author: Mb. Justice Yantis

text:
    (No. 1731
    Robert C. Wilson and G. B. Richardson, Co-partners, Doing Business Under the Style Name of Midwest Construction Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 14, 1937.

    Barrett, Barrett & Wermuth, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

The complaint herein recites that in September, 1927 respondent gave notice that it would receive proposals and bids for the construction of certain sections of highway known as Section 123-B of Boute No. 122 in Mason County, District No. 6, being one B. C. slab bridge and two B. C. sub-structures for a bridge to be constructed in accordance with the requirements of the standard specifications for road and bridge construction, and according to plans on file in the office of the Division of Highways, Springfield, Illinois; that claimant obtained the plans for the construction of said bridges and in reliance thereon filed their proposal and bid for the work on said three bridge jobs for a consideration of Twenty One Thousand Fifty Four and 18/100 ($21,054.18) Dollars; that such bid was accepted and claimants entered upon the construction of said work, but that due" to the existence of quick sand which was not disclosed in the notice of letting and due further to a variance between the actual elevation of the bed of the stream and the elevation set out in the plans, claimants allege they were misled in submitting the proposal and bid and that they incurred an increased expense in the performance of the contract, amounting to Thirty Five thousand Six Hundred Thirty Six and 03/100 ($35,636.03) Dollars, for which they now seek an award.

Both Bobert O. Wilson and Gr. B. Bichardson, who constitute the co-partnership now seeking this award, are former employees of the State Highway Department of the State of Illinois. Mr. Wilson was an Assistant Highway Engineer for more than a period of five years prior to May 1, 1927. Mr. Bichardson was employed in the Division of Highways of the State for four years, and at the time he left the employ of the State was District Engineer of Designs, and prior to that time was Division Engineer on Construction.

Plaintiffs complain that they were misled in bidding on the bridge work in question, because the State did not disclose to them in its original notice to the contractors that quicksand might be encountered in the construction work in question, and that the Highway Department had knowledge of such condition at the time of the acceptance of proposals for such work. The record discloses that the Highway Department did possess some information in regard to the character of the soil at the proposed bridge locations, and that such information was available to anyone who desired to submit a bid for the work to be done. Claimants’ Exhibit 3, being its proposal for the work in question in Section 6 on page 4 recites that, “He (the bidder) has carefully examined the location of the proposed work, the plans, specifications, etc., etc.” In Section 8 of the proposal it is stated that, “The undersigned declares that he understands that the quantities are approximate only and that they are subject to increase or decrease, etc.” In the standard specifications for road and bridge construction, being a part of Claimant’s Exhibit 3, it is stated in Paragraph 1, page 5, “The bidder should make a careful examination of the site of the proposed work, the proposal, plans, specifications and contract form before submitting a proposal. He should fully inform himself as to the quality and quantity of materials required and the character of the work, and he should further investigate the location and make a careful examination of the source of supply for materials. The bidder will be held responsible for his failure or neglect to observe or comply with these instructions.” It is further stated, in Paragraph 2, “The Department does not guarantee that the estimated quantities given shall obtain strictly. * * In Section 3, “The proposal will state any special provisions or requirements which vary from or which are not contained in these specifications.” Under Section 38 of General Provisions of the Standard Specifications, it is stated, “The contractor shall receive and accept the compensation herein provided in full payment for furnishing all materials, labor, tools and equipment; for performing all work contemplated and embraced under the contract; for all loss or damage arising out of the nature of the work or from the action of the elements; for any unforeseen difficulties or obstructions which may arise or be encountered during the prosecution of the work * * *; for all risks of every description connected with the prosecution of the work.” It is further stated in Section 41 of such General Provisions, “The acceptance by the contractor of the last payment shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act or neglect of said Department relating to or connected with this contract. ’ ’

From the testimony it appears that soon after claimants began the construction work in question they encountered quicksand. They first began the use of wood-sheeting for the construction of coffer-dams, and later were compelled to abandon same and to construct a steel-sheet piling cofferdam. A substantial loss of time in the construction work resulted from this, but Lewis A. Lush, one of the State Engineers, testified that he had a conversation with claimant Wilson in November, 1927 at the site of the East bridge when the excavation work was first begun. He states that the contractors were then excavating with teams and that the cofferdam material was not yet on the job; that he at that time informed Mr. Wilson they would probably encounter quicksand; that notwithstanding this knowledge, claimants attempted to use wooden coffer-dams and did not abandon their efforts to use such material until between the 16th and 23rd of February, 1928. Both the claimants, as above stated, had been employed in the Highway Department of the State for a number of years. There is no apparent reason why they could not have obtained all the information they may have desired, as to the nature and character of the work for which they proposed to bid. The proposal and specifications attached made it their duty to inform themselves as to such details, if they desired to bid on the job.

The evidence is conflicting as to the variance between the specifications and the actual construction work required, with reference to the elevation of the bed of the stream. Claimants contend that after they arrived on the job they learned that the Drainage District contemplated lowering the existing bed of the stream grades approximately four (4) feet at the points of the bridges, but that this work had not been completed; that claimants were not required to remove additional excavation from the stream bed itself; but that they were required to remove additional excavation in order to go to the required depth for the bridge abutments, (Record p. 37.)

W. L. Esmond, an Assistant Engineer for the State Highway Department, testified that he was one of the Engineers assigned to the supervision of the construction of the three bridges in question, and was in regular attendance at the location of same; that a revision was made in the plans and specifications after the Mid-West Construction Company began its work, and that by such revision, the footings for abutments on the East bridge were raised about one and one-half (1%) feet; that no material change was made on the plans for the middle bridge and that the plans were changed on the west bridge so as to raise the depth of the footings approximately two (2) feet. He further testified “that the practical effect of this change lessened the amount of excavation which the Bridge Company was required to do the approximate distance of the change in footage shown by the revised plan, and that insofar as the decrease in excavation required was concerned, such change was beneficial to the Company.”

It further appears from the evidence that claimants bid for the construction of the three bridges in question, which was accepted by the State, amounting to Twenty One Thousand Fifty Four and 18/100 ($21,054.18) Dollars. Claimant Wilson testified that they had received from the State Twenty Four Thousand Five Hundred Forty Four and 30/100 ($24,544.30) Dollars, and that the additional amount was paid to them for the reason that under special provisions of their contract there was a clause which stipulated they should perform additional work; that additional work was performed which raised their figures from Twenty One Thousand Fifty Four and 18/100 ($21,054.18) Dollars to Twenty Four Thousand Five Hundred Forty Four and 30/100 ($24,544.30) Dollars, and that they had received the latter sum in full from the State. This witness further testified that they had received from the State all that their bid called for, plus additional work to the amount of approximately Three Thousand ($3,000.00) Dollars, and that their claim herein is based entirely on the extra cost of construction work made necessary by the unusual ground condition at the location of these bridges. (Record p. 40.)

Nothing appears in the record to indicate any acceptance under protest by claimants of the final payment that was made to them under this contract.

As hereinabove indicated, the standard specifications under which this work was undertaken provides,

“The acceptance by the contractor of the last payment shall operate as and shall be a release to the- department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract.”

Art. 9.7 (p. 36) Standard Specifications.

The record fails to disclose a meritorious right in favor of claimants for an award. While they may have encountered unfortunate conditions and delays that resulted in a financial loss to them, there is no basis shown to justify the State in compensating them for their lack of information or error in judgment. They have received the amount of their bid, plus approximately Three Thousand ($3,000.00) Dollars additional for certain extras, the nature of which is not disclosed in the record, and their acceptance thereof is final so far as any rights herein are disclosed. An award is denied and the claim dismissed.


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2441
    Linder, Inc., an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1937.

    Monroe & Allen, for claimant.
    Otto Kernes, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant in this case seeks to recover the sum of $344.50, and alleges that sometime on the day of February 14, 1934, a number of workmen working for the State Highway Department on State Bond Issue Route Number 2, two miles south of Decatur, Illinois, on C. W. A. Project No. 4033, started a fire on the premises of claimant, in order to keep warm, the fire having been started behind and to the west of the boards for advertising. The fire burned the back braces on some of the signs, and the heat from the fire blistered the face panels of all of the sign boards to such extent that it was necessary to clean the boards of the paint, re-coat the panels, and in fact, re-finish the entire displays. Claimant further alleges that because of the inclement weather, the repainting and re-conditioning of the signs was considerably delayed, so that claimant lost two months rental upon four of the boards.

Mr. Apple, district engineer of the Highway Department contends that the origin of this fire is unknown to him and that the place the fire was originally started is not known; that no employee in the Department could be found who knew anything about the origin of the fire. We are not, however, basing our opinion upon this statement of Mr. Apple’s. Even were this highway work there would be no liability.

This court has repeatedly held that in the construction and maintenance of its roads the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. See Minear vs. State Board of Agriculture, 259 Ill. 549. Such also is the holding of the Supreme Court in Symonds vs. Clay County, 71 Ill. 355, wherein it was held that where a poor farm was owned by a county and the servant of the county was burning brush thereon and through his negligence a fire spread to an adjoining farm and caused damages thereto, the county was not liable.

We must, therefore, hold that in this case the State is not liable and recovery is denied.


author: Mb. Justice Linscott

text:
    (No. 2432
    Harry Lunn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1937.

    J. V. McCarthy, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The complaint alleges that on the 17th day of November, 1933, the claimant’s automobile was struck by a truck owned by the State of Illinois, and driven by an. employee of the State; that the automobile of claimant had stopped over near the curb in order to avoid an automobile on a slippery pavement in the City of Geneva, Kane County, Illinois; that the truck owned by the State, skidded, turned completely around and struck the automobile of the claimant. The complaint further alleges that this was negligently done, and that the driver of the claimant’s automobile, and the claimant were in the exercise of due care and caution for the safety of the car. The sum of $52.00 is claimed as damages as the result of this collision.

The State has made a motion to dismiss, and this motion must be sustained for the reason that the rule is universal that the State is never liable for the negligence of its agents and employees, unless there is a statute making it so liable and in this State there is no such statute and unless a claimant can show a legal liability on the part of the State for damages sustained as the result of the negligence of its employee or agent, the court has no power to make an award.

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

In numerous other cases this court has followed the rule above announced. Cause dismissed.


author: Mr. Justice Yantis

text:
    (No. 2719
    Charles E. Marquis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1937.

    Hubert H. Edwards, for claimant.
    Otto Keener, Attorney General, and John Kasserman and Murray F. Milne, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was certified under the classified civil service of Illinois to the Lincoln State School and Colony as business manager on September 13, 1918. He was thereafter transferred to the Illinois State Reformatory at Pontiac as institutional chief clerk, and was again transferred on October 30, 1930 to the Kankakee State Hospital at Kankakee as business manager. Stipulations of fact have been filed, wherein it appears that both the above offices are under the same classification. On November 17, 1932, the Department of Public Welfare of the State of Illinois, acting through A. L. Bowen, then Superintendent of Charities, abolished the position of business manager at the Kankakee State Hospital, effective November 30, 1932. Such abolishment was not due to any fault or misconduct of claimant and the latter was then and continued to be in good standing with the Civil Service Commission of the State.

The record discloses that claimant received notification from A. L. Bowen that the position he was then holding had been abolished. He communicated with Superintendent Bowen in writing and accepted the latter’s request to resign (Exhibit C, attached to Supplemental Stipulation of Pacts); that on November 22nd he again wrote to Superintendent Bowen and stated that he desired to reconsider his action in resigning and that he demanded to be placed in position of chief clerk in the place of someone who was holding such position as temporary appointee in some other State institution. Claimant was out of employment from November 30, Í932, to February 18, 1933, at which latter date the Department of Public Welfare discharged a temporary appointee who had been acting as chief clerk at the Illinois State Reformatory at Pontiac, and placed the claimant in said position.

Claimant contends that during the time he was out of employment there were no other parties certified by the Civil Service Commission or placed upon the waiting or eligibility list for said positions, and that during said period he was the only person eligible to a position under the civil service classification of business manager, chief clerk and comptroller for institutions. Claimant further contends that there is due him for salary and maintenance for the period from December 1st to February 18th, 1933, the sum of One Thousand Forty-two and 84/100 ($1,042.84) Dollars, together with legal interest.

No infringement of claimant’s rights appears from the record. Why no other names but claimant’s were shown on December 1, 1932 for the positions that existed at the several institutions of the State, does not appear. The statute however (Sec. 12, Chap. 126a, Ill. State Bar Edition) provides:

“When there is no eligible list the appointing officer may, with the authority of the commission, make temporary appointments to remain in force only until regular appointments under the provisions of this Act can be made.”

As long as claimant was holding his position as managing officer at Kankakee there were no names on the eligibility list, and according to the record, positions similar to his own at all the other institutions of the State were then and there filled by temporary appointees. Notwithstanding the fact that claimant had apparently sent his written resignation to Superintendent Bowen, after receiving notice that the position he was then occupying would be shortly thereafter abolished, the Civil Service Commission and the Department of Public Welfare acceded to claimant’s demands for re-employment and to a preference under his eligibility rating and within what appears to have been an entirely reasonable time, i. e. two and one-half months, discharged the temporary appointee who was holding the position of chief clerk at the State Reformatory at Pontiac and certified claimant for the latter’s position. The positions held by these several appointees i. e. institutional managers and chief clerks' do not appear from the record to be of “an essentially temporary and transitory nature”, which under the further provisions of said section shall be made only for a period of thirty days.

The Attorney General makes the further contention in defense against this claim that, even though claimant as a civil service employee had been illegally prevented from occupying a position to which he is entitled, that he cannot recover salary for such period of non-employment, because the record discloses that temporary appointees performed the services and received the salary incidental to such positions at all the various institutions of the State, during the time of claimant’s non-employment. In support of such defense counsel cites People vs. Burdette, 283 Ill. 124, and decisions therein appearing. Claimant’s demands appear to be without merit and the claim is hereby dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 2971
    Samuel Block, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.
    Claimant, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to May 6th, 1936 Samuel Block and John M. Keener were engaged in the retail liquor business at 169 N. Clark Street, Chicago. On said date they paid the sum of $58.33 to the Illinois Liquor Control Commission as the fee for the renewal of their retail liquor license for the period from May 1st, 1936 to July 1st, 1937. At that time they knew that said John M. Kesner was to sell out his interest in the business on July 1st, 1936, but did not knowl that they might have taken out a license from May 1st, 1936 to June 30th, 1936. License was duly issued to them in accordance with the aforementioned payment. On July 1st, 1936 John M. Kesner sold out his interest in the business, and on July 9th, 1936 payment was made- to the Illinois Liquor Control Commission in the amount of $50.00 by Samuel Block and Lawrence Croak for retail liquor license from July 1st, 1936 to June 30th, 1937, for the same premises mentioned in the aforementioned license.

Claimant takes the position that he has paid two license fees for the year commencing July 1st, 1936 and should be entitled to a refund in the amount of $50.00 covering one of such fees.

The Attorney General contends that claimant is not • entitled to an award, for the reason that there is no statute which authorizes a refund of the license fee under the circumstances set forth in the complaint, and that in the absence of such statute, claimant is not entitled to a refund.

Section 119 of the Liquor Control Act provides that “A license shall be purely a personal privilege * * * and shall not constitute property * * * nor shall it be alienable or transferable voluntarily or involuntarily * * etc.

The first license was issued to Samuel Block and John M. Kesner and authorized them to sell alcoholic liquor at retail from May 1st, 1936 to June 30th, 1937.

When John M. Kesner sold out his interest in the business, the previous partnership was dissolved and a new firm was organized; such new firm acquired no right to sell alcoholic liquor under the license previously issued to Samuel Block and John M. Kesner. It therefore became necessary for such new firm to make application for a retail liquor license if they intended to continue in that business.

From the standpoint of the principle involved, the case stands upon the same basis as though both of the original partners had sold out to Lawrence Croak on July 1st, 1936.

Claimant apparently takes the position that he is entitled to a refund on account of the fact that from July 1st, 1936 to June 30th, 1937 there were outstanding two licenses for the same premises, covering the same period of time. There is nothing unusual about that situation. It will arise in any case where the original license holder discontinues business for any reason during the term of the license and another person commences a similar business in the same place.

The question involved is the question as to the right of a licensee, upon the voluntary surrender of his license, after the commencement of the term, to recover the unearned portion of the license fee theretofore paid by him.

The Liquor Control Act of this State authorizes a refund of the unearned portion of a license fee in only three cases, to wit: •

1. Where application is denied. Section 146.
2. In case of the death, insolvency or bankruptcy of the licensee, etc. Section 119.
3. Where the political subdivision, etc. in which the licensed premises are situated becomes prohibition territory during the term of the license. Section 181.

The rule of law applicable to cases of this kind in the absence of a statute on the subject is set forth in 33 Corpus Juris 572, Section 180, as follows:

“A licensee or holder of a liquor tax certificate upon the voluntary surrender of his license or certificate is not, in the absence of a statute, entitled to a rebate for the unexpired portion of his license or certificate. But in some jurisdictions provision has been made by statute for a rebate in such cases.”

The same rule is set forth in 15 R. C. L. 315, Section 76, as follows:

“It seems to be well settled that ordinarily a licensee does not, on the voluntary surrender of license, become entitled to the return of the license fee, in proportion to the unexpired term in the absence of a statutory enactment to the contrary.”

The question here involved was before this court in the following cases, to wit: A. C. Robb vs. State, No. 2706, decided at the January term, 1936; and Emil Kellner & Co. vs. State, No. 2546, decided at the present term of this court; in each of which cases a refund was denied.

Furthermore, both license fees were paid voluntarily, with the full knowledge of all of the facts. The courts uniformly hold, in such cases, that the licensee is not entitled to a. refund. Yates vs. Royal Insurance Co., 200 Ill. 202; Board of Education vs. Toennigs, 297 Ill. 469; School of Domestic Arts vs. Harding, 331 Ill. 330; Richardson Lubricating Co. vs. Kinney, 337 Ill. 122.

Award is therefore denied and the case dismissed.


author: Me. Chief Justice Hollerich

text:
    (No. 3020
    S. A. Beals, Doing Business as Wilson Hazel Drug Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

    Allen H. Schultz, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

On October 28th, 1936 claimant filed his complaint herein, in which he alleges that on May 1st, 1936 he was engaged in selling alcoholic liquors at retail in the City of Chicago; that on the morning of said date he paid the sum of $58.33 as a fee for a retailer’s license- for the period from May 1st, 1936 to June 30th, 1937, under the provisions of the Illinois Liquor Control Act; that at twelve o’clock noon on said 1st day of May, he sold his said business; that on May 2d, 1936 he requested the Liquor Control Commission of the City of Chicago to cancel the local retail liquor license issued to him by said city; that said local retail liquor license was officially cancelled on May 21st, 1936; that since twelve o’clock noon on said 1st day of May, 1936 he has not engaged in the sale of alcoholic liquors at retail; that since said 21st day of May, 1936 he has not been licensed by the local authorities of the City of Chicago; that the Illinois Liquor Control Commission has failed to direct the Department of Finance to issue a license to him “inasmuch as the claimant does not hold a retailer’s license” issued by the local authorities; that said Illinois Liquor Control Commission has refused to refund the amount of the license fee paid by him to it; and he therefore asks for a refund of such license fee.

Notwithstanding the allegation in the complaint to the effect that the Liquor Control Commission has failed to direct the Department of Finance to issue a license to him, it is admitted by both claimant and respondent that a formal certificate or license was duly issued to claimant by the Department of Finance on June 5th, 1936.

The Attorney General has entered a motion to dismiss the case for the reason that there is no liability on the part of the respondent to make a refund under the facts in the case.

The complaint alleges that claimant was engaged in the sale of alcoholic liquors at retail on May 1st, 1936, and that he sold his place of business at noon of that day. Consequently he was engaged in business for half a day.

The question involved in this case is the question of the right of a retail liquor dealer to a refund of the license fee paid by him, when he voluntarily retires from business, after the commencement and before the expiration of the term for which application was made. The period during which the licensee continued in business, whether one-half day, one day, one month or six months, does not affect the question of the right to such refund.

This question was fully considered by the court at the present term in the case of Emil Kellner & Co. vs. State, No. 2546, to which reference is hereby made. The facts in that case were similar to the present case and we there reached the conclusion that the claimant was not entitled to a refund of the license fee paid by him. The same conclusion was previously reached in the case of Robb vs. State, No. 2706, decided at the January term, 1936.

For the reasons set forth in the Kellner case, award must be denied.

Award denied. Case dismissed.


author: Me. Justice Yantis

text:
    (Nos. 2162-2163-2164-2167-2670-2671, consolidated
    Max R. Broderic, No. 2162, Samuel J. Simon, No. 2163, Aaron H. Payne, No. 2164, Sellac G. Graham, No. 2167, William H. Cruden, No. 2670 and Ernest Withall, No. 2671, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

      Rehearing denied June 30, 1937.

    Josef T. Skinner and William M. Scanlan, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

In each of the above entitled claims plaintiffs seek awards as former arbitrators of the Industrial Commission of Illinois, such claims being for the difference between what claimants were paid for such services and the amount which they allege was due as compensation for such services, under statutes then in force. All of the claimants are represented by the same attorneys and the same questions of law and of fact, with two exceptions, are involved in each case. On application of claimants the cases have been consolidated and will be disposed of in one opinion, made applicable to each:

In the Case of Samuel J. Simon, No. 2163, claimant was first appointed as an arbitrator by Governor Small, under a commission issued November 21, 1927. He served thereunder until July 1, 1929, at which time the Industrial Commission designated him as an arbitrator and he thereafter continued to serve until June 30, 1932.

The amendment of the Civil Administrative Code, effective July 6, 1927, passed by the 55th General Assembly placing the eleven arbitrators of the Industrial Commission under said Code, is contended by Claimant Simon to have classified the holder of such position as an officer instead of an employee. Section 5 of that statute placing the arbitrators under the Code and Section 9 thereof, stating what salary should be paid, were both eliminated by action of the 56th General Assembly. We are of the opinion Claimant Simon should be classified as an officer and not an employee during the period of his service from November 21, 1927 to July 1, 1929.

The service of all other claimants was subsequent to such amendment of the Civil Administrative Code, and those serving as arbitrators thereafter would be classified as employees.

Claimant Simon received his salary in regular monthly installments at the rate of Five Thousand ($5,000.00) Dollars per annum from November 21,1927 until July 1,1929. Thereafter he received his salary in regular monthly installments at the rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars per annum, whereas he contends such payments should have been continued on the basis of Five Thousand ($5,000.00) Dollars per year; the difference being Two Thousand Two Hundred Fifty and 24/100 ($2,250.24) Dollars, for which he now makes claim.

In the Case of Max B. Broderic, No. 2162, claimant assumed his duties as arbitrator under appointment from the Industrial Commission on September 16, 1929, and served until January 26, 1933. He received his salary in regular monthly installments of Three Hundred Fifty-four and 16/100 ($354.16) Dollars being at the rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars per year, and contends that he should have been paid at the rate of Five Thousand ($5,000.00) Dollars per year, and now seeks an award of Two Thousand Five Hundred Twenty-one and 51/100 ($2,521.51) Dollars.

In the Case of Aaron H. Payne, No. 2164, claimant served as an arbitrator under appointment by the Industrial Commission from July 1, 1930 to January 26, 1933, receiving compensation from the State for such service in regular monthly installments of Three Hundred Fifty-four and 16/100 ($354.16) Dollars, being at the rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars per annum and he now seeks an award for additional pay in the sum of One Thousand Mine Hundred Twenty-seven and 74/100 ($1,927.74), claiming that payment for his services as such arbitrator should have been at the rate of Five • Thousand ($5,000.00) Dollars per year.

In the Case of Sellac G. Graham, No. 2167, claimant served as arbitrator under appointment by the Industrial Commission from September 16, 1929 to June 30, 1932. He received his salary regularly each month during said period in the sum of Three Hundred Fifty-four and 16/100 ($354.16) Dollars, being at the rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars per year, and now seeks an award of Two Thousand Minety-three and 95/100 ($2,093.95) Dollars, contending that he should have been paid at the rate of Five Thousand ($5,000.00) Dollars per year.

In the Case of William H. Cruden, No. 2670, claimant served as an arbitrator, appointed by the Industrial Commission, from July 19,1932 to August 31, 1933. From appointment until January 31, 1933 regular monthly salary warrants were issued to him in the sum of Three Hundred Fifty-four and 16/100 ($354.16) Dollars per month, being at the annual rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars, and from the latter date until June 30, 1933 he received monthly salary checks in the sum of Two Hundred Minetyseven and 50/100 ($297.50) Dollars each, being at the rate of Three Thousand Five Hundred Seventy ($3,570.00) Dollars per annum, and for the months of-July and August, 1933 he received Three Hundred ($300.00) Dollars each, being at the rate of Three Thousand Six Hundred ($3,600.00) Dollars per year. He contends that he should have been paid throughout said period of service at the rate of Five Thousand ($5,000.00) Dollars per year, and he now seeks an award in the sum of One Thousand Two Hundred Thirty and 26/100 ($1,230.26) Dollars.

Counsel for respondent contends that a part of the variation in claimant’s pay was due to a voluntary reduction of ten (10) per cent from the salary of Three Hundred Fifty-four and 16/100 ($354.16) Dollars per month that he was receiving.

In the Case of Ernest Withall, No. 2671, claimant served as an arbitrator under appointment from the Industrial Commission, from July 1, 1932 to January 31, 1933. He also received regular monthly salary payments for said period in the sum of Three Hundred Fifty-four and 16/100 ($354.16) Dollars per month being at the rate of Four Thousand Two Hundred Fifty ($4,250.00) Dollars per year. He now seeks an award of Four Hundred Thirty-seven and 50/100 ($437.50) Dollars, claiming that he should have been paid at the rate of Five Thousand ($5,000.00) Dollars per annum.

Each of these Claimants contends that the only Acts of the Legislature which fix the salaries of arbitrators is Section 14 of the Workmen’s Compensation Act, effective July 1, 1927, and July 1, 1929, and July 1, 1931, whereby the annual salary to be paid such arbitrators is fixed at Five Thousand ($5,000.00) Dollars each. Claimants contend that the action of the several General Assemblies in making appropriations for such salaries in an amount less than Five Thousand ($5,000.00) Dollars per year was ineffective so far as changing the correct salary due claimants, and that the Legislature having failed to appropriate the amount necessary to pay claimants at the annual rate of Five Thousand ($5,000.00) Dollars per year, claimants are entitled to an award for the difference in the amount that he heretofore received and the amount fixed by the terms of the Workmen’s Compensation Act (and in the case of Samuel J. Simon, No. 2163, in accordance with the further provisions of the Civil Administrative Code).

The Attorney General has filed his motion to dismiss said claims, and in support thereof cites the provisions of. the statute known as “An Act in relation to State finance, in force July 1, 1919, as amended”.

Claimants herein in each instance, throughout their terms of service received regular monthly salary warrants from the State of Illinois, and accepted same from month to month as received. Eegardless of any rights which they may have had to have demanded and received salary in any other amounts, claimants accepted said monthly warrants regularly through their term of service.

The Illinois statute on “State Finances” contains these provisions:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute, in fact, an additional payment for work already performed and for which remuneration had already been made.”
Item 8, Sec. 9, Par. 9, Chap. 127b, State Finances.
“When an appropriation is made for personal service for specific positions at a fixed rate or at a rate not to exceed a certain amount the incumbents of such positions at the time the Appropriation Law goes into effect shall be paid at such rate in full and a smaller rate may be paid to persons entering upon the duties of such positions after such Appropriation Law goes into effect.”
Item 5, Sec. 9, Par. 9, Chap. 127b, State Finances.

The wording of the above Act, i. e. “The amount paid * * * shall be considered as full payment for all services rendered between the dates specified in the * * * voucher” is a direct limitation upon the right of claimants to the awards now sought by them. The question of a reduction in salary, raised by claimants, is not an issue. Every voucher under which monthly payments were made to each claimant for services performed prior thereto carries the notation as to the period of time for which payment in full is thereby being made. Eegardless of any prior awards made by this court as heretofore constituted, we are of the opinion that claimants are barred from the right to any further payment, and are of the opinion that we as the court have no authority to make such award, and that the Legislature would be acting contrary to the provisions of the said statute on “State Finance” if any additional appropriation was made to cover payment for such services. The motion by the Attorney General in each case for a dismissal is hereby allowed and each of said claims is accordingly hereby dismissed.


text:
    (No. 2748
    Robert L. French, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed November 4, 1935, for the sum of $10.00. It is alleged that the bill was for X-ray services on the left leg of Albert Finkler, 104 State Highway Police Department, who worked out of Desplaines Station at River and Rand Road, Desplaines, Illinois, on September 5,1934.

This claim has been presented to the various State Departments and the claim contains a Bill of Particulars, and is properly sworn to. The Highway Department admits that it is a legitimate claim but was not submitted in time for the previous appropriation and will not be contested by that Department.

It has been the holding of this court that where evidence is .uncontroverted that claimant rendered medical services at the request of the proper authority and the amount claimed is reasonable and undisputed, an award will be made on claim filed with statutory period on recommendation of proper authority.

Marquis vs. State, 7 C. C. R. 88.
St. Margaret’s Hospital vs. State, 7 C. C. R. 222.

It appears from the statement of the Highway Department and numerous letters sent by claimant, that this claim should be paid although the appropriation has lapsed. The statute of limitations does not bar the items and as the Department admits the services were rendered, and there being no objection on the part of the Attorney General, an award will be made in the sum of $10.00.


text:
    (No. 2724
    E. Henning, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks a refund of Fifteen and 57/100 Dollars ($15.57) for excess Franchise Tax. The complaint alleges that in making its annual report to the Secretary of State for the year ending December 31,1933 it showed a Paid-in Surplus of Thirty One Thousand One Hundred Thirty Two Dollars ($31,132.00) and stated capital of Fifty Thousand Dollars ($50,000.00), whereas in fact it had no paid-in surplus, but did have an earned surplus of Thirty One Thousand One Hundred Thirty Two Dollars ($31,132.00). A Corporation Tax of Forty and 57/100 Dollars ($40.57) was assessed upon the report as made and claimant now seeks a refund of the portion alleged to have been paid through its mistake.

An earned surplus is not taxable but a paid-in surplus becomes a part of the capitalization and is taxable under the law and it is apparent that had plaintiff made a correct report to the Secretary of State it would have been taxed on its capital alone.

Where it clearly appears that a Franchise Tax in excess of the amount due was assessed and paid through a mutual mistake of fact an award for such excess will be made.

“Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payer that the fact was otherwise, it may be recovered. The ground on which the rule rests is that money, paid through misapprehension of facts, in equity and good conscience belongs to the person who paid it. Municipal corporations as well as individuals are subject to this rule. An error of fact is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.” (21 R. C. L. 164).

The above rule has been recognized by this court in the following cases: Moorman, Mfg. Co. vs. State, 8 C. C. R. 106; Bates Valve Bag Corp. vs. State, 7 C. C. R. 64.

The claimant seems to be entitled to a refund of the difference between the amount due, i. e. Twenty Five ($25.00) Dollars and the sum actually paid, i. e. Forty and 57/100 ($40.57) Dollars and an award is therefore made in favor of claimant for the sum of Fifteen and 57/100 ($15.57) Dollars.


text:
    (No. 2546
    Emil Kellner & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

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

delivered the opinion of the court:

For the period of six years prior to the filing of the complaint herein, claimant was engaged in the general confectionery and soft drink jobbing business in the City of Bock-ford. In 1933 claimant became an importing distributor of malt and vinous beverages, and obtained a license as such distributor under the “Malt and Vinous Beverages” Act of this State, which said license expired on April 30th, 1934. On May 4th, 1934 claimant filed its application with the Illinois Liquor Control Commission for a license as an importing distributor under the provisions of the Liquor Control Act of this State, and forwarded the necessary bond, and certified check or draft in the sum of $250.00 in payment of the required license fee.

On May 15th, 1934 said Commission issued to the claimant its receipt for the aforementioned license fee, but the formal certificate or license was not issued by the Department of Finance until August 8th, 1934. Across the face of the aforementioned receipt was written the words “Void After 30 Days 1934-1935.”

On June 5th, 1934 claimant notified said Commission by registered mail that: it would discontinue the business of importing distributor of alcoholic liquors on June 9th, 1934, and requested a refund of the unearned portion of the license fee theretofore paid. Claimant discontinued its said business on June 9th, 1934, but said Commission refused to make the requested refund on the ground that there was no.law authorizing the same.

Claimant contends that it is entitled to a refund of the unearned portion of the license fee paid by it, on account of the fact that it quit business and made demand for such refund prior to the time the formal license was actually issued to it.

Claimant fails to distinguish between the license or right to do business as an importing distributor, and the formal ■certificate or evidence of such right.

Under Section 117 of the Liquor Control Act as it then existed, all licenses issued by the Department expired on April 30th following their issuance. Thousands of applications were filed with the Commission each year, and a very large percentage of them were filed shortly before or shortly after the 30th day of April. It necessarily followed that all formal certificates or licenses could not be issued within the course of a few days, and for that reason receipts were issued as soon as convenient, and the formal certificates or licenses were issued thereafter. When issued, such licenses, covered the period from the 1st day of May (or, if the application was received after that date, from the date of the receipt of the application by the Commission) to the 30th day of April next following.

Claimant makes much of the fact that the receipt on the face thereof contains the following words, to wit: “Void After Thirty Days 1934-1935,” and contends that such notation authorized it to operate as an importing distributor for thirty days but not afterwards. If such notation is susceptible of the construction placed upon it by the claimant, it is absolutely null and void, as the Commission had no authority under the Liquor Control Act to authorize anyone to conduct business as an importing distributor for the period of thirty days.

The fact that claimant decided to quit business and actually did quit business and make a claim for a refund prior to the time the formal certificate or license was received by him, does not change the legal aspect of the question. The question here involved is the question as to the right of an importing distributor to a refund of the unearned portion of the license fee paid by him, when he voluntarily retires from business after the commencement and before the expiration of the term for which application for license was made.

The only provisions of the Liquor Control Act which authorize a refund of the unearned portion of a liquor license fee are the following:

1. Where application is denied. Sec. 146.
2. In case of the death, insolvency or bankruptcy of the licensee, etc. Sec. 119.
3. Where the political subdivision, etc. in which the licensed premises are situated becomes prohibition territory during the term of the license. Sec. 181.

Claimant does not come within any of the foregoing provisions, and consequently has no right to a refund by virtue of the provisions of the Liquor Control Act.

The rule governing the right of a licensee to a refund of any portion of the license fee paid by him upon the voluntary surrender of his license, in the absence of a statute authorizing such refund, is set forth in 33 Corpus Juris, 572, sec. 180, as follows:

“A licensee or holder of a liquor tax certificate, upon, the voluntary surrender of his license or certificate is not, in the absence of statute, entitled to a rebate for the unexpired portion of his license or certificate. But in some jurisdictions provision has been made by statute for a rebate in such cases.”

The same rule is set forth in 15 R. C. L. p. 315, as follows:

“It seems to be well settled that ordinarily a licensee does not, on the voluntary surrender of his license, become entitled to the return of the license fee, in proportion to the unexpired term, in the absence of statutory enactment to the contrary.”

This identical question was before this court in the case of Robb vs. State, No. 2706, decided at the January term, 1936 of this court. In that case we held that the claimant was not entitled to a refund of the unearned portion of the license fee. '

Under the law as above set forth, we have no authority to allow an award, and the claim is therefore denied.

Award denied. Case dismissed.


text:
    (No. 2346
    Joseph Kiegel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937

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

delivered the opinion of the court:

On April 10, 1935 au award was entered in the above entitled cause for One Hundred Fifty Six and 08/100 ($156.08) Dollars, as a balance due for temporary disability; also Three Hundred Seventy and 50/100 ($370.50) Dollars for a fifteen (15) percent partial permanent loss of the use of the right leg; also the further sum of One Hundred Two ($102.00) Dollars for the use of Dr. T. H. Culhane for professional services rendered to plaintiff, making a total award of Six Hundred Twenty Bight and 58/100 ($628.58) Dollars. In the original hearing plaintiff sought an additional award for partial loss of use of his left leg’ and due consideration was given such claim.

Application was thereafter made for a review under Section 19 (h) of the Workmen’s Compensation Act, whereby claimant seeks an additional award of five (5) percent for partial permanent loss of the use of each of his legs; said Application for Review having been filed November 13, 1935, and within eighteen months of the original award heretofore entered.

It is clear from the decisions of the Supreme Court that the previous award is conclusive as to all questions of law and fact, as to liability for compensation and as to the existence and nature and extent of disability at the time of the previous award, and the only ground for the proceedings under Section 19 (h) is that the disability has recurred, increased, diminished or ended subsequent to the time of such award.

As the question of an award to plaintiff for purported loss of use of the left leg was fully considered in the original hearing and no award was made therefor, any award made therefor at this time would be in the nature of a re-hearing, and not for an increased disability as contemplated by Section 19 (h). The court is of the opinion that to predicate an award in a re-hearing under Section 19 (h), there must have been a previous grant of an award for the specific loss for which an increased redress is sought.

In Becker Cleaning Co. vs. Ind. Com., 322 Ill. 603, there was a settlement for temporary compensation and also twenty (20) percent loss of use of an arm. Petition for Review under Section 19 (h) was filed, claiming disability for a fractured hip from the same accident. The Commission awarded fifty (50) percent loss of use of the arm and forty (40) percent loss of use of a leg. The award as to the arm was not sustained because there had been no claim in the petition for increased disability of the arm, and the award to the leg was not sustained because it was not an injury included in the original settlement. The court said:

“The words of the statute ‘recurred, increased, diminished or ended’ imply a previous injury for which the award has been made, and a petition under this section cannot be used as a means of securing a hearing on a new claim.”

In the previous hearing Dr. Culhane stated that plaintiff’s right leg was one-half inch shorter than the left, that there was some bowing of the leg just below the knee; that while he has free motion in the knee joints and no disability as far as walking is concerned, yet there is a slight limitation of motion in the knees when plaintiff “squats down”; further that such limitation may improve with time.

The evidence submitted at this time in support of any-increased disability is very meager. Plaintiff testified that in his opinion his right leg has grown shorter than it was when the award was entered, and he limps more and becomes more tired than at that time. His work as a foreman on the WPA and as a nursery-stock salesman necessitates his being on his feet for long periods. The testimony of two medical men, Dr. Earnst E. Ochsner and Dr. Robert A. Reedy, has been submitted in the review. The examination made by these two gentlemen dates back to approximately a month after the previous award was entered, i. e. May 21, 1935. Both Doctors fix plaintiff’s disability at twenty (20) percent loss of use of his right leg and five (5) percent loss of use of his left leg. Dr. Ochsner further stated that judging from the amount of deformity and atrophy of the muscles, plaintiff’s injuries had reached a permanent stage. The evidence in support of an increase, being based upon the examination made so closely following the previous award, does not give much support for an increased finding. Consideration of the entire record however, apparently warrants that there is an increased permanent partial loss of use of plaintiff’s right leg to the extent of five (5) percent, and an additional award is hereby entered in favor of plaintiff under the provisions of Section 19 (h), in the sum of One Hundred Twenty Three and 50/100 ($123.50) Dollars.


text:
    (No. 2782
    Henry F. Meyers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937

    Julius E. Epstein, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed Ms complaint herein on December 27, 1935 and alleges therein that on March 5th, 1935 he was committed to the Cook County jail on a charge of bastardy; that wMle in said jail he was put to work at different kinds of work; that on June 15th, 1935 he was assigned to the bakery detail and put to work on a bread slicing machine wMch was operated by man power; that at a moment when the knife had ceased to operate, claimant put Ms right hand into the receptacle to remove the bread that had been cut and while so doing, and while in the exercise of all due care and caution for his own safety, the slicing knife was put into operation and the claimant’s third finger of his right hand was severed at the first knuckle.

Claimant contends that said slicing machine was not equipped with the necessary guards or safety appliances, and that the failure to so equip the same constituted gross negligence on the part of the respondent; also that the stump of Ms finger was so carelessly and negligently sutured and sewn by the attending physician that as a result thereof it is bulky and cumbersome and interferes with claimant’s ability to perform his duties. By reason of which he claims damages, including loss of earnings, in the total amount of $4,150.00.

The Attorney General has moved to dismiss the case for the reason that the respondent is not hable under the facts set forth in the complaint.

TMs court has repeatedly held that the State in the maintenance of its charitable and penal institutions is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. Schwab vs. State, 4 C. C. R. 77; Burghardt vs. State, 5 C. C. R. 221; Pelka vs. State, 6 C. C. R. 390; Sturrock vs. State, 7 C. C. R. 157; Parks vs. State, 8 C. C. R. 535; Schaefer vs. State, No. 1968, decided at the September, 1935, term of this court; White vs. State, No. 2859, decided at the May, 1936, term of this court; Edward Shilkitis vs. State, No. 2355, decided at the January, 1937, term of this court.

Such decisions of this court are in harmony with repeated decisions of our Supreme Court.

Hollenbeck vs. Winnebago County, 95 Ill. 148.
Kinnare vs. City of Chicago, 171 Ill. 332.
City of Chicago vs. Williams, 182 Ill. 135.
Tollefsen vs. City of Ottawa, 228 Ill. 134.
Minear vs. State Board of Agriculture, 259 Ill. 549.
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.
See also 25 R. C. L. p. 407, sec. 43; 13 R. C. L. p. 944, sec. 8; and 8 R. C. L. Supp. p. 5580, sec. 43.

There is no statute making the State liable in cases of this kind, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice' Linscott

text:
    (No. 2701
    Cecil W. York, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1937.

    Bunge & Bunge, for claimant; Crescy E. Woehrel, of counsel.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice' Linscott

delivered the opinion of the court:

The complaint in this case sets forth that on the 7th day of June, 1935, the Highway Department of the State of Illinois, was making repairs on a State highway known as No. 18, and also known as U. S. Route No. 34, at a point just west of Madison Street, Hinsdale, Illinois; that while making the repairs, the highway was not closed to vehicular traffic.

The complaint further sets forth that on the evening of said June 7th, said Highway Department, by its agents and servants, placed several heavy wooden barricades across the highway to obstruct traffic, but did not properly put lights on the barricades in order to protect persons lawfully using the said highway, and that about 9:20 p. m. in the evening of the said 7th day of June, the claimant with several guest passengers in his car, and while in the exercise of due care and caution for his own safety, collided with one of said unlighted barricades, greatly damaging his automobile and injuring the claimant, and damaging the clothing of the claimant.

Claimant asks damages in the sum of $212.00. A Bill of Particulars is also filed, itemizing all of the damages, there being $200.10 to the automobile, doctor’s bill of $2.00 and $10.00 damage to the suit worn by the claimant.

The claim was filed on July 15, 1935. On October 11th of the same year, the Attorney General made a motion to dismiss on the grounds that claimant seeks to recover for damages resulting from a collision on account of the negligence of the agent of the Highway Department in not keeping and maintaining a light on a barrier across a highway. To this motion to strike, the claimant’s attorneys moves the court to strike the motion to dismiss filed by the Attorney General from the records on the grounds that the Attorney General’s motion was not filed in accordance with the rules of this court. If we should sustain the motion filed by claimant, it would not be of any advantage to him because he does not present a cause of action against the State.

The rule is universal that the State is never liable for the negligence of its agents and employees unless there is a statute making it so liable. The following are but a few of the many cases announcing the rule:

United States vs. Kirkpatrick, 9 Wheaton, 720; Story on Agency, 9 Ed. Sec. 319; Belt vs. State, 1 Ct. Cl. 266; Johnson vs. State, 2 Ct. Cl. 165; Schroeder vs. State, 3 Ct. Cl. 36; Kinnare vs. City of Chicago, 171 Ill. 332; Derby vs. State, 7 C. C. R. 145; Chumbler vs. State, 6 C. C. R. 138.

For the reason that the claimant does not present a cause of action, the court will, on its own motion, strike the complaint. Case dismissed.


author: Me. Chief Justice Hollebioh

text:
    (No. 2098
    Tom L. Booth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Clarence B. Davis, for claimaht.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollebioh

delivered the opinion of the court:

On the 13th day of August, A. D. 1932 claimant was a member of Troop F, 106th Cavalry, Illinois National Guard, and was on duty at Camp Grant. On said date, while in line of duty, he was struck by the front foot of a horse and was injured in the right groin and right hip, from which injury a hernia subsequently developed. Claimant was taken to the medical officer and returned to camp where hot applications were applied to his side. He remained in camp until his regiment returned to Springfield. He was then assigned to Dr. Lockie of Springfield who made an examination and found “a hernia, or the beginning of a hernia.” Dr. Lockie fitted claimant with a truss, which he wore until January 1st, 1933. On January 1st, 1933 the medical board decided there was no hernia at that time. In February, 1933 claimant was called with his troop to Taylorville on riot duty and was there examined by the same doctor who, as a member of the medical board, examined him on January 1st. Upon the last examination, the doctor found that claimant had a hernia, which became strangulated while he was there on duty. Claimant was removed to the hospital at Taylorville and was operated on by the army surgeon, Captain Bitter. Claimant remained in the hospital at Taylorville four weeks, and was then returned to Springfield, where he continued under the care of Dr. Lockie for a period of seven or eight months. The operation was successful and claimant has no permanent injury. All medical and hospital bills were paid, by the respondent.

Prior to the time he went to Camp Grant, claimant was working for the Illinois State Register as collector and solicitor, and was paid $23.00 or $24.00 per week. After he returned from Camp Grant, and before going to Taylorville, he attempted to procure employment in the Pillsbury Mills, where he is now working qnd where he could then have obtained employment at $120.00 per month, but was rejected on account of his hernia.

Claimant contends that he was totally unable to work from the time he was fitted with a truss as aforesaid, until August 24th, 1934. The evidence indicates, however, that in six months after his operation his condition was such that he could have performed the same kind of work he performed prior to his injury.

. After his operation claimant received half pay for a period of thirty days, in accordance with military regulations. After his discharge by Dr. Lockie, claimant was employed by the A." & P. stores on Saturdays for a total of approximately twenty days. Dr. Lockie died prior to the hearing herein, and the only evidence in the record is the testimony of the claimant. His testimony with reference to the time that he was totally disabled is far from satisfactory, but we must dispose of the case on the record before us.

Section 11 of Article 16 of the Military and Naval Code of this State provides 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 his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand,” etc.

There is no question but what claimant was injured in line of duty, and the only question for determination is the amount of financial help or assistance to which he is entitled as the result of the injuries so sustained by him, as shown by the evidence in the case.

Upon a consideration of all of the testimony in the record, we feel that an award of Six Hundred Ninety ($690.00) Dollars will be fair compensation for the injuries sustained.

Award is therefore entered in favor of the claimant, Tom L. Booth, for the sum of Six Hundred Ninety ($690.00) Dollars.


author: Per Curiam:

text:
    (No. 2469
    Marlow Case, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Per Curiam:

This cause again coming before the court upon supplemental petition by Marlow Case for the allowance of an additional award in reimbursement of monies expended for surgical care and incidental expenses in connection therewith for rehabilitation of claimant from the effects of injuries received by him while in the line of duty as a member of the Illinois National Guard;

Also for monies due Dr. Vilray P. Blair for fees for surgical- services rendered the said Marlow Case;

And it appearing that certified bills for all of said expenditures and fees have been filed herein and that all of the said bills and expenses were incurred pursuant to the former order of this court entered herein and that payment of said claims is due the said Marlow Case and the said Dr. Vilray P. Blair;

It is therefore ordered that there" be and is hereby allowed to the said Marlow Case in reimbursement of monies heretofore expended by him for surgical care and expenses incidental thereto in seeking rehabilitation from the effects of the injuries involved, the sum of Four Hundred Sixty Dollars and Ninety-four Cents ($460.94), said award being in payment of the several items appearing in claimant’s petition.

Further, that an award in the sum of Four Hundred Dollars ($400.00) is hereby made in favor of Dr. Vilray P. Blair for additional surgical services rendered to said Mar-low Case as per statement of account appearing in said petition.


author: Mr. Justice Tantis

text:
    (No. 2963
    Firestone Tire and Rubber Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Pfeifer, Fixmer & Gasa way, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Under a stipulation of facts filed in this cause it appears that claimant sold and delivered to the Division of Highways, Department of Public Works and Buildings of the State of Illinois, several orders of automobile tires and tubes; the dates thereof being, August 3rd, August 15, August 28th, October 26th and September 5th, 1934 and June 3rd, 1935, all in the total sum of One Thousand One Hundred Forty Four and 90/100 ($1,144.90) Dollars; that claimant submitted its bills for said merchandise on March 1st, 1936, except for the items delivered to respondent on September 5th, 1934, for which a bill was submitted to the Chief Clerk of the Division of Highways on April 7th, 1936; that the appropriation from which such bills were properly payable lapsed September 30th, 1935, at which time ample funds remained in said appropriation.

The Attorney General contends that the delay upon the part of claimant from June 3rd, 1935 to March 1st, 1936, in presenting its bill is an unreasonable delay and that by reason of such laches claimant has lost any right to an award in payment of its account. As a matter of fact the lapse of time appears to have been nine months between the last shipment of June 3rd, 1935 and the filing of claimant’s bill on March 1st, 1936. However, counsel for respondent also calls attention to the fact that only one and one-half months elapsed between the time of the delivery of the last order and the lapse of the appropriation from which account might have been paid. Inasmuch as claimant would thereafter have to await a new appropriation, the difference of a few months in presenting his claim should not in the opinion of the court be construed too strictly against claimant, in view of the repeated holdings by this court that, where the facts are undisputed that the State has received supplies as ordered by it, and that such supplies were legally purchased by the State, and that the only reason same have not been paid for is by reason of the lapsing of the appropriation, an award will be made, .unless it clearly appears that claimant has delayed an unreasonable length of time in presenting its bill. The purpose of requiring that bills be presented within a reasonable time is to avoid vexatious annoyance to the State in determining the facts as to the merit of such claim. The facts herein appear to justify the allowance of claimant’s bill and the same is hereby allowed, and an award made in favor of claimant for the amount thereof in the sum of One Thousand One Hundred Forty Four and 90/100 ($1,144.90) Dollars.


text:
    (No. 2967
    General Court Reporting Service, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The House of Representatives of the 59th General Assembly adopted a resolution known as House Resolution No. 38, which provided, among other things, as follows:

That a committee of five members of the House of Representatives be appointed by the Speaker to investigate the production, distribution and sale of milk and other dairy products; that said Committee be authorized to subpoena witnesses and to take their testimony; that the necessary expenses of the Committee be paid from the appropriation made for Committee Expenses of the House of Representatives of the 59th General Assembly.

Such Committee was duly appointed, and Hon. Michael F. Hennebery was named Chairman thereof. At the request of such Chairman, the claimant rendered services in taking and transcribing the testimony of witnesses at the hearings held by said Committee in Chicago and Elgin, on May 20th, 2áth and 31st, and June 3d, 6th, and T7th, 1935.

Claimant duly presented to the Chairman of said Commission an itemized statement for the services rendered, in the total amount of $572.68. However, said Chairman became ill and died without approving said bill, and the same was not approved and placed in line for payment before the lapse of the appropriation out of which the same should have been paid. Said appropriation lapsed on September 30th, 1935 and at that time there remained therein an unexpended balance of $9,368.36.

From the facts in the record it satisfactorily appears that the Committee was authorized to contract for the services in question; that the services were actually rendered, and that the charges made therefor are the usual, ordinary and reasonable charges for such services.

Claimant acted promptly in presenting its claim, and the only reason the same was not approved and paid in due course was the death of the Chairman of the Committee to whom the bill had been presented. Under the facts presented, there is no reason why the claim should not be allowed.

Award is therefore entered in favor of the claimant for the sum of Five Hundred Seventy-Two Dollars and Sixty-Eight Cents ($572.68.)


text:
    (No. 3054

    The L. Fish Furniture Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    D ’Ancona Pflaum & Kohlsaat, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

A stipulation filed herein discloses that on March 4, 1935 claimant, pursuant to Purchase Order No. B-20867, delivered to respondent at the Alton State Hospital fifty-four (54) yards of cloth, of the value of Eighty Three and 09/100 ($83.09) Dollars. Claimant thereafter submitted its bill in the sum of Eighty Five and 40/100 ($85.40) which on computation was found to be erroneous to the extent of Two and 01/100 ($2.01) Dollars. There was at the time of the order a substantial unexpended balance in the appropriation for the operating expenses of said hospital, and the only reason for the non-payment of said bill has been- that the error was not adjusted prior to the time such appropriation lapsed.

The bill having been presented without unreasonable delay and the merchandise having been legally purchased, there is nothing apparent in the record to justify non-payment thereof and an award is therefore made in favor of claimant for the sum of the bill as corrected, i. e. Eighty Three and 09/100 ($83.09) Dollars.


text:
    (No. 2372
    Gilbert H. Large & Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

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

delivered the opinion of the court:

Claimant is the owner of a large three-story-and-basement building of brick and concrete construction, located at the corner of Market and Webster Streets in the City of Taylor-ville, Illinois. For some time prior to, and on November 10th, 1933, the first floor of said building was occupied by the claimant as an automobile sales and service room, and the second and third floors and part of the basement of said building was occupied by officers and members of the Illinois National Guard who were then on duty in Christian County in connection with disorders in the Midland coal fields.

There was no written lease between the claimant and the respondent, but the occupancy of said premises by the military authorities was pursuant to a verbal understanding or agreement between the claimant and the officers of the Illinois National Guard in charge of such troops.

The building was heated by a sectional steam boiler which was located in the northeast corner of the basement. In order that there might be uniform heat at all times of the day and night for the men who were quartered in the building, the National Guard, upon the suggestion of the officer in charge, assumed the duty of firing the furnace. The necessary fuel was furnished by the claimant. Members of the National Guard were detailed by the proper officer to take care of the firing of the furnace in 24-hour shifts. The men detailed for such work were selected from the duty roster and were not chosen with any special reference to their knowledge of that kind of work.

The man who was detailed to fire the furnace on the 9th and 10th days of November, 1933, was Private Lawrence Widener, who was then 18 years of age, and who had no previous knowledge of, or experience in work of that kind, and whose first experience with this furnace was on November 9th. On one or more occasions prior to November 10th, 1933, the man in charge of the furnace had permitted the water in the boiler to get low, and the claimant had notified the officer in charge, of such fact, and such officer promised to see that it was taken care of immediately. On the night of November 9th, 1933 the soldiers’ quarters became very cold and it seemed impossible to heat the same, notwithstanding the fact that there was a good fire in the furnace. On the morning of November 10th, Private Widener noticed that the water in the boiler was low, but apparently failed to realize that there was any connection between that fact and the failure to heat the quarters. There was a heavy bed of coals in the furnace, and portions of the boiler became red hot, but nevertheless Widener continued active firing, in an attempt to get up some heat. Two of claimant’s employees went to the basement that morning, while Widener was having trouble in getting up heat. One of the men suggested that Widener throw on more coal, and the other turned a small amount of water into the boiler. Shortly thereafter there was a muffled explosion which disturbed the asbestos covering of the boiler. The fire was drawn and it was ascertained that seven sections of the boiler were broken or burned out, and were thereby rendered worthless.

Thereupon the officers of the National Guard sent trucks from Taylorville to South Bend, Indiana for new sections which were obtained and installed in said boiler as soon as possible, at a cost and expense of $1,014.37. The new sections were purchased and installed at the instance of the officers of the National Guard, but payment therefor was made by the claimant, and it now seeks to recover the amount which it was required to pay in order to replace the sections which were ruined as aforesaid.

No question is raised as to the necessity for the repairs which were thus made, or the reasonableness of the charge made therefor.

The Attorney General resists the claim on two grounds:

First: that the injury in question resulted from the negligence of the servants and agents of the claimant, and therefore the respondent is not liable for the damage in question.

Second: That the respondent at the time in question was engaged in a governmental function and that therefore it is not liable for the carelessness and negligence of its servants and agents in the absence of a statute making it so liable.

As to the first point made by the Attorney General; — we are of the opinion, upon a careful consideration of the entire record, that this point is not supported by the evidence.

The second point raised by the Attorney General requires a consideration of the allegations of the original and of the amended complaint, and the legal effect thereof.

The original complaint was filed herein on May 4th, 1934, and alleges that there was a verbal agreement or contract between the claimant and respondent with reference to the use of that portion of the building occupied by the members of the National Guard; that it was the duty of the respondent to so use the building as not to injure or damage the same, and to surrender it back to the claimant in good condition; that notwithstanding such duty, the respondent carelessly and negligently fired said furnace, and negligently overheated and overfired the same, at a time when there was not sufficient water therein, whereby seven sections thereof were ruined and rendered worthless.

The amended complaint which was filed herein on May 1st, 1936 contains allegations similar to those in the original complaint with reference to the contract or agreement between the claimant and respondent, and also contains an allegation that as a part of such agreement, the respondent undertook and agreed to surrender said building to the claimant in good condition. The amended complaint, however, omits all allegations with reference to the carelessness and negligence of the officers and agents of respondent in the firing of the furnace. Claimant’s right to recover, as set forth in the amended complaint, is based entirely upon respondent’s breach of contract in failing to surrender the building back to claimant in as good condition as it was at the time of the letting.

Under the amended complaint, claimant’s case is an action on contract, and not an action of tort, and is based upon the implied contract of the respondent to surrender the demised premises at the termination of the tenancy, in as good condition as it was at the beginning of the term, ordinary wear and tear excepted.

Section 63 of The Military and Naval Code of this State provides as follows:

“The Quartermaster’s Department is charged with furnishing all means of transportation, clothing, tentage, fuel, stoves, and other means of heating; * * * and, in general, all necessary supplies and service not specified for some other staff Department.”

The military authorities therefore had full power and authority to rent the quarters in question, and provide for the heating thereof.

In 16 R. C. L. p. 1085, section 603, the law governing cases of this kind is set forth as follows:

“Independent of any contract or express agreement, at common law a tenant must treat the premises in such a manner that no substantial injury shall be done them through any negligent or wilful misconduct on his part. 'This implied obligation is part of the contract itself, as much so as if incorporated into it by express language; and it results from the relation of landlord and tenant between the parties which the contract creates.”

The principles of law here involved are similar to those involved in the case of United States vs. Bostwick, 94 U. S. 53 (24 Law Ed. 65), which case came to the United States Supreme Court on appeal from the United States Court of Claims.

That case involved, among other things, a claim for damage- done to certain property of the claimant during the time said property was occupied by the soldiers of the United States Army for the purposes of a hospital and camp ground.

There was no written lease for the premises but the same were occupied pursuant to a letter or note of General Mansfield to one Lovett who was acting for the owners of the property. With reference to the effect of the agreement between the parties, the court there said:

“The contract is one by which Mr. Lovett agreed to let and United States to hire the premises described for the term of one year, with the privilege of three, at a rent of $500.00 a month, and without restriction as to the use to which the property might be put. United States agree to nothing in express terms, except to pay rent and hold for one year.”
“But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not, unnecessarily to injure it, or, as it is stated by Mr. Comyn, ‘to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the willful or negligent conduct of the lessee.’ Com. Land & T. 188. This implied obligation is part of the contract itself, as much so as if incorporated into it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. Holford vs. Dunnett, 7 M. & W. 352. It is not a covenant to repair generally, but to sd, use the property as to avoid the necessity for repairs, as far as possible. Horsefall vs. Mather, Holt, 7; Brown vs. Crump, 1 Marsh, 569."
* it; $ $ i$ $
“The United States when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. No lease in form was ever executed in this case; but the contract, followed by the delivery of possession and occupation under it, is equivalent for the purposes of this action to a lease duly executed, containing all the stipulations agreed upon.”
* * * * $ $ $

After holding that any injury done to the property during the occupation thereof by the soldiers previous to the agreement for a lease, could not be recovered for in that action, the court said:

“But damage after the lease commenced, and while the United States were actually in possession under it, occupies a different position. That comes within the contract by which the rights of the parties in this action are to be determined. As has been seen, that does not bind the United States to make good any loss which necessarily results from the use of the property, but only such as results from the want of reasonable care in the use. It binds them not to commit waste, or suffer it to be committed. If they fail in this, they fail in. the performance of their contract, and are answerable for that in the Court of Claims, which has jurisdiction of “all claims founded upon any contract, express or implied, with the Government of the United States, which may be suggested to it by a petition filed therein.” R. S. sec. 1059; (10 Stat. at L., 612, sec. 1.) If there had been in this lease an express agreement to repair, certainly it could not have been successfully claimed that the Court of Claims would not have had jurisdiction to award damages for a failure to rebuild after the fire, even though the fire was caused by the soldiers while In the hospital for treatment. But the implied obligation as to the manner of the use is as much obligatory upon the United States as it would be if'it had been expressed. If there is a failure to comply with the agreement in this particular, it is a breach of the contract, for which the United States consent to be sued in the Court of Claims. All depends upon the contract. Without that, the jurisdiction does not include actions for damages by the army; with it, damages contracted against may be recovered as for a breach of the contract.”
“It appears in the finding that, during the occupancy under the lease, ornamental trees were destroyed, fences and walls torn down, and the materials used for sidewalks and the erection of other buildings, or carried away; and that stone was quarried and gravel dug from a stone-quarry and gravel-pit on the premises, and taken away. This was voluntary waste, and within the prohibition of the implied agreement in the lease. For this the Court of Claims can award compensation in this action.”

The action of the claimant being an action of contract and not in tort, the rule contended for by the respondent does not apply.

No question is raised as to the authority of the military officers to enter into the contract with the claimant for the occupancy of the premises owned by it. The contract being within the authority of the officers making the same, the State is bound thereby and cannot escape the obligations legally resulting therefrom.

Under the allegations of the amended complaint, the evidence in the record, and the law as. above set forth, claimant is entitled to an award for the amount expended by it as hereinbefore set forth.

Award is therefore entered in favor of the claimant for the sum of One Thousand Fourteen Dollars and Thirty-seven Cents ($1,014.37.)


author: Mr. Chief Justice Hollerioh

text:
    (No. 2225
    Julius Menestrina, Leo Menestrina and Leona Menestrina, Children of Theodore J. Menestrina, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 3, 1937.

    Wheeler, Oehmke & Dunham and Wilmer L. Vogt, for claimants.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

For more than five years prior to the 3d day of June, A. D. 1932, Dr. Theodore J. Menestrina was employed by the respondent in the Department of Agriculture, Division of Animal Industry, as a veterinarian, in making tuberculin tests of cattle at the St. Louis National Stock Yards, National City, Illinois. On the last mentioned date Dr. Menestrina, in the course of his duties, was attempting to make a tuberculin test of a bull at one of the pens in said stockyards, when the animal turned on him. In attempting to escape, the doctor climbed the fence on the south side of the pen. He had one leg over the cap board when the vertical board under the cap board gave way, and he fell into the adjoining pen, landing on his feet.

The next day he developed a cough which gradually became worse; thereafter he complained of a pain in his left side, and was troubled with a shortness of breath. His condition gradually became worse, although he continued to perform the duties of his employment until November 9th, 1932. Shortly thereafter he went to the Veterans’ Hospital at Jefferson Barracks, Missouri, where he remained about three months. His condition continued to grow worse and he died on April 9th, 1933.

Julius Menestrina was appointed Administrator of the estate of said decedent and commenced an action in the City Court of East St. Louis against the National Stock Yards Co. The jury rendered a verdict in favor of the plaintiff for $2,000.00, on which judgment was entered. Such judgment was reversed by the Appellate Court on the ground that the evidence did not disclose any negligence on the part of the defendant.

Said Administrator filed his complaint in this court on August 8th, 1933, and subsequently filed an amendment thereto, whereby Julius Menestrina, Leo Menestrina and Leona Menestrina, children of said decedent, were substituted for said Administrator as parties plaintiff.

The Attorney General contends:

1. That Dr. Menestrina was not engaged in an employment which comes within the provisions of the Workmen’s Compensation Act; that the employment in which he was engaged comes within the proviso of Paragraph 8 of Section 3 of the Workmen’s Compensation Act, which provides as follows:

“Provided, nothing contained herein shall be construued to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising or to those who rent, demise or lease land for any such purposes, or to any one in their employ or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered.”

2. That claim for compensation was not made within the time required by Section 24 of the Workmen’s Compensation Act.

3. That the death of Dr. Menestrina did not result from, nor was it accelerated by the injury.

We will consider such contentions in the order mentioned.

I.

It has been stipulated that Dr. Menestrina in the performance of his duties as a State veterinarian “was engaged in using scalpels, trochors, knives, scissors, hypodermic needles, razors, clippers, and other sharp-edged cutting tools, implements and surgical implements commonly used by a veterinarian. ’ ’

It has also been stipulated that the National Stock Yards is located entirely within the city limits of National City; that under the statutes of this State the National Stock Yards is a public stockyards and cattle received in such yards are considered in quarantine.

Under such stipulation and the other facts in the record, it therefore appears that claimant was under the Workmen’s Compensation Act unless he came within the proviso of Paragraph 8 of Section 3 above quoted.

The evidence in the record shows that said Stock Yards Company is not engaged in farming or stock raising, but furnishes a place for receiving and disposing of livestock; and the work in which the decedent was engaged at the time of the accident in question, was not being done on a farm or country place. Although stock raisers may require their cattle to be tested by a veterinarian, yet the testing of cattle at a public stockyards, under the circumstances in evidence in this case, cannot be considered a part of the work of farming or stock raising.

II.

It is admitted that the respondent had notice of the accident in question within the time required by Section 24 of the Workmen’s Compensation Act; also that Dr. Menestrina was paid his full salary from the date of the accident to the date of his death, to wit, April 9th, 1933. The complaint was filed herein on August 8th, 1933, and under the decision of our Supreme Court in the case of United Air Lines vs. Ind. Com., 364 Ill. 346 (which decision was rendered subsequent to the filing of the brief of the Attorney General herein) the contention here made by the Attorney for the respondent is without merit.

HI.

The question as to whether the death of Dr. Menestrina resulted from the accident in question, presents the most serious question in the ease. From the evidence in the record it appears that Dr. Menestrina returned to his headquarters immediately after the accident. His superior officer saw him about noon of the same day, and testified that Dr. Menestrina came into the office stooped over and holding the side of his chest with his right hand. That evening Mrs. Menestrina rubbed the left side of his chest with linament and such treatments were continued every other day for a long time. He developed a cough on the day after the accident, which became progressively worse, and which continued to the day of his death. He consulted Dr. R. E. Little of East St. Lords on June 22d, at which time he was coughing and complained of a pain in his left chest. The cough grew progressively worse and he complained of a shortness of breath. On October 25th, 1932 he again consulted Dr. Little who strapped the patient’s chest with adhesive tape to prevent deep breathing and relieve him of the pain of which he complained on breathing or coughing.

He continued to perform his work at the stockyards until November 9th, 1932. On November 11th, 1932 he went to the Veterans Hospital at Jefferson Barracks, Missouri and remained there until February 4th, 1933. He then returned home on account of the sickness of his wife, who died shortly thereafter. He was examined by Dr. H. H. Hurd of East St. Louis on the 4th day of February, 1933. He then complained of shortness of breath and discomfort in his left chest, and remained under the care of Dr. Hurd until the time of his death on April 9th, 1933.

At the time of his first examination, Dr. Hurd found the left chest entirely filled with fluid, which indicated to him an inflammatory process of the lungs. The fluid was removed from the patient’s chest on February 5th, 1933 and on three subsequent occasions between that date and the time of his death on April 9th, 1933.

Prior to the time of this accident Dr. Menestrina appeared to be active and healthy, had a dark ruddy complexion, and never remained home on account of sickness or disability during the five year period he was stationed at such stockyards.-

After Dr. Menestrina’s death, Dr. Hurd performed an autopsy, in the course of which he opened the abdominal cavity and examined all of the organs. He discovered a malignant growth involving the entire left lung; the chest was filled with fluid; there was a growth on the second rib in front on the left side, and one on the third rib in back on the left side; there was a metastaces covering the heart, stomach, spleen, both kidneys and the liver. In the opinion of Dr. Hurd there had been a previous fracture of two ribs which had not healed, although he could not state the date of such fracture.

Dr. Hurd injected some of the fluid which he removed from Dr. Menestrina’s chest into the abdomen of a guinea pig, and the pig died in seventeen or eighteen days. The doctor opened the pig and found a malignant growth all over its abdomen.

Dr. Hurd concluded that the malignant growths which he found in the chest of Dr. Menestrina were cancer, and he testified that they could possibly have resulted from the injury, or the injury could have aggravated the growths if they were present prior to the injury.

Two experts testified on behalf of respondent. Neither of them treated Dr. Menestrina or were present at the autopsy. In answer to hypothetical questions, both doctors testified in effect that the accident in question could have had no bearing upon the death of the hypothetical person from cancer of the stomach.

From a careful consideration of all of the evidence in the record, and the inference which may reasonably be drawn therefrom, we are of the opinion that the death of Dr. Menestrina resulted from the accident in question.

It is admitted that respondent had notice of the accident within a short time thereafter, and that Dr. Menestrina was paid his full salary of $200.00 per month to March 1st, 1933, and $180.00 per month thereafter until the time of his death. The sum of $955.00 was paid to the doctor for his salary from the time he quit work on November 9th, 1932 until the time of his death on April 9th, 1933, and it has been stipulated and agreed that if an award is entered herein, said sum of $955.00 shall be deducted from the amount of such award.

Said decedent left him surviving Julius Menestrina, Leona Menestrina and Leo Menestrina, his children, who resided with him at the time of his death. It appears from the record that at the time of the injury to their father, said Julius Menestrina and Leona Menestrina were adults, and the said Leo Menestrina was a minor, aged 18 years. Consequently, Leo Menestrina was the only child whom the decedent was under legal obligation to support at the time of his injury.

From a consideration of the record before us, we therefore find as follows:

1. That Theodore J. Menestrina and the respondent, were, on June 3d, 1932, operating under the provisions of the Workmen’s Compensation Act.

2. L That on said date said Theodore J. Menestrina sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the 9th day of April, 1933.

3. That notice of the accident was given to respondent and claim for compensation made within the time required by the provisions of such Act.

4. That the earnings of the said Theodore J. Menestrina for the year preceding his death were Twenty-three Hundred Seventy-four Dollars ($2,374.00.)

5. That said Theodore J. Menestrina left him surviving his minor son, Leo Menestrina, whom he was under legal obligation to support, and who was then more than sixteen (16) years of age.

6. That the claimant, Leo Menestrina,- is therefore entitled to have and recover from the respondent the sum of $4,000.00, less the sum of $955.00 which is to be deducted therefrom in accordance with the stipulation of the parties hereto as hereinbefore set forth.

7. That said award is payable in weekly installments of Fifteen Dollars ($15.00) per week; and that the entire amount of said award has accrued at this time.

Award is therefore entered in favor of the claimant, Leo Menestrina, for the sum of Three Thousand Forty-Five Dollars ($3,045.00.)

This award being for the death of a State employee, is subject to the provisions of an Act entitled “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2d, 1935 (Session Laws of 1935, p. 49.)

In accordance with the provisions of such Act, this award is subject to the approval of the Governor, and upon such approval, is payable from the appropriation from the General Revenue Fund in the manner provided in such Act.