author: Mb. Justice Tantis

text:
    (No. 2064
    Dungey and Cochran Construction Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Dungey and Cochean Consteuction Company, pro se.
    Otto Kebneb, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

This is a claim for freight charges incurred by claimant in shipping contractor’s equipment from Carondelet, Missouri to the site of the proposed road project at Stubblefield, Illinois; for expense incurred in loading and unloading such equipment and for overhead expense in connection therewith, consisting of telephone tolls, food and lodging. Also included in said claim is an item of $320.00 salary of the claimants, president and secretary-treasurer, at $10.00 per day each for eight days, all as appearing in the Bill of Particulars filed in said cause. Plaintiffs filed their claim herein on January 11, 1933. Motion to dismiss same was filed by the State, and on August 1, 1934, plaintiffs filed their amended complaint with the clerk of this court. The case is submitted on stipulation of facts. From same it appears that claimant was awarded a certain contract by the Department of Public Works and Buildings, Division of Highways, State of Illinois on State Bond Issue Route No. 11, near Stubblefield, Bond County, Illinois, on a bid of Two Hundred Two Thousand Four Hundred Twenty-five and 40/100 Dollars ($202,425.40) and claimant was so advised by the department under date of June 28,1932.

The facts are not in dispute. The claimant immediately upon receiving notice of the award proceeded to arrange for said work and shipped certain machinery and supplies to Stubblefield, Illinois, for such construction work; that on July 6, 1932, when actual work was about to start, a large crowd of men appeared and by threats and intimidations stopped the work; that the same thing happened on July 8th and July 12th; that because of said conditions, the claimant could not proceed with the work. A formal contract had not been executed, nor a bond given to guarantee the fulfillment of said contract. The claimant, on the 13th day of July, 1932, made application to the Highway Department to cancel the award previously made to claimant and at the same time waived any and all claims for damages resulting from delay or from cancellation of the award, but reserved the right to present, at the proper time, their itemized claim for incidental expense incurred in moving equipment to said project. The Highway Department thereupon annulled the award and waived a forfeiture of the proposal guarantee. Thereupon, on January 11, 1933, a claim was filed in the Court of Claims for the sum of Seventeen Hundred Fifty-two and 50/100 Dollars ($1,752.50). .

The claimants in this cause, according to the affidavit filed by them with the Highway Department on July 13, 1932, state that prior to submitting their bid on the project in question, they made a personal investigation as to the local conditions existing at that time, and with the information so obtained submitted their bid to the Highway Department, and presumably the contract in question was a favorable one for the respondent. If respondent had refused to withdraw the award upon the request of claimant and had insisted that the claimant solve its labor troubles and proceed with the work, the claimant would have had to so do or upon its failure, the respondent would have had a right of action against claimant on the proposal bond given by the claimant with its bid.

The general doctrine is that where parties by their own contract and positive undertaking create a duty or charge upon themselves, they must abide by the contract and either render performance or pay the damages. McWilliams vs. Eldrid Dist., 229 Ill. App. 91-94 (cases cited). The State, in entering upon contracts of this nature, does not insure those making proposal bids that no labor trouble or unforeseen difficulties will arise. A person making the contract to do such work may stipulate against strikes, walk-outs, unfavorable weather, etc., and in that way insure himself against loss from such causes. The claimant was released from its bid. There is no legal right existing against the State for damages or reimbursement by claimant, and even under the often abused extension of the rule of equity and good conscience, it appears that the State in releasing claimant under the award and waiving any forfeiture thereunder has acted in a fair spirit and should not now assume the burden of such incidental expense as was incurred by claimant in connection with its bid.

Motion to dismiss claim is allowed. Case dismissed.


source: Caselaw Access Project

author: Me. Justice Yantis

license: Public Domain

text:
    (No. 2061
    Fred L. Hansen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Feank J. Bubns and James T. Buens, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

This claim was filed January 25, 1933, for an allowance of Ten Thousand Dollars ($10,000.00), for the use of road marking machines, for the basic principle or design of which plaintiff claims to hold patent rights.

The evidence discloses that plaintiff, at the time of the hearing of this case on August 23, 1933, and other dates prior thereto, was an employee of the State Highway Department; that he had been employed by such department in 1921-22-23 and 1924 and more or less continuously for a period'of thirteen years; that in 1921 and 1922 the State Highway Department was confronted with the problem of marking a traffic line down the center of the paved highways of the State; that various employees of the State Highway Department were instructed to apply themselves to the task of making a machine or plans for a machine that would serve this purpose. Albert H. Elmore, now a farmer of Mason City, Illinois, was one of the men thus employed. He testified that he built a three-wheeled machine in 1922; that he later made a four-wheeled machine at the request of his superiors, Messrs. Todd and Tar-rant. In October, 1922, that machine was improved with a fire box for heating asphalt and a sand box. Elmore testified that seven machines of that type and one of the three-wheeled type were made in the summer and fall of 1922 and were shipped to various parts of the State for use under the direction of the State Highway Department. Various changes were made in the details of construction, including a patented nozzle or asphalt spreader, shown to have been manufactured by the Weaver Manufacturing Company of Springfield, Illinois. Other machines for the same purpose were built by Harry Whipperman and Virgil Patch. These machines were used, according to the evidence (Record P. 85), for about ten years. One of these machines known as the ‘1 Dixon Hand Machine, ’ ’ was sent to the Elgin district, where plaintiff was then employed.

Plaintiff herein, as one of the employees of the Highway Department, was asked by C. R. French, one of his superior officers, if he could build such a machine. Thereafter it appears that plaintiff, while employed by the State and working in the State garage, and with State tools and supplies, and during a part at least of his regular working hours, devoted his mind and energy toward designing and building a machine for the purpose stated. During a part of this time he was foreman of one of the State garages and foreman of mechanics and devoted a part of his leisure hours to further developing a road marking machine. The patents held by plaintiff include a design for a rotary brush, adjustably secured for the purpose of cleaning the road as the marking thereof progressed; one patent being for a circular brush and the other for a cylinder or barrel type brush.

J. L. Todd testified that a rotary broom was designed and manufactured in the Springfield garage and used on the machines built there by the State in June, 1923. These machines also had the Weaver adjustable nozzle, controlling the flow of asphalt.

C. W. Ross testified that the first machine built in the Dixon office was in August, 1922; that it used asphalt and had a sand box and was pushed by hand; that this machine was loaned to the Elgin district (where Hansen was employed); that the plans for this machine came from the Springfield office of the Highway Department. C. I. Burggraf and J. Gr. Hagenbacher of the East St. Louis State Highway office received the machine from the Springfield garage in 1922; used it two years and thereafter built two additional ones at the East St. Louis garage.

A large amount of evidence appears in the record concerning plaintiff’s priority rights to a patent for road marking-machinery, and to show that an effort was made by Fred Tar-rant and L. H. Hendrick of the State Highway Department to also obtain patents on machines designed for such purpose. A great deal of testimony, to which objections were properly made, appears; but this opinion will not be encumbered by specific rulings upon these many objections.

Plaintiff’s claim is, in effect, a demand for damages for the infringement of a patent; the specific claim being “That the State of Illinois through its officers, agents and employees had been using plaintiff’s inventions without authority of plaintiff and without having paid to him any compensation for the use of said inventions,” by reason of which plaintiff claims damages in the sum of $10,000.00. His Bill of Particulars limits his complaint to the use of such machinery from and after September 1, 1926.

The negotiations between plaintiff, Tarrant and Hendrick relative to the proposed building of road marking machinery by the Austin Manufacturing Company under plaintiff’s patents evidences the amount that plaintiff was willing to receive as royalty for each traffic line-laying machine that was manufactured from his patents by said company. Under the terms of an agreement which plaintiff signed on January 24, 1924, and submitted to Messrs. Tarrant and Hendrick, plaintiff offered to accept Twenty-five Dollars ($25.00) for each machine so manufactured; Messrs. Tarrant and Hendrick were to have the machines manufactured by the Austin Manufacturing Company and were to pay plaintiff his royalty each six months, and were also to reimburse plaintiff for “Three-fourths of the sum not more than $200.00 for the securing of patents on said traffic line-laying* machine.” The title to his patents- were to remain in the name and possession of plaintiff, but the other parties were to have exclusive right to the use of same in the manufacture and sale of machines. (Claimant’s Exhibit 17.)

Plaintiff testified that he had no objection to the State using the machine patented by him, when it was first built, but that in January, 1926, he protested to C. R. Miller, Director of Public Works, against the construction or use of any second or subsequent machines without compensation to him. Plaintiff also testified that he knew in the fall of 1923 that other similar machines were being used in all parts of Illinois.

The conclusion that must be drawn from a careful study of the entire record, is that in 1921 and 1922 the officers and employees of the State Highway Department became convinced that some system for marking a traffic line on the paved highways was necessary; that the foremen and mechanics at different State highway shops were given instructions to attempt to design and build machines for such purpose; that plaintiff was merely one of several employees to whom such request was made and who responded thereto. The record shows that other machines having the basic principles of the one later patented by plaintiff were in úse before he built his first machine. The fact that he was the first one to apply for a patent does not in itself give him any standing in this court in attempting to obtain from the State special compensation for the use of machines which the State has built and paid for, and which according to the evidence, are based upon many of the same basic principles appearing in the machines built by other employees of the State before, or independent of, any machine that was designed or built by plaintiff. As above stated, the negotiations between Messrs. Tarrant and Hendrick, and plaintiff, and the contentions between them as to priority rights to a patent for road line-laying machinery, indicate plaintiff’s opinion in 1924 as to the amount which he should be paid for the use of each machine manufactured from his plans, i. e., Twenty-five Dollars ($25.00) per machine. There is no evidence as to1 how many road marking machines have been manufactured by the State since the objection date fixed by plaintiff in his Bill of Complaint, i. e., September 1, 1926, but he testified that throughout the years he has seen several, “As many as twelve or fifteen,” in operation. At Twenty-five Dollars ($25.00) each, claimant’s royalties would have amounted to Three Hundred Seventy-five Dollars ($375.00). However, plaintiff does not appear to be entitled to an award in any amount.

This claim does not in any way involve the question of the title to the patents and it is immaterial whether claimant, Tarrant, Hendrick or some other employee of the State originated the idea of the line-laying machine. The only question is whether there is existing authority under which the State should pay claimant for the use of the machines built by itself or at its cost from designs developed by the various State employees, including plaintiff, while such employees were working for and paid by the State, with a part of their specific duties at the time, being to develop and help construct a machine for the purpose stated.

“One who has conceived the general principle or plan of an invention is not to he deprived of the right to be regarded as the inventor of the method or device embodying his conception by the fact that other persons employed by him for the purpose reduced or assisted in reducing his conception to practice; * * ®. If co-employees bear to each other the relation of principal and assistant the rule applicable to employer and employee applies. " * * If the generic invention was communicated to the employee the employer is not deprived of the right to obtain a patent for the specific method or device produced by the employee by the fact that a slightly different embodiment was disclosed to the employee.
"Where the relation of employer and employee is established a presumption arises that the employer is the inventor of the thing produced by their joint effort.”

48 C. J. 121 (Sec. 136).

“A suit for an infringement or by way of injunction may be barred by laches as where there has been long delay in bringing suit without a valid and sufficient excuse therefor or unreasonable delay or delay accompanied by circumstances amounting to an estoppel.”

48 C. J. 331 (Secs. 532-533).

“The general rule is that where a mechanic in laboring for an employer in the construction of a machine invents a valuable improvement the invention is the property of the inventor and not that of the employer. The circumstances set up may render the machine actually made the property of the employer and in equity may really amount to a license to the employer to use the machine made, and possibly to a license to make and use other machines. But that would not give the employer the title to the patent.”

Joliet Mfg. Co. vs. Dice, 105 Ill. 649.

Plaintiff in Ms reply brief takes no issue with the above propositions of law but contends that he conceived the idea of such a machine as the one in question before he was ever instructed by the Highway office to devote any time and effort to the designing or building thereof. Regardless of this, the fact remains that plaintiff was employed by the State and was paid Two Hundred Dollars ($200.00) per month for his services and that he was specifically directed as a part of his labor to help work out a device for marking highways; that thereafter, using the employer’s shop, tools, material and time, with some additional work in his leisure hours, plaintiff designed and built a machine which he later patented and royalty for which is now demanded from such employer. Under the circumstances, under the law and as a matter of equity, the State has a right and license to use the machine made and to make and use other similar machines. The evidence shows that the State has never manufactured any line-laying machine for commercial use or sales purposes and there is considerable doubt from the record whether the machine it is now using for marking the highways has been built from ideas and plans developed independently of plaintiff’s work or whether such machines follow the designs produced by him. According to plaintiff’s testimony the State is not now using any machine having a rotary broom or cylinder rotary broom attachment; the testimony further showing that the machines now in use incorporate and use the same basic and fundamental principles set forth in the early machines built in the Springfield district and the same basic and fundamental principles that appear in plaintiff’s patents. If the State is using a machine that it is building or having built from ideas developed by plaintiff as heretofore set forth, the State of Illinois, as his employer, will be entitled as licensee to so do.

An award is therefore denied and the claim is hereby dismissed.


author: Mr. Chiee Justice Hollerich

text:
    (No. 2483
    Robert D. Hunt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Gale & West, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chiee Justice Hollerich

delivered the opinion of the court:

Prior to and on the 29th day of September, A. D. 1933, claimant was employed by respondent in the Division of Highways, and worked with a concrete replacement crew on S. B. I. Route 9. On the last mentioned date, while cutting concrete with a cold cut and sledge hammer, a piece of steel from the cold cut flew into his eye, producing a traumatic cataract. Claimant submitted to several operations and remained under the care of a specialist until July 20, 1934. The facts in the case are stipulated, and from such stipulation it appears:

1. That at the time of the accident in question both claimant and respondent were operating under the provisions of the Workmen’s Compensation Act.
2. That on the 59th day of September, 1933, the claimant sustained accidental injuries which arose out of and in the course of his employment.
3. That notice of the accident was given and claim for compensation made within the time required by law.
4. That claimant was not in the employ of the respondent continuously during the year next preceding the injury; that the annual earnings of persons of the same class in the same employment and location were $982.80, being $18.90 per week.
5. That claimant at the time of the injury was 54 years of age, and had one child under the age of 16 years at that time.
6. That all necessary first aid, medical, surgical and hospital services were provided by the respondent.
7. That compensation has been paid by respondent to claimant for all temporary total disability sustained by him.
8. That at the time claimant was discharged by his doctor, to-wit: on July 20th, 1934, he had sustained the permanent and complete loss of 75 per cent of the use of his right eye,

We therefore find that claimant is entitled to have and recover from the respondent the sum of Ten Dollars and Forty Cents ($10.40) per week for a period of ninety (90) weeks for the permanent and complete loss of 75 per cent of the use of his right eye; that such compensation is payable in weekly installments commencing on July 20, 1934.

Payment by the respondent in weekly installments, however, is not practicable under existing laws. Under all of the circumstances, it appears to be to the best interests of all parties concerned that the compensation to be paid as aforesaid be commuted to an equivalent lump sum, in accordance with the provisions of Section nine (9) of the Compensation Act.

The total amount of compensation to be paid as aforesaid, after commutation to an equivalent lump sum, is $932.09.

It is Therefore Ordered that an award be and the same is hereby entered in favor of the claimant, Robert D. Hunt, for „the sum of Nine Hundred Thirty-two Dollars and Nine Cents ($932.09).


author: Mr. Justice Yantis

text:
    (No. 2398
    A. E. Kerger, as Coroner of Kankakee County, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

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

delivered the opinion of the court:

Plaintiff, as Coroner of Kankakee County, conducted inquests on thirty-four cases of deaths of inmates of the Kankakee State Hospital and Manteno State Hospital, for which he seeks allowance in the sum of Sixteen Dollars ($16.00) for each case from the State. • Twenty-four of the cases were from Cook County and the balance from other counties of the State but none from Kankakee County. The proof shows that claimant made inquiry to determine whether his fees could be collected out of the estates of the various deceased persons and found that no collections could be made from any of the estates set forth in his Bill of Particulars.

Chapter 53, Section 26, of the Fees and Salaries Act provides as follows:

“For holding an inquest over a dead body when required by law in counties of the first and second class, $15.00 * * *.
“For summoning the jury, $1.00.
“All of which fees shall be certified by the court and when the same cannot be collected out of the estate of the deceased, paid out of the county treasury, or in the case of inmates of any State charitable or penal institution, by the Department of Public Welfare out of the State treasury.”

The Department of Public Welfare declined payment because of no appropriation.

The claim being supported by the evidence and the law, an award is hereby made in favor of plaintiff in the sum of Five Hundred Forty-four Dollars ($544.00).


author: Me. Justioe Yantis

text:
    (No. 2346
    Joseph Kiegel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Miller & Thomas, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justioe Yantis

delivered the opinion of the court:

This claim is submitted on a stipulation of facts under which it appears that plaintiff was employed on May 29, 1933, in the State Highway Department; his duties consisting of patrolling the concrete highways, and making repairs thereon; that on the day in question while engaged in the performance of his regular duties on the concrete highway between Rockford and Shirland, Illinois, he was struck by an automobile and both his legs were fractured just below the knees. He was confined in the hospital for five weeks under the care of Dr. T. H. Culhane and plaintiff was totally disabled from the date of the accident to December 16, 1933, inclusive. His average weekly earnings amounted to $14.85 and on the date of the injury and at the time of the hearing he was married and the father of three children under the age of sixteen years.

The State has settled the bill of St. Anthony’s Hospital of Rockford, Illinois, in the sum of One Hundred Twenty-five and 75/100 Dollars ($125.75) and has paid Dr. Culhane the sum of Twenty-two Dollars ($22.00) and there remains due the latter the sum of One Hundred Two Dollars ($102.00). The State has also paid plaintiff compensation in the sum of Two Hundred Fifteen and 35/100 Dollars, $(215.35). Notice of the accident was duly given and claim was filed within the time prescribed by the Workmen’s Compensation Act and plaintiff seeks an award for further temporary total disability and for fifteen per cent (15%) of the total loss of the permanent use of both legs, including a lifetime pension under Par. F of Section 8 of the Act.

The proof supports an award for part of the items claimed. The period of temporary total disability was 28-4/7 weeks, for which the minimum of Seven and 50/100 Dollars ($7.50) per week is increased to Thirteen Dollars ($13.00) per week by reason of the three children under sixteen years of age. The amount of temporary total disability would therefore be Three Hundred Seventy-one and 43/100 Dollars ($371.43); of which latter sum Two Hundred Fifteen and 35/100 Dollars ($215.35) has been paid, leaving a balance due for temporary disability of One Hundred Fifty-six and 08/100 Dollars ($156.08). As to the permanent disability the record discloses that one leg is one-half inch shorter than the other, and a permanent disability of fifteen per cent (15%) has been estimated. We cannot say that a fifteen per cent (15%) disability is also due for the other leg from the fact that it necessarily is therefore one-half inch longer than its mate. The Statute provides:

“For the loss of a leg, or the permanent and complete loss of its use, 50% of the average weekly wage during 190 weeks.”

On the basis of Thirteen Dollars ($13.00) per week a total loss would be Two Thousand Four Hundred Seventy Dollars ($2,470.00), fifteen per cent (15%) thereof is Three Hundred Seventy and 50/100 Dollars ($370.50), being the amount of partial permanent disability due for the fifteen per cent (15%) loss of use of plaintiff’s leg. To these items should be added the further sum of One Hundred Two Dollars ($102.00) due plaintiff for the use of Dr. T. H. Culhane, making a total of Six Hundred Twenty-eight and 58/100 Dollars, ($628.58).

An award is hereby allowed in favor of plaintiff for the several items last above mentioned in the total sum of Six Hundred Twenty-eight and 58/100 Dollars ($628.58), of which the sum of One Hundred Two Dollars ($102.00) is for the use of Dr. Culhane.


author: Mb. Chief Justice Hollebich

text:
    (No. 1821
    Lester Charles Landreth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Robebt E. Habmon, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court :

For some time prior to June' 17, 1931, claimant was employed by respondent as an attendant for insane patients at the Jacksonville State Hospital, and was paid Fifty Dollars ($50.00) per month for his services. On the last mentioned date he was in charge of a number of patients who were engaged in baling hay on a farm near Jacksonville. In the course of the day’s work, one of the patients assaulted claimant with a pitchfork, breaking the little finger of his right, hand and inflicting numerous bruises upon his face and body. He remained under the care of a doctor for thirty-five (35) days, and received his regular wages during all of the time he lost by reason of his injuries. The evidence discloses that claimant has sustained the loss of twenty-five per cent (25%) of the use of the little finger of the right hand, and he claims compensation therefor under the provisions of Section 8-e-5 of the Workmen’s Compensation Act of this State.

It is conceded that at the time of the accident both claimant and respondent were operating under the terms and provisions of the Workmen’s Compensation Act. Complaint was filed herein within six months after the date of the accident, to-wit, on October 26,1931; and no question is raised as to the giving of notice of the accident.

Under the admitted facts claimant is entitled to compensation for five (5) weeks for the loss of twenty-five per cent (25%) of the use of such little finger, at the minimum rate, to-wit, Seven Dollars and Fifty Cents ($7.50) per week.

Award is therefore entered in favor of claimant for the sum of Thirty-seven Dollars and Fifty Cents ($37.50).


author: Mr. Chief Justice Hollerich

text:
    (No. 1631
    Harry Manaster & Bro., Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Henry J. and Charles Aaron, for Claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On July 26th, 1930 claimant filed its complaint herein for the recovery of Nine Hundred Dollars ($900.00) wihich it claims to have paid for motor truck license fees for the years 1924 to 1929, inclusive, in excess of the amount which it was legally required to pay; and for the recovery of interest on such overpayment at the rate of five per cent (5%) per annum from the date of payment.

It appears from the record that for some years prior to 1924 claimant owned three five-ton Pierce Arrow motor trucks upon which it paid license fees of One Hundred Dollars ($100.00) per annum on each truck, based upon a gross weight for truck and load of less than 20,000 pounds and more than 16,000 pounds; that such trucks were of the same make and size, and similar in every particular; and that each of said trucks consisted of a Pierce Arrow chassis and an open Packard express body, constructed and placed on the chassis by an independent body builder.

In making out the applications for license in 1924, the agent of the claimant having charge thereof, did not have access to copies of his previous applications, and telephoned the Pierce Arrow Company for the purpose of ascertaining the weight of such trucks. He was advised that such weight was 10,600 pounds, and therefore prepared and filed his applications, ■ giving a total weight of 20,600 pounds for truck and load, being 10,600 for truck and 10,000 for load. The license fee for such classification was One Hundred Fifty Dollars ($150.00) per annum for each such truck, which was duly paid by claimant.

The empty trucks were not actually weighed for the pur- . pose of ascertaining the weight thereof until 1930, when it was ascertained that the correct weight was 9,940 pounds. In 1935 two of the trucks were weighed, one weighing 9,900 pounds, and the other, which had just come from the paint shop, weighing 9,950 pounds. If the total weight of the truck and load was less than 20,000. pounds and over 16,000 pounds, the license fee should have been $100.00 per annum instead of $150.00 per annum, as paid by claimant.

From all of the evidence in the record, it appears that the correct weight of the trucks, exclusive of the load, was less than 10,000 pounds, and for each of the years 1924 to 1929, inclusive, claimant paid a license fee of $150.00 for each truck, while as a matter of fact, it should have paid but $100.00. Claimant’s agent took for granted the statement made by the representative of the Pierce-Arrow Company to the effect that the weight of the empty truck was 10,600 pounds, and based its applications upon such statement. Such representative apparently was not aware of the fact that the trucks in question were equipped with special bodies and not with the regular Pierce-Arrow bodies. Under the facts in evidence it appears that the overpayments in question were made under a mistake of fact.

The rule governing payments made under a mistake of fact is set forth in 48 Corpus Juris 759, as follows:

“As a general rule, a payment made under a mistake of fact, and which the payor was under no legal obligation to make, may be recovered back, even though made during the pendency of a suit on the demand. The right of recovery under such circumstances is known to the civil and Roman law, as well as to the common law, and is bottomed upon the equitable doctrine that an action will lie for the recovery of money received by one to whom it does not in good conscience belong, the law presuming a promise to repay. The rule applies to payments made to or by public and governmental agencies as well as private persons;” also on page 765, as follows:
“Where one by mistake of fact pays more than is due upon a debt or obligation, he may recover the overpayment.”

Substantially the same rule is announced in 21 R. C. L., p. 164; R. C. L. Supp., p. 5027; 87 A. L. R. 649. Numerous cases are cited in each of the above authorities in support of the law as above set forth.

Such rule has been recognized by this court in numerous cases. Moorman Mfg. Co. vs. State, No. 1886, decided at the May, 1934, term; Rossia Insurance Company of America vs. State, No. 1540, decided at the September, 1934, term; Black Star Coal Company vs. State, 6 C. C. R. 379; The Importers’ etc. Insurance Co. vs. State, 5 C. C. R. 1; Firemen’s Insurance Co. vs. State, 2 C. C. R. 220.

However, under Section 10 of the Court of Claims Act, claimant’s right to recover is limited to payments made during the period of five years prior to the date of filing of its claim, to-wit, July 26th, 1930. The only overpayments made by claimant during such period were for the years 1926,1927, 1928 and 1929, totaling the sum of Six Hundred Dollars ($600.00).

As to the item of interest claimed, such item apparently is based upon the provisions of our Statute relating to interest, which provide for the payment of interest where money has been “withheld by an unreasonable and vexatious delay of payment.” It appears, however, thalt no demand was made by claimant for the overpayments made by it, until about six months before the filing of the claim herein, and there is nothing in the evidence which warrants an award for such item.

Furthermore, the law appears to be that interest cannot be recovered against the State, except upon special statutory authorization. McNutt vs. City of Los Angeles, 187 Cal. 245; Philadelphia County vs. Commonwealth, 276 Pa. 12; Flint & P. M. R. Co. vs. Board of State Auditors, 102 Mich. 500.

It is Therefore Ordered that an award be and the same is hereby entered in favor of the claimant for the sum of Six Hundred Dollars ($600.00).


text:
    (No. 2530
    Ole Nelson and Josephine Nelson, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    William Greene, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimants ask for compensation “In accordance with Section 7 of the Illinois Workmen’s Compensation Act” for the death of their son, Harry Nelson, through accidental injuries sustained while the latter was an employee of the State of Illinois.

Said employee was working as an Assistant Engineer and in attempting to loosen a stake used in grade work on a paving project he injured his foot and ankle from which an infection developed, and as a result thereof and from pneumonia incident thereto, he died on July 11, 1934. The record discloses that Harry Nelson was unmarried and left surviving him his father, Ole Nelson, and his mother, Josephine Nelson; also three unmarried sisters. The father had been a structural iron worker but had been able to obtain only a small amount of work for two or three years before the death of the son. The record further shows that the three unmarried daughters were all working and contributed approximately two-thirds of the income received by the father and mother, and the son contributed approximately one-third of such income; the mother testifying “My income was around $1,500.00 * * * the son averaging around $500.00 or a little better.” (Record page 23.)

The earnings of the deceased son were One Thousand Eight Hundred Dollars ($1,800.00) per year.

Section 7 of the Workmen’s Compensation Act provides that the amount of compensation payable for injury resulting in the death of an employee shall be as follows:

“(c) if no amount is payable under Paragraph (a) or (b) of this section and the employee leaves any parent or parents — who at the time of the injury were partially dependent upon the earnings of the employee, then such proportion of a sum equal to four times the average annual earnings of the employee as such dependency bears to total dependency, but not less in any event than $1,000.00 and not more in any event than $3,750.00.”

In Ms Statement, Brief and Argument, counsel for plaintiffs contends that under the foregoing state of proof, claimants are entitled to an award of One Thousand Two Hundred Fifty Dollars ($1,250.00) that being on the basis of one-third of the maximum amount provided by the Workmen’s Compensation Act. Counsel for respondent concedes that such amount is due and the record supports the claim.

An award is therefore made in favor of Ole Nelson and Josephine Nelson jointly in the sum of One Thousand Two Hundred Fifty Dollars ($1,250.00.)


text:
    (No. 2496
    John H. Parks and Bertha Parks, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Evan L. Seabcy, for claimants.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

On August 28, 1934 claimants filed their complaint herein seeking to recover from the respondent the sum of Ten Thousand Dollars ($10,000.00) as damages for the death of their son, John Parks. The complaint alleges in substance that said John Parks, on April 4, 1926, being then nineteen (19) years of age, was found guilty of murder and sentenced to imprisonment for the term of twenty (20) years. He was confined in the Southern Illinois Penitentiary at Menard, and on August 14, 1932,- while a prisoner at such penitentiary, was stabbed by another prisoner by the name of Garrett, and sustained injuries from which he died the same day. Claimants base their right to recover upon the averments of the complaint to the effect that the respondent “was grossly negligent in allowing the said Garrett to be at large with the other prisoners’’; anff was also “grossly negligent in the care and treatment of. Parks after he was stabbed by Garrett. ’ ’

The Attorney General has moved to dismiss the claim on the following grounds:

“1. There is no liability on the part of the State under the facts set up in the complaint.
“2. The claim is barred by the Statute of Limitations, complaint not having been filed within one year after the death of decedent.”

In the conduct of its penal institutions, the State acts in a governmental capacity, and it is the well-established law of this and other States that the State, in the exercise of its governmental functions, is not liable for the negligence of its servants and agents. Hollenbeck, Admx. vs. Winnebago County, 95 Ill. 148; Minear vs. State Board of Agriculture, 259 Ill. 549; Tollefson vs. City of Ottawa, 228 Ill. 134; Kinnare vs. City of Chicago, 171 Ill. 332; City of Chicago vs. Williams, 182 Ill. 135; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; 25 R C. L. p. 407, sec. 43; 13 R. C. L. p. 944, see. 8; 8 R. C. L. Supp. p. 5580, see. 43.

There being no liability on the part of the respondent, it is unnecessary to consider the second point urged by the Attorney General.

Claimants suggest that even though the court finds that there is no legal liability on the part of the Sate, yet an award should be made “in the interest of equity and social justice.’’

We are aware of the fact that previous courts have allowed awards on the grounds of what was termed equity and social justice or equity and good conscience in certain cases which appealed to the sympathies of the Court. The jurisdiction of this court to allow an award in any case solely on the grounds of equity and good conscience, or equity and social justice, was exhaustively considered in the case of Crabtree vs. State, 7 C. C. R. 207. In that case, after a full consideration of previous authorities on the question, we reached the following conclusion:

“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 decision in the Crabtree case has been followed in numerous cases since that time, and we are not disposed to depart from such holdings. There being no liability on the part of the State in this case, we have no authority to allow an award, and the claim must be dismissed. Claim dismissed.


text:
    (Nos. 2591, 2592, 2593, 2594, 2595, consolidated
    Albert Parsons, No. 2591, James Kane, No. 2592, Harvey Cregier, No. 2593, John Howalczyk, No. 2594, Robert Scott, No. 2595, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

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

delivered the opinion of the court:

The above claims were all filed as individual claims, pro se. As they arise out of the same transaction all will he disposed of in this one opinion.

Plaintiffs seek payment for services as members of the Mine Rescue Team at LaSalle, Illinois for rescue work performed at the Moweaqua, Illinois, Mine Disaster on December 24, 1932. It appears the claimants, as members of said Mine Rescue Team, went to Momeaqua at the request of John Millhouse, then Director of the Department of Mines and Minerals, to assist in the work made necessary by the explosion. Claimants engaged in the rescue work for five days and were each entitled to the sum of Eighty-five Dollars ($85.00), including expenses; that they agreed to accept Eighty Dollars, ($80.00) and were paid Forty Dollars ($40.00) each;'that there still remains due each the sum of Forty Dollars ($40.00). The claims were filed February 6, 1935 and in a report dated February 18, 1935 from James McSherry, Director of the Department of Mines and Minerals, it is stated, “The claims are just and I would recommend their payment.”

It further appears that an appropriation for the ordinary and contingent expenses of the Department of Mines and Minerals for the biennium (Session Laws 1931, Pages 79-80) include the following items:

For .extra helmet men as emergency substitutes
and necessary assistants at mine disasters... .$6,000.00 per annum
For contingencies ............................ 5,000.00 per annum

It further appears that where the owner of a mine, when a disaster occurs, is solvent, he is required to pay for the services of the Mine Rescue Team called out at the disaster. Because of the financial condition of the Moweaqua Coal Company, no collection of the amount claimed by the several parties can be made therefrom. The Moweaqua Mine Disaster was one of the worst in the annals of Illinois mines and the record discloses that the claimants rendered valuable service in accordance with the request of the Department of Mines and Minerals, and that there is proper justification for an allowance of the amounts due them:

An award is therefore made as follows:

To: Albert Parsons .......................................$40.00
James Kane .......................................... 40.00
Harvey Cregier ....................................... 40.00
John Howalczyk...................................... 40.00
Robert Scott ......................................... 40.00


author: Mr. Justice Linscott

text:
    (No. 1815
    Silver-Burdett and Company, a New Jersey Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Defrees, Buckingham, Jones & Hoffman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case was submitted on a stipulation of fact.

- On October 9, 1931, the claimant filed its petition with the clerk of this court for a refund of the franchise tax paid to the State of Illinois for the fiscal year July 1, 1931 — July 1, 1932.

The claimant is a New Jersey Corporation and has for many years been lawfully doing business in the State of Illinois. It maintains a branch office in the City of Chicago.

On February 26, 1931, the claimant prepared and filed with the Secretary of State of the State of Illinois, its annual report for the year 1931-1932, as required by Statute. Upon receipt of this annual report, the Secretary of State assessed a franchise tax in the sum of $200.00 in accordance with the provisions of the Statute then in force; and a further tax of $12.98 as initial fees in accordance with the provisions of Sections 96 and 101 of the then Incorporation Act. This assessment was based upon a total capitalization of claimant in the sum of $1,275,000.00, as set forth in its annual report for the year 1931-1932. On May 1, 1931, the Secretary of State duly mailed an assessment notice of the franchise and initial tax fees totaling $212.98 to the Chicago office of the claimant; that on June 15, 1931, the claimant advised the Secretary of State that it had not received a notice of assessment, whereupon the Secretary of State forwarded to the New Jersey office of the claimant a copy of the notice that he had formerly mailed to this corporation with a letter under date of June 18, 1931.

On June 24, 1931, the Secretary of State received a letter from the Assistant Treasurer of the claimant corporation, enclosing a check in the amount of $212.98, in full payment of corporate tax for the ensuing year. In this last mentioned communication, a copy of which is attached to the stipulation, the claimant corporation called attention to the fact that a typographical error had been made in their annual report, (which is a part of the file) in stating and listing their issued preferred stock at $950,000.00, whereas, it should have correctly been listed at $650,000.00.

In a letter under date of June 24, 1931, the claimant corporation protested payment and requested to be fully advised as to what procedure was necessary to secure a refund of the excess payment made through the above typographical error. In reply, the Secretary of State wrote the claimant corporation under date of June 29, 1931 advising it that unless restrained from doing so he was compelled to turn over the fees collected to the State Treasurer at the end of thirty dáys ’ time.

Additional communications were had between the Secretary of State and the claimant corporation between July 1, 1931 and October 9, 1931, the date of the filing of the present claim.

No question arises as-to the facts and the Attorney General moves to dismiss upon the following grounds:

1. The declaration does not show there was a mutual mistake of fact.

2. The declaration does not show why claimant did not object to the franchise tax and request a hearing on such objection as provided by Section 112 of the Corporation Act.

3. The declaration does not show what portion of its capital stock is represented by business transacted and property located in this State.

From the files it would appear that the correct amount of the tax should have been $117.56, and that there was in fact an over-payment of $95.42.

1

In claimant’s letter under date of June 24, 1931, it forwarded a check for the full amount for the sum of $212.98, with the statement that the same was paid under protest, and asked the Secretary to advise what procedure was necessary to file a corrected return and secure a refund of the tax as assessed by the Secretary. In reply to that letter under date of June 29, 1931, the Secretary of State advised that the fee of $212.98 which appeared to be due, must be, under the law, turned over to the State Treasury within thirty days from the date of payment, unless he, the Secretary had been restrained from doing so by a court of competent jurisdiction.

In a letter dated July 13, 1932 from the Secretary of State to the Attorney General attention was directed to a letter dated October 17, 1931 wherein the Secretary stated: “You will observe that the statement enclosed calls the corporation’s attention to the fact that if a hearing is wished on this assessment it should be requested within ten days.”

The records do not disclose that claimant ever requested hearing; neither does it appear that the Secretary’s attention was called to any error or discrepancy until June 24, 1931, at which time the fee was paid! under protest. The Secretary had mailed a franchise tax statement on May 1, 1931, and the taxes were paid on the following June 24th. A total of fifty-three days elapsed, which would have given claimant ample time to call the attention of fhe Secretary to the error, and file a supplemental report as provided by Section 112 of the general Corporation Act. The Statute has provided a way in which such matters may be corrected, but it must be done pursuant to the terms and provisions of- the Statute and within the time fixed by Statute. Claimant could have fully protected itself because it appears that at the time the tax was paid, it was aware of the overpayment. Such matters can only be corrected in accordance with the provisions of the Statute applying thereto. Section 112 of the act then in force provided that the Secretary of State should mail a notice in writing to each corporation of the amount, of tax assessed against it and that objections, if any, will be heard by him on request on a day not later than June 25. The law does not authorize the Court of Claims to extend time for hearing in matters of this kind, and it is no part of the duty of the Secretary of State to advise anyone what his or her legal rights are under the Corporation Act.

Manifestly, any State department or any private business of the magnitude of that of the Corporation Department in the Secretary of State’s Office, must transact its business with dispatch.

There is another matter of great importance in this case.

The declaration filed by claimant did not allege the amount of business transacted or the amount of property located in Illinois, and such information does not otherwise appear from the record and even though we felt that we had jurisdiction in the matter, it would be necessary to deny a recovery in this case because of a lack of information upon which the amount of tax could be properly computed.

The claim will, therefore, be denied and case dismissed.


author: Mr. Justice Tantis

text:
    (No. 2425
    Lee Stice, as Assessor and Treasurer of Morgan County, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

      Rehearing granted May 14, 1935.

      Opinion on rehearing filed May 14, 1935.

   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff filed his claim on June 30, 1934 as County Treasurer of Morgan County, seeking reimbursement for money advanced and paid out by him to others for the payment of coroner’s fees, jurors’ fees and stenographers’ fees for inquests for persons who died while patients at the Illinois State Hospital for the Insane at Jacksonville.

A typical item in the Bill of Particulars is as follows:

1931
Sept. 26. For Frank Fish, coroner’s fees for holding inquest. $16.00
Fees of jury...................................... 6.00
Witness fee.......................................70
Stenographer’s fee ............................... 3.00
$25.70

Included in the Bill of Particulars are four items of Five Dollars ($5.00) each for “Coroner’s Fee for inquiry.” This doubtless refers to the preliminary investigation provided for in Section 10 of Chapter 31, Illinois Revised Statutes.

Any allowance made herein would be based upon the provision of Section 26, Chapter 53 of the Illinois Revised Statutes which provides as follows:

“For holding an inquest over a dead body when required by law in counties of the first and second class, $15.00 * =:: *
“For summoning the jury, $1.00.
"All of which fees shall be certified by the court and when the same cannot be collected out of the estate of the deceased, paid out of the county treasury, or in the ease of inmates of any State charitable or penal institution, by the Department of Public Welfare out of the State treasury.”

Section 45 of said chapter provides as follows:

“The fees of each juror attending an inquest held over a dead body shall be $1.00 per day, payable out of the county treasury, upon the certificate of the coroner or acting coroner of the county wherein the inquest was held.”

Section 27 of Chapter 85 of the Illinois Revised Statutes also provides as follows:

“That in case where the dead patient was an inmate of any State charitable or penal institution, and the fees for holding such inquest cannot be collected out of the estate of such deceased inmate, such fees shall be paid by the Department of Public Welfare out of the State treasury.”

As there is no showing in the record of any effort having been made by the coroner to collect his fees out of the estates of the various deceased persons, there is no justification at law for the allowance of an award out of the State Treasury. In view of the above we only call attention, in passing, to the fact that the hospital records at Jacksonville do not show the presence of one alleged inmate, Billie Spowecki; further that a charge of $2.50 appears in the Bill of Particulars for stenographic service in many instances, whereas the record discloses that a fee of only $1.50 was in fact paid. Neither would an award be allowable to reimburse the County Treasury for jurors’'fees, which the Statute expressly provides shall be paid out of such County Treasury. An award is denied and the claim is dismissed.

Opinion on Rehearing.

This matter again coming* on to be heard upon Claimant’s Petition for a Rehearing, and it appearing that the court had heretofore overlooked a portion of the stipulation entered into between claimant and respondent whereby it was agreed that the State would waive proof by complainant of the efforts made to collect the fees advanced from the estates of the several deceased inmates for whom inquests were held: and that it was therein agreed that the averment of such fact in the complaint might be considered as proof thereof. And it further appearing* that in fact such effort was duly made; and that claimant is in fact entitled under the law to reimbursement in the sum of Pour Hundred Sixty-four Dollars ($464.00) by reason of the matters and things in said original complaint appearing*.

Therefore Said Petition for a Rehearing is hereby granted, without further hearing, and upon the record now appearing’ in said cause the original opinion herein is modified, and an award is hereby recommended in favor of claimant in the sum of Pour Hundred Sixty-four Dollars ($464.00.)


author: Mb. Chief Justice Hollebigh

text:
    (No. 2549
    H. E. Voght, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    H. E. Voght, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebigh

delivered the- opinion of the court:

Claimant is the sheriff of Marion County, and filed his claim herein in the amount of $25.80 for his fees in conveying three prisoners to the Southern Illinois Penitentiary at Menard, and one prisoner to the Chester State Hospital at Chester. All of such prisoners were convicted at the April, 1933 term of the Circuit Court of Marion County, and ordered committed as above. The fees charged by claimant are the fees allowed by law, and claim therefor was duly filed with and approved by the Department of Public Welfare, and forwarded to the Department of Finance. The vouchers were returned by the Department of Finance for the reason that they should have been paid from the previous biennium.

There is no dispute as to the amount of the claim, and no question is raised as to the right of the claimant to recover the same.

This court has held in numerous cases that where services are rendered for which the State is liable, and the bill is not vouchered before the lapse of the appropriation out of which payment could have been made, an award will be entered, provided claimant has not unreasonably delayed in presenting his claim. There is nothing in this case to indicate an unreasonable delay, and an award is therefore entered in favor of the claimant for the sum of Twenty-five Dollars and Eighty Cents ($25.80).


text:
    (No. 2220
    Anna Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 9, 1935.

    Jebome R. Finkle, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Plaintiff was employed as an attendant at the Lincoln State School and Colony, an institution maintained by the State of Illinois at Lincoln, Illinois for the treatment and care of feeble-minded persons. Her complaint alleges that on the 27th day of October, 1932, while she was attending one of the patients a struggle ensued, during which plaintiff fell, striking her albow on the floor; that the accident resulted in the left arm being broken, the bone splintered and injuries to the left shoulder. She was attended by Dr. Comstock, a resident physician in the school, and was treated in the hospital of the institution, where she remained for a period of five weeks. During this time Dr. E. E. Holben, a resident managing officer, also attended her. Medical reports by the latter show that the claimant suffered a backward dislocation of the left elbow and a complete fracture of the head of the left radius with a forward dislocation. Claimant’s income at the time of the injury was Fifty-four Dollars ($54.00) per month with full maintenance, such maintenance being figured by the Department of Public Welfare on a basis of Twenty-four Dollars ($24.00) per month, or a total compensation of Seventy-eight Dollars ($78.00) per month.

Plaintiff claims damages in the sum of Three Thousand Dollars ($3,000.00).

A claim was filed on July 22, 1933. A stipulation as to facts was entered into between the parties on the 9th day of November, 1934. The last examination of plaintiff by Dr. Holben, according to the record, was made on October 18, 1934. At the time of this examination Dr. Holben in answer to the question, “Is there a permanent disability? ”; answered “Yes” and in answer to question “If so, what per cent?”; answered ‘‘I would say 25%.” In a report, however, dated May 24, 1934, which is also made a part of the evidence by stipulation of counsel, Dr. Holben stated ‘ ‘ There was no pathology in the left shoulder, although the patient hasn’t more than fifty per cent (50%) usage of shoulder. She cannot supínate the left forearm but pronation is nominal.” The court is necessarily governed by the physical condition of the injured employee as disclosed by the last physical examination. This is especially true where the different examinations have been conducted by the same doctor.

Sub-section 13 of Section 8 (e) of the Workmen’s Compensation Act provides:

“For the loss of an arm, or the permanent and complete loss of its use fifty per centum of the average weekly wage during 225 weeks.”

Plaintiff would therefore be entitled, on the basis of a partial permanent disability of twenty-five per cent (25%) loss of use of her arm, to the sum of Five Hundred Six and 25/100 Dollars ($506.25) in payments of Nine Dollars ($9.00) per week for 56% weeks. As the entire period during which such payments have accrued has passed, no commutation is proper. An award is therefore entered in favor of Anna Wilson in the sum of Five Hundred Six and 25/100 Dollars ($506.25.)


author: Mr. Justice Vantis

text:
    (No. 2551
    Brown Shoe Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    C. Victor Cardóse, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Vantis

delivered the opinion of the court:

The complaint herein alleges that claimant on July 12, 1933 at the request of Florence Monohan, Managing Officer of the State Training School for Girls at Geneva, Illinois, sold to said school twenty-five pairs of shoes at One and 95/100 Dollars ($1.95) per pair or a total value of Forty-eight and 75/100 Dollars ($48.75); that the shoes were shipped in accordance with the order received by the institution. No reason for non-payment in regular course appears in the complaint but the record discloses that in some way the bill or unpaid invoice was misplaced; that the shoes were received in satisfactory condition and used by the institution.

The facts being undisputed that the State received the supplies pursuant to order in regular course of administration of the institution and no objection being raised by the respondent, the claim is allowed.

An award is therefore recommended in favor of plaintiff in the sum of Forty-eight and 75/100 Dollars ($48.75).


text:
    (No. 2315
    I. L. Elmendorf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    Frank R. Eagleton, for claimant.
    Otto Keener, Attorney General; John Kassbrman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks a general award as compensation for injuries received while an employee of the State of Illinois. In his complaint he recites that on March 22, 1931, while driving his motorcycle as a Highway Maintenance Policeman while in the discharge of his duties, he had an accident in which he suffered a compound fracture of the right leg, scalp lacerations and other injuries incident thereto; that lie was temporarily totally disabled and incurred partial permanent loss of use of his right leg; that his medical and hospital bills amounted to Three Hundred Fifteen and 75/100 Dollars ($315.75) which have not been paid by the State nor any other party. Attached to the original complaint appears a bill of E. W. Telford of DeKalb, Illinois showing the reduction of the fracture on March 22, 1931, and one month’s after care— $100.00; also $25.00 for an anesthetic; $13.00 for removing cast on May 4,1931 and $93.00 for thirty-one office visits from May 8th to September 19th, 1931, inclusive, at $3.00 each, making a total bill of $231.00. This bill bears the Highway Police Stamp and O. K. and is marked and receipted by Dr. E. W. Telford as having been paid on November 17, 1931.

Also attached to the claim is a bill for $84.75 by the DeKalb Public Hospital for services rendered I. L. Elmendorf. This bill also bears the highway police officer’s stamp and 0. K. and is marked and receipted by the DeKalb Public Hospital as paid on November 17, 1931.

The claim was filed on January 16,1934 and the Attorney General has filed a motion to dismiss the claim because it does not show that any claim for compensation was made within six months from the date of the injury or that any claim for compensation was filed within one year from such date, or from the date of the last payment of compensation, as required by Section 24 of the Workmen’s Compensation Act.

Counsel for claimant contends that, even though no compensation for injuries is allowed, claimant is nevertheless entitled to an award in the sum of Three Hundred Fifteen and 75/100 Dollars ($315.75) for medical bills incurred by plaintiff as a result of this accident. Plaintiff contends that a claim for the allowance of these bills can be filed at any time within the period of the Court of Claims Five-year Limitation Statute, and that the six months and one year limitations fixed by Section 24 of the Workmen’s Compensation Act do not apply to claims for medical and hospital services.

Counsel cites the case of Newman vs. Industrial Commission 353 Ill. at page 196. Although in that case the court inadvertently quoted the law as it previously existed and said that the furnishing of medical and hospital services must be regarded as the payment of compensation under the Act, it is clearly the law and so accepted that the furnishing of such service is not an admission of liability, upon which a future claim for compensation can be based. Counsel states that “The only reason for filing the medical and hospital bills by claimant was because they were so numerous that it would have been useless for each individual to file for the small amount each would have been entitled to.” This is not supported by the record, as there are only two bills and both of them appear to have been paid within eight months after the accident.

No compliance having been made with Section 24 of the Workmen’s Compensation Act there can be no award for disability compensation. No authority is cited, however, by the Attorney General in support of the contention that the limitations of time contained in Section 24 shall apply to claims for payment of necessary first-aid medical and surgical services, the furnishing of which under Section 8-A of the Workmen’s Compensation Act is specifically provided 1 shall not be construed as the payment of compensation. ’ ’

The proof supports an award in reimbursement of the amount expended for medical and hospital bills as set forth in the bill of particulars herein, and an award is accordingly allowed in favor of I. L. Elmendorf in the sum of Three Hundred Fifteen and 75/100 Dollars ($315.75) in full payment of medical and hospital services rendered to plaintiff for the accident in question.


text:
    (No. 2542
    Birdie Quinnelly Ferguson, Widow, and Frances Robb Ferguson and George Sendorf Ferguson, Children of Lacasse Cote Ferguson, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    J. E. Etherton and Charles E. Feirich, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Plaintiff seeks an award under the provisions of the Workmen’s Compensation Act, for the death of her husband, Lacasse C. Ferguson. The record discloses no disagreement as to the facts or law involved. The employee in question, i. e. Lacasse C. Ferguson, was employed by the State of Illinois as Assistant Engineer in the Division of Highways at a salary of Two Hundred Twenty Dollars ($220.00) per month. On October 30, 1934 in response to directions from Ms superior he was engaged in inspection work at various points in the Carbondale district. On the evening of that day he inspected Section No. 133 of S. B. I. Boute No. 150 and about 9:00 o’clock and immediately after leaving said Section No. 133 and wMle driving on said Boute No. 150 a collision occurred between the automobile which he was driving and another automobile then and there being driven by one Clyde Lovell; the accident occurring about three-quarters of a mile north of the north end of said Section No. 133. The proof shows that in the course of Ms general duties in addition to office work, he had immediate supervision over Mghway construction work, erection of steel bridges, and that in the course of Ms employment he personally set and exploded dynamite charges, worked on and about motor-driven macMnery, concerning which there were municipal and State safe-guards and that Ms hours of duty when in the field continued until he returned to the district office at Carbondale; that from the evidence there is no probable legal liability on the part of the driver or occupants of the other car to respond in damages for the death of Mr. Ferguson.

The latter left surviving him his widow, Birdie Quinnelly Ferguson and Francis B. Ferguson, aged 10 years on May 4, 1934 and George S. Ferguson, aged one year on August 3, 1934, Ms children. His wages at the time and for more than a year prior thereto were Two Hundred Twenty Dollars ($220.00) per month. An award is asked in behalf of the surviving widow and two children in the sum of Four Thousand Eight Hundred Dollars ($4,800.00). No contention as to the rights of recovery are raised by respondent, either as to law or facts.

Under the provisions of Paragraph A and H of Section 7 of the Workmen’s Compensation Act claimants would be entitled to an allowance of Four Thousand Eight Hundred Dollars ($4,800.00); Eight Hundred Dollars ($800.00) of which is due by reason of the existence of the two cMldren. In the award hereinafter made therefor the amount of Seven Hundred Fifty-two and 11/100 Dollars ($752.11) included therein is allowed for the specific use of said cMldren, Francis Bobb Ferguson and George Sendorf Ferguson and will be paid to the said Birdie Q. Ferguson for their use. TMs award should be payable in monthly payments at the rate of Sixteen Dollars ($16.00) per week, but as no satisfactory method exists by which payments can be so made the allowance will be commuted to a lump-sum award. As so commuted an award is hereby made in the lump sum of Four Thousand Five Hundred Twelve and 66/100 Dollars ($4,512.66).


text:
    (No. 2523
    Dora V. Jahnke, Admrx. of the Estate of Friebert F. Jahnke, Decd. and Dora V. Jahnke, in Her Own Right, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    F. A. Ortman and Stevens & Hebndon, 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 individually and/or as Administratrix of the Estate of Friebert F. Jahnke, deceased, for the sum of Ten Thousand Dollars ($10,000.00).

It appears that Friebert F. Jahnke, was, on October 23, 1933 and for about eleven years prior thereto, employed as a guard at the Illinois State Reformatory at Pontiac; that on said date while attempting to apprehend an escaped inmate on U. S. Route 66 he was struck by an automobile driven by one John C. Danforth and received injuries from which he died. Other employees and officers of the reformatory were present at the time of the accident and the State had immediate knowledge and notice thereof. Deceased left surviving him Dora V. Jahnke, his widow; and Harry J. Jahnke, his son; and Velma M. Jahnke, his daughter, both of legal age. The widow has been appointed administratrix and files her claim under the provisions of the Workmen’s Compensation Act. The claim properly comes within the terms and provisions of that Act, and under the evidence in the record, plaintiff is entitled to an award as the surviving widow of the injured employee. A suit for damages was unsuccessfully prosecuted against the driver of the automobile which struck the deceased and no question of subrogation at this time exists.

The earnings of the deceased employee for the year preceding his death were One Thousand One Hundred Eighty-eight Dollars ($1,188.00). Under Section 7-A of the Workmen’s Compensation Act the award should be a sum equal to four times the average annual earnings of the employee but not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Four Thousand Dollars ($4,000.00). The only issue raised by respondent is upon the question of whether a claim for compensation was made within six months after the accident. The record discloses that four days after the death of Friebert F. Jahnke, plaintiff and her son inquired of the assistant superintendent of the reformatory whether the State would pay compensation for the death of Mr. Jahnke and they were told by him that he thought it would — “That the State would take care of it.” Later Captain Davenport, an official of the Institution, called plaintiff and assured her that he thought the State would take care of her claim. Captain Davenport testified that he reported to his superior officer, Mr. Twiford, that Mrs. Jahnke had requested compensation for her husband’s death. We are of the opinion that the record discloses sufficient evidence as to a claim for compensation within the six months to comply with the requirements of the Act. The courts have held that notice of the accident given to the immediate superior of the injured employee is sufficient. We believe the notice of the claim given in this instance is also sufficient.

As no adequate provision exists by which such award can be made in monthly payments, same will be commuted under the rules of the Compensation Act. As computed under such commutation the amount of $3,855.74 is due as a lump sum award.

An award is therefore made in the sum of $3,855.74.


text:
    (No. 2625
    Bertha Livingston et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    Bertha Livingston et al., pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimants herein are engaged in a general merchandising business in Bloomington, Illinois operating in the name of Mayer Livingston & Company and have filed their claim for One Hundred Seventy-six and 64/100 Dollars ($176.64) for merchandise alleged to have been sold in regular course to the Illinois Soldiers and Sailors Children’s School at Normal, Illinois from July 22, 1932 to May 12, 1933. Plaintiffs allege that although bills were prepared and duly presented, no payment has been made; the reason therefor being to plaintiffs unknown.

In a report dated March 14, 1935 J. H. Bussell, acting managing officer of the said Institution states, “In my opinion this is a just claim and should be paid.”

“Where it clearly appears that materials have been sold, delivered to and used by a State department and have not been paid for, because of the lapse of the appropriation out of which payment could have been made, an award for the amount due will be made by the Court of Claims.”

Shell Petroleum Corp. vs. State, 7 C. C. R. 224.

As the appropriation out of which this bill could have been paid has lapsed and the account is a due and proper one, an award is therefore made in favor of plaintiffs in the sum of One Hundred Seventy-six and 64/100 Dollars ($176.64).


text:
    (No. 2622
    George Fred Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 30, 1935.

    A. J. B. Showalter and Francis C. Blair, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Plaintiff herein seeks an award from the State for injuries alleged to have been suffered by him while serving as a private in Troop E, 106th Cavalry of the Illinois National Guard. The complaint alleges that on August 2,1926 a horse that plaintiff was riding while engaged in his military duties became unmanageable and fell, with its full weight upon claimant’s right foot and leg, causing injuries to the bone of the leg and foot; that he learned on November 26, 1929 that the injury to his foot and leg was or might be of a permanent nature. Plaintiff states that on December 25,1929 he was advised by his uncle, D. T. McNish, a past officer of the American Legion that if he had a permanent injury he should make a claim with the State of Illinois for compensation; that on March 7, 1930 he wrote to the Hon. Carlos E. Black, Adjutant General of the State of Illinois, setting forth the nature of his permanent injuries and asked what should be done to obtain compensation; that on March 11, 1930 the Adjutant General wrote instructing him to obtain the services of an attorney and present his claim for compensation to the Court of Claims, Springfield, Illinois; that on said date of March 11, 1930 plaintiff moved from his home at Champaign, Illinois to Mansfield, Illinois, where he resided for approximately five months, and for which change of address no forwarding instructions were given to the Champaign Post Office for several days subsequent to March 11th.

The instructions contained in the Adjutant General’s letter finally came to plaintiff’s attention however according to his complaint, for in September,-1931 he talked with Capt. Gehr and ,Was then advised by the latter that it would be necessary for him to obtain the services of an attorney to present his claim to the Court of Claims, and was then shown a copy of the Adjutant General’s letter of March 11, 1930.

Plaintiff states that in July 1934 he secured the services of an attorney for the purpose of presenting his claim to the Court of Claims and again talked with Capt. Gehr about the matter; that correspondence was again had with the Adjutant General’s Office and the instructions contained in.the latter’s letter of March 11, 1930 were communicated anew to claimant; said communication being turned over to plaintiff by his attorney. -

Eventually on March 1,1935 this claim was filed.

Respondent has filed a motion to dismiss the claim under the provisions of Section 10 of the Act creating the Court of Claims which provides:

“Every claim against the State, cognizable by the Court oí Claims, shall-be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues.”

Plaintiff was fully advised and had ample opportunity to file his claim within the time-limit provided by law. Having failed to do so and not coming within any exception to the provisions of said limitation, the motion by respondent is allowed and the claim is dismissed.


text:
    (No. 2638
    Andrew Rehman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1935.

    Paul G. Weisenhorn, for claimant.
    Otto Kerner, Attorney. General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award for Five Hundred Dollars ($500.00) and alleges that on May 30,1934 there existed a certain State S. B. I. Route No. 96 which extends from the City of Quincy, Ill. to a junction with Route No. 24, commonly known as the “Five Mile Turn”; that said State Highway was then and there owned, controlled, maintained and used by the public; that it extended over a creek approximately one-half mile north of said intersection and was a durable hard-surfaced highway; that contrary to the law in such case made and provided said highway was less than fifteen feet in width; said Statute containing the following provision:

“All hard-surfaced parts of State bond issue routes shall be constructed of sufficient widths to meet the requirements of the reasonably expected traffic thereon, such widths to be not less than eighteen feet.”

The complaint further avers that claimant was driving north on said highway and approached said bridge, unaware of the fact that the bridge and roadway over same were not of the width required by law; that at the same time another motor vehicle was being driven south on said highway, the driver thereof being in the exercise of ordinary care, etc; that claimant, in order to avoid a collision with the other car collided with the stone-approach wall and guardrail of said bridge, said collision being due to the narrowness of the roadway; that as a proximate result of the negligence of respondent, claimant’s automobile was damaged, resulting in an estimated cost of repairs of Two Hundred Twenty-eight Dollars ($228.00) and claimant was deprived of its use and enjoyment for a long period of time and claimant was bruised and suffered nervous and mental shock and pain and was compelled to lay out and expend medical and hospital fees in the amount of Five Hundred Dollars ($500.00); that he was hindered and prevented from attending to his usual work and was deprived of large earnings that otherwise would have accrued to him, all to a total damage of Five Hundred Dollars ($500.00).

Respondent has filed a motion to dismiss the claim. Claimant in a reply to said motion contends that an award should be allowed on the theory of Equity and Good Conscience and that the motion to dismiss should not be allowed but that claimant should be given a hearing on the merits. Under the statement contained in the complaint no award could be granted claimant and the motion to dismiss should be allowed. The Attorney General has cited the law applicable thereto:

“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. These well known principles of law are so thoroughly established that citation of authorities seems unnecessary. In Kinnare vs. City of Chicago, 171 Ill. 332, the rule is announced in the following language at Page 335: ‘The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the Statute creating such agency’ ”.

Chumbler vs. State of Illinois, Vol. 6, C. C. R. Page 138.

Derby vs. State of Illinois, Vol. 7, C. C. R. Page 145.

The construction placed upon the application of the terms Equity and Good Conscience are fully set forth in the case of Crabtree vs. State 7 C. C. R. 207. As therein stated—

“Before a claimant can have an award against the State he must show that he comes within the provisions 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 same. Where there is no legal liability, equity cannot create one.”

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


author: Mb. Chief Justice Houlbbich

text:
    (No. 2087
    V. O. Connor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Albert E. Islet, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mb. Chief Justice Houlbbich

delivered the opinion of the court:

On April 28, 1930 claimant entered into a contract with the respondent for the construction of an R. C. Girder Bridge, consisting of one steel span and four approach spans on S. B. I. Route No. 104, Section 143-b, in Christian County.

The proposal which was made a part of the contract, among other things provided as follows:

“The plans for the proposed work are those prepared by the Chief Highway Engineer and approved by the Director of the Department of Public Works and Buildings on July 11, 1930, which plans are designated as State Bond Issue, Route 104, Section 143B, Christian County and which cover the work described in Paragraph 1 in this proposal.
“The specifications are those prepared by the Department of Public Works and Buildings and designated as standard specifications for road and bridge construction adopted February 1, 1930.”

Article 42.8, page 186, of the Standard Specifications for road and bridge construction adopted February 1, 1930 is in part as follows:

"The proportion of cement, fine aggregate, coarse aggregate, and water will be determined by the Engineer before the work begins so as to produce a workable plastic concrete having a compressive strength of not less than 3,500 lbs. per square inch, and a modulus of rupture of not less than 650 lbs. per square inch at the age of fourteen days when tested by standard methods. This determination shall be based upon tests of the aggregates selected by the contractor for use in the work. The quantities of aggregates for each batch of concrete shall be measured by weight.
“The Engineer will furnish to prospective bidders, upon request, the approximate proportions by weight necessary to produce concrete having the required workability and strength using aggregates from any established and available commercial source designated by the bidder, it being expressly understood that this information is only for the convenience of the bidder.
“The Engineer reserves the right to determine as the work progresses and as the aggregates are delivered at the site of the work the proportions of cement, water and the aggregates actually furnished which will produce workable plastic concrete having the strength specified herein.”

Work under the contract was commenced about September 1, 1930, and the piers and abutments were poured during that Fall. Approach Span No. 1 was poured December 21, 1930; Span No. 2 on January 4, 1931, and Spans Nos. 3 and 4 were poured and the work completed during the summer of 1931. The contract price was $47,069.55 and was paid in full by the respondent.

The claim here involved grows out of the replacement of Span No. 1 which was rejected as defective, and which was thereafter removed by claimant and replaced by another span, pursuant to the order of the respondent. The cost of removal was $589.90 and the cost of replacement (exclusive of the cost of cement furnished by respondent) was $559.33, making a total of $1,148.93, which was paid and advanced by claimant, and which he seeks to recover in this proceeding.

No question is raised as to the cost of such removal and replacement, and it is stipulated herein between counsel for claimant and respondent that if the respondent is liable to the claimant because of the matters alleged in the declaration, the amount of damages to be allowed shall be $1,148.93, which stipulation is approved by the Engineer of Construction of the respondent.

As to Span No. 1 it appears that prior to the commencement of the work, the engineer of the respondent in charge of the work determined the proportions of sand and gravel to be used, to-wit, 328 pounds of gravel and 233 pounds of sand for each bag of cement, and set the scales accordingly. The weather at the time the span was poured, was very bad, the temperature ranging from 36 degrees to 17 degrees Fahrenheit. When the form was removed it was determined that the span was badly honeycombed and the engineer in charge ordered that it be removed and replaced. Claimant contends that the honeycombed condition of the span resulted from an improper mix given by the respondent and that the same was not the result of any fault on his part.

Eespondent contends that there were other factors which caused or which contributed to or combined with the improper mix to cause the defective span. Eespondent also contends that claimant’s foreman in charge of the work was incompetent; that some of the workmen were local men and not familiar with work of that type; that the mix was not properly spaded; that the weather was too cold; and there is some evidence in the record in support of such contentions.

It appears from the testimony of the witnesses for the respondent, that the mix in question would be suitable when all conditions were ideal. Conditions, however, and particularly the weather, were far from ideal, the temperature being well below the freezing point a large part of the time. The water had to be heated, and the work was not completed until about seven o’clock p. m.

Claimant testified that he spoke to Mr. Pennington, the resident engineer, about the time the work was commenced, and objected to the mix, but that nothing was done about it at that time. Mr. Pennington had no recollection of such objection, but would not say that it had not been made. It is undisputed, however, that after it was found that the first span was defective, the mix was changed for the other spans; that the mixtures used were more or less experimental; and that the mixture in question was an unusual and a hard working combination.

Mr. L. A. Lush, District Construction Engineer of the Department of Highways, testified that he had recommended that claimant be at least partially recompensed for his expense in tearing out and replacing this span.

Under the terms of the specifications, the proportions of cement, fine aggregate, coarse aggregate, and water were required to be determined by the engineer. The contractor had no right to change them. He had the right to object to them, but had no authority to make any changes therein. Claimant testified that he objected to the mix, and his testimony was not denied.

Upon consideration of all of the evidence in the record, it appears that the defective condition of the span resulted from the use of an improper mix under the prevailing weather and local conditions. Respondent’s engineer was on the job and if the mix was not proper under the conditions then prevailing, he had the right to change it, but the contractor had no such right. As a matter of fact, neither party knew that the mix in question was improper until the forms were removed from the span, and the honeycombed condition thereof was apparent.

Under the circumstances the contractor was required to accept the proportions fixed by the respondent. If such proportions were not proper under the conditions then prevailing, it was no fault of the claimant and he should not he required to. pay the expense connected with the removal and replacement of the defective span.

Upon the facts in the record claimant is entitled to an award, and inasmuch as the parties have heretofore stipulated that if claimant is entitled to an award, the amount of his recovery shall be Eleven Hundred Forty-eight Dollars and Ninety-three Cents ($1,148.93), an award is entered in favor of claimant for the sum of Eleven Hundred Forty-eight Dollars and Ninety-three Cents ($1,148.93).


text:
    (No. 2430
    George Cummins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    James N. Cummings, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

By his claim plaintiff seeks an award of One Thousand Six Hundred Three and 30/100 Dollars for injuries received while engaged by the State in highway maintenance work, on the 28th day of July, 1933.

The record discloses that on said date while employed on Route No. 76 near Kewanee, Illinois, claimant stepped out from behind a State highway truck and was struck by a passing automobile driven by one J. B. Moorhouse of Pekin, Illinois, receiving three fractures to the left leg, also injuries to the right side of his head. He was taken to the St. Francis Hospital at Kewanee, Illinois where he was treated by Dr. Warren T. Heaps. He was thereafter treated by Dr. H. E. Cooper of Peoria, Illinois. The former’s bill, stated in the complaint to have been $494.00 — the hospital bill of $283.00 and Dr. Cooper’s bill to the date of the hearing, i. e. February 20,1935 in the amount of approximately $148.00 have all been paid by the State.

A report by Dr. Cooper of an examination made of claimant on September 12, 1934 appearing by stipulation in the record is as follows:

“The above man who had a delayed union in a fracture of both bones of the left leg has finally obtained a solid bony union. The X-ray taken yesterday shows, without Question, a firm union. The man still has some loss of dorsal flexion of the foot, in other words, his heel cord is still somewhat short. He is still wearing a brace which will have to be worn for another few weeks.
“At present he has about 50% loss of function in the leg. It would be unwise to close this case at present as I believe the leg will improve rather rapidly in the next two months and that his disability will be considerably decreased.”

Claimant was examined by Dr. H. B. Knowles on December 28, 1934 and the latter’s report thereof states that a permanent disability of the left leg of 25 to 30 per cent exists. It further appears by said stipulation that claimant has been paid Five Hundred Seventy-five Dollars ($575.00) as compensation. Claimant’s wages were Eighteen and 90/100 Dollars ($18.90) per week. Claimant contends for temporary total disability from July 26, 1933 for a total period of seventy-four (74) weeks and for permanent partial disability of “25 or 30 per cent of full compensation for one hundred sixteen (116) weeks.”

Plaintiff’s employment and injuries as disclosed by the record entitle him to compensation, but not on the basis applied for in the complaint, or as contended for in counsel’s Statement, Brief and Argument.

Under Section 8 (e) of the Workmen’s Compensation Act the employee is entitled to compensation for the period of temporary total incapacity for work resulting from his injuries — for a period not to exceed sixty-four (64) weeks, and in addition thereto specific compensation under Section 8 (e) 15-17 for the permanent partial loss of use of said left leg of from 25 to 30 per cent thereof.

An Award is Therefore Allowed as follows :

For 64 weeks total temporary disability at 50% of the aver-
age weekly wage, i. e. one-half (%) of $18.90 or $9.45..... $604.80
Less amount heretofore paid.............................. 575.00
Balance due for temporary disability.................. $ 29.80
Allowance of 27%% for permanent loss of use of leg....... 493.76
Total $523.56

As there is no> feasible way in which such award can be made payable in future weekly or monthly payments and the entire amount will necessarily be paid in a lump sum, same is therefore commuted under the Commutation Tables of the Workmen’s Compensation Act and an award is hereby recommended, as so commuted, in the sum of Five Hundred Thirteen and 87/100 Dollars ($513.87).


text:
    (No. 1947
    J. W. Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

    Victor Hemphill, for claimant.
    Otto Kerner, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant herein filed his claim with the clerk of this court on July 15,1932, claiming the sum of $71.50 as damages caused by a fire started by employees of the State of Illinois on State Bond Issue Route No. 108, Section No. 107, Macoupin County, on July 6, 1931. At the time aforesaid the State Highway Maintenance Patrolman was burning weeds and grass which had been mowed and raked on the State right-of-way, and the fire got beyond his control and spread into a timothy field adjacent to the State right-of-way and burned an area of five acres. It is claimed that five acres of timothy and hay were burned and the yield per acre was 1% tons, which would average 5 2/3 bushels of seed per acre or 28% bushels all told; that the hay was worth $3.00 per ton and the seed was worth $2.00 per bushel, or a total loss of $71.50, no allowance having been made for the cost of labor and threshing, etc.

Claims founded upon similar principles have heretofore been filed in this court, and a well considered case is that of Lewis McGarrah, et al. vs. State, 6 C. C. R. 468. It was there held that the State in the construction of the state-wide system of durable hard surfaced roads exercises a governmental function and is not liable for the torts or negligence of its agents, and the same would be true where the State was maintaining the highway by cutting and burning grass and weeds that grew along said highway.

This case reversed a prior holding of this court, in the case of A. N. Pierce, et al. vs. The State of Illinois, decided January 15, 1930. In the latter case it was held that for any loss of crops resulting by fire from an asphalt tank furnace used upon a State highway spreading upon claimant’s land, an award would be made, but no authorities were cited and no attempt was made to reason the liability of the State from established law.

In Kinnare vs. City of Chicago, 171 Ill. 332, cited in the McGarrah case, the Supreme Court of this State said: “When the State acts in its sovereign capacity, it does not submit its actions to the judgments of courts, and is not liable for the torts or negligence of its agents. ’ ’

In view of the holding of this court in the McGarrah case and the decision of the Supreme Court just cited, we must hold that the State in the instant case is not liable.

The claim, therefore, will be denied.