text:
    (No. 4246
    Charles L. Batley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    Edward J. Flynn, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur. Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

On August 19, 1948, claimant, Charles L. Batley,. was injured in an accident which arose out of and in the course of his employment as a State Highway maintenance police officer (commonly known as a State policeman) in the Department of Public Safety, Division of Police.

On the day in question, claimant and another officer were driving west on U. S. Route 36 near the east limit of the Village of Alexander, Morgan County, Illinois.. Claimant was riding in the front seat of their State police car beside the driver. They were pursuing a car thought to have been stolen. Ahead of this vehicle was. a flat-bed semi-trailer truck, and ahead of the truck was-a passenger car. The police car siren was sounded to pass the semi-trailer, but at the same moment the semitrailer pulled out to pass the passenger car ahead of it. To avoid a collision, the police car was driven onto the south highway shoulder and its left rear wheel skidded into the roadside ditch which caused the police car to be thrown out of control, overturn and then collide with a telephone pole. Both police officers were thrown clear of the police car during the overturning.

Both officers were injured and were taken to Our Saviour’s Hospital, Jacksonville, Illinois. The next day it was discovered that claimant had sustained a fracture of a lumbar vertebra. Claimant was then taken to Barnes Hospital, St. Louis, Missouri, where X-rays disclosed a compression type fracture of the first and third lumbar vertebrae. Claimant also suffered multiple lacerations which completely healed.

Claimant remained at Barnes Hospital for a week when the fractures were reduced and a plaster jacket applied. He then returned to his home where he convalesced. The cast was removed in November, 1948, and he wore a Taylor brace until January, 1949. He returned to work on January 31, 1949. All medical treatment, hospitalization and appliances were furnished and paid for by respondent.

Claimant has a slight kyphosis in the upper lumbar region and some limitation of forward bending which results in some permanent partial incapacity. However, his earnings since he returned to work have been the .same or greater than before his injury. Under such state of facts, no award can be made to claimant for permanent partial incapacity under Section 8 (d) of the Workmen’s Compensation Act. Cogdill v. State, 18 C.C.R. 24. Such is apparently conceded by claimant.

However, claimant maintains that he is entitled to a recovery under the proviso of said Section 8 (d). This, proviso was first incorporated in the Workmen’s Compensation Act in 1945. In 1949, the proviso was changed. Claimant’s rights under the proviso are, therefore, to be determined by its wording as it stood prior to the 1949 amendment, since the accidental injury was sustained on August 19,1948.

Section 8 (d) as it applies to this case is.found at Ill. Rev. Stat. 1947, Chap. 48, Sec. 145, par. (d) and reads as follows:

“(d) If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the-cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time- and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty percentum of the difference between the average amount which he earned before the accident and the average amount which he-is earning or is able to earn in some suitable employment or business, after the accident. Provided, however, if no compensation is awarded under the- foregoing provisions of this paragraph, and when an accidental injury has been sustained which results in a fracture to the body of a vertebra, resulting in a loss of function of the back, compensation may be allowed for a period not to exceed thirty (30) weeks, in addition to compensation for temporary total disability, such compensation to be in lieu of all other compensation specified hereinbeforeby this paragraph.”

Upon tbe record in this case, we find that claimant, not being entitled to an award for permanent partial incapacity or for a specific loss under Section 8 (e), fiassustained an accidental injury which resulted in a fracture to the body of a vertebra, resulting in a loss of function of his back. Claimant is, therefore, entitled to an award of compensation for 30 weeks in addition to the compensation paid him for temporary total disability, since the facts in this case make the proviso in Section 8 (d) of the Workmen’s Compensation Act applicable to him.

However, claimant cannot be given a net award by this Court since tbe record discloses that he was so much overpaid for temporary total disability as to more than extinguish the amount he would be entitled to under the proviso of Section 8 (d).

On the date of the accident, claimant was married and had two minor children, Judith Kay, born August 29, 1943, and Mary Lee, born June 3, 1946. His wife and said children were all dependent upon him for support.

Claimant had only worked for respondent for about Ave months prior to his injury, but the earnings of those similarly employed amounted to $2,820.00 per year. Claimant’s rate of compensation was, therefore, $20.80 per week.

From August 20, 1948, till January 31, 1949, the period claimant was totally and temporarily disabled, he was paid his full salary of $235.00 per month. For his 23 4/7 weeks period of temporary total disability he was paid $1,265.97, although he was entitled to only $490.29 at his rate of compensation. He was thus overpaid the sum of $775.68.

Under the proviso of Section 8 (d) he would be entitled to compensation for 30 weeks" at $20.80 per week, or the sum of $624.00.

The net overpayment to claimant thus amounts to $151.68.

In an attempt to avoid this bizarre result, claimant argues that since he was paid his full salary, he was not paid compensation but was paid wages. The decisions ■do not support claimant in this contention, since the Supreme Court has held that payment of full salary with knowledge of the injury and without denial of liability is a payment of compensation. United Air Lines v. Ind. Com., 364 Ill. 436; Marshall Field & Co. v. Ind. Com., 305 Ill. 134; Tyler v. Ind. Com., 364 Ill. 381; Olney Seed Co. v. Ind. Com., 403 Ill. 587.

Were we to follow claimant’s contention that no compensation was paid to him, he would be further embarrassed because this Court would have no jurisdiction of the case since it was filed more than one year after the date of the accident. But we hold that no jurisdictional questions are or can be involved in this case.

Having concluded that claimant has been overpaid $151.68, what can this Court do?

Section 8 E of the Court of Claims Act provides that this Court has jurisdiction of all claims for recoupment made by respondent against any claimant. But respondent has made no such claim for recoupment. Bespondent filed no answer to the complaint and by Buie 11 of the rules of this Court, respondent is held to have filed a general denial.

Buie 2 of the rules of this Court makes the Civil Practive Act, Ill. Rev. Stat. 1949, Chap. 110, applicable to actions in this Court except as otherwise provided in our rules. Under the Civil Practice Act, recoupment can only be asserted by a counterclaim. Ill. Rev. Stat. 1949, Chap. 110, Sec. 162. But the filing of a counterclaim under the Civil Practice Act is not mandatory. Grodsky v. Sipe, 30 F. Supp. 656. Bespondent having failed to file a counterclaim, we must, therefore, conclude that no order can be made in favor of respondent to recover the net overpayment to claimant.

Isabel Irlam, Jacksonville, Illinois, was employed to take and transcribe the testimony before Commissioner Summers. Her charges amounted to $10.00, and an award is entered in her favor for such sum.

Award to claimant denied. Becoupment to respondent denied for failure to plead same by counterclaim.

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


source: Caselaw Access Project

author: Delaney, J.

license: Public Domain

text:
    (No. 4255
    Harry C. Jewsbury, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    G. R. Schwarz, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This complaint filed December 27, 1949, alleges that claimant, Harry C. Jewsbury, was injured by reason of an accident occurring on the 21st day of May, 1941, while claimant was engaged in operating á road grader which was being pulled by a State highway truck. The grader started suddenly, throwing claimant backward off of the grader to the gfound, injuring the back of the claimant. After receiving the injury on May 21, 1941, the claimant continued to work for the State Highway Department until he was forced to resign his position in June of 1948, when he was forced to undergo surgery for the correction of the back injury.

The record consists of the complaint, motion of respondent to dismiss, notice to call up motion to dismiss, claimant’s reply to respondent’s motion to dismiss.

It appears from the record that claimant has failed to comply with. Section 24 of the Workmen’s Compensation Act of this State, which provides that no proceedings for compensation under the Act shall be maintained unless claim for compensation has been made within six months after the accident, and unless application for compensation is filed within one year after the date of the injury, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid. Failure to file complaint within the one year period under Section 24 bars the right to file such application thereafter. The motion of the Attorney General to dismiss' is hereby allowed.

Complaint dismissed.


text:
    (No. 4266
    Socony Vacuum Oil Company, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1950.

    W. W. Sleater, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Socony Vacuum Oil Company, Incorporated, is engaged in the manufacture and sale of petroleum and petroleum products. During the years 1948 and 1949, claimant supplied gasoline, oil and grease to the various departments of the respondent.

From the report of the Division of Highways, which forms a part of the record, it appears that the claimant furnished gasoline, oil and grease to the various departments of the State of Illinois. The departmental report also shows that the sales tickets of claimant were not presented for payment by claimant before the appropriations and funds from which these invoices were payable had lapsed, but that sufficient unexpended balance remained had claim been filed in reasonable time.

Claimant furnished properly and duly authorized materials to the respondent, for which it has not received payment. This Court has repeatedly held that where materials or supplies have been properly furnished to the State, and a bill therefor has been submitted within a reasonable time, but the same was not approved and vouchered for payment before the lapse of the appropriation from which it is payable, an award for the reasonable value of the supplies will be made, where, at the time the expenses were incurred, there were sufficient funds ' remaining unexpended in the appropriation to pay for the same.

Carl S. Johnson v. State, 16 C.C.R. 96; Rock Island Sand and Gravel Co. v. State, 8 C.C.R. 165; Oak Park Hospital v. State, 11 C.C.R. 219; Yourtee-Roberts Sand Co. v. State, 14 C.C.R. 124.

The departmental report shows that the two purchases for oil and gasoline in the amount of $4.33, made by the employees of the Secretary of State, were paid by the employees at the time the materials were received, and the amount as set forth in claimant’s complaint will be reduced accordingly.

An award is, therefore, entered in favor of claimant for the sum of $77.77.


author: Lansden, J.

text:
    (No. 4112
    Emma Stephens, administrator of the estate of Robert Eugene Stephens, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 18, 1950.

      Petition of Claimant for Rehearing denied June 6, 1950.

    Schmiedeskamp & Deege and Barber & Barber, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Emma Stephens, as Administrator of the Estate of Robert Eugene Stephens, deceased, seeks to recover from respondent under the Wrongful Death Act, Ill. Rev. Stat. 1947, Chap. 70, for the alleged negligence of respondent in failing to barricade a culvert and drain or place warning signs nearby as a result of which claimant’s intestate fell into the hole sustaining injuries from which he died.

On August 22, 1947, shortly after midnight, claimant’s intestate and his cousin, Harold Stephens, were returning from an Old Settlers carnival at Clayton, Hlinois, driving along U. S. Highway 24. The evidence also tends to show that they were accompanied by another person, one Robert Devergier, but the record is not clear on this point. Nevertheless, abont seven-tenths of a mile west of Clayton, the car stopped and the two Stephens boys got ont. Claimant contends that the purpose of the stop was for the boys to take care of the call of nature.

The car was stopped on the north shoulder off of the paved portion of the highway about 40 feet east of the culvert which extended under the highway. Shortly thereafter Harold Stephens was found unconscious and bleeding lying on the rock strewn bed of the drain, and claimant’s intestate was found staggering around in the vicinity of the culvert with a severe head injury and other lacerations.

Both boys had travelled at an angle from their car across 18 feet of paved hig’hway, 6 feet of shoulder and 8 feet of sloping bank to the edge of the culvert and drain which was 40 feet forward of their automobile, or a distance of not less than 50 feet. The depth of the hole into which both fell was about 15 feet, the sides of which were almost perpendicular.

• Neither Harold Stephens nor Robert Devergier testified. The record indicates both were in the navy in the Pacific at the time of the hearing before Commissioner Jenkins.

The last persons who saw the Stephens boys prior to the accident were at a tavern one mile from the scene when the boys were requested to leave because of boisterous conduct. The record shows no intoxication of either Stephens boy.

The record is devoid of any evidence as to the circumstances of the accident.

Claimant maintains that the failure of Harold Stephens and Robert Devergier to testify cannot result in an adverse presumption against her. This Court will assume claimant is correct, but will not decide the point. Claimant then maintains that proof of careful habits of claimant’s intestate is admissible because the only eyewitnesses were unavailable to her for purpose of testifying. Even if we also assume that, under the circumstances, evidence of careful habits would be admissible, the record is lacking in any evidence of such habits.

An award must, therefore, be denied for failure of claimant to introduce any evidence of the freedom from contributory negligence of claimant’s intestate, either by direct testimony of eyewitnesses or by inferences through evidence of the careful habits of claimant’s intestate. I.C.R.R. Co. v. Oswald, 338 Ill. 270.

Due care on the part of the deceased at the time of the accident to which there were no eyewitnesses cannot be presumed from the mere fact of the happening of the accident and a consideration of the human instinct of self-preservation. Newell v. C.C.C. & St. L. Ry. Co., 261 Ill. 505.

We have in this opinion discussed only the crucial facts and law which we deem to be controlling. Our failure to discuss other facts and propositions of law does not mean that we have not carefully considered them. However, on the state of the record as a whole, we conclude that, other than the question of contributory negligence hereinbefore discussed, an award would be based only on conjecture and speculation. An award cannot be predicated on such a shaky and unstable base. MacLeod v. State, 17 C.C.R. 167; Sprague v. State, 14 C.C.R. 116.

Award denied.


text:
    (No. 4121
    Louise Courtney, a minor, by Clem Courtney, her father and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    James O. Monroe and Joseph R. Bartylak, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Lonise Conrtney, a minor, by Clem Courtney, her father and next friend, seeks to recover the sum of $2,500.00 for injuries sustainéd by her allegedly as the result, of the negligence of respondent.

Previously an opinion was filed in this case, one justice dissenting, denying an award. On petition of claimant we granted a rehearing, and we have now reached the conclusion that our original opinion was in error and that claimant is entitled to an award in the sum of $2,500.00.

On October 5, 1946, in the forenoon, claimant, then nine years of age, and a playmate, Gloria Jeanne Lntz, while going to claimant’s home from a nearby grocery store, were walking along Highway No. 157, near Casey-ville, Illinois. The two children proceeded in a northerly ■direction along the right side of the highway and started across a viaduct on the highway over the tracks of the Pennsylvania Railroad. For some distance from each end and for the entire length of the viaduct the paved portion of the highway was forty feet wide. The normal eighteen foot width of the highway connected directly with the forty foot portion.

At the southeasterly corner of the span of the viaduct, a concrete stairway led down to the level of the railroad tracks through a four foot opening on the easterly side of the highway between the end of the concrete abutment of the viaduct and the timber fence bordering the highway. The stairway ran in a northeasterly direction away from the viaduct and at the top of the stairway there was a sloping concrete platform approximately flush with the four inch cnrb. This platform was less than two feet wide at its north end and approximately three feet, six inches wide at the south end. This irregular shape was due to the angling of the stairway away from the viaduct at other than right angle. The stairway contained thirty-nine steps.

A metal pipe handrail ran the full length of the northerly side of stairway starting from a perpendicular pipe set in concrete at the northeast corner of the platform. There had once been a similar handrail along the southerly side of the stairway, but it had been broken off or stolen some time prior to October 5, 1946. The only portion of the southerly handrail fixtures that remained were four “stobs” or projections of pipe set in concrete about two inches high and two inches in diameter, one of which was located in the southeast corner of the stairway platform, six inches from the easterly edge and three inches from the southerly edge. These “stobs” were threaded so that pieces of pipe could be screwed into them as uprights for the handrail and the handrail when in place would rest on the top of the uprights.

The highway, viaduct, stairway and approaches were all under the control of respondent through the Department of Public Works and Buildings, Division of Highways. Bespondent knew for some time prior to October 5,1946, that the handrail was missing and that the ‘ ‘ stob ’ ’ on the stairway platform stuck up at the southeast corner thereof.

As claimant and her friend approached the gap at the stairway platform, a car coming from behind caused both of them to step onto the platform to be certain "they were out of the way, since there was no sidewalk on the viaduct or leading thereto. The Lutz child stepped on the narrow northerly portion of the concrete platform by the handrail and claimant stepped on the broader southerly portion and in so doing her foot struck the “stob” imbedded in concrete and she tripped and fell the full length of the thirty-nine steps, sustaining severe injuries, including a fractured skull, concussion of brain, compression of skull and eye injuries.

Claimant was immediately taken to St. Alary’s Hospital in East St. Louis, Illinois, where she remained in a coma for two weeks, and was hospitalized for six weeks. Her medical and hospital bills amounted to approximately $500.00.

At the time of the hearing, claimant had a disfiguring scar on her head. Her forehead was somewhat deformed, and her head still contained a depression. She had missed one entire school term due to her injuries and long convalescence.

The above facts are not seriously disputed, but the inferences to be drawn from them are. Respondent’s chief ground of argument is that claimant has not proven freedom from contributory negligence and, therefore, an award must be denied for failure to prove this sine qua non of Illinois law. Since this Court must function as both judge and jury, we hold that both as a matter of law and of fact, claimant was not guilty of contributory negligence.

Claimant was nine years of age at the time of the accident. A child between the age of seven and fourteen years is only held to a standard of care commensurate with that of children of like age, experience and understanding. Hughes v. Medendorp, 294 Ill. App. 424; Moser v. E. St. L. & Int. Water Co., 326 Ill. App. 542; Levin v. Lauterbach Coal & Ice Co., 329 Ill. App. 180.

The concrete platform was to all intents and purposes a sidewalk. That was what it was intended to be used for. For claimant it served not only such purpose but as an island of safety from a danger which reasonably she apprehended due to the approach of a car behind her. She had a right to use the platform for either purpose. Courts in this State have held that children may use sidewalks for purposes of play and recreation in addition to normal usages. Waverly v. Reeser, 93 Ill. App. 649; City of Chicago v. Cohen, 139 Ill. App. 244.

The negligence of others need not be anticipated either by adults or children. Koepke v. Chicago, R. I. & P. Ry. Co., 200 Ill. App. 247; Kittier v. Chi. & W. Ind. R. Co., 203 Ill. App. 439.

. A person using a sidewalk may ordinarily assume it is in reasonably safe condition and need not keep his eyes fixed on the pavement to search out defects and dangers. Graham v. City of Chicago, 346 Ill. 638.

In City of McLeansboro v. Trammel, 109 Ill. App. 524, 526, the Court said:

“A failure to look at one’s pathway does not necessarily preclude recovery.”

And in City of Chicago v. Babcock, 143 Ill. 358, 363, the Court said:

“A person passing along a sidewalk ... is required to use ordinary and reasonable care and diligence to avoid danger, but wbat is ordinary and reasonable care depends upon tbe circumstances of each particular case ... A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person -is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule. ...”

On the authority of the above cited cases, claimant was not guilty of contributory negligence and respondent was guilty of negligence in not warning of the danger inherent in the “stob” and the missing handrail. With knowledge of such defects, respondent is liable. Pomprowitz v. State, 16 C.C.R. 230; Jessup v. State, 16 C.C.R. 227; Toler v. State, 16 C.C.R. 315; Rickleman v. State, No. 4195, opinion filed October 20, 1949; City of Taylorville v. Stafford, 196 Ill. 288.

The last cited case is somewhat similar on the facts to this case in that plaintiff therein tripped over a “stob” in a sidewalk. The Court therein assumed that plaintiff could recover on the facts proven and discussed only the' proof required to show knowledge on the part of defendant of the existence of the dangerous and defective condition of the sidewalk.

From the foregoing we hold that claimant has proven her case by a preponderance of the credible evidence. To deny recovery in this case would be to disregard all facts and reasonable inferences therefrom and to run counter to the purport of the above cited cases. Respondent has called to our attention no authorities which are contrary to those we have cited.

However, respondent does contend that, since claimant was walking on the right and not the left side of the highway prior to the accident, she was in violation of Chapter 95%, Section 175 of the Uniform Act Regulating Traffic on Highways and should be barred from recovery. Although the applicability of said statute to claimant is doubtful, since she was on the concrete platform at the time of the accident and since she was not struck by a vehicle, the courts in this State have, under facts similar to those in this case, held that claimant would not be contributorily negligent as a matter of law. Blumb v. Getz, 366 Ill. 273; Alden v. Coultrip, 275 Ill. App. 306; Rowley v. Rust, 304 Ill. App. 364.

As to the issue of damáges we feel that claimant in any court would be entitled to more than $2,500.00, because of the seriousness and permanency of her injuries, but Section 8 C of the Court of Claims Act, Ill. Rev. Stat. 1949, Chapter 37, Section 439.8, limits our award to such amount in cases sounding in tort. That such recovery is limited should not make the citizens of this State lose sight of the fact that some recovery is now permitted in types of cases where prior to the 1945 Court of Claims Act awards were uniformly denied.

An award is, therefore, entered in favor of Louise Courtney, a minor, by Clem Courtney, her father and next friend, in the amount of $2,500.00.


author: ScHUMAN, C. J.

text:
    (No. 4177
    Melvin W. Newman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    William L. Carlin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William J. Colohan, Assistant Attorney General, for Respondent.
   ScHUMAN, C. J.

Claimant sustained an injury to Ms left knee on March 1, 1948 wMle employed by the Division of Highways, under the classification laborer-construction.

There are no jurisdictional questions involved. All temporary total disability payments have been made. Claimant also seeks to recover for an injury to Ms left elbow. It is undisputed that this' injury did not occur in the course of his employment. Therefore no recovery can be allowed for this injury. Claimant’s, earnings in the year preceding Ms injury were $2,480.00.

Dr. H. B. Thomas, professor emeritus of orthopedics, Illinois University, College of Medicine, examined and treated claimant. In his opinion claimant has sustained 20% total disability to left leg/ This is the only medical evidence offered.

From the evidence, claimant is entitled to an award of 20% total disability of the left leg.

Rothbart and Sewell have submitted a statement for $35.80 for stenographic services. The claim is reasonable and is allowed.

William J. Cleary & Co. have submitted a statement, for stenographic services. The claim is reasonable and is allowed.

Claimant was overpaid for non-productive time in the amount of $129.34. This amount will be deducted from the award.

On the basis of this record, we make the following award:

20% permanent partial specific loss of the use of the left leg in tfie amount of $741.00, less tfie sum of $129.34 paid for non-productive time, making an award of $611.66, all of wfiicfi lias accrued and is payable forthwith.

An award is also entered in favor of Rothbart & Sewell for stenographic services in the amount of $35.80, which is payable forthwith.

An award is also entered in favor of William J. Cleary & Co. for stenographic services in the amount of $21.10, which is payable forthwith.

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


author: ScHTTMAK, C. J.

text:
    (No. 4200
    Dr. Ethel A. Chapman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    Helen L. Glennon, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   ScHTTMAK, C. J.

Claimant worked from January 1, 1937, to April 1, 1947, at the Elgin State Hospital and from April 1, 1947, to August 18, 1948, at the Chicago Community Clinic as a physician. At the Elgin hospital her duties were to make physical and" mental examinations of patients. That she was also relief physician on the Tuberculosis Service and in that capacity she visited the tuberculosis ward about once a week.

The regular work we'ek at the Elgin hospital was 48 hours. During war years and after, from 1942 to 1947, there was a shortage of physicians. Claimant worked extra in the evenings as much as eight or nine hours a week. In addition claimant was on O. D. duty every seven or eight days, which meant she was on call from five o ’clock in the evening to eight o’clock the next morning.

Claimant left the Chicago Community Clinic because of a diagnosis that she had minimal active pulmonary tuberculosis on August 18,1948. She was at the Edwards Sanitarium, Naperville, Illinois, for 90 days, and from November, 1948, until September 1, 1949, she remained at home.

There is no question from the evidence that claimant was exposed to tubercular patients in the performance of her duties.

Dr. Jerome E. Head testified he saw claimant on August 11, 1948, and diagnosed her ailment as minimal pulmonary tuberculosis; and that there might be a causal relation between the illness of claimant and her employment.

Dr. Hoffron testified for the State and stated he was Assistant Superintendent of Elgin hospital. That he knew claimant. That the rules prescribed that personnel were to don gowns and masks. That during 1942-1946 there was a shortage of physicians and because of this it was necessary to work three to ten hours a week overtime, at night.

Dr. Burock, the Acting Superintendent at the Chicago Community Clinic, testified that clinic did not treat active tubercular patients. That in August, 1948, claimant had a test X-ray which indicated tuberculosis and that she had to leave the service due to illness.

Dr. Teller testified as to his duties at the Elgin hospital and the Chicago Clinic and that rules required physicians to wash after leaving T. B. ward, and wear gowns and masks while in the ward.

The claim, as filed in this Court, predicated respondent’s negligence in failing to maintain proper facilities and adequate staff as the proximate cause of claimant’s illness.

The brief of claimant predicates the basis of the claim that respondent violated “An Act concerning the hours of employment of females in certain occupations” (Ill. Rev. Statutes, 1949, Chap. 48, Sec. 5) which reads in part, “No female shall be employed ... in any public .. . institutions or offices thereof, incorporated or unincorporated in this State, more than eight hours during any one day nor more.than forty-eight hours in any one week.”

The evidence shows claimant earned in the year immediately before her illness $5,820.00. Claimant was paid $1,943.65 for the period October 7, 1948, to April 7, 1949, and a total of $2,053.17 for unproductive time.

It has been previously held in Norman v. State, 16 C.C.R. 128 at 131-132, as follows:

“The State not having elected to provide and pay compensation under Section 4 of the Workmen’s Occupational Diseases Act, the employee has a right of action, under Section 3 of the Act. That section provides that violation hy an employer of any Statute of this State, intended for the protection of the employees, shall constitute negligence of the employer within the meaning of this section.”

The evidence shows that claimant was required to work a great deal of overtime in her work and more than eight hours a day¿ and more than 48 hours a week, and frequently came in contact with tubercular patients. Under the holding of the case of Norman v. State, supra, this was a violation of “An Act concerning the hours of employment of females in certain occupations” (Ill. Rev. Statutes, Chapter 48, Section 5). Claimant did not come within any of the exceptions in said statute and accordingly is under the terms and provisions of said statute.

As previously held in the Norman v. State, supra, the violation of this statute constitutes negligence under Section 3 of the Workmen’s Occupational Diseases Act.

It is apparent claimant has misconceived her remedy. There is a claim made for compensation under the Act. Her remedy under Section 3 is for damages due to the negligence of the State. The Court will so construe her claim as one for damages for the reason the case was tried on that theory.

Claimant, it was admitted, earned $5,820.00 the year before her illness. The fact she was paid wages and compensation would not bar a recovery for damages, although the Court will consider the same in assessing damages.

The Court concludes that the claimant should be awarded $1,000.00 as damages for the illness she received.

A statement for stenographic services was submitted by William J. Cleary Co. in the amount of $94.13, which is found to be reasonable.

An award in the amount of $94.13 is allowed to William J. Cleary Co.

An award is therefore entered in favor of claimant in the sum of $1,000.00.

An award is entered in favor of William J. Cleary Co. for stenographic services in the amount of $94.13.


text:
    (No. 4207
    Helen Stanovich, widow, et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    Joseph it. Bartylak, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

The claimant, Helen Stanovich, widow, and personal representative of Daniel Stanovich, deceased, filed her complaint on June 24, 1949, alleging that Daniel Stanovich received severe and critical injuries in the course of treatment at Alton State Hospital, and that he died as a direct and proximate result of said injuries.

She alleges that Mr. •Stanovich entered the institution on June 23, 1948, and the hospital records show he was admitted as an emergency patient under provisions of the Revised Mental Health Act. Claimant further alleges that certain mental patients confined to the institution aided the hospital attendants in handling and treating the deceased, and that Daniel Stanovich received injuries while being treated that caused his death on June 25, 1948. In Paragraph 3 (i), the claimant alleges that this claim is brought under the provisions of the Court of Claims Act which gives the .Court limited jurisdiction of tort claims, arid the provisions of the wrongful death statute. In Paragraph 6 of the complaint, claimant alleges that her claim sounds in tort.

The record in this case consists of the complaint, brief and arguments of both the claimant and respondent.

The claimant contends that the respondent was negligent when the better mental patients were permitted to aid the attendants in their care of the disturbed patients, and that Daniel Stanovich received, injuries causing his death due to acts of these mental patients.

The testimony showed that Daniel Stanovich entered the Alton State Hospital for treatment^ after one initial examination, the patient was given a bath and placed in the diagnostic ward. The deceased became resistant and combative, and he was placed in the disturbed ward and administered a drug to quiet him. During the time the deceased remained in the disturbed ward he received a slight laceration of the lower lip and a subcutaneous hemorrhage of the left eye. Later the deceased had to be placed in a pack, which is a wet sheet that is a treatment to quiet down disturbed patients. Two days later, on June 25, 1948, Daniel Stanovich was found dead in bed. The last time he was seen alive he was sleeping normally. It is the claimant’s contention that the death of Daniel Stanovich was caused from exhaustion due to the negligent care furnished by respondent.

Dr. Michael Nakutny and Dr. C. Siegfried Gruenwald, staff physicians, and Dr. Abraham Simon, Superintendent, of the Alton State Hospital, testified as to -their knowledge of deceased’s general physical and mental condition and also in regard to their findings at the antopsy. It was found at the autopsy that deceased was .suffering from syphilitic meningoencophalitis, and the infection was active at the time. The testimony of claimant consists of observations of Mr. Stanovich but gave .no conclusion as to the cause of death.

The claimant predicates her action on the provisions •of “An Act requiring compensation for causing death by wrongful act, neglect or default.” Section 1 of the said Act (Chap. 70, Sec. 1, Ill. Rev. Stats., 1949) provides:

“Be it enacted by the People of the State of Illinois, represented in the General Assembly:. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or •corporation which would have been liable if death had not ensued, .shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”

Under the provisions of the said Act, it is clear that a claimant must allege and prove a wrongful act, neglect or default which caused the death. The Supreme Court of Illinois in the case of Holton v. Daly, 106 Ill. 131, said at page 138:

“And it has accordingly since been held the declaration must aver, .and the proof must establish, a wrongful act, neglect or default of defendant, causing the death of the intestate under such circumstances as would entitle him to maintain an action if death had not ensued, .and the fact of survivorship, and the name or names of widow or next • of kin.”

In the more recent case of Mooney v. City of Chicago, 239 Ill. 414, the Court said at page 421:

“It was necessary, in addition to the facts stated in the instruction, for the jury to find that the injury was the cause of Dillon’s death. He was not killed at the time of the accident, so that it cannot be said there was no other conclusion at which the jury could have arrived .on that question, and the omission, therefore, was material. The substance of the right of action conferred by the statute is, that the death', of a person shall be caused by the wrongful act, neglect or default of another.”

Of similar effect are the holdings in Wilcox v. Int. Harvester Co., 278 Ill. 465, and Biddy v. Blue Bird Air Service, 374 Ill. 506.

From these authorities, it is clear that the claimant, having alleged an action for wrongful death, must prove the cause of death.

We are of the opinion that there was no wrongful death in this cause, and an award is denied.


author: S CHUMAN, C. J.

text:
    (No. 4217
    Samuel R. Prather, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    John P. Meyer, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Eespondent.
   S CHUMAN, C. J.

Samuel E. Prather, claimant, was an employee of the Department of Public Works and Buildings, Division of Highways, and was employed as a highway section man from March 24, 1941, to date of his injury on January 31,1949. On that date he was sixty-seven (67) years of age, married and had no children under sixteen (16) years of age dependent upon him for support. During* the year preceding the injury he was paid a salary of $2,436.00 at the rate of $203.00 per month.

On January 31, 1949, in the forenoon he was engaged in plowing snow and in the afternoon he went to the Highway Garage in Danville to change a hlade on the plow; that he was assisted in this work by a fellow employee and while moving from one side of the snowplow to the other he struck his right knee against the blade; that the knee started hurting immediately and he went home and on the next day was attended by Dr. Dickerson. Later, at the request of the Highway Department, he was sent to Chicago, where he was treated by Dr. H. B. Thomas on several occásions. Also on these trips to Chicago he was given diathermy treatments and on one occasion suffered a burn. He was later attended by Dr. S. C. Crispin of Danville, Illinois. He was discharged by Dr. Thomas on April 19, 1949. During his ■disability he was paid full salary through February 28, 1949, and compensation at the rate of $19.50 per week from March 1, 1949, to April 19, 1949, inclusive, making .a total payment of $342.28. Sometime during his period of disability Mr. Prather was discharged by the Division ■of Highways and did not return to work.

The evidence and departmental report disclose that claimant was injured in an accident arising out of and in the course of his employment; that proper notice and claim were made and that the complaint was filed within the time required by statute.

Claimant has asked for an additional amount of medical care and attendance to correct the injury, for sixty-four weeks temporary total disability and for one hundred ninety weeks loss of use of leg.

There is no showing that Mr. Prather is entitled to any additional temporary total disability since he was paid to date of April 19, 1949. There is proof that he was not completely reimbursed by the State for his expenses and lie should be allowed an additional amount of $5.00 for meals while on his trip to Chicago, $15.00-for taxi fare and $6.50 for X-rays at Lake View Hospital,, making an additional amount of $26.50.

There is also evidence- that claimant had a permanent partial disability of the right leg at the time of the. hearing due to the accident in question. Dr. Thomas, in his final report on April 19, 1949, stated that claimant, was discharged as of April 19, 1949, with no disability.. Several X-rays were taken by Dr. Thomas but they were not produced at the hearing and the record shows that claimant, through his attorney, 'Mr. Meyer, made an attempt to secure these X-rays from Dr. Thomas and. Mr. Guy but same were never received. Dr. Paul Kaminski of Danville, Illinois, a specialist in bone and joint surgery, testified that he saw Mr. Prather on May 28, 1949, and on November 14, 1949. He testified that Mr. Prather suffered from a torn cartilege in the right knee which was followed by scar formation; that there was a. moderate degree of atrophy of the quadricep muscles which control the straightening of the leg at the knee; that there was a mild swelling of the knee and that the claimant complained of a tenderness and pain over the inter aspect of the front side of the right knee; that claimant lacked about 5 degrees of complete extension and was able to flex to 90 degrees, whereas normal was 135 degrees; that the knee was susceptible of locking and. giving away, although he had never seen the claimant when that happened, and that he recommended an operation. Dr. Kaminski also testified that he had seen the claimant when he had suffered from the diathermy burns. The evidence of claimant, his wife, fellow employees and employer was that he had only worked for a period of several .weeks since the accident and that lié was unable to do work that involved the use of the leg.

There is no dispute that claimant sustained an injury to his right knee resulting in some loss of use of the right leg. There is a conflict in the medical testimony, but a reasonable deduction therefrom indicates some loss of use. The Commissioner saw claimant and examined his leg. It is the opinion of the Court that claimant has suffered a 30% loss of use of the right leg.

Claimant was overpaid for non-productive time the :sum of $125.00, which will be deducted from the award.

Claimant was entitled to the sum of $26.50 for expenses incurred in treatment by the State doctor.

Claim is made by Juanita 0. Craig for stenographic services in the amount of $78.00. This amount is found reasonable and is allowed.

On the basis of this record, we made the following award:

30% permanent partial specific loss of the use of the right leg in the amount of 57 weeks at $19.50 per week or a total of $1,111.50. From this sum is deducted the sum of $125.00, being overpayment for nonproductive time, making the award $986.50. All of which has accrued and is payable forthwith.

An award is also entered in favor of claimant in the amount of $26.50 for expenses, making a total award of $1,013.00, all of which has accrued and is payable forthwith.

An award is entered in favor of Juanita 0. Craig for stenographic services in the amount of $78.00.

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


text:
    (No. 4222
    Cecil J. Cavanaugh, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    Scott W. Cleave, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for-Eespondent.
   Delaney, J.

This complaint was filed August 10,1949. The record consists of the complaint, transcript of the testimony, and Departmental Eeport. No jurisdictional question is raised.

The claimant, Cecil J. Cavanaugh, 46 years of age, on October 11, 1948, was employed by respondent in the Department of Public Works and Buildings, Division of Highways, as an equipment operator. At approximately 1:30 that afternoon, about three miles southeast of Urbana, Mr. Cavanaugh was asked to start a Caterpillar tractor motor. As he cranked the tractor motor, it backfired, causing the crank to spin backward. The sudden backward motion of the motor crank fractured Mr. Cavanaugh’s left radius one-half inch above the wrist joint. A Division supervisor took Mr. Cavanaugh to Dr. L. M. T. Stilwell of Champaign, Illinois, for treatment. Dr. Stilwell reported, “Complete transverse fracture of the radius, treatment reduction of fracture, application of cast and sling. ” It is our opinion that claimant be allowed twenty (20) per cent loss of use of left hand.

Claimant was paid full salary from October 12, 1948, to October 31, 1948, and compensation at the rate of $19.50 per week from November 1, 1948, to January 31, 1949, making a total payment of $362.74. Claimant returned to work for about four days the first of February and then was discharged by the State of Illinois.

The Departmental Report and the evidence disclose that claimant was paid compensation to January 31,1949, but the evidence further discloses that he was not able to resume his former occupation at that time, and that no other job was provided. We are of the opinion that he be allowed five weeks ’ additional temporary total disability at the compensation rate of $19.50 per week, or a sum of $97.50. Claimant was overpaid for non-productive time for the period of October 12, 1948, to October 31,1948, in the amount of $50.71.

An award is, therefore, entered in favor of claimant, Cecil J. Cavanaugh, for a twenty (20) per cent loss of use of left hand as a result of the accident. For such permanent loss of use of left hand, under Section 8, Paragraph (e) 12, the claimant should receive from the respondent the compensation rate of $19.50 per week for 34 weeks, or the sum of $663.00, and an award is also entered in the sum of $97.50 for five weeks’ additional temporary total disability, or a total award of $760.50, deducting the amount of $50.71 from the award, thereby making a net award in the amount of $709.79, all of which has accrued and is payable forthwith.

Respondent has paid the following creditors in connection with Mr. Cavanaugh’s injury: Dr. L. M. T. Stilwell, $125.00; Mercy Hospital, $14.60; and Burnham City Hospital, $43.50; or a total of $183.10.

Louis W. Temple, Court Reporter, has rendered á statement for $77.50 for the taking and transcribing of‘ the evidence. This charge is fair and reasonable.

An award is, therefore, entered in favor of Lonis W.Temple for taking and transcribing the testimony in this-case in the amount of $77.50.

This award is subject to the approval of the Governor as provided in Section 3 of “An Act concerning the' payment of compensation awards to State employees.”1


text:
    (No. 4228
    Belle Davis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    Albert N. Kennedy, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William II.. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Belle Davis, seeks to recover under the' Workmen’s Compensation Act as a result of an injury that arose out of and in the course of her employment as-an attendant at the Dixon State Hospital, Dixon, Illinois,, operated by the Department of Public Welfare.

Claimant went to work at 11 P.M. on December 31,. 1948, and at approximately 1:15 A.M. on January 1,1949,. she was attacked by a patient, who pushed her with such, force against a door that her left elbow was fractured at the distal end of the humerus. Claimant also was knocked down and sustained some rather severe contusions, all of which cleared up satisfactorily.

Claimant was hospitalized at the institution’s hospital until March 3, 1949. Her arm was placed in a cast after X-rays disclosed the fracture of the humerus and irregularities in the proximal ends of both the radius and the ulna. During her period of hospitalization, she was. kept in bed and after the removal of the cast massage was used to get' the muscles of her arm loosened up. Claimant was determined to be able to return to work on. April 1, 1949.

However, claimant did not return to work until May, 1949, and in June, 1949, she took a leave of absence, and she has not worked since because she was let out on account of her physical' condition not related to the accident.

No jurisdictional questions are involved, and the only question for determination is the degree of loss of use of claimant’s left arm. True it is that some evidence was introduced as to claimant’s permanent partial disability, but this evidence is not convincing either as to causal connection with the accident on January 1, 1949, or the-extent, and failure to prove reduction in earning capacity is fatal to any recovery on this ground. Cogdill v. State, 18 C.C.R. 24; Merritt v. Ind. Com., 322 Ill. 160; Rohles v. State, No. 4223, opinion filed May 9, 1950; Molsen v. State, No. 4168, opinion filed February 14, 1950.

Although somewhat vague, medical testimony disclosed that the extension of claimant’s left arm is limited about 45 per cent. Flexion is limited 10 per cent. Abduction is definitely limited, and there is minor limitation in swinging the arm forward and backward. Commissioner Wise, who heard the testimony, has recommended that claimant be given an award for 25 per cent loss of use of left arm and with this recommendation we agree. See Angerstein: The Employer and the Workmen’s Compensation Act of Illinois, Sec. 306.

Claimant also seeks to recover $36.00 for medical treatment and X-rays paid for by her. Aside from the fact that some of the treatment was for complaints not related to the accident, claimant elected to pay for this medical treatment herself, and respondent is not liable for this item. Sec. 8 (a), Workmen’s Compensation Act.

Helen Heckman, Dixon, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Charges in the amount of $28.80 were incurred, which charges are reasonable. An award is, therefore, entered in favor of Helen Heckman for $28.80.

On the date of the accident, claimant was 64 years of age, married, but had no children under 16 dependent on her for support. Her earnings in the year preceding the date of the accident amounted to $2,100.00, and her rate of compensation is $19.50 per week.

During the time claimant was totally and temporarily disabled she was paid the sum of $385.00, but she was entitled to receive at the rate of $19.50 per week only the sum of $250.71, or an overpayment of $134.29.

An award is, therefore, entered in favor of claimant, Belle Davis, under Section 8 (e) (13, 17) of the Workmen’s Compensation Act, for 25 per cent loss of use of her left arm (56% weeks), being the sum of $1,096.87. Erom this should be deducted the overpayment of $134.29, leaving a net award of $962.58, all of which has accrued and is payable forthwith.

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


text:
    (No. 4230
    Frances Lapinski, widow of Frank E. Lapinski, deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    W. Ben Morgan, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Frances Lapinski, widow of Frank E. Lapinski, deceased, seeks to recover under the Workmen’s Compensation Act for the death of her husband on September 12, 1949, allegedly as the result of an accidental injury which decedent sustained in the course of his employment on September 2, 1949.

No jurisdictional questions are involved in this case filed on October 1, 1949.

On the date of the accident decedent was employed by the Department of Public Welfare as an attendant at the Elgin State Hospital. While decedent was engaged in moving patients from a dormitory to a day room, one of the patients turned and struck at decedent, who raised his arm to fend off the blow. In so doing decedent lost his balance and fell, sustaining an intertrochanteric fracture of his left femur with comminution.

Decedent was immediately hospitalized at the institution’s hospital under the care of staff doctors.

Decedent was scheduled for surgery the next day, "but this was canceled when decedent ran a temperature, the doctor in charge of the case fearing the onset of pneumonia. However, such never did develop, although X-ray findings disclosed evidence of pneumoconiosis in "both lung fields. Penicillin was administered, and decedent’s left leg was put in traction.

On September 6, 1949, lack of bowel sounds and the inability of decedent to expel an enema, indicated paralysis of the bowels. By September 10, 1949, this condition was cleared up and decedent was again scheduled for surgery, but on September 12, 1949, at about 11:30 P.M., he complained of difficulty in breathing. He was somewhat ■cold and clammy. Decedent suddenly expired that night, although he had been in good spirits and had made no complaints earlier in the evening.

Two doctors testified for claimant, one of whom was -decedent’s attending physician. Both were of the opinion that decedent’s death was due to either a fat embolism from the fracture site being absorbed and carried to the lung or heart or a coronary occlusion. But such doctors tended to favor the former as the immediate cause of •death primarily because a fat embolism occurs, if ever, four to fourteen days after the fracture, and in such type •of comminuted fracture such could be expected in a certain number of cases. Coronary occlusion was apparently ruled out because of decedent’s prior condition of good health. No doctors testified for respondent.

To hold that decedent did not die as a result of something directly traceable to the accident which occurred ten days prior to his death, would require this Court to reject in toto the considered opinions of the two doctors who testified. This we shall and should not do. We, therefore, conclude that decedent’s death resulted from the accidental injury which he sustained ten days prior to liis death., the same arising out of and in the course of his employment. Superior Coal Co. v. Ind. Com., 336 Ill. 568.

Claimant testified that she and decedent were married in 1904 and were still married at the time of his death. Three sons were born of this marriage. The sons were all of age at the time of decedent’s death, and one of them was present with his mother at the hearing before Commissioner Wise. Claimant and decedent had not lived together for five years prior to the date of the accident. She lived with one of her sons in Michigan, and decedent sent her only a very small amount of money because she did not need it, since she was also working. Decedent did visit her and the sons in Michigan in 1948. Claimant and decedent had planned to save money so they could buy a place in Michigan and live together again.

Claimant is entitled to an award as the widow of decedent under Section 7 (a) of the Workmen’s Compensation Act, since he was under a legal obligation to support, her. Goelitz Co. v. Ind. Bd., 278 Ill. 164; Smith-Lohr Coal Mining Co. v. Ind. Com., 286 Ill. 34. No other persons are eligible to be included in the award.

On the date of the accident decedent was 65- years of age, and his earnings in the year prior thereto amounted to $2,131.37. The rate of compensation is $22.50 per week. The sum of $64.34 was paid to decedent from the date of his injury to the date of his death, although he performed no services for respondent. Such amount will have to be deducted from the award hereinafter entered, although part of it can properly be considered as compensation for temporary total disability, the remainder is for non-productive time. Section 7 (a) Workmen’s Compensation Act.

Mary Alice Spring, Elgin, Illinois, was employed to take and transcribe the testimony before Commissioner Wise. Her charges amounted to $37.00, and an aivard is entered in her favor for such amount.

An award is entered in favor of claimant, Frances Lapinski, under Section 7 (a), (L) of the Workmen’s Compensation Act, in the amount of $6,000.00 less overpayment of $64.34, or a net award of $5,935.66, payable as follows:

$ 887.14, less overpayment of $64.34, or 1lie sum of $822.80, which has accrued and is payable forthwith,
$5,112.86, payable in weekly installments of $22.50 beginning on June 13, 1950, for a period of 227 weeks, plus one final payment of $5.36.

All future payments being subject to the conditions of the Workmen’s Compensation Act, jurisdiction of this case is specifically reserved for the entry of such further order as may be necessary.

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


author: Laesden, J.

text:
    (No. 4236
    Victoria Green, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    Albert N. Kennedy, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter; Assistant Attorney General, for Respondent.
   Laesden, J.

Claimant, Victoria Green, seeks to recover under the "Workmen’s Compensation Act for total permanent disability resulting from an accident that arose out of and in the course of her employment as an attendant at Dixon State Hospital, operated by the Department of Public Welfare. No jurisdictional questions are involved.

On June 12, 1949, claimant, while on duty in one of the wards of the mental institution was brutally assaulted and beaten by three patients, one of whom used a fire hose nozzle. Her injuries were so severe that it was doubted for some time she would survive. But there can be no doubt that claimant is totally and permanently disabled. Her testimony and that of two State doctors categorically leads to this inescapable conclusion.

Claimant sustained the following injuries: Five large and five small lacerations on her forehead and forepart of head (requiring 31 sutures); lacerations on inside of upper lip; bilateral hematoma on eyelids; abrasions and bruises on left side of neck; shock; comminuted fracture of frontal bone; fracture of left maxilla and fracture of nasal bone. She was almost scalped and her face was terribly mangled and deformed.

At the date of the hearing claimant still suffered from dizziness, instability, disturbance of central nervous system, loss of taste and hearing, high blood pressure aggravated by the injuries she sustained and difficulty in breathing through her nose. She was unable to perform any gainful employment, and both doctors stated her condition was permanent.

Claimant is, therefore, entitled to an award for total permanent disability with a life pension. Section 8 (f), Workmen’s Compensation Act.

Claimant was 75 years of age at the time of the accident. She was a widow and had no dependents. Her earnings in the year preceding the date of the accident were $2,100.00, and her rate of compensation is, therefore,. $19.50 per week.

The only confusing aspect of this case relates to payments for temporary total disability which must be deducted from the award for total permanent disability to reach a net award. Section 8 (f), Workmen’s Compensation Act. Respondent is of the opinion that maintenance furnished claimant at the rate of $32.00 per month should be credited against the amount of compensation paid. We cannot agree with this contention since it is more properly considered as a portion of the medical and hospital services respondent was required to furnish claimant. Section 8 (a), Workmen’s Compensation Act. Claimant was, however, paid her full wages of $175.00 for the first month after her accident and then was supposed to be paid five months at the rate of $105.00 per month, or a total of $700.00. For some reason or other she was paid only $677.78. She has thus been underpaid for temporary total disability.

At the date of the hearing claimant was and, as of today claimant is, still living at the hospital at Dixon Stale Hospital'. She is thus still being furnished medical treatment and hospitalization. We hold that the deduction from the gross award to arrive ¿t a net award should be $677.78.

Helen Heckman, Dixon, Illinois, was employed to take and transcribe the testimony before the Commissioner and her charges therefor amount to $32.50, which is reasonable. An award is entered in her favor for such amount.

An award is entered in favor of claimant, Victoria Green, in the amount of $5,200.00, less the sum of $677.78, or a net award of $4,522.22 plus a lifetime pension of 8 per cent of $5,200.00 or $416.00 per year payable monthly after said sum of $4,522.22 shall have been paid to claimant, said award being payable as follows:

$1,002.86 less payments already made on temporary total disability of $677.78, or the sum of $325.08 which has accrued and is payable forthwith;
$4,197.14 which is payable in weekly installments of $19.50 per week commencing on June 13, 1950, for 215 weeks plus one final payment of $4.64 and, thereafter, a pension for life payable monthly commencing one month after the date of the payment of said final payment of $4.64 at the rate of $34.66.

Jurisdiction of this case is specifically reserved for the entry of such further orders as may from time to time be necessary. Penwell v. State, 11 C.C.R. 365, and same case, No. 3025, opinion filed May 9, 1950.

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


author: ScHUMAlT, C. J.

text:
    (No. 4248
    Frank Peoples, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 6, 1950.

    J. P. Wilamoski and Young & Young, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William: H. Sumptee, Assistant Attorney General, for Respondent.
   ScHUMAlT, C. J.

Claimant was employed by the Division of Highways as a common laborer with earnings of $1,727.90 in the year preceding his injury.

Claimant was injured on December 18, 1948, while plowing snow on H. S. Route 34 in Henry and Bureau Counties. He was operating hydraulic controls on the plow when the truck overturned and was rolled about in the cab and was wedged behind the Steering wheel. A part of the steering' wheel and column had to be cut off before he could be removed.

Claimant was taken to a hospital and seen by Dr. Bertelsen and Dr. Hoffman. A report by Dr. Bertelsen showed he treated claimant for a laceration over left eye, possible head injuries and bruises. He was seen by Dr. Smith, an eye specialist, on January 7, 1949, for a tearing of the left eye. Dr. Smith reported claimant had a partial facial. paralysis and considerable tenderness over the maxillary and nasal bones. Dr. Smith estimated it would be six months before claimant would be in very good shape.

The departmental report showed claimant was seen on February 18,1949, by a representative of the Division of Highways, and found claimant complaining of back pains. An examination by Dr. Hugh Cooper, a specialist in orthopedics, at Peoria, was made on February 22,1949. Dr. Cooper reported claimant was extremely neurotic, shaky and nervous and upset over his injury.

Dr. Bertelsen saw claimant again on April 18, 1949, and reported claimant was- an elderly, worried looking, and excitedly complaining man; that he complained of watering and burning of left eye, a burning sensation and a deformity of the left temple, a mass in the throat in the thyroid region which sometimes shuts off his breath, a sore on the left edge of the lips, right shoulder pains at night and severe right groin soreness keeping him awake, swollen right testicle, numbness of the three lateral toes of the left foot, severe nervousness and shaking which was most marked on the right side. The doctor made a physical examination and gave his impression as follows:

1. Block of tear duct in left eye-.
2. Mild arthritic changes.
3. Early extrapyramidal tract degeneration (Parkinsonism).
4. Acute anxiety neurosis.

Claimant was sent by the department to Dr. Baer, a psychiatrist, at Peoria on April 29, 1949. Dr. Baer made the following report:

“The neurological examination reveals residuals of a left facial paralysis, rhythmical tremor of both upper extremities more marked on the right side, increased blood pressure 190/110 and tenderness in the left frontal area and over scars of his abdomen.
“The psychiatric examination reveals marked emotional instability, fearfulness, anxiety, depression, and increased tenderness.”

Dr. Baer concluded claimant had both neurological and psychiatric complications following trauma that was completely incapacitating at the time.

Claimant was sent to the Illinois Neuropsychiatric Institute at Chicago on June 20,1949. He was discharged from the hospital on August 12, 1949. A complete report ■of his condition was reported by the hospital director on August 19, 1949, with the following diagnosis:

1. Traumatic Neurosis.
2. Diabetes Mellitus.
3. Hypertension.

.and with the following report:

“At time of discharge on August 12, 1949, he continued to offer his multiple complaints and evidenced no basic improvement. It is considered doubtful if he will ever recover sufficiently to cope with his responsibilities of employment. Certainly, he is not fit for work in his present state.”

Dr. Hoffman reported on August 29,1949, that claimant was very emotional.

, Claimant testified on February 17,1950, he was never sick a day in his life until his injury. That since the injury he has not been able to work. That it was stipulated on the trial that claimant had palsy in his right arm called Parkinson shaking. That claimant was 61 years of age and wás unable since the injury to perform the sex act.

No jurisdictional questions were raised.

From all of the testimony in the record the Court concludes that claimant has complete disability, which renders him wholly and permanently incapable of work.

The record shows claimant was paid compensation from the date of the injury to September 30, 1949, in the amount of $796.75.

The testimony on the hearing was transcribed by William J. Cleary Co., who has submitted a statement of $47.00 for such services. This charge is reasonable.

All medical and hospital expenses have been paid by the State.

An award is therefore entered in favor of the claimant, Frank Peoples, in the amount of $5,200.00. Of this $796.75 has been paid tó and including September 30, 1949, leaving a balance of $4,403.25, which is payable at the rate of $19.50 a week commencing on October 7, 1949, of which the sum of $682.50 has accrued to June 3, 1950. The balance of $3,720.75 to he paid at the rate of $19.50 for a period of 190 weeks commencing June 10, 1950, with one final payment of $15.75.

And thereafter a pension for life equal to 8% of $5,200.00, or the sum of $416.00 payable annually in monthly installments of $34.66.

An award in the amount of $47.00 for stenographic services to William J. Cleary Co.

Future payments of compensation being subject to the terms and provisions of the Workmen’s Compensation Act of Illinois, the jurisdiction of this cause is specifically reserved for the entry of such further orders as from time to time may he necessary.

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


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    George F. Adams and Ebenezer Tillotson, partners, etc., v. State of Illinois.

      Opinion filed September 28, 1906.

    1. License Fee — payment under void statute. The Act of April 11, 1899, requiring persons desiring to operate a private employment agency to obtain a license from the Secretary of State is unconstitutional (Mathews v. People, 202 Ill., 389), and fees paid involuntarily under such statute may be recovered.
    2. Voluntary Payment — no recovery. Money paid into the State treasury voluntarily may not he recovered back.
    3. Dubess — money paid under. Money paid into the State treasury under duress may be recovered back.
    4. Same — what constitutes. Prosecution to enforce collections with threatened arrest constitutes compulsion and duress.
    F. L. Harpham and C. W. Greenfield, for Claimants.

      W. H. Stead, Attorney General, for State.
   George F. Adams and Ebenezer Tillotson, partners, and doing business under the firm name of Adams and Tillotson, are claimants herein for the sum of two hundred ($200.00) dollars, being a license fee paid by them on November 14, 1901, to Hon. James A. Rose, Secretary of State, for a license to operate a private employment agency under the Act of the General Assembly pertaining thereto, approved April 11, 1899, and in force July 1, 1899. (Session Laws, 1899; pp. 268-271.)

The case is presented on claimants’ statement of claim in due form; pleas filed by the State, amounting in effect to the general issue; and depositions adduced by claimants.

It is conceded by the State that the said license fee was paid by claimants to the Secretary of State, and by him into the State treasury, prior to the filing of the claim. It is also conceded that the Act requiring such payment and license is unconstitutional, it being so held by the Supreme Court, April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

The decision of the case hinges upon the point whether the said license fee was paid by claimants voluntarily, or under compulsion and duress.

The evidence relevant to this question is not as full and clear as we could wish; but we think, shows with tolerable clearness that claimants, in the early part of the year 1901, were running an employment agency in Chicago; that they were both arrested by two city police officers for running such agency without a license and taken before a justice of the peace, and required to give bond for their appearance to answer to the said charge; that they then went to City Prosecutor Taylor, who advised them that he had charge of the prosecution of the cases for and on behalf of the state’s attorney; that a case was then pending in the courts testing the legality of the Act in question, and their case would be postponed pending the decision in that case, and giving them a letter to that effect to the lawyer prosecuting their case before the justice of the peace; that under such arrangement their case was so postponed till in the fall, when they were advised the law had been held valid in the test case alluded to; when, to avoid rearrest or trial, with consequent imprisonment or fine, and interference with their business, they applied for a license, and paid the fee, herein sought to be recovered. The evidence does not disclose a copy of the complaint, warrant or docket entries; nor any special authority under which the two policemen or. detectives were acting; nor the status of the city prosecutor further than his statement that he represented the state’s attorney and, inferentially, the State, and except that the sequel proved his authority. It is upon this lack of clearness in the evidence that the State bases its contention that no such compulsion or duress existed as to entitle claimants to recover back their money so paid; that the complaint may have been under a city ordinance, and the city prosecutor acting on behalf of the city, and not of the State. But in the absence of any evidence to the contrary, we think the evidence sufficiently shows prosecution to have been under the Act in question.and by officers entrusted with its enforcement.

In the view we take of the evidence and the facts thereby established, it hardly needs the citation of authority to support the pr oposition, that the claimants have shown such duress as, under the law, entitles them to recover back from the State the illegal fee paid by them. For, however much confusion there may be in the authorities on the question as to what state of facts constitute such compulsion and duress, as to entitle the payer of an illegal tax to recover the same, the authorities unanimously agree, that actual prosecution and arrest to enforce collection by public authorities charged with that legal duty, clearly constitute such compulsion and dhress.

German All. Ins. Co. v. VanCleave, 191 Ill., 410.

Chicago v. Waukesha Brewing Co., 97 Ill. App., 583.

And cases therein cited.

We, therefore, find in favor of claimants and accordingly award them damages in the sum of two hundred ($200.00) dollars.


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    William O. Addleman v. State of Illinois.

      Opinion filed September 28, 1906.

    1. Pbactice — failure to comply with rules. Failure upon the part of claimant to take evidence and file abstracts and briefs as required by statute and by the rules will support a motion by the Attorney General to dismiss the claim.
    2. Same — when Court will not pass on claim. The Court will not pass upon a claim merely from a verified declaration or statement.
   This claim was filed in this Court on the 18th day of October, A. D. 1904, by the claimant, William O. Addleman, of Mt. Pulaski, Logan County, Illinois, for five thousand ($5,000.00) dollars as damages for injuries received by him while in the employ of the State of Illinois as guard of the Illinois State Penitentiary at Joliet, on or about the 13th day of December, A. D. 1902.

Claimant alleges in his declaration, that the injuries complained of were caused by the neglect of the State of Illinois to properly light and maintain banisters along a certain runway, through which the guards of said institution were compelled to pass in the night time.

To the said declaration a demurrer was filed by the Attoreny General on the 2d day of October, A. D. 1905, and November 13th of said year set for a hearing thereon. On the next day after said date fixed for said hearing, the claimant, not having appeared either in person or by counsel, the Attorney General moved the Court to withdraw said demurrer, which motion was allowed and the demurrer withdrawn, and the Attorney General thereupon entered a motion to strike said cause from the docket for non-compliance with the rules of this Court, on the part of the claimant, in neglecting and failing to take evidence in support of said claim and to file abstracts and briefs as required by the statute and the rules of this Court.

An examination of the files fails to show that any proofs in support of his claim have ever been taken by the claimant as required by the statute and the rules of this Court. The claimant simply rests his case on his verified declaration, and from all indications expects this Court to determine the merits of this case therefrom. This the law does not give this Court the power to do.

"While it is not the disposition of this Court to strike claims from the docket, yet sufficient time has elapsed since the filing of this claim to have taken testimony in support of it and to have filed the required arguments and briefs.

The motion to strike this case from the docket is therefore allowed, and the same is stricken with leave to claimant to reinstate.


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    Benjamin Buckner v. State of Illinois.

      Opinion filed September 28, 1906.

    Military Service — when award will be made for injuries received in. Claimant served the State prior to his muster into the service of the United States, and following the case of Krueger v. State, 1 Court of Claims Rep., 336, is entitled to an award.
   The claimant, Benjamin Buckner, on the 28th day of June, 1898, as a member of Company “I” of the Eighth Regiment of the Illinois Volunteer Infantry, was called into the service of the State, and on the 18th day of July of said year was mustered into the service of the United States.

He now claims, that there is due him from the State, for said services, the sum of $61.00. The evidence, however, shows that he was in the service of the State twenty days, and under the statute of the State of Illinois, was entitled to $2.00 per day, or a total of $40.00 for such services.

The evidence further shows, that he has received, as part payment for the said services, the sum of $10.40, which leaves a balance of $29.60, lawfully due him.

The questions of law raised in this case are the same as those considered in the case of Krueger v. State, 1 Court of Claims Report, 336, and the reasons for allowing that claim apply to this.

We accordingly award to said Benjamin Buckner, the sum of $29.60, the amount shown by the evidence to be due him.


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    Chicago Railway Employment Agency, a corporation, v. State of Illinois.

      Opinion filed September 28, 1906.

    1. License Fee — payment under void statute. Claimant paid a fee to obtain, a license to operate a private employment agency under the Act of April 11, 1899, (Session Laws 1899, pp. 268-271), but not under compulsion and duress. The Act was later held to be unconstitutional in the case of Mathews v. People, 202 Ill., 389. Held, that claimant is not entitled to an award.
    2. Illegal Tax — when may not be recovered. Mere payment of an illegal tax, under apprehension that the authorities may proceed with its collection, is not sufficient to entitle a person to recover the same back. (Yates v. Boyal Insurance Co., 200 Ill., 202.)
    E. L. Harpham and G. W. Greenfield, for Claimant.

      ~W. H. Stead, Attorney General, for State.
   This case involves a claim on the part of claimant as in the cases of Adams & Tillotson and Sarah Mandel v. The State, supra, to a license fee of $200.00 paid into the State treasury by claimant for a license to run an employment agency under the Act of 1889, (Session Laws, 1889, pp. 268-271), declared unconstitutional in Mathews v. People, 202 Ill., 389. And, as in those cases, the decision turns upon the question as to whether the said license fee was voluntarily paid, or paid under compulsion and duress by those charged with the supposed legal duty of the collection.

But, unlike as in those eases, we are of the opinion that, in this case, claimant utterly fails to make out his case. Mere payment of any illegal tax under the fear that the public authorities charged with its collection will proceed to its collection under the penalties of the law, are not of themselves sufficient to entitle one to recover back such tax after payment.

Yates v. Royal Insurance Co., 200 Ill., 202.

There can be no contention, and in fact it is not contended by claimant’s attorneys, that more is shown by tbe evidence in this case. Neither claimant nor any of its officers were prosecuted or arrested; no threats were made against it or them and, in fact, no demand was made either of it nor them of payment of the license fee. Claimant wanted to go into the business of running an employment agency and, hearing that the State was exacting payment of a license fee, under the Act in question, consulted1 its attorneys, and, under their advice, applied and paid for and secured such license, without threat or protest.

Such a payment is, under the authority above cited, and, as we believe, under all the authorities, purely a voluntary payment, and as such does not entitle the payor to its recovery, consequently, we reject the claim.


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    J. B. Hayden and Mary F. McCormick, Co-partners as J. B. Hayden & Co., v. State of Illinois.

      Opinion filed September 28, 1906.

    License Fee — Adams & Tillotson v. State ante followed. This claim is governed by the decision o£ the Court in Adams & Tillotson v. State, supra.

    Louis T. Orr, for Claimant.
    W. H. Stead, Attorney General, for State.
   J. B. Hayden and Mary F. McCormick, as co-partners under the firm name of J. B. Hayden & Co., are claimants herein against the State of Illinois for the sum of four hundred ($400.00) dollars, being the aggregate sum of two license fees of two hundred ($200.00) dollars each, paid by them on August 4, 1899, and December 13,1901, respectively, to Honorable James A. Bose, Secretary of State, for licenses issued to claimants to operate a “private employment agency” in the city of Chicago, under the Act of the General Assembly, pertaining thereto, passed April 11, 1899, and going into force July 1, 1899 (Session Laws 1899, pp. 268-271), said Act being held unconstitutional by the Supreme Court April 24, 1903, in the case of Mathews v. The People, 202 Ill., 389.

Like the case decided by this Court in Adams & Tillotson v. The State, September 28, 1906 (see opinion filed therein), this case turns upon the question whether such license fees were paid by claimants, voluntarily, or under threats, compulsion, and duress.

The evidence shows that prior to claimants paying such license fees, their payment was demanded by Mr. Geary, “Superintendent of Free Employment Agencies”; that claimants strenuously objected to the payment of such fees, but were threatened by him that their place of business would be closed and they criminally prosecuted, if they did not pay such fees; that before the payment of the last license fee, they were further threatened by two police officers, presumably acting for the State, with having their place of business closed and being prosecuted and arrested if they' did not pay such annual license fee and procure license under such Act; that before claimants paid such fees, they were informed and knew that the State was prosecuting, under such Act, those refusing to pay such fees; and claimants paid such fees under the fear and expectation of having their place of business closed and of being arrested and criminally prosecuted if they did not pay such fees.

Under this state of facts we are clearly of the opiion that such fees were paid by claimants under what amounts, in law, to compulsion and duress, and under protest. In view of our opinion in the case of Adams & Tillotson v. The State, cited supra, and the cases therein cited, in support of that decision, it is hardly necessary for us to enter into extended discussion of the law applicable to this ease. In our opinion, the facts of this case bring the case clearly within the doctrine there announced and applied in favor of claimants.

We, therefore, accordingly award the claimants the sum of four hundred ($400.00) dollars.


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    Henry Henke v. State of Illinois.

      Opinion filed September 28, 1906.

    1. Non-liability of State — what does not constitute claim against the State. The basis of this claim, as submitted and contended for by claimant is, that the Lincoln Park Board, through its employees, was guilty of negligence in not providing claimant, a painter, with reasonably safe appliances to work upon, and in not inspecting and testing such appliances; that the members of such board were officers and agents of the State, and that the State is therefore liable. Held, that no liability attached.
    2. Jubisdiction — class of claims Court may pass upon. Claimant cites sec. 3 of the Act of 1903, which” provides that, “and it shall be the duty of said Court to hear and determine * * * all other unadjusted claims of whatsoever nature or character against the State of Illinois,” as showing that the Court of Claims has jurisdiction to allow claims of this class.
    3. Same — creation of Commission and Court did not increase State’s liability. In the establishment of the Commission of Claims and the present Court of Claims, it was not the intention of the legislature to create a new class of claims against the State, but it was to provide a tribunal in which claims against the State, which civilized governments have always recognized, might be determined.
    4. Award — what must be shown to justify. In order to justify the allowance of a claim, the facts must show either a legal or equitable claim against the State.
    5. Respondeat Supebiob — doctrine of not applicable to the State. The State is not responsible for the misfeasance, wrongs, negligence or omissions of duty of its officers, agents or servants, for it does not guarantee to any person the fidelity of the officers or agents, whom it employs.
    Walter F. Heineman, for Claimant.
    W. H. Stead, Attorney General, for State.
   This is a claim for personal injuries received by Henry Henke as a result of the breaking of a scaffold, while claimant was employed as a painter at Lincoln Park, Chicago, Illinois.

Claimant was employed by the Lincoln Park Board, September 21, 1901, and worked as a painter for the said board continuoixsly up- until the date of the said accident, September 29, 1902.

The evidence shows that on the day of the injury, claimant was working on a scaffold, painting the ribs of the large palm house; that the scaffold1 upon which he was working had been erected by carpenters likewise employed by the park board; that claimant had nothing whatever to do with the erection of the scaffold; that about noon, while claimant was performing his duties, he walked upon a pl-ank placed in the' scaffold, which suddenly broke about the middle and precipitated him to the ground1; that the plank, which broke under him, was found after the accident to have had a knot or cross-grain running through it at the place where the break occurred; that this knot was on the under side of the plank and that the plank was painted gray, so that the defect could not be seen by claimant; and that as a result of the said accident the arches of both of claimant’s feet were permanently destroyed in addition to temporary injuries of a painful character. To recover damages for these injuries, this claim has been filed against the State.

It is contended by claimant that the park board, through its employees, were guilty of negligence in not providing reasonably safe appliances for claimant to work upon and in not inspecting the appliances used by claimant or subjecting them to proper tests, and that as said board were officers and agents of the State, the State is therefore liable.

It is also further contended in this case that under the various Acts establishing the now Court of Claims of this State, jurisdiction has been given this Court to allow claims of this nature and thus hold the State liable for the negligence, misfeasance and laches of its officers and agents, the Lincoln Park Board and its employees. And this it is claimed, is given under section three of the Act of 1903, which recites that “it shall he the duty of said Court to hear and determine, * * * all other unadjusted claims of whatsoever nature or character against the State of Illinois.”

Prior to 1877 there was no forum or tribunal in this State wherein claims could be filed1 against the State of Illinois. By the Act of 1877, first creating the Commission of Claims, to be composed of one Judge of the Supreme Court and two circuit judges of the State, it was declared to be the duty of the Commission “to hear and determine all unadjusted claims of all persons against the State of Illinois.” During the existence of the Commission under this Act no claim for personal injuries seems to have been filed against the State.

In 1889 the legislature revised the Commission of Claims Act, changing the manner in which the Commission should be constituted, and specifically setting forth its jurisdiction. The clause referred to in section three by claimant as to “all other unadjusted claims” first appeared in this Act.

The same year this Act went into force, the Commission early passed upon the question here involved and the opinion then rendered has been an established principle, closely followed by this Court, ever since in the adjudication of similar cases.

It was then held (Schmidt v. State, 1 Court of Claims Rep., 76, 79) that “the law creating this Commission does not undertake to create a new liability against the State, but provides a method by which claims against the State may be heard before this Commission.” And again on page 80, “It is our understanding that, * * * this Commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State.”

In so doing the Commission seemed to follow the opinion of the Massachusetts Court filed the same year, in Murdock Grate Co. v. Commonwealth, 24 N. E., 854, where the Court, in passing upon a similar statute in that State succinctly says: “The Act we are discussing discloses no intention to create against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be adjudicated.”

The Act of 1903, creating the Court of Claims, successor to the Commission of Claims, re-enacts the section referred to, and, since the passage of the Act of 1903, this Court has still uniformly held to the doctrine that in the establishment of this tribunal it was not the intention to create a new class of claims against the State, but to provide a tribunal to determine those claims against the State which civilized governments have always recognized.

It is therefore to be considered whether a claim for an injury done by or the result of the negligence of an officer or agent of the State, is one for which a liability exists against the State, even if there did not exist this tribunal to pass upon it.

In the case of Murdock Grate Company v. Commonwealth, above cited, the Court say (page 855):

“States have always found it necessary to take and use the property of their citizens for the purposes of their government. They have assumed various responsibilities on behalf of their citizens or others. They have also always been parties to contracts for the borrowing of money, the purchase of property, the employment of labor. And the duties arising from such acts have always been fully recognized, even if judicial tribunals have not always been provided, to make proper compensation for, or adjustment or payment of the demands arising from such acts. But we do not find that demands founded on the neglect or torts of ministerial officers engaged as servants in the performance of duties, which .the State as a sovereign has undertaken to perform, have ever been held to render it liable. Nor does this rest upon the narrow ground that there are no means by which such obligations can be enforced, but on the larger ground that no obligations arise therefrom.”

In Gibbons v. U. S., 8 Wall., 269, 274, the Court say: “No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents.”

“The government does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests.” Story on Agency, sec. 319.

In Gibbons v. U. S., supra, the Court further say: “The eases of U. S. v. Kirkpatrick, 9 Wheat., 720, and Dox v. Postmaster General, 1 Pet., 318, establish the principle that even in regard to matters connected with the cause of action by the United States, the government is not responsible for the laches, however gross, of its officers.”

It was held in Lewis v. State, 96 N. Y., 71, that “no principle of law, not any adjudged case, would make the State liable for the negligence or misfeasance of its agents in like manner as a natural person is responsible for the acts of his servants.”

See also Bowen v. State, 108 N. Y., 166, and Splittorf v. State, 108 N. Y., 205, holding similarly.

It is likewise a well established principle of law in this State, that a private action will not lie against counties, townships, school districts, or drainage districts, for injuries occasioned by the negligence of its servants or officers in respect to the performance or non-performance of their duties, and in the application of this rule, there is no distinction between the neglecting to do or perform an act which ought to have been performed and the performance of the duty in a negligent manner. See Hedges v. County of Madison, 1 Gil., 567; Town of Waltham v. Kemper, 55 Ill., 346; Bussell v. Town of Steuben, 57 Ill., 35; White v. County of Bond, 58 Ill., 297; Symonds v. Clay County, 71 Ill., 355; Hollenbeck v. Winnebago County, 95 Ill., 148; Cooney v. Hartland, 95 Ill., 516; Elmore v. Drainage Comrs., 135 Ill., 269.

If counties, townships, school and drainage districts are not to be held in damages for the negligence of their officers, for the reason that they are governmental corporations, how much less can the sovereignty itself which creates these sub-divisions be so held?

In Hollenbeck, Admr., v. Winnebago County, 95 Ill., 148 on p. 162, our Court say: “No reason is perceived why a county should be held to respond in damages for the negligence of its officers. * * * In fact, the powers and duties of counties bear such a due analogy to the governmental functions of the State at large that as well might the State be held responsible for the negligent acts of its officers as counties. They stand in many respects upon the same footing.”

While it is true that that portion of the above decision which refers to the liability of the State is mere obiter, still it is a clear indication of how our Court would pass upon this question, if same came squarely before it.

In consonance then with the United States Supreme Court, the Courts of Massachusetts and New York and in our own State, this Court has uniformly held and now holds that the State is not responsible for the misfeasance, wrongs, negligence or omissions of duty of its officers, agents or servants, for it does not guarantee to any person the fidelity of the agents or officers whom it employs.

Counsel cites in brief the case of Holmes v. State, 1 Court of Claims Reports, page 324, as an exception to this rule. This was a claim for damages for injuries sustained in the fall of a defective bridge over the Illinois and Michigan Canal and the claim was allowed by this Court. The distinction here drawn is that the said canal is not a governmental function, but is a business enterprise, conducted for profit. This distinction is clearly drawn in City of Chicago v. Wil liams, 182 Ill., 135, where in passing upon a similar question in connection with municipal corporations, on pp. 137, 138, the Court say:

“* * * There is an implied or common law liability for the negligence of municipal officers in the performance of corporate acts, which have relation to the management of the corporate or private concerns of the municipality, from which it derives special or immediate profit or advantage as a corporation. But where acts are done by the officers of towns and cities in their public capacity in the discharge of duties imposed by the law for the public benefit and for the promotion and preservation of the public welfare, no private action lies unless the right to bring it is expressly conferred.”

The case in question not coming within this exception, the claim is necessarily rejected, but inasmuch as we recognize that it is a case appealing strongly to sympathy, the rejection of the claim is made without prejudice, and it is expressly directed that such rejection does not conclude the claimant herein or bar his further presentation of his claim to a subsequent legislature.