text:
    (No. 2935
    Anna Tull, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 14, 1936.

    R. I. Dove, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant is the widow of Oscar Tull, who, on the 6th day of May, A. D. 1936, was employed by respondent as patrolman’s first helper in the Maintenance Department, Division of Highways, Department of Public Works and Buildings. About 2:10 p. m. on May 6th, 1936, Mr. Tull was engaged in repairing S. B. I. Route No. 16, three and one-half miles east of the city of Shelbyville, and while so employed, and while in the course of his employment, was struck by an automobile driven by one Norman Seif kin of Decatur, Illinois, and sustained injuries which resulted in his death the same day.

Under the stipulation in the record and the law, we find as follows:

1. That on May 6th, 1936, said employer and said employee were operating under and bound by the terms and provisions of the Workmen’s Compensation Act of this State.

2. That on said date claimant’s intestate sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same date.

3. That the respondent had actual notice of the accident the day it occurred, and claim for compensation was made by filing the application therefor within six months after the accident, in accordance with Section 24 of the Workmen’s Compensation Act.

4. That said decedent left him surviving the claimant, Anna Tull, his widow, whom he was under legal obligation to support, and no child or children under the age of sixteen years.

5. That said employee was not engaged in the employment of the respondent for the full year immediately preceding the accident; that the annual earnings of persons of the same class .as claimant’s intestate, in the same employment and same location during the year next preceding the injury, were Bight Hundred Forty-nine Dollars and Sixty-five Cents ($849.65); and that the average weekly wage of such persons during such period was Sixteen Dollars and Thirty-four Cents ($16.34).

6. That under the provisions of Section 7A of the Act, claimant is entitled to an award in the amount of Thirty-three Hundred Ninety-eight Dollars and Sixty Cents ($3,398.60), payable in weekly installments, in accordance with the provisions of such Act.

It is Thebefoee Okdebed that an award be and the same is hereby entered in favor of the claimant, Anna Tull, for the sum of Thirty-three Hundred Ninety-eight Dollars and Sixty Cents ($3,398.60), payable in Four Hundred Fifteen (415) weekly installments of Bight Dollars and Seventeen Cents ($8.17) each commencing on May 7th, A. D. 1936, and one final installment of Bight Dollars and Five Cents ($8.05).

Claimant is now entitled to have and receive from the respondent the sum of' One Hundred Seventy-nine Dollars and Seventy-four Cents ($179.74), being the amount of compensation which has accrued from May 7th, A. D. 1936 to October 8th, A. D. 1936; and the remainder of said award, to wit, Thirty-two Hundred Eighteen Dollars and Bighty-six Cents ($3,218.86), will be paid by said respondent in Three Hundred Ninety-three (393) weekly installments of Eight Dollars and Seventeen Cents ($8.17) each commencing on October 15th, A. D. 1936, and one final installment of Bight Dollars and Five Cents ($8.05).

This award being subject to the provisions of an Act entitled “An Act making cm appropriation to pay compensation claims of State employees and providing for the method of payment thereof”, approved July 2, 1935 (Session Laws 1935, p. 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the Road Fund in the manner provided by such Act.

The personal representative of the decedent may have a right of action against the owner or driver of the car which struck the decedent. If such right of action exists, and a judgment is obtained by such personal representative, the rights of the State of Illinois to be reimbursed for the amount paid by it in accordance with this award, are fixed by the terms and provisions of the Workmen’s Compensation Act.

In order that the rights of the State in that behalf may be fully protected, it is ordered that this cause be and the same be continued generally, and that this court retain jurisdiction thereof for the purpose of making such further orders herein as may be justified by future developments, and as may be in accordance with law.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 2904
    Arthur Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The claimant, Arthur Anderson, of 7600 S. Halsted Street, Chicago, Illinois, seeks an award of Two Hundred Fifty Thousand ($250,000.00) Dollars as he avers in his complaint ‘ ‘ against the Supreme Court of Illinois and the Appellate Court and the State of Illinois, for the miscarriage of justice in the case known as Anderson vs. Anderson, 339 Ill. p. 400. ’ ’ The Attorney General has filed a motion to dismiss on the ground that the Court of Claims has no jurisdiction where the claimant has or has had a proper remedy in the courts of law.

The above case of Anderson vs. Anderson was begun as a partition suit in the Superior Court of Cook County in which the defendant Arthur Anderson filed a cross-bill, asking for a divorce on the ground of cruelty. The Supreme Court on appeal, reversed the judgment of the lower court in part and remanded the cause with directions. Whatever transpired in that case and regardless of what differences may have arisen therein between the claimant Arthur Anderson and the various ones who represented him as counsel, and regardless of the outcome of that litigation, the Court of Claims does not have jurisdiction for the hearing of his complaint in regard thereto. The method of appeal in civil litigation from one court to another until the final tribunal which has jurisdiction of such action is reached, is definitely provided for by our laws. The Court of Claims is not such an appellate tribunal.

The motion of the Attorney General is allowed and the case dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 2883
    John F. Barnier, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    Chas. G. Palmer, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on April 15th, 1936 and alleges therein that on July 19th, 1934 he was enrolled in the Civilian Conservation Corps at Camp St. Charles, West Chicago, Illinois; “that on September 3d, 1935 claimant was assigned to road work under Mr. Charles F. Selby, Project Superintendent of 1673 Company CCC, doing manual labor on soil erosion control;” that on September 3d, 1935 while in the course of his employment and while getting out of a dump truck, he slipped and fell, landing on the ground “stiff-legged and flat-footed, and fell face forward, causing severe spinal impaction”, which has resulted in a partial paralysis which has progressively become worse.

Claimant remained in bed in his quarters under the care of the camp doctor until October 12th, 1935, at which time he was removed to Fort Sheridan. He remained at the Fort Sheridan Hospital until December 9th, 1935, at which time he was removed to Edward Hines, Jr. Hospital, Hines, Illinois, where he is still confined.

Claimant in his complaint alleges that he is completely and permanently disabled.

The Attorney General has moved to dismiss the case on the ground that there is no liability on the part of thé respondent under the facts alleged in the complaint.

It is essential as the basis of a right to compensation, that the employee allege and prove that the relation of employer and employee existed at the time of the accident in question. Angerstein “The Employer and the Workmen’s Compensation Act of Illinois”, 1935 Supplement, p. 289.

There is nothing in the complaint to indicate that the claimant was at any time in the employ of the State of Illinois, nor is there anything to indicate that he was performing any work for the State of Illinois, or that he was being paid by the State.

The Civilian Conservation Corps is not a State institution, nor are the persons enrolled therein employees of the State of Illinois.

As to whether the claimant is entitled to compensation under any Federal law, we express no opinion, as that matter is not before us.

Under the facts set forth in the complaint herein, we have no authority to allow an. award, and the motion of the Attorney General must therefore be sustained.

Motion sustained. Case dismissed.


text:
    (No. 2418
    Mattie B. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    John R. MoSweeney, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On June 25th, 1932 claimant was driving an automobile in a northerly direction on S. B. I. Route 44. At a point just southeast of the corporate limits of the city of Manhattan, she lost control of the car on account of wet pavement there, and the car skidded onto the shoulder of the highway, and toppled into a drainage ditch located on said highway at a distance of about eleven feet from the concrete slab.

Claimant alleges that as a result of such accident she sustained severe and permanent injuries, and on August 28th, 1934 filed her complaint in this court in which she asks for an award in the amount of $10,000.00 for the injuries so sustained.

Claimant bases her right of recovery upon the alleged negligence of the respondent in the maintenance of its said highway, and particularly with reference to the shoulder thereof, and the drainage ditch immediately adjacent thereto.

The Attorney General has moved to dismiss the case on the ground that there is no liability on the part of the respondent under the facts set forth in the complaint.

In the maintenance of its hard-surfaced roads, the State is engaged in the exercise of a governmental function.

Chumbler vs. State, 6 C. C. R. 138.
Stoddard vs. State, 6 C. C. R. 27.
Bucholz vs. State, 7 C. C. R. 241.
Baumgart vs. State, 8 C. C. R. 220.

The law is well settled that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents under the doctrine of respondeat superior, in the absence of a statute making it so liable.

City of Chicago vs. Williams, 182 Ill. 135.
Minear vs. State Board of Agriculture, 259 Ill. 549.
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.
Braun vs. State, 6 C. C. R. 104.
Chumbler vs. State, 6 C. C. R. 138.
Bucholz vs. State, 7 C. C. R. 241.
Baumgart vs. State, 8 C. C. R. 220.
Ryan vs. State, 8 C. C. R. 361.

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

Motion sustained. Case dismissed.


author: Mr. Chief Justice Hollbrich

text:
    (No. 2316
    James L. Powell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    John B. McSweeney, for claimant.
    Otto Keener, Attorney General; John Kassermán, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

Claimant filed his complaint herein on January 18th, 1934 and alleges therein that on August 8th, 1933 he was crossing Michigan Avenue at the intersection thereof with 44th Street, in the City of Chicago, crossing from the southwest to the southeast comer of said intersection; that while he was crossing said street as aforesaid, and while he was in the exercise of all due care and caution, he was struck by an automobile owned by respondent, and driven by its agent, Thomas Phillips, an oil inspector of said respondent; and that as a result thereof claimant sustained serious and permanent injuries; — for which he claims damages in the amount of $5,000.00.

The Attorney General has moved to dismiss the case for the reason that there is no liability on the part of the State under the facts set forth in the complaint.

The law is well settled that the State in the exercise of its governmental functions, is not liable for the negligence of its servants and agents under the doctrine of respondeat superior, in the absence of a statute making it so liable. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; Braun vs. State, 6 C. C. R. 104; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241; Baumgart vs. State, 8 C. C. R. 220; Childress vs. State, 8 C. C. R. 223; Ryan vs. State, 8 C. C. R. 361.

There is no statute imposing a liability upon the respondent in cases of this kind, and the motion of the Attorney General must therefore be sustained. Motion sustained. Case dismissed.


text:
    (No. 2199
    Harry Postlewait, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    Grossman, Grossman & Sissman, for claimant.
    Otto Kerner, Attorney General; John Kasserman and Carl Dietz, Assistant Attorney Generals, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

In a complaint filed June 29, 1933 claimant alleges that while he was employed as an attendant at the Chicago State Hospital at Dunning, Illinois on February 16, 1933, he was assaulted by a negro inmate who struck him violently in the left eye, causing claimant to immediately lose the sight thereof and resulting in the complete loss of vision in said eye. Claimant avers that he received compensation for two weeks after said assault and he seeks an award for whatever amount of compensation for loss of time and loss of vision he may be entitled to, under the Workmen’s Compensation Laws provided by the statutes of the State of Illinois.

Respondent denies that claimant has suffered any serious impairment of vision in any accident arising out of and in the course of his employment and denies that claimant is entitled to any award herein.

Claimant testified that on February 16, 1933 while in the course of his duties as an attendant at said hospital about 3 o’clock in the morning, he was struck in the left eye by the patient, one William Thomas; that he was immediately taken by a Mrs. Lochy from that portion of the institution to the hospital division, and an ice pack was put on his eye; that the hospital doctors called on him and that he remained in the hospital for about two weeks; that about the 1st day of March he called on Dr. Noble. No other witnesses were examined as to the accident itself or the circumstances surrounding same, but four doctors testified as to examinations made by them of claimant’s eyes; two, i. e. Dr. Nathan H. Fox and Dr. Samuel Brown testifying on behalf of respondent, and Dr. Wm. L. Noble and Dr. Daniel W. Biss being called by claimant.

After his accident claimant remained at the State Institution at Dunning until the 27th day of February, 1933 when he was sent to the Illinois Bye and Bar Infirmary, where he was examined by Dr. Fox. He was again examined by Dr. Fox on March 8, 1933. He was also examined by Dr. Samuel Brown at the Infirmary on December 19, 1933. Claimant was for some reason not satisfied with the examination by Dr. Fox and was examined by Dr. William L. Noble the fore part of March, 1933 and on two or three other occasions thereafter. Dr. Daniel W. Biss of Chicago examined claimant in consultation with Dr. Noble1 on the 15th day of March, 1933. He again made an examination about December 17, 1933 just prior to becoming a witness at the hearing. Dr. Noble testified that at his first examination in March he made the routine examination of patient to see whether he had any vision in the eye or not and that the patient returned two or three times thereafter; that the right eye had practically normal vision, but that the inside of the left eye was cloudy and that he could hardly make out the lines of the macula or the center part of the retina; that in his opinion the claimant is without the faculty of vision in the left eye in the sense of distinguishing objects; that the loss of eye sight in the left eye is permanent and that in his judgement the eye ball itself is progressively degenerating. Dr. Noble further testified on cross-examination that the cloudiness and also the wiping out of the lines of the macula could be explained by trauma and that it could also be explained by other conditions; that he would not say that it was trauma but that it could be caused by trauma. Dr. Noble subjected the patient to malingering tests without producing any evidence of increase of vision of the left eye.

Dr. Daniel W. Biss testified that he examined the claimant for the first time, in consultation with Dr. Noble, about the 15th of March, 1933. He obtained a history of the case from the claimant and then made an objective examination of patient’s left eye. At that time he said he found the temple side of the eye discolored due to some previous subcutaneous hemorrhage; that this condition later disappeared. A further examination was made of the interior of the eye ball, the cornea, the macula and the optic nerve or optic disc. This witness stated that the patient could apparently see only about five feet away with the left eye but could not distinguish objects; that the witness then resorted to the malingering test by obscuring first the right eye and giving the patient the idea that he was seeing with the right eye when in fact he was seeing with his left, then reversed the lenses and that he found the patient was not malingering. Dr. Biss testified that there is a softness to the left eye ball; that the degenerative process is a very slow one, but that same may in a few years extend to and affect the good eye; that the patient can see light but cannot distinguish objects and that from an industrial viewpoint there is a total loss of use of the left eye.

Dr. Nathan H. Fox, who has been connected with the Hlinois Eye and Bar Infirmary in Chicago since 1921, testified that in his first examination of plaintiff on February 27, 1933 he received the statement of plaintiff that he could see only shadows with his left eye; that he then made a physical examination of both eyes; found no evidence of external injury to the left eye, the cornea and tension were normal and the pupil was of normal size and shape, reacting normally to light and accommodation; that he could find no pathology to explain the loss of sight in the left eye and that there was no evidence of trauma at that time. That the patient was insistent upon receiving a certificate at that time that he had lost the sight of the left eye; that he declined to give such letter and requested the patient to return for further examination; that the patient later returned on March 8,1933; that another physical examination was made of his eyes at that time and same were found to be normal; that at that time, having become suspicious of the patient, a malingering test was given by apparently testing the lenses which he was then using in glasses that he was then wearing; that a plus 16 lens was placed before the right eye and a minus 1/4 lens was placed before the left eye. The lens placed on this test before the right eye is a very powerful lens having plus 16 diopters. A lens of that nature when placed before a normal eye will practically abolish sight at a distance of twenty (20) feet in-so-far as the reading of chart letters is concerned. The minus 1/4 lens placed before plaintiff’s left eye is practically like a window glass and would not interfere with the eye sight at all; that the patient was apparently not aware of the type of lenses that were being used. This test was given a second time and was again repeated by an Interne, Dr. F. M. Whit-sell. The patient read the chart at 20/30 which is close to normal; such reading of necessity being done with the left eye, and that as a result of such examination the witness was of the opinion that the patient was malingering, and that he had sustained no loss of vision from the injury complained of. Dr. Fox further testified that the retina was normal and the tension of the eye was normal on the occasion of his first examination, and that on the second examination the eye ball was found to be normal.

Dr. Samuel Brown, a resident Ophthalmologist at the Illinois Eye and Ear Infirmary, testified that he examined plaintiff on December 19, 1933; that he gave him a subjective and then an objective test; that the glasses which plaintiff was then wearing indicated some fault in vision and corrected his unaided vision somewhat; that tension of both eyes was normal; that the right pupil was four millimeters in size and the left pupil was seven and one-half by eight millimeters in size; that this condition of the left pupil indicated to him that some drug might have been used in that eye to dialate the pupil; that the latter reacted sluggishly to light, and that he then subjected the patient to a malingering test, the description of same showing it to be similar to that employed by Dr. Fox; that the patient was apparently unaware of the change that had been made in the lenses used in the test and that he was able to read the .chart 20/50, thereby indicating to the witness that the patient was a malingerer; that there was no indication of trauma to the eye ball or eye socket at the time of his examination. This witness further testified that the sluggishness of the pupil of the patient’s eye could have been due to the use of drugs. Dr. Brown testified that he found no degenerative or inflammatory process of any kind.

It is impossible to reconcile the testimony of the several doctors. Their examinations, however, were not made in unison, but at different times, and they have testified as to plaintiff’s condition as they observed it on the occasion of their respective examinations. If one reputable witness testifies to having seen and observed a definite thing occur it is immaterial how many others may not have seen or observed such occurrence. In the present case two reputable responsible eye specialists have testified positively to the fact that the claimant, when subjected to malingering tests, was found to be able to read with no uncertainty, and that in their opinion the patient was malingering and that the eye in question had not suffered loss of vision due to any trauma. The fact that on other occasions plaintiff submitted himself to examination by other physicians, and under his condition at such times such other physicians were unable to detect any signs of malingering does not sufficiently negative the proof that exists against him.

The burden is upon the plaintiff to establish proof that the loss of Vision of his eye was due to an accident which occurred in the course of and growing out of his employment. The record is not sufficient to support such claim and an award is denied and the claim dismissed.


text:
    (No. 2493
    James M. Purcell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    McFarland, Morgan & McFarland, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

Prior to and on April 20th, 1932 claimant was employed by the respondent as an attendant in the psychiatric ward of the Research and Educational Hospital located at 1819 West Polk Street, Chicago, Illinois.

On the last mentioned date, while in the performance of his duties, and while standing on a chair for the purpose of closing and sealing a transom in the fumigating clothes room, claimant slipped and fell, and thereby sustained a fracture of the upper end of the right humerus.

Claimant was treated at the hospital for four days and then went to his home, where he remained until June 29th, 1932, at which time he returned to his former employment.

On August 27th, 1934 claimant filed his complaint herein, in which he seeks to recover compensation for the injuries so sustained by him as aforesaid.

The Attorney General contends that the claim should be dismissed for the reason that claim for compensation was not made within six months after the accident, and application for compensation was not filed within one year after the date of the injury, or within one year after the date of the last payment of compensation.

If claimant has any right to an award, it is by virtue of the terms and provisions of the Workmen’s Compensation Act of this State, and in order to be entitled to an award, he must bring himself within the provisions of such Act.

The record clearly shows that claim, for compensation, was not made and application for compensation was not filed within the time required by the Compensation Act. Our Supreme Court has held in numerous cases that the making of claim for compensation and the filing of application therefor within the time required by the Workmen’s Compensation Act is jurisdictional. Haiselden vs. Ind. Com., 275 Ill. 114; Bushnell vs. Ind. Com., 276 Ill. 262; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Chicago Board of Underwriters vs. Ind. Com., 322 Ill. 511; Duquoin School District vs. Ind. Com., 329 Ill. 543; City of Rochelle vs. Ind. Com., 332 Ill. 386.

Under the facts appearing in the record we have no authority to allow an award, and the case is therefore dismissed.


author: Mb. Chief Justice Hollebich

text:
    (No. 2907
    Donald K. Simpson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1936.

    Ellis & Hamilton, for claimant.
    Otto Kebneb, Attorney General; John Kassbbman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Prior to and on the 10th day of May, A. D. 1935 claimant was in the employ of the respondent as an assistant recreational supervisor at St. Charles School for Boys at St. Charles, Illinois. On the last mentioned date, while in the course of Ms employment, claimant was assaulted with a shovel by two inmates who were then and there in his charge, and who were attempting to escape from such institution.

Claimant filed Ms complaint herein on May 21st, 1936, in wMch he alleges that he sustained serious and permanent injuries as the result of the aforementioned assault upon him, and in wMch he asks for an * award in the sum of $10,000.00 as compensation for such injuries.

The Attorney General has moved to dismiss the case for the reason that no claim for compensation was made within six months after the accident and no application for compensation was filed within one year after the date of the injury or within one year after the date of the last payment of compensation, as required by Section 24 of the Workmen’s Compensation Act.

Claimant in his reply brief states that it was not his purpose or intention to apply for compensation under the Compensation Act, and states that he relies for his recovery on Paragraph four of Section six of the Court of Claims Act, which provides that tMs court is authorized ‘ ‘ to hear and determine all claims and demands, legal and equitable, liquidated or unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth should, in equity and good conscience, discharge and pay.”

The meaning and effect of tMs provision of the Court of Claims Act was considered in the case of Crabtree vs. State, 7 C. C. R. 207, where tMs court, after an exhaustive review of the previous cases on the subject, said (p. 221):

“We conclude, therefore, that Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay”; merely defines the jurisdiction of the court, and does not create a new liability against the State nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The law as laid down in the Crabtree case has been followed by this court in numerous cases decided since that time.

It therefore becomes necessary for the claimant to bring himself within the provisions of a law giving him the right to an award, before we are authorized to allow such award.

In the conduct and maintenance of its penal institutions the State is engaged in a governmental function. It is a well settled rule of law that the State in the exercise of its governmental functions is not liable for the negligence of its servants or agents in the absence of a statute making it so liable.

Hollenbeck vs. County of Winnebago, 95 Ill. 148.
City of Chicago vs. Williams, 182 Ill. 135.
Minear vs. State Board of Agriculture, 259 Ill. 549.
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.
25 R. C. L. p. 407, Sec. 43.

This rule has been applied by this court in numerous cases.

Peterson vs. State, 6 C. C. R. 77.
Perry vs. State, 6 C. C. R. 81.
Braun vs. State, 6 C. C. R. 104.
Chumbler vs. State, 6 C. C. R. 138.
Crabtree vs. State, 7 C. C. R. 207.
Bucholz vs. State, 7 C. C. R. 241.
Morrissey vs. State, 8 C. C. R. 40.
Baumgart vs. State, 8 C. C. R. 220.
Pelli vs. State, 8 C. C. R. 324.
Ryan vs. State, 8 C. C. R. 361.
Rheman vs. State, 8 C. C. R. 556.

Consequently, there is no liability on the part of the State in this case in the absence of a statute making it so liable. The only statute imposing a liability for injuries to State employees is the Workmen’s Compensation Act of this State. However, even if the claimant based his right to recover on the provisions of the Workmen’s Compensation Act, he still would not be entitled to recover under the allegations of his complaint, for the reason that the complaint on its face shows that no claim for compensation was made within six months after the accident; that no compensation was paid to the claimant, and that application for compensation was not filed witMn one year after the date of the injury, as required hy Section 24 of the Workmen’s Compensation Act.

Compliance with the aforementioned requirements of the Workmen’s Compensation Act is jurisdictional, and is a condition precedent to a right to maintain an action under the Workmen’s Compensation Act.

Inland Rubber Co. vs. Ind. Com., 309 Ill. 43.
DuQuoin School District vs. Ind. Com., 329 Ill. 543.
Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511.
City of Rochelle vs. Ind. Com., 332 Ill. 386.

This court, therefore, has no authority to allow an award, and the motion of the Attorney General must he sustained. Motion sustained. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2287
    City of Wood River, Illinois, a Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Francis J. Manning, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The amended complaint was filed in this cause on February 15, 1934, and charges that the City of Wood River, Illinois, is organized under the provisions of the “City and Village Act” and is located in Wood River Township, Madison County, Illinois, and was so organized on the 5th day of March, 1923, being formerly a village with a population of approximately 8,500; that on or about the 17th day of November, 1921, the Highway Department in the State of Illinois, routed all traffic traveling along Route No. 3, over certain public streets within the corporation limits of Wood River, Illinois, and alleged that such streets, naming them in detail, have been improved by the City of Wood River, in accordance with the specifications of the State Highway Department and pursuant to law.

Claimant further charges that the State Highway Department had erected signs, designating said streets as the official Route No. 3, and further charges: “Claimant further represents unto the court that during the year 1929 said city was advised that refunds from the State of Illinois were being given the various cities for certain portions of the pavement constructed under State specifications for a certain portion of the center of the highway; and that said city requested a refund, but as there was no appropriation to pay same, the refund was never received.”

It is further alleged that on March 3, 1931, the Honorable James 0. Monroe, State Senator from the 47th District, introduced Senate Bill No. 178 in the 57th General Assembly, which bill was for the purpose of making a refund on account of the construction of pavement along Route No. 3 in the City of Wood River; that said proposed bill contemplated an appropriation in the sum of $50,513.15; that said bill was referred to the Committee on Appropriations, and a hearing was had upon the bill, but the committee to which the bill had been referred had never made a report thereon.

It is further averred that on or about the 12th day of April, 1933, said Honorable James 0. Monroe, State Senator from the 47th District, introduced Senate Bill No. 488, in the 58th General Assembly, which bill was for the purpose of making a refund on account of the construction of pavement along Route No. 3 in the City of Wood River; that this bill called for an appropriation of $57,575.80.

It is further set forth in the complaint that the claimant had been informed by the officials of the Highway Department of the State of Illinois, that Wood River was not en•titled to a refund for the reason that the routing through the city was only temporary and the official route, when constructed, would not be constructed within this portion of the city limits.

It is further charged that on or about November 20, 1922, the Highway Department of the State of Illinois, routed all traffic along Route No. 159 over certain public streets, within the corporate limits of and controlled and maintained by the City of Wood River.

It is also charged that signs bearing the route number were erected along this portion of the highway, or numbers bearing the route number were painted upon poles, etc., but the Highway Department at all times maintained that the route was only temporary, and it is further charged that the city has been damaged by the routing of traffic over the aforesaid Routes No. 3 and No. 159 because of the proximity of the said City of Wood River to St. Louis, Missouri, there has been caused abnormally heavy traffic to travel over said streets, from Alton, and all other points beyond or connecting between, traveling to the City of St. Louis, Missouri, and all other points beyond or connecting between, and claimant prays that this court will enter an order recommending to the State Legislature that an appropriation be made in the sum of $100,000.00 on the two above mentioned routes, said amount being equal to the cost of the pavement of the same width and type built by the State of Illinois, outside the corporate limits, and it is charged that said money would be so distributed to each person who, at the time such distribution is made, owns property which was assessed for the construction of said pavement, in proportion to the amount so assessed against such property.

The Attorney General has made a motion to dismiss this claim. The gist of the charge of this case is that the State has caused more traffic to be routed over the route mentioned than the citizens of Wood River would have had had such routes not been so designated, thereby causing damages to the abutting property owners. No authorities are cited, and we do not believe that any could be cited, upholding such a proposition of law. No private property has been taken, and manifestly, when streets are improved in the city, the improvement must be done for the use of all who have an occasion to use the streets. It seems clear that these improvements were not made at the request of the State Highway Department, nor does it seem that the State contemplates their permanent use. Apparently, these were public highways before the improvement, and consequently, the public would be entitled to use them. The fact that an unusual large number of people use the highway, in common, does not give a cause of action by a municipality for such use.

In the case of Law vs. Neola Elevator Co., 281 Ill. 143, the Supreme Court said: “The test of a public highway is not as to the limited use to which the road may be subjected nor as to the number of people that may use it, but rather as to the right of the public to use it as a road when they have occasion to do so.”

Apparently, there have been two bills introduced in the Legislature to provide funds for the purpose averred in the complaint but in neither instance has the Legislature made the appropriation requested.

No questions of law are involved and no private rights have been invaded of which this court has any jurisdiction. We must, therefore, sustain the motion of the Attorney General and the complaint is hereby dismissed.


text:
    (No. 1763
    Grace E. Finney, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Frank L. Tbutter, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed her claim in this court on May 1,1931, and seeks to recover the sum of Fifteen Hundred Dollars ($1,500.00), for personal injuries, which she claims to have sustained while riding in a passenger elevator in the Centennial Building at Springfield, on Sunday, September 21st, 1930.

It appears that the Centennial Building was open to visitors on the date in question, and that claimant with her son and her brother, went to such building for the purpose of viewing exhibits in the State museum. They first went to the fifth floor to view the exhibits there, and afterwards entered the elevator to go to the basement for the purpose of viewing the exhibits on that floor. Claimant contends that the elevator was overcrowded and was improperly operated, and that by reason of carelessness and negligence of the servants and agents of respondent in that behalf, the elevator landed in the basement with a great impact, and thereby the plaintiff sustained severe bodily injuries.

The Attorney General contends that the State is not liable under the doctrine of “respondeat superiorthat there is no liability on the part of the State for the negligence of any of its servants or agents, in the absence of a statute making it so liable.

The claimant admits that the principle of law contended for by the Attorney General is correct but takes the position that she is entitled to an award, on what has come to be known as the doctrine of equity and good conscience, and relies on some of the earlier decisions of this court on which awards were made on that ground.

The question of the liability of the State on the grounds of equity and good conscience, in a case where there would be no legal liability on the part of the State if it were suable, was fully considered by this court in the case of Crabtree vs. the State, 7 C. C. R., 207, where the earlier decisions of the court were reviewed, and where after a full consideration of the matter, the following rule was announced:

“That Section four (4) of Paragraph six (6) of the Court of Claims Act, which provides as follows, to-wit: The Court of Claims shall have power: ‘to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a sovereign commonwealth, should, in equity and good conscience, discharge and pay’; merely defines the jurisdiction of the court, and does not create a new liability against the State, nor increase or enlarge any existing liability; that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.”

The rule as laid down in the Crabtree case has been followed by this court in numerous cases since that time.

Kramer vs. State, 8 C. C. R. 31.
Lay vs. State, 8 C. C. R. 33.
Morrisey vs. State, 8 C. C. R. 40.
Shumway vs. State, 8 C. C. R. 43.
Jones vs. State, 8 C. C. R. 77.
Leckbee vs. State, 8 C. C. R. 82.
Butler vs. State, 8 C. C. R. 102.
Trompeter vs. State, 8 C. C. R. 141.
Huff vs. State, 8 C. C. R. 178.
Reinhardt vs. State, 8 C. C. R. 202.
Rutledge vs. State, 8 C. C. R. 206.
Parks vs. State, 8 C. C. R. 535.
Rehman vs. State, 8 C. C. R. 556.

There is no statute making the State liable under the facts in this case, and in the absence of such statute we have no authority to allow an award.

Award must therefore be denied. Award denied; case dismissed.


author: Mr. Chief Justice Holuerich

text:
    (No. 1663
    General Fibre Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Harrington Wood, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holuerich

delivered the opinion of the court:

On August fifteenth, 1929 the claimant company, which was then a wholesale dealer in various fibre materials, received from the respondent, through its Department of Purchases and Construction, a request for a price on twenty thousand (20,000) yards of a certain quality of burlap, f. o. b. Pontiac, for the Illinois State Reformatory, four thousand (4,000) yards to be delivered at once and the balance as ordered by the institution.

On August nineteenth, 1929 claimant quoted a price of Nine and Three-fourths Cents ($.09%) per yard on twenty thousand (20,000) yards, to be shipped in bale lots of two thousand (2,000) yards, — four thousand (4,000) yards at once, balance as required.

On August twenty-ninth, 1929 respondent forwarded to claimant a purchase order for twenty thousand (20,000) yards of burlap in accordance with claimant’s proposition;— “four thousand (4,000) yards to be shipped at once, balance as ordered.”

Claimant thereupon purchased in the open market twenty thousand (20,000) yards of burlap for the fulfillment of said contract, and shipped four thousand (4,000) yards to respondent, which was duly received and paid for.

On October twenty-ninth, 1929 claimant requested of the Department of Purchases and Construction further shipping • instructions on the remaining sixteen thousand (16,000) yards. Thereupon the Department of Purchases and Construction requested the Illinois State Reformatory to advise claimant when shipment was to be made.

On November fourteenth, 1929 claimant was advised by P. D. Whipp, Acting General Superintendent of the Illinois State Reformatory, that they were unable to use the material at that time, due to the fact that the furniture factory was not operating, and that shipping instructions would be forwarded at a later date.

On December fourth, 1929 Mr. W. H. Gehm, acting Factory Superintendent of the Illinois State Reformatory, advised claimant to make no shipment unless advised later to do so. Claimant thereupon advised the Acting General Superintendent of said Illinois State Reformatory that the order in question was not subject to cancellation, and asked for disposition of the remaining goods.

On December twenty-third, 1929 said Acting General Superintendent of the Illinois State Reformatory advised claimant to consider the order cancelled, and that any shipments against the same would be refused.

No sufficient justification for the cancellation of the contract or the refusal to accept the goods appears from the record, and the claimant is therefore entitled to maintain its action for non-acceptance of the merchandise in question.

Under the provisions of the Uniform Sales Act of this State, the proper measure of damages under the facts in this case is the difference between the contract price and the market or current price at the time of the refusal to accept. The contract price was Nine and Three-fourths Cents ($.09%) per yard and the market or current price on the date of the refusal to accept, to-wit: December twenty-third, 1929, was 7.73 cents per yard. Claimant is therefore entitled to receive damages in the sum of $323.20.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Twenty-three Dollars and Twenty Cents ($323.20).


author: Mr. Chief Justice Hollebich

text:
    (No. 2924
    Ohio Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    R. H. Fletcheb, for claimant.
    Otto Kebnbb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opinion of the court:

On or about the fifth day of June, A. D. 1935, the claimant delivered one hundred and fifty (150) gallons of kerosene oil to the Lincoln State School and Colony at Lincoln, Illinois, pursuant to the order of the Department of Public Welfare of the respondent.

In September of 1935, the claimant submitted to the Lincoln State School and Colony, a statement for the merchandise so sold and delivered, in the total amount of Fourteen Dollars and Ten Cents ($14.10), plus Twenty-nine Cents ($.29) sales tax; with the request that the same be paid.

Such statement was not passed for payment for the reason that the same was not furnished in triplicate. By the time triplicate copies of the statement were obtained and presented, the appropriation out of which the claim should have been paid, had lapsed, and it therefore became necessary for the claimant to file its claim in this court, which it did on June 29, 1936.

There was no unreasonable delay on the part of the claimant in presenting its claim. No objection is made to the reasonableness of the charge made for the merchandise, and no reason is suggested why the respondent should not pay for the same. However, the item of Twenty-nine Cents ($.29) for so called “Sales Tax” cannot be allowed. The tax in question is a Retailers ’ Occupational Tax, and is not a tax on merchandise sold, and such item must therefore be rejected.

Award is therefore entered in favor of the claimant for the sum of Fourteen Dollars and Ten Cents ($14.10).


text:
    (No. 2927
    Herbert E. Roberts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Edward M. Burke, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of One Thousand Five Hundred ($1,500.00) Dollars for damages suffered by him on January 16, 1936 when he ran his automobile against an upright support in a viaduct on a portion of one of the State-aid highways. The basis of . the claim is that the State Highway Department was guilty of negligence in the approval of plans and specifications for said highway, and thereby created a condition that was dangerous to the traveling public. The place where the accident occurred was on 26th Street in the Town of Cicero, Illinois. The highway is forty (40) feet in width at 52nd Street where it passes under the bridge or viaduct which spans the highway in question. The upright support about which complaint is made is approximately twenty-eight (28) feet from the north edge of the highway and approximately twelve (12) feet to the south edge of said highway. Claimant avers that it was the duty of the State Highway Engineer or his assistant to cause proper surveys to be made; that they were guilty of negligence in not so doing, and that as a result thereof a public nuisance was created at the point in question, and that it was the duty of the Department of Public Works and Buildings to approve plans, etc., and that they were guilty of failing to exercise ordinary care in approving the plans in question. Claimant further avers that it was the duty of the State to place adequate lights and warning signals wherever dangerous conditions were likely to exist, and that the State failed to place lights and warning signals so as to properly warn the public of the dangerous condition of the highway in question.

The Attorney General has moved to dismiss said complaint for the reason that, in the construction and maintenance of its highways the State acts in its governmental capacity, and is not to be held to respond in damages for the negligent acts of its agents or employees in the construction or maintenance thereof.

The objection of the Attorney General is well taken. This court in conformity with the accepted law in such matters has repeatedly held:

“In the construction and maintenance of roads the State acts in its governmental capacity, it is exercising its sovereign powers, and it does not permit these powers to be questioned by any tribunal. It can only act through its officers and employees, and if these officers perform their duties in a negligent manner the negligence is the negligence of the officers, and not of the State.”
Chumbler vs. State, 6 C. C. R. 138.
Martin & Kellerman vs. State, 8 C. C. R. 417.
Walen vs. State, 8 C. C. R. 501.
Rehman vs. State, 8 C. C. R. 556.
Wentworth vs. State, No. 1971.

The motion to dismiss the claim is allowed and the cause is dismissed.


text:
    (No. 2920
    Rev. D. Francis Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

      Z. H. Kadow, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On June 23, 1936, claimant filed his claim with the clerk of this court, alleging that on November 15, 1935, at 7:15 p. m., he was properly driving his Ford V8 coupe, in a northerly direction on North Elston Avenue in the City of Chicago, and while driving along, in the exercise of due care and caution for his own safety, and the safety of his property, he was compelled to drive to the left side of the northbound roadway to allow a siren-equipped police car which was traveling at a high rate of speed, to-wit: 40 miles per hour, to pass him; that while driving hack into the right lane of the northbound roadway, claimant’s automobile struck certain debris, which had been piled there, causing the left rear side of his car to strike the abutment of the viaduct; that the place was not lighted and contained no danger signals; that the automobile was turned over and damaged to the sum of $322.50, and the claimant himself was considerably bruised and hurt; that the total claim for damage to the automobile and medical expenses, amounts to the sum of $447.50.

The Attorney General has filed a motion to dismiss on the grounds that in the construction and maintenance of roads, the State acts in its governmental capacity, that is, the State is exercising its sovereign powers. The State can act only through its officers and employees, and if such officers and employees perform their duties in a negligent manner, the negligence is the negligence of the officer, and not of the State.

We have held many times that under such circumstances, the State is not liable. These principles of law are so thoroughly established that citation of law would seem unnecessary.

Chumbler vs. State, 6 C. C. R. 138.
Martin & Kellerman vs. State, 8 C. C. R. 417.
Walen vs. State, 8 C. C. R. 501.
Rehman vs. State, 8 C. C. R. 556.

For that reason, this claim must be dismissed.


author: Me. Justice Linscott

text:
    (No. 2381
    Wilhelmena Schultz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent-.
   Me. Justice Linscott

delivered the opinion of the court:

The application for compensation in this case was filed May 4, 1934. It alleges that claimant was, during the month of February, 1934, a graduate registered nurse; that she registered for work under the C. W. S. of the State of Illinois, and was assigned to work on Project No. 6376 to help Miss Mary Jane Fee, the Champaign County school nurse, in work over the county; that she started work on January 29, 1934. She was furnished no means of transportation and no expense money for transportation. Miss Fee took the claimant with her in an automobile furnished to her by Champaign County; that on Monday, February 5, 1934 while traveling with Miss Fee in said automobile and under her direction to Broadlands, Illinois, for the purpose of checking up on the scarlet fever situation there, at about 9:00 a. m. and about three miles east of said Broadlands on the public road, the car in which claimant was riding became overheated and apparently commenced to smoke. The occupants of the car became frightened and got out. While alighting from the car, the claimant fell, breaking her left arm near the shoulder.

Claimant received medical care and was confined to a hospital for fourteen days, totally incapacitated. Her compensation was fixed at the rate of $35.00 for a thirty hour week. She has received no compensation for the time she was incapacitated; neither were her doctor and hospital bills paid.

The Attorney G-eneral has-made a motion to dismiss the claim for the reason that she seeks to recover for injuries sustained by getting out of an automobile while she was assigned to work for the Civil Works Service, and, therefore, the State is not liable.

The Workmen’s Compensation Act applies to the State of Illinois. She was not driving the car but was being transported along with an employee, of Champaign County, to Broadlands, Illinois. The danger feared by the car steaming was no real danger whatsoever.

In order to obtain a recovery under the Compensation Act, the claimant must bring herself within the provisions of the Act. There is nothing averred in the complaint which would bring the claimant within the provisions of the Compensation Act, except the fact that she was riding in an automobile which was apparently furnished by the State, but nothing is averred to show what her duties were, or to bring her within Section 3 of the Compensation Act. There is nothing about this claim that would bring it under the Compensation Act of this State. The conditions prescribed by Section 3 of the Workmen’s Compensation Act as necessary to the right to compensation are, that the employer and the employee shall be engaged in some department of an enterprise or business which the Act declares to be extra-hazardous. While the Workmen’s Compensation Act will be liberally construed to give effect to its purpose, a strained construction to include an occupation or employment, permanent or temporary, not fairly within the Act cannot be supported.

The motion of the Attorney General to dismiss will, therefore, be sustained.


text:
    (No. 2910
    Ralph Yocum, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

    Martin J. Gannon, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on June 2nd, 1936, and alleges therein that on February 6th, 1936, he was driving Ms motor vehicle in a southerly direction on S. B. I. Route No. 2 near the Village of Grand Detour in Lee County, Illinois; that as he approached the Grand Detour bridge over the Rock River, and while he was in the exercise of all due care and caution, and while he was driving on his own proper side of the road, his motor vehicle collided with a truck owned by the respondent, and controlled and operated by its servants and agents; that said truck was carelessly and negligently parked on said highway without any signals of any kind to warn travelers thereof; that by reason of the carelessness and negligence of the servants and agents of the respondent as aforesaid, the motor vehicle of the claimant was damaged, and he sustained personal injuries, for which he asks an award.

The Attorney General has moved to dismiss the case for the reason that there is no liability on the part of the respondent under the facts set forth in the complaint.

We have held in numerous cases that the State, in the maintenance of its hard surfaced highways, is engaged in a governmental function.

Chumbler vs. State, 6 C. C. R. 136.
Highland vs. State, 6 C. C. R. 384.
Bucholz vs. State, 7 C. C. R. 241.
Wilson vs. State, 8 C. C. R. 72.
Wetherholt vs. State, 8 C. C. R. 100.

We have also repeatedly held that the. State, in the exercise of its governmental functions, is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

Braun vs. State, 6 C. C. R. 104.
Chumbler vs. State, 6 C. C. R. 138.
Bucholz vs. State, 7 C. C. R. 241.
Baumgart vs. State, 8 C. C. R. 220.
Childress vs. State, 8 C. C. R. 223.
Ryan vs. State, 8 C. C. R. 361.
Kramer vs. State, 8 C. C. R. 31.
Johnson vs. State, 8 C. C. R. 67.
Wilson vs. State, 8 C. C. R. 72.

The law as above set forth is recognized in numerous decisions of our Supreme Court.

Hollenbeck vs. County of Winnebago, 95 Ill. 148.
City of Chicago vs. Williams, 182 Ill. 135.
Minear vs. State Board of Agriculture, 259 Ill. 549.
Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

There is no statute making the State liable under the facts set forth in the complaint, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss sustained. Case dismissed.


text:
    (No. 2475
    Olivia Kelly, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 8, 1936.

      Rehearing denied February 10, 1937.

    Thos. S. Sawyer, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Ten Thousand ($10,000.00) Dollars for injuries alleged to have occurred on December 7,1933 when the car in which she was an occupant was struck by a truck owned by respondent, used in the Highway Department and then and there driven by one Charles Mullin, an employee of respondent in said Department. A motion by respondent for a dismissal of said complaint will be considered with the evidence.

From the evidence it appears that claimant was a guest of George Smith of Kirkwood, Illinois, and with other passengers was riding in his automobile about 7 o’clock p. m. on said date' on S. B. I. Boute No. 8; that Smith’s car was being managed and driven in a safe and sane manner and at a reasonable rate of speed, and that both he and claimant were in the exercise of due care and caution for their own safety and the safety of others; that as they approached a curve near Kirkwood, Illinois the truck operated by the said State employee came from the opposite direction, on claimants side of said highway; that the driver of the car in which claimant was a passenger attempted to attract the attention, of the driver of the track to induce the latter to return to his own proper side of said highway, i. e. the west or righthand side of said road, but that the latter failed to do so and struck the right rear end of the Smith car. The truck was carrying a steel brace in front for use in attaching a snow-plow and the crash demolished the rear end of the Smith car, knocked claimant Olivia Kelly unconscious and resulted in serious injuries and fractures to her back and pelvis. Besides permanent injury and deformity of the pelvis, claimant has necessarily expended substantial sums in medical bills. The proof shows that Mullins, driver of the State truck, made no attempt to avoid the accident. George Smith testified that Mullins came to him the next morning and said “I will fix your car and let’s keep it as quiet, as possible.” Owen Kelly, husband of claimant, testified that four days after the accident Mullins came to the former’s home and inquired about Mrs. Kelly’s injuries and then said “Well, you are a pretty good fellow and if you will not report this I will help you on the doctor bills. ’ ’ Witness also quoted him as saying, “If I did not act in accordance with his wishes it would be no use for me to sue him as he did not have any money. He wanted to know if I had heard that he had been drinking; that he had some denatured alcohol in the back of his car and probably had got some on his hands and gloves.”

Another witness, J. Earl Gray of Kirkwood, who had been a mechanic and service station employee for a number of years, testified that he had known Mullins since 1917 or 1918 and was quite familiar with the latter’s habits and ability to drive an automobile; that Mullins has had several accidents and in the opinion of witness, Mullins is not a very good driver.

According to the testimony of the attending physician, claimant suffered a fifty (50) per cent permanent disability and will be under a physician’s care for the rest of her life because of the deformity resulting from this accident.

Because of the inexcusable nature of this accident the court is reluctant to grant the motion filed herein.by respondent for a dismissal of this cause. The motion is based however upon the ground that no legal liability can be laid at respondent’s door for the negligent and careless action of its employee. The general rule is well established that the doctrine of respondeat superior does not apply to the State in the exercise of its governmental functions. Minear vs. State Board of Agriculture, 259 Ill. 549; Hollenbeck vs. County of Winnebago, 95 Ill. 148.

Claimants base their right to recovery “upon a custom, rather than a rule of law founded in justice and mercy.”

It is true that this court has in rare intervals departed from the rule of non-liability by the State for the negligence of its employees, as noted in the case of Sprague Dairy vs. State, 7 C. C. R. 227, but such departure is apparently not justified under existing statutes. For many years Illinois has been in the forefront in attempting to grant redress to its citizens upon just demands held by them. In determining the extent to which this court may justifiably go in granting such claims, and considering the so-called doctrine of equity and social justice, this court held in the case of Crabtree vs. State, 7 C. C. R. 207:

“That when the Legislature created this court and clothed it with power to hear claims against the State, we believe that it did not thereby intend to waive the> right of the State to interpose any legal or equitable defense it might have to the demands of claimants.”

The case of Murdock Grate Co. vs. Commonwealth, a Massachusetts case, was referred to in the Crabtree case wherein the court said:

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

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


text:
    (No. 2607
    Michael Rabatine, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1936.

    R. A. Powers, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Prior to and on August 18, 1934 claimant was in the employ of respondent as a guard at the Illinois State Penitentiary, Pontiac Division. A riot- started among the inmates on that day during a baseball game. Claimant in the performance of his duties attempted to stop the disorder, and in so doing was struck, kicked and beaten by a number of the inmates, and suffered injuries which required immediate treatment at the prison hospital.

One of his fellow-guards testified at the hearing that claimant was about fifty (50) yards from him when the rioting started; that when witness first saw him, he was fighting his way out of a gang of inmates with blood streaming from his head, and that Ms trouser legs and other parts of his clothing were torn off.

Dr. E. G. Beatty, who was employed as a physician at the Illinois State Reformatory Hospital in Pontiac at the time, testified that he examined claimant on August 18, 1934 immediately following the riot, and that at that time claimant was suffering from a lacerated wound on his scalp about one inch long, and a sprain and contusion of the left shoulder, ruptured ligaments, and contusions of the left leg and right foot. He was given treatment at the institution hospital for five days, then went to his home in Streator and returned to work on September 24th where he continued working until discharged for cause on November 30,1934. Bills for medical treatment have been paid by respondent and claimant received full pay until the time of his discharge. His claim was filed herein February 18, 1935 for Four Thousand Three Hundred Twenty ($4,320.00) Dollars permanent disability, but in the final presentation of his claim his counsel rest upon a demand for a permanent loss of ten (10) per cent use of the claimant’s left arm, and seek an award therefor in the sum of Two Hundred Thirty-three and 50/100 ($233.50) Dollars.

Claimant was treated and examined by several physicians at the prison. Dr. Beatty testified that the injury to the shoulder is hard to classify; that it might thereafter interfere with the patient doing manual labor, but that he has no way of estimating the period of time. Dr. Beatty examined the claimant on or about November 30, 1934; and testified that the injured ligaments of claimant’s shoulder had not resumed their normal functions, and that there was some subluxation and stretching of the ligaments.

Dr. L. D. Howe, claimant’s family physician at Streator, Illinois, testified that he had treated patient since the time of his injury and has seen him every three or four weeks; that his last examination was about September 23, 1936; that there is a permanent loss of use to the claimant of the entire left arm as a result of the injury in question, of ten (10) per cent; that such injury and loss is the result of injury to the nerve in claimant’s left shoulder, and that claimant is unable to do any lifting or any manipulating of tools with that arm. Claimant and respondent were both operating within the provisions of the Workmen’s Compensation Act. The accident occurred on August 18, 1934. The State had immediate notice of the same, and the claim was filed on February 18, 1935, within six months thereafter. Claimant was receiving wages at the rate of Ninety ($90.00) Dollars per month. Sec. 8 of the Workmen’s Compensation Act provides:

(e) For injuries in the following schedule the employee shall receive * * *

13. For the loss of an arm or the permanent and complete loss of its use 50% of the average weekly wage during 225 weeks.

His average weekly wage was Twenty and 76/100 ($20.76) Dollars. Fifty (50) per cent thereof for two hundred twenty-five (225) weeks would he Two Thousand Three Hundred Thirty-five and 50/100 ($2,335.50) Dollars, and ten (10) per cent thereof would be Two Hundred Thirty-three and 55/100 ($233.55) Dollars.

The court finds from the record that claimant suffered an injury from an accident which arose out of and in the course of his employment; that the same is compensable under the Workmen’s Compensation Act, and that he has suffered a total permanent disability of ten (10) per cent of the loss of the use of the left arm. An award of Two Hundred Thirty-three and 55/100 ($233.55) Dollars is allowed in favor of the claimant. As the payments heretofore due would aggregate the full amount, the total award is found to be now due and payable. This award being subject to the provisions of an Act entitled “An Act making cm appropriation to pay compensation claims of State employees cmd providing for the method of payment thereof”, approved July 2, 1935 (Sess. Laws 1935, p. 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when, such approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


text:
    (No. 2635
    Frank Russo, Administrator of the Estate of Carmen F. Russo, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1936.

    Roland V. Libonati, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

According to the complaint filed herein claimant’s intestate, Carmen F. Eusso, was employed as a physician at the Peoria State Hospital; that Dr. Eusso was in perfect health when employed there, but that due to the alleged failure and neglect of respondent to provide reasonable means and methods for the prevention of disease incident to the work performed by Dr. Eusso, and because of the latter’s exposure to illness and disease existing in said hospital, Dr. Eusso became afflicted with tuberculosis.

The claim further recites that he was given leave of absence from April 16, 1933 to April 16, 1934 but that he continued to spend the greater portion of his time at the hospital, and at the request of the authorities continued to perform professional duties, for which he received no compensation during said period of twelve months; that as a result of the disease thus acquired Dr. Eusso died May 25, 1934. Claimant files his suit as an action in assumpsit.

The Attorney General moves a dismissal of the complaint on the ground that same seeks the recovery of a salary allegedly due for a period while the employee in question was on leave of absence, without failing to show that such employee was then and there working under the provisions of the Civil Service Commission law and that in so working such leave of absence had been granted “with pay.”

The complaint does not set forth sufficient grounds upon which to pay an award. The contentions of the Attorney General are sustained, the motion allowed and the claim dismissed.


author: Me. Justice Yantis

text:
    (No. 2636
    Frank Russo, Administrator of the Estate of Carmen F. Russo, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1936.

    Eoland V. Libonati, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

This is a companion case to the case under the same title filed herein as No. 2635; the latter case being filed as an action in assumpsit, and the complaint in this ease being apparently-drawn with the desire that it might be considered as an action based upon rights under the common-law or under the provisions of the Workmen’s Compensation Act, although no reference is made to the latter Act by word or title. The facts set up are the same as in ease No. 2635.

The Attorney General has filed a motion to dismiss this action, for the reason that if considered as an action at common-law, the claim is predicated upon the purported negligence of the agents and servants of respondent in not providing proper working conditions where deceased was employed, and that if such complaint is considered as based .upon the Workmen’s Compensation Act said complaint is not sufficient for the reason that there is no allegation that any claim for compensation was made within six months after the claim accrued as required by Section 24 of the Workmen’s Compensation Act.

This court has repeatedly held:

"That the State is not liable for damages caused by the negligence, misfeasance, or non-feasance of its servants, agents or officers, unless there is a statute expressly making it so liable.”
Braun vs. State, 6 C. C. R. 104.
Walen vs. State, 8 C. C. R. 501.

Section 24 of the Workmen’s Compensation Act reads as follows:

“No proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident.”

The objections are properly raised by the Attorney General and the motion to dismiss the complaint is allowed and the cause dismissed.


text:
    (No. 2860
    Arthur F. Thome, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1936.

    Maurice A. Frank, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award for an unpaid bonus from the State of Illinois in the sum of Three Hundred ($300.00) Dollars alleged to be due him for military service while a resident of the City of Chicago from November 19, 1917 until the date of his discharge, June 20, 1919, at which latter date he received his honorable discharge from service. Claimant alleges that he filed an application with the Service Recognition Board of Illinois, May 7, 1921, and at several times thereafter, and that on March 22, 1928 he filed an application for delayed compensation with the Adjutant General of Illinois, under Section 1 and 2 of the Act of July 7, 1927, Laws of Illinois, 1927, p. 42. That Act provides among other things in Section 1,

“Any person who was entitled to compensation under the provisions of an Act to provide payment of compensation to certain persons who served with the military or naval forces of the United States * * * and who * * ^'inadvertently * * * was prevented from receiving compensation * * * shall be paid * * * if such person makes application therefor within one year from the time this Act takes effect. Application for delayed compensation under the provisions of this Act shall be made to the Adjutant General of Illinois.”

Section 2 of said Act of July 7, 1927 makes it the duty of the Adjutant General

“To receive and pass upon the merits of all applications made under the provisions of said Act.”

Respondent has filed a motion to dismiss said complaint because the latter does not contain any allegation as to what action has been taken by the Adjutant General upon said application; and further that as the Legislature in said Act has made it the duty of the Adjutant General of Illinois to pass upon the merits of such application, that this court would have no right to review his decision or to consider a claim based upon the terms of said Act. The motion to dismiss is further made on the ground that the claim was not filed within five years from the time the purported cause of action accrued; the contention of respondent being, that any rights which claimant might have, accrued July 7, 1927, and that the claim was not filed with the Court of Claims until March 16, 1936. The statute creating the Court of Claims provides as follows:

“Every claim against the State, cognizable by the Court.of Claims shall' be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrued. * *
Sec. 10, Act Creating Court of Claims — Approved June 25, 1917, L. 1917, p. 325.

The first two objections by respondent are not regarded as sufficient for a dismissal of the complaint, but as the latter .was not filed within the required period of five years from the time the claim accrued, the Court of Claims is without jurisdiction, and the motion to 'dismiss the complaint is allowed and the cause dismissed.


text:
    (No. 2574
    Erna Wilbur, as Administratrix of the Estate of Spencer L. Wilbur, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1936.

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

delivered the opinion of the court:

Claimant filed her complaint herein on January 12th, 1935 and seeks to recover the sum of Twenty-Five Thousand Dollars ($25,000.00), as financial help or assistance on account of the death of her husband while in line of duty as a member of the Illinois National Guard; — in accordance with the provisions of the Military Code of this State.

From the record in this case the following facts appear:— That on August 11th, 1934 claimant’s intestate, Spencer L. Wilbur, was an enlisted member of Battery A, 123d Field Artillery, Illinois Nation Guard, having a rating of first-class private and fifth-class cook.

That said Spencer L. Wilbur originally enlisted in Company C, 6th Infantry, Illinois National Guard, from March 22d, 1911 to March 21st, 1914; that he re-enlisted in said Company on April 22d, 1914, and remained a member of said Company until April 16th, 1917, at which time he was discharged by reason of dependents; that he re-enlisted in Battery A, 123d Field Artillery, on October 12th, 1928, and remained an enlisted member of said Company to the time of his death.

That on August 11th, 1934 said Battery A was attending the annual encampment at Camp Grant; that on said date said Spencer L. Wilbur, while returning to camp from Bock-ford, by automobile, to attend muster at four o’clock p. m., sustained accidental injuries as the result of an automobile accident occurring within the boundaries of said Camp Grant; that he died as the result of such injuries on October 12th, 1934 at St. Anthony’s Hospital, Bockford, Illinois.

That the Military Board which investigated the matter found that Spencer L. Wilbur at the time of the accident was “in line of duty.”

That said Spencer L. Wilbur left him surviving Erna Wilbur, his widow, and three daughters, aged two, five and ten years respectively.

That said Spencer L. Wilbur at the time of his death was 43 years of age; that his widow was 33 years of age; that said Spencer L. Wilbur left no real estate and no personal property aside from a small amount of household furniture and furnishings of a value not in excess of $200.00; that he left a policy of insurance in the amount of $1,000.00, of which $200.00 was required to settle up the debts and claims against his estate, and the further sum of $200.00 was required to pay the expense of an operation on the oldest child; that said Ema Wilbur has no relatives who are able to provide for her support and maintenance or who are able to render financial assistance to her or to her children.

That Spencer L. Wilbur prior to the accident in question, was in perfect health; that at the age of eighteen years he was employed by the Chicago, Burlington and Quincy Bailroad Company and continued in the employ of said Company until about two years prior to the date of his death; that during the last few years he worked for said Bailroad Company he was employed as an electrician and earned from $70.00 to $80.00 every two weeks; that, subsequently, by reason of the seniority rule, he was demoted on account of the number of men seeking employment, and just prior to the time he was laid off, was earning about $40.00 every two weeks; that between the time he was laid off by the Bailroad Company and the time of his death, he had been unable to find any regular employment, except that for about a year prior to his death he was employed as a part time cook at a cafe in G-alesburg, for which he was paid $12.00 per week; that in addition to such part time work he performed such other odd jobs as he could obtain, and at one time was employed by the Federal relief agency as an electrician.

Section Eleven (11) of Article Sixteen (16) of the Military and Naval Code of this State provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the commander in chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

The Military Board which was convened in accordance with law, found that the claimant’s intestate at the time of the accident which caused his death, was “in line of duty,” and we see no reason for departing from the conclusion reached by such Board.

The only question involved, therefore, is the question of the amount which the claimant, as Administratrix of the estate of said decedent, is entitled to recover in the way of financial help and assistance, in accordance with the provisions of the aforementioned section of the Military Code.

The Attorney General takes the position that the amount should be fixed in accordance with the provisions of the Workmen’s Compensation Act of this State, which, under the facts stipulated, would be Thirty-Two Hundred Dollars ($3,200.00.)

A similar question has arisen in several other cases which have come before this court, and on some occasions the provisions of the Workmen’s Compensation Act of this State were accepted as a guide in determining the amount to be allowed under the facts in evidence in those particular cases. In each of such cases, however, the amount awarded was recognized as being in accordance with the merits of such case.

There is nothing in the Workmen’s Compensation Act or in the Military Code which provides that this court shall be governed by the provisions of the Workmen’s Compensation Act in fixing the amount of the award in cases of this kind. The statute provides that the amount shall be “as the merits of each case may demand. ’ ’

Considering the age of the claimant’s intestate, the age of his widow, the number of his children and their respective ages, the financial worth of the decedent, the financial worth of his widow and the relatives from whom she might expect to receive financial aid, and all of the facts and circumstances appearing in the record, we feel that an award of Fifty-Five Hundred Dollars ($5,500.00) would be fair and reasonable, and would be in accordance with the merits of the case.

Award is therefore entered in favor of the claimant for the sum of Fifty-Five Hundred Dollars ($5,500.00).


text:
    (No. 3017
    American Liquor Distributing Corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1937.

    Allen H. Schultz, for claimant.
    Otto Keener/ Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks a refund of One Hundred Sixty Six and 67/10 ($166.67) Dollars. On September 4, 1935 it filed an application with the Illinois Liquor Control Commission for an Importing Distributor’s License, pursuant to the provisions of the Illinois Liquor Control Law; and accompanied such application with the payment of One Hundred Sixty Six and 67/100 ($166.67) Dollars, being the pro rata portion of license fee required for a license to expire April 30, 1936. Article 7, Section 2 of the Illinois Liquor Control Law, approved January 31, 1934 provides, that such an application should be accompanied by a joint and several bond, etc. conditioned upon the true and faithful compliance by the licensee with all provisions of such Act.

The application in question was not accompanied by such bond, but on August 30, 1935 claimant had applied for such bond from the firm of Touhy and Sain of Chicago, Illinois, and had paid the premium therefor in the sum of Eighty ($80.00) Dollars, said firm being agents for The Seaboard Surety Company. The latter declined to issue the bond and a refund of the premium was made to claimant, and claimant was thereafter unable to procure an Importing Distributor’s License because it had failed to complete its application, in that it had failed to file the required bond as required by the Illinois Liquor Control Act.

No contention exists as to the facts, but the Attorney Greneral has filed a motion to dismiss the complaint, contending that one who voluntarily pays a fee for a license cannot thereafter recover it back when such license is not issued in consequence of applicant’s failure to comply with other conditions.

' There is no showing that the applicant ever engaged in the business for which such license was applied, and the application for such license was never in fact completed, because in order to be complete the application must have been accompanied by the license fee and the bond in question. The application, not having been sufficient upon which to issue a license, should have been returned to the applicant, together with the fee accompanying same, and there is no authority, in the opinion of the court for the State to retain the license fee thus proffered by the applicant.

It is therefore ordered that the motion to dismiss be and the same is hereby denied, and an award is hereby entered in favor of claimant in the sum of One Hundred Sixty Six and 67/100 ($166.67) Dollars.


text:
    (No. 2992
    Joseph Augustyn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1937.

    Ungako & ShebwooO, for claimant.
    Otto Keenee, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

On May 1, 1935 claimant paid to the Illinois Liquor Control Commission the sum of Fifty ($50.00) Dollars for a retail liquor license for the premises at 1259 Cornell Street, Chicago, Illinois, and received receipt No. 576 therefor. A retailer’s liquor license was thereafter issued to him on May 28, 1935. Three days later, i. e. on May 31, 1935, an inspector from the office of said commission called on claimant and demanded that he then and there produce such license. Claimant was unable to produce same, and as he recites in his complaint, to avoid trouble, thereupon under protest paid to the inspector Fifty ($50.00) Dollars for a retail liquor license for said premises. On the 20th day of August, 1935 a second retail liquor license was issued to claimant covering the same premises as that covered by the original license. Claimant presented Ms claim to the Illinois Liquor Control Commission for a refund of the duplicate payment, and the commission authorized a refund hut payment thereof was refused by the Department of Finance under an opiMon from the Attorney General that neither the commission nor the Department of Finance had authority to make such refund.

Giving due allowance to the time required for transmittal of the license in question, and in the absence of any showing to the contrary, it is not strange that the license in question issued on May 28, 1935 was not in the hands of the licensee three days later on May 31st when the inspector demanded to see the same. There is no contention that the fee had not been paid for such license, and that such license had not in fact been issued or that it was not thereafter received by claimant, and there is no showing to justify the collection of the additional Fifty ($50.00) Dollars, collected from claimant on May 31st.

It is therefore ordered that an award be entered in favor of claimant in the sum of Fifty ($50.00) Dollars.