of Seventy-three Dollars and Fifty Cents ($73.50) for crops destroyed by fire. It appears that the State Highway Patrolman on S. B. I. Route Four (4), Section Five (5), Macoupin County, was burning* the grass and weeds on the right-of-way, and claimant avers that such patrolman lost control of the fire and permitted it to spread into claimant’s field adjoining the highway, causing the damage complained of.

This court has .uniformly held that the maintenance by the State of its State Bond Issue routes is a governmental function, and has also held in numerous cases that the State is not liable for the negligence of its servants or agents in the performance of governmental functions. Hinchscliff vs. State of Illinois, 2 C. C. R. 159; Derby vs. State of Illinois, 7 C. C. R. 145; Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; 25 R. C. L. p. 407, sec. 43.

Consequently there is no liability on the part of the State for the damages sustained by claimant.

If the highway patrolman was guilty of negligence which resulted in injury and damage to the claimant, he is personally responsible therefor, but there is no liability on the part of the State.

It is Therefore Ordered that an award be denied and the claim dismissed.


author: Mb. Chief Justice Holleeich

text:
    (No. 2202
    C. L. Oglesby and J. F. Mammen, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

    C. L. Oglesby and J. F. Mammen, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Holleeich

delivered the opinion of the court:

Claimants who were engaged in the plumbing, heating and electrical business at Vandalia, Illinois, seek to recover the sum of Four • Hundred Dollars and Fourteen Cents ($400.14) for labor and materials furnished between February 3d and June 27,1931 in connection with certain improvements and repairs made at the State Farm at Vandalia. Such labor and materials were furnished at the instance and request of the then superintendent of such State Farm, and the reasonableness of the claim is not questioned.

The claims were presented in the first instance to the then superintendent of the Farm, but were not paid on account of the fact that the appropriations for such purposes had lapsed or were exhausted. No reason is presented why the claim should not be paid. Mr. Frank D. Whipp, Superintendent of Prisons, states that he has had the claims checked and suggests approval.

It is Thebefobe Obdebed that an award be entered in favor of the claimants for the amount of the claim, to wit: Four Hundred Dollars and Fourteen Cents ($400.14).


text:
    (No. 1940
    Charles A. Rodenwald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

    J. Feed Gilsteb and William G. Juebgens, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Holleeich

delivered the opinion of the court:

Claimant was employed as a carpenter in connection with the erection of a new cellhouse at the Southern Illinois Penitentiary at Menard, Illinois. While engaged in such work, on January 21, 1932, he ran a splinter of wood into the-index finger of his left-hand, causing a wound which became infected and as a result thereof, claimant was temporarily totally disabled for the period of six weeks and asks compensation for that time at the rate of Fifteen Dollars ($15.00) per week, pursuant to the provisions of the Workmen’s Compensation Act of this State.

There is some testimony in the record as to specific loss sustained by the claimant, but no claim is made on that account.

The injury in question arose out of and in the course of claimant’s employment, under circumstances which make the State liable therefor under the terms of the Workmen’s Compensation Act. Claimant’s wages at the time of the accident were Forty-four Dollars ($44.00) per week and he is therefore entitled to compensation in the amount claimed, to-wit: six (6) weeks at Fifteen Dollars ($15.00) per week.

• Award is therefore entered in favor of the claimant for the sum of Ninety Dollars. ($90.00).


text:
    (No. 2237
    Raffaele Trombello, et al., Admrs., Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

      Rehearing denied April 25, 1934.

    Jay J. McCarthy, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

On August 29, 1932 Sana Trombello, then a minor of the age of six (6) years, was visiting in Douglas Park in the city of Chicago, which park was under the jurisdiction of the West Chicago' Park Commissioners.

The complaint alleges that such child was playing in and around the park lagoon in which there was a signboard consisting of wooden planks, which the employees of the West Park Board permitted to be used as a raft or plaything; that such raft constituted an attractive nuisance and a menace to the lives of children of tender years who played about the same and floated into deep water thereon; that such facts were known to the defendant or could have been known to it in the exercise of reasonable diligence; and that the defendant failed to guard and protect children of tender years in going upon and playing on said raft.

While plaintiff’s intestate was playing on such raft, it got into deep water, and as the result of his moving around on the raft, it tipped and he fell therefrom and was drowned.

The Attorney General has filed a motion to dismiss on the ground that the complaint fails to state a cause of action against the State.

Claimant takes the position that the courts of this State have decided in numerous cases that there is no liability on the part of the West Chicago Park Commissioners in cases of this kind, and cites the following cases, to-wit: Stein vs. West Park Commissioners, 247 Ill. App. 479; Hendrix, Admx. vs. Urbana Park District, 265 Ill. App. 102; and contends that because there is no liability on the part of the West Chicago Park Commissioners, the State must be liable.

It is true that the courts of this State have repeatedly held that the West Chicago Park Commissioners, and the commissioners of othér park districts, are not liable in cases of this kind, for the reason that in the maintenance of public parks, the park commissioners are engaged in a governmental function, and are not liable on the ground of respondeat superior. for the negligence of their servants and agents in connection with such functions. It does not follow, however, that the State is liable in this case simply because there is no liability on the part of the park commissioners.

We are aware of the fact that the Appellate Court in the Stein case (247 Ill. App. 479), in speaking of the West Chicago Park Commissioners, said:

“Its officers are apopinted by the Governor and not elected by the people in the district in which it lies, and it is therefore under the control of the State, and not the inhabitants of its district.”

Such language, however, was used in considering the question as to whether the park commissioners were acting in a private or a governmental capacity, and whether such park district was created for the benefit and advantage only of those living within the district or for the public generally, and had no reference to the liability of the State to respond in damages.

In the case of West Chicago Park Commissioners vs. Chicago, 152 Ill. 392, the Supreme Court held that the West Chicago Park Commissioners is a municipal corporation.

In the case of Perkins, et al. vs. State of Illinois, 4 C. C. R. 197, the claimant sought to recover for labor and services performed at the instance and request of the commissioners of Lincoln Park. After a full consideration of the matter, the court there said:

“The Court of Claims has no jurisdiction over suits against municipal corporations and it therefore follows from the opinion above expressed that it can have no jurisdiction in this case. The claim is accordingly dismissed.”

The conclusion there reached has been adhered to by this court in numerous cases decided since the Perkins case. Otto Stein, Admr. vs. State of Illinois, 6 C. C. R. 329; Blanche Kaufman vs. State, 6 C. C. R. 355; Ella Kirkpatrick vs. State, 6 C. C. R. 480; James Hickey, Jr., vs. State, 7 C. C. R. 60; Grace Bartel vs. State, 7 C. C. R. 85.

Even if this court had jurisdiction of the case, there would be no liability on the part of the State, as the rule relative to liability for the negligence of its servants and agents in the performance of governmental functions applies to the State, the same as to the park district.

The case of Otto Stein, Admr. vs. West Chicago Park Commissioners, 247 Ill. App. 479, cited by the claimant, was a case in which the facts were somewhat similar to the present case, plaintiff’s intestate having been drowned while skating on the ice at the Douglas Park lagoon. As previously stated, in that case the court held that there was no liability on the part of the West Chicago Park Commissioners. After the decision of that case by the Appellate Court, the administrator filed his claim in this court, and this court held that there was no liability on the part of the State. See Stein, Admr. vs. State of Illinois, 6 C. C. R. 329.

The declaration does not allege any legal liability on the part of the State, and this court has no jurisdiction to make an award.

The motion to dismiss is therefore sustained and the case i« dismissed.


author: Mr. Justice Yantis Mr. Justice Yantis

text:
    (No. 1874
    John Marsh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 7, 1934.

      Supplemental opinion on petition for rehearing filed March 13, 1934.

    Harold James Sitron, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This case comes before the court upon the claim filed by John Marsh to obtain compensation for an accidental injury claimed to have been received while in the course of his employment as foreman in the Furniture Department at the State Prison at Joliet, Illinois. His duty was to act as foreman in the Furniture Department over twenty-four to thirty-two men. While so employed, a foreman in the Paint Department had trouble with his paint machines, and claimant, learning of the trouble, requested permission of his immediate superior, Mr. Bowen, if he might go over to the new cell block house to fix it. Mr. Bowen told him he could go when he had some spare time, when he was through with work in his own department. Two or three days afterwards, claimant took one of the prisoners, Ferguson, with him, and went to the new cell block house, took the paint machine apart, and after repairing the machine began to use the same in spraying. He testified that they were short of hose on the machine and that he asked one of the men to bring the machine over to him so that he could handle it more easily; that as the machine was moved, he stepped off of a platform about two feet high, stepped on a three edged stick lying loose on the floor and bumped his right knee on one of the cell doors; that he finished the job, with the help of his man Ferguson, went to the foreman and explained to him about the machinery and then went back to his own department about one-half block distant from where he had suffered his accident.

It is clear from the record that the accident in question did not arise out of and while the claimant was engaged in the course of his duties and occupation, and so far as the record shows, his activities at the time of the accident were merely those of a volunteer, performed at a time when he was off duty, and can in no wise come within an allowance under the terms of the Workmen’s Compensation Law. •

Upon a consideration of the entire record, the court is of the opinion that the injury was not incurred within the purview of the Workmen’s Compensation Act, and it is

Therefore Ordered bt the Court that the claim be, and the same is hereby denied. Case dismissed.

Supplemental Opinion on Petition eor Rehearing.

Mr. Justice Yantis

delivered the opinion of the court:

The original opinion herein, denying claim, was filed February 6,1934. On February 19, 1934, claimant filed herein his petition for rehearing. The petition is to a large extent but a re-argument of the case; a further citation of authorities and the conclusion that,

“if the facts at bar are interpreted by the law in the cases cited * * * the State is responsible to claimant for compensation.”

Claimant’s duties were those of a foreman in the Furniture Department at the Joliet State Prison. During his leisure hours, at the request of the foreman in the Paint Department, and with the knowledge of his own immediate superior, he went to the Paint Department in another building “to help fix the paint machine”. After having fixed the machine, he began operating it, and while so doing was hurt.

He was not working in any phase of the employment for which he was hired by the State.

Counsel cite Sunnyside Coal vs. Industrial Commission, 291 Ill. 523.

“When an employee is injured in an employment different from that which he was originally hired to perform, in order to find whether the employer is liable it is necessary to determine whether or not the element of knowledge or acquiescence or a known custom on the part of the employer exists. If the employer does not know the practice or custom, the employee is held to be a volunteer acting outside the scope of his authority, and if the employer does know and acquiesces, the employee is held to be acting within the scope of his authority.”

The rule of respondeat superior does not apply to the State, and even if the Superintendent (Bowen) consented, claimant was still a volunteer so far as the State is concerned.

Counsel also quotes from Dixon vs. Chiquola Manf. Co., 26 Cyc. 1090.

“The scope of a servant’s duties is to he defined by what he was employed to perform, and by what, with the knowledge and approval of his master, he actually did perform,” and an employee who was performing the same services he was in the habit of performing when he was injured is not to be considered a mere volunteer. (Dixon vs. Chiquola Manf. Co., 86 S. C. 435; 26 Cyc. 1090; 1 Bradbury on Workmen’s Comp. — 2d ed-467.)

The State hired claimant as a furniture-shop foreman. The evidence shows that was the only trade he knew.. There is no proof that he had ever tried to operate a paint machine before in his life, and certainly “he was not in the habit of performing such work” as referred to in the opinions just quoted. The inference from those cases is that if claimant was not in the habit of performing these extrinsic duties or if the employer had not acquiesced in same, the employer would not be liable.

Counsel for claimant cite another case, which under the facts, is directly against an allowánce of this claim, i. e., Henry vs. Industrial Commission, 293 Ill. 493.

“If knowledge of the foreman that the claimant was working at another machine would have made the employer liable for an accident happening at such other machine, that rule cannot apply to an injury happening at a third machine, where the claimant, without his employer’s knowledge, was engaged in other work than that which he had been told to do and was exposed to risks not incidental to such work.”

The State, and not even the Superintendent, Mr. Bowen, had any knowledge that Marsh intended to or was operating the paint machine. The most that can be said is that Superintendent Bowen was informed by Marsh that the latter intended to help repair it. If he had quit then, he would not have suffered the accident in question.

No new matters or questions are raised in the petition for re-hearing. However, we have again examined the record in the case and find no reason for granting a rehearing and the petition is therefore denied.


text:
    (No. 1977
    Addie Porter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1934.

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

delivered the opinion of the court:

This claim was filed September 1, 1932 for Five Hundred Dollars ($500.00) and alleges that while claimant was visiting “Old Salem” Park on August 28, 1931, she was injured by falling down an open concrete stairway at the Museum Building maintained by the State on the park grounds. Claimant alleges that such fall and the injury sustained by her therefrom was due to the failure of the State to provide a suitable door, gate or bar to protect the entrance to such stairway; that as a result of the fall, she suffered a fracture and other severe injuries and bruises to her body and has expended for medical service and other attention in connection therewith the sum of Five Hundred Dollars, for which she asks an award.

In maintaining and conducting the park in question, the State is exercising a governmental function, and neither the State nor any of its agents are liable to respond in damages for the negiligent acts of any of its servants. The park and the building in question are maintained solely for the benefit of the public, and there is no legal liability upon the part of the State, and the doctrine of respondeat superior does not apply.

Pelha vs. State, 6 C. C. R. 390.

White vs. County of Bond, 58 Ill. 297.

The distinction between cases involving private corporations or cities and the State is pointed out in the case of City of Chicago vs. Seben, 165 Ill. 371, wherein the court states:

“A distinction is taken in the text books and in many of the cases, between the liability of purely municipal corporations, such as cities and chartered towns and villages,.and the non-liability of counties and towns as political divisions of the State, such towns and counties being held to be exempt from liability while chartered cities and villages are held to be subject to such liability. (1 Beach on Public Corp. Sec. 757;. Tiedeman on Mun. Corp. See. 339.) This distinction was recognized by this court in the recent case of Nagle vs. Walcey, 161 Ill. 387, where it was said (p. 392): ‘The courts draw a distinction between the town and the municipal corporation proper, on the question of liability in favor of the town.’ The distinction is furthermore referred to and recognized in the following cases: Browning vs. City of Springfield, supra; Town of Waltham vs. Kemper, supra; White vs. County of Bond, 58 Ill. 297; Symonds vs. Clay County, 71 id. 355.) The reason for the distinction, as given by this court in the cases above referred to is, that cities and chartered towns and villages act under charters, by which valuable privileges are conferred upon them at their request, these privileges being held to be a consideration for the duties imposed upon them; and for the performance of these duties, like individuals, they must be responsible in an action. (White vs. County of Bond, supra.)”

For the reasons stated, no award can be made and the claim is therefore dismissed.


text:
    (No. 2081
    W. C. Reynolds, Doing Business Under the Name and Style of Reynolds Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1934.

    Harry Typer, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover a refund of One Hundred Twenty-seven and 50/100 Dollars ($127.50) gas tax paid on 4,250 gallons, reported over a period of nine months as sold, but which it is now claimed was lost by a leaky tank.

Respondent, by the Attorney General, files its motion to dismiss the claim as being supported by no legal rights.

The tax was apparently voluntarily paid. A discount and deduction for a certain loss of 1,942 gallons by leakage, was made during the period now complained of.

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 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.

To depart from the rule under the facts herein alleged would be an unwarranted and arbitrary act upon the part of this court.

The motion to dismiss is allowed and claim is dismissed.


text:
    (No. 2048
    Thomas R. Crabb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

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

delivered the opinion of the court:

This claim is filed for reimbursement of hospital and medical expenses incurred by claimant in the sum of One Hundred Sixty-nine and 75/100 Dollars ($169.75).

There is no dispute of facts and the Attorney General submits no objection to the claim. Plaintiff was engaged in the performance of his duties as an automobile investigator when he slipped in alighting from his car, suffering injuries that occasioned the hospital care in question.

This court in a recent case (Church, vs. State of Illinois, 7 C. C. R. 256) held that,

“the duties of a State Highway maintenance patrolman are extra-hazardous in fact, and of such a nature as to be properly classified as extra-hazardous under the Workmen’s Compensation Act.”

Claimant and respondent both state that the automobile investigators appointed by the Secretary of State have many duties similar to those of the State Highway Police force. If injured, while in fact engaged in the performance of such similar duties, to be consistent, he too would be held to be within the purview of the Workmen’s Compensation Act.

Claim is approved, and an award allowed in the sum of One Hundred Sixty-nine and 75/100 Dollars ($169.75) for hospital and medical expenses as claimed.


text:
    (No. 1867
    Otto A. Elliott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

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

delivered the opinion of the court:

Plaintiff herein was employed as a managing officer of the St. Charles School for Boys at St. Charles, Illinois on the 4th day of May, A. D. 1931, and according to his claim had been continuously engaged in such employment since August 1928 and was so employed on December 22, 1931 when he filed his claim herein. The claim was filed pro se December 22, 1931 for Forty-one and 50/100 Dollars ($41.50), alleging that on May 4, 1931 there wás in process of erection at said penal institution a building known as the Vocational Building; that while plaintiff, in the line of his duty, was inspecting the work, the scaffolding gave way, throwing claimant to the ground, resulting in the fracture of the tibia of the left leg. Plaintiff was treated at the office of Doctors Raymond G. Scott and Ralph W. Carpenter at Geneva, Illinois, to whom plaintiff paid the sum of Forty-one and 50/100 Dollars ($41.50), for which he asks reimbursement herein.

A motion to dismiss has been filed herein by respondent through the office of the Attorney General on the ground that no claim or demand appears to have been made on respondent by the claimant within six (6) months of the date of the accident on May 4, 1931. If the claimant comes within the terms of the Compensation Act, this objection, being supported by the apparent facts, would be substantial and the claim would be dismissed.

It would seem that the principal question to be decided in this case is whether the claimant was an “officer” or an “employee” at the time of the injury. If an “officer” he would not be entitled to an award under the Compensation Act, as under the exception in Section 5 of the Act, it is provided that the term ‘ ‘ employee ’ ’ shall not include 6 any officer of the State” etc. In many cases it is difficult to determine whether a person is an officer or an employee, but an office is a place in a governmental system created or recognized by the Law of the State, which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties.

City of Pekin vs. Industrial Commission, 341 Ill. 312.

The Superintendent of a State institution occupies a definite place in the recognized governmental system of the State, and as such incumbent is assigned the continuous performance of certain permanent public duties. The court is of the opinion that he comes within the exception of Section 5 above quoted. There seeming to be no legal ground for an award, the claim is therefore dismissed.


text:
    (No. 2050
    Guy F. Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    B. Wallace Karraker, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was employed with his mule in construction work on State Aid Boute 7-14. While so working, the mule was struck by a truck, operated by an employee of the State of Illinois, and died as a result of such injuries. An award is sought in the sum of One Hundred Fifty Dollars ($150.00).

The claim is based upon the negligence of the driver of the State truck. No government is liable for the negligence of its employees in the absence of a Statute making it liable for such riegligence.

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

Braun vs. State, 6 C. C. R. 104;

Sapp vs. State, 7 C. C. R. 90.

Illinois has no such Statute.

If the loss complained of was caused by the negligence of the driyer of the truck, claimant’s remedy is against the driver and not against the State.

Cooney vs. Town of Hartland, 95 Ill. 516.

The claim is denied and cause dismissed.


author: Mb. Justice Yantis

text:
    (No. 2161
    E. A. Kraft, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    Feed B. Heebeet, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant in this cause was employed as a plumbing foreman at the Southern Illinois Penitentiary at Menard, Illinois, and on November 25, 1931, while engaged in the performance of his duties, received a sprain to his shoulder, which eventually resulted in necessitating an operation. Claimant was earning Sixty-five Dollars ($65.00) per week, under which Fifteen Dollars ($15.00) weekly compensation would be payable. He had two children under sixteen years of age, and under Item 3, Paragraph J of Section 8 of the Workmen’s Compensation Act, payable compensation is increased to Sixteen Dollars ($16.00) per week. It is admitted by the Attorney General’s office that the claimant comes within the limitations of the Workmen’s Compensation Act. Bnt it appears from the record that the claim is barred under the Statute of Limitations under the provisions of the Workmen’s Compensation Act, same not having been filed within a year as prescribed by such Act, i. e. not filed until April 27, 1933. The claim is therefore dismissed without an award.


author: Mr. Justice Tantis

text:
    (No. 1711
    Mitchell Libby, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    Frederic A. Perkins, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

This claim was filed January 20, 1931, for Forty-five Hundred Dollars ($4500.00); the declaration alleges that claimant, on April 15, 1929, was employed by respondent in the Division of Highways as a patrolman or maintenance man on State Bond Issue Route No. 9; that while engaged in his duties, he was struck by an automobile and suffered injuries therefrom which impair his ability to perform labor, to the extent in damages as provided under the Workmen’s Compensation Act of Forty-five Hundred Dollars.

Respondent, by the Attorney General, files its motion to dismiss the complaint because it is barred by the Statute of Limitations, under Section 24 of the Act.

While counsel for claimant offer the excuse that claimant never had legal advice until after his time limits had expired, we cannot recognize this as creating any exception to the Statute, which is one determining the jurisdiction of the court itself.

The Workmen’s Compensation Act provides:

“No proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided, that in any case unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application shall be barred.”

Sec. 24, Workmen’s Compensation Act.

Crabtree vs. State, 7 C. C. R. 207.

This court is governed by said provision. The motion is allowed, and claim dismissed.


text:
    (No. 1635
    George Nelson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    B. C. Schoenstedt, for claimant.
    Otto Keener,, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court :

George Nelson, a resident of Joliet, Illinois, was regularly employed by the State in its division of waterways as an iron worker on Project No. 55, Illinois Waterway on-the 17th day of December, A. D. 1929. On August 16, 1930 he filed his claim in this court for Four Hundred Thirty-five Dollars ($435.00), alleging that on the day in question, i. e., December 17, 1929, while engaged in the course of his duties as an iron worker, the middle finger of his right hand was caught between two rails and mashed and was thereby totally disabled from the date of the injury, December 17, 1929, to February 17, 1930. Plaintiff further claims that he was receiving pay at the rate of Fifteen Dollars ($15.00) per day at the time of injury and that Twelve Dollars ($12.00) a day was the usual and reasonable wage during the preceding-year for men engaged in the class of work stated. His claim for nine weeks temporary total incapacity at Fifteen Dollars per week as provided in Paragraph B of Section 8 of the Workmen’s Compensation Act is One Hundred Thirty-five Dollars ($135.00). In addition thereto the Bill of Particulars filed by him asks for a further award of Three Hundred Dollars ($300.00) for serious and permanent disfigurement to the right hand under Paragraph C of Section 8 of the Act. Proof in the record discloses that the accident was immediately reported to plaintiff’s superior, and the claim was filed in due course. That the plaintiff suffered temporary total disability from December 17, 1929 to February 17, 1930, being a period of nine weeks, entitling him to the maximum of Fifteen Dollars per week compensation under Section 8, Paragraph B of the Act.

The case is within the scope of the Court of Claims jurisdiction and is terminative under the rules of the Workmen’s Compensation Act. Counsel for plaintiff, in his argument, contends for the allowance of medical charges paid by claimant to Dr. T. S. F. Johnson in the sum of Twenty-four Dollars ($24.00). The evidence indicates that such treatment was necessary, and although claimant went to Dr. Johnson voluntarily, the court is inclined to include such account as an item of necessary medical and surgical service, for which an award should be made. The proof shows that the plaintiff’s finger was not improving, but was showing indications of much more serious infection at the time the plaintiff went to Dr. Johnson. Objection was made by respondent that this item does not appear in the Bill of Particulars and that it is first raised in the plaintiff’s argument. However, it is based upon the evidence and counsel could have amended his Bill of Particulars to recite the same, and there being legal justification for the claim, the court in its equitable province, recognizes the item as just.

The minor disfigurement to plaintiff’s finger nail affords no sufficient basis for an award for 1 ‘ serious and permanent disfigurement to the hand” as claimed under authority of Paragraph C of Section 8 of the Act, and an award for this item of plaintiff’s claim is denied.

The court therefore makes an award to claimant as follows:

For temporary total disability for nine weeks at
$15.00 per week................................. $135.00
For medical expense incurred..................... 24.00
$159.00


text:
    (Nos. 2189, 2190, Consolidated
    R. D. Wilson, No. 3189, Luella Wilson, No. 3190; Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    Musgrave, Oppenheim, Price & Ewins, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General,, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

These claims are filed respectively by husband and wife, and the facts are the same in each. The claims grow out of an auto accident, which befell the car of R D. Wilson, driven by his wife, Luella Wilson, on Milwaukee Avenue, five miles south of the Village of Wheeling. Claimants contend that the approaches to a viaduct at that point over the tracks of the Chicago & Northwestern Railway Company are under the control of the State; that it maintains a guard rail or fence along said viaduct and that it was its duty to so maintain same in a proper state of repair as to protect the users of said Highway; that the fence had been broken down for some ten days before the accident in question and had been permitted to so remain; that on the day in question, the road bed or pavement was slippery from rain; that Mrs. Wilson was driving’ at a speed of thirty miles per hour; that the auto skidded, left the pavement and ran through the fence where it was in disrepair, damaging the car to the amount of One Hundred Fifty-eight and 55/100 Dollars ($158.55) and injuring claimant Luella Wilson to the damage of plaintiff R. D. Wilson in loss of his wife’s services in the sum of One Hundred Dollars ($100.00) and to the damages of said Luella Wilson in the sum of Two Hundred One and 25/100 Dollars ($201.25) for hospital, medical and household help and clothing and One Hundred Fifty Dollars ($150.00) for pain and suffering.

Respondent, through the office of the Attorney General, files its motion to consolidate the two cau'ses. It appearing from an examination of the records that the two causes involve the same state of facts and questions of law, the motion is allowed and the causes are ordered consolidated accordingly.

A demurrer was filed in each cause by the Attorney General. Under the present practice sainé will be treated as a motion to dismiss.

If any award could be allowed here, same would have to be upon the basis that the proximate cause of the accident was the negligence of the State (through its employees), and that the driver of the car was not guilty of contributory negligence. In view of the averments in the complaints that Luella Wilson was driving up over the viaduct at a speed of thirty miles per hour on a slippery pavement, immediately after a rain, we doubt the absence of contributory negligence; but regardless of this, it is the well-established rule of law that the doctrine of respondeat superior doés not apply to the State in the exercise of a purely governmental function.

"The government itself is not responsible for the misfeasances, or wrongs,' or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties and losses, which would be subversive to the public interests; and indeed laches are never imputable to the government. Seymour vs. VanSlyck, 8 Wend. 403, 422; United States vs. Kirkpatrick, 9 Wheat, 720, 723.”

Story on Agency, 9th Ed. Sec. 319, p. 390.

It has been held by this court that in the building and maintenance of a system of highways and hard surfaced roads the State is exercising a governmental function and acting in its sovereign capacity. Chumbler vs. State, 6 C. C. R. 136; Highland vs. State, 6 C. C. R. 384.

This rule has been applied and followed by the Court of Claims in many instances where claims have arisen as the result of alleged negligence of officers or servants of the State. In each instance such claims were denied for the reason that the State cannot be held liable for the misfeasance, malfeasance or nonfeasance of its agents,

State Bank of Chicago vs. State, 1 C. C. R. 158.

Belt vs. State, 1 C. C. R. 266.

Morrissey vs. State, 2 C. C. R. 254.

Schroeder vs. State, 3 C. C. R. 36.

Ogan vs. State, 4 C. C. R. 347.

Dunning vs. State, 5 C. C. R. 232.

Janeczko, Admr. vs. State, 5 C. C. R. 244.

Pelka Admx. vs. State, 6 C. C. R. 390.

The demurrer is sustained and by reason of the facts alleged in the complaints and the law as it exists, the claims will be, and each of them is hereby dismissed.


text:
    (No. 2196
    Ray Yost, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1934.

    Kieby Smith, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This claim was filed June 23, 1933 for Ten Thousand Dollars ($10,000.00). The declaration claims that claimant was arrested for vagrancy in June 1932 and was sentenced by the County Court of Jefferson County to the State Farm at Vandalia for a period of six months; that after being there something over three months, claimant became ill and was taken to the private hospital of Greer & Greer at Vandalia, where an operation was performed for ulcers and perforations of the duodenum. Claimant remained in the hospital twenty-two days and was released October 15, 1932 from the hospital and from custody and returned to his home at Mt. Vernon.

Claimant was assigned to duties of bath house attendant while at the State Farm, and now claims “that the conditions under which he lived and conduct imposed by reason of restrictions, and confinement and the daily incidents of prison life resulted in the specific ailment of ulcers of the duodenum” for which petitioner files his claim for resultant loss of earning power as above stated.

None of the decisions cited by the claimant appeal to the court as being in point. The State Farm is one of the State 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 negligence of those in charge of or employed in such institutions. Lillian Sturroch etc. vs. State, 7 Court of Claims, No. 157.

The testimony of Dr. Greer states that he performed the operation in question; that the history of claimant’s condition given at the time he entered the hospital at Vandalia was that he had been treated for ulcers of the stomach for a considerable time and further was a habitual user of narcotics; that such diseased condition is the result of a gradual necrosis of the tissue of the duodenum and that in the opinion of the doctor, claimant had had the ulcers when he entered the State Farm and that such diseased condition was undoubtedly present prior to June 6, 1932. In the case of Cruzan vs. Industrial Commission, 350 Ill. 407, the court said:

“The consensus of the testimony of the medical witnesses was that the perforation of the duodenum was the result of duodenal ulcers found to be present. These ulcers are progressive in character and cover a considerable period of time in formation and development. They undergo a deteriorating process, which is known to the layman as an ‘eating’ process. It is a destructive process, and it depends upon the activity of the ulcers as to whether it extends over a longer or a shorter period of time. The process of destruction is generally slow, and as a result of the eating and destruction of the tissue the duodenum becomes gradually weaker and weaker at the point of the -ulceration until finally the process of disintegration gets to the point where there may be perforation at any time, and, as stated by one of the witnesses, ‘it doesn’t make any difference as to the topographical location, where the man happens to be at the time the perforation takes place.’ It may take place at any time and under any circumstances where there is any intra-abdominal pressure. Sneezing, a fit of coughing, a turning in bed, a straining at stool or an effort to pick up a shoe may produce it. The primary cause of the perforation is the disintegration of the ulcer.
There must be some cause or relation, between the injury and the employment, and if the injury is sustained by reason of some cause having no relation to the employment it does not arise out of the employment. * * * One claiming compensation under the Compensation Act for the death of an employee must prove by direct and positive evidence, or by evidence from which the inference can fairly and reasonably be drawn, that death was caused by an accidental injury which occurred not only in the course of the employment of the deceased but also arose out of such employment.”

In no event, either as a legal proposition nor by adopting the theory of equity and social justice alone (which this court could not do), could this claim be allowed. The claim is therefore denied and dismissed.


text:
    (No. 2245
    Fred Ewing, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

    Gael Behbman and Robert N. Kavanaug-h, for claimant.
    Otto Keener, Attorney General; John Kassbeman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On September 12, 1933 claimant filed his complaint herein seeking to recover compensation for injuries sustained by him on December 24, 1930. Claimant at the time of the accident was an officer of the State Highway Police and was bitten on the left hand, while making an arrest in the course of his duties. As the result of such bite, the claimant became infected with syphilis. He claims that his condition is incurable and bases his right to an award upon the terms and provisions of the Workmen’s Compensation Act. The records of the State Police show that the State has paid Five Hundred Fifty-two Dollars and Fifty-four Cents ($552.54) for medical services and hospital bills for claimant, and also show that the claimant “was paid his full salary during the time he was injured.”

The Attorney General has filed a motion to dismiss for the reason that no claim for compensation was made within six (6) months after the accident and no application for compensation was filed within one year after the injury or the last payment of compensation, as required by the terms and provisions of Section Twenty-four (24) of the Workmen’s Compensation Act.

The law is well established in this State that the making of claim for compensation within six (6) months after the accident is jurisdictional, and is a condition precedent to the right to maintain a proceeding under the Workmen’s Compensation Act. (Haiselden vs. Ind. Board, 275 Ill. 114; Buslnell vs. Ind. Com., 276 Ill. 262; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; City of Rochelle vs. Ind. Com., 332 Ill. 386; Beverly Country Club vs. Massachusetts Bonding Co., 268 Ill. App. 380.)

It has also been held that where the application for compensation is not filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the claim is absolutely barred. (Duquoin School District vs. Ind. Com., 329 Ill. 543; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511.)

There is nothing in the complaint to show a compliance with the requirements of Section Twenty-four (24) of the Workmen’s Compensation Act above referred to, and the motion of the Attorney General must therefore be sustained.

Motion sustained. Case dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 1787
    Lillie Bell Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

      Rehearing denied October 9, 1934.

    David J. Maddox, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

The claimant, Lillie Bell Jones, seeks to recover damages for personal injuries which she claims to have sustained on August 23, 1930 as the result of a tonsillectomy performed on her at the Illinois Eye and Ear Infirmary, a State charitable institution located at Chicago, at a time when she was a charity patient at such institution.

The claimant had previously had trouble with her tonsils, and was advised by her family physician that they should be removed. Being financially unable to employ a physician to perform the operation, she went to the Illinois Eye and Ear Infirmary, 904 West Adams Street, Chicago, for that purpose. The operation was performed by an interne, and it appears from the testimony introduced on the part of the claimant, that at the time of the tonsillectomy a part of the claimant’s soft palate was cut away. She claims that the operation was performed negligently and unskillfully, and that she has been seriously and permanently injured as the result thereof.

From the medical testimony introduced on the part of the claimant, it appears that she has sustained a loss of voice tone; that her hearing has been impaired; that she has difficulty in taking liquids and frequently suffers a regurgitation thereof through the nose; that such conditions are permanent; and that the loss of voice and hearing may become complete.

The Attorney General maintains that there is no liability on the part of the State for the reason that the State in the conduct and operation of institutions such as the Illinois Eye and Ear Infirmary is engaged in the exercise of a governmental function, and therefore is not liable for the negligence of its servants and agents in connection therewith.

In the ease of Tollefson vs. City of Ottawa, 228 Ill. 134, the declaration alleged that the defendant maintained and controlled a hospital in the City of Ottawa which was maintained for revenue and profit; that the defendant was received in such hospital as a pay patient, and on account of the negligence of the servants of the defendant in caring for the plaintiff, her sickness was aggravated and she thereafter died as a result thereof. A demurrer was sustained to the declaration and the plaintiff elected to abide thereby. The Appellate and Supreme Courts both upheld the trial court and held that the City of Ottawa in the conduct of such hospital was not liable under the doctrine of respondeat superior.

A similar conclusion was reached in the case of Minear vs. State Board of Agriculture, 259 Il. 549. In that case the plaintiff was a patron of the State Fair, and paid an admission fee to enter the grounds and occupied a seat in the bleachers during the races. As a result of the defective condition of such bleachers, they broke and gave way, and the plaintiff fell to the ground and was injured. The Supreme Court there held that the State Board of Agriculture is an agency of the State in the exercise of a governmental function, and is not liable for injuries sustained as the result of its negligence. The principle of law announced in these cases is the well-settled law of this State, and was previously recognized and applied in the case of Hollenbeck vs. County of Winnebago, 95 Ill. 148 and the case of City of Chicago vs. Williams, 182 Ill. 135, as well as numerous other cases.

The rule is set forth in 13 R. C. L. 944, Section 8, as follows:

“Strictly public institutions created, owned and controlled by the State or its subdivisions, such as State asylums for the insane, city hospitals, reformatories, etc., are not liable for the negligence of their agents. The doctrine of respondeat superior does not apply. They are held to be governmental agencies brought into being to aid in the performance of the public duty of protecting society from the individual unfortunate or incompetent in mind, body or morals, and the rules applicable to municipal corporations and public offices generally are applied.”

Such rule has been applied in many cases in this court.

See:

State Bank of Chicago, Admr. etc. vs. State, 1 C. C. R. 158.

Morrissey vs. State, 2 C. C. R. 254.

Schroeder vs. State, 3 C. C. R. 36.

Van Meter vs. State, 4 C. C. R. 325.

Burghardt vs. State, 5 C. C. R. 221.

Pelka, Admx. vs. State, 6 C. C. R. 390.

Furthermore, even if the respondent were a private corporation, under the established law of this State, there would be no liability on the part of the defendant under the facts in this case.

The first case in which the question arose was the case of Parks vs. Northwestern University, 218 Ill. 381. In that case the plaintiff received injuries resulting in the loss of an eye through the negligence of one of the professors employed by the university while the plaintiff was in his charge as a student in a classroom or laboratory of the university. In that case the Supreme Court held that the university was a private corporation organized for purely charitable purposes, and being a charitable institution was not answerable for the negligent acts of its employes.

In the case of Rogan vs. Chicago Lying-in Hospital, 335 Ill. 42, the declaration alleged that the defendant was a corporation organized to provide medical care for women without homes during confinement and to care for their infants; that the plaintiff was not a charity patient but that a substantial fee was paid for his care and for that of his mother; that by reason of the negligence of the defendant, through its nurses, the plaintiff was allowed to be placed in too close proximity to a therapeutic lamp for an unreasonable' length of time and his feet were severely burned. The Supreme Court there reviewed the authorities and held that the great weight of authority in the United States is to the effect that the doctrine of respondeat superior does not extend to charitable institutions, although admitting that there are cases in other jurisdictions which hold to the contrary.

The same rule was followed by the Appellate Court in the case of Simon vs. Pelouse, 263 Ill. App. 177.

Counsel for claimant has argued the question very thoroughly and exhaustively and has cited a number of cases from other jurisdictions, but, as said in Hogan vs. Chicago Lying-in Hospital, supra, although there are some cases in other jurisdictions to the contrary, the great weight of authority in the United States is in accordance with the rule above set forth.

Claimant also relies for recovery upon what he calls the doctrine of social justice, or justice and equity, and refers to several decisions of this court in which awards have been made in reliance upon such doctrine.

The question as to whether this court has jurisdiction to make an award in any case upon such doctrine was exhaustively considered in. the case of Crabtree vs. State, 7 C. C. R. 207, where the decisions of this court from the time of the organization of the Commission of Claims in 1877 down to the present time were reviewed. In that case, after a review of the authorities, this court reached the following conclusion, to wit:

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defined the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The same question was again before the court in the case of Morrissey vs. State, No. 2233, decided at the January Term, 1934, of this court, in which the court again reviewed the question and again held that this court had no authority to make an award, based solely on the doctrine of equity and good conscience. In the last mentioned case this court quoted from the case of Watkins vs. State, 6 C. C. R. 172, as follows:

“Claimants seem to recognize the fact their claims are not legal, for they say ‘they know whatever is allowed them will be allowed out of equity and good conscience.’ The statute creating the Court of Claims gives it powers to hear and determine all claims and demands, legal and equitable, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay. It is plain, from the language of this statute, that no claim against the State can be allowed by this court unless there is either a legal or equitable obligation of the State to pay it. Before a claimant can have an award against the State, he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award, he cannot invoke the principle of equity to secure such an award. Where there is no legal liability, equity cannot create one. (10 R. C. L. Sec. 132.) Equity is not the court’s sense of moral right. It is not the power of the court to decide a case according to a high standard of abstract right, regardless of the law.”

The claimant has apparently sustained a serious and permanent injury, without any fault on her part, and her case appeals very strongly to the sympathies of the court, but as said in the case of Morrissey vs. State of Illinois, 2 C. C. R. 271:

•“We do not make the law and can only interpret it as we find it, and much as we would like to find a judgment for the claimant in this case, considering the facts as they are, we must reject the claim.”

Award must be denied. Case dismissed.


author: Me. Chief Justice Hollebich

text:
    (No. 1877
    Laura Mabel Leckbee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

    Boy D. Johnson, for .claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollebich

delivered the opinion of the court:

The complaint filed herein alleges that prior to and on the 9th day of October, A. D. 1931, the claimant was employed as an attendant at the Soldiers’ and Sailors’ Home, a State institution located near Quincy, Illinois; that it was her duty to do general nursing and care for patients and inmates of such institution, and particularly in Ward C of the Hospital Building; that while in the performance of her duties and while lifting a patient in said building, she sustained a left inguinal hernia; that by reason thereof she was put to considerable expense for nurse, hospital and doctor’s bills, and claims the sum of Twenty-five Hundred Dollars ($2,500.00) damages for the injuries sustained and expenses incurred by her as aforesaid. Claimant bases her right to recover on the terms and provisions of the Workmen’s Compensation Act, and upon what is known as the doctrine of equity and good conscience. However, neither the allegations of the complaint nor the evidence introduced in support thereof show any liability on the part of the State under the Workmen’s Compensation Act. There are no averments in the complaint, and' there is no evidence in the record to show that in the conduct of the Soldiers’ and Sailors’ Home the State was engaged in any department of any of the enterprises or businesses which are declared to be extra-hazardous by Section Three (3) of the Workmen’s Compensation Act.

There is no liability in this case under the so-called doctrine of equity and good conscience. This court had occasion to consider that question in the case of Crabtree vs. State of Illinois, 7 C. C. R. 220; also in the case of Morrissey vs. State, No. 2233, decided at the January Term, A. D. 1934 of this court. In the Crabtree case the previous decisions of the court were reviewed and the court there arrived at the following conclusion:

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay;’ merely defined the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

Claimant having failed to produce evidence showing any liability on the part of the State, there is- nothing the court can do but deny an award and dismiss the case.

Award denied. Case dismissed.


text:
    (No. 2187
    William J. McDonald, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

    E. C. Madden, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of tho court:

Claimant alleges that his automobile was damaged on or about the 7th day of February, A. D. 1933 at Mendota, by reason of the carelessness and negligence of the driver of a State truck. It appears that a blizzard was raging at the time of the accident, and the driver of a State truck and snow plow backed into the automobile of the claimant, thereby causing the damage complained of.

Assuming that the claimant was in the exercise of ordinary care at the time of the accident and that the collision was the result of the negligence of the driver of the State truck, yet such facts are not sufficient to support an award against the State.

This court in numerous cases has held that in the maintenance of its hard-surfaced highways, the State is in the exercise of a governmental function. (Chumbler vs. State, 6 C. C. R. 138; Stoddard et al. vs. State, 6 C. C. R. 27; Bucholz et al. vs. State, 7 C. C. R. 241.)

It has also been held in numerous cases that the State is not liable for the negligence of its servants and agents while engaged in the exercise of a governmental function. (Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Morrissey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77.)

Claimant’s right of action, if any, is against the driver of the truck personally, as there can be no liability on the part of the State in a case of this kind.

Award must therefore be denied. Motion to dismiss allowed.

Case dismissed.


author: Mb. Chief Justice Hollebioh

text:
    (No. 2085
    Benjamin Price, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1934.

    Levisohn & Levisohn, for claimant.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebioh

delivered the opinion of the court:

Claimant seeks to recover damages for personal injuries sustained by him on July 15, 1932 as the result of falling into a certain drain or sewer tile on Lake Shore Drive in the City of Chicago. It is admitted that the accident in question occurred within the confines of Lincoln Park which is under the jurisdiction of the Board of Park Commissioners of Lin-coin Park. Nevertheless, claimant avers that the respondent carelessly and negligently kept and maintained the street and the manhole cover over the aforementioned drain or sewer tile in a dangerous or defective condition; that said cover shifted when the claimant stepped upon it, as a result of which he fell into such drain or sewer tile, and sustained 'the injuries complained of.

The Attorney General has entered a plea to the jurisdiction and the claimant has filed a motion to strike such plea. The facts in the case are admitted and both parties have argued the case upon the merits, and we will therefore dispose of the matter upon the facts as admitted.

Lincoln Park is under the direct control and .supervision of the Board of Park Commissioners, a municipal corporation; having authority to sue and be sued. The complaint does not allege any facts which show any liability on the part of the State, but counsel for claimant, in their brief and argument say: <fBut if the State of Illinois was not liable, who would be liable for claimant’s injury due to negligence?”

It has frequently been held by the courts of this State that the Board of Park Commissioners is not liable for injuries occurring in parks. (Stein vs. West Park Commissioners, 247 Ill. App. 479; Hendricks, Admx. vs. Urbana Park District, 265 Ill. App. 102; Love vs. Glencoe Park District, 270 Ill. App. 117.)

Claimant apparently takes the position that if the Board of Park Commissioners is not liable, the State must be liable, but such is not the law.

The same position was taken by the claimant in the case of Raffaele Trombello, et al., Admrs., etc. vs. State, No. 2237, decided at the January Term, A. D. 1934 of this court, in which the authorities cited by the claimant in this case were considered, and the conclusion reached that the declaration there did not allege any liability on the part of the State. The court must necessarily arrive at the same conclusion in this case and inasmuch as there is no legal liability on the part of the State under the facts as set forth in the complaint, the court has no jurisdiction to make an award.

The plea to the jurisdiction is therefore sustained and the case dismissed.