text:
    (No. 3696
    Roy Fowler, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    G. W. Horsley, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed on March 13, 1942, alleging that claimant was an employee of the State of Illinois; that while so employed, on June 11, 1941, he was injured; that the injury took place at Wood River, Madison County, Illinois, while claimant was inspecting certain rock and asphalt which was in a presser heater motor driven mixer, and by putting his hand in said mixer it became caught and was crushed; that claimant was a Highway Maintenance Patrolman and that his salary was One Hundred Twenty-five Dollars ($125.00) per month. That as a result of the injury the forefinger of his right hand was mangled and crushed, necessitating the amputation of same, leaving scars and disfiguring marks on his hand and injuring and permanently disabling the muscles in said right hand.

Claimant claims compensation of ten weeks at $16.50 per week for temporary total disability; forty weeks at $16.50 for loss of index finger, and $1,000.00 for permanent disfigurement to his right hand.

Claimant, at the time of said injury, was forty-five years of age, and had no children under the age of sixteen years; that no third person or corporation has any interest in this claim.

As respondent had notice of the accident on the date it occurred and the claim was filed within one year after the date of the accident, the jurisdictional requirements as set forth in Section 24 of the Workmen’s Compensation Act have been complied with by the claimant and claimant is entitled to the benefits of the Workmen’s Compensation Act.

It would appear that even though claimant may have been negligent in inserting his hand into the mixer drum while the mixer was in operation, yet, since negligence is not a defense to a Workmen’s Compensation, claim, this would not prevent the claimant from receiving an award if the other necessary elements are present. It would also appear from the place, manner and conditions under which the accident occurred, that it arose during the course of and out of the employment.

It also appears from the complaint and from the Report of the Division of Highways that all medical and surgical services have been furnished, so that question does not arise in this claim.

In order to receive the maximum compensation rate of $15.00 per week, it is necessary that an employee’s wages or salary total $1,560.00 per year. The report of the Division of Highways, which constitutes the record, shows that the claimant during slightly less than two months immediately prior to the date of the injury was employed by the Division of Highways at the rate of $125.00 per month, or a total of $250.00, and that the claimant’s predecessor in the same position for a period of slightly more than ten months was paid at the rate of $135.00 or $1,350.00 for said period.

This makes a total of $1,620.00 annual earnings for the year prior to the injury, or more than the $1,560.00 necessary for the maximum compensation rate of $15.00 per week, which under the Workmen’s Compensation Act, Section 8(1), is increased to $16.50 per week since the injury took place subsequent to June 16,1939.

Claimant’s temporary total disability continued June 12 through June 30, or a period of 19 days, during which time he was paid the sum of $79.17. Under Section 8(b) he was. entitled to receive compensation for temporary total disability at the rate of $16.50 per week for a period of 19 days less 7, that is, 12 days or 1 5/7 weeks. 1 5/7 weeks at $16.50 per week amounts to $28.30. Claimant, therefore, received for temporary total disability an overpayment of $50.87.

The compensation for specific loss would be on the basis of $16.50 per week for forty weeks or $660.00, from which is subtracted the sum of $50.87 overpayment on temporary total disability, leaving a balance of $609.13.

Award is therefore entered in favor of claimant for the sum of $609.13, all of which has accrued and is payable forthwith.

This award being 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 June 30, 1941, and being by the terms of such an Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Fisher, J.

license: Public Domain

text:
    (No. 3661
    Muriel Heath, a Minor, by George Heath, Her Father and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Graham & Graham and Forth & Forth, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed on November 12, 1941, by Muriel Heath, a minor of the age of fourteen years, by George Heath, her father and next friend, alleging among other things that claimant, a minor of the age of fourteen years, was deaf, and with other deaf children was an inmate of the Hlinois School for the Deaf which was owned and controlled by respondent; that on April 26, 1941, while claimant was playing upon the grounds surrounding said buildings a fire escape fell and struck the claimant and caused her to be injured;, that the said injury resulted from the negligence of the respondent in not keeping the said fire escape in a reasonably safe condition.

Claimant seeks damages in the sum, of Five Thousand Dollars ($5,000.00).

Bespondent has filed a motion to dismiss the complaint on the grounds.—

1. That the claimant’s complaint does not set forth a claim which the State of Illinois as a sovereign commonwealth should discharge and pay for the reason that therein claimant seeks an award for alleged injuries sustained by her while she was a student at “The Illinois School for the Deaf” in the city of Jacksonville, Illinois, and a ward of the State of Illinois in said school, occasioned by the alleged negligence of the respondent.

2. That an award cannot be made by the Court of Claims solely on the basis of equity and good conscience, where there is no legal basis for such an award.

3. That the complaint does not comply with Buies 5(a); 5(b) and 6(a) of the Court of Claims.

The complaint in this case does not comply with Buies 5(a), 5(b) and 6(a) of the Court of Claims, but since the complaint could be amended to conform with the rules it is immaterial that they be considered, inasmuch as the court is of the opinion that no award could be made in this claim on its merits.

This court has repeatedly held that the State, in the exercise of its governmental functions, is not liable for injuries resulting from the negligence of its servants, agents or em- . ployees. This court has also held that the doctrine of respondent superior does not apply; also that an award cannot be made solely on the basis of equity and good conscience in the absence of a legal or equitable basis on which an award could be made.

Bespondent’s motion to dismiss is sustained, and the claim is hereby dismissed.


author: Eckert, J.

text:
    (No. 3706
    Russell Johnson, Assignee of the Bud’s Shoe Store, Inc., of Gibson City, Illinois, Formerly a Corporation, Organized and Doing Business Under the Laws of the State of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Lindley, Pacey & Pacey, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

Bud’s Shoe Store, Inc., was incorporated under the laws of the State of Illinois on February 4, 1939. Under date of May 13, 1940, the Secretary of State of the State of Illinois, sent a notice to the corporation, which stated in part as follows: “Under the provisions of ‘The Business Corporation Act’ of this State, the above entitled corporation owes the State of Illinois a franchise tax of . . . $10.00. ’ ’ Payment of this franchise tax was thereafter made by the corporation and received by the Secretary of State on May 23, 1940. On June 24, 1940, the corporation filed in the office of the Secretary of State a declaration of intention to dissolve the corporation, and on the 29th of June of the same year the corporation was dissolved and a certificate of ■ dissolution issued by the Secretary of State.

Claimant, who was one of the stockholders of the corporation, advanced the money to pay this franchise tax, and has obtained an assignment of the claim from all of the stockholders of the corporation. Claimant alleges that the statement from the Secretary of State was received, and payment of the franchise tax was made, at a time when the stockholders of the corporation were contemplating its dissolution; that when claimant paid the franchise tax, he believed the statement from the Secretary of State was for a franchise tax owing by the corporation for the year beginning July 1, 1939, and ending June 30, 1940, whereas the statement was for a franchise tax for the year beginning July 1, 1940, and ending June 30, 1941; and that claimant did not learn of his error until his attorney received a letter from the Secretary of State of date June 24, 1940, which stated that the franchise tax for the corporation was paid to July 1, 1941. Claimant contends that he paid this tax under a mistake of fact, and that a refund should therefore be made to him.

Respondent has filed its motion to dismiss the claim on the ground that claimant asks a refund for a franchise tax not paid under protest, without objection thereto, and without a request for hearing in accordance with the statute, and that there is no provision in the law for such refund.

The rule is well established in this State that where an illegal or excessive tax is paid voluntarily, with full knowledge of all the facts, the same cannot be recovered in the absence of a statute authorizing such recovery. Alton Light & Traction Company vs. Rose, 117 Ill. App. 83; Yates vs. Royal Insurance Company, 200 Ill. 202; Cooper Kanaley and Company vs. Gill, 363 Ill. 418; American Can Company vs. Gill, 364 Ill. 254. The rule is the same where such tax is paid under a mistake of law, but where it is paid under a mistake of fact, it is not considered as having been voluntarily paid, and may therefore be recovered.

Although the rule is firmly established by the decisions, the application of the rule to the facts in a particular case has caused the courts considerable embarrassment and difficulty, and the decisions are in many instances conflicting. Payment of franchise tax which is illegal' or is in excess of amount due has been held to be payment under a mistake of fact and not voluntarily paid: Commercial National Bank and Trust Compmiy vs. State, 7 C. C. R. 122; Fowler Mfg. Co. Ltd. vs. State, 8 C. C. R. 160; Automatic Recording Safe Company vs. State, 8 C. C. R. 366; Bartonville Bus Line vs. State, 10 C. C. R. 703; and has been held to be payment not under a mistake of fact and voluntarily paid; Chicago Foundation Company vs. State, 8 C. C. R. 22; Mohawk Carpet Mills Inc. vs. State, 8 C. C. R. 37; Arundel Corporation vs. State, 8 C. C. R. 506; Western Dairy Company vs. State, 9 C. C. R. 498; Butler Company vs. State, 9 C. C. R. 503; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Handy Button Machine Company vs. State, 10 C. C. R. 22; Orchard Theater Corporation vs. State, 11 C. C. R. 271. Likewise payment of motor license fees in excess of amount due has been held to be payment under a mistake of fact and not voluntarily paid: Read vs. State, 8 C. C. R. 200; Foley vs. State, 9 C. C. R. 104; Miller vs. State, 9 C. C. R. 139; Parrish vs. State, 9 C. C. R. 140; Hart vs. State, 9 C. C. R. 202; Peterson vs. State, 9 C. C. R. 208; Conder vs. State, 9 C. C. R. 278; and has been held to be payment not under a mistake of fact and voluntarily paid: Modern Laundry Company vs. State, 8 C. C. R. 36; Emerich vs. State, 9 C. C. R. 510. Other license fees and taxes have been held to have been paid under a mistake of fact and not voluntarily paid, and refunds made: Moorman Mfg. Co. vs. State, 8 C. C. R. 106; Scudder-Gale Grocery Co. vs. State, 8 C. C. R. 719; Seibert vs. State, 9 C. C. R. 253.

In many of these eases it is impossible to determine how the court found payment to be voluntary or involuntary. It appears, however, that where a corporation paid an excessive franchise tax as a result of its own mistake or error, the tax is considered to have been voluntarily paid, and such payment, resulting from the negligence or inadvertance of the taxpayer, is not made under a mistake of fact, Western Dairy Company vs. State, supra; and that where the statutes provide a remedy for a taxpayer of which he fails to avail himself, any payment made is considered voluntary. Butler Company vs. State, supra. Although in some cases, consideration is given to whether error was made by the State or by the claimant, in the Butler case it was pointed out, that, although an erroneous assessment was made by the State without fault of the claimant, the facts relative thereto were as well known to the claimant as to the Secretary of State, and that both were chargeable with knowledge of the law.

In order to determine whether the tax paid in this ease was paid under a mistake of fact or of law, it is necessary to consider the Business Corporation Act of this State, under which the corporation was created and governed. Sections 95, 96, 115 and 116 of that Act require every domestic and every foreign corporation authorized to do business in this State to file an annual report with the Secretary of State between the 15th day of January and the last day of February of each year. Section 143 of said Act provides in part as follows:

"Between the first day of March and the fifteenth day of June of each year the Secretary of State shall assess against each corporation, domestic or foreign, required to file an annual report in such year, the franchise tax payable by it for the 12 months’ period commencing on the first day of July of such year in accordance with the foregoing provisions, and if it has failed to file its annual report within the time prescribed by this Act, the penalty imposed by this Act upon such corporation for its failure so to <fo; and shall mail a written notice to each corporation against which such tax is assessed, addressed to such corporation at its registered office in this State, notifying the corporation (1) of the amount of franchise tax assessed against it for the year next ensuing and the amount of penalty, if any, assessed against it for failure to file its annual report; (2) that objections, if any, to such assessment will be heard by the officer making the assessment, on or before the 25th day of June of such year, upon receipt of a request from the corporation; and (3) that such tax and penalty shall be payable to the Secretary of State on the first day of July next succeeding the date of the notice. Failure to receive such notice shall not relieve the corporation of its obligation to pay the tax and any penalty assessed, or invalidate the assessment thereof.
“The Secretary of State shall have power to hear and determine objections to any assessment of franchise tax at any time after such assessment and, after hearing, to change or modify any such assessment. ... .
“All annual franchise taxes and all penalties for failure to file annual reports shall be due and payable on the first day of July of each year. ...”

This section also provides that in the event the annual franchise tax is not paid to the Secretary of State on or before July 31st of the year in which such tax is due and payable, collection thereof shall be enforced in accordance with the provisions of the Act.

The notice which Bud’s Shoe Store Inc. received from the Secretary of State under date of May 13, 1940, was given to the corporation by the Secretary of State in compliance with this statute. Neither the corporation nor the claimant filed any objection with the Secretary of State, nor made any inquiry in regard to the tax assessed, nor made any request for hearing as provided by the statute. Claimant, however, now contends that his failure and the failure of the Corporation in this regard was the result of an error of fact, in that he believed the tax assessed was for the prior year. Claimant and the corporation, however, must both be held to a full knowledge of the statute which provided a complete remedy for the claimant; both are chargeable with knowledge of the law relative to the assessment of this tax, to the duty of the Secretary of State to give the statutory notice, and to the requirement for payment of franchise taxes in advance. Claimant’s failure to acquaint himself with the law, and consequently to avail himself of its remedies, can not now be urged as an error of fact. Claimant’s mistake was one of law, and his payment must be held to have been voluntarily made.

Claimant further strongly contends, however, that in the absence of a legal or equitable ground for a refund of this tax, an award should be made on the general ground of equity and good conscience. Claimant contends that because the Constitution of the State of Illinois, adopted in 1870, made no provision for payment of claims against the State, and the Legislature itself considered such claims until 1877, when a Commission of Claims was established for that purpose, succeeded in 1903 by the Court of Claims, the intent of the Legislature in creating the court was to authorize payment of all claims thought to be just and equitable, without regard to the State’s legal liability. This is a contention with which the court has long been familiar.

In its earlier decisions, as has been frequently pointed out, the court made awards only to claimant’s having a legal or equitable claim against the State, and repudiated similar contentions that it was created to make awards regardless of legal liability. Schmidt vs. State, 1 C. C. R. 76; Henke vs. State, 2 C. C. R. 11; Jorgenson vs. State, 2 C. C. R. 134; Morrisey vs. State, 2 C. C. R. 254; Looney vs. State, 3 C. C. R. 18; Gillett vs. State, 3 C. C. R. 95. The court many times heard the contention that the Legislature itself could make awards without regard to a legal or equitable cause of action, and intended the court to do likewise, but held that such was not the legislative intent. Frequently in the earlier cases, claims were denied without prejudice to claimants to seek an award directly from the Legislatures. Looney vs. State, supra; Gillett vs. State, supra. The court also held that it had no jurisdiction to fix, allow or disallow expenses incurred in election contests of members of the Legislature, such right being vested only in the Legislature. Weber vs. State, 4 C. C. R. 33; Hay vs. State, 6 C. C. R. 433.

The decisions remained uniform in this regard until 1920, when á claim was allowed on the basis of equity and justice without regard to the legal liability of the State. Good vs. State, 4 C. C. R. 90. Thereafter, many awards were made on general principles of equity and good conscience; others were denied. It is difficult to determine what guided the court in separating those cases which came within the principle from those which did not.

The inconsistency of the decisions eventually became apparent to the court, and it endeavored to define justice and equity. Perry vs. State, 6 C. C. R. 81. This, however, proved unsatisfactory, and in 1932, in Lindsay vs. State, 7 C. C. R. 103, the court denied an award on the ground of equity and" good conscience because no gross carelessness or wanton negligence was shown on the part of the respondent. Shortly thereafter, in Pachesa, et al. vs. State, 7 C. C. R. 123, an award was made on the ground of equity and good conscience, gross negligence.being shown on the part of the respondent and no contributary negligence on part of the claimant. From its attempts to limit the broad field of equity and good conscience in the Perry case, the court reached the limitations of the Pachesa case; these were followed in Miller vs. State, 7 C. C. R. 129; Cavender vs. State, 7 C. C. R. 199; Sprague Dairy vs. State, 7 C. C. R. 227; Connole, et al. vs. State, 7 C. C. R. 232.

In 1933, however, in an exhaustive opinion, (Crabtree vs. State, 7 C. C. R. 207) the court held, that regardless of the power of the Legislature to pay claims on its own initiative, this court can exercise only such authority and power as has been delegated to it by the Act creating it, and that its jurisdiction is limited to cases in which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. This decision has since been uniformly followed.

That it is in accord with the legislative intent is demonstrated by the fact that that body from time to time has extended the jurisdiction of the court and the liability of the State, giving the court jurisdiction of claims of State employees under the Workmen’s Compensation Act, of claims of officers and enlisted men under the Military-Naval Code, and making provisions for refunds of various license fees erroneously paid. If the court’s jurisdiction were unlimited, such legislation would be unnecessary. The Legislature apparently does not regard the court merely as a court of conscience, but. rather as a court established to determine legal and equitable causes of action against the State.

Although it is highly desirable that courts remain flexible, and that the doctrine of stare decisis be not blindly followed, it is also of importance that there be a consistent body of precedent. The purpose of a court in every case is to determine the facts, to determine the law, and to apply the law to the facts. The law must not remain static, but neither must determinations of the law vary from day to day, or from term to term. Under the doctrine of equity and good conscience, followed by this court for a period of years, awards to all intents and purposes were based on the eloquence of counsel, on the influence of claimant, or on the sympathies of the court rather than on sound judicial precedent. This was undesirable from the point of view of the State, from the point of view of the claimants, from the point of view of counsel, and from point of view of the court. It was exactly the situation which the Legislature itself wished to remedy when it established the Court of Claims. It is to the benefit of all concerned that this court follow sound precedents in its decisions, which in turn may be guides for prospective claimants and their counsel.

The Legislature has so far determined that the greatest good to the. greatest number of citizens of this State is best served by limiting the jurisdiction of this court to claims founded upon a legal or equitable cause of action against the State. If the Legislature has erred in this respect, arguments of equity and good conscience should be directed to it, rather than to this court.

The motion of the respondent to dismiss must therefore be granted, and claim dismissed.


text:
    (No. 3715
    Ralph Knippen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    James J. McCauley, for claimant.

      George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint was filed herein on May 12, 1942, alleging in substance, as follows:

That on September 24, 1941, claimant, while operating a motor vehicle on what is known as IT. S. Route 14, in the County of McHenry, State of Illinois, at a point between the city of Harvard and the city of Woodstock in said County, struck an open hole in said highway, causing damage to said-vehicle.

.That the said open portion of said highway was caused by employees of the State of Illinois removing a large portion of cement from the said highway for the purpose, of placing a new cement slab. That the opening was approxi- • mately 9 feet in width, 14 feet in length and 2 feet deep, and was left entirely unguarded.

A motion was filed on May 27,1942 on behalf of respondent to dismiss the foregoing claim on the grounds that the complaint does not state a claim which the State of Illinois, as a sovereign commonwealth, should in equity and good conscience discharge and pay in that therein claimant seeks an award predicated upon the alleged negligence of the State, its officers, agents or employees.

This court has repeatedly held that the State, in the exercise of its governmental functions, is not liable for injuries resulting from the negligence of its servants, agents or employees.

“This court has also held that the doctrine of respondeat superior does not apply; also that an award cannot be made solely on the basis of equity and good conscience in the absence of a legal or equitable basis on which an award could be made.

Among the many cases so holding are

Wentworth vs. State, 9 C. C. R. 240.
Johnson vs. State, C. C. R. 474.
Allison vs. State, 11 C. C. R. 420.
Crabtree vs. State, 7 C. C. R. 207.

Respondent’s motion to dismiss is therefore sustained, and the claim is hereby dismissed.


author: Chief Justice Damron

text:
    (No. 3582
    John Lockett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Samuel S. Miller, and Robert L. Brody, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On June 20th, 1940, and for some time prior thereto claimant was employed by the respondent in the Division of Highways as a laborer working on repairs, maintenance and construction of highways in the State of Illinois. On the last mentioned date, while in the discharge of his duties, he slipped and fell and sustained a comminuted compound fracture of the middle metacarpal bone of the right hand. He was given first aid by a fellow employee, and sent to his home at 3849 South Michigan Avenue, Chicago. Claimant then called Dr. Samuel W. Chavis of 3439 South Michigan Avenue in Chicago, who cleaned the wound, and put on a palmer cast. Dr. Chavis treated the claimant’s hand from the date of the injury until the 6th day of August, 1940.

On August 8th, 1940, on orders of the respondent the claimant was placed under the care of Dr. H. B. Thomas, Professor of Orthopedics, at the University of Illinois Medical College, for examination, and further treatment. On October 22nd, Dr. Thomas discharged the claimant from treatment, and reported to the Division as follows:

“Examination on August 8th, showed a swollen dorsum of right hand. Could not make a fist, fingers flex about fifty (50%) per cent. X-rays showed a fracture of index and middle metacarpals with angulation of distal fragment of third (3rd) forward. Complete callus. This fracture was never set. We got the patient seven weeks after the injury. The over-riding fragments make an ugly deformitory over the back of the hand. This will reduce some, but there will always be a deformity. Today patient can touch palms with tips of fingers, swelling gone and 3rd head is retracted about % inch as compared with 2nd and 4th. Discharged to go on full duty. Prognosis— good.”

Evidence was taken in this case in Chicago on April 4th, 1941, at which time Dr. Samuel W. Chavis testified that in his opinion the degree of functional loss of use of claimant’s right hand was fifty (50%) per cent. At a further hearing of this cause on the. 5th day of May, 1941 in Chicago, Dr. S. I. Winer testified as an expert, expressing an opinion that the condition as of January 18,1941, when'he examined claimant, was permanent, and that he had suffered a total loss of use of the hand for industrial purposes. Dr. Winer had not treated the claimant and apparently had not seen him prior to the last mentioned date.

This claimant was not cooperative with his physician. On August 16, Dr. Thomas advised claimant that to improve his hand condition he should exercise with what was called the ball exercise. On August 29th, Dr. Thomas advised the claimant to try light work, and to take physiotherapy treatments two or three times a week. On October 4th, Dr. Thomas reported:

“John Lockett returned October 3rd. His hand was examined. All the fingers closed well except the right middle finger, but it has improved considerably since he first began treatment. Passively it can be closed. ' He is planning to return to "work Monday (October 7) but will continue treatment.”

Claimant neither reported for light duty when advised to do so or full duty when discharged by his physician.

Upon consideration of the facts of the record we find as follows: That on the 20th day of June 1940, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of such act; that the earnings of the claimant or his predecessor, during the year preceding the accident was $800.00 per annum, figuring on a two hundred day year, and that his average weekly wage was $15.38, making his compensation rate $8.46, which includes the increase as provided in Paragraph (L) of Section (8) of the Act. That the claimant at the time of the injury was forty-five (45) years of age, married, and had no children under the age of sixteen (16) years; that all necessary first aid, medical, and surgical services were provided by the respondent; that claimant was temporarily totally disabled from the date of his injury as aforesaid, until October 7, 1940, to-wit for a period of fifteen and four sevenths weeks (15 4/7); that he also suffered the permanent loss of fifty (50%) per cent of the use of his right hand.

We further find that claimant is entitled to have and receive from the respondent the sum of $8.46 per week for fifteen and four sevenths (15 4/7) weeks for temporary total disability, in accordance with the provision of Paragraph (b) Section (8) of the Workmen’s Compensation Act, and the further sum of $8.46 per week for a period of eighty-five (85) weeks for the permanent loss of fifty (50%) per cent of the use of the right hand in accordance with the provisions of Paragraph (e-12) of Section (8) of such Act.

We further find that the claimant has been paid the sum of $89.64 for non-productive time which must be considered as payment of compensation and deducted from the amount which he is entitled to have and receive as above set forth.

We further find that all the compensation due to claimant, as aforesaid has accrued at this time.

An award is therefore entered in favor of claimant John Lockett, for the sum of Seven Hundred Sixty-One Dollars and Sixteen Cents ($761.16).

This award being 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 June 30, 1941, and being by the terms of such an Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3710
    Joseph Mandel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Bednarski & Haas, for claimant.
    George F. Barrett, Attorney General ; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This is an action brought in behalf of Joseph Handel, by Bernard Garner, his next friend under a claim, filed April 27, 1942 alleging damages in the sum of Fifteen Thousand ($15,000.00) Dollars, for injuries received by the said Joseph Handel.

The complaint states that the said Joseph Handel was, and had been since August 23, 1940, an inmate of the Kankakee State Hospital for the Insane under a commitment of the County Court of Cook County, Illinois. That on July 2, 1941, while he was working in the bakery shop of said Kankakee State Hospital, his right hand was caught by one of the bakery machines fracturing the bones of said hand, and that he sustained injuries to other parts of his body. He further says said injuries were sustained by him through the negligence of the said Kankakee State Hospital through its officers or agents, and that he is now permanently crippled; that he has lost the use of his right hand, and that as the result of said injury he has lost the partial use of his wrist and sustained shock.

The respondent filed a motion to dismiss the complaint and for grounds therefor says:

1. Claimant’s complaint does not state a claim which the State of Illinois, as a sovereign commonwealth, should in equity and good conscience discharge and pay in that claimant’s claim is predicated on the alleged liability of respondent while engaged in a governmental function, because of negligent and wrongful acts of its officers, agents or employees.

2. That an award cannot be made by the Court of Claims solely on the basis of equity and good conscience, when there is no legal basis for such an award.

3. That the complaint does not comply with rules 5(b) and 6(a) of the Court of Claims.

The court finds upon examination of the complaint that the position of the Attorney General is correct in that it does not comply with rules 5(b) and 6(a) of the Court of Claims Act, but since the complaint could be amended in these respects to conform with the rules, and since, as hereinafter pointed out, no award could be made on this claim on the merits, such omissions are immaterial and are merely incidental to the ultimate outcome. Further, the general charge of negligence is an assumption on the part of the claimant, not supported by specific averments against an officer or agent of the State.

The Kankakee State Hospital is one of the State charitable institutions, and in maintaining it the State is exercising a part of its governmental functions. In the conduct of its charitable and penal institutions, neither the State or any of its agencies are liable for damages caused by the negligence of those in charge of or employed in such institutions. The institution is maintained solely for the benefit of the public, and there exists no legal liability upon the part of the State nor the institutions for the negligence of those officers or servants there employed.

Butler et al. vs. State, 8 C. C. R., 102.

In Shilkitis vs. State, 10, C. C. R., 96, the question of the liability of the State for damages to an injured inmate was thoroughly discussed by this court. On page 97 the court said:

“Claims against the State by those who have been committed to its charitable or penal institutions have arisen before. One claim was based upon, alleged ill health of the inmate, occasioned by the fact that the food in such institution was steam-cooked which he was not accustomed to and his stomach would not properly digest steam-cooked food. Another has complained of the unduly severe character of labor to which he was assigned.”
“In these and all other cases of similar character this court, as at present constituted, has felt compelled to deny any award. These matters were considered in the cases of Jones vs. State, 8 C. C. R. 78 and Butler vs. State, 8 C. C. R. 103. In the former case this statement appears, ‘Strictly public institutions created, owned and controlled by the State or its subdivisions such as State asylums, city hospitals, reformatories, etc., are not liable for the negligence of their agents.’ The doctrine of ‘Respondeat Superior’ does not apply.”

Before a claimant can have an award against the State, he must show that he comes within the provision of some law making the State liable to him for the amount claimed. If he cannot point to some law giving him a right to an award he cannot invoke the principle of equity to secure such an award.

We do not make the law and can only apply it as we find it, and if any change is to be made therein it must come through the Legislature and not through the courts.

Under the law we have no authority to allow an award and the motion of the Attorney General must therefore be sustained. Motion to dismiss allowed. Case dismissed.


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    (No. 3475
    T. W. Meiklejohn, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Claimant, pro se.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Eckert, J.

On January 15,1940, claimant applied to the Secretary of State of the State of Illinois for a vehicle license on a 1940 Ford Tudor Sedan with Wisconsin title and check for $11.00 attached. The car having been purchased in another state, an additional fee of $25.00 was required, and for that reason the application was rejected. Claimant subsequently paid the sum of $36.00 and received an Illinois license.

Claimant now asks for a refund of $25.00, alleging that the automobile in question was the property of T. W. Meiklejohn, a resident of Wisconsin. Respondent has filed a motion to dismiss on the ground that there is no law in Illinois providing for a refund of a motor vehicle registration fee paid voluntarily and without protest; that an award can not be made solely on the grounds of equity and good conscience; and that the complaint fails to comply with Rules 4(a), 5(a), 5(b), and 6(a) of this court.

This latter contention is correct. Claimant, however, may wish to amend the complaint in this regard and for that reason it is necessary to consider the remaining portion of respondent’s motion.

The claim is indefinite as to the basis upon which the refund is sought, but it is apparent that the fee in question was paid voluntarily, and that the facts as to the ownership of the automobile were within the knowledge of the claimant. It has been repeatedly held that where an illegal or excessive tax or license fee is paid voluntarily with full knowledge of all the facts, it can not be recovered even though it be paid under a mistake of law, unless a statute expressly authorizes such recovery. American Can Company vs. Gill, 364 Ill. 254; Railway Express Agency, Inc. vs. State, 10 C. C. R. 359; Butler Company vs. State, 9 C. C. R. 503. Claimant has shown no statutory authority in this State for such a refund.

Furthermore, awards can be made by this court only in those cases where claimant would be entitled to redress against the State either at law or in equity if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.

Respondent’s motion to dismiss is therefore granted, and the claimant given thirty days in which to amend its complaint; in the event claimant declines or fails so to amend, this order dismissing the claim shall become final.


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    (No. 3714
    Marvin Porges and Lawrence Sulak, a Minor by Sam Sulak, His Father and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Maurice A. Frank, for claimants.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

On May 7, 1942, Marvin Porges, and Lawrence Sulak, a minor, by his father and next friend, filed their claim in this court seeking an award of $600.00 and $400.00 respectively.

The claim is based on the following allegations contained in said complaint.

On the 16th day of October, A. D. 1940 while the plaintiffs were standing on the sidewalk in Chicago, Illinois, at the regular stopping place provided by the Chicago Motor Coach Company for pedestrians waiting to board north bound buses, both of the plaintiffs were struck violently by the open swinging back door of a careening and speeding automobile driven by one Hale O. Reilly, an inmate of the Illinois State Penitentiary, in Joliet, Illinois, who it is claimed was acting as the chauffeur, servant, and agent of Joseph E. Ragen, who at that time was the acting warden of said penitentiary. They further say that in the course of such agency the said Hale 0. Reilly negligently and carelessly failed to close the rear door of the aforesaid automobile, and that he negligently and carelessly careened and swung said automobile from the center of the boulevard to the curb; such negligence and carelessness being the direct and proximate cause of the striking of the plaintiffs herein, and of the resultant injuries which were sustained by each.

Plaintiff, Marvin Forges, alleges that he sustained the following injuries.

1. Shock.
2. Traumatic injury to cervical vertebrae especially at base of neck.
3. Wrenched right shoulder.
4. Traumatic injury left shoulder.
5. Torn ligaments and numerous abrasions on right knee.
6. Twisted right hip with injury to ligaments.
7. Numerous abrasions.

Plaintiff, Lawrence Sulak, claims to have sustained the following injuries:

1. Marked injury with swelling.
2. Discoloration and tenderness around the left elbow.
3. Arm was kept in a right angle sling for six (6) weeks and short wave diathermy treatments were applied.

Both of the plaintiffs say they were incapacitated and prevented from going about their regular and usual duties as the result of the injuries thus sustained, and incurred considerable expense in endeavoring to be cured. Each filed a bill of particulars showing the various items. That of Lawrence Sulak including doctors bills, medical, etc., and loss of time $400.00, and that of Marvin Porges, for doctor bills, medicines, etc., loss of time, and pain and suffering $850.00.

The Attorney General has filed a motion to dismiss the complaint for the reason that same is predicated on an alleged liability of respondent for the negligent and wrongful acts of its officers, agents, or employees.

This court has been frequently called upon to pass upon claims based upon such allegations.

In Kelly vs. State, 9 C. C. R. 339, the court in denying an award, said:

“The motion is based upon the ground that no legal liability can be laid at respondent’s door for the negligent and careless action of its employee. The general rule is well established that the doctrine of respondeat superior does not apply to the State in the exercise of its governmental functions.”
Minear vs. State Board of Agriculture, 259 Illinois, 549.
Hollinbeck vs. County of Winnebago, 95 Illinois, 148.

and further:

“In the absence of a statute making the State liable for damages caused by the negligence of its employees in the performance of their duties this court has no authority to legally make an award in the present case. We recognize the meritorious nature of the claim. Two people have been seriously injured through the negligence of the employee in question. By his action he has brought suffering and expense to the injured parties and has reflected discredit upon the good name of his employer, the State of Illinois. * * * _ Respondent’s motion to dismiss is granted and the claim is hereby dismissed.

The Court of Claims has jurisdiction to recommend an award only where the State would be liable in law and in equity in a court of general jurisdiction if it were suable.

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

There being no statute in force in this State under which the present claim could be allowed the motion of the Attorney General is granted and the claim is hereby dismissed.


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    (No. 3351
    Bridie Sullivan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Bows & Bows (John D. Casey, of counsel) for claimants.
    George F. Barrett, Attorney General; Milne & Walsh, Assistant Attorneys General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Claim was filed herein under the Workmen’s Compensation Act for temporary total incapacity, medical, surgical and hospital bills, specific partial loss of an eye. An award is sought in the sum of Nine Hundred Fifty-Six Dollars and Forty Cents ($956.40).

The facts are undisputed; proper notice was given, and the claim was filed within a year. It is alleged that on November 25, 1938, claimant was an employee of the Chicago State Hospital in Chicago, Illinois, and received an injury to her left eye by being struck with a sugar bowl thrown by an insane patient while in the course of her regular employment. That she was given immediate attention by Dr. John M. Krasa, eye, ear and nose consultant at said hospital who treated her for about three days, at which time she was removed to the St. Anne’s Hospital in Chicago, Illinois, and there was treated and operated upon by Dr. Jerome W. Hayden, who was called and employed by a relative of the claimant.

Evidence was taken in Chicago consisting of the testimony of the claimant, Bridie Sullivan, Mary Swanson her cousin, and Dr. Jeróme W. Hayden on behalf of the claimant, and Dr. John M. Krasa on behalf of the respondent.

Dr. Krasa testified that he was called to examine and treat claimant immediately after the injury. He found the claimant’s lids were swollen, and the lids had hemorrhaged; that there was a perforating injury about three-eights of an inch in length, beginning in the cornea, one-sixteenth of an inch above the limbus, and extending downward, and slightly nasal, involving the cornea, the pupil conjunctiva, the sclera, and the ciliary body, and that a small amount of vitreous had escaped. That atropine was instilled and he applied a pressure-bandage to keep the edges of the wound together. He was assisted by Dr. Edlin, staff physician of the Chicago State Hospital. That he was in attendance on her during Friday, Saturday, and Sunday, and in his opinion he was treating her properly.

Dr. Hayden testified claimant’s injury was a laceration about 7 or 8 millimeters long, starting at the upper part of the cornea and running downward and nasally through all the layers of the anterior portion, including the ciliary body and down almost to the junction of the lid with the ball; there was a prolapse or protrusion of the iris muscle, some of the ciliary body and some of the vitreous humor. After he took full charge of the case, he, to reheve the effects of the injury, performed what is called a “flap operation,” in which the torn tissues of the eye were sewed together to prevent infection and to prevent further loss of the vitreous humor, the liquid content of the eyeball.

A question has been raised as to whether the respondent should be required to pay the medical and surgical bills incurred by claimant after her removal to the St. Anne’s Hospital, and placed in charge of Dr. Hayden.

The evidence shows that before claimant’s removal Mrs. Swanson, and Dr. Jerome W. Hayden called at the hospital,where Dr. Hayden himself examined the claimant and decided her condition indicated a need for an immediate “flap operation,” but stated he was unable to perform such an operation at the State Hospital and advised her removal. Mrs. Swanson was present when Dr. Hayden and Dr. Krasa were discussing the operation, and later called Dr. Krasa and told him she wanted to take the claimant out of the hospital, and wanted his permission. She told him she was going to have Dr. Hayden take care of the claimant. Dr. Krasa testified that he replied: “That is all right, but there is one understanding you should have. Under the compensation laws, if you remove her from the care of the Chicago State Hospital, or if you change doctors, why, you are going to be liable for the bills. The State won’t take care of her out of there, and if you don’t wish to change doctors, and keep Dr. Hayden in the hospital, the State will still allow her treatment there as a patient.” And she said that was agreeable with her.

Mary Swanson called as a witness, after identifying herself as a cousin of the claimant, testified as follows: “Well I spoke to her brother and he said ‘I would rather see Dr. Hayden take care of her,’ and I said the same thing.” She further testified that Miss Sullivan asked her to try to get some help for her. She said Miss Sullivan kept asking: “Can’t you get somebody to give me something1?”

Dr. Krasa in qualifying as an expert witness stated that he had specialized in the treatment of the eye, ear, nose and throat for over eighteen years. He,testified he was a member of the staff of the eye, ear, nose and throat department of St. Anthony’s Hospital, and consultant of ophthomology of the Municipal Tuberculosis Sanitarium, consultant of the eye, ear, nose and throat hospital of the Chicago State Hospital, consultant of the eye, ear, nose and throat hospital of the House of Correction, consultant of the eye, ear, nose and throat hospital of the Cook County Jail, and had been for eighteen years a member of the staff of the Illinois Eye and Ear Infirmary. He testified he belonged to the Chicago Medical Society, Illinois State Society, American Medical Society, and Bohemian Medical Society. He was licensed to practice medicine in the State of Illinois in 1913.

The court is convinced that Dr. Kras a was a qualified surgeon and was competent to handle the ease of the claimant had he been permitted to do so. That she was taken from under his care by the action of the claimant and her agents.

In Old Ben Coal Corp. vs. Industrial Commission, 311 Ill. Supreme 35, in a somewhat similar case the court said:

“In other words, the employer is not given the right simply because the employee leaves the hospital to which the employer took him, to avoid liability of hospital and medical treatment without tendering other services of like character, unless the facts show that the employee by leaving the hospital, elected to secure a physician and hospital at his own expense.”

Section 8, Paragraph (A) of the Workmen’s Compensation Act, provides as follows:

“Employers shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited however to that which is reasonably required to cure or relief from the effects of the injury. The employee may elect to secure his own physician, surgeon and hospital services at his own expense.”
Chiara vs. State of Ill., 10 C. C. R. 387.
Nellie Gleason vs. State of Illinois, Opinion Number 3446.

Under the evidence in this case we are of the opinion that the respondent is not liable for the medical and hospital expense incurred by the claimant through Dr. Jerome W. Hayden, of the St. Anne’s Hospital.

The record shows that claimant had been employed at the institution for more than one year prior to November 25, 1938, and that at the time of her accident she was receiving wages in the amount of $63.00 per month with a further allowance for maintenance on the basis of $24.00 per month or a total of $1,044.00 per annum.

There is no conflict in the evidence as to the period of temporary disability.

From a consideration of the record we find as follows:

That on November 25th, 1938, the said Bridie Sullivan and respondent were operating under the provisions of the Workmen’s Compensation Act of the State of Illinois.

That on said date said Bridie Sullivan sustained accidental injuries which arose out of and in the course of her employment.

That notice of the accident was given to said respondent, and claim for compensation on account thereof was made within the time required by the provisions of such Act.

That the earnings of said employee during the year'preceding the accident were $1,044.00, and her average weekly wage was $20.07, and her rate of compensation is $10.04 per week. That claimant has no children under the age of sixteen years of age dependent upon her for support.

That all medical and hospital services from the date of the injury to the time she elected to furnish her own were paid by the respondent and that all medical, surgical, and hospital services on and after November 27th, were procured by said employee at her own expense.

That as the result of such accident the said Bridie Sullivan was totally disabled from work from November 25th, 1938, until February 15th, 1939, a period of eleven and four-sevenths (11 4/7) weeks entitling her to the sum of $116.16 for temporary total disability, but the State is entitled to credit for $63.00 which was paid to her for non-productive work, leaving a balance due her for her temporary total disability of $53.16. That the medical testimony supports a fifty per cent (50%) permanent partial loss of the left eye and therefore she is entitled to have .and receive compensation at' the rate of fifty per cent (50%) of the weekly earnings for sixty weeks as compensation for said permanent partial loss of use of her left eye, or the sum of $602.40, making a total sum due her of $655.56. All of which has accrued and is payable to her in a lump sum.

An award is therefore hereby entered in favor of claimant, Bridie Sullivan, for the sum of Six Hundred Fifty-five Dollars and Fifty-six Cents ($655.56) in a lump sum.

This award being 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 June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


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    (No. 3701
    Christina Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Pence B. Orb, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

Christina Thompson, the claimant herein, seeking an award of $10,001.00, states in her complaint that she was a housewife residing at 514 Oneida Street, Joliet, Will County, Illinois, with her husband and two minor children. That she had been employed for several years by the Weber Dairy Company, of Joliet, Illinois, as a bookkeeper. That prior to the incidents hereinafter related, she was in good health and was strong, robust and physically able to do her work as a bookkeeper and also perform all her duties and obligations as a housewife. That on November 25, 1941, at about 7:45 P. M. while in her home she was suddenly confronted by one Philip Yates, a convict who had escaped from the Northern Illinois State Penitentiary, a State institution, located at Stateville, in the vicinity of Joliet, Illinois, who was in the act of attempting to rob her home; that on being discovered the said Philip Yates grappled with claimant, seized her by the throat and various parts of her body and applying force to her person choked, kicked and struck her many violent blows, knocking her teeth out, causing severe injury to her arms, legs, throat and various portions of her body, and threatened to kill her; that all of said ill treatment caused her nervous system to suffer a great shock from which she has suffered from that time and even up to and including the present time, also as a result of said injuries the claimant was unahle to eat properly for many weeks thereafter; that she was prevented for a long space of time from performing her duties as a bookkeeper at her place of employment; that she required medical attention and still requires medical attention; that she was unable to perform her household duties for a long space of time; that she was compelled to employ the services of another person to assist her in performing her household duties; that she still requires such assistance at great expense to her; that she has been advised, in order for her to attain normalcy, to take a complete rest and vacation for at least a year; that as the result of said assault she has been compelled to expend vast sums of money: For medical services $300.00; wages lost in occupation as bookkeeper up to date $36.00; wages lost as bookkeeper during period of twelve months unemployed (under medical attention) as result of injuries suffered, 52 weeks at $18.00 per week $936.00; sums paid for assistance in household duties the claimant was unable to perform because of said accident 10 weeks $120.00; estimated time in the future during which claimant will be compelled to employ help in house work estimated at 40 weeks at $12.00 per week $480.00; dental bill incurred because of injuries for loss of teeth, and new plate, etc. $75.00; and damages estimated for pain and suffering $8,054.00; making a total of $10,001.00.

The claimant says that she would not have suffered any of these injuries if the said Philip Yates had been guarded by the respondent through its agents, servants and employees at its said penitentiary, and that the entire responsibility for the said escape of the said convict and the assault committed upon her rests entirely upon the negligence of the respondent, the State of Illinois, through its agents, servants and employees.

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 under the facts set forth in the complaint.

This court has repeatedly held that the State in the conduct of its penal and charitable institutions is engaged in a governmental function and that in the exercise of such functions it is not responsible for the negligent acts of its servants and agents in the absence of a statute making it so liable. Jones vs. State, 8 C. C. R. 77; Palumbo vs. State, 8 C. C. R. 196, and cases there cited.

The case of Wood vs. State, 9 C. C. R. 501, is analogous to the claim presented herein. In that case the claimant, a 70-year-old woman responding to a knock on the door of her home was met there by Joseph Flynn, an escaped patient of the Jacksonville State Hospital at Jacksonville, Illinois, who asked her for food. While claimant was preparing the same for him, Flynn seized her, dragged her to the basement where she was assaulted, this court refused to make an award, stating:

"This court has repeatedly held that the State in the conduct of its penal and charitable institutions is engaged in a governmental function and that in the exercise of such functions, is not responsible for the acts of its servants and agents in the absence of a Statute making is so liable.”

We have no authority to allow an award in any case unless it would be a legal liability on the part of the State if the State were suable. Crabtree vs. State, 7 C. C. R. 207.

There being no legal liability on the part of the State we have no authority to allow an award, regardless of how much the case might appeal to the sympathies of the court. Award must therefore be denied. The motion of the Attorney General is granted, and case is dismissed.


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    (No. 3614
    Charles Veselsky, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 15, 1942.

    Miles Wlodeck, (M. F. Unger, of Counsel), for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On September 26, 1940, the claimant, Charles Veselsky, was employed by the State of Illinois as a watchman in highway maintenance work in the Division of Highways of the Department of Public Works and Buildings, and was stationed on Route 213 at Summit, Illinois. While flagging traffic across a bridge, on which the southbound travel lane was closed for repairs, and northbound traffic only was maintained, an automobile driven by John Serna, of McCook, Illinois, approached the bridge. The claimant signalled for Serna to stop; the Serna automobile skidded, struck, and injured Veselsky.

Claimant was first taken to the Berwyn Community Hospital, and on October 4, 1940, was transferred to St. Luke’s Hospital in Chicago, where he was placed under the care of Dr. H. B. Thomas, Professor of Orthopedics, University of Illinois Medical College. On November 1, 1940, he returned to his home, but continued under the care of Dr. Thomas until April 22,1941, when he was discharged.

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

Claimant had worked for the respondent for a period of ten days prior to the accident, at the rate of fifty cents per hour; had worked eight hours a day; and received total wages in the amount of $44.00. Employees of the respondent engaged in similar activities worked less than two hundred days a year; eight hours constituted a normal working day. Claimant was paid compensation for temporary total disability from September 27,1940, to April 26,1941, in the sum of $476.29. At the time of the accident he had three children under sixteen years of age dependent upon him for support. The respondent has paid for services rendered claimant in connection with the injury:

Dr. John L. Grout, Berwyn....................................... $125.00
Dr. Albert W. Hall, Berwyn....................................... 5.00
Dr. William R. Cubbins, Chicago.................................. 50.00
Dr. H. B. Thomas, Chicago........................................ 286.67
Dr. E. Lee Strohl, Chicago........................................ 61.00
Dr. E. W. Hagens, Chicago........................................ 10.00
Dr. Abraham Ettleson, Chicago.................................... 10.00
Berwyn Community Hospital, Berwyn............................. 144.25
St. Luke’s Hospital, Chicago....................................... 122.75
R. V. Fogarty, R. N., Maywood.................................... 56.00
Frank Anderson, R. N., Chicago.................................... 56.00
Abram and Sons, Berwyn......................................... 10.00
Chas. J. Veselsky, claimant........................................ 5.60

or a total of $942.27. Claim is made for a further period of temporary total disability from April 26, 1941, to September 1, 1941, when claimant was employed by the town of Cicero as a street sweeper. The only evidence in the record in support of this contention is claimant’s testimony that he was unable to work until September. Dr. Thomas, on the other hand, after a thorough examination, reported claimant was fully recovered from the effects of the injury on April 22nd.. The record does not justify any further award for temporary total disability.

Claimant also seeks an award for permanent partial disability of fifteen per cent loss of use of the right leg. He testified that his right hip and leg were injured in the accident, and that he bumped the top and back of his head; that while he was in St. Luke’s Hospital the doctors did nothing but come to see him and put an electric lamp on his leg; that his leg continued to trouble him, and his head hurt; that an x-ray was taken of his head. He also testified that he is now able to sweep only one block each day; that he cannot work steadily, and from time to time is required to sit down and rest. When questioned as to his present condition, claimant stated that it bothered him to sit too long; that his whole body pains him including his right leg in the region of the hip; that his head gets dizzy; that he gets tired and can’t talk; that he gets dizzy three or four times a day while he is working; and “in the night after supper I got something in the heart, heavy eat.” He also stated that prior to the accident he had no pains in Ms head or any other place in his body; that prior to the accident his physical condition was unimpaired.

Dr. Frank E. Deadman, called as a witness for the claimant, testified that he examined claimant twice, on April 26, 1941, and on February 11, 1942. His first examination disclosed several healed scars on claimant’s right leg, some swelling and enlargement of the right knee, and a point of tenderness above the crest of the right ilium. He found notMng abnormal about the lungs or heart, no marks about the head, no healed lacerations or abrasions. The patient complained of some dizziness. At the time of the second examination, Dr. Deadman found nothing wrong with claimant’s chest except an abnormal amount of air in the pleural cavities; found his blood pressure to be approximately normal ; found no organic lesions about the heart, and no arteriosclerosis. Claimant, however, still had an enlargement of the right knee, the right thigh was atrophied, and the muscles flabby. The doctor testified, “That shows that he has not been using them like anybody would in the normal manner.” The movements in the knee and thigh could be made to reach the normal limit, and the only complaint, the patient made was when the right thigh was fully flexed on the abdomen. Dr. Deadman testified that claimant had some functional impairment of the right leg, probably not more than fifteen per cent; that in his opinion the dizziness was the result of a concussion of the brain following the accident of September 26, 1940; that based upon a reasonable medical certainty, claimant’s condition of ill being, headaches, and dizziness could be the result of the accident on September 26, 1940; that there was no evidence of a generalized disease.

The respondent called no witnesses, but submitted its case upon the report of the Division of Highways containing portions of reports of Dr. Thomas. These disclose that as a result of the accident, claimant had been scratched in many parts of the body, most extensively on his face; that he had been quite black and blue over the right flank and thigh region; that there had been much swelling; that an x-ray had shown a fracture of the right ilium. The lacerations and the fractured ilium, however, had healed well. On April 22,1941, when Dr. Thomas dismissed the case, he reported that claimant had a long standing pulmonary emphysema with secondary cardiac changes, chrome myocarditis; that the occasional mental symptoms were secondary to the cardio-pulmonary disease; and that the condition was in no way related to the accident. On April 29, 1941, Dr. Thomas made another examination of claimant and still felt that claimant’s condition was “part of a generalized disease rather than any local process such as a head injury. His (claimant’s) many complaints speak against any localized condition such as one due to the concussion. There are many things that could be done for the patient’s medical needs which are .not service-connected, such as care of his teeth, his gastro-intestinal tract and cardiac condition.”

From the medical testimony, it appears that claimant has sustained a fifteen per cent permanent partial loss of the use of his right leg. At the rate of fifty cents per hour, eight hours per day, compensation should be determined upon the basis of two hundred days at $4.00 per day, or an annual wage of $800.00. This in turn equals an average weekly wage oft $15.38. Claimant having three children under the age of sixteen years at the time of the accident, he is entitled to an award of $13.00 per week for fifteen per cent of 190 weeks, or $13.00 per week for 28% weeks, being the sum of $370.50. Since the accident occurred after July 1, 1939, the amount of compensation must be increased ten per cent, making a total sum of $407.55. Claimant, however, was paid $476.29 for temporary total disability for a period of thirty weeks, which was $47.29 in excess of the apount he was entitled to receive under the provisions of the Workmen’s Compensation Act. This must be deducted from the present award.

Claimant also suggests that in the event he is unable to continue his present employment, he is entitled to an award for total disability in the -sum of $4,400.00 and pension for life. The medical testimony in this regard is highly contradictory, and claimant’s own testimony very unsatisfactory. The court is of the opinion that the record does not warrant such a finding.

An award is therefore made to the claimant in the sum of $360.26, all of which is accrued and is payable forthwith.

This award being 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 June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


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    (No. 2928
    Dana Breeden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    William J. Long, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed on July 8, 1936, for damages to claimant’s property as a result of the construction of a hard road by the State in front of claimant’s property.

Claimant alleges that he is the owner of the real estate described in the complaint, and that the Department of Public Works and Buildings of the State raised the elevation of State Bond Issue Route 100, in front of claimant’s property in the Village of Browning, Schuyler County, Illinois, about ten (10) feet.

That because of the elevation of said highway, claimant’s property suffered consequential damages in the amount of Three Hundred Fifty Dollars ($350.00).

In accordance with Section 13 of Article 2 of the Constitution of Illinois—

“Private property shall not be taken or damaged for public use without just compensation,”

and claimant is, therefore, entitled to an award.

There is, however, conflicting evidence with respect to the decrease in value of the property because of the construction of said highway. One witness for the claimant testified that the property value was decreased Five Hundred to Sis Hundred Dollars; another witness testified that the value decreased Two Hundred Fifty Dollars. Two witnesses testified for the respondent, both of whom agreed that the decrease in value was approximately One Hundred Dollars.

This court is of the opinion, after a review of all the testimony, that a fair award would be the sum of Two Hundred Dollars ($200.00).

An award is therefore made in favor of Dana Breeden, claimant, for the said sum of Two Hundred Dollars ($200.00).


text:
    (No. 3587
    Harms Broers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Josef T. Skinner, for claimant.
    George F. Barrett,' Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent. ■
   Fisher, J.

This claim was filed February 13, 1941. It asks for benefits under the Workmen’s Compensation Act claimed by claimant for temporary disability and for permanent disability on account of an injury received while claimant was employed by the State Highway Department.

On September 17, 1940, claimant was employed under the direction of the Dixon State Highway Office, a branch of the State Highway Department of the State of Illinois. Claimant alleges that on said date he was engaged in the work of lifting heavy slabs of concrete after the same had been broken out of the highway by an air hammer machine; that as a result of the lifting of these heavy pieces of concrete, there was caused a bruising and injuring of the blood vessels and arteries of his back and neck. Claimant was treated by Dr. George E. Kirby of Spring Valley, who examined the claimant on September 24, 1940. He has been examined by the said Dr. George E. Kirby at several intervals since that time.

Claimant was paid compensation for temporary disability by the Division of Highways from September 24, 1940, to January 27, 1941, a total amount of Two Hundred Eighty-six and 55/100 Dollars ($286.55). In addition, the bill of St. Mary’s Hospital at LaSalle, where claimant was treated, Was paid by the Division of Highways. Electro cardiographs required by Dr. George E. Kirby have been paid for in the amount of Twenty-two and 50/100 Dollars ($22.50).

Claimant alleges that he is entitled to Seventeen and 50/100 Dollars ($17.50) per week until temporary disability is terminated.

. Claimant alleges that at the time of his injury he was 36 years of age; was married and had two children, one son, Virgil Broers, under the age of sixteen years.

Claimant alleges that as a result of said accident he has sustained temporary total loss of his capacity to work and that he will be permanently disabled to the extent of 50% of his normal capacity to work. Claimant states' further that he has not presented this claim to any State Department or State Officer, and that no third party or corporation has any interest in this claim.

The record consists of the complaint, report of the Division of Highways signed by M. K. Lingle, Engineer of Claims, statement, brief and argument of respondent, transcript of the evidence, and a stipulation between claimant and respondent that the letter of Chauncey C. Maher, M." D., and his report of examination, shall be part of the record.

As respondent had notice of the accident within the period provided by Section 24 of the Workmen’s Compensation Act, and as claim was made for compensation within six months after date of the accident and application for compensation filed within one year, the court finds it has jurisdiction.

In examining the records of this case, there is no evidence of a specific accident, but claimant, by his evidence, tries to maintain the position that while lifting heavy pieces of concrete into a truck he became subject to pain between the shoulderblad.es, chest and arm. He would take rest periods of various lengths and then would resume his work until the condition again returned, under which circumstances he worked for five or six days before he finally went to a doctor.

In allowing an award under the Workmen’s Compensation Act, this court, of course, must determine that the accident complained of was incurred in the course of and arose out of the employment. Dr. Kirby, in testifying on behalf of claimant, stated that he did not know if it would be possible for a man of claimant’s age and condition to have the origin of this disease caused by excessive exertion. He testified that claimant had a disease of the coronary artery, and in answer to a hypothetical question propounded by claimant’s attorney, said “that the heavy lifting could have been the cause of the symptoms that were produced at that time, but I feel that there must be some fundamental disturbance in the coronary circulation.”

Dr. Chauncey C. Maher, heart specialist connected with the University of Illinois, examined claimant on August 7, 1941. He reported by letter dated August 12, 1941, which was inserted as part of the record, that claimant “has the typical syndrome of angina pectoris which is due to disease of his coronary arteries”; that “this is quite definitely a medical problem and the result of chronic disease. It is in no way related to the occupation of this man and his disability is not predicated upon his occupation or' the type of work which he has done in the past several years.”

Dr. Maher’s finding does not conflict with that of Dr. Kirby. Dr. Kirby did not express a definite opinion in this matter, except that claimant had a disease of the- coronary artery. That fact was confirmed by Dr. Maher, who examined claimant more fully and with all the necessary equipment needed in such examinations. Dr. Maher concluded that claimant’s condition was not the result of his employment, and nothing in the evidence contradicts that finding. Neither is there any evidence of an accident in this case.

In the case of The Vincennes Bridge Company vs. Industrial Commission, 351 Ill. 444, our Supreme Court said, on page 449, in quoting the language of the Supreme Court of Massachusetts in McNicol’s case, 215 Mass. 497, that an injury arises “out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. ’ ’

This court is of the opinion that, in consideration of all the evidence, the injury complained of cannot be fairly traced to the employment of the claimant, that it comes from a heart condition as a result of a chronic disease with the symptoms manifesting themselves while under heavy exertion. The same symptoms undoubtedly would have been present at any other time claimant participated in heavy physical exertion: Award must, therefore, be and is denied.


author: Fisher, J. Fisher, J.

text:
    (No. 3548
    Ezra Collins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

      Supplemental opinion filed September 8, 1942.

    Lloyd L. Voyles, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant alleges in Ms complaint that he is a resident of Edwards County, State of Illinois, and has continuously so resided for more than twenty-five years last past.

That on August 3,1939, he was employed by the Division of Highways of the State of Illinois, as a laborer, engaged in the work of cleaning certain State Highways, for which he was paid at the rate of Fifty Cents ($.50) per hour, in which work he had previously been employed on numerous occasions.

That on said date claimant was, with other employees of the State Highway Department of the State of Illinois, engaged in cleaning State Highway No. 130 where it runs through the Incorporated City of Albion, Edwards County, Illinois; that upon completion of said work on said Highway No. 130, an employee regularly employed by the Division of Highways ordered the claimant, together with other laborers, to get on the State Highway truck then operated by an employee of the Division of Highways of the respondent, to go from State Highway No. 130 to State Highway No. 15 on the opposite side of said City of Albion, to engage in cleaning said State Highway No. 15.

That the claimant stood on the running board of said highway truck, and wMle so standing on the said running board while the truck was in motion, claimant sought to reach for a sheet of paper wMch was blown from under said truck, and in so doing slipped and fell from the running board of said truck so that he was dragged for some distance and the wheels of said truck passed over Mm, inflicting the following injuries: Separation of symphysis pubis (about 2.5 cm.) and separation of L. sacro-iliac joint.

' That on account of said injuries claimant was confined .to the Olney Sanatorium in the City of Olney, Richland County, Illinois, and also to his home for a considerable period of time, and suffered and continues to suffer great physical pain.

Claimant further alleges that since August 3, 1939, he has been wholly incapacitated from performing any labor whatsoever as a result of said injuries.

That respondent has paid for services rendered to claimant on account of said injuries, the sum of Three Hundred Thirty-five Dollars ($335.00), and in addition has paid the claimant temporary total disability in the amount of One Hundred Eighty Dollars ($180.00) for the period from August 3, 1939, including January 1, 1940.

That by reason of his injuries claimant is totally disabled from performing any duties whatsoever, and is wholly without means of support, and seeks to recover damages in the amount of Five Thousand Dollars ($5,000.00), together with such other relief as to the court may seem proper.

The record in this case consists of the complaint, report of the Division of Highways dated October 15, 1940, signed by M. K. Dingle, Engineer of Claims, transcript of evidence produced on behalf of claimant, motion of claimant waiving his right to file brief herein, motion to dismiss on behalf of respondent, and statement, brief and argument thereon.

As the respondent had immediate notice of the accident, and the claim was filed in apt time, this court has jurisdiction of the matter.

The record contains considerable testimony relative to the nature of claimant’s injuries. However, before considering this we will dispose of the motion made on behalf of respondent asking that the claim be dismissed on the grounds that the accident suffered by claimant did not arise out of and in the course of his employment. Claimant was employed by the State occasionally to assist Emory A. Goodlink to clean such parts of the city streets of Albion as lay within the confines of the State highway routes, as were designated by Mr. Goodlink. The evidence clearly shows that the accident took place ón a city street of Albion, while claimant was being transported from one State route to another to continue his work. It was Goodlink’s intention, which he had started to carry out, to leave State Highway No. 15, proceed west on Elm Street for two or three blocks and then turn south, proceed one block and reenter Eoute No. 15 where work' was to be resumed.

It was part of claimant’s work to be transported from one place of work to another. At the time claimant was injured he was being so transported. He was riding in or on a vehicle of respondent being operated by the foreman or supervisor in charge of this particular work. It cannot be reasonably charged that claimant was violating orders by standing on the running board of the vehicle while it was in motion when the vehicle was being operated by his superior under whose orders claimant was working. Claimant was permitted so to ride and while so riding was injured. From the evidence before us it appears claimant was injured in the course of and within the scope of his employment. The extent of the injury, however, is not clear from the evidence.

Respondent, in its motion to dismiss, “reserves the right, if the court should overrule this motion, to introduce evidence as to the merits of the claimant’s claim.”

The motion to dismiss is denied and respondent is given sixty days additional time to present evidence as to the merits of this claim and the extent of the injury. In determining the time for the presentation of additional evidence the court is mindful of the fact that this claim was filed on October 9, 1940. On January 23, 1941, the transcript of evidence was filed. It was not until March 25, 1942, that respondent filed its motion to dismiss; an unwarranted delay and a hardship on claimant regardless of the merits of the claim.

The complaint filed herein fails to comply with Rules 5(a) and 5(b) of this court, and, therefore, is insufficient on which to base an award. To comply with said rules claimant is given thirty days to amend his complaint, and in the event he fails to so amend, the claim will be dismissed.

Supplemental Opinion.

Fisher, J.

In an opinion heretofore filed in this case, respondent’s motion to dismiss was denied. Respondent was given sixty (60) days additional time to present evidence as to the merits of the claim and the extent of the injury, and claimant was given thirty (30) days to amend his complaint, to comply with Rules 5(a) and 5(b). Claimant’s amended complaint was filed in apt time and now complies with the rules of this court. As no additional evidence was presented by respondent, pursuant to leave granted, the court will decide this case on its merits from the record as it now stands.

As indicated in the previous opinion, the court finds that claimant was injured in the course of and within the scope of his employment. There now remains to be determined the extent of claimant’s injury and the amount of award to which he is entitled.

With respect to the degree of permanent partial disability of claimant, the two doctors who testified have a considerable difference of opinion. Dr. Boston stated 75 per cent, which might be minimized by time and treatment, and Dr. Nierenberg who took care of claimant, 25 per cent. It would appear, therefore, from the record, that claimant is partially incapacitated, and the nature of his injury such that he would be entitled to an award under Section 8, Paragraph (d) of the Workmen’s Compensation Act, which provides as follows:

“If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty per centum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.”

Plowever, from the record before this court, it is unable to determine the average amount which claimant earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. Neither is the court able to determine from the record, the period of claimant’s temporary total incapacity. The burden of proof being upon the claimant, and for the reasons herein stated, the court is unable to determine the amount of the award.

Award is therefore denied.


author: Eckebt, J.

text:
    (No. 3705
    Lou Collins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

    Bov A. Ptacin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckebt, J.

The claimant, Lou Collins, is employed as an attendant at the Chicago State Hospital, a public institution owned and operated by the State of Illinois. On January 6, 1942, while supervising the serving in the officers’ dining room, she slipped and fell, sustaining a Colles’s fracture of the left wrist. She reported immediately to the employees hospital where an x-ray was taken and a cast applied.

Claimant did not work from January 6, 1942, until February 17th, during which time she was under the care of Dr. Louis Cisman. Since February 17th, she has worked regularly at the same position and received the same pay which she received prior to the accident. All medical services were furnished by the respondent. Claimant also received her regular pay for the month of January, and the sum of $49.18, for productive work from February 17th to the end of the month.

Claimant’s earnings at the time of the accident were $63.00 per month and maintenance in the amount of $24.00 per month. Her average annual earnings for the year preceding the accident were $1044.00, and her average weekly wage was $20.08. She was then sixty-six years of age, a widow, and had no children under sixteen years of age. At the time of the accident the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State; notice and claim for compensation were made within the time provided by the Act. No claim is made for medical or hospital services, but claimant seeks an award for temporary total disability and for partial permanent disability for loss of use of her left arm.

Claimant testified that since the accident, her left hand does not have as much grip as it formerly did; that she can not lift heavy things with her left arm; that she suffers pain in her arm and in her wrist; and that after long hours of work her arm becomes tired and aches. She also testified that because of her injury, she is not able to do all of the tasks incident to her employment and which she formerly performed.

Dr. Albert .C. Field, a witness called on behalf of the claimant, testified that he examined Mrs. Collins on June 5, 1942; that he found a thickening at the lower end of the left forearm, some deformity at the lower end of the ulnar, and some widening of the joint space. ' Dr. Field also testified that he found a five degree limitation of extension, a thirty-five degree limitation of flexion, and a limitation of about twenty-five per cent of eversion and inversion. By comparative measurements, claimant’s left wrist measured six and one-half and her right wrist six and one-eighth. In the doctor’s opinion the disability was permanent.

Dr. Louis Cisman, called on behalf of the respondent, testified that he had examined claimant on May 23, 1942, and found a small limitation of inversion, eversion and flexion, of the left wrist; that he again examined claimant on July 10, 1942, and found a limitation of inversion and -eversion of about twenty per cent and a limitation of flexion of about twenty-five per cent. He considered the condition permanent.

Claimant was temporarily totally incapacitated for a period of six weeks, and would therefore be entitled to the sum of $66.24 under the terms and provisions of the Workmen’s Compensation Act. However, she has already been paid this amount for non-productive time, and therefore no award can be made for temporary total incapacity.

Claimant,1 however, is entitled to an award for partial permanent disability, having suffered a permanent partial loss of the use of her left arm which the court finds to be a loss of ten per cent. Under the provisions of the Workmen’s Compensation Act, claimant is therefore entitled to receive fifty per cent of her average weekly wage for a period of twenty-two and one-half weeks or the sum of $225.90. The accident having occurred after July 1, 1941, this amount must be increased ten per cent.

Award is therefore entered in favor of the claimant in the sum of $248.49, all of which is accrued and is payable forthwith.

This award being 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 June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 3322
    Ward C. Crom, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 8, 1942.

      Rehearing denied November 10, 1942.

    Robert W. Besse, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, and Robert V. Ostrom, Assistant Attorneys General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The complaint in this case states that Ward C. Crom is the owner of a farm located in part of the North One Half (N%) of Section Four (4), Township Twenty-one (21) North, Range Seven (7) East of the Fourth Principal Meridian in Whiteside County, Illinois.

That a creek known as Elkhorn Creek runs through the said described tract of land in a westerly direction and that a state highway known as State Highway 88 runs along the west side of said tract of land, .running in a northerly and southerly direction.

That along the west side of said tract of land the said highway crosses the said creek by means of a bridge.

That said road is built on a solid pike along the lands of the claimant for a considerable distance south of said bridge.

That said bridge and pike were negligently constructed by authority of the State Highway Department in that said construction fails to provide sufficient drainage of the waters flowing into the stream above the bridge; that said Highway Department wholly failed to make sufficient openings in the pike to take care of the flow of the stream during periods of high water; that such acts have caused, and continue to cause said waters to pile up along the pike because the opening at the bridge was and is insufficient to allow the waters to flow off normally.

That such negligent construction has caused the water to overflow onto the claimant’s land causing him great damage to his land, buildings, fences, stock, grain and crops. He seeks an award of $8,160.00 plus interest for alleged damage for the years 1936, 1937 and 1938.

The evidence discloses that Ward C. Crom.in January 1937 acquired title to the above described premises from the Sterling Sales Incorporated who in 1936 had acquired title to said premises from the estate of Henry Wolf, while claimant was president of said corporation.

On June 21, 1934 an opinion was rendered by this court in lie: Almer Wolf, et al., claimants vs. State of Illinois, respondents, 8 C. C. R. 144, which is controlling in this case. There claimants sought to recover the sum of $875.00 for damages claimed to have been occasioned by flood waters resulting in loss and damage to stock and grain on the farm owned by the Henry Wolf estate on which claimant was a tenant. The complaint filed averred that the loss occurred on October 11, 1931, and was due to the fact that when the embankment for laying the slab on S. B. I. Boute 40 (now route 88) in the North West Quarter of Section (4) Township Twenty One (21) N. B. 7, East of the fourtn P. M. in White-side County, Illinois, was built, that same was constructed without culverts to admit the passage of flood waters under said highway; that a pond or lake was thereby formed, the over-flow of which resulted in the damages claimed:

This court in the above entitled cause held:

"The court finds from the record that there is no proof that S. B. I. route 40 was constructed in a negligent or improper manner in the section complained of; that the evidence conclusively shows proper construction throughout with sufficient and adequate drainage under conditions which might be ordinarily and reasonably expected; that the charge made in the complaint ‘That the embankment was built without culverts, etc.’ is not supported by the evidence, but that the record discloses affirmatively that concrete culverts were constructed and that the new bridge offered a flow-opening almost two and one-half times greater than the former bridge.”

The evidence in this ease shows that the claim for damages of Aimer Wolf, which was denied by the court, was on the identical property as described in the complaint of Ward 0. Crom.

The evidence further discloses that this improvement was built by the respondent in 1926, lawfully and that it is a substantial improvement and is a permanent structure.

The point is raised by claimant that the bridge and pike were negligently constructed by the respondent. The evidence shows that one R. N. Ferguson was called to testify on behalf of claimant. On cross-examination the following questions were asked, and answered:

Q. “At the time of the construction of this highway, what were your duties at the Dixon office in Department of Highways?”
A. “I was Assistant Engineer.”
Q. “I will ask you to state whether or not you knew anything about the plans that were proposed for this bridge in connection with the creek?”
A. “Yes, I was quite familiar with them.”
Q. “Were there any plans made in connection with Elkhorn Creek that were not carried out?”
A. “Yes, we originally intended to make a change in channel up stream, that would have been from one-half to three-fourths mile long and would have had the effect of converging the water at the bridge much better than it is now.”
Q. “I will ask you to state if you know why this was not done?”
A. “On account of the objection of Mr. Wolf. I think he was the only property owner involved and he objected.”
Q. “Mr. Wolf was predecessor in title to Mr. Crom, and he was owner of the land involved, at time this work was done?”
A. “That is right.”

A right of action does not pass from the owner to a subsequent purchaser for injury from over-flows and damages to crops occasioned by lawful and permanent causes existing when he purchased the land. A subsequent purchaser takes the land subject to such damages and with no right of action to recover for the same.

Ill. Cent. Ry. Co. vs. Ferrell, 108 Ill. App. 667.

In the case of Horney, et al. vs. State of Illinois, 9 C. C. R. 354, the claimant sought to recover damages for loss of crops during the period of five years prior to the filing of the complaint, as the result of water standing or remaining on her land by reason of the construction of a hard-surfaced highway. In that case the claimant- acquired title after the completion óf the improvement. The court found that the improvement in question was a permanent improvement and that the right of action was in the owner of the property at the time of the making of the improvement; that there could be but one recovery, and that such recovery should include all damages, past, present and future; that a subsequent alienee of the property took the same as it existed at the time of the conveyance, and had no right of action for damages which resulted from the improvement and accrued after the conveyance.

In the case of Holm vs. County of Gooh, 283 Illinois Appellate 190, where plaintiffs brought an action of trespass to recover damages to their lands and for the destruction of their crops the court held:

“Plaintiffs predicate and must predicate the County’s liability entirely and solely on the constitutional provision, that ‘private property shall not be taken or damaged for public use without just compensation’ (Sec. 13, Art. 2, Const. State of Ill.), which contemplates only one recovery for all past, present and future damages.”

The same rule of law that was applied in the above case as regards the County of Cook, applies in the same measure in a claim against the State. The improvement on S. B. I. Route 40 (now route 88) was completed in 1926.

The claimant in this case having acquired title subsequent to that opinion took the land with notice and he is barred by law from recovering for subsequent damages.

. The Attorney General filed a motion to dismiss this complaint after the taking of testimony on behalf of claimant was concluded.

Based on the foregoing conclusion of law, and the record before us, the motion of the Attorney General must be allowed. Motion allowed. Claim dismissed.