text:
    (No. 3047
    B. S. Pearsall Butter Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1940.

    Schnell & Eakin, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks an award of Two Thousand Six Hundred Twenty-three and 06/100 ($2,623.06) Dollars for damages alleged to have been occasioned by a breach of contract.

The record discloses that claimant, a corporation organized under the laws of Illinois, in response to notice to prospective bidders, submitted on June 20, 1935, a bid for the sale and" delivery of 55,200 gallons of milk at the rate of 600 gallons per day to the Chicago State Hospital at Dunning, Illinois, during the period between July 1 and September 30, 1935, at a price of $.2345 per gallon. On June 21, 1935, the respondent accepted the offer and the Division of Purchases and Supplies issued claimant a purchase order therefor.

At the time claimant was awarded the contract it held Permit No. 274 issued by the Board of Health of the City of Chicago on July 1,1934, and expiring June 30, 1935, by which claimant was permitted to deliver milk pasteurized by it at its plant at Elgin, Illinois, into the City of Chicago.

The specifications attached to the contract in question provided that—

“The Milk Ordinance, passed by the City Council (of Chicago) January 4, 1935 and the rules and regulations of the Chicago Board of Health, adopted January 8, 1935, will govern for the standards and requirements for milk and milk products delivered to State institutions in tire Chicago area, and bidders must be governed accordingly.”

Claimant began delivery of milk under the contract to the Chicago State Hospital at Dunning, Illinois, on July 1, 1935, and delivered 600 gallons daily until August 16, 1935. Commencing on that date respondent refused to accept deliveries or to pay therefor, and informed the claimant that the latter’s contract had been canceled for non-compliance with the provisions of the Chicago Milk Ordinance in that its Permit No. 274 had expired June 30, 1935, and no subsequent permit had been issued by the City of Chicago to the claimant. No further milk was accepted and a new contract was made by the State with the Bowman Dairy Company at an increased price, the latter company being the next lowest bidder at the time the contract was awarded to claimant herein.

The claimant company had made the necessary arrangements whereby it might be able to carry out the terms of its contract, and the cancellation of such contract resulted in losses and additional expense to the claimant.

The Attorney General submits that if an award is found to be due the claimant for breach of contract, the measure of damages would be the difference between the contract price for the remaining quantity of milk that was to have been delivered and the price for which claimant was able to dispose of same when he was prevented from delivering same to the respondent.

Counsel for respondent concedes that if the respondent wrongfully cancelled the contract, claimant would be entitled to an award in the sum of Two Thousand Six Hundred Twenty-three and 02/100 ($2,623.02) Dollars, which represents the difference between the contract price of the milk remaining undelivered (27,600 gallons at $.2345 per gallon), Six Thousand Four Hundred Seventy-two and 20/100 ($6,472.20) Dollars and Three Thousand Eight Hundred Forty-nine and 18/100 ($3,849.18) Dollars, the price at which claimant disposed of the remaining 27,600 gallons. The record discloses that in disposing of the balance of milk due on the contract the total amount received was Two Thousand Six Hundred Twenty-three and 02/100 ($2,623.02) Dollars less than the price called for under the contract.

That which gave rise to the cancellation was the fact that prior to July 1, 1935, the inspectors for the Chicago Board of Health inspected pasteurization plants outside of the City of Chicago, and issued permits for the delivery of pasteurized milk into the city. On July 9, 1935, the Chicago Board of Health adopted a resolution restricting inspections to Cook County, and,ruling that no milk or milk products should thereafter be sold or offered for sale as pasteurized milk or milk products in the City of Chicago unless the same shall have been pasteurized in a pasteurization plant which is located within the boundaries of Cook County, Illinois. The questions which presented themselves in determining whether respondent was warranted in terminating the contract are:

1. . Is the Chicago State Hospital at Dunning, Illinois, a State institution in the Chicago areaf

2. Has the proviso, contained in the specifications, that the rules and regulations of the Chicago Board of Health adopted January 8, 1935, will govern for the standards and requirements for milk, been violated?

There is nothing in the record to show what State institutions are included in the “Chicago area” within the meaning of the two latter words. It is apparent, however, that the claimant was complying at all times with the rules and regulations of the Chicago Board of Health as adopted January

8, 1935, and it was those regulations which were to govern the standards and requirements for the milk that was to be delivered under this contract.

Witness Paul F. Krueger, the Chief Sanitary Officer for the Chicago Board of Health, who testified at the request of the* board in answer to a subpoena, stated that he was connected with the Chicago Board of Health prior to July 1, 1935, and continued to so be at the time of the taking of the evidence in this case. The wdtness knew the Pearsall Butter Company and its plant at Elgin. He was asked:

Q. “Has the Pearsall Butter Company of Elgin, Illinois, complied with the rules and regulations of the Chicago Board of Health since July 1, 1935, up to the present time? (June 9, 1939.)
A. “To the best of my knowledge they have; yes, sir.”

This witness also stated that the Pearsall Butter Company had subsequent to July 1, 1935, received authority from the Chicago Board of Health to handle raw milk only in Chicago, and to pasteurize milk for the Chicago Hospital at Dunning until its contract was fulfilled.

It is apparent from the record that claimant was ready, able and willing to continue to perform the balance of its contract with the State Hospital at Dunning on August 16, 1935, and that the respondent breached its contract without legal justification. The milk then being furnished by the claimant conformed with the standards and requirements for pasteurized milk as laid down by the rules and regulations of the Chicago Board of Health. The fact that such milk could not be delivered in the City of Chicago because of a rule made subsequent to January 8, 1935, did not affect the standard of the product, nor would the health of those to whom it was furnished have been jeopardized in any way. The claimant was in possession of a Certificate of Approval issued by the Department of Public Health of the State of Illinois, showing that its pasteurization plant located at Elgin, Illinois, was complying in all respects with the rules of the Department of Public Health of the State of Illinois, such permit certifying that “the construction and equipment of its pasteurization plant was such that with proper maintenance and operation the pasteurized milk will be safe for human consumption.”

From a consideration of the entire record the court is of the opinion that claimant is entitled to an award for the sum of $2,623.02, and an award is therefore accordingly made in favor of the B. S. Pearsall Butter Company for the said sum of $2,623.02.


source: Caselaw Access Project

author: Mb. Justice Linscott

license: Public Domain

text:
    (No. 2332
    Sim E. Bunting, Clairmant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1938.

      Petition for rehearing filed May 10, 1938.

      Original opinion affirmed February 13, 1940.

    Francis T. Carson, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claim was filed herein under the Compensation Act for temporary total incapacity, medical bills, specific loss of a thumb and partial loss of use of an index finger, and an award is sought in the sum of Two Thousand Six Dollars and Forty-five Cents ($2,006.45).

The facts are undisputed; proper notice was given and the claim was filed within a year.

It is alleged that claimant was an employee of the Animal Husbandry Department, and received an injury to his hand in the silo cutter while in the course of his regular employment. The injury consisted of the loss of the thumb on his right hand, the loss of function of his right index finger of about fifty per cent, medical bills, etc. Nothing appears in this record showing that the University is under the Compensation Act.

In an informal opinion given at the request of Hon. Sveinbjorn Johnson, under date of March 14, 1934, concerning this very case, this court, after fully reviewing the facts under the law, held that a decision authorizing an award could not be justified on this claim. (See C. C. R., Volume 8, page 774.)

Nothing appears in the case now before us which would justify a modification of the opinion given then; that opinion is based upon the fact that claims of this kind are not within the provisions of the Workmen’s Compensation Act because of a part of Division 8 of Section 3 of the Act, which provides as follows:

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

"We are of the opinion that our former opinion should not be modified or changed, and in addition to the authorities therein cited, we cite the case of Hill vs. Industrial Commission, 346 Ill. 392, wherein it was held that an employee is not within the Act when engaged in general farming operations or doing any farm work on a farm or country place; the case of Noverio vs. Industrial Commission, 348 Ill. 137, wherein it was held that where an employer was engaged in laying tile for farm drainage, the Act did not apply to an injury received to an employee while at employer’s house, not on the farm, making a screen for a tile outlet; and the case of Uphoff vs. Industrial Board of Illinois, 271 Ill. 312, wherein it was held that where a carpenter was employed by a farmer to assist in building a broom-corn shed on the farm, an injury due to a piece of steel flying from a hammer he was using and destroying sight of one eye was not within the Workmen’s Compensation Act.

Our former opinion in this case will be adhered to and an award denied.


author: Mr. Justice Linscott

text:
    (No. 3335
    David E. Caldwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    W. S. Kay, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case comes to this court on the petition of claimant and stipulation of facts by the Attorney General. The stipulation disclosed that on July 12, 1938, David E. Caldwell, forty-five years old, was in the employ of the State in the capacity of Maintenance Patrolman for the Division of Highways, Department of Public Works and Buildings, and that his annual earnings for one year prior to the time of the injury amounted to $1,475.81. About 4:00 in. the afternoon of the date mentioned, claimant was engaged with others in the removal of a part of the concrete highway that had been displaced by heat expansion, and was using a twelve pound sledge to break it up. Immediately following a heavy blow that he had made in the concrete a chip of concrete flew and struck him in the right eye and became imbedded therein, and as the result of that injury, it became necessary to remove his right eye. As the result of the injury, he lost seven weeks work.

The respondent had immediate notice of the injury and the claim was filed in apt time.

The respondent furnished claimant an artificial eye, glasses, and the necessary hospitalization and medical treatment, at a total cost of $469.30, and the claimant was paid his full salary of Two Hundred Thirteen Dollars and Thirty-nine Cents ($213.39) during the time he was unable to work because of the injury.

Claimant had no children under sixteen years of age at the time of the injury and was forty-five years, of age at that time.

From the facts contained in the record, it appears that both claimant and the respondent were operating under the provisions of the Illinois Workmen’s Compensation Act. Claimant was paid a salary during the unproductive time following the injury and that constituted a payment of compensation. Field & Company vs. Ind. Com., and United Air Lines vs. Ind. Com., 364 Ill. 346, and this obviated the necessity of making a demand.

From the admitted facts in this case, we find that the accidental injury arose out of and in the course of the employment. Claimant’s annual earnings were $1,475.81 or $28.38 per week, and therefore the compensation rate applicable is $14.19 per week.

Claimant’s compensation is to be computed as follows:

Temporary total incapacity, July 12 to August 31, 1938 — 7 weeks at $14.19 per week (Sec. 8 (b) III. Workmen’s Compensation Act)... .$ 99.33
Loss of right eye, 120 weeks at $14.19 per week (Sub' sec. 16, Sec. 8 (e) Illinois Workmen’s Compensation Act).....................$1,702.80
Total compensation $1,802.13

From the total amount of compensation of $1,802.13, must be deducted the compensation heretofore paid of $213.39, which leaves a balance of $1,588.74 remaining due to claimant. Compensation has accrued to February 14, 1940 in the amount of $1,177.77. Award is therefore entered for the sum of $1,588.74, payable as follows: Balance of accrued compensation, payable forthwith $964.38; balance of award i.e., $624.36 is payable in weekly installments of $14.19 until paid.

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 July 3, 1937 (Sess. Laws 1937 p. 83) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 2614
    Guy L. Cobb, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    Barber & Barber, for claimant.
    John E. Cassidy, Attorney General; John Kasserman, Assistant Attorney General, for respondent. 0
   Mr. Justice Linscott

delivered the opinion of the court:

The petition for an award in this case alleges that on or about the 7th day of September, 1934, at about 7:40 o’clock A. M., the State Highway Department was possessed of a certain motor truck, and by its duly authorized agent and servant was operating said motor truck along and upon a •certain public street in the City of Springfield, Illinois, to-wit: North Second Street, at or near the intersection of said street with North Grand Avenue, and was proceeding in a northerly direction on the East side of said Second Street; that at said time and place, the claimant was driving and operating his motor vehicle upon said North Grand Avenue, proceeding in a westerly direction and approaching the intersection of North Second Street and North Grand Avenne from the East; that the claimant was driving his said motor vehicle and approaching said intersection with due care and caution for his own safety and that of his motor vehicle; that the driver of the State-owned motor vehicle was traveling at a high and unlawful rate of speed, to-wit: forty miles per hour, and entered upon said intersection on the left-hand side and in front of claimant’s motor vehicle, wholly regardless of the right of way of the claimant and disregard of the provisions of the statutes of the State of Illinois, thus causing the claimant’s motor vehicle to collide with the right side of the respondent’s truck; that by reason of the collision, claimant’¡s motor vehicle was broken and damaged, and the claimant was obliged to pay and expend the sum of $57.25 in order to make the necessary repairs to his automobile. An itemized statement of the account is attached to the petition.

The Attorney General made a motion to dismiss this claim and as grounds for the motion says that it is sought to recover for damages to the automobile of claimant occasioned by a collision thereof with a truck of the respondent, it being alleged the collision resulted from the negligence, carelessness and recklessness of the driver of the truck, who was an employee of the respondent and that the respondent is not liable for such damage so caused.

This couft has held many times that a State is never liable for the negligence of its agents and employees, unless there is a statute making it so liable. In this State there is no such statute, and we must hold that this court has no jurisdiction to make an award. Derby vs. State, 7 C. C. R. 145; Chumbler, Admrx. vs. State, 6 C. C. R. 138.

The motion of the Attorney General will, therefore, be sustained and an award denied.


author: Mr. Justice Yantis

text:
    (No. 3419
    Roy de Vincent Cox, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    Joseph Sam Perry, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Six Thousand Seven Hundred Fifty ($6,750.00) Dollars for services rendered by him and alleged to be due him as Official Court Reporter of the Circuit Court of DuPage County, from the first day of September, 1936 to the first day of October, 1938. The complaint further recites that claimant was appointed as Official Court Reporter by the Hon. Max F. Allaben, Circuit Judge; that the latter died August 10,1936; that following his death and until November 1, 1939 when this complaint was filed, the judicial work of that Judicial Circuit was carried on by the two remaining Judges of such Circuit.

Further, that claimant received all the salary that was due him up to and including the month of August, 1936; that claimant was requested by the two remaining Judges to continue rendering service, and that he was advised by them that they believed his appointment continued and that the State should and would pay for such service. Further, that after learning this court had allowed a similar claim to one Fred J. Shell in Case No. 2366, C. of C., he continued to act as a Court Reporter until the first day of October, 1938 when he he learned that this Court had handed down a decision upon a claim previously filed by this claimant for the services in question, wherein the court held that he was not entitled to salary after the date of Judge Allaben’s death. The claim further recites that his service terminated October 1, 1938, and after the election of a new Circuit Judge a new Official Reporter was appointed.

The Attorney G-eneral has filed a motion to dismiss the claim and contends:

First, That claimant’s demand is barred by the prior judgment of this court in the case of Roy de Vincent Cox vs. State of Illinois, C. of C. No. 3092, in which an opinion was filed October 13, 1938 denying said claim.

Second, That the claimant does not set forth a demand which the State of Illinois, as a sovereign commonwealth, should discharge and pay for the reason that such complaint shows upon its face that claimant’s position as Court Reporter terminated with the death of the Judge who appointed him.

Third, That claimant had an adequate remedy by mandamus to enforce his alleged rights, if any.

As recited in the complaint, claimant herein did, in fact, attempt in a previous claim to obtain payment for these same services. That claim was filed April 29, 1937, and requested, an award for services to April 1, 1937, in the sum of One Thousand Eight Hundred Ninety ($1,890.00) Dollars. In the opinion filed October 13, 1938, this court felt impelled, because of the then recent decision by the Supreme Court in the case of People vs. Barrett, 365 Ill. 73, to reverse its previous attitude in regard to the rights of a claimant under the 'facts stated. In the case of Shell vs. State, 8 C. C. R. 235, decided November 13, 1934,' we held that under the authority of the People ex rel., etc., vs. Kelley, 134 Ill. App. 642, a Court Reporter’s term of office did not necessarily expire upon the death of the appointing judge, and tha,t such reporter continued in office until the time of the appointment of another Court Reporter by the successor to the deceased judge. We-further held that inasmuch as the Supreme Court had laid down a different construction in the case of People vs. Barrett, supra, a further award under the facts stated would be denied.

The rule of Res Adjudicata applies to the complaint now pending before the court, and while the amount for which claimant contends has been increased above the sum originally requested by him, the claim is in all respects the same-as that which was considered under Court of Claims No. 3092. The motion of the Attorney General is hereby allowed and the* claim dismissed.


text:
    (No. 2700
    Hayes Transfer & Storage Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    Kiger & Dilsaver, for claimant.

      John E. Cassidy, .Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, an Illinois Corporation, charges that on the 25th day of July, 1934, and at all times since that time it has been engaged in the transportation of goods by automobile truck for hire; that on July 25,1934, the respondent, the State of Illinois, owned and was maintaining by and through its agent, servants and employees, a certain public highway lying within the State of Illinois, known as U. S. Route No. 66, at and near Lexington, Illinois; that at said time and place the respondent through its agent, servants and employees was repairing the paved portion of said highway and as part of said repair work had removed a large section of the paved portion of said highway and a portion of the foundation thereof, creating a deep unpaved section across the main travelled portion of said highway, rendering' that part of the highway extremely dangerous and unsafe to one rightfully using the highway; that the State, through its agents, servants and employees had wholly failed and neglected to erect at or near the approach to said section of the highway so under repair, any warning signals, signs, barricades or other devices or keep a watchman there to warn persons of the danger; that on the said date, between the hours of eight and eight-thirty P. M. while the truck of the claimant was rightfully upon the highway travelling in a southerly direction from Joliet, Illinois, to Springfield, Illinois, and while the driver of the truck was in the exercise of due care and caution for the safety of the truck, he drove from the paved portion of the highway onto the part where the pavement had been removed, and the truck was damaged thereby.

A Bill of Particulars was filed, itemizing damages in the sum of $257.30.

The Attorney General made a motion to strike on the grounds that the damages were occasioned by the negligence and carelessness of the agents, servants and employees of respondent in the repair and maintenance of the said State highway; that the State was engaged in the' construction and maintenance of its roads, and was thereby acting in a governmental capacity, and because of that the State does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. The Attorney General argues that such has been the settled decision of this court for many years, and cited Morrissey vs. State, 2 C. C. R. 454; Minear vs. State Board of Agriculture, 259 Ill. 549.

The claimant contends that it is the duty of this court to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delidto which the State as a sovereign commonwealth should in equity and good conscience discharge and pay, and cities several decisions of this court, but does not cite any statutes.

At least two times in the past several years, an effort has been made to pass a statute which covers cases of this kind, but in each instance, such a statute failed to become the law.

Claimant argues that this court has jurisdiction to pass upon the merits of this case under Paragraph Four of the statute defining the powers of this court.

In the case of Crabtree vs. State of Illinois, 7 C. C. R., page 207, similar contentions were made. We therein held that an award will not be made on the grounds of equity and good conscience, and held that the provisions of Paragraph 4 of Section 6 of the Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits the jurisdiction of the court to claims under which the State would be liable in law or in equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.

The motion of the Attorney General, therefore, must be sustained and the cause dismissed.


text:
    (No. 3392
    Minnie Henry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case comes to this court on a stipulation of facts. Minnie Henry, widow of Abel Henry, filed her petition with the Clerk of this Court on June 27, 1939. It is agreed that on May 25, 1939, and for more than one year prior thereto, Abel Henry was in the employ of the respondent in the capacity of first helper to Richard Enoch, maintenance patrolman in the Division of Highways, Department of Public Works and Buildings; that said Division of Highways was on May 25, 1939, engaged in the construction, maintenance and repair of hard-surfaced roads; that they had no children under the age of sixteen years.

It also appears from the stipulation that on the date last mentioned both Richard Enoch and Abel Henry were engaged in the repair of a portion of the pavement on S. B. I. Route 128, about one and one-half miles north of Shelbyville, Illinois, where a blowup had occurred by reason of excessive expansion of the concrete due#to high temperature; that said Richard Enoch and Abel Henry had removed and excavated a portion of the pavement approximately four feet by six feet and six inches deep; that Enoch then drove to Shelbyville to obtain a sledge hammer and instructed his assistant, Abel Henry, to remain at the side of the hole in the pavement and warn traffic, but did not give him a red flag; that about 1:45 Abel Henry saw an automobile driven by L. H. Baker of Decatur, Illinois, approach the hole, and Abel Henry ran across the pavement and motioned the driver to pass around the east side of the hole; that the car was driven to the west side of the pavement and struck Henry.

It also appears from the stipulation that an ambulance was summoned and said Henry was taken to the Shelbyville Memorial Hospital, where he was pronounced dead.

It also appears that the State of Illinois paid the sum of $7.50 for medical and ambulance services.

It also appears that the decedent’s annual earnings for one year prior to May 25, 1939/ was the sum of $1,255.60.

It appears that the respondent had immediate notice of the injuries and death; that a demand was made for compensation within six months after May 25, 1939, and claim for compensation was filed shortly thereafter.

It also appears from the stipulation that it was agreed that this claim be submitted to the court on the claimant’s complaint, the report of the Division of Highways attached to the stipulation, and the stipulation, and that the claimant and respondent waived the filing of statements, briefs and arguments and requested that this claim be assigned to the court for its determination on the facts.

It was further stipulated and agreed that the deceased left him surviving the claimant, Minnie Henry, his widow, whom he was under legal obligation to support.

It is further agreed that if an award should be made it should be in the sum of $4,000.00, payable in installments and in conformity with the provisions of the Workmen’s Compensation Act.

Section 7 of the Workmen’s Compensation Act provides that the amount of compensation which shall be paid for an injury to the employee resulting in death shall be, if the employee leaves any widow, child or children whom he was under legal obligation to support at the time of his injury, a sum equal to four times the average annual earnings of the employee, but not less in any event«than two thousand five hundred dollars and not more in any. event than four thousand dollars.

In this case the employee had earned $1,255.60 for the year prior to the time he was killed. His compensation, therefore, was $24.14 per week.

This section also provides that any right to receive compensation hereunder shall be extinguished by the remarriage of a widow, if the deceased did not leave him surviving any child or children whom he was under legal obligations to support at the time of said injury. Section 7 further provides that all compensation, except for burial expenses provided in the Act in case an injury results in death, shall be paid as provided for in Section 8, at the same intervals at which the services or earnings of the employee were paid.

From the stipulation of facts in this case the court finds that Abel Henry died as the result of an injury which arose out of and in the course of his employment; that he left a widow, Minnie Henry, and that he was under a legal obligation to support her; that he left no children under sixteen years of age.

The court, therefore, makes an award payable to Minnie Henry in the sum of $4,000.00, payable at the rate of Twelve Dollars and Seven Cents ($12.07) per week from the time of her husband’s death.

Accrued compensation is as follows: From May 25, 1939, up to February 16, 1940, being 38 weeks, the sum of Four Hundred Fifty-eight Dollars and Fifty-six Cents ($458.56) now payable; the balance, i.e.: $3,541.34 to be paid at the rate of Twelve Dollars and Seven Cents ($12.07) per week.

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 July 3, 1937 (Sess. Laws 1937, p. 83), and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


author: Me. Jttstice Linsoott

text:
    (No. 2544
    Thomas Korando, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    J. Feed Gilsteb and William G. Jttebgens, for claimant.
    John E. Cassidy, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Jttstice Linsoott

delivered the opinion of the court:

Thomas Korando filed his complaint on November 26, 1934, alleging' that on the 30th day of June, 1933, he was employed by the State of Illinois as a guard of rank two at the Southern Illinois Penitentiary at Menard, Illinois; that his employment required him to work on the farm of the said penitentiary and to assist with the slaughtering and butchering of cattle and hogs; that on the 30th day of June, 1933, while engaged in the line of his employment, which required him to butcher a beef, and while preparing to stick the beef, • the animal threw its head to one side and the knife went into claimant’s left arm about four inches above the wrist joint on the inside of the arm where it severed the main artery cutting off the main blood supply to the arm and hand and where it cut off and severed the muscle in the arm; that because of the injury his hand and arm are numb and he has very little feeling in either his hand or arm; that he is unable to do any hard work or heavy lifting with his arm, and is unable to perform his daily duties around the farm that he was able to perform prior to said injury; that he has permanently lost the partial use of his hand and arm by reason of the injury.

Claimant further alleged that prior to the time of the injury he was earning $25.96 per week, and he claims $3,504.60 damages, which is for the permanent partial disability under which he was placed by reason of the injury.

The Attorney General made a motion to strike the claim for the reason that .no claim for compensation was made within six months after the accident, and that by reason of the limitations contained in Section 24 of the Workmen’s Compensation Act, this claim is barred.

If this court has any jurisdiction, it is under the Compensation Act. Approximately one year and five months elapsed from the time of the injury until the claim was filed. Section 24 of the Workmen’s Compensation Act provides that no proceedings for compensation under said Act shall be maintained unless claim for compensation has been made within six months after the accident, and unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation. No compensation was ever paid to claimant.

It has been repeatedly held by this court and the Supreme Court of Illinois that the filing of the claim within the year as above set forth is jurisdictional. More than a year having elapsed, this court has no jurisdiction to entertain the claim.

The motion of the Attorney General will, therefore, be sustained and the cause dismissed.


text:
    (No. 3413
    The St. Louis Fire and Marine Insurance Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 14, 1940.

    Arthur F. Gruenwald, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The St. Louis Fire and Marine Insurance Company, a Corporation of St. Louis, Missouri, seeks a refund for alleged errors made by it in the payment of Privilege Tax to the Insurance Department of Illinois for the years 1935-36-37-38. Claimant states that during each of those years it inadvertently failed to take its proper deductions from- its tax payments as provided in Section 409 of the Illinois. Insurance Code. The total alleged to have been paid to city fire departments, for which it should have taken credit in making its payment to the State, amounted to $1,052.97 for the four years in question.

The Attorney General has filed a motion to dismiss the claim. The tax in question for the years 1935 and 1936 were evidently assessed and paid under the provisions of Paragraphs 79-87, Ch. 73, Ill. Rev. Statutes of 1935; and the payments made for the years 1937 and 1938 were evidently made under Sections 409-412 of the Illinois Insurance Code of 1937, Ch. 73, Illinois Rev. Statutes, 1937. Both statutes required the payment of an annual Privilege Tax, assessed on the basis of the figures submitted by the respective companies in a report to be filed by the latter with the Director of Insurance not later than March of each year. A computation is made by the Director upon the figures appearing in said report and he then notifies the company of the amount, and that objections, if any, to such assessment will be heard by him or his deputy not later than the 25th day of June following, upon receipt of a request within fifteen days from the company. The Director was by statute given power to hear and determine objections to any assessment and thereupon to change or modify the same. During the four years in question claimant apparently paid the State of Illinois a total tax of $4,110.04, based upon the reports which it had filed, and of that amount it now seeks a refund of the sum of $1,052.97.

A stipulation has been filed by the parties showing photostatic copies of the notice given to claimant in each instance, stating the amount of Privilege Tax due for the current year; said notice containing specific instructions that objections, if any, to such assessment would be heard within the time stated therein. It is apparent from the allegations of the complaint and the record that no part of the taxes in question were paid under protest, and that the total thereof was paid from time to time voluntarily and were based entirely upon figures submitted by claimant to the Insurance Department. Claimant states in its complaint that “it inadvertently failed to take its proper deductions.” There is no allegation or suggestion that the taxes were not correctly computed and assessed on the basis of the information which claimant supplied in its reports. After having submitted those reports and after the Insurance Department had made the required computation thereon, claimant had a still further opportunity of correcting its error, for the notice which it received of the amount due as computed by the Insurance Department specifically notified claimant that any objections it might have to the assessment could be heard within the time limit specified by the statute.

As suggested in Respondent’s Statement, Brief and Argument, a similar situation was considered by this court in the case of Monarch Fire Insurance Company, 9 C. C. R. 538. As therein stated, “When it appears that a State Department has computed a tax on information furnished by the payer and has followed the directions of the Legislature in computing and collecting snch tax, and a claimant thereafter, because of an error in the records of his own office and in the information furnished by it to the State Department, thereafter claims a payment has been made in excess of the amount due, and such excess payment is in no way shown to be the fault of the State Department, the court is of the opinion that no refund is due. As a matter of public policy the various State officials and taxing bodies should be able to rely upon the information furnished by those applying for Franchise and Privilege Licenses, and where a tax or a fee is legally due and the applicant submits erroneous information, and thereafter voluntarily pays the fee or tax which has been correctly computed upon the information given, no sufficient authority of law exists, in the opinion of the court, to justify a refund of any part thereof. ’ ’

The motion to dismiss is allowed and the claim denied.


author: Mr. Chief Justice Hollerich

text:
    (No. 1871
    E. B. Dannenbarger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1940.

    E. D. George and Leigh M. Kagy, for claimant.
    John E. Cassidy, Attorney General; Glenn A.'Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion, of the court:

Claimant was appointed Investigator for the Department of Conservation of the respondent (game warden) on October 1, 1929, by Ralph F. Bradford, Director of such Department, and continued in such employment until June 1, 1931. He used his own automobile in the performance of his duties, and in addition to his regular salary of $125.00 per month was paid for his meals, as well as for the operating expenses of his car and the repairs thereon.

In his complaint herein he alleges that in addition to the foregoing, he is entitled to mileage at the rate of seven cents per mile for 22,000 miles covered by him during the period of his employment as aforesaid, and asks for an award in the amount of $1,540.00 therefor.

The record in the case consists of the evidence of claimant, together with the departmental report of Ralph F. Bradford, Director, under date of January 27, 1932, and the further report of Thomas J. Lynch, Acting Director, under date of November 22, 1937, which reports, under Rule 21 of this Court, are prima facie evidence of the facts set forth therein.

The only question involved in the case is the question as to whether, under the terms of his employment, claimant was entitled to mileage on his car.

Claimant states that at the time of his appointment he asked if he would have a State car, but was informed by the Director that the State did not have a car at that time; that he should use his own car and the State would take care of all expenses on it and allow him for his car.

The documentary evidence material to the question here involved consists of the following:

1. A pamphlet entitled “Guide for Inspectors and Investigators, State of Illinois, Department of Conservation.”

2. A pamphlet entitled “Revised Instructions to Travelers of State of Illinois.”

3. A letter dated October 1, 1929, addressed to all inspectors and investigators, signed by Ralph F. Bradford, Director, Department of Conservation.

Claimant states that he received all of the above documents at the time of his appointment, and therefore they must be construed together in order to arrive at the correct meaning and intent thereof.

The aforementioned guide for inspectors makes provision, under the heading of “Expense Accounts,” for gasoline, oil, repairs, etc., but there is nothing therein which could lead claimant to believe that he was to receive an allowance for mileage on his car.

The aforementioned “Revised Instructions to Travelers of State of Illinois” apparently applies to State appointees generally, and not merely to those in the Department of Conservation, and contains the following provision relative to special conveyance, to-wit:

“Travelers are expected to use railroad, interurban, or bus service whenever practicable, and shortest direct route. Whenever ether means of transportation are used a satisfactory written explanation must accompany the expense account. Whoever unnecessarily uses other means of travel will be allowed only the regular railroad fare.”
“An employee traveling in a private automobile to a place which can be conveniently reached by railroad, interurban, or bus service, will be allowed not in excess of the regular railroad, interurban, or bus rate, for the use of such automobile. When a place cannot be thus conveniently reached, a charge not exceeding 7 cents per mile will be allowed for use of such automobile.”

The foregoing paragraph is the provision upon which claimant bases his case.

The aforementioned letter from the Director, dated October 1,1929, contains the following provision, to-wit:

“The Department bears the actual expense of operating cars used in carrying on your work. Statements for gas and oil and storage must be shown on one set of yellow expense blanks; lodging, meals, railroad fare, etc., must be rendered on another set; and those for minor repairs which you have paid, must be shown on a separate set of like blanks. A receipt must be obtained for any item of $1.00 or over, and attached to your statements. In showing gas and oil purchases, the mileage should also be indicated. These accounts must be rendered for the calendar month and not for longer or shorter periods of time."

The departmental report of Ralph F. Bradford, Director of the Department of Conservation, directly contradicts claimant’s statement to the effect that he was to be paid for the use of the car in addition to the operation expenses thereof. The Director in such report further states:

“In addition, I would advise you that never at any time did I enter into any agreement with Dannenberger to approve bills for the use of his automobile for any amount or for any purpose, except as stated in a letter of instructions addressed to all inspectors and investigators, on the subject of “expense accounts” a copy of which I am sending to you.”

The departmental report of Acting Director Thomas J. Lynch contains, the following:

“At the time of Mr. Dannenberger's employment, investigators operating their own personal cars did so at the expense of this Department. They were reimbursed for the actual expense incurred in operating their cars, and not upon a mileage basis. The payment of a mileage rate has never been the practice of this Department, and is not now, all personally-owned cars being operated upon an actual expense basis. It will be readily seen that in supplying parts, tires, batteries, etc., the owner of the car would derive certain benefits therefrom which would serve to offset any overhead by reason of the operation of his car in State service. This is true in a more limited manner of gasoline, oil and other operating expenses.”

Claimant made monthly reports to the Department during the entire period of his employment, which reports showed the amount of his expenses for meals, gas and oil, repairs, etc., as well as. his mileage. He admits that he received payment for all operating expenses, and admits that he made no claim for'mileage at any time within a year from the date of his employment. He states that he made a verbal claim therefor several times during the year 1930, but admits that he made no written demand for such mileage until after the time he ceased to be in the employ of respondent.

Claimant’s car was a Dodge sedan purchased in August, 1929, for $500.00 cash and a trade-in allowance of $150.00 on an old car. He states that when he left the employ of respondent in 1931, the car was worn out, although it appears from the evidence that the sum of $162.36 was paid to him for repairs thereon by respondent during the period he was in such employ, and that such repairs included two tires and tubes in February, 1930, as well as two tires and tubes and a battery in May, 1931, just before he left the service of the State.

If the claimant was to be paid mileage at seven cents per mile, such mileage included all expenses for gas, oil, repairs, etc. The fact that during the entire period of his employment he was paid monthly for all operating expenses and repairs on his car indicates very strongly that it was not intended by the Department, and was not expected by the claimant, that he was to receive anything for the use of his car other than the operating expenses thereof and the repairs thereon.

Considering all of the evidence in the record, together with the inferences which may reasonably be drawn therefrom, we conclude that the claimant has failed to prove that there was any agreement or undertaking on the part of respondent to pay mileage on his car, in addition to the operating expenses and repairs thereof.

Counsel for claimant suggests that he is entitled to an award on the grounds of equity and good conscience. This court has repeatedly held that we have no authority to allow an award solely on the grounds of equity and good conscience; that our authority in that behalf is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable; and that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, 9 C. C. R. 389; Garbutt vs. State, No. 2246, decided September Term, 1937.

For the reasons above stated, award must be denied.

Award denied. Case dismissed.


text:
    (No. 3068
    The Alton Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1940.

    Silas H. Strawn and William L. Patton, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award under averments that on the morning of October 5, 1936 one Carroll Dick a truck driver in the employ of the Department of Public Works and Buildings, Division of Highways, while driving a dump truck engaged in hauling stone from the railroad car of the claimant at Broadwell in Logan County, Illinois, negligently drove the truck over and upon a certain signal battery box of claim- , ant located near the highway crossing over the Alton Railroad Company tracks, and thereby broke the battery box and apparatus contained therein, causing damage in the sum of $67.62.

The Attorney General has filed a motion to dismiss the claim, for the reason that same is predicated upon the negligent acts of an employee of respondent, for which no legal liability exists as against the State of Illinois.

This court has found it necessary to hold many times that the doctrine of respondeat superior does not apply to the State, and that the latter as a sovereign is not liable for damage to property caused by the negligence of its officers, agents or employees. (See Johnson vs. State, 8 C. C. R. 67 and Trompeter vs. State, 8 C. C. R. 141.).

It is unfortunate that claimants, in this type of case are left to seek their redress against the individual committing the tort, but the Court of Claims cannot consistently rule otherwise, and the motion to dismiss the claim is hereby allowed. Claim dismissed.


author: Mu. Chief Justice Hollebich

text:
    (No. 2933
    Elizabeth S. Bourland, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1940.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Tbevoe, Assistant Attorney General, for respondent.
   Mu. Chief Justice Hollebich

delivered the opinion of the court:

In her amended Complaint, claimant alleges in substance that on October 30th, 1934, she was appointed Home Visitor in the Department of Public Welfare, at a salary of $135.00 per month; that she performed all of the duties of her employment until August 29th, 1935, when she was discharged; that she was paid for her services the sum of $112.50 per month from November 20th, 1934 to and including June 30th, 1935; that there is now due and owing to her for her salary as aforesaid, the sum of $22.50 per month from October 30th, 1934 to and including June 30th, 1935; also $150.00 per month from June 30th, 1935 to August 30th, 1935; also the sum of $16.44 for expenses incurred while in such employ.

It appears from the evidence that claimant was appointed Home Visitor, Division of Visitation of Children, by Mr. A. L. Bowen, Director of the Department of Public Welfare, on November 20th, 1934; that such appointment was on a temporary permit, subject to the next Civil Service Examination; that she was asked to report for duty at once to Edna Zimmerman, Superintendent, and to notify the Director at once if she was unable to accept the position; that on November 22nd claimant wired Edna Zimmerman that she would arrive Friday morning for instruction; that on November 26th claimant was advised by Miss Zimmerman that the salary available to her office was $112.50 per month.

In a letter from Miss- Zimmerman to claimant, dated December 15th, 1934, it was stated,

“It is understood that you are to receive $112.50 per mo.”;

and in another letter from Miss Zimmerman to claimant, dated January 5th, 1935, claimant was notified that a payroll voucher in her favor had been approved at $112.50 beginning November 20th.

Shortly after her appointment, claimant filed her application for Civil Service Examination, and on February 7th, 1935 was advised that her application had been rejected on account of lack of college education or its equivalent. The Civil Service examination was approved May 21st, 1935, and when it came to the attention of the aforementioned Director that claimant had not taken such examination, to-wit, on or about the 18th day of June, 1935, he notified the Secretary of the Civil Service Commission that he was arranging to classify claimant as a maternity hospital inspector in the Division of Child Welfare, effective July 1st, and asked that her title be changed accordingly.

There are in evidence photostatic copies of payroll vouchers issued to claimant as follows: $153.75 covering salary and wages for the period from November 20th to December 30th, 1934; also six vouchers in the sum of $112.50 each, covering salary and wages for the months of January to June, 1935, both inclusive. .

On May 30th, 1935 Miss Zimmerman wrote to claimant as follows:

"The Civil Service Commission has advised that you did not take the examination for Home Visitor which was held March 14th, and, in future, it will not be "possible to approve salary for you under that classification.
“This matter will be taken up with Mr. Bowen, Director, to learn what may be worked out.”

Claimant states that she never received such letter, and her testimony to that effect is not impeached in any way.

Respondent takes the position that the aforementioned letter of May 30th constituted a discharge or release of the claimant, and that she is not entitled to be compensated for the services rendered by her after that date, although it is not denied that the claimant rendered services to August 29th as claimed, and it is admitted by the Director of the Department that there was no dissatisfaction with her services-, but that, on the contrary, they were quite satisfactory.

We are not convinced that the aforementioned letter of May 30th constituted a discharge or release of claimant, and respondent’s contention in that behalf is not consistent with the aforementioned letter from the Director of the Department to the Secretary of the Civil Service Commission dated June 18th, 1935, in which he stated that he was arranging to classify claimant as a maternity hospital inspector, and requested that her title be changed to’ cover such classification. As we view the matter, claimant’s classification was changed, but she remained in the employ of the respondent until subsequently discharged on August 29th, 1935.

There is no testimony in the record to substantiate claimant’s claim for expenses paid.

From certain conversations preliminary to her appointment, claimant apparently was under the impression that she was to receive a salary of $135.00 per month. However, no statement to that effect was made to her by the Director of the Department or anyone having authority to act for him in the matter, and the evidence clearly shows that within a week after her appointment, claimant was advised by her superior officer that the salary available to her office was $112.50 per month; also that she accepted and cashed monthly payroll vouchers computed on the basis of $112.50 per month, covering her salary from the date of her appointment to July 1st, 1935. We conclude, therefore, that as to such period she has been paid the full salary to which she is entitled.

As to the services rendered by claimant from July 1st, 1935 to August 29th, 1935, inclusive, there is no question but what the services were rendered as claimed, and that claimant has not been paid therefor. There was no dissatisfaction with her services and claimant had no knowledge that she was released from the service of the respondent until the 29th day of August, 1935.

As to such services, we conclude that she is entitled to be compensated therefor at the rate of $112.50 per month, and award is therefore entered in favor of the claimant for the sum of Two Hundred Twenty-five Dollars ($225.00).

Mr. Justice Linscott took no part in the consideration of this case.


author: Mr. Justice Tantis

text:
    (Nos. 2824 to 2831,—Inclusive, consolidated;
    Chicago Title & Trust Company, Nos. 2824, 2825, 2827, 2831, Barney S. Radcliffe, No. 2826, Harry D. Callahan, No. 2828, Harry Z. Munn and Anna Munn, No. 2829 and Edward F. Kolar and Josephine Kolar, No. 2830, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1940.

    Markman, Donovan & Sullivan and Frank S. Righeimer, for claimants.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

The eight above entitled claims were filed prior to the passage of Senate Bill 526 in 1939, amending the Court of Claims Act relative to claims for damage to real estate. After the passage of said Act amended claims were filed so as to bring the determination of said claims within the provisions of said Act. The Chicago Title & Trust Company as Trustee is claimant in four cases, and separate individuals are claimants in the other four. As the same cause of purported damage is involved in each case and the same Counsel represent all claimants, the cases have been consolidated by agreement of the parties.

Each of the claims is for damages alleged to have resulted to lots belonging to the several claimants from construction of a grade separation by the State of Illinois, of highways adjacent to said properties.

The lots involved are Nos. 1, 2, 3, 44, 45, 46, 47 and 48 in Block 12, and Lots 2, 3, 4, 5, 6 and 7 in Block 13, all in H. M. Connell Company Cumberland Subdivision in the City of Des-Plaines in Cook County, Illinois.

There are no buildings in either of the two blocks. There are three twenty-foot pavements separating various lots which give the appearance of street frontage, but which were platted as alleys. The closest business community is about a mile from the property. There is a filling station within sight, southeast of these lots at the corner of Broadway and Northwest Highway, and the Benjamin Electric Company is located about two blocks east of the oil station.

The Northwest Highway runs northwest and southeast along said property on the south. South of such highway is the right-of-way of the Chicago & Northwestern Railway. An abandoned and closed railroad station previously known as the Cumberland Station lies directly south of the lots in Block 12. This station was boarded up in March, 1937. Certain trains still stop for passengers and a bus line runs along the Northwest Highway. Two highways, i. e. Wolf Road and Golf Road, also known as State Route No. 58 join at the railroad and continue in a northeasterly direction between Blocks 12 and 13 of said Addition, and is now designated in that Block as Wolf-Golf Road. State Road adjoins Block 12 on the north and Broadway adjoins Block 13 on the east.

Prior to the construction of the grade separation, Lots 1, 47 and 48 in Block 12 and Lots 1, 2, 3 and 4 in Block 13 all had a frontage on what was then Wolf Road. It appears from the testimony of William Wallace, State Engineer, that

A plat of the several properties is herewith shown:

Wolf Eoad had never been developed or improved as a street from the intersection of State Eoad and Broadway to the railroad right-of-way, prior to the construction of the grade separation. The testimony shows there was quite a hill commencing at a point thirty feet southeast of the Northwest right-of-way line, and that there was a slope from Lot 47 in Block 12 toward Lot 4 in Block 13. This hill sloped to the northeast so that at Station 972 of the Engineer’s Plat at the extreme north end of all these properties, the old grade line was fairly level.

The testimony of the Engineer, Mr. Wallace, shows that prior to the building of the viaduct neither Wolf Eoad, Golf Eoad nor the combined Wolf-Golf Eoad was ever paved northward across the Northwestern Eailroad along the street between Blocks 12 and 13. Neither was the street open in a southwesterly direction across the Northwestern Eailroad on a grade with the railroad. Mr. Wallace was employed in securing the right-of-way for Wolf-Golf Eoad as now constituted south of the Northwestern Eailroad. Such right-of-way was never used for a grade crossing, but was secured so as to connect Eoute 58 and Wolf Eoad from a point south of the railroad with Eoute 58 and Wolf Eoad north of the railroad by a subway to be constructed underneath the railroad and underneath the Northwest Highway.

Prior to the construction of this subway travel across the railroad was at a point approximately one thousand feet southeast of where the subway was later built, at a grade crossing on Seegers Eoad. The latter road connected with Golf Eoad and Wolf Eoad several hundred feet west of the railroad and connected with Broadway east of the railroad. A person who desired to drive from any of the lots for which damages are sought to a point across and beyond the Northwestern tracks, prior to the construction of this subway, must have proceeded northeasterly from the lots to Broadway, thence southeasterly on Broadway and on Seegers Eoad across the Northwestern Eailroad, and thence to Eoute 58. Since the construction of the subway Seegers Eoad has been closed at the railroad right-of-way and traffic now uses the subway in question. There was some excavation work done along the Wolf-Golf Eoad in 1928-1929 prior to securing the right-of-way south of the Northwestern Eailroad. The pavement which now extends along Wolf-Golf Eoad between Blocks 12 and 13 of the Cornell Subdivision is a forty-foot pavement, one side of which lies close to the retaining wall that was erected along the frontage of Lots 47, 48 and 1 in Block 12. The right-of-way at that point is one hundred twenty (120) feet.

The right-of-way of Northwest Highway which runs along the southerly side of Lots 4, 5, 6 and 7 in Block 13 and of Lots 44, 45, 46 and 47 of Block 12 is also a forty-foot pavement, the right-of-way being eighty-three (83) feet. There is a sidewalk on the northern side of Northwest Highway adjacent to the lots abutting thereon, and there is a sidewalk on the northwest side of Wolf-Golf Road between the top of the retaining wall and Lots 47, 48 and 1 in Block 12. The top of the retaining wall follows approximately the ground line or elevation of those lots. There is also a sidewalk on the southerly side of State Road adjacent to Lots 1, 2 and 3 in Block 12. There is a concrete handrail about three feet high on top of the retaining wall and a stairway for pedestrians on the north side of Northwest Highway near the corner of Lot 47, which goes from the lot level down to a sidewalk on the lower level of the subway, thence under the Northwest Highway and the tracks.

At the time of the construction of the subway the only part of the paving of the Northwest Highway which was torn out, was that which was involved in the grade separation and which was replaced across Route 58. The change in elevation of the Northwest Highway, if any, was less than one foot, the change there being a widening job of such Northwest Highway. Pedestrians now going from any of the lots in question would have access from their properties along the sidewalk and the stairway in question to the stairway, and thence across to any desired point beyond the Chicago & Northwestern Railroad.

Claimants predicate their claim to damages on averment of the legal principle, that, “Any Change in the Grade of a Street or Highway by Which Egress or Ingress to Private Property is Obstructed Amounts to Damages to Private Property Within the Meaning of Section 13 of Article 2 of the Constitution of 1870,” and that “The Measure of such Dam- • ages to Abutting Property Paused by a Change in the Grade of a Highway is the Difference Between the Fair Cash Market Value of the Property Prior to the Construction of the Improvement and Unaffected by it, and its Fair Cash Market Value After the Construction of the Improvement as Affected by it.”

Respondent takes no issue with the two foregoing provisions of law, but contends that the damage which is recoverable by an owner of private property resulting from the construction of a public improvement, must not be such as is fanciful, speculative, imaginative or conjectural.

The testimony of claimants’ witnesses as to the amount of damage incurred is also attacked by respondent, the latter contending that opinions as to damages must be based on lawful elements of damages, and that testimony as to the amount of damages, where the. witnesses are shown to have taken into account improper elements in forming their opinions, should be disregarded.

The two principal witnesses called by claimants were G. W. Kunstman and Grover C. Elmore, both of Chicago. Mr. Kunstman has been a real estate appraiser for thirty-six years for municipalities, corporations, banks and 'individuals, and has been a witness in a number of grade separation cases in and about Chicago. While he testified to a detailed knowledge of the commercial and residential use to which the several lots were best adopted, his testimony disclosed some confusion of mind as to the conditions of the street upon which the lots fronted as such conditions existed prior to the construction of the viaduct. In his testimony he stated that Wolf Road which lies between Blocks 12 and 13 was being used by vehicle traffic prior to the building of the viaduct. That Wolf Road was opened across the railroad with a grade road and extended south of this property all the way to the southern limits of Cook County; that it crossed the Chicago & Northwestern Railroad with a grade crossing and had an old asphalt pavement. These elements were taken into account by him in fixing his valuation of the property prior to the construction of the improvement. Later in his testimony he recalled that Wolf Road was not open across the railroad tracks prior to the building of the viaduct in 1933, and the witness, could not then recall for sure whether old Wolf Road was paved between Blocks 12 and 13, as previously stated by him. He was however certain that' prior to the improvement-the street was all connected up with the Northwest Highway. At another point in his testimony Mr. Kunstman states that in fixing his valuation of the property as it existed prior to the construction work he based his conclusions on the consideration that Wolf Boad would be extended as a grade crossing; that if the plans called for a grade separation, his valuation of Lots 1, 2 and 3 in Block 12 before the improvement would have been $8,000.00, instead of $11,500.00. It becomes apparent that Mr. Kunstman’s valuation of the lots before the improvement was premised not entirely on the conditions as they then existed but upon a surmise as to what might in the future take place in the surrounding community. Mr. Kunstman also testified that the best use for Lots 4, 5, 6 and 7 in Block 13 was commercial before the improvement and was still commercial after the improvement, but that such commercial use was limited and restricted by the construction of the viaduct’ because the Northwest Highway grade had been raised three and one-half (3%) feet. From his testimony it appears, that the witness drew many of his assumptions as to the Highway plans from a 1933 highway map showing proposed road construction. The three to four foot change in grade of the Northwest Highway, he stated, decreased the commercial value of Lots 4, 5, 6 and 7 in Block 13 and Lots 45, 46 and 47 in Block 12. In determining his prior valuation for Lot 48 in Block 12, Mr. Kunstman testified (Tr. p. 84), 1 ‘The important thing I took into consideration in arriving at a valuation of this property was that this Wolf Boad was direct access to the Northwestern Bailroad; not only vehicles, but pedestrians on their way to the Station would have to pass this property.” The value of the several lots have been reduced, according to his testimony, by changing the properties from commercial to residential, due to various factors as testified to by him.

Mr. Grover C. Elmore of Chicago also testified for plaintiffs and stated he had been a real estate broker for twenty-nine years. In 1916 he sold a three hundred (300) acre subdivision west of DesPlaines, and in 1932 or 1933 at the request of the owners, he looked over the properties involved herein with a view to testifying as to their values. There is some confusion apparent in his testimony as to the time at which he determined his opinion of value of the properties before the construction of the improvement and after the construction of the improvement. He also testified that there was a dirt road grade crossing of Wolf Boad across the Chicago & Northwestern tracks in 1933, and that he based his opinion of pre-construction valuation of these properties upon that fact; that he also took into account- as one of the elements of decreased valuation of the several properties a. change of three to three and one-half feet in the elevation of the Northwest Highway; that such change in grade would influence the values' twenty-five (25) per cent. Mr. Elmore also stated he formed his conclusion of pre-construction and after-construction values all in 1933 after the work began. He was asked (Tr. p. 149) — (Q) “Now then the lower figure (after-construction value) when did you form your opinion as to what that would be worth after the work was completed?” He replied, (A) “Well, that was, I took into consideration at the time I made my appraisal, the difference of what the grade separation made between your two pieces of property, and it is very easy to do it all at one.time.” On the same page appears the previous answer of the witness that his opinion as to pre-construction-value was formed in 1933 shortly after the construction work had started.

We again emphasize at this point that the rule as to measure of damages, is the difference in the fair cash market value of the property prior to the construction of the improvement and unaffected by it, and its fair cash market value after the construction of the improvement and as affected by it.

Mr. Elmore further testified that in 1933 he and those with whom he conferred in regard to valuations did not have in mind an immediate demand for the use of these lots, but took into consideration the potential value, and the general trend of building; further, that there was no immediate prospect of any demand for building in 1933.

Mr. H. M. Cornell testified to having laid out the subdivision of the lots in question. Mr. Cornell is a real estate dealer residing in Park Ridge, Illinois with twenty-five ' years’ experience in the business. The lots in question that have been sold since the subdivision, were sold in 1928 shortly after the subdivision of the property. To use his words (Tr. 113), “It was a sort of a stock proposition — a group of people organized a syndicate on a unit basis, and after they subdivided the property they sold a part of the lots and some of the lots are still owned by the syndicate.” Mr. Cornell testified that there was no paved road along what is now designated as Wolf-Golf Road prior to the construction of the subway under the Northwest Highway and the Northwestern Railroad tracks. The paving of the subway was completed in 1936. Mr. Cornell further testified that prior to the time they laid out the Cumberland Subdivision it was possible to cross the Northwestern tracks onto Wolf Road, but that in 1930 the State made an excavation in the territory known as Wolf-Golf Road to use for film in fixing fifty feet of Golf Road east of the circle, i. e. east of these properties, which made it impossible to use Golf Road if it was usable before; that since 1930 Wolf-Golf Road was not used until after the subway construction.

Mr. B. F. Eidamiller of DesPlaines, a real estate dealer for fifteen years in that vicinity, was called as a witness by respondent. His testimony shows an intimate knowledge of local conditions and of the physical surroundings of these properties.

Mr. Donald T. Morrison of Chicago, testified to being a member of various real estate boards and engaged in the real estate business for twenty years, during which time he has made subdivisions of various tracts in and near DesPlaines. His evidence! discloses a detailed study of conditions and of the facts pertaining to the properties in question. In his testimony we find that Wolf-Golf Road, prior to the construction of the subway was a dedicated street lying between Blocks 12 and 13, but was not used by traffic; that it was grown up in weeds and that as it- approached the Northwest Highway at the south end of these properties, the street sloped up to the highway some five or six feet, so that no matter what had happened to Wolf Road they either had to grade it up or grade it down in order to cross the Northwest Highway and the Chicago and Northwestern Railway.

There is much evidence in the record by the various witnesses as to the best use to which these various lots were adapted prior to and after the improvement of Wolf-Golf Road; also as to the grouping of various lots together for sale purposes and their accessibility in such case from other streets. The following chart shows the amount claimed as damages in the several cases, and the opinion of the several witnesses as to value and damage of the respective lots in question:

DAMAGES CLAIMED.

CLAIMANTS’ EVIDENCE.

RESPONDENT’S EVIDENCE.

An inspection of the attached plat discloses that Lots 2 and 3 and 44, 45 and 46 in Block 12, and Lots 5, 6 and 7 in Block 13 never had any frontage on Wolf Boad or Golf Boad, and have not lost any direct ingress or egress rights by reason of the constrnction of the subway. The damage to those lots is only indirect by virtue of their use -with other property.

The members of the Court of Claims have on two occasions inspected the properties and surroundings involved herein, in order to better understand the evidence of the witnesses as it appears in the record, and to gain at first hand a view of the premises in question.

The construction by the State of Illinois of this forty-•foot pavement and subway has changed what was previously a dead-end street, untraveled and grown up in weeds, to a modern arterial highway. The loss of ingress and egress to the lots in question appears negligible, except to Lot 48 in Block 12 which has no direct street outlet. However, it, like several others, has access to paved roadways within the subdivision, and from there can now travel over the new pavement of Wolf-Golf Road to all points south.

Witnesses for claimants were apparently mistaken in believing that the grade of Northwest Highway was raised three or four feet in the course of this improvement as the evidence shows there was a change of less than one foot in such grade. In-so-far as this element affected the witnesses’ judgment, same is disregarded.

From all the evidence and the conclusions reached from our inspection we must conclude that certain elements were taken into account by the witnesses Kunstman and Elmore in arriving at their opinions of damages which are not supported by the evidence.

The law in this case is plain. In the case of C. & E. I. Ry. Co. vs. Loeb, 118 Ill. 203, the court said:

“Before adoption of the Constitution of 1870 where there was land taken for public use there was provision for compensation. But where there was other disconnected land not touched by the improvement, but merely damaged, as apparent in this case, no compensation was provided. To meet this want, the clause of the Constitution restrictive of the exercise of the power of eminent domain, provides that private property shall not be taken or damaged for public use without just compensation.”

The question as to the right of a property-owner for damages to property damaged but not taken as the result of a public improvement, was thoroughly considered by this court in the consolidated cases of Albert J. Moore, et al., vs. State, 8 C. C. R. 686, and the proper elements of damages were there considered.

The law is well settled as to the damages recoverable in cases where private property is damaged but not taken. In the case of Department of Public Works vs. Caldwell, 301 Ill. 42 and in the case of Department of Public Works vs. McBridge, 338 Ill. 347, and in numerous other cases, our Supreme Court has held that the true measure of damages for land not taken is the difference between the fair cash value of the property unaffected by the improvement and its fair cash market value as affected by it. This court has applied the rule thus stated in the case of Grassle vs. State of Illinois 8 C. C. R. 150 and in the combined cases of Sadie Stern, et al. vs. State of Illinois, 8 C. C. R. 251-265.

Opinions as to damages must be based on lawful elements of damage. Super Power vs. Sommers, 352 Ill. 610 (618).

The damage which is recoverable by an owner of property resulting from the construction of a public improvement must not be such as is fanciful, speculative, imaginative or conjectural.

Upon consideration of all the evidence in the record the court finds: That the fair cash market value of claimant’s property has been depreciated as the result of the construction of the subway in question in the following amounts:

An award is therefore hereby entered in favor of the respective claimants in the several consolidated eases as follows:

Claimant ^Case^ Amount Chicago Title & Trust Co, etc. (Lots 1, 2, 3 in Block 12).... 2824 $1,250.00 Chicago Title & Trust Co, etc. (Lots 4, 5, 6, 7„ Block 13)................ 2825 1,915.50 Barney S. Radcliffe (Lots 47 & 46, Block 12)...................................... 2826 1,568.25 Chicago Title & Trust Co, etc. (Lot 48, Block 12)...... 2827 2,000.00 Harry D. Callahan (Lot 45, Block 12).................................................. 2828 250.00 Harry Z. Munn & Anna Munn, wife (Lot 44, Block 12).................... 2829 250.00 Edward F. Kolar & Josephine Kolar (Lot 3, Block 13)...................... 2830 750.00 Chicago Title & Trust Co, etc. (Lot 2, Block 13).... 2831 500.00

It is further ordered that if a sufficient amount of money is available from funds heretofore appropriated by the Legislature for the payment of such awards and the costs of these proceedings, over and above any and all amounts heretofore ordered paid therefrom, the Director of Public Works and Buildings is in such case directed to issue vouchers in payment of the respective awards hereinabove made and costs as taxed and certified by the Clerk herein, and shall deliver the same to the Director of Finance, and the latter is hereby in such case directed to approve such vouchers and to certify the same to the Auditor of Public Accounts of the State of Illinois, and the latter in such case is directed to issue a warrant or warrants in accordance with such vouchers against the appropriation made for that purpose, and said Auditor shall thereupon deliver said warrants to the Treasurer of the State of Illinois, who is in such case directed to counter-sign and pay such warrant or warrants, all as provided by Section 7 of “An Act in Relation to Compensation For Private Property Damaged For Public Use By the Department of Public Works and Buildings in the Construction or Improvement of Public Highways, approved July 11, 1939.” (Ill. Rev. Statutes, 1939, Ch. 47, Par. 24.)

Unless a petition for rehearing is filed within 30 days from this 13th day of March, A. D. 1940, this order shall be and become final upon the expiration of the said period of 30 days.


text:
    (No. 3410
    Oak Park Hospital, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 13, 1940.

    Morton C. Elden, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks an award in the amount of Ten Dollars ($10.00) for X-ray services furnished to an injured employee of the respondent on May 23d, 1937. The services in, question were necessary and were furnished at the request of the attending physician who was acting pursuant to proper authorization by the respondent. The bill for such services was presented to respondent on September 20th, 1937, but same was not vouchered for payment for the reason that although there were ample funds in the appropriation at the time the services were rendered, such appropriation had lapsed at the time the statement was presented. The reasonableness of the claim is not questioned.

This court has repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, without any fault or neglect on the part of the claimant, an award for the reasonable value of such materials or supplies will be made, where, at the time the expenses were incurred there were sufficient funds remaining unexpended in the appropriation to pay for the same. Rock Island Sand & Gravel Co. vs. State, 8 C. C. R. 165; Indian Motorcycle Co. vs. State, 9 C. C. R. 526; Metropolitan Electrical Supply Co. vs. State, No. 3270, decided at the September Term, 1938, of this court.

This case comes within the rule above set forth, and award is therefore entered in favor of the claimant for the sum of Ten Dollars ($10.00).