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    Charles F. Bassett, Joseph H. Sutphin and Fannie D. Hulbert, Executors, and New York Life Insurance and Trust Company, a Corporation, Trustee, v. State of Illinois.

      Opinion filed February 17, 1915.

    1. Inheritance Tax — in order to obtain refund claimant must appeal. Claimants, in order to secure the transfer of certain shares of stock, owned by Henry C. Hulbert, deceased, a resident of New York, paid to the county treasurer of Cook County the amount of the inheritance tax as fixed by the county judge, but did not thereafter pray an appeal from the order of such judge fixing the tax. Held, that no recovery could be had.
    2. Same — must obtain decision in claimant’s favor. In order for a claimant to obtain a refund of an inheritance tax erroneously paid, he must obtain a decision in his favor in some court of competent jurisdiction.
    3. Same — order fixing tax not subject to collateral attack. The order fixing an inheritance tax may not be attacked collaterally, as a basis of a refund of a tax erroneously paid.
    4. Same — section 10 quoted — no appropriation. Section 10 of the Inheritance Tax law provides, that,
    “When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him on satisfactory proof rendered to him by said county treasurer of said erroneous payments to refund and pay to the .executor, administrator or trustee, person or persons who have paid any such tax in error the amount of such tax so paid, provided, that all applications for the repayment of said tax shall be made within two years from the date of said payment.”
    Since no appropriation has ever been made to the State Treasurer for the purpose of refunding taxes erroneously paid, it is impossible for him to comply with the law.
    5. Practice — Oourt not a court of review. The Court of Claims does not sit as a court of review, to pass upon the decisions of other courts.

      Robert E. Turney, for Claimants.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Charles F. Bassett, Joseph H. Sutphin and Fannie B. Hulhert, as executors, and New York Life Insurance and Trust Company, as trustee, all under the will of Henry C. Hulhert, deceased, have presented their claim for a refund of inheritance tax which, as they say, was erroneously paid.

Decedent was a resident of the State of New York, and died on April 24,1912. Letters testamentary were issued to the above named executors by the surrogate court of Kings County, New York. The trust company was appointed trustee of $1,700,000.00, for purposes as set forth in the 54th paragraph of the will of the decedent.

Included in decedent’s estate, were 9,625 shares of stock of the Pullman Company, an Illinois corporation, 400 shares of preferred stock of the National Biscuit Company, a New Jersey corporation, and 300 shares of common stock of said National Biscuit Company.

On October 1, 1912, an inheritance tax appraiser, previously appointed by the county judge of Cook County, Illinois, made a report to the county court, in which he assessed the value of the Pullman Company stock at $1,549,625.00, of the National Biscuit Company preferred at $5,160.00, and of the National Biscuit Company common stock at $4,488.25, and he assessed the net estate of Susan C. H. Sutphin, assessable in Illinois, after deducting exemptions, at $759,636.87, and of Caroline H. Bassett at a like amount. These two parties were daughters of the decedent. The appraiser applied a rate of two per cent, fixing the tax on each share at $15,192.74.

The Attorney General and State Treasurer had refused to consent to the transfer under section 9 of the inheritance tax law of the above described stock certificates, and the executors paid $28,866.21, being the amount of the tax less five per cent, to the county treasurer of Cook County. This amount was duly remitted by the county treasurer to the State Treasurer.

Claimants did not appeal from the order of the county judge, but on February 26, 1914, they filed a petition in the county court of Cook County, asking that the order of the county judge be vacated and praying for a new appraisal.

On April 15, 1914, this petition was denied, but the county judge in denying same, filed a memorandum opinion stating, that the reason for the denial of the petition was, that the time designated in which the county court may review the errors complained of had passed, but he also stated, that notice had been served by the inheritance tax appraiser of hearing for the purpose of taxation upon the county treasurer of Cook County, the attorney for executors, the executors and two residuary beneficiaries, but no one else had been served. He also stated in said opinion, that the appraiser and county judge did not follow the evidence as to actual distribution of the property, but in error acted without regard to the proof made in the appraisement. The evidence submitted at the appraisement was to the effect, that the executors intended to distribute the Pullman Company stock subject to the 54th article of the will of the decedent, but the appraiser taxed same as though it were taken by the daughters, and the county judge said: “From a careful investigation of the proceedings, there is no question but what the appraiser and the county judge erred in the distribution for taxation of the property, and that an erroneous tax was assessed and that the allegations of the petition distributing said property for taxation and particularizing the same, are true.” The judge further said: “There is no question but that a large part of the tax paid in this case was unlawful and erroneous, and that the said executors paid an excess and erroneous tax in the State of Illinois as alleged in the petition.” But because of the fact that the statute provides remedy by appeal, the court denied the petition for re-hearing.

Claimants contend, that the Pullman Company stock passed to the trustee under the will as hereinabove stated, and, that it should pay the tax instead of the parties who did pay it, and that the appraiser arbitrarily distributed the stock to two daughters so that the tax would be high. They further claim that the order of the county judge was not submitted to them, and on the theory that the judge had followed the law, paid the tax. They further claim that after the time for appeal had elapsed, they learned of the errors, employed counsel and filed the petition for re-hearing. It is further claimed that the National Biscuit Company stock was not taxable, it appearing that it was taxed on the theory that while this company was a nonresident corporation, it was licensed to do business in Illinois, and had more than ten per cent of its property in this State. It was further shown by claimants that in the memorandum opinion of the county judge filed with the order denying a re-hearing, that the amount erroneously paid was $12,067.00, and that afterwards the executors in making distribution of the Pullman Company stock found it necessary to divert some of the stock so that the erroneous tax actually amounted to $10,268.59.

Claimants contend that under section 10 of the inheritance tax law, it is unnecessary to appeal from the county judge to the county court, and assert that this section does not specify that as a condition precedent, there must be a reversal of the order of the county judge before application shall be made for a refund.

Claimants cite the case of In re Hoople, 179 N. Y., 308, 72 N. E., 229, as completely establishing their right to a refund. In that case, it appears that decedent died on June 7, 1905, and an inheritance tax was fixed and paid. The estate consisted partly of United States bonds. It was subsequently held that United States bonds were not taxable, and eight years after the making of the assessment, the executor in that ease petitioned the surrogate court to vacate that part of the order which related to the taxation of United States bonds. The petition was granted and under the New York law the State Comptroller was ordered to refund $660.00. The Comptroller appealed, and finally in the Court of Appeals the order was reversed on the ground that application had been made too late, in that, the time within which such application could be made was limited by statute to five years. The Court also pointed out that a surrogate had power under the statute to reverse an order fixing a transfer tax by directing a refund.

Claimants also point out that our Supreme Court in In re Ullmann, 263 Ill., 528, 530, said: “ # * * The most that can be said in support of the opposite side is that the language used leaves the legislative intent in some doubt. In that case the doubt would be required to be resolved in favor of appellant, for the tax sought to be collected is a special tax and the law imposing it is required to be construed strongly against the government and in favor of the tax payer.”

Claimants also contend, that the proceedings before the county judge were defective, in that, all parties interested were not notified in the appraisement proceedings, and they argue that section 11 of the inheritance tax law makes it a condition precedent to the jurisdiction of the court and the appraiser, that notice be given by mail to all parties known to have or claiming an interest in such property, and claimants assert that parties interested in the Pullman Company stock were all of the beneficiaries under the 54th article of the will, and it is apparent on the face of the record that all were not served, and cite New York cases in support of their contention. Counsel for claimants contend, that an appeal was not necessary under section 10 of the law, but that the mere fact that error is apparent should suffice for this Court to order a refund. On the other hand, the State sets up that the order of the county judge was not set aside but remains in full force and effect, that the petition for rehearing was dismissed by the county court and no appeal was prosecuted from this order; that provision for refund of inheritance tax by the State Treasurer is found in section 10, but that no appropriation has been made to the State Treasurer for this purpose; that this Court is not a court of review to pass upon the findings of another court; that claimants, not having prosecuted an appeal from the county judge and obtained a decision in their favor, may not obtain an award in this Court; that this tax was paid voluntarily; that the claimants endeavor to secure an award by collateral attack of the order of the county judge; and that this Court has previously held, during the October session of 1912, in support of the contention of the State.

It is provided in section 11 of the inheritance tax law, that an appeal may be taken from the order 'of the county judge fixing an inheritance tax, to the county court within sixty days of the making of the order, and section 10 of the law is as follows:

“When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him on satisfactory proof rendered to him, by said county treasurer of said erroneous payments to refund and pay to the executor, administrator or trustee, person or persons who have paid any such tax in error the amount of such tax so paid, provided that all applications for the repayment of said tax shall be made within two years from the date of said payment.”

In the case of United States Trust Company of New York, Executors, etc., v. State of Illinois, decided at the October Term, 1912, of this Court, this Court said:

“This Court is asked to review the proceedings in the county court, and the order of the county judge, and hold that the county court has no jurisdiction. Claimant has not followed the plain provisions of the law provided for the reviewing of the order of the county judge by an appeal to the county court. The order of the county judge consequently stands unquestioned, except by this application to this Court, and this Court is asked to assume the power conferred upon the county court under the statute in question and reverse the order of the county judge. We are of the opinion, that this Court has no such jurisdiction conferred upon it, and that so far as this Court is concerned, the inheritance tax in question is a legal tax and was not erroneously paid, and continues to be a legal tax until such time as an appeal is prosecuted according to the statute in question and the order of the county judge reversed by a court of competent jurisdiction. This Court cannot review the order of the county judge. The statute in question provides for the manner of reviewing the order of the county judge, and it is essential and necessary that any one desiring a refund of inheritance taxes claimed to have been paid erroneously, must first have the inheritance tax declared erroneous by some court of this State in accordance with the inheritance tax law, and inasmuch as the claimant in this case has wholly neglected to take the steps provided by this law, we are compelled to dismiss its claim without a consideration of the merits of the same.”

We are not disposed to hold differently now with respect to the statement made by the court in that case. The New York cases cited by counsel for claimants arose under statutes permitting appeals and application for rehearing, and the jurisdiction of this Oourt is not that of a court of review in any sense. We cannot arrogate unto ourselves in this case the authority which was conferred by statute on the New York Court of Appeals as in the Hoople case, and we are not permitted to review the erroneous order of the county judge. We are satisfied that the order was erroneous, and we are further satisfied of the truth of the facts as presented by claimants, and there is no doubt but that the State of Illinois has received from claimants $10,268.59 more than it is actually entitled to receive.

With this statement of the opinion 'of the Court, it will not he necessary to consider any other of the questions raised, if we were satisfied to- reject this claim instead of rejecting same without prejudice. To hold otherwise, it would he necessary for us to so construe the statute that, the application to the State Treasurer alone should he considered, and an appeal would he but surplusage and unnecessary. Effect, however, must be given to all parts of the statute, if possible, and the intent of the legislature it is apparent was, that before a refund can be had of tax erroneously paid on order of the county judge, an appeal must be taken to the county court, the order of the county judge must be changed or modified, and application made to the State Treasurer for the refund based on the final order of court within two years as provided in section 10.

If then, the order of the county judge is a final order, and it is in this case, that order cannot be collaterally attacked in this Court, and it would appear that this proceeding is of that nature.

If this were a case between parties subject to the jurisdiction of a circuit court, and if the claimants had paid the tax under a mistake of fact, they would undoubtedly be entitled to some manner of equitable relief. But it does not appear that the money in this case was paid under a mistake of fact, but on the contrary it clearly appears that it was paid under a mistake of law for which there can be no such relief.

On the other hand, this case is different in its nature than une between parties subject to a circuit court’s jurisdiction in that, the sovereign State of Illinois made the law under which it received this tax, and it would not seem entirely just and equitable that it should retain moneys which, if its own laws were properly administered, it would not have received. But this thought would not justify us in any manner in finding the issues for the claimants, but in the rejection of the claim, we feel that we are justified in rejecting same without prejudice to the rights of claimants, as we are permitted to do by statute, so that the State, by its legislature, may make amends if it so sees fit.

It is the judgment of this Court, that the claim be rejected, but without prejudice to the rights of claimants to present their claim to the legislature or proceed in any other court if they may so see fit.


source: Caselaw Access Project

license: Public Domain

text:
    Wells-Liddell Company v. State of Illinois.

      Opinion filed March 17, 1915.

    1. License Fees — failure to do business mil not warrant return of. Claimant, a South Dakota corporation, asks an award on account of a fee paid the Secretary of State of this State for filing an application to do business in this State, stating that it has done no business in this State. Held, that claimant is not entitled to a return of the fee so paid.
    2. Same — retention of by State. The statutes of this State require the payment of a fee to the Secretary of State before any papers may be filed, and the retention of the fee by the Secretary of State is in no way conditional upon any further steps being taken by the corporation or individuals.
    3. Same — indivisible. A fee to incorporate is indivisible.
    4. Payment — voluntary—no recovery. Money paid voluntarily and not under a mistake of fact may not be recovered.
   This is a claim filed by Wells-Liddell Company, a South Dakota corporation, for thirty dollars ($30.00) paid to the Secretary of State, .as a fee for filing application of this company for a license to do business in the State of Illinois.

The provision of the statute in reference to the case at bar involves the same principles as in the case of Wm. McKinley, R. W. Hood and J. R. Ebersole v. State, decided at the October Term of this Court, 1910, wherein, this Court decided that the provision of the law, chapter 53, Hurd’s Revised Statute 1909, is clear, that payment of the sum of thirty ($30.00) dollars was a requirement which must be complied with, before the Secretary of State could issue any papers whatever, and that retention of the fee by the Secretary of State is in no way made conditional upon the corporation or individual taking further steps. The law does not make this fee divisible and this Court has no authority to decide this case contrary to the plain provisions of the law.

This money was voluntarily paid to the Secretary of State for the purpose of doing business in this State, and it was not by reason of a mistake of fact, and was not compulsory, and there is no evidence showing that the State has refused or prohibited this claimant from doing business in this State, and under such circumstances we feel claimant is not entitled to a return of this money, either in law or equity. Therefore the claim is rejected.


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    Walter Warn v. State of Illinois.

      Opinion filed March 17, 1915.

    1. Park Commissioners — control Sherman Park. The Board o£ South Park Commissioners has legal control over Sherman Park.
    2. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior is not applicable to the State
    John F. Higgins and Gallagher and Messner, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant filed a declaration in which he charges that while he and a companion, on July 3, 1911, were in a row boat on the lagoon at Sherman Park, Chicago, a launch controlled by certain persons there employed ran into their boat, as a result of which claimant was injured; that the park was operated by the Board of South Park Commissioners; that the row boat was being rowed by a companion of claimant; that the employees from whom the row boat was rented and those running the launch were employed by the South Park Commissioners; that the accident was due to the negligence of the employees operating the launch; that the launch was not properly equipped with machinery to stop and reverse it; that claimant sustained injuries including a fracture of the skull and injuries to his right arm; that he was in a hospital one week and at home six weeks as a result of the injuries and the claim is for ten thousand dollars.

To this declaration the State has demurred, both generally and specially; the special causes being that the operation of boats for hire by the commissioners is not authorized by law and that the State is not responsible therefor; that the declaration fails to state that the companion of claimant, who was rowing the boat, was in the exercise of ordinary care, and that the declaration does not preclude contributory negligence on the part of said companion of claimant.

This Court has passed upon the question raised by the first stated cause on special demurrer many times, most recently in the case of Buszkiewicz, Admr., v. State, opinion filed this day, which was a case similar in some respects to the one under consideration. In the cited case, claimant was an employee of the Lincoln Park Commissioners, and was injured, as he claimed, through negligence of employees of the Lincoln Park Board. In that case, we quoted the opinion of this Court in State Bank of Chicago, Admr., v. State, 1 C. of C. R., 158, on page 164, wherein we said :

“Public or State officers with only certain powers and duties enjoined upon them by the statutes, do not come within the doctrine of respondeat superior. Applying this rule, the South Park Commissioners being merely appointive officers, with certain statutory powers, are mere subdivisions of the government. They are mere assistants to the State in the exercise of its functions; not created at their own instance and request, but for the purpose of aiding and assisting the sovereign power of the State in carrying on the functions of the government and they are not liable for the negligence or tortious acts of its servants.” Further the Court said: “* * * It has been judicially decided that the Board of South Park Commissioners are not liable in their corporate capacity. How, then, can it be now claimed that the State is liable for the acts of the Board of South Park Commissioners?”

It will be noted, that in passing on the point in the last cited case, that the accident in question arose within the jurisdiction of the South Park Commissioners.

We see no reason to change or modify the rule as laid down in the last cited case, and in the Buszkiewicz case.

In our view of the case, it will be unnecessary to consider other questions raised.

The demurrer will be sustained.


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    James B. Smith v. State of Illinois.

      Opinion filed March 17, 1915.

    1. Statutory Construction — general rule with reference to adopted statutes. Where an Act adopts another Act by reference, it means the law as then existing, and does not include subsequent amendments, unless there is an express or strongly implied intent to adopt such amendments.
    2. Same — exception to general rule. Where, however, the adopting statute makes no reference to any particular Act by its title or otherwise, but refers to the general law regulating the subject, the reference will be regarded as including, not only the law in force at the date of the adopting Act, but also the law in force when action is taken or proceedings are resorted to.
    3. Same — all words in Act given effect. It is a rule of statutory construction, that all the words in an Act must be given effect, if possible.
    4. Words and Phrases — meaning of phrase “now m force.” The words “now in force,” which are used in section 14, supra, are defined by clause 18, par. 1, chap. 131 [statutes], Hurd’s Rev. Stat., 1913, p. 2379, to mean: “The term, Taws now in force,’ and words of similar import, shall mean the laws in force at the time the Act containing the words, shall take effect.”

      W. O. Potter, and Gillespie & Fitzgerald, for Claimant:
    The most important rule of statutory construction is, that the law will be so construed as to carry out the intention of the legislature.

      People v. Harrison, 191 Ill., 257.
    The courts will take into consideration the purpose for which the law was passed, the conditions then prevailing, and will give effect to its true intent, even if necessary to disregard its strict letter.

      People v. Harrison, 191 Ill., 257; People v. Kipley, 171 Ill., 44; People v. Chicago, 152 Ill., 546; Anderson v. Railroad, 117 Ill., 26.
    Absurd consequences in the application of a statute will not be imputed as a legislative intent. Courts are bound to presume that such was not the intention of the legislature, and must adopt a construction which will promote the ends of justice and avoid absurdity.

      People v. Harrison, 191 Ill., 257; Wabash, etc. Railroad Co. v. Binkert, 106 Ill., 298; People v. Marshall, 1 Gilm., 672; Bryan v. Buckmaster, Breese, 408.
    Uniform construction by officers will be given great weight by courts.

      Nye v. Foreman, 215 Ill., 285; Cook County v. Healy, 222 Ill., 310; People v. Crossley, 261 Ill., 78.
    Where the adopting statute makes no reference to a particular Act by Its title or otherwise, but refers to the general law regulating the subject in hand, the reference will be regarded as including not only the law in force at the date of the adopting Act, but also the law in force when the action is taken or the proceedings resorted to.

      People v. Crossley, 261 Ill., 78; Culver v. People, 161 Ill., 89; Lawrence v. People, 188 Ill., 407; Snell v. City of Chicago, 133 Ill., 413.
    P. J. Lucey, Attorney General, and Arthur E. Eoy, Assistant Attorney General, for State:
    The word “now” has a settled and well-defined meaning. It signifies at the present time, at a time contemporaneous with something done.
    29 Cyc., 1140; Pike v. Kennedy, 15 Ore., 420, 15 Pac., 637; Chapman v. Holmes’ Excrs., 10 N. J. L., 20, 26; King v. Miller, 53 Ore., 53, 97 Pac., 524; Tillamook City v. Tillamook County, 56 Ore., 112, 115; Nutt v. U. S., 26 Ct. Cl., 15, 17; In re McNabb, 175 Fed. Rep., 511.
    The expressions “now in force” and “now existing” are applicable to the present time, and do not include subsequent acts.

      State v. Smith, 72 Ind., 549, 550; Beard v. Smith, 22 Ky. (6 Mon.), 430, 453; Barrows v. Peoples’ Gas Light & Coke Co. et al., 75 Fed. Rep., 794; Tillamook City v. Tillamook County, 56 Ore., 112, 115; Hurd’s Stats., 1913, chap. 131, par. 1, 18th clause, p. 2379.
    Legislative intention manifested by subsequent amendment of Act.

      Lawrence v. People, 188 Ill., 407, bot. 413, top 414; U. S. v. Freeman, 3 How., 556.
   Claimant was warden of the Southern Illinois Penitentiary at Chester from July 1, 1903, to May 1, 1913.

This penitentiary was created by an Act approved May 24, 1877, in section 14 of which Act, it was provided, that “in order that uniformity may prevail in the penitentiary system of this State, all laws and regulations now in force, for the government and management of the penitentiary at Joliet, shall hereby, so far as practicable, apply to the government and management of said ‘Southern Illinois Penitentiary,’ ” Revised Statutes 1912, chapter 108, paragraph 69.

The salary of the warden of the penitentiary at Joliet was $2,500.00 per annum until the year 1897, when it was increased to $4,000.00, and on July 1, 1911, it became $5,000.00.

No Act increasing the salary from $2,500.00 per annum specifically applied to the salary of the warden of the Southern Illinois Penitentiary, until the General Assembly in 1913 amended section 14 of the Act hereinabove quoted, so that the same now reads, “in order that uniformity may prevail in the penitentiary system of this State, all laws and regulations now in force or that may hereafter be enacted for the government and management of the penitentiary at Joliet, including the salaries and compensation of the officers and employees thereof, shall be and is hereby declared and construed so far as practicable, to apply to the government and management of said Southern Illinois Penitentiary.”

Claimant received salary from July 1, 1911, until his resignation on May 1, 1913, at the rate of $4,000.00 per year, and prior to that time had received salary at the rate of $3,600.00 per year. Appropriations for the Southern Illinois Penitentiary were paid quarterly to the institution by the Auditor, and checks were made out signed by the warden. Mr. Smith made demand of the Commissioners of the Southern Illinois Penitentiary, that he be paid at the rate of $5,000.00 a year, and they referred the matter to the Attorney General, who gave as his opinion, that Mr. Smith was not entitled to such compensation, because of the fact, that the law made provision for such salary at Joliet, holding, too, that the law in force on July 1, 1911, fixing the salary at Joliet did not apply to the Southern Illinois Penitentiary. Counsel for claimant argue, that since the law was amended in 1897, by which the salary of the warden at Joliet was increased from $2,500.00 to $4,000.00 per year, and the fact, that the warden of the Southern Illinois Penitentiary received a like amount, that this is a construction placed by the Commissioners of the Southern Illinois Penitentiary of the legislative intent. Prom the evidence of claimant, however, it would appear that he received a salary of $3,600.00 per year up to a time about two years prior to the date of his testimony in 1914.

Under the circumstances, we are not prepared to hold with counsel’s contention regarding the construction of legislative intent. It is apparent that the warden was paid such salary as the commissioners saw fit to pay him..

The case then resolves itself into an endeavor to ascertain the proper construction of section 14 of the original Act creating the Southern Illinois Penitentiary, and of the amendatory Act, and to place proper construction on the language used.

The case has been very ably argued by counsel on both sides, and very exhaustive references have been made to the cases bearing on the subject. Unless we can clearly ascertain, that it was the legislative intent at the time the Act of 1877 was passed, that all future laws, as well as those then in existence having application to the Illinois State Penitentiary should have like application to the Southern Illinois Penitentiary, of course, there can be no recovery.

The rules with relation to the construction of a statute of this sort, are well discussed in Culver v. People, 161 Ill., at page 96, where it is said:

“The general rule is,' that an Act, which adopts by reference the whole or a portion of another statute, means the law as existing at the time of the adoption, and does not include subsequent additions or modifications of the statute so adopted, unless it does so by express or strongly implied intent.”

The Court then discusses exceptions to the rule and while it states, that one of the exceptions is where “the adopting statute makes no reference to any particular Act by its title or otherwise, but refers to the general law regulating the subject in hand, the reference will be regarded as including, not only the law in force at the date of the adopting Act, but also the law in force when action is taken or proceedings are resorted to.” In the case at bar, however, it would appear that while the statute under discussion does not refer to the laws governing the penitentiary at Joliet by title, yet it does refer to them as “laws now in force.” Had this statute read “all laws and regulations for the government and management of the penitentiary at Joliet,” we have no hesitation in saying that claimant would have been entitled to recover in this case. But, it is a rule of statutory construction, that effect must be given to all words if possible. The words “now in force” were certainly inserted for a purpose, and must have some well defined meaning, which it is our duty to ascertain.

The legislature has defined what these particular words mean by its Act of March 5, 1874, in force July 1, 1874, being chapter 131, clause 18, paragraph 1, Revised Statutes, by the following enactment:

“The term ‘laws now in force’ and words of similar import shall mean the laws in force at the time the Act containing the words shall take effect.”

It will be observed that this Act of the legislature was law at the time the Act of 1877 creating the penitentiary at Chester became a law.

Further discussion of the cases bearing on statutory construction would undoubtedly be most interesting and to a degree illuminating, but this section of the statute last above quoted must be decisive of the point under discussion. Study of the cases cited leads us to the same conclusion as we arrive at by reading of the statute cited, and it is the opinion of this Court, that claimant is not entitled to recover in manner as he claims in his declaration.

The pleadings in the case before ns are a declaration and demurrer; evidence has been taken by stipulation. In the present state of the pleadings and for the reasons above assigned, it is the judgment of this Court that the demurrer of the State be sustained.


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    Roscoe L. Drennan v. State of Illinois.

      Opinion filed March 17, 1915.

    Statute of Limitations — claims barred if not filed within two-year period. Where the cause of action accrued on August 3, 1912, and the claim was not filed with the Auditor until February 16, 1915, the Statute of Limitations is a bar to the claim.
    C. B. Taylor, for Claimant.
    P. J. Lneey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   Claimant, a resident of Champaign County, aged twenty-eight years, was a member of Company G, Fourth Infantry, Illinois National Guard, and from July 28 to August 3, 1912, was on duty at Camp Lincoln, Springfield. On August 9,1912, he was taken ill and on August 12 became completely paralyzed and helpless. His ailment was diagnosed as infantile paralysis. He was confined to his bed until December 1, 1912, and since then has been able to move about only with the aid of crutches or other objects, 'and with great difficulty.

In the opinion of physicians who have examined him, he is permanently paralyzed and his case is incurable. The physicians who testified do not agree as to the time elapsing between exposure to the germ of this disease and the time of incubation, one saying ten to fourteen days, another that the period of incubation is from eight to ten days from the time of exposure to the time fever sets in and ten to fourteen days to paralysis.

Claimant testified that he sustained no injury while in camp. He received from the State one dollar a day for thirty days, and the medical board allowed him one dollar per day for six months more. The doctors’ and nurses’ bills and general expenses have been paid by the State.

Claimant seeks to recover under article 16, section 11 of the Military & Naval Code (Hurd’s Rev. Stat., 1913, p. 2364). The provisions of this section are as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man, in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or Ms heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall net on or adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs on recommendation of a board of three officers, one of whom shall be an officer of the medical department.”

Under section 10 of the same article and Act, claimant has been paid by the State, but he is not here seeking to have such payments continued, as provided in said section, but seeks to recover damages.

Claimant testified that he was in camp in the discharge of Ms regular duties in obedience to orders from Ms superiors. The record does not set up the orders of the Commander-in-Chief in this particular, but, it is not questioned, but that such orders were issued, and that it was in compliance with such orders that claimant was in camp.

This Court, in the case of Blickhan v. State, decided at the October Term, 1910, recognized tMs section of the -statute as applicable to a case of tMs nature; claimant has received benefits from the State under the provisions of the Military and Naval Code and we are of the opinion, that in this case claimant would be entitled to recover were it not for another question involved.

This claim was filed in this Court on February 16, 1915, and the cause of action arose not later than August 3,1912. More than two years have elapsed between the two dates. It is provided in section 4 of an Act to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, same appearing also in chapter 84, paragraph 31 of the Revised Statutes of 1913, that “hereafter all' unliquidated claims against the State shall be proved up and filed as above, within two years from the time such claim may have arisen; and any claim not presented and proved up as above, and filed, shall be forever barred from payment by the State. ’ ’ The rule of this Court is as follows: “If it appears on the face of a declaration that the claim is barred by Statute of Limitations, the same may be dismissed.’’

In this state of the case, claimant is not entitled to recover in this Court. We do not want to bar claimant’s right to present his claim to the legislature, having in mind the facts as presented in this record and the serious nature of the disease from which claimant suffers. Were it not for the fact that the claim is barred by the Statute of Limitations, we would undoubtedly award the claimant the sum of eight thousand ($8,000.00) dollars. Under the circumstances, however, the claim is rejected without prejudice to the right of claimant to present his claim to the legislature.


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    Vincent Buszkiewicz, Administrator of the Estate of Kazimier Halas, Deceased, v. State of Illinois.

      Opinion filed March 17, 1915.

    1. Respondeat Superior — doctrine of not applicable to State. The doctrine of respondeat superior does not apply to the State, and the State is not liable for the torts of its officers, agents and employees.
    2. Same — does not apply where officers exceed authority. Neither is the State liable if its officers exceed their authority.
    3. Park Commissioners — are State officers. The West Chicago Park Commissioners is a municipal corporation. (Backer v. West Chicago Park Commissioners, 66 Ill. App., 507; Brown v. City of Decatur, 188 Ill. App., 147), and the commissioners are State officers. (WiZcoa; v. People, 90 Ill., 186; West Chicago Park Comr missioners v. McMullen, 134 Ill., 170.)
    3. Workmen’s Compensation Act — Act of 1911 did not include State. The Workmen’s Compensation Act of 1911 did not include the State within its terms.
    Frank P. Sadler, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The declaration in this case charges that the State of Illinois, acting through the Lincoln Park Commissioners of Cook County, was the owner of a railway in Lemont, Cook County, upon which it was engaged on September 15, 1912, in operating a certain engine by its servants; that plaintiff’s intestate was in the employ of the State acting through said commissioners; that certain servants of the State, acting through the commissioners, placed a plank along the foot hoard of the engine so that it extended out on both sides of the track, which plank was to he transported to an excavator used in a rock plant where certain blasting work was being done; that while the decedent was in the exercise of due care and diligence for his own safety and while he was riding on the foot hoard, the State, by its servants, carelessly drove and managed the engine so that the plank came in contact with a stone box near the track, by means of which decedent was thrown in front of the wheels of the engine which ran over and killed him.

The declaration avers the heirship and deprivation of support, that the claim has not been assigned nor been presented to any one except the commissioners of Lincoln Park, who requested that it be held in abeyance for consideration by the board to be appointed by Governor Dunne; that the claim was presented to said new board and settlement demanded under the Workmen’s Compensation Act in force May 1, 1912, or that a cash sum equivalent to what the petitioner would realize under the terms of said Act should be paid and that the claim was rejected by the Park Commissioners. Claimant demands ten thousand ($10,-000.00) dollars as damages.

To this declaration the State has demurred specially and generally, and for special causes of demurrer states, that the doctrine of respondeat superior does not apply, and that the State is not liable for the torts of its officers, agents or employees; that claimant is not entitled to recover under the Workmen’s Compensation Act of 1911, which did not include the State as an employer; that the statement is uncertain and indefinite and does not state a cause of action; that there is no copy of letters of administration attached to the duplicate copy of the declaration filed.

The last two special causes of demurrer are not argued by the State, nor are they good causes of demurrer. We will consider (1), the question of tbe applicability of the doctrine of respondeat superior, and, that the State is not liable for the torts of its officers, agents or employees; (2) the claim under the Workmen’s Compensation Law of 1911.

The Appellate Court of the First District of Illinois in Backer v. West Chicago Park Commissioners, 66 App., 507, 510, said:

“The West Chicago Park Commissioners is a municipal corporation, having certain limited powers granted to it by the legislature. The members of the Board of West Chicago Park Commissioners are agents, by whom, in part, the people of the State carry on the government. Their functions are essentially political and concern the State at large, although they are to be discharged within the town of West Chicago. * * * We cannot doubt that these Park Commissioners come within the term of officers. Wilcox v. People, 90 Ill., 186; West Chicago Park Commissioners v. McMullen, 134 Ill., 170. The parks and boulevards owned and controlled by the Park Board are held for the use of the public generally, as well as for the public in their immediate vicinity. West Chicago Park Commissioners v. The City of Chicago, 152 Ill., 393.”

The Appellate Court in the same case, quoting Dillon on Municipal Corporations, said:

“* * * But if, on the other hand, they [the agents or servants of the municipal corporation], are elected or appointed by the corporation in obedience to the statute, to perform a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature in the distribution of the powers of government — if they are independent of the corporation as to the tenure of their office, and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but as public or State officers, with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable.”

In State Bank of Chicago, Admr., etc., v. State, 1 C. of C. R., 158, 164, this Court said:

“Public or State officers with only certain powers and duties enjoined upon them by the statutes, do not come within the doctrine of respondeat superior. Applying this rule, the South Park Commissioners being merely appointive officers, with certain statutory powers, are mere subdivisions of the government. They are mere assistants to the State in the exercise of its functions; not created at their own instance and request, but for the purpose of aiding and assisting the sovereign power of the State in carrying on the functions of the government and they are not liable for the negligence or tortious acts of its servants. * * * ” Further the Court said: “ * * * it has been judicially decided that the Board of South Park Commissioners are not. liable in their corporate capacity. How then can it be claimed that the State is liable for the acts of the Board of South Park Commissioners?”

In Johnson v. State, 1 C. of C. R., 208, a case wherein claimant was injured while in the employ of the Board of Park Commissioners of West Chicago, and on page 209 this Court said:

“The demurrer raises the question whether the State of Hlinois is responsible to the claimant for the wrongful or negligent acts of its subordinate officers. This question has been so frequently decided and the authorities are so numerous that we deem it only necessary to cite them. * * # In these cases the Commission held the rule to be well settled that a State could not be held liable for the wrongful or negligent conduct of its officers. The principle is so well established by authority as to admit of no doubt.”

The above quoted cases are cited with approval in Fowler, Admr., v. State, heretofore decided in this Court.

Claimant in this case argues that Lincoln Park Commissioners, in operating a railroad, exceeded the duties imposed by law. If that were the case, then the right of action would appear to be against the commissioners and those running the railroad as individuals. The State is not liable for the acts of its agents acting outside the scope of their authority.

Counsel for claimant has referred us to the case of Holmes v. State, 1 C. of C. R., 324. The opinion in the Holmes case has not been generally followed by the Court of Claims as an authority and in the later case of Morrissey v. State of Illinois, decided at the October Term, 1913, the rule as laid down in the Holmes case is discussed.

The Morrissey case is one practically identical in the facts with the Holmes case. In the Morrissey case we said:

“An examination of the cases leads us irresistibly to the conclusion, that the test of the capacity in which the State acts, is not what its agents may have been doing, but it is to be determined under what authority or law the agents were acting, and whether or not the State retains sole control of the agency involved. It cannot be said that the State cannot act governmentally along exactly the same lines that a private individual may act. We can readily appreciate that the leasing of privileges to cut ice or power privileges may be, in their nature, private enterprise, yet on the other hand, it cannot be said that the State, in the exercise of governmental function, cannot do these very things. # # * gtate, in the discretion of its legislature, may change the official organization of the canal commission at will and the Canal Commissioners and their employees are, in every sense of the . word, public servants under the complete control and direction of the State. Whatever of authority is vested in'the commission or its employees is either specifically provided for by statute or is necessarily incidental thereto. # * # The Holmes case is practically sui generis with respect to the holding of this Court in the past, in holding that the State entered into private business enterprise. There are cases wherein the State has assumed responsibility for injuries sustained even when the defense of the exercise of governmental function might have been interposed, but this is done only by statute and the State clearly has the right to do that. # * * So the State could have enacted that one injured through negligence of the State on the canal should be compensated, but the difficulty confronting the claimant is that there is no statute that so provides, and in the absence of such statute, it is the opinion of this Court that the finding in the Holmes case should not be followed.”

In our view of the case under consideration, under the rule as laid down in the Morrissey case, the demurrer of the State on that point must be sustained.

With reference to the claim under the Workmen’s Compensation Law of 1911, the demurrer must likewise be sustained.

The declaration does not really set up a claim under that Act, but counsel on both sides argue on the theory that it does.

The fact that the law of 1913 in the definition of the term “employer” includes the State, does not convince us that in the omission of such definition of the law of 1911, it was intended to include it in that law. If the law were applicable, then claimant is not in the proper forum, because that law provided for the appointment of the third arbitrator by the judge of a court in the county where the injured employee resided, and for appeals to the circuit court or the court that appointed the third arbitrator, of the county where the injury occurred, and in such view of the case, this Court would be without jurisdiction.

We do not believe that the law of 1911 applied to employees of the State, and the very fact that the law of 1913 did, in its definition of employer, include the State, would aid in determining that it was not the intention of the legislature to include the State in the former Act.

Counsel for claimant has referred us to the recently decided case of Brown v. City of Decatur, 188 Ill. App., 147, with the statement that “as Park Boards are a certain kind of municipal corporation, the Lincoln Park Board is included within the words ‘every employer,’ used in section 2 of the Act of 1911.” This decision conforms with our view of the case, in that, if the board is a body subject to liabilities imposed by this law, the demurrer, based on the first two special causes assigned, will be sustained and as to the last two will be overruled.


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    Ella L. Bernard v. State of Illinois.

      Opinion filed March 17, 1915.

      Contracts — when law will imply promise to pay. In this claim, the State received the benefit of certain materials purchased by claimant while she was employed at the Elgin State Hospital. Held, that claimant should be awarded the amount expended by her in purchasing such materials.
    Ellis & Western, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The declaration in this case alleges that the claimant, Ella L. Bernard, was an employee of the State of Illinois, as superintendent of the fancy work department of the Elgin State Hospital for the insane, situated at Elgin, Illinois; that as a part of her employment it was her duty to purchase for and on behalf of the State of Illinois certain materials for use in her department by patients at the hospital, in making the fancy work.

It was decided between her and the head nurse at the institution, that a certain bed spread be prepared in the department under the management of claimant, for exhibition at a State Charities Conference held at LaSalle; that materials of extra fine quality should be procured to be used in making the bed spread.

After considerable investigation, claimant purchased certain materials for use in the manufacture of the bed spread at the store of Marshall Field and Company, Chicago, and paid therefor out of her own funds the sum of ten dollars and forty-one cents ($10.41). The purchase was made with the knowledge and consent of the chief nurse at the hospital, under whose direction and supervision the claimant was employed. The materials were used in the making of the bed spread which is the property of the State of Illinois.

After an investigation of the facts in this case, we find that the State of Illinois has received the benefit of the materials purchased by claimant in this case to the value of ten dollars and forty-one cents ($10.41) and we are of the opinion that claimant is entitled to this amount. We, therefore, accordingly award claimant the sum of ten dollars and forty-one cents ($10.41).


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    A. J. Beberstein v. State of Illinois.

      Opinion filed March 17, 1915.

      Aemobies — Bradford v. State ante followed. This claim is similar to the claim of Bradford v. State, supra, and the law as there stated applies to this claim.
    W. C. Graves, for Claimant.
    P. J. Lucey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   The claimant in this case was contemplating building an armory at Pontiac, Illinois, which was to be used by Company F, Third Infantry, Illinois National Guard.

Negotiations for the building of same were taken up with Major Strawn of Pontiac and Adjutant General F. S. Dickson, but the building was not erected as the Adjutant General refused to sign the contract submitted by claimant.

Claimant contends that he was encouraged by the Adjutant General to prepare plans and specifications which, together with other expenses incident thereto, amounted to five hundred twenty-five ($525.00) dollars, and it is for this amount that he seeks an award.

At the present term of this Court an opinion was filed in the claim of John P. Bradford v. State, and the facts therein are similar to the facts in this case.

In the Bradford case we held that the State was not liable and for the reasons set forth in that opinion this claim will also be rejected.

This claim is accordingly rejected.


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      W. M. Allen, Arthur W. Allen, Charles J. Angelesea and Herman Kleene, co-partners, doing business as W. M. Allen & Co., v. State of Illinois.

      Opinion filed March 17, 1915.

      1. Mistake cot Fact — contractor making mistake in estimates. Where a contractor in making estimates upon work to he performed by him honestly makes mistakes, in such estimates, he may have his contract rescinded.
    2. Waiver-; — when binding. Where a waiver is executed, in order that the same may be binding, the party executing the same must have been apprised of his rights at the time of the execution of such waiver.
    Weil & Bartley, for Claimants.
    P. J, Lueey, Attorney General, and Arthur R. Roy, Assistant Attorney General, for State.
   This claim was filed December 31, 1914, but it was agreed between tbe attorneys for claimants and tbe State, that tbe same should be docketed and beard at tbe present term of this Court.

In pursuance of certain notices sent out by tbe Board of Administration of this State, that sealed bids would be received by them for tbe erection of certain buildings to be erected at tbe Chicago State Hospital, Dunning, Illinois, claimants wrote to tbe board and received a copy of tbe plans and specifications for said buildings.

Having prepared estimates, they filed separate bids for tbe erection of tbe several buildings, as follows, to-wit:

“Tbe undersigned bidder hereby proposes to furnish all materials and labor to execute tbe general work required by tbe drawings and specifications for tbe following sum:

The Main Bid shall include the general work required in building the Administration Building, two Receiving Buildings, two cottages............................$265,500.00

Separate Proposal “A” shall include the general work required in building the Administration Building ............$ 82,756.00

Separate Proposal “B” shall include the general work required in two receiving buildings...........................$108,286.00

Separate Proposal “O” shall include the general work required in building the two cottages........................$ 78,590.00

As it was necessary to accompany each bid with a certified check for three per cent of same, claimant accompanied Separate Proposal “A”, above referred to, with certified check in the amount of twenty-six hundred ($2,600.00) dollars; Separate Proposal “B” was accompanied by certified check in the amount of thirty-four hundred ($3,400.00) dollars; and Separate Proposal “C” was accompanied by a certified check in the sum of two thousand five hundred fifty ($2,550.00) dollars. No certified check accompanied the main bid of $265,500.00.

At a meeting of the board held August 18, 1914, all of the bids were opened and it was found that claimant’s bids were the lowest of all submitted.

At a later meeting of the board held on the 24th of August, 1914, claimants were awarded the general contracts for all of the five (5) buildings upon their main bid of $265,500.00. After having been notified of the acceptance of their bids, they noticed that their bid was approximately $50,000.00 less than the bids submitted by the other parties. They made an investigation of their various estimates, and in checking over the same found, that they had made mistakes aggregating about $24,000.00.

W. M. Allen, one of the claimants herein, went before the Board of Administration at its office in Springfield, and explained that mistakes had been made in the various estimates and that they could not erect the buildings according to the proposals submitted. He also told them he would be willing to forfeit the certified check which accompanied said proposals, but it was arranged that claimants be awarded the contract for the erection of the administration building for $82,756.00, as set out in said Separate Proposal “A”. Check accompanying this, bid was returned to claimants.

"While Mr. Allen was taking up this matter with the board, one of its members prepared an instrument in writing for him to sign, in which he agreed to forfeit the other two checks, amounting to $5,950.00.

Claimants are proceeding with the erection of the administration building, and this claim is filed to secure the refund of $5,950.00, covering the two certified checks that were declared forfeited by the board and afterward turned into the State treasury.

It is contended by claimants, that the State had no right to forfeit the checks in question on account of the mistakes that were made by them in preparing their proposed bids, and they also contend, among other things, that there was no consideration for the waiver that was signed by Mr. Allen.

The State denies that claimants are entitled to the relief sought, principally for the reason that their right to have the checks returned was waived by W. M. Allen when he 'signed the waiver, and that they are now estopped from claiming anything by reason of their mistakes. The amounts of the different certified checks were in excess of the three per cent required by the board, and the State concedes that claimants are entitled to an award covering this excess, which amounts to $343.72.

Counsel for claimants have cited several authorities showing the rights of a party to rescind their contracts when mistakes have been made similar to those made by claimants.

We do not question the law as announced in these cases, but the question that confronts us is, whether or not the claimants have waived their right to recover on account of the waiver signed by W. M. Allen.

That claimants made mistakes in their estimates upon- which their said proposals were based is not questioned, and as a legal proposition they would be entitled to have their contracts rescinded and the checks returned unless estopped by the acts of Mr. Allen. If the waiver signed by Mr. Allen in this connection has any force, it would go to the extent of not only precluding claimants from recovering an amount equal to three per cent of their bids, but it would also preclude them from recovering any excess represented by said checks, as the waiver specifically sets out that the two checks are to be forfeited.

We are of the opinion, that the waiver signed by Mr. Allen was without consideration, and that claimants ought not to be estopped from recovering an award in this case by reason of same.

Our attention is also directed to the fact that the main bid was not accompanied by a certified check and as the Board of Administration accepted this particular bid and rejected the other separate proposals, we do not believe they had any right to declare a forfeiture of the checks accompanying the several separate proposals, when it was found that claimants could not comply with the terms as set out in their main bid. This being true, and for the further reason that we are convinced that claimants did not try to rescind their contracts for any other reason than the mistakes made by them in the preparation of their several estimates, we believe it would be unjust and inequitable to compel them to suffer a loss as would be occasioned by the forfeiture of their two checks amounting to $5,950.00.

It is quite evident that Mr. Allen was not apprised of his rights in this matter at the time he consented to the forfeiture of the two checks in question, and from a thorough consideration of the facts presented, we are of the opinion that claimants should recover the sum of $5,950.00 as represented by the two checks that were declared forfeited by the Board of Administration.

Claimants are accordingly awarded $5,950:00.


author: ScHUMAN, O. J.

text:
    (No. 4095
    Stephen Mego, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1949.

      Petition of Claimant for Rehearing denied September 19, 1950.

    Hanson and Doyle, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; Archie T. Bernstein, Assistant Attorney General, for Respondent.
   ScHUMAN, O. J.

On August 1,1947, claimant, Stephen Mego, 71 years of age, was in the employ of the respondent as a night attendant at the Chicago State Hospital, Chicago, Illinois, going to work at 11:00 P.M..in the evening. He was the sole attendant for about 100 patients in Ward No. DW-2. His duties were to take the temperature, pulse and respiration of sick patients, report fights, care for the untidy patients in the washroom, and awaken, wash and dress the patients for breakfast. About 5:30 in the morning of August 1, 1947, he was attacked by a patient of about 30 years old, who jumped on him from behind. His assailant grabbed Ms necktie, and threw him to the floor. The necktie broke in half. The patient beat the head of Mr. Mego, and claimant received ’ a few scratches. Claimant’s glasses, lens and frame were smashed. Claimant was taken to the hospital for X-Rays; and the few scratches on Ms face were treated with mercurochrome; and he was then discharged. There was no direct injury to Ms eyes.

. Dr. Poslusny, an optometrist, who had previously fitted claimant with glasses, testified that he examined claimant on August 2, 1947, the date after the attack, at wMch time Ms vision was the same as before; that he came back in two weeks and the eyes were the same; and that he came back on October 7, 1947 and the retina and the vitries were involved, and he sent him to the doctor, who had operated on Mm for the removal of cataracts ; that on October 7, 1947 vision in the right eye was 20/200, and his left eye 20/50.

Claimant found after obtaimng his new glasses that he could no longer read a newspaper or see at a distance, whereas prior to the attack he could' distingmsh a traffic light four blocks distant. Claimant went to the Illinois Eye and Ear Infirmary, and he obtained no relief there, in fact, Ms vision continued to grow worse. He was later recommended to the Civil Service Protective Association. Finally, on June 9, 1948, he obtained the services of Dr. Richard A. Perritt, Ms present oculist. Dr. Perritt prescribed various medicines and treatment. As a result, claimant’s vision improved to a point where he can count fingers held before him at a distance of four feet, although Ms right eye remains with an uncorrected vision of less than 20/200, and his left eye remains with a vision of 20/200, any vision of 20/200 unaided and without glasses being considered industrial blindness.

It was stipulated that claimant was injured on August 1,1947, while in the course of his employment by the respondent; that his salary was $1,740.00 annually, and in excess of $30.00 per week; that he was not married, and had no children under sixteen years of age; and that claimant had made no assignment or transfer of the present claim or any part thereof. It was further stipulated that claimant is and has been working for the respondent in the same capacity and at the same wages since the date of the accident, and that he lost no time or wages from his said employment by reason of the accident. It was further stipulated that claimant paid $185.00 for medical services; $49.15 for medicines; $35.00 for glasses, and, is continuing to pay the sum of $10.00 per week to Dr. Bichard Perritt for medical care and treatment.

Dr. Louis Olsman, physician and surgeon on the staff of the Chicago State Hospital for the past ten years, except for four years service in the U. S. Army Medical Corps, testified he treated employees of the hospital under the employee’s health service of which he had charge. He first treated claimant in 1939 for weakness of the left arm, leg and side of the face; the diagnosis was hemiparesis and hypertensive heart condition. Claimant’s condition improved, and he was returned to duty. In 1940 Mr. Mego was again hospitalized for the same condition, together with dizziness and temporary loss of ability to speak. This latter condition was diagnosed as hemiplegia, transitory with hypertension. Dr. Olsman, due to absence from the hospital for military service, did not see claimant again until March 4, 1947, when Mr. Mego complained of symptoms of weakness, shortness of breath, and pain over his heart. Examination revealed, in addition to his previous findings of high blood pressure and hypertensive heart disease, that he had retinal hemorrhages in both eyes. The diagnosis was hypertensive heart disease with coronary sclerosis and hypertensive retinopathy. The patient recovered sufficiently to return to his duties. He was again hospitalized on March 4, 1947, and at that time his symptoms were those óf weakness, shortness of breath, and pain over heart; and the examination revealed high blood pressure and hypertensive heart disease, the presence of retinal hemorrhages in both eyes; and the diagnosis at the time showed hypertensive heart disease with coronary sclerosis and hypertensive retinopathy. However, on July 22, 1947, about a week before the assault, he was again admitted to the hospital complaining of dizziness and weakness. The diagnosis again was hypertensive heart disease. His blood pressure was two hundred over one hundred and twenty. On September 7, 1948 the claimant was again admitted to the employee’s hospital with symptoms of pain of the heart, blood pressure 170/90, and had findings of auricular fibrilation, irregular heartbeat; and the diagnosis at that time was again that of hypertensive heart disease of coronary sclerosis. In addition to the foregoing periods of hospitalization, Dr. Olsman stated he treated Mr. Mego from time to time on an out-patient basis. During these latter examinations claimant’s blood pressure varied from one hundred and eighty over one hundred to two hundred and ten over one hundred and twenty. Dr. Olsman added that on January 13, 1947, a board of three doctors, including himself, examined claimant finding him to have arteriosclerosis and hardening of the arteries. It was recommended that he be given an assignment to quiet service and light work where he would have constant supervision. Dr. Olsman stated claimant’s work in Ward DW-2 on the evening he was attacked was heavier and more strenuous work than had been advised for him. In this ward the patients are of the deteriorated, untidy and vegetative types, who have no control over their bodily functions or eliminations, and are chronically untidy.

Dr. Olsman attended Mr. Mego after aforesaid attack on August 1, 1947. He stated Mr. Mego suffered superficial lacerations on the side of his nose and right cheek, and a contusion to his left elbow: However, there was no evidence of injury to the eye proper.

Dr. Maurice D. Pearlman, chief resident physician in the Department of Ophthalmology at the Illinois Bye and Bar Infirmary, testified on behalf of the respondent. He stated that according to hospital records claimant was first treated at the Infirmary on March 22,1941, and had cataracts removed from both eyes. Dr. Pearlman examined Mr. Mego’s eyes on December 16, 1948, and found:

“My examination showed that the right eye had the vision of finger counting at about one to two feet. The eye was white, normal in external appearance, and the cornea showed a faint superficial density just oE the center of the cornea. The anterial chamber was clear and deep. The iris was normal except for a surgical coloboma at the twelve o'clock position, and the lens was absent. The vitreous seemed to be fluid, and contained several large floating opacities. The retina and the choroid showed extensive degenerative changes in most portions.- There were several small scattered hemorrhages present-on the right eye. The optic nerve seemed atrophic. It was my conclusion the right eye was sufiering the late degenerative changes due to severe myopia. The left eye had a corrected vision of twenty over one hundred which was not improvable. The left eye findings were very similar to that of the right eye. . . . Several small retinal hemorrhages were seen in the macular area in the left eye. It was my impression that the left eye had severe myopic retinopathy.”

Dr. Pearlman further testified that if there was no direct trauma to the eye, but merely superficial cuts and breaking of glasses, it would be unlikely to result in retinal hemorrhages; that upon reviewing the record of the claimant he believed that the left eye shows the same vision on October 3, 1947 as it showed on January 22, 1942, namely 20/100, and that with such vision he could only read the headlines of a newspaper.

On cross-examination, Dr. Pearlman testified that the claimant’s condition from which he was suffering pertaining to his eyes was a degenerative process, and that that meant he' was getting progressively worse; that his examination on December 16, 1948 compared with the report in the records as of April, 1942 — there was no change in the vision of the left eye; that the hemorrhages that he noted on December 16, 1948 in the left eye were scattered about the macular area, which is the central portion of the retina, and would affect vision, but that claimant’s vision was- still 20/100; that from the examination on October 3, 1947 there was no hemorrhages reported, although they might have been present, because the hemorrhages reported were quite small. That hemorrhages, such as the ones he saw on December 16, frequently absorb and disappear, and if the hemorrhages were absorbed, the vision would be corrected; that hemorrhages to the retina, in order of frequency, are caused by diabetes, hypertension, arteriosclerosis, blood dyscrasis, myopic degeneration and other fundus degenerations, senility per se, septicemia, tumors of the eye, retinal detachments, glaucoma, and trauma; that retinal hemorrhages can be caused by psychic trauma with the presence of hypertension and arteriosclerosis; that the claimant attained his vision of 20/100 in his left eye in September of 1941, and that the claimant at that time had myopic choroiditis, which condition is an irreversible situation; that hemorrhages could occur in such a condition; that if hemorrhages were responsible for the vision of 20/100 and if the retina was otherwise in good shape, the vision could improve; that the claimant was suffering from severe diseases with reference to his eyes; that he had severe myopia and also hypertension, and that myopia could cause hemorrhages, and hypertension could cause hemorrhages, and senility could cause hemorrhages, and his conclusion was that the claimant’s eyes were the result of compound causes; that trauma could aggravate hypertension and cause a hemorrhage; that the hemorrhages that he found on December 16, 1948 could not have existed in a more extensive form, because he could have detected evidence of absorption of a previous larger hemorrhage; and that in his opinion the claimant’s condition found on December 16, 1948 was stationary, and that if claimant’s hypertension would drop for one reason or the other the hemorrhage might disappear; that it was his opinion that a man should have a vision of at least 20/40 to read a newspaper without a magnifying glass.

The opinion of Dr. Pearlman was that the claimant had the same vision in his left eye after the attack as he had before.

Dr. Perritt testified that he examined the claimant on June 9, 1948, and that his examination revealed that in the right eye the acuity was finger vision at approximately one foot; that in the left eye uncorrected the visual acuity was 20/200, correctible to 20/100 with glasses that he was wearing; that the fundus examination of both eyes revealed myopic changes of the disk, or the optic nerve. On page 118 of the record he stated that no hemorrhages or exudates were seen in the left eye. That similar myopic changes were found in the disk, the macula, and in the paramacular area, which is the center portion of the eyeball. That he gave him treatments, which treatments were- to prevent the reformation of further hemorrhages.; that 20/200 is considered industrial blindness, and that in .his opinion claimant was industrially blind in both eyes; that from said hypothetical question propounded to him, with taking into consideration- the previous condition of the claimant, and the attack as testified to, that in his opinion the attack could have caused the hemorrhages seen in the left eye in the macula and paramacular area; that the hemorrhages which he examined and saw could produce a diminution in vision in the left eye; that in his opinion the hemorrhages were brought about in the claimant because of his age, with hypertension, and because of the trauma, and that the vision in his left eye was reduced as a result of said causes to 20/200; that the trauma could have produced the hemorrhages; that the hemorrhages could have been caused by hypertension, alone, without trauma; that the claimant by having vision in October of 20/40 and 20/50 in the left eye that said vision was increased by the hemorrhages clearing up; that in his opinion the hemorrhages found in his examination were new hemorrhages, and that he couldn’t say whether they were related to the August 1, 1947 accident or not, but that they were new hemorrhages; that new hemorrhages are distinct in that, first of all, the color is different in a new hemorrhage; secondly, in an old hemorrhage you have secondary scar tissue formation formed after the absorption of the hemorrhage, because you see little white areas, which are evidences of scar tissue formation with the absorption of old hemorrhages; that he could see scar tissues in the eye from old hemorrhages; and the condition that he found with reference to the type of eyes that they would continue to deteriorate and not improve; that in the case of myopia, per se, if he has degenerative changes, he would not be able to read a newspaper; that in his opinion from the condition found he was led to the opinion that all of the conditions found including the attack were factors playing a direct role in the final reduced acuity of the left eye.

It is significant that no claim was made for the loss of the sight of the right eye arising out of the attack when the record shows that Dr. Poslusny stated that the right eye had been improved to 20/60 after the cataract operation, and the left eye improved to 20/40; that three months later the same visibility occurred; that on August 2, 1947 when he examined claimant, that the vision of both eyes were the same, and it was not until October 7, 1947 that his examination disclosed that the vision in his right eye was 20/200, and the vision in his left eye 20/50. It is apparent that a deterioration or loss of vision had definitely occurred to the right eye, and was back to the same visibility as, after the cataract operation. However, claimant makes no contention that this loss of vision or deterioration in the right eye was caused as a result of the attack.

From the medical testimony in this record it is apparent that there is a difference of opinion with reference to the cause of the reduced vision of the claimant. It seems that the entire record is devoted to the condition of the left eye, and that no testimony has been directed to the condition of the right eye with reference to how the attack affected it, although vision was definitely worse than that of the left eye.

All of the doctors agree that myopia, per se, and hypertension with heart disease would cause hemorrhages in the eyes; that the claimant’s eyes were in a degenerative process as a result of the above named thing, and that the conditions could have resulted in the things without trauma.

It appears to the Court that the burden is upon claimant to establish by a preponderance of the evidence his right to compensation, to show where the claimant has a pre-existing disease, that that disease is aggravated or accelerated in the course of the employment by accidental means. (MacLeod v. State of Illinois, 17 Court of Claims, page 167 at 170 and 171.) The right to compensation could not be based upon speculation, surmise or conjecture.

Viewing the record as liberally as possible so as to accord to the claimant every benefit under the Workmen’s Compensation Act, we are unable to conclude that claimant has proven that the accident sustained by him on August 1,1947 aggravated or accelerated his previous condition with reference to his eyes. From Dr. Perritt’s own testimony, it can be readily deducted that the examination made by him on June 9, 1948 was predicated upon hemorrhages that were new, and could not have been hemorrhages on August 1, 1947. This is borne out by the fact that Dr. Pearlman testified that when he examined claimant on October 3, 1947 that no hemorrhages were reported.

For the reasons above stated, the award in this case is denied.

The testimony on hearing before Commissioner Young was taken and transcribed by A. M. Eothbart, who has submitted a statement of $195.40 for his services. This charge is reasonable and proper.

An award is made in favor of A. M. Eothbart for stenographic services in the amount of $195.40, which is payable forthwith.

Claim of Stephen Mego is denied.

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


author: Lansden, J.

text:
    (No. 4192
    John E. Barry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    Robert F. Hails, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

On October 28, 1948, claimant, John E. Barry, was injured in an accident that arose out of and in the- course of his employment as an automobile license investigator for the Secretary of State. He now proceeds under the Workmen’s Compensation Act.

On the day in question, while on duty and driving an automobile furnished by respondent, claimant struck a steel pole in the center of Ogden Avenue near Albany Avenue in Chicago.

Claimant sustained severe injuries including an unusual fracture of the cup of his left hip joint, a Potts fracture of the right ankle, and head lacerations.

Emergency treatment was given at the Hospital of St. Anthony de Padua, Chicago, and, the day after the accident, claimant was removed to St. Joseph’s Hospital, Joliet, where he remained until February 9, 1949. Claimant returned to work on March 1, 1949, but was again hospitalized for plastic surgery from March 5 to March 12, 1949, at Silver Cross Hospital, Joliet. He returned to work on March 19, 1949. From November 8 to November 10, 1949, claimant was again hospitalized at Grant Hospital, Chicago, for plastic surgery.

No jurisdictional questions are involved.

During all of the time claimant was off work he was paid his full salary of $250.00 per month. His salary in November, 1949 was $275.00 per month.

Claimant was a single man, aged 30, with no dependents. His earnings in the year prior to the accident-amounted to $3,000.00, and his rate of compensation for temporary total disability should have been $19.50 per week. He was thus overpaid for temporary total disability from the day after his accident through February 28, 1949, or 17 4/7 weeks, 2 1/7 weeks in March, 1949, and 3/7 week in November, 1949, or a grand total of 201/7 weeks. His compensation amounted to $392.79, but he was paid $1,127.50, or an overpayment of $734.71.

However, claimant does not seek in this action any recovery for total temporary disability, partial permanent disability, or specific loss of use of his legs. All he asks is for respondent to pay his doctor and hospital bills, all of which were authorized by his superiors, and none of which have been paid. That respondent is responsible for the payment of such bills, subject to Section 15 of the Workmen’s Compensation Act, is conceded, since all such services were required to cure or relieve claimant from the effects of his accidental injury. Sec. 8 (a) Workmen’s Compensation Act. This responsibility is independent of any overpayment to claimant.

Therefore, we are unable to understand why respondent failed to claim recoupment against claimant for the overpayment of $734.71. In Batley v. State, No. 4246, opinion filed May 9, 1950, we held recoupment could not be granted unless specifically pleaded.by respondent as a counterclaim. We follow1 that case, and hold herein that no order can be entered in favor of respondent to recover the overpayment of temporary total disability to claimant.

Passing to the doctor, ambulance and hospital bills, under Section 15 of the Workmen’s Compensation Act, the reasonableness of any such charges is subject to the control of the Industrial Commission. This Court acts as the Industrial Commission for State employees, and we have the same powers and duties.

Except for some personal phone calls which were charged on claimant’s hospital bill at St. Joseph’s Hospital, Joliet, which we find amounted to $32.07, no question can be raised about the reasonableness of any charges except those of Dr. George H. Brannon, Manhattan, Illinois.

Dr. Brannon submitted an unitemized bill for $1,521.00. He testified at the hearing as to such charges. In his report to this Court, Commissioner Wise stated that in his opinion the charges of Dr. Brannon were grossly excessive.

However, Dr. Brannon did attend claimant every day he was in St. Joseph’s Hospital. He stated his charges were $5.00 per visit. Extra services for putting claimant in traction amounted to $50.00. In addition, Dr. Brannon made several calls per day during a time that claimant was ill in the hospital from pneumonia. Dr. Brannon also performed one plastic surgery operation.

An eminent consultant, Dr. James J. Callahan, assisted Dr. Brannon in treating claimant’s hip cup fracture, and his charges of $100.00 were included in Dr. Brannon’s bill. That the services of both doctors were skillful to a high degree is conceded.

However, we find from the record that Dr. Brannon is entitled to only $1,000.00. The record discloses that he made approximately 150 calls on claimant. At $5.00 per call, this amounts to $750.00. He paid Dr. Callahan $100.00. His services for putting claimant in traction amounted to $50.00, and for the plastic surgery operation he is entitled to $100.00. .

Julia Hertz, Joliet, Illinois, was employed to take and transcribe the testimony of the two hearings before Commissioner Wise. Her charges amounted to $65.00, which are reasonable, and an award is entered in her favor for such sum.

An award is entered in favor of claimant, John E. Barry, under Section 8 (a) of the Workmen’s Compensation Act, for $2,556.83, all of which is payable forthwith as follows :

$ 35.00 to claimant for the use of Hospital of St. Anthony de Padua, 2875 West 19th Street, Chicago, Illinois. (First aid.)
$ 15.00 to claimant for the use of Gerald Dames & Sons, 309 Sherman Street, Joliet, Illinois. (Ambulance service.)
$1,000:00 to claimant for the use of Dr. George H. Brannon, Hoerrmann Hotel Building, Manhattan, Illinois. (Professional services.)
$ 122.33 to claimant for the use of Silver Cross Hospital, Joliet, Illinois. (First plastic surgery hospitalization.)
$1,170.00 to claimant for the use of St. Joseph's Hospital, 372 North Broadway, Joliet, Illinois. (Principal hospitalization.)
$ 150.00 to claimant for the use of Dr. Karl A. Meyer, 30 North Michigan Avenue, Chicago, Illinois. (Professional services, second plastic surgery operation.)
$ 64.50 to claimant for the use of Grant Hospital of Chicago, 551 West Grant Place, Chicago, Illinois. (Second plastic surgery hospitalization.)

Recoupment to respondent is denied for failure to plead same by counterclaim.

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


author: Delaney, J.

text:
    (No. 4202
    Stuart J. Robson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    Giffin, Winning, Lindner and Newkirk, and Robert F. Hails, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

On February 15, 1948, the claimant, Stuart J. Robson, a highway maintenance supervisor, Department of Public Works and Buildings, was making a tour of his district to examine the condition of the highway, as the vicinity near Springfield had been subjected to freezing rains and snow, and he had instructed his men to clean the highway and spread cinders. Claimant began his duties on that date at approximately 7:30 A.M., and about 5:30 P.M., while completing the inspection tour, claimant was driving southwest on U. S. Route 54, at a point about one mile east of the Village of Barclay, when he met an unidentified truck approaching from the southeast, which truck struck a patch of ice, and skidded into the opposing line of traffic. Claimant, in order to avoid a head-on collision, drove his car off of the pavement, then struck snow and ice, which, caused him to lose control of the car, and he rolled down a 25 foot embankment, which bordered the highway at that point. Claimant was thrown from the car. His left tibia and fibula were fractured in three places, with a dislocation of the ankle joint. He was first attended by Dr. Fleischli at St. John’s Hospital, Springfield, Illinois, and later, because of the seriousness of the injury, was removed to Barnes Hospital at St. Louis, Missouri, where he was attended by Doctors Key, Reynolds and Ford. He was discharged from the hospital on March 4, 1948.

At the time of the accident, the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident arose out of and in the course of claimant’s employment. ,

Claimant’s earnings for the year immediately preceding his injury were $2,651.22. At the time of the injury he had no children under sixteen years of age dependent upon him for support. Claimant’s compensation rate is, therefore, $19.50 per week. Claimant was paid full salary, in accordance with the Division policy, for total temporary disability resulting from his injury from February 16 to February 22,1948, and compensation at the rate of $19.50 a week from February 23 to June 7, 1948, inclusive. Payments for total temporary disability amounted to $350.81. Salary payment for 7 days was $55.52, and compensation for 15 weeks .and 1 day was $295.29. There was, therefore, an overpayment for the seven days of $36.02.

Dr. Keys and his associates made the following report on June 29, 1949:

“I wish to advise that Mr. Stuart Robson was again examined on the 25th of June. The patient still walks with a limp, although he is working. He states that there is some pain in the ankle and foot, and that the foot and ankle remain stiff.”
“Examination shows the patient to have some enlargement of the ankle. There is dorsiflcxion to about right angles and a little limitation of planter flexion of the foot.”
"It is my feeling that this case has now reached a permanent state, and as a result of the injury, which he has received, there is now a permanent partial impairment, which I should estimate to be in the neighborhood of 30-35 per cent of the leg below the knees.”

Claimant is entitled to an award for 35 per cent partial loss of use of Ms left leg, making a total of 66% weeks at $19.50 per week, or $1,296.75; from this should be deducted the overpayment of $36.02, leaving a balance of $1,260.73.

An award is, therefore, entered in favor of claimant, Stuart J. Robson, in the aggregate amount- of $1,260.73, all of which has accrued and is payable forthwith.

The Division also paid doctor and hospital bills of claimant to the extent of $724.42.

Harry L. Livingstone was employed to report the testimony at the hearing before Commissioner Wise, and charged the sum of $49.20 for such services. These charges are fair, reasonable and customary. An award is entered in favor of Harry L. Livingstone in the amount of $49.20, wMch is payable forthwith.

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


text:
    (No. 4206
    Lynn Vaughn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

    M. J. Hanagan, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant, Lynn Vaughn, was employed on January 26, 1949, at the Elgin State Hospital, Elgin, Illinois, in the capacity of an attendant. On said date he was supervising patients, who were inmates of said hospital. During the breakfast hour, while supervising the patients going to breakfast, he was holding an iron door open, and a patient, trying to get by the claimant, slammed the iron door on his right hand. A short time later claimant’s hand began to swell, and he went to the hospital. His hand was X-Rayed, and the examination disclosed a fracture of the fifth metacarpal. A plaster cast was administered, but hospitalization was not necessary. Dr. L. L. Love testified that he examined the claimant on May 16, 1949, and again on October 4, 1949, and found stiffness in the fourth and fifth fingers, with flexion almost absent in the fourth and fifth fingers, and partially absent in the first and second fingers of his right hand. Dr. Love further testified that the entire right hand appeared stiff, and that claimant was unable to make a fist. While claimant was recovering from his hand injury he developed a heart condition; however, the evidence does not disclose any connection between the heart condition and his employment.

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

The record consists of the complaint, the departmental report, supplemental departmental report, waiver of briefs of respondent and claimant, and transcript of the testimony.

Evidence shows that claimant entered the employment of respondent on December 6, 1948. The evidence further shows that claimant received the following payments as salary from respondent: December, $113.23; January, $135.00; February, $135.00; and March, $4.35, or a total salary of $387.58. The evidence further indicates claimant has a twenty (20) per cent permanent loss of use of his right hand as a result of the accident. For such permanent loss of use of right hand, under Section 8, Paragraph (e) 12, the claimant should receive from the respondent, the compensation rate, $19.50 per week for 34 weeks. Claimant received the sum of $161.13 as salary from January 27 to March 15, 1949, inclusive, a period of 6 6/7 weeks; 6 6/7 weeks at the compensation rate of $19.50 per week amounts to $133.71. Claimant, therefore, received an overpayment of $27.42 for nonproductive time.

An award is, therefore, made to claimant, Lynn Vaughn, in the sum of $663.00, less overpayment for nonproductive time of $27.42, or the sum of $635.58, all of which has accrued and is payable forthwith.

Vivian Kirk was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $20.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Vivian Kirk in the amount of $20.00, payable forthwith.

Henry P. Keefe was also employed to take and transcribe the evidence at a subsequent hearing before Commissioner Summers. Charges in the amount of $9.40 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Henry P. Keefe in the amount of $9.40, payable forthwith.

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


text:
    (No. 4210
    David Orr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1950.

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

The claimant, David Orr, was on September 30,1947, an employee of the respondent in the Division of Highways, Department of Public Works and Buildings. On that day, while loading a drum of oil onto a truck, in the course of his employment for the respondent, his foot slipped into a depression, causing the bulk of the weight of the oil drum to fall upon the claimant. He immediately felt a burning sensation in his left groin, and a few days later a lump appeared. Claimant was later examined by Dr. John S. Lewis, who found him to be suffering from a left inguinal hernia. On May 26, 1948, claimant entered the Holden Hospital, Carbondale, Illinois, and the hernia condition was repaired by Dr. Lewis. Claimant was discharged from the hospital June 8,1948, and was declared by Dr. Lewis to be able to work on July 6,1948.

The claimant at the time of the injury had no children under the age of sixteen years. He was totally disabled from May 25, 1948 to June 3, 1948, inclusive. He was paid full salary from May 25, 1948 to June 3, 1948, and compensation at the rate of $19.50 per week from June "4, 1948 to July 5, 1948, inclusive. Claimant’s earnings in the year preceding his injury totalled $2,613.00.

The record- consists of the complaint, motion of respondent to dismiss, notice to call up motion to dismiss, withdrawal of Clyde L. Flynn, Jr., as counsel, entry of appearance of Messrs. Bartley and Karber, amended complaint, departmental report and transcript of evidence.

The original complaint was filed on July 7,1949, and it is the contention of respondent that the cause of action is barred under the one year Statute of Limitations as contained in Section 24 of the Workmen’s Compensation Act (Chapter 48, Section 161, Ill. Rev. Statutes 1947), as appeared upon the face of the original complaint. However, claimant amended his complaint to show that $13.93, paid as compensation from July 1 to July 5, all in 1948, was not paid until August 7, 1948, and the evidence bears out this fact. Therefore, we feel the Court has jurisdiction in this cause. Respondent furnished complete surgical, medical and hospital treatment. Respondent and claimant were operating under, the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

There is no testimony in the record that claimant has been completely and permanently disabled. Dr. John S. Lewis testified to the question, “Doctor, at the time you performed this operation, could you determine whether or not the hernia was of recent origin?” Answer, “No, as a matter of fact, in our experience with hernias, the instance and occurrence of hernia due to direct violence has never or hardly ever occurs. They occur by a slow, progressive weakening of fascia and muscles, and the trauma that finally produces the hernia may not be more than the patient has received on many previous occasions. For example, they are similar to the blow out of a tire. The tire may bulge for a long time while driving over streets. Finally, there is a blow out for the same reason. A blow out is when the inner tube protrudes through the casing of the tire. The difference of the hernia is when the viscus or internal organ protrudes through the wall containing it, meaning the viscus.”

Section 8 (d-1), Workmen’s Compensation Act, requires that an injured employee, to be entitled to compensation for hernia, must prove:

1. The hernia was of recent origin.
2. Its appearance was accompanied by pain.
3. It was immediately preceded by trauma arising out of and in the course of employment.
4. The hernia did not exist prior to the accident.

From the testimony of Dr. Lewis, claimant’s proof was insufficient to meet the requirements of the Workmen’s Compensation Act.

An award will have to be denied.

Virginia O’Leary was employed to take and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $28.00 were incurred for these services, which charges are fair, reasonable and customary.

An award is, therefore, entered in favor of Virginia O’Leary in the amount of $28.00.

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