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    James C. Davis, Director General of Railroads and Agent of the United States Under the Transportation Act of 1920 v. State of Illinois.

      Opinion filed March 8, 1923.

    Freight Charges — liability of State. Upon the facts proven and admitted by the State the Court enters an award in favor of claimant for additional freight charges due and unpaid.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by James G. Davis, Director General of Railroads and agent for the United States under the Transportation Act of 1920, setting forth that the State of Illinois is indebted to the Chicago, Milwaukee and St. Paul Railroad for freight charges.

It appears that shipments of coal were made from Herrin and Lincoln, Illinois, to Dunning, Illinois, to be used at the Chicago State Hospital at Dunning, a State institution controlled and operated by the State of Illinois, in April and May, 1918, as shown by the amended declaration filed in this case; that at the time said shipments were made from Lincoln and delivered to the defendant, herein, the plaintiff collected and the defendant paid, on a basis of $1.01 per net ton and $1.00 per car, whereas it is alleged, the correct rate which the plaintiff should have collected and the defendant should have paid $1.00 per net ton to Chicago and an additional sum of 18c per ton from Chicago to Dunning, Illinois; that at the time the shipments from Herrin were made the plaintiff collected and the defendant paid freight charges on the basis of $1.15 per net ton, whereas it is alleged, the correct rate which plaintiff should have collected and defendant should have paid was $1.27 per net ton; that the additional freight charges due from the defendant to the plaintiff amounts to the sum of $152.61.

The Attorney General admits the receipt of the cars of coal mentioned in the attached bill, waives proof of the claim, and makes no objection to an award in the said sum of $152.61.

In consideration of the statement of the claimant and the statement of the Attorney General, the sum of $152.61, without interest is allowed.


source: Caselaw Access Project

license: Public Domain

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    Arthur Mares, by Mrs. L. Mares, His Mother and Next Friend v. State of Illinois.

      Opinion filed March 8, 1923.

    Non-Liability oi' State — Board of Education of Chicago not an agency of the State. The Board of Education of the City of Chicago is not an agency of the State, and the State is not liable for an injury sustained by a child, or pupil, on the play-ground owned, controlled and managed by the Board of Education.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed for Arthur Mares by Mrs. L. Mares, his mother and next friend. It appears from the declaration filed that on or about the 14th day of April A. D., 1920, there was a certain slide located in the playground of what is commonly known as the Corlcey School located at 25tli Street and ICildare Avenue in the City of Chi-ca,go, Cook County, Illinois. And it further alleged that said slide was owned by the Board of Education of the City of Chicago as an agency of the State of Illinois. It appears from said declaration that the said slide was in bad and unsafe condition so that parts of said slide were broken and splintered and that complainant while sliding, a splinter of the slide ran into one of -his limbs and by the result of such accident the boy suffered great pain and inconvenience, and it is further alleged that two hundred dollars ($200.00) was expended in the endeavor to correct said injury. The State of Illinois, defendant, comes and defends said matter as above set forth and contends that said claim was not sufficient in law for the claimant to maintain his action.

It is the opinion of this Court that this is a claim in which there is no legal liability on the part of the State and that the doctrine of respondeat superior is not applicable to the State, and that in considering the claim the Court is of the opinion that it is not within the rules in which equity and social justice could be invoked. If there is any possible construction of the statutes or of the Constitution of the State wherein it could be considered that the Board of Education is or was in any way the agent of the State, that such agency if any could be construed, would be very remote and of such a nature as to make it unjust to place a burden on the taxpayers of the State in general.

It is therefore the opinion of the Court that the demurrer filed on the part of the State, should be sustained and the Court further finds that the claimant has no claim against the defendant that could be based upon equity or social justice.

It is therefore ordered by the Court that said claim be dismissed.


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    Claude Harve Turner v. State of Illinois.

      Opinion filed March 8, 1923.

    Social Justice and Equity — when award will he made. Claimant an attendant at the Illinois State Hospital, while in the discharge of Ms duty contracted the disease of small-pox while attending an inmate of the institution, and as a result of the disease his eyes became infected which later resulted in the loss of his right eye and probable loss of the left eye. Held, that while the State is not legally liable to claimant as an act of social justice and equity he is entitled to an award.
    Edward J. Brundage, Attorney General, for State.
   The evidence in this ease discloses that the claimant, Claude Harve Turner, who resides at 436 S. Irving Avenue, Chicago, Illinois, was employed at the Chicago State Hospital at Dunning, Illinois, for the past three years up to and including December 26th, 1921; that claimant was working in said hospital as a nurse and that said hospital is a State Hospital for the Insane; that his duties were that of an attendant at that institution taking care of insane patients, giving them medicine under direction of the doctors, keeping them in bed and otherwise administering to them; that a patient by the name of Walter Benninger became a patient in the claimant’s ward on the 23rd day of December, 1921, that said patient had smallpox; that on December 24th the claimant assisted in the care of said patient, holding him while a Miss Hering tried to take his temperature and get a mouth and throat culture; that because of the patients violence neither Miss Hering or claimant were able to get either mouth or throat culture; that claimant received orders from the attending physician to keep the patient in bed until further orders; that eleven o’clock a. m. said patient was removed to the back end of the ward, the forty bed ward as claimant calls it, and that claimant’s orders were to keep him in bed and keep him isolated from the other patients; that claimant was obliged to stay near the patient at all times; that in taking care of the patient the claimant was obliged to come in close contact with said patient, placing his arms around the patient’s shoulders and neck, holding him upright while he was taking patient’s temperature; that the attending physician told claimant that there was no danger in his doing so; that claimant was about seven and a half hours in constant attendance of said patient; that claimant was ordered to take the patient to the second floor of the hospital, known as the isolation floor and that he was unable to do so without help as the patient was a man weighing about 170 pounds and claimant could not handle him without assistance and that claimant asked for assistance; that the Supervisor informed him she could not furnish assistance, that a Miss ICoelling was Supervisor of this ward; that claimant finally took the patient to the second flood without any assistance, but that it took some time to take patient down.

The evidence further show's that claimant had a clay off oil Monday, December 25th and returned to work at 3 o’clock p. m., said Benninger was taken out of the hospital at 8 o’clock of that day and taken to the Isolation Hospital, 3411 South Hamlin Avenue, Chicago, Illinois, where the smallpox patients are taken; that on December 26th, 1921, the claimant wras vaccinated by Dr. Lenchen and the vaccination pronounced successful by Drs. Foley and Coffey; that on January 3rd, 1922, the claimant was taken with chills and fever and a nausea while on duty at said Dunning Hospital; that on January 6th, 1922, the claimant noticed an eruption on his body and Dr. Archibald L. Hoyne was called in to see patient and diagnosed the case as smallpox; that claimant was sent to the Isolation Hospital at 3411 Hamlin Avenue, Chicago, Ill., and was treated by Dr. Hoyne, claimant being confined in said hospital for the period of six weeks and two days; that claimant was irrational for two weeks; that claimant suffered from eruptions on his body changing into pustules, which became confluent and one perforated the anterior chamber of his right eye and twn under left eye lid; that as result of the pustule penetrating the anterior chamber of the right eye the sight wras entirely destroyed; that the condition of claimant’s health has been very bad and that he is not able to do anything; that claimant has consulted eminent eye specialists of Chicago and has been informed by them that his right eye will probably have to be removed; that there is no chance of improvement of the vision in that eye, the vision is reduced to a mere preception of light, due to ap. extensive scar, and that there is no prospect of any improvement in claimant’s vision; that these specialists further informed claimant, that, if the right eye should become inflamed it may be that the left eye will also have to be removed.

The evidence further shows that claimant has not been employed at any time since contracting said disease and that he has not been able to do anything since that time; that claimant’s health is very poor and that at the time of the taking of this evidence, on August 31st, 1922, he has been unable to do work of any kind; that he has been receiving a salary of $55.00 per month from the State of Illinois since his illness; that said salary amounts to the sum of $330.00.

The evidence of the attending physician is substantially the same as the claimant’s regarding the disease and its treatment, cause and effect.

The State of Illinois, being represented by the Attorney General, has demurred to the declaration, which as a matter of lawr will be sustained. However, the Attorney General interposes no objection to a recommendation, pursuant to the policy'of the Court in this class of cases in such amount as equity and social justice require.

Considering the sufferings of the claimant, the result of the loathsome disease and the condition in which he now is and will he for the remainder of his life, the Court as a matter of equity and social justice find that the claimant is entitled to an award. We therefore recommend the award at the sum of three thousand seven hundred fifty ($3,750.00) dollars in full settlement of all claims against the State of Illinois.


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    David S. Myers, et al, Executors, Etc. v. State of Illinois.

      Opinion filed March 8, 1923.

      Rext — when lessor entitled, to~ a reasonable rental. Where a lease of premises is made for a certain term and the amount of rent to be paid by the lessee is not stated or fixed by the terms of the lease, the lessor is entitled to recover a reasonable rental for the premises for the term.
    Edward J. Brundage, Attorney General, for State.
   David S. Myers, Anne B. Lord, Charles E. Myers, Achalis M. Legg and William Brunskill, executors and trustees of the last will and testament of Harriet Humiston, deceased, brought this suit against the State of Illinois for the recovery of $1,200.00, alleged to be due them as such executors, for rents alleged to be due on certain real estate belonging to deceased in her lifétime.

The only evidence offered is by the claimants, and same shows death of deceased, the lease by deceased to the State, the rental value of same, and amount due claimants, all of which is admitted by the State, except as to the rental value of the land.

The evidence discloses that in her lifetime the decedent, Harriet Humiston, leased to the defendant, State of Illinois, for the use of the Illinois State Beformatory at Pontiac, twenty (20) acres of land near said City of Pontiac, the same to have and to hold for the use and benefit of the said Illinois State Beformatory for a period of four years, from March, 1918, to March, 1922, no price or rental value being mentioned in such lease.

Decedent died October 20th, 1920, and claimants duly qualified as executors in said estate.

The weight of the evidence shows that there are four years rent due claimants and that $1,200.00 is a reasonable rental value of same for the entire period. In fact the evidence tends to show really a larger amount due; but the suit is for only $1,200.00. There has been no appropriation made at any time out of which such rents might have been paid, or any part of it. Hence the necessity for this claim. The Attorney General concedes that the claim for amount sued for appears to be, from the evidence, reasonable and interposes no objections to an allowance of the samg.

The Court therefore makes an award for claimants herein, for the sum of twelve hundred dollars ($1,200.00).


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    Big Four Wilmington Coal Co. v. State of Illinois.

      Opinion filed March 8, 1923.

    Franchise Tax — mistake of fact. When refund will he made. Where a corporation reduces its capital stock and files a certificate of such reduction in the office of the Secretary of State, and in the office of the recorder of deeds of the proper county, and afterwards through a mistake pays its franchise tax upon its original capitalization, it is entitled to a refund of the amount of the tax over-paid.
    Edward J. Brundage, Attorney General, for State.
   The declaration in this case shows that the Big Four Wilmington Coal Company is a corporation organized under and by virtue of the laws of the State of Illinois; that it was incorporated for the sum of $650,000 consisting of 6,500 shares of par value of $100.00 each; that for a number of years prior to the 1st day of March, 1922, it had not carried on any active business, but was engaged in liquidating its assets and that on the 1st day of March, 1922, such assets did not exceed in value $13,000; that at a meeting of the stockholders of said corporation held on March 6th, 1922, the capital stock of said corporation was reduced from $650,000.00 to $13,000.00, consisting of 130 shares of the par value of $100.00 each; that the certificate of such reduction of said capital stock was duly filed in the office of the Secretary of State of Illinois and also in the office of the Recorder of Deeds of Cook County, Illinois, oh the 24th day of May, 1922; that thereupon all shares of stock issued by your claimant were surrendered to the Secretary of this claimant and in lieu thereof shares of stock were issued to the stockholders in proportion of the original capitalization of said company to said reduced capital stock; that a franchise tax was paid for the year beginning July 1, 1922, amounting to the sum of $325.00.

It is further shown by said claimant that this amount was paid by said corporation to the Secretary of State through a mistake and that the amount that should have been paid was $10.00, thus making a total of $315.00 due the claimant from the State of Illinois.

Contained in the claimant’s declaration is a copy of a letter from the Secretary of State of Illinois to said claimant, stating that the claimant appears to have paid to the State of Illinois $315.00 more franchise tax than was due from it and advising said claimant to file its bill with the Court of Claims for said amount.

The Attorney General of this State filed a statement setting forth, substantially, the above facts, interposing no objections to the payment of this claim and consenting to an award.

We believe that the sum of $315.00 was paid by a mutual mistake of facts and that as a matter of law the claimant should be reimbursed.

We therefore award said claimant the sum of $315.00 without interest.


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    Elmer G. Holland v. State of Illinois.

      Opinion filed March 8, 1923.

    Governmental Function — State highways. The State in owning, operating, controlling and patrolling its State highways, exercises a governmental function and is not liable for injuries sustained by its employees while in the discharge of their duty.
    Social Justice and Equity — when award will he made. Where claimant is engaged in a hazardous employment, the Court will as a matter of social justice and equity allow an award, although there be no legal liability against the State.
    Edward J. Brundage, Attorney General, for State.
   This is a claim presented by Elmer G. Holland, claimant, for personal injuries arising out of his employment as a State motorcycle police patrolman.

We find from the evidence in this case that, said claimant, Elmer G. Holland lives at Wood River in the State of Illinois, that on the 22nd day of October, 1922, he was in the. employment of the State of Illinois at State patrolman; that he was employed by the Engineer of Maintenance of the State of Illinois, patrolling the highways from Granite City to Carlinville and from East St. Louis to Effingham and from Wood River to St. Louis; that on the 22nd day of October, 1922, said claimant was patrolling the roads, attending to the duties assigned to him; that he was riding a motorcycle furnished by the State for patroling purposes; that he ivas following a Ford car, said car going at thecrate of 42 miles per hour, as checked by the claimant and a Mr. Waters, also a motorcycle policeman; that said Ford car was exceeding the speed limit under the Statute of this State; that the occupants of said car were apparently intoxicated and the car was swerving from one side of the road to the other at a place in the highway where the traffic was heavy and danger great to the occupants of the passing cars; the claimant and Waters speeded up their machines and endeavored to overtake the occupants about 400 or 500 yards, the driver of the Ford discovered that they were being pursued, threw on his brakes and stopped his car suddenly, the result being that Holland, who was going at a high rate of speed in order to overtake the Ford, ran into the rear end of said Ford and received injuries that required considerable medical attention, rendering said Holland unconscious and necessitated his being taken to St. Elizalieth’s Hospital at Granite City.

The claimant further testifies that he had been engaged in this line of work for about 2 months, prior to the accident; that he received compensation for his services from the State for the time he was employed ami that lie has not since been employed by the State; that he has only worked until 11 days from the date of the accident up until the 8th day of February, the day his testimony was taken; that he did work for a Mr. Beilly, the bus man, driving the bus; that he had tried to ride a motorcycle and found that he got sore and felt bad also that he had tried to do carpenter work and found that it hurt him.

Dr. William B. Howard testified that he lived at Wood River, is engaged in the practice of medicine and surgery and a graduate of Barnes Medical College; that lie attended Elmer G. Holland, the claimant here, on October 22nd when he was first called that he found said claimant had 2 or 3 fractured ribs, wasn’t sure whether it was 2 or 3, that he bandaged them up, a laceration of the left elbow, one laceration to the hone down to the joint and that his left wrist seemed to be hurt, the ligaments were sprained and pretty badly bruised up, and that he had some lacerations on the hand; that the laceration did not get into the joint of the elbow, just got to the bone and that the bone was not injured; that he doctored the claimant for the injury to his broken ribs about 5 or G weeks,” saw him off and on” as the doctor says; that the injury to claimant’s wrist would interfere somewhat with claimant’s work. From the doctor’s testimony the injury to claimant’s ribs, hands and other minor injuries would not bother him to any great extent, that in time nature would, no doubt, take care of those injuries so that there would be no ill effect for any great length of time.

Dr. Howard further testifying says that he has not been paid for his services.

The Attorney General files a demurrer to the declaration which as a matter of law will be sustained. He also sets out in the demurrer that the doctrine of respondeat superior is not applicable to the State; that in the absence of Statute, the State is not liable for the torts of its officers, agents, inmates or enrployees; that the State in owning, controlling, operating and patrolling the State highways of this State exercises a governmental function and is not liable for injuries to its agents, servants or employees; that the statement of claim shows that the injuries complained of were solely the result of the tort or torts of one who was not an employee, agent or servant of the State of Illinois.

That the Attorney General is right in his contention is not disputed, as these questions have been so decided in numerous cases by this Court.

However, the Court believes that the claimant engaged in a line of hazardous work, that of motorcycle patrolman; that in this line of work the claimant was dealing with a class of persons who drive recklessly and in utter disregard of the lives of other persons; that in this particular case he was pursuing, acbording to the evidence, men of questionable character, men who were not only intoxicated, but who own a saloon and gambling house, so the witness says, at what is known as "Whiskey Shoot in East St. Louis. Claimant considered them dangerous men and from the evidence we believe that they were exceedingly dangerous men with a disregard for, not only their own lives but for others. It is becoming altogether too common for men of this caliber to "run down" and injure the motorcycle patrolmen of the State. We believe that the claimant was acting in the line of his duty, trying not only to arrest these law breakers, but to protect the lives of others out on this road.

We believe that, while the injuries sustained by the claimant are not of a permanent nature, still he was at considerable expense and some loss of time; that as a matter of social justice; equity and good conscience an award should be made in this case.

We, therefore, recommend an award of the sum of three hundred ($300.00) dollars to said claimant.


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    Eslie M. Castle, et al., Board of Education, et al. v. State of Illinois.

      Opinion filed March 8, 1923.

    Non-Liability of State — when State is not liable. The State is not liable for a tort committed by an inmate of its institutions.
    Social Justice -and Equity Rule — when not followed. In calling into being the rules of equity and social justice the Court at least should know that the State is actually responsible either by its officers, agents, employees or charges.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by the Board of Education of School District No. 98 of Madison County, Illinois, against the State of Illinois, by reason of a school building being destroyed by fire on or about June 19th, 1922. It was allaged that the circumstances attending the same would show that certain inmates of the Alton State Hospital at Alton, were responsible for said fire. The Attorney General in behalf of the State, demurred to this claim and it is the opinion of the Court that there is no legal liability on the part of the State upon a claim of this character, and the Court in further considering the matter, finds that there is no evidence upon which a Court could base a judgment. It would hardly be good logic in law of equity to rule a liability upon any person, municipality or State where there would be no specific evidence or other satisfactory evidence upon which a Court could concluded that the inmates of this institution started the fire in question. In the calling into being the rules of equity and social justice the Court at least should know that the State is actually responsible either by its officers, agents, employees or charges.

It is therefore the opinion of this Court that there is no legal liability and that there is no evidence before the Court wherein .the Court would recommend allowance against the State of Illinois. Therefore no allowance is recommended and the demurrer of the State is hereby sustained.


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    Ralph A. Teater v. State or Illinois.

      Opinion filed March, 8, 1923.

    Governmental Function — State not liable. Division of Highways. The State in exercising its governmental functions is not liable for the torts of its agents, servants or employees.
    Social Justice and Equity — when award mil be made. The Court as a matter of social justice and equity enters an award in favor of claimant.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Ralph A. Teater, of the City of Springfield, Illinois, setting forth that on and before October 17th, 1921, the claimant was in the employ of the State of Illinois, as a mechanic’s helper in the Bureau of Machinery of the Division of Highways, in the Department of Public Works and Buildings; that while so employed, he was receiving as his compensation or salary, wages at the rate of fifty cents ($0.50) per hour, during all the time so employed.

That on the 17th of October, 1921, and while the claimant was so employed, there was a certain automobile then and there in the possession, ownership and control of the said Bureau of Machinery in the Division of Highways in the said Department of Public Works of said State of Illinois, and which was located on an elevated platform at the State Fair Grounds, in the City of Springfield, Illinois; that claimant at the time and place aforesaid was directed by certain of his superior officers then and there being likewise in the employ of the said State of Illinois, to assist in removing the said automobile from said platform and to that end, it became and was the duty of the claimant and he was so directed by his superior officers to get into the said automobile in order that he might steer the same by means of the steering wheel thereof, while the same was being towed by means of a certain rope or ropes attached to a certain motor truck or vehicle and which motor truck or vehicle was then and there under the control and management and was being driven by a fellow employee of said defendant; that thereupon and pursuant to the order and direction, and while engaged in the performance of his duty and employment as aforesaid, the claimant did get into the automobile and did attempt to steer the same by means of the steering-wheel thereof, while the said automobile was being towed in the manner aforesaid; that the said automobile being thus towed and in which the claimant was riding was defective and insecure, in that the said steering-wheel was not securely fastened to the post to which it was attached and thereby and by reason thereof the claimant was unable to steer the same'; that the claimant had no previous knowledge oí this defect and although the claimant made every possible effort-to steer the said automobile and to prevent any accident to himself and while in the exercise of all due care and caution for his own safety and although the claimant repeatedly called to the driver of the auto truck, which was towing said automobile, to stop and thereby endeavored to prevent the accident yet the driver of the auto truck negligently failed and neglected to stop same, and continued to proceed therewith, and to pull and tow the said automobile in which the claimant was then riding and which he was attempting to steer or guide, and by reason of the negligence of the said driver of said auto truck and his failure to heed the warning of the claimant herein, and by reason and on account of the defective condition of the said automobile upon which the claimant was riding, the said automobile ran, toppled and fell over the side of said platform to and upon the ground, and the claimant was unable to extricate himself therefrom in time to avoid serious injury to himself; that the claimant was seriously and as he believes, permanently injured about his back, limbs and body and was thereby less able to earn his living in the future and by reason thereof he was required and did lay out expenditures and become liable for divers sums of money for doctor bills, surgical treatment and medicine, and was further thereby deprived of divers gains, profits and wages, which he would have otherwise made and would be able to earn in the future. He asks damages in the sum of $5,000.00.

The evidence shows that claimant is a married man living at Springfield, Illinois, with his wife and two small children, that his age is 28> years, that he was employed at the Illinois State Fair Grounds by the Highway Department of this State at the time of his injury; that during the time he was so employed he was preparing himself, by study, for a registered pharmacist and that he had served liis apprenticeship as a drug clerk. Claimant further testifies that he was receiving as his wages from the State of Illinois about $24.00 per week and that he is now employed at Freidman’s Drug Store in the city of Springfield at a salary of $30.00 per week; that prior to his injury he was employed at different times during the season as a baseball player and also a basketball player for which he received approximately $500.00 a year in addition to his regular salary or wages; that his physical condition is such at the present time, owing to the injury he received, that he is unable to engage in any athletic sports and that he is deprived of earning the extra salary; that he incurred hospital and doctor bills during his illness amounting to a considerable sum, which are unpaid and for which he is liable.

IVe are unable to agree with counsel for plaintiff relative to the negligence of the driver of the truck which was towing the defective car. It is stated in the declaration that claimant repeatedly called to the driver, Jones, yet the driver of the truck negligently failed and neglected to stop his car. The evidence is that claimant called as loud as he could for Jones to stop the car, but that Jones was unable to hear him, presumably on account of the noise made by the truck, he sitting quite a distance from the car being towed.

There is no question but vliat the claimant received very painful injuries and it may be of a permanent character; that said injuries were suffered while in the course of his emplojunent with the State and that without any knowledge of the defect in the car in question and that he exercised due care and caution for his own safety.

It is true, that under the decisions of the Supreme Court, the acceptance of a. salary or wages during the period of the disability or incapacity is not a waiver of the right to compensation for such disability whether partial or total, in the absence of an agreement otherwise, but we are of the opinion that such wages or salary received by the claimant since his injury should be taken into consideration in making an award.

The Attorney General, in behalf of the State, has filed a demurrer to the declaration, which, as a matter of law will be sustained. It has been well established heretofore by the decisions of this Court that the doctrine of respondeat superior is not applicable to the State; that the State in the ownership, possession and control of said automobiles was exercising a governmental function and is not liable for the torts of its agents in relation thereto. There can be no question but what the Workmen’s Compensation Law of Illinois does not apply to employees of the State.

We are of the opinion, however that as' a matter of equity and social justice an award should be made in this case to the claimant even though there is no liability on the part of the State. We therefore award to claimant the sum of one thousand five hundred ($1,500.00) dollars in full of all claims of every kind and nature whatsoever against the State of Illinois for injuries sustained by him while in the course of his employment with the State and to compensate him in the event of total disability.


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    Eugene Phillis Ward and Marie Josephine Catherine Elizabeth Anatole DeRiquet, Countess of Caraman-Chimay DeCocq v. State of Illinois.

      Opinion filed March 8, 1923.

    Inheritance Tax — when refund will he made. In this claim there is no dispute about the facts and law governing the case, and the Court enters an award to claimants for a refund of the difference between the amount of the inheritance tax paid under the original order fixing the tax and the amount found to be due under the final order of the Court re-assessing the tax. Section 25, Inheritance Tax Law.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Eugenie Phyllis Ward and Marie Josephine Catherine Elizabeth Anatole DeRiquet, Countess of Caraman-Chimay DeCocq bring this suit under section 25 of the Inheritance Tax Law of Illinois for a refund of a portion of the inheritance taxes assessed and paid in the estate of Catherine Morrow, deceased.

Decedent died April 20th, 1915, leaving a last will and testament dated May 21st, 1911, a first codicil thereto dated December 7th, 1911, and a second codicil thereto dated January 15th, 1915, which will and codicils were on October 1st, 1915, duly proved and admitted to probate in the Probate Court of Cook County, Illinois, and the order admitting them to probate was never vacated or appealed from.

John K. Lyon and Calvin Fentress, both of Cook County, Illinois, . were by the will appointed to be executors of the will and trustees in and under the trusts created under and by said will and testament. They duly qualified as such and the estate of said deceased was duly administered according to law, and the executors were discharged as such executors November 23rd, 1918, and the trust funds came into their hands as trustees aforesaid. Besides certain legacies, which were paid the testatrix devised the residue of her property to the said trustees to be divided into three funds, to be known and are designated “Marie de Caraman-Chimay Fund,” “Joseph de Caraman-Chimay Fund,” and “Eugenie Phillis Ward Fund” as near in equal parts, as possible might be, the primary beneficiary being three grand children of testatrix after whom the said funds were named as stated.

On the 7th day of February, 1916, the County Judge of Cook County, Illinois, entered an order assessing a total inheritance tax in the estate of $29,257.10, which said tax together with the interest amounting in all to $30,622.43 was duly paid as provided by law. The three grand children aforesaid were in said order taxed upon a life estate in their said respective “Funds,” and the remainder after their respective life estates, together with the remainders after their respective life estates, together with the remainder in a trust fund of $75,000.00, after the life estate of one Esmee Lyon d “Huekeren I)” Anthez, were distributed for the purpose of the tax under said section 25 of the Inheritance Tax Law to a stranger, by virtue of certain contingencies in said will, which are not necessary to set out in this opinion as a certified copy of the will with its codicils and the entire proceedings of the Court are filed herein and admitted by the Attorney General to be correct.

The said Joseph D’Caraman-Chimay died January 20th, 1920, leaving surviving him no child or children or issue of deceased child or children and accordingly under the terms of the will the trustees turned over his “Fund” to themselves as trustees of the said “Marie Fund.”

The trustees were authorized by the will that upon the happening of certain contingencies, one of which was that when the two said girls last mentioned should respectively attain the age of thirty (30) years the said funds as aforesaid on proper proceedings might be delivered as aforesaid.

On the 15th day of May, 1920, the contingencies happened as to the said Eugenie Phyllis Ward Fund, and the trustees accordingly transferred the then principal of said fund to said Eugenie Phyllis Ward free from any further conditions in said will. On May 14, 1921, these contingencies happened to Marie de Caraman-Chimay Fund and the trustees likewise transferred the then principal of said trust fund to said Marie, including that part paid into it as the Joseph de Caraman-Chimay Fund after the death of said Joseph as aforesaid. All of the contingencies mentioned in the will concerning, limiting and governing these said funds having happened and the properties having been transferred as aforesaid, then thereafter on the 3rd day of November, A. D. 1922, on proper petition of the said Phyllis and Marie, the County Court of Cook County entered an order re-assessing the inheritance tax in said estate, which had in the original order been assessed at the highest possible rate, said order of reassessment taxing said Marie upon one-third of the residue of said estate in fee, and the remainder in one-third after the death of the said Joseph; and Eugenie being taxed upon one-third of the residue in fee, thus leaving assessed against the stranger under section 25, only the remainder in the $75,000.00 fund after the death of Esmee Lyon de Huekeren D’Anthez; and the remainder of the original order assessing the taxes upon the specific legacies remaining the same. On the petition for re-assessment as aforesaid the County Court re-assessed said inheritance taxes at the sum of $15,087.81 without including interest due thereon, which when added at the rate of 6% from the date of the death of said testatrix on April 20th, 1915, to February 7th, 1916, making the total then due the State $15,809.50; and the difference between the said sum of $30,622.43 originally paid, the said sum of $15,809.50 is $14,812.93 which the claimants are entitled to as refund of inheritance taxes with interest thereon at the rate of 3% per annum from the 7th day of February, 1916, to the date of re-paymeni by the State of Illinois of said amount.

To all this the Attorney General in writing consents. The Court accordingly awards claimants the said sum of $14,812.93 to be paid to them respectively, according to the prayer of their said petition that is to say; the sum of $9,875.28 of said sum with interest as aforesaid to be paid to the said “Marie” and the sum of $4,937.65 with interest as aforesaid be paid to said Phyllis. The Court accordingly recommends appropriations for the payment of the amount so found to be due to said ■ claimants, with interest as aforesaid.


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    John B. O’Malley, James W. O’Malley and Vincent O’Malley Trustees v. State of Illinois.

      Opinion filed March 8, 1923.

    Inheeitance Tax- — when 7-efund will be made undei- Section 25, Inheritance Tax Law. In this claim there is no dispute as to the facts and the law governing the same, and upon the proofs submitted the Court enters an award for the difference between the amount of tax paid under the original order assessing the tax and the amount found to be due upon the final order re-assessing the tax, with interest thereon at 3%.
    Bclward J. Brundage, Attorney General, for State.
   This is a suit brought by the petitioners, John B. O’Malley, James W. O’Malley and Vincent O’Malley of City of Chicago, Cook County, Illinois, trustees of the estate of John O’Malley, late of said Cook County, deceased, for refund of inheritance tax, claimed to be due claimants.

Said John O’Malley died a resident of Chicago, Illinois, March 17th, 1920, leaving a last will and testament and codicil thereto, under which petitioners were appointed executors and trustees of said will, testament and codicil.

The provisions of said will pertinent to the issues involved in this suit are in proof herein.

The will was duly admitted to probate May 1st, 1920, and said estate duly adjudicated and settled and petitioners discharged as executors.

In the administration of the estate in assessing the inheritance tax upon the property of the estate of said deceased, certain successions were taxed under section 25 of the Inheritance Tax Act of July 1st, 1909, as upon a succession with respect to a specific legacy of $15,000.00 to Mrs. J. J. Hardin, a niece of said decedent — that is to say the $15,000.00 was imposed at the highest rate which, on the happening of any contingencies or conditions, was possible, and was levied on the assumption that said property would pass to said Mrs. J. J. Hardin, and that in assessing the inheritance tax upon the residue of the property of said estate of said deceased, the succession was taxed under said section 25, as upon a succession to Catherine O’Malley, widow of said John O’Malley, deceased, and imposed at the highest rate which upon the happening of any contingencies or conditions was possible, and was levied • upon the assumption that the said residue of 'said property of said estate would pass to Catherine O’Malley.

As trustees of the will claimants were obliged to and did on Septemper 10th, 1920, by order of the County Court did pay the total amount of inheritance tax upon the gifts, legacies, interests, successions appraised and distributed for taxation by order of the County Court, September 3rd, 1920, amounting to the total sum of $4,774.29 less 5% discount making a net sum of $4,535.58, which included the taxes upon said successions distributed for taxation under said section 25 to said Mrs. J. J. Hardin and Catherine O’Malley.

Under the terms of the will all the estate passed to said trustees, petitioners, and the time fixed for distribution of the estate was at the death of said Catherine O’Malley, widow of said decedent. The said widow O’Malley died August 10th, 1922, at which time all contingencies and conditions were defeated and rendered void, and Sarah E. Stone, sister of deceased became entitled to $15,000.00 free from all trusts, limitations and conditions; and the claimants, John B. O’Malley, James W. O’Malley and Vincent O’Malley, sons of decedent became entitled to said residue, being 1/3 each thereof, freed of all trusts, limitations, conditions and Sarah E. Stone, being the sister of said John O’Malley, deceased, is entitled to an exemption of $10,000.00 and claimants, who are the sons of said deceased became entitled to $20,000.00 each exemption; and Catherine O’Malley being the widow was entitled to an exemption of $20,000.00.

Subsequently an order was made by the Court and the estate reappraised as required by law, and approved by the Attorney General. The latter adjustment by the Court shows that the inheritance tax is assessed in the sum of $2,398.48 and not the sum of $4,774.29 as previously assessed.

From calculations made on the two assessments and the payment made on the original assessment it shows claimants entitled to a refund of $2,257.0.2 with interest at 3% per annum from September 10th, 1920. To this the Attorney General gives his written consent herein.

It is therefore ordered by the Court that claimants he awarded and paid by the State the sum of $2,257.02 with 3% interest thereon per annum from September 10th, A. D„ 1920.


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    John K. Lyon, et al., Trustees of the Last Will and Testament of Eber B. Ward, Deceased v. State of Illinois.

      Opinion filed March 8, 1923.

    Inheritance Tax — when claimant entitled to a refund. Where the inheritance tax is assessed under Section 25, of Inheritance Tax Law, upon certain contingent interest, and is paid, and afterwards the contingencies are defeated and the estate vests in the legatees under the will, and the County Court upon proper proceedings enters an order re-assessing the tax reducing the same. Meld, that claimant is entitled to a refund of the difference between the amount paid under the original order assessing the tax and the amount fixed by the County Court in its order of re-assessment.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed under Section 25 of the Inheritance Tax Law for a refund of a portion of the inheritance tax assessed and paid in the Estate of Eber B. Ward, deceased.

Eber B. Ward died in France, Hay 5th, A. D. 1918, and his will was duly probated in Cook County, Illinois. John IC. Lyon, John AY. Gary and Calvin Fentress tvere appointed by said trustees of the trusts named in the will for the benefit of decedent's two daughters, to be known as the “Esmee AYard Fund” and the “Phyllis Ward Fund” respectively.

The latter two trustees resigned and George F. Henneberry and Augustus P. Richardson were appointed their successors, respectively, as provided for under the will, and the said John K. Lyon, George F. Henneberry and Augustus P. Richardson, the claimants became and are-now the sole duly qualified trustees of said funds.

Pursuant to proper inheritance tax proceedings the County Judge of Cook County, Illinois, entered an order assessing' a total inheritance tax of $94,703.56, which said tax less the five percent discount for payment within the six months of decedent's death was $89,968.38, which was on November 6th, 1918, paid by said John K. Lyon, executor of said will, who as such executor, has since then discharged as executor of said will, and who is now one of the trustees, together with said Henneberry and Richardson, trustees, of said funds, and as such trustees are the claimants in this case.

A portion of said tax was assessed upon certain contingent interests involved in the said trusts under said section 25 of the Inheritance Tax Law at the highest possible rate, and the tax so assessed presumably was paid by the executor as provided by law out of the corpus of said trust jwoperty. All as shown by the evidence herein.

The said contingencies having now been defeated, and the said trusts having been vested in the two daughters of the testator under the provisons of the will and. by operation of the law, the County Court of said county of Cook thereafter upon petition by claimants herein, of which proceedings the Attorney General had due legal notice, entered an order ¡November the 20th, 1922, re-assessing the inheritance tax in said estate; the total tax so re-assessed being $80,409.94, which less the five per cent show the net amount of $76,389.44, and the only tax affected by said order, being the tax upon the said trust property in the hands of the claimants.

All facts stated herein are matters of record and filed herein and admitted by the Attorney General, proof thereof being by him waived. The evidence sustains all the allegations in the claim, which is admitted by the Attorney General, who consents to an award of the amount of the claim.

It is therefore ordered by the Court that claimants be awarded a claim of $13,578.94 with interest thereon at the rate of 3% per annum from the 6th day of ¡November, 1918, the said award being the difference between the said amount as originally assessed and the amount fixed in the order of re-assessment.


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    Michael J. Kelly v. State of Illinois.

      Opinion filed March S, 1923.

    Respondeat Superior — State not liable for torts of inmates of its institutions. The State is not liable for the torts of its officers, agents, employees or inmates.
    Social Justice and Equity — when award will be recommended. Where it appears that claimant was engaged in a hazardous employment the Court will recommend to the Legislature an appropriation.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by one Michael J. Kelly who was on the 6th day of September, 19££, employed as an officer in the Illinois State penitentiary at Joliet; that while in the performance of his duties as an officer in said prison, lie was assaulted by certain inmates and with a brick, struck him many violent blows and also violently kicked him. It appears from the evidence given by the prison physician that the bruises and discoloration have entirely disappeared; that he lias however heavy ringings in his ears, especially in the left and suffers with headaches that appear to be becoming more frequent and severe. The defendant by the. Attorney General comes and defends, setting up first that the doctrine of respondeat superior is not applicable to the State, and that in the absence of Statute, the State is not liable for the torts of its officers, agents, inmates or employees.

It is the opinion of this Court that the legal defense set up by the Attorney General is well taken and therefore the demurrer is sustained. However it is the opinion of the Court that this is a case that comes within the rules and practice of this Court as a matter of equity and social justice, it appearing that the claimant’s employment was hazardous and that lie was injured while in line of duty and that he has filed his claim in apt time.

Therefore it is the opinion of this Court that allowance should be made in this case and it is therefore recommended by this Court that the Legislature allow the sum of ($1,500.00) fifteen hundred dollars.


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    Faye M. Kepler v. State of Illinois.

      Opinion filed March 8, 1923.

    Respondeat Superior — not applicable to the State. The doctrine of Respondeat Superior is not applicable to the State, and it is not liable for injuries sustained by its employees while in the performance of their duty.
    Social Justice and Equity — recommendation. As a matter of social justice and equity, the Court in view of the circumstances of the case, recommends to the Legislature an appropriation to claimant for the death of her husband.
    Edward J. Brundage Attorney General, for State.
   This is a claim for comupensation for the death of claimant’s husband, which occurred November 4th, A. D. 1922, in consequence of his employment in the Division of Highways of Illinois as a patrolman while, in the employ of the State.

The State has demurred to the declaration generally and specially.

The evidence is before the Court by stipulation of the parties to the suit, and consists of the affidavits of claimant and George II. Burger and a transcript of the evidence taken before the coroner’s jury in the inquest held over the body of deceased. The evidence discloses that the claimant, Faye M. Kepler, is the widow of Boy W. Kepler, deceased, and that she and deceased were married September 22nd, 1920; that she was 24 years old and that deceased was 27 years old at time of his death; that their property, real and personal did not exceed $1,200 or $1,400, at time of his death and a mortgage upon the real estate in the sum of $200; that the claimant now is dependent solely upon her manual labor for her support; that at the death of deceased they had no child or children, nor decendants of child or children.

The evidence further shows that at and several years prior to his death the deceased was an employee of the State of Illinois in the capacity of patrolman of the State Highway Department whose duties it was to patrol and keep in repair part of the State hard road extending east and west through the State of Illinois, known as the Old National Trail and passing through Vandalia, St. Elmo, Altamont, Effingham, etc. That the section of said road so assigned to deceased extended from a point about two miles east of Altamont, thence west to Bluff City, Illinois. At the time of Ms death he was being paid a salary of $125.00 a month, by the State.

That on the 4th day of November, 1922, he was directed by his superior in said employment to go in company with George II. Burger, also an employee of the State in said department to Patoka and to there get and. bring back a motorcycle for the use of deceased in the performance of his duties as such patrolman. Finding the machine not in running order Burger and deceased decided to tow it in to St. Elmo. Accordingly they attached by a wire the disabled machine to the motorcycle in which they came to Patoka. Burger mounted and drove the machine which brought them over and deceased by arrangement between him and Burger mounted the dead motorcycle to guide the same, while Burger drivng the good machine towed the dead one. That while traveling at the rate of about ten miles an hour on the concrete road, conveying the disabled machine to its proper destination, and when at or near the village of Vernon, approaching an intersecting road at said village an automobile was also approaching the cross road, and when the said motorcycles were within about 200 feet of said intersection of roads Burger cut the power off from his motor and the two machines coasted toward the intersection, and that when within about twenty feet of the said intersection the disabled machine on which deceased rode unavoidably coasted out to the left of the leading machine, running off of the concrete road; the connecting wire tightened and the rear or disabled machine was suddenly jerked around causing deceased to be thrown to the ground and the head of deceased was badly cut' and torn by the machine in which he was riding. Deceased was cared for by Mr. Burger the best he could; but he only lived about 25 minutes after the accident, causing his death.

Xo part of the expenses has been borne in this affair. It has so ofter been held by this Court that in such cases the State of Illinois is not liable for damages, that we will not here cite authorities in further support of such holdings, and the demurrer will be sustained. But, the case at bar is one of particular interest and deserving of careful consideration. The deceased was an employee of the State for two years, was faithful and efficient; that while in line of duty, within the scope of his employment, without fault on his part he ivas accidently killed, leaving a little more than enough property to bury him; and leaving claimant without any means of support except her own manual labor. And as a matter of equity and in the interest of social justice the Court believes the claimant should be compensated for the death of her deceased husband.

We accordingly recommend that the Legislature make an appropriation for claimant in the sum of ($3,750.00) three thousand seven hundred fifty dollars.


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    The State Savings, Loan and Trust Company, a Corporation Organized and Doing Business Under and By Virtue of the Laws of Illinois v. State of Illinois.

      Opinion filed March 8, 1923.

    Inheritance Tax — when refund will he made. Where after the payment of the inheritance tax, the Board of Review assesses back taxes upon the property of the estate, and they are paid, and upon petition by claimant an order is entered by the County Court modifying the original assessment by allowing the deduction for the back taxes paid. Meld, claimant is entitled to a refund of the amount over-paid.
    Edward J. Brundage, Attorney General, for State.
   This is a suit brought by claimant, State Savings, Loan and Trust Company, a corporation organized and doing business under and by virtue of the laws of the State of Illinois, against the defendant, State of Illinos, for refund of inheritance, tax, paid in the estate of Charles Appleton, deceased.

The facts in the case as shown by the inheritance records of Adams County, the records of the State Treasurer and the records of the Attorney General admitted in evidence herein and consented by the Attorney General to be true are briefly as follows:

Said decedent died August 26tli, 1920, a resident o£ Adams County, State of Illinois, leaving a last will and testament which was duly admitted to probate in the County Court of said County, and the claimant was duly appointed and qualified as adminstrator of said estate with the will annexed.

Pursuant to proper inheritance tax proceedings before the County Judge of said County, a total inheritance tax of $2,844.27 was assessed in said estate, which sum, less five per cent discount for payment within six months of decedent’s death, to-wit: $2,702.06 was paid by claimant February 25th, 1921.

Thereafter the Board of Review of Adams County aforesaid, assessed bade taxes upon the property of said estate to the amount of $9,659.73, which said sum claimant also paid, being paid subsequently to the payment of the said inheritance tax aforesaid.

On the 8th day of January, 1923, the County Judge of said Adams County, upon proper petition by claimant entered an order finding that the claimant had paid back taxes amounting to $9,659.73 subsequently to the payment of the inheritance tax as aforesaid and that the inheritance tax so paid should be reduced to the extent of $289.80, and ordering a modification of the original order fixing the tax so that the amount of tax to which the estate is liable is $2,554.47 instead of $2,-844.27. The Attorney General was represented at said hearing by his assistant and consented to the modifying order as above stated.

Upon this showing the Court finds that the claimant is entitled to a refund of $275.31, without interest, which the Attorney General admits is due and should be paid.

The Court therefore awards claimant the said sum of two hundred seventy-five and 31/100 ($275.31) dollars, without interest.


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    Bessie A. Tolman and Grace T. Davidson, Beneficiaries Under the Last Will and Testament of Samuel A. Tolan, Deceased v. State of Illinois.

      Opinion filed March 8, 1923.

    Inheritance Tax — when refund will he made. Where an inheritance tax is assessed against an estate, and paid, and afterwards claims are allowed against the estate and are paid, and upon proper proceedings the original order is modified by reason of the payment of such claims, the claimant is entitled to a refund under Sections 8 and 10 of Inheritance Tax Law.
    Interest on Refund — when not allowable. Interest on a refund can only he allowed under Section 25, of Inheritance Tax Law, it cannot he allowed under Sections 8 and 10 of that law.
    Edward J. Brundage, Attorney General, for State.
   The claimants, Bessie A. Tohnan and Grace T. Davidson file this cailn to recover hack a portion of inheritance taxes paid in the Samuel A. Tolman estate.

The said decedent died June 4, 1919, a resident of the city of Chicago, Cook County, Illinois, and on June 24, 1919, the Chicago Trust Company and John A. Davidson were duly appointed executors of the last will and testament of said deceased, by order of the Probate Court in said county of Cook, and as such they duly qualified and made proper distribution of the estate as provided by the will.

On December 15, 1921, said executors made final report which was approved, and they were discharged from further duties as such executors.

Under the terms and provisions of said will, the Chicago Trust Company, John A. Davidson, Jr., and Raymond M. Ashcraft were appointed trustees of the estate of the said decedent, and are now acting as trustees of the estate of the said Samuel A. Tolman, deceased.

The appraiser appointed by ' the Court, reported appraising the estate at one million twenty-nine thousand five hundred eighty-eight and 75/100 ($1,029,588.75) dollars, and the total tax due thereunder was eighteen thousand five hundred eighty-one and 77/100 ($18,581.77) dollars.

After the distribution as aforesaid of the legacies from which the inheritance taxes were deducted by the executors, certain debts were proven against the estate and paid, and on proper proceedings in Court, of which the Attorney General had due notice the. fair cash net value of said estate was revised and a new schedule made, greatly reducing the amount as shown by the record in evidence.

The order modifying the original order and assessing the tax ag'ainst Bessie A. Toiman at $2,223.16 and Grace T. Davidson at $6,673.98, the amounts actually due upon said interests under said order (less 5% discount) being $2,118.57 and $6,340.28 respectively, it is apparent from the records in evidence that there is a refund due on said payment of $217.01 and $8,897.32 respectively.

The Attorney General admits the correctness of the records as aforesaid, and consents to awards in the amounts last expressed respectively.

The claimants, however, claim in their petition the right to collect “legal interest from the date the said sums were so wrongfully paid,” as is contended by them.

The entire amount was legally collected by virtue of a valid order of assessment as shown by the original order of the Court, from which no appeal was taken. It is evident that claimants’ right of refund in this particular case is based upon Sections 8 and 10 of the Inheritance Tax Laws, the fair intendment of which is that the State shall make proper refund on account of debts proved after assesment and payment; but no provision is made therein for the payment of interest.

Interest at the rate of 3% per annum is allowable only when the claim for refund is brought under Section 25 of the statute where a less tax becomes due by reason of the happening or non-happening of contingencies, upon which the interests assessed depend, which is not apparent in this case, and accordingly no interest will lie allowed.

The claimants are awarded the following sums respectively, viz,: Bessie A. Tolman, two hundred seventeen and 01/100 ($217.01) dollars, and Grace T. Davidson, eight thousand eight hundred ninety-seven and 32/100 ($8,897.32) dollars, for which sums the Court recommends appropriations and payment.


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    C. J. Carlson v. State of Illinois.

      Opinion filed March 8, 1923.

    Governmental Function — when State not liable. The State in conducting the Illinois Penitentiary at Joliet, exercises a governmental function and is not liable for injuries sustained by its employees while in the discharge of their duty.
    Social Justice and Equity — limitation under the rule. While the Court as a matter of social justice and equity may award compensation to an injured employee of the State engaged in a hazardous employment, yet there must "be some limitation within which the State would be free from an obligation of this nature, and five years is long enough time to keep the gates open under the equitable and social justice rule.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by C. J. Carlson who was employed on the 2nd day of December, 1917, and for a number of years prior thereto as a guard or a keeper at the Illinois State penitentiary at Joliet and on the night of said day he had general supervision as night captain of the said penitentiary; that in the discharge of his duties he was required to make regular rounds of the various buildings to ascertain that the prisoners were all confined; that on said day there was confined in said prison in solitary confinement about seventeen convicts who were in course of being disciplined; that while he was engaged he was attacked by three convicts and was beaten about the head with a club and iron bars; that by result of said beating he was inflicted with eight cuts about three or four inches long that caused depression of the skull. As a result of such attack the claimant was confined in the hospital of said penitentiary for a period of one week and was unable to resume his duties for a period of three weeks; that he suffered repeatedly with headache, nervousness and sleeplessness and that he suffered considerable pain and inconvenience that apparently increased as time went on. The defendant, the State of Illinois, by its Attorney General, comes and files a demurrer; also a plea of Statute of Limitations.

It is the opinion of the Court as it has been repeatedly held by this Court that there is no legal liability on the part of' the State and all that remains for the consideration of this Court is the consideration of the rule of equity and social justice and in view of the fact allowances are made in these cases as it has been repeatedly held by this Court, only on account of a desire to assist worthy employees while engaged in extra hazardous occupation, yet there must be some limitation, otherwise the time would never come during the lifetime at least of the claimant or during the administration of his estate when the State would be free from this sort of an obligation.

It is the opinion of this Court that five years is long enough time to keep the gates open under the equitable and social justice rule when if the defendant were a private corporation or an individual, the time for legal relief in the Courts would have passed to the utmost certainty.

Therefore while this Court sympathizes with this claimant, yet we are impelled by a duty to the people of the State of Illinois to disallow this claim for the reasons stated.

The demurrer is hereby sustained as well as the plea of the Statute of Limitations.


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    Fred B. Medcalf v. State of Illinois.

      Opinion filed March 8, 1923.

    Governmental Function — when State not liable. The State in conducting the Illinois State Penitentiary at Joliet exercises a governmental function and is not liable for injuries sustained by its employees while in the dicharge of their duty.
    Social Justice and Equity — when award will be made. While the State is not legally liable to claimant for the injuries sustained, where the employee is engaged in a hazardous employment the Court will as a matter of social justice and equity allow an award.
   This is a claim filed by Fred M. Medcalf who was employed as concrete foreman in the new penitentiary in Will County, Illinois; that while in the course of the performance of his duties on the 2nd day of September, 1922, he was attacked by a convict by the name of Charles Moutiel and another convict by the name of Eugene Lemiux who used as a weapon a piclc-axe handle and the other convict a pocket knife; that they cut the claimant on the chest, back, arms and head in many jilaces and beat him about the head, arms and body; that one cut was inflicted on claimant’s left chest directly over the heart and as a result whereof the claimant suffered great pain and his head and body became permanently scarred.

The Attorney General comes and files his demurrer and according to the practice of this Court in cases of this kind the Court finds no legal liability on the part of the defendant. However the Court according to this practice in such cases, recognizes this case as a matter in which equity and social justice should be considered. The claimant was employed at a hazardous undertaking. He has made his claim in ample time. However, it is the opinion of this Court that reason must be exercised in the allowance of these claims and from the evidence that we have considered it hardly can be claimed that it would be a total disability claim as understood under the Workmen’s Compensation Act.

The Court is of the opinion that allowance should be made and it is therefore recommended that an allowance in the sum of $2,000.00 be considered by the Legislature.

We therefore, recommend that the Legislature allow the sum of $2,000.00.


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    Michael J. Leonard v. State of Illinois.

      Opinion filed March 8, 1923.

    Governmental Function — Jackson v. State, Supra, followed. Thus claim is similar to that of Jackson v. State, Supra, and the decision of the C.ourt there announced governs this claim.
    Edward J. Brundage, Attorney General, for State.
   The claimant, Michael J. Leonard, was an employee of the State of Illinois as a guard or keeper at the penitentiary at Joliet on the 1st day of February, 1919, and he alleges that while he was in the discharge of his duties he was attacked by two convicts who struck the claimant over the head, arms and body with two certain chair legs, bruising his head and cutting gashes along across the top of the head. As a result he further alleges was unable to work for about two weeks and underwent great pain and suffering. To the petition of the claimant the Attorney General in behalf of the State of Illinois, has filed a demurrer, a general and special, setting forth that the doctrine of respondeat superior is not applicable to the State, etc.

It is the opinion of this Court as it has been held repeatedly that there is no legal liability on the part of the State in these classes of cases. It appears from the evidence that the claimant was laid up for two weeks on account of the assault. There is no evidence to indicate that he was at any loss on account of medical or hospital services, or that he was damaged by loss of salary or wages. It further appears that this assault occurred about four years before the claim was filed and it would seem that this claimant should have brought forth his claim before that much time had elapsed.

It is the opinion of this Court that this is not a case in view of all the facts and circumstances, particularly in view of the extent that the claimant was injured; that this is a case where the principle of equity and social justice should be considered.

It is therefore considered by this Court that no allowance be recommended in this case and that the demurrer of the defendant be and the same is hereby sustained.


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    Western Gas & Electric Company v. State of Illinois.

      Opinion filed March 8, 1923.

    Gas Furnished — when State is liable. The State is liable for gas furnished and used by it at its institutions.
    Edward J. Brundage, Attorney General, for State.
   This claim is filed by the Western Gas and Electric Company against, the State of Illinois and amounts to the sum of $89.10.

The claimant has filed an affidavit of claim setting forth that on or about September 10th, 1918, while repairing a leak in the gas main connected with the Illinois State Penitentiary at Joliet, Illinois, it was discovered that the gas consumed at the Women’s Prison of said institution had not been paid for prior to that time for a long period of time; that upon discovery of that fact, the claimant presented a claim to the Illinois .Penitentiary for $1,048.32, the amount then due and unpaid, and that said claim was supported by affidavits of all the facts in connection with said claim.

Claimant further states that E. J. Murphy, the warden of the Illinois State Penitentiary, requested that the claim of said Gas Company be divided into two bills, one for $959.22 which was for gas furnished prior to July, 1918, and the other bill of $89.10 for gas furnished between July, 1918, and September 10th, 1918; that the warden stated that these amounts would be paid out of separate funds, that the larger amount would have to be filed with the Court of Claims and the smaller item of $89.10 would he paid from the regular appropriation for the institution above mentioned.

Claimant further states that said item of $959.22 was duly paid July 13th, 1921, but that the item of $89.10 has not. been paid either in whole or in part and that the Western United Gas and Electric Company has a ¡¡ust claim against the Illinois State Penitentiary for said sum of $89.10 for gas used as above stated.

The Attorney General files his consent to an award for the amount of "$89.10 and states that the State of Illinois has no defense to the claim.

We therefore make an award to the claimant in the sum of $89.10.


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    Alfred C. Christenson v. State of Illinois.

      Opinion filed March 8, 1923.

    Fugitives Fbom Justice — liability of State for expense. A messenger sent by the proper authorities to return a fugitive from justice is entitled to mileage to be paid him by the State under Section II, Chapter 60, Hurd’s Rev. Statutes of Illinois.
    Edward J. Brundage, Attorney General, for State.
   This claim amounting to the sum of $364.90 as milegage of claimant, Alfred C. Christenson, as messenger for the return from California in March, 1921, of Eddie Éewman, a fugitive from justice, then charged with the crime of robbery in Cook County.

The claim is verified by affidavit and is certified to by the County Judge of Cook County, as required by section 11 of the Fugitives From Justice Act, and attached to the papers is a statement signed by the Administrative Auditor that the claim has never been paid and that had the papers been submitted during the time the appropriation, out of which the expense should have been paid, was available he would have approved said claim.

The claim is a liability of the State of Illinois and should be paid.

The Attorney General interposes no objections to the claim and waives further proof in the premises and consents to an award.

We, therefore, award said claimant the sum of $364.90.


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    John E. Egan v. State of Illinois.

      Opinion filed March 8, 1923.

    Fugitives Fho.m Justice — liability of State for expense. This case is similar to that of Christenson v. State, Supra, and the decision of the Court announced in that case governs this claim.
    Edward J. Brundage, Attorney General, for State.
   This claim amounting- to the sum of $148.84 was filed by the claimant, John E. Egan, same being for mileage of claimant as messenger for the return from New York in May, 1921, of Joseph Kelly, a fugitive from justice then charged in Cook County with the crime of robbery.

The claim is verified by affidavit and is certified to by the County Judge oí Cook County as required by section 11 of the Fugitives from Justice Act, and attached to the papers is a statement signed by the Administrative Auditor that the claim has never been paid and that had the papers been submitted during the time the appropriation, out of which the expense should have been paid, was available he would have approved said claim.

There is no question but what the claim is a liability of the State under section 11 of the Act aforesaid, and that said claim has been filed at the earliest opportunity, afforded said claimant.

The Attorney General interposes no objection to claimant and waives further -proof in the premises and consents to an award.

We, therefore, award said claimant the sum of $148.84.


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    Charles Welling v. State of Illinois.

      Opinion filed March 8, 1923.

    Fugitives Fbom Justice — liability of State for expense. This case is similar to that of Christenson v. State, Supra, and the decision of the Court announced in that case governs this claim.
    Edward J. Brundage, Attorney Genera], for State.
   This claim amounting to the sum of $148.84 was filed by claimant, Charles Welling, same being for mileage of claimant as messenger for the return from New York, in May, 1921, of Arthur Bernstein, a fugitive from justice, charged in Cook County with the crime of robbery.

The claim is verified by affidavit and is certified to by the County Judge of Cook Couidy as required by section 11 of the Fugitive from Justice Act, and attached to the papers is a statement signed by the Administrative Auditor that the claim has never been paid and that, had the papers been submitted during the time the appropriation, out of which expense should have been paid, was available he would have approved said claim.

There is no question but what the claim is a liability of the State under section 11 of the Act aforesaid, and that said claim has been filed at the earliest opportunity afforded said claimant.

The Attorney General interposes no objection to the claim, waives further proof in the premises and consents to an award.

We, therefore, award said claimant the sum of $148.84.


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    Manufactured Ice and Cold Storage Co. v. State of Illinois.

      Opinion filed March 8, 1923.

      Contract — when State liable. The State is liable for supplies furnished for use of Illinois State Normal University.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for $96.00, on account of ice sold and delivered by the claimant to the State, from December, 1920, to June, 1921, for the use of the Illinois State Normal University at Normal, Illinois.

The Attorney General in behalf of the defendant, comes and consents to an award of $96.00 without interest.

Me, therefore, award the claimant the sum of $96.00 without interest. u


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    J. F. Humphreys & Co. v. State of Illinois.

      Opinion filed March 8, 1923.

      Contract — tohen State liable. The State is liable for supplies furnished for use of Illinois School for the Deaf at Jacksonville.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for $14.21, on account of one barrel of cider vinegar sold and delivered by the claimant, November 30, 1920, to the State for the use of Illinois School for the Deaf at Jacksonville.

The Attorney General in behalf of the defendant, comes and consents to an award of $14.21 without interest.

We, therefore, award the claimant the sum of $14.21 without interest. ’


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    The Consolidated Coal Company v. State of Illinois.

      Opinion filed March 8, 1923.

      Contract — when State liable for freight charges. The State is liable for freight charges on coal sold and delivered to it for its use.
    Edward J. Brundage, Attorney General, for State.
   The Consolidated Coal Company of St. Louis files a statement of claim, setting forth that it is an Illinois Corporation; that there is due it from the State of Illinois the sum of $194.44 covering freight paid by it on coal sold by it, transported and delivered to the State of Illinois and attaches freight bills to affidavit of claim, together with a copy of letter from Secretary of State acknowledging receipt of the shipments of coal and the approval of the Welfare Department, approved by F. D. Whipp, fiscal supervisor. The Attorney General of the State of Illinois representing the State in this case files his consent to an award in the sum of $194.44 and waives further proof.

The Court therefore awards the claimant the sum of $194.44 in full satisfaction of said claim.


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    Central Coal Company v. State of Illinois.

      Opinion filed March 8, 1923.

    Cox tract — when State liable. The State is liable for supplies furnished to the Elgin State Hospital.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for the sum of $145.49 filed by the Central Coal Company, a Wisconsin corporation, for 102,100 pounds of screenings purchased of the claimant by the State of Illinois for the Elgin State Hospital and shipped from Standard, Illinois, February 25, 1918.

Affidavit of claim is attached to the statement and bears the approval of the Department of Public Welfare, showing that the coal was purchased by express authority of law.

The Attorney General waives further proof of claim and consents to an award in the sum of one hundred forty-five dollars and forty-nine cents ($145.49) without interest.

Therefore the Court awards the claimant the sum of one hundred forty-five dollars and forty nine cents ($145.49) without interest.


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    Social Service Registration Bureau v. State of Illinois.

      Opinion filed March 8, 1923.

      Contract — when State liable for services rendered. The State is liable for the services rendered by claimant at the request of the State Immigrants Commission.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for $101.88 for services rendered hy claimant to the State Immigrants Commission at the latter’s request during.the period from October 1, 1920, to June 30, 1921; the services consisting of 815 reports and notifications at 12l/2 cents each, regarding persons in whom the Immigrants Commission was interested.

The Attorney General in behalf of the defendant, conies and consents to an award of $101.88 without interest.

lYe. therefore, award the claimant the sum of $101.88 without interest.


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    Fred W. Metzger v. State of Illinois.

      Opinion filed March 8, 1923.

    State Employee — liability of State for traveling expenses. The State is liable for the traveling and other incidental expenses incurred by claimant in the discharge of his duty, under the direction of the Department of Registration and Education.
    Edward J. Brundage, Attorney General, for State.
   This is a claim for $131.95 on account of traveling and other expenses incidental to the attendance by the claimant upon examinations for pharmacists under the directions of the Director of the Department of Registration and Education, in November, 1921.

The- Attorney General in behalf of the defendant, comes and consents to the award of $131.95 without interest.

We, therefore, award the claimant the sum of $131.95 without interest.


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    Wesley Wilson v. State of Illinois.

      Opinion filed April 17, 1923.

    University of Illinois — power to effect settlement to injured employee. The University of Illinois, nor any other State institution, have no power to make agreements or settlements with its employees for personal injuries sustained by them while in the discharge of their duty.
    Rule of University — aequiesenee therein 6y the State. While the State is not liable for injuries sustained by its employees in the discharge of their duty, yet where the University has adopted a rule of its own which provides for compensation for such injuries, and an appropriation is made by the State to take care of such charge, it may he reasonably inferred that the State approved such. rule and acquiesced therein.
    Edward J. Brundage, Attorney General, for State.
   This is a claim filed by Wesley Wilson for damages for injuries received by him while in the employ of defendant, while engaged as a carpenter at the State University at Urbana, Illinois.

The facts in the case are as follows:

The claimant, being about sixty years old and being employed as a carpenter by the University of Illinois at a salary of $140.00 per month, was severely injured January 20th, 1920, as a result of the body of an automobile truck, upon which he was working, falling upon or against him, crushing liis chest. Uo bones were broken, but several articulations between the ribs and breast bone and spine were pulled . loose, causing also a great nerve shock. And to the date the evidence in the case was taken, April 7th, 1921, the claimant had been unable to do any work.

The evidence is that on the date of the accident, January 20th, 1920, and for ten years prior thereto the claimant, who was a carpenter at the I’niversity of Illinois was receiving a salary of $140.00 per month. Claimant was by order of one of liis superior officers sent to the power house to assist in the repair of an automobile truck located in a room of the power house, and used for a repair shop hv the University. The body of the truck was set up or suspended endwise and while claimant was boring holes through the body for its necessary repair from some unknown cause the body fell toward and upon claimant, crushing him between the body and the other part of the truck, the body having been detaclie.d for the purpose of repair. Claimant was instantly rendered unconscious; but was soon rescued by other workmen present or nearby and taken to the hospital, where he remained for several days. Since he • left the hospital he has been treated several times by several physicians.

Claimant testified that prior to the said injuries he was a strong, able-bodied man, free from chest troubles or shortness of breath or soreness of chest, of which he now complains; that in consequence of the said injuries he has not been able to do any manual labor on account of hurting or soreness in chest, shortness of breath, and weakness of arms, all of which he alleges are results of the said injuries.

Dr. Burres testified in part as follows:

1 was called in fall of 1920 to treat claimant at his house for what he called shortness of breath and pain in chest. I found his breathing rather rapid and spasmodic or irregular and he complained of pain; found he had heart enlarged some and somewhat rapid. Found no physical evidence of injury; but there evidently has been. The breathing and circulation were not normal, which 1 attributed to some thoracis injury. I thought the injury could be the result of á crushed chest; or crushed walls of the chest. If the condition is due to the injury complained of, as I surmised, then it would probably be permanent. It would impair his ability to work. His condition may have been due to tho injuries or it may have resulted from other causes. I did not examine him for six months after the alleged injury.

Dr. Gulick testified in part as follows:

First time I was called to see claimant was last summer, and found him breathing rapidly with a rapid heart and very nervous. Of course that was due- to lack of deep respiration, and he was very nervous. He told me how he was hurt in the accident. I made no examination for the result of the injury. Last two times I treated his was for extreme nervousness, and a strong nerve medicine always relieved him, and it appeared to me that his condition was due to the general effect on his nervous system from this crushing injury — the shock. A man of his age being injured in the manner he was and to the extent he seemed to have been injxired, does not come back, or recuperate from a nerve shock. The nerve power is not strong. He would not have the power of endurance. My opinion is that his condition is due to nerve shock. Crushing injuries to the chest always bring on nerve shock. I do not know how severe his injury was as I did not examine him then, (meaning at time of injury).

Dr. Beard is the health officer of the University, who having an emergency case at the time asked that another doctor be called. After-wards he met Drs. Gray and Yantis, all of whom took part in binding up patient’s chest and he was taken to hospital. We afterwards had an “X-Kay” taken of Mr. Wilson’s chest and could see that certain articulations had been pulled loose both from spine and ribs. With a man of his age convalescence would be very slow and prolonged. It would take considerable time for recovery in such case for a man of his age.

Dr. Yantis had attended claimant at times before this accident and found his respiration all right, and attended him soon after accident and several times since. It is liis opinion that the injuries received by the accident are permanent. On being asked about his ability to perform manual labor since the injuries, Dr. Yantis said, “It would lower his nervous resistance; I think the man would not be safe on high buildings on account of faintaing spells he would take at times, and the muscular action, in lifting and straining, taking into account his age, too, I think it would greatly hamper him in that particular. He is in a state of neurasthenia.”

From the weight of the evidence it seems reasonably clear claimant is a.neurasthenic; that lie: has considerable trouble in his chest and possibly some enlargement of the heart; and that these conditions were and are the result of said injuries, as claimant’s evidence- and the evidence of I)r. Yantis show that prior to the accident none of these conditions existed. But this evidence was all taken April 7th, 1921— being nearly two years since it was taken, and about 15 months after the accident happened.

It appears that the University had adopted a rule or law of its own, which provided that any one injured while in the employ of the University of Illinois should be compensated if the case was meritorious, etc. Some time after this accident the trustees appointed Judge Harlcer, C. M. McCown, and Lloyd Morey, a committee to investigate and to determine what would be a fair and equitable settlement of this case. Their report to be reported to the Board of Trustees and the President of the University for approval.

This was done; the committee heard evidence with respect to the injuries. The defendant participated therein, testifying in his own behalf as to the extent of the injuries; medical testimony was taken, and the said committee reported recommending a certain settlement, acceptable to the University, and was agreed to and signed by the. claimant.

Also the following stipulation by counsel has been submitted in evidence, to-wit:

“Abstract of stipulation with respect to settlement between claimant and University of Illinois.”
“It is hereby stipulated by and between the parties hereto by their respective counsel that the paper attached hereto, entitled “proposed settlement with Wesley Wilson for accident January 28th, 1920” is a true copy of the settlement recommended by the committee of the University of Illinois for injured employees in respect to the injuries of the claimant herein; that said settlement was signed by the claimant herein as indicated in said paper; and that the same was approved by the Board of Trustees of the University of Illinois; that the claimant has been receiving payments from the University of Illinois to the present date as provided in said settlement; and that the said University has fully discharged all its obligations under paragraphs 1 and 3 of said settlement, and has paid each payment due to this date under said second paragraph of said settlement.”
(Signed) F. T. Carson, Attorney for Claimant.
(Signed) Edward J. Brundage, Attorney General.”
“Proposed settlement with Wesley Wilson for accident January 28th, 1920.
1. Allowance of $12.00 per week from date of accident to July 15, 19.20, period of disability as per report of examining physicians, 24 iveelcs at $12.00 per Aveek, $288.00. ($140.00 of this amount has already been paid).
2. Allowance of $24.00 per month from July 15, 1920, until death; but not for more than five years, payable monthly on first of each month. (These payments to cease in case Mr. Wilson resumes full time employment at full carpenter’s Avages). Maximum total, $1,440.00.
3. Payment of bills for hospital and medical attention on account of said injuries incurred prior to July 15, 1920, estimated $100.00. Estimated maximum total, $1,828.00.
This proposed settlement is acceptible to me. I understand that its status at present is merely that of a recommendation agreed upon by the Commission A\diich must be recommended also by the President of the University and approved by the Board of Trustees in order to become effective.
(Signed) Wesley Wilson.
Approved by Board of Trustees.” '

The declaration in this case appears to have been filed March 18, 1921; but claimant had up to October 15, 1922, continued to draw the monthly alloAA'ance from the University according to the terms of the said agreement betAveen him and the University, and at said date he had received under said agreement the sum of $1,036.00, $100.00 of AA'hich is for medical services and hospital expenses. Should claimant live out the full period of five years AA'ithout resuming AArork on full pay as provided under said agreement and continue to draAv monthly the sum so stipulated and agreed to in said settlement for said period, then he Avill have draAATi the total maximum sum of $1,828.00. He may resume his duties as carpenter in said institution at any time on full pay.

Prom the fact that the University has paid and continues to pay to claimant the consideration as per the terms of the said settlement, it may reasonably be inferred that the State has acquiesced therein by its appropriations to take care of this charge.

We are not aware of any laxv authorizing or empoxvering the University of Illinois, or any of the State institutions to make contracts, agreements, or settlements AA'ith any of its employees for damages for personal injuries received by them AA'hile in the employ of such institution. But Ave do not criticize the University for said rule for settlement with its employees. It is probable that the University is in a better position under that rule to give quick, equitable and ample relief to those of its employees aa'Iio happen to misfortune AA'hile in line of duty, than any legal tribunal.Avould be. The rule Avas no doubt made to aid the University in a more economic management of the institution. In this case at bar a committee of excellent men Avas named by the Board of Trustees, Avhich heard the evidence of claimant and the physicians and all Avitnesses to the facts, and upon such hearing made its recommendation as aforesaid, AA'hich was appiwed by the Board of Trustees and agreed to and signed by claimant. The claimant might lurve presented his claim then to the Court of Claims for its consideration; but he chose to settle AA'ith the University. Ho doubt the settlement made at that time from the evidence before the committee was a fair, honest and equitable settlement, with wdiich claimant was entirely satisfied.

We assume that the University will continue to discharge its obligations as provided in said settlement, should the State continue to allow its appropriations for that purpose as in the past it has done. - This Court, however, has repeatedly held that the State of Illinois is not liable for injuries sustained by its employees while in the employment of the State; and the Court has so held in all cases of this character both before and after the passage of the act of 1917, creating the Court of Claims, and defining its jurisdiction.

In response to a communication by the Cleric of this Court inquiring of the University if the claimant is still drawing his pay as per his and the University’s agreement. We received an affirmative reply. Claimant having chosen to settle with the University in the man.ner he did; and it appearing to the Court that he is getting and will get under said agreement all he is entitled to as shown by the evidence.

We sustain demurrer and dismiss the case.