text:
    (No. 2241
    Lillian Pelli, Administratrix of the Estate of Adolph Pelli, Deceased, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

      Rehearing denied April 9, 1935.

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

delivered the opinion of the court:

Adolph Pelli was committed to the Elgin State Hospital on November 6, 1931 under a diagnosis of “Mental Derangement and Acute Alcoholism” with a further medical finding of “Possible beginning Paresis” (a case of general paralysis of the insane). He died on January 10, 1932. An autopsy was held from which the essential findings were as follows:

Cause of Death :

Perforation of illeum with generalized peritonitis. Contributing causes were multiple fractures of ribs and emphysema; fracture of right second, sixth, seventh, eighth and ninth ribs; of left sixth, seventh, eighth, ninth and tenth ribs ; fracture of the thyroid cartilage; also an opening or congestion of the bowel. The evidence of doctors, attendants and patients discloses that, although Adolph Pelli was not a violent or difficult patient, he was confined with vicious, abusive inmates who assaulted him on different occasions; that such assaults were reported to the officers of the institution, but that little or no attention was given towards preventing a repetition thereof. The record discloses that in addition to these attacks, the patient, Pelli, was misused and man-handled by various attendants and was so bruised and battered that one attendant, Alonzo Clampton, refused to give hydrotherapy treatments to the patient until the patient’s injuries were chartered and until a doctor had inspected the patient. The coroner’s jury found that Adolph Pelli came to his death through injuries received by a person or persons unknown, with the recommendation that the three attendants, George Caldwell, John Bibbe and Frederick J. Taylor should be held for further questioning by the States Attorney.

The patient left surviving his wife, Lillian Pelli and one son, William Pelli, now sixteen years of age. The record discloses that the income of Adolph Pelli for several years prior to his death was from $30.00 to $55.00 per week and that prior to his committment to the Elgin State Hospital he had regularly contributed to the support of his wife and son, both of whom were left destitute and without any source of income at his death.

A report by A. L. Bowen, Acting Director of the Department of Public Welfare, dated September 11,1933, appearing-in the Brief of the Attorney General, states that “As a result of the injuries sustained by Pelli, the three employees named were held to be responsible for the injuries and were discharged with the notation, “Abuse of Patients”; that Dr. P. F. Gillette, a member of the Medical Staff of the Elgin State Hospital, had been suspended for thirty days for lack of diligence and was transferred to the Kankakee State Hospital; that Dr. Yanatta, another Staff Physician at Elgin, had also been transferred to the ' Alton State Hospital; further that the grand jury of Kane County had failed to indict the responsible parties because the evidence against them was solely that of patients.

The claim herein filed is for a Ten Thousand Dollar ($10,000.00) damage and the Attorney General has filed a motion to dismiss same, for the reason that—

“The Rule or Doctrine of Respondeat Superior has no application to a sovereign state in the exercise of a governmental function; that in operating and maintaining its penal institutions, the State is exercising such governmental functions and that the State cannot, therefore, be properly asked to respond in damages for injuries sustained by any inmate of such institution, whether due to the acts of other inmates or of attendants and employees therein.”

In support of his objection the Attorney General cites the cases of —

“Sturrock, Admrx. vs. State, 7 C. C. R. 157.

Peeka, Admrx. vs. State, 6 C. C. R. 390.”

and other cases, which fully sustain his contentions.

Counsel for claimant have filed their Original Brief, a Reply Brief and a further or Second Reply Brief, and stress the right of claimant to an award under the “equity cmd good conscience” theory.

The facts in this case would appeal to the good conscience of any court, but public policy has long established and this court is committed to the rule that 1 The State cannot be held to respond in damages arising out of the negligent- acts of its employees or for injuries suffered by patients in its various penal and charitable institutions.”

It is also true that in the care of inmates in the State Hospitals for the Insane, the State is engaged in a humanitarian duty, and the mind is shocked by a disclosure of treatment received by a patient therein, such as is disclosed by the record of this case. While it may have been impossible to obtain an indictment of the responsible parties, because certain portions of the proof would be the inadmissable evidence of inmates, yet the record is sufficient to warrant the hope that neither of the doctors or the attendants involved herein, are now retained as employees of the State in any capacity.

In an early case involving an award by the State, “Schmidt vs. State, 1 C. C. R. 78” the court, as then constituted, denied relief to an employee of the State who suffered an injury as a result of an assault made upon him by one of the convicts in a penitentiary where claimant was employed. The court there said:—

It is our understanding that the use of the language “to determine the same according to the principals of ‘equity and justice’ ”, is meant and used with a legal significance and that the Commission has no power to make an award in any case unless the facts show a legal or equitable claim against the State — ; that it is not discretionary with the Commission to make an award, regardless of the question of whether the claimant had a legal claim against the State.

In the same opinion it was stated—

“This is one of those cases that appeals strongly to the sympathy (of the court) and we believe that if the facts in this case are presented to the Legislature of this State, some relief will be granted; hut at the same time we feel compelled to hold that we have no power, under the facts, to make an award in his favor and for that reason we reject the claim.”
The question of allowance of claims where no legal right exists and the appeal is made wholly to the conscience of the court, is fully discussed in the case of—

“Crabtree vs. State, 7 C. C. R. 207.”

In the present case the court feels it must adhere to the views therein expressed, but in denying this claim we do go without any prejudice against any other right or procedure which claimant deems advantageous to follow.

Claim denied. Case dismissed.


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 2370
    Joseph H. Reed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

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

delivered the opinion of the court:

Claimant herein asks settlement for the loss of a cow that strayed from claimant’s pasture onto S. B. I. Eoute No. 91 and was killed as a result of being struck down in some manner unknown to the claimant. Claimant further represents that on the day in question, i. e. — on or about February 20, 1934, workmen were employed by the Civil Works Administration in hauling stone and gravel from the pasture in question, the material being used in repairing said hard road; that an agreement existed between claimant and the workmen that they were to keep the pasture gate closed so as to prevent stock from leaving; that the workmen failed to exercise care in closing the gate and that as a result, the cow in question was injured and died with resultant damage to the claimant in the sum of Sixty Dollars ($60.00).

The Attorney General has filed a motion to dismiss the claim for the reason the declaration shows that the workmen whose negligence is complained of, were employed under the C. W. A. and were not exployees of the State of Illinois.

The Civil Works Administration was provided for by an Act of Congress and the employment of all who worked therein was made through Federal channels; the State merely co-operating as a means of expediting such charitable or remedial work and labor.

The Illinois Emergency Belief Act provides as follows:

It shall be the duty of the commission until March 1, 1933, to provide relief to residents of the State of Illinois in necessitous circumstances. Such relief shall be provided by distributing funds or supplies and by any other means deemed desirable by the commission. For the' purpose of carrying out the provisions of this Act, the commission may make use of and cooperate with counties, townships, and any other municipal corporations charged by law with the duty of poor relief and with other local relief agencies.

Section 2, Ill. Emergency Belief Commission. (3/1/ 1933-8/1/35)

Begardless, however, of the question of who may have been the employer of the workmen in question, there could be no award properly made by this court in the claim in question, for the reason that the rule of respondeat superior does not apply to the State in its sovereign capacity and the State is not liable for the negligence of its employees, agents or servants.

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


author: Me. Justice Yantis

text:
    (No. 2099
    George C. Rice, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Weil & Weil, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

George C. Bice, claimant herein, seeks an award from the State under a claim that on the 10th day of September, 1932, while he was riding in his automobile on State Boute No. 2 in Marshall County, Illinois, about a mile south of the village of Wenona, and while he was in the exercise of due care and caution for his own safety, the automobile, in which he was riding, ran into a motor truck owned and operated by the defendant, and used by its servants and employees in the business of maintaining and repairing State Highways. Claimant alleges that the defendant through its agents, servants and employees, negligently and carelessly disregarded its duty and parked and stopped its motor truck on the highway so that two vehicles lawfully driven thereon could not pass, and that by reason of such action, the automobile of plaintiff ran against and struck such motor truck; that as a result thereof, plaintiff was violently thrown from his place in said auto and was severely cut, bruised and injured, all as a direct and proximate result of defendant’s negligence; that his injuries are permanent; that he has been compelled to spend Eighteen Hundred Dollars. ($1,800.00) for physician, surgeon and hospital care; that his automobile has been destroyed with a resultant loss of Five Hundred Dollars ($500.00) and that he is crippled for life, for all of which he seeks damages in the sum of Twenty-five Thousand Dollars ($25,000.00).

The second count of the complaint is similar to the first and charges that the defendant, through its agents, servants and employees wrongfully, negligently and carelessly disregarded its duty and stopped its motor truck upon the highway and by reason thereof the automobile in which claimant was riding struck said motor truck with the resultant injury to claimant.

The jfchird count, similarly drawn, charges that it was the duty of the respondent through its agents, and employees not to allow or cause said truck to be or remain upon any durable hard-surfaced road in a position so as to endanger the person or property of any lawful user thereof; but that respondent through its servants, not regarding said duty, negligently and carelessly permitted such truck to remain standing on the highway unattended and without warning or signal, in such maimer that the person and property of lawful users of said highway, including the claimant, were endangered, and that by reason thereof the injury complained of, resulted.

The Attorney General has filed a motion to dismiss said complaint for the reason that such complaint is based on the theory that the State is liable for injuries caused by the negligent conduct of its employees in the construction and maintenance of its highways; that in such assumption claimant is in error, and that, inasmuch as no award could be legally allowed to claimant under the facts stated, the claim should be dismissed.

Incorporated in the motion the Attorney General has included a letter from Fred Tarrant, Engineer of Maintenance, in which he states that the State-truck in question was being nsed for road repair work on the afternoon in question, and that the workmen had placed traffic warnings four-hundred feet beyond the point where the work was in progress. Further statements were also made in the letter as to the speed of claimant’s car being excessive under the existing conditions. Disregarding the possible question of "contributory negligence, however, and considering the claim upon the averments made therein, no award can be legally claimed herein.

In the construction and maintenance of its roads, the State acts in a governmental capacity, and in the exercise of such governmental functions it does not become liable in action of tort by reason of the malfeasance, misfeasance or negligence of its officers, agents or servants in the absence of a Statute creating such liability. No such statute has been passed in Illinois. Such has been the settled decision of this court for many years.

Morrissey vs. State, 2 C. C. R. 454.

Minear vs. State Board of Agriculture, 259 Ill. 549.

Bucholz, Admrx. vs. State, 7 C. C. R. 241.

The State is not liable for damages caused by the negligence of its servants, agents or officers, unless there is a Statute expressly making it so liable.

Braun vs. State, 6 C. C. R. 104.

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


author: Mr. Justice Tantis

text:
    (No. 2251
    Lillian Schroeder Sheehan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Cassels, Potter & Bentley and E. Douglas Schwantes, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

The declaration herein, filed October 8, 1933 alleges that claimant is the widow of James Frederick Sheehan, to whom she was married on June 16, 1932; that on October 31, 1932 while deceased was driving his automobile in a westerly direction on S. B. I. Route No. 173, he was struck by another car driven by one Lewis, a resident of the State of Wisconsin; that at the time of the accident, deceased was employed by the State of Illinois and at the time of the injury was proceeding to an unfinished section of S. B. I. Route No. 173 for the purpose of checking in gravel, pursuant to orders that he had received from the State Engineer in charge of local work.

The earnings of deceased during the year preceding his death are shown to have been Fourteen Hundred Sixty Dollars, ($1,460.00); that due notice of the accident was given to respondent through the resident engineer within a day after its occurrence and that the claim was presented to the Division of Highways on April 21, 1933.

Claimant filed a claim against the immediate contractors in charge of the section of work in question, i. e. Darrow and Barron, with the Industrial Commission of Illinois; a hearing was had before an arbitrator of said Commission, and a decisión was there rendered that deceased was not injured while employed by Darrow & Barron.

The only question involved in the claim is whether the deceased husband of claimant was an employee of the State of Illinois, or of Darrow & Barron at the time of his injury.

The resident engineer testified that Route No. 173 is a concrete State Highway and was in process of construction in 1932 at the time of the accident; that Sheehan was an engineering assistant, an instrument man who helped hold the rod, and measure and drive stakes; that he operated indirectly under the resident engineer and was responsible to him; that he directed Sheehan where to go; that Darrow & Barron were contractors, who were constructing the east and west sections of the road in question and that Ray Mann was constructing the middle section. The resident engineer kept an account of Sheehan’s time and turned same over to Darrow & Barron; that this time sheet would include the time spent by Sheehan on both the Ray Mann section and the Darrow & Barron section. For some reason Sheehan received checks from Darrow & Barron and the latter was then reimbursed by the State.

If Sheehan was an employee of 'the State, his widow would be entitled, under the Workmen’s Compensation Act and the foregoing facts, to four times the average annual earnings not to exceed $4,000.00. The circumstance of Sheehan receiving his pay-check through Darrow & Barron is confusing as to his employment, but this is explained by the Highway Department. He received all his orders and was exclusively under the control of the resident engineer, who was in the direct employ of the State of Illinois. He received no orders and did no work directly for Darrow & Barron, nor for anyone, other than the State. At the time of the accident he was on his way, pursuant to orders of the resident engineer.

The Supreme Court of the State of Illinois has held that the mere fact that an employee appears on a Company’s pay-roll does not make such person an employee of that Company.

Thompson vs. Industrial Commission, 351 Ill. 356.

Under the facts in evidence and the law as cited by the claimant, we find that James Frederick Sheehan was an employee of the State of Illinois, and that the accident in question arose out of and in the course of his employment. The proof indicates that his wages were Thirty Dollars ($30.00) per week, the total sum allowable therefore would be the maximum amount of Four Thousand Dollars ($4,000.00), payable in weekly installments of $15.00, commencing on the 31st day of October, 1932.

Payment by respondent in weekly "installments is not practicable under existing laws. We anticipate that the award will be paid in a lump sum about August 1, 1935, by appropriation of the next legislature, at which time 143 weeks compensation will have been earned. The award will therefore be commuted to an equivalent lump sum in accordance with Section 9 of the Workmen’s Compensation Act.

As we compute it, the amount due claimant, Lillian Schroeder Sheehan, after commuting to an equivalent lump sum as aforesaid, is $3,936.47.

It is Therefore Hereby Ordered that an award be and the same is hereby entered in favor of claimant for the sum of Three Thousand Nine Hundred Thirty-six Dollars and Forty-seven Cents, ($3,936.47).


author: Me. Chief Justice Hollerioh

text:
    (No. 1901
    Lester Wolfe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 11, 1934.

    Milo D. Yelvtngton, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerioh

delivered the opinion of the court:

Claimant’s amended complaint avers that “on, to-wit: the first part of the month of May, A. D. 1931” he was employed by the respondent as a common laborer on S. B. I. Boute No. 33; that on the aforesaid date while he was engaged in the performance of the duties of his employment, at a point about four miles west of the village of Dieterich in Effing-ham County, he was injured by accidentally coming in contact with the end of a long-handled shovel, thereby bruising the right side of his abdomen and causing himself great pain and suffering; that notice of the accident was given on the date of the injury; that on the 20th day of July, A. D. 1931, claimant first became aware of the fact that the injuries so sustained by him in the early part of May as aforesaid resulted in a hernia; that on said 20th day of July, A. D. 1931 he notified the respondent of such fact and on the 23rd day of July was operated for such hernia; that he thereby incurred doctor and hospital bills in the amount of $159.30; and that claim for compensation was made on November 20, 1931.

It is admitted that both employer and employee at the time of the accident were operating under the provisions of the Workmen’s Compensation Act, and that the injuries arose out of and in the course of claimant’s employment.

Claimant’s original complaint was filed herein on May 5, 1932, in which he seeks to recover compensation for temporary total disability from July 20, 1931 to the date of the filing of such complaint, and in addition thereto the sum of $159.30 for medical, surgical and hospital services claimed to have been incurred by him.

The Attorney General contends that the case must be dismissed for the reason that claim for compensation was not made and application for compensation was not filed in this court within the time required by Section 24 of the Workmen’s Compensation Act.

Claimant contends that at the time of the accident in question he was a minor and that he did not arrive at the age of his legal majority until the 15th day of June, A. D. 1932, and that therefore the limitations imposed "by Section 24 of the Workmen’s Compensation Act did not apply to him until after he became twenty-one years of age, and cites in support of his position the case of Walgreen Co. vs. Ind. Com., 323 Ill. 194. That case involved an accident which occurred on May 27, 1920, and was based upon the provisions of Paragraph H of Section 8 of the Workmen’s Compensation A ct of 1919, which provided in part as follows:

“In case an injured employee shall be incompetent at the time when any right or privilege accrues to him under the provisions of this Act, a conservator or guardian may be appointed, pursuant to law, and may, on behalf of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised said right or privilege; and no limitation of time Toy this Act provided shall run so long as said incompetent employee is without a conservator or a guardian.”

However, in 1925 Paragraph H of Section 8 was amended so as to read as follows:

"* * * * * * In case an injured employee shall be mentally incompetent at the time when any right or privilege accrues to him under the provisions of this Act, a conservator or guardian may be appointed pursuant to law, and may, on behalf of such mentally incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been mentally competent and had claimed or exercised said right of privilege; and no limitations of time hy this Act provided shall run so long as said mentally incompetent employee is without a conservator or guardian.”

Under the provisions of the Compensation Act of 1919, the exception applied to an “incompetent person”. Under the Act of 1925 the exception applies only to a “mentally incompetent person”.

No claim is made that the claimant was not mentally competent at the time of the accident in question or thereafter, and consequently the law as laid down in the Walgreen case has no application to this case.

The complaint avers and the proof shows that the accident in question occurred about the “fore part of May, 1931”. The original declaration was filed herein on May 5, 1932. A compliance with the requirements of Section 24 of the Act is jurisdictional and is a condition precedent to the right to maintain a proceeding under the compensation Act. City of Rochelle vs. Ind. Com., 332 Ill. 386; Chicago Board of Underwriters vs. Ind. Com., 332 Ill. 511; Duquoin School District vs. Ind. Com., 329 Ill. 543; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; Bushnell vs. Ind. Com., 276 Ill. 262.

Compliance with the requirements of Section 24 being a condition precedent to the right of the claimant to maintain this proceeding, it is necessary for him to make proof of facts showing such compliance. This he has failed to do and this court is therefore without jurisdiction to allow him compensation for the injuries so sustained by him as aforesaid.

Under Paragraph A of Section 8 of the Compensation Act, the employer is required to furnish “the necessary first aid medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury.”

Prior to 1925 the furnishing of medical services was held to constitute a payment of compensation. By the 1925 amendment of such section, however, it was provided that “the furnishing by the employer of any such services or appliances shall not be construed to admit liability on the part of the employer to pay compensation, and the furnishing of any such services or appliances by the employer shall not be construed as the payment of compensation.”

Consequently, under the provisions of Section 8a as it now exists, the furnishing of medical, surgical and hospital services is not a part of the compensation to which the employee is entitled, although the employer is still required to furnish the same.

Although the question is not free from doubt, yet considering the fact that the Supreme Court has frequently held that the Compensation Act is remedial legislation and is to be liberally construed in order to give effect to the purpose and object of its adoption, (Faber vs. Ind. Com., 352 Ill. 115; Chicago Cleaning Co. vs. Ind. Board, 283 Ill. 177) we feel that in cases such as this, where the evidence discloses that the relation of employer and employee exists; that the employee has sustained an accidental injury which arose out of and in the course of his employment; and that notice of the accident has been given as required by law; — the employer is required after notice as aforesaid, to provide first aid medical, surgical and hospital services; — and if, after notice of the accident is given as aforesaid, the employer fails or refuses to furnish such services, then the employee may obtain the same at the expense of the employer, even though such employee may be thereafter barred from maintaining his claim for compensation by reason of his failure to comply with the requirements of Section 24 of the Act as to making claim for compensation and filing application therefor.

We hold, therefore, that under the facts in evidence the claimant is entitled to an award for the amount paid by him for medical, surgical and hospital services as shown by the evidence, to-wit, the sum of One Hundred Fifty-eight Dollars and Seventy Cents ($158.70).

Award is therefore entered in favor of the claimant, Lester Wolfe, for the sum of One Hundred Fifty-eight Dollars and Seventy Cents ($158.70).


text:
    (No. 1888
    The Alton Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1935.

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

delivered the opinion of the court:

This claim is submitted under a stipulation of facts for Sixty-three Dollars ($63.00) freight charges on a carload of brick consigned to the Illinois State Reformatory at Pontiac by Alsey Brick & Tile Company. The brick were purchased from the F. W. Lucke Brick Co., but the latter procured them from Alsey Brick & Tile Company, and the latter shipped them from Alsey, Illinois under a straight B/L to the Illinois State Reformatory as consignee. The carrier did not until long after the brick were delivered, have any knowledge that the contract originated through the Lucke Brick Company. The brick were delivered to the State without collection in advance of the charges, and the provisions of the B/L that “No Carrier by Railroad shall deliver or relinquish possession at destination of the property covered by this B/L until all tariff rates and charges thereon have been paid”, were suspended as to the State Institution. When the railroad finally presented its B/L for payment the payment was declined by the Institution for the reason that the original order placed with the F. W. Lucke Brick Company provided that the brick were to be delivered by them F. O. B. Pontiac. Settlement for the price of the brick was made by respondent with the Lucke Brick Company without deducting the cost of.the'freight. The State did not know that the freight was not paid and the claimant did not know that the State contract provided for F. 0. B. Pontiac delivery.

In a report dated March 30, 1932 by Superintendent of Prisons, F. D. Whipp, the latter states:

“It appears that the Illinois State Reformatory did not protect the railroad by deducting this bill from the bill of P. W. Lucke Brick Company, and from the information we have received, this bill is non-collectible from said company. We believe it is just that this claim be allowed by the Court of Claims.”

The authorities seem to indicate a legal liability upon the part of the State, as consignee, regardless of the liability of Lucke & Company under its contract.

“The consignee becomes liable in case he accepts the goods, knowing that the carrier looks to him for payment and waives its lien by delivery of the goods.”

10 C. J. 445 Sec. 700.

“In interstate shipments the general rule is that if a consignee accepts a shipment he becomes liable as a matter of law for the full amount of the freight charges.”

L. & N. vs. U. 8., 267 U. S. 396.

The B/L provided that the Carrier should not make delivery without requiring payment of freight charges and it was stipulated in the B/L by signature of the consignor that the Carrier should not make delivery without requiring payment of snch charges. There was in full force and effect at that time an order of the Interstate Commerce Commission made pursuant to Par. 3 of Sec. 2 of the Interstate Commerce Act as amended by the Transportation Act of 1920 under Sec. 10 of which it was provided as follows:

“The foregoing rules apply to all shippers and consignees except * * * any state or territory or political subdivision thereof.”

The State in accepting delivery under this waiver knew or should have known that the consignor was released from liability for the charges. We believe the State is legally liable for the freight and an award is therefore made in the favor of claimant in the sum of $63.00.


text:
    (No. 1775
    Benjamin A. Davenport, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1935.

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

delivered the opinion of the court:

This claim was filed pro se on May 13, 1931, asking for an award of Forty Thousand Dollars ($40,000.00) because of injuries alleged to have been received by claimant while acting as Captain of the Guards during a prison riot at the Illinois State Penitentiary at Joliet.'

The record discloses that a general riot occurred in the prison during the noon mess hour on March 14, 1931, during which approximately one thousand inmates of the prison rioted and attempted to escape; that the claimant in the exercise of his duties endeavored to quell the disorder and to restore order, and in so doing was hit, struck down and trampled and suffered an injury to the left upper arm and bruises- on other parts of the body; treatment was given him by Dr. Charles J. Carlin, one of the physicians at the Joliet Prison and that subsequent examinations were made by Major H. Worthington, managing officer of the Research and Educational Hospital and that claimant’s injury to the left arm was pronounced as fifty per cent (50%) permanent disability.

Claimant was relieved from duty for about eight weeks after the accident, but remained at the institution and thereafter resumed the performance of duties of various kinds about the prison and on September 14, 1931, resumed his normal duties as Captain of the Guards. He has received full wages during the time of his disability and has therefore been paid considerably more than any temporary partial disability compensation that could have been allowed under the Workmen ’s Compensation Act., The only basis for an award at this time is for the alleged permanent partial loss of the use of claimant’s left arm, as computed under the terms of the Workmen’s Compensation Act.

The record is not very satisfactory as to the extent of this injury, but it does appear that the claimant was employed as a Captain of the Guards at Joliet State Prison. The Workmen’s Compensation Act of Illinois applies to the State when it is engaged in one of the enterprises declared by Section 3 of that Act to be extra hazardous. One employed as a watchman or guard at a State prison or hospital for the insane is engaged as an employee under the terms of the Workmen’s Compensation Act, Davis Admx. vs. State, 7 C. C. R. 176.

Under the showing made herein claimant has suffered a fifty per cent (50%) permanent partial loss of the use of his left arm for which an award is made in the sum of One Thousand Seven Hundred Thirty-six Dollars ($1,736.00).


author: Me. Chief Justice Holleeich

text:
    (No. 1725
    Vera D. Foster, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1935.

    Boyer & Leonard, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chief Justice Holleeich

delivered the opinion of the court:

On April 14, 1930, and for about six months prior thereto, claimant was employed by the respondent as a maintenance patrolman at a salary of $125.00 per month. He patrolled the road between Foosland and Five Points, in Champaign County, which road commenced about three miles west of Champaign and extended in a northerly direction about thirteen miles to the point where it intersected Route 119, running east and west; thence west on Route 119 to Fisher, thence north through Fisher to Foosland. Both the north and south road, and Route 119 which extended in an easterly and westerly direction, consisted of concrete slabs about nine feet in width, with fifteen-foot dirt shoulders. The intersection of the north and south road with Route 119 was on a Y.

Claimant had been unloading gravel for the State at Mansfield, and after he had finished such work, went back on his own patrol, and filled ruts on such road. About five or 5:20 o’clock in the evening he started home in a Model T Ford truck owned by the State and provided for his use. He was driving in a northerly direction and when he came to the Y at the intersection of Route 119, the car he was driving collided with another motor car driven by one Rose Cantner, as the result of which the car driven by the claimant was badly damaged and claimant’s head struck the top of the car, causing a bump on the side of his head and a cut from which the blood flowed. He was taken to a doctor and then went home. He did not work for about a week after the accident. Then he started to work and worked a half day. Shortly after the accident his mind became affected, he developed hallucinations, and his mental condition gradually became worse. He was treated by several doctors and at the suggestion of his family doctor, was taken to the Norbury Sanitorium at Jacksonville, Illinois, on September 17,1930. He was taken to such institution by Mr. Apple, head engineer of the respondent at the' Paris, Illinois, office, and Mr. Gordon, supervisor- and patrolman for the respondent for that district. At said sanitorium he was treated for post traumatic psychosis, and remained there until he was discharged as improved on December 23,1930. He returned to his work on January 5,1931. His salary was paid in full to July 1, 1930. The expenses incurred by him for medical and hospital services, as shown by his Bill of Particulars herein, are as follows:

Norbury Sanitorium Company............................. $727.61
Dr. L. O. Sale............................................. 59.50
Dr. Nortell .............................................. 10.00

making a total of $797.11, of which amount he paid only the bill of Dr. Nortell in the amount of $10.00.

Claimant now seeks to recover the amount of his medical and hospital bills as above set forth, and compensation for the period from July 1,1930, to January 5,1931, to-wit, 26 6/7 weeks. At the time of the accident his wages were $125.00 per month, and he had two children under sixteen years of age.

This court has held in numerous cases that in the maintenance of its hard roads, the State is engaged in an extra hazardous business or enterprise within the meaning of those words as used in Section three (3) of the Workmen’s Compensation Act.

Inasmuch as the claimant was on his way home at the time of the accident, the question arises as to whether the injuries sustained by him arose out of and in the course of his employment. In considering a similar question, the Supreme Court in the case of Fairbank Co. vs. Ind. Com., 285 Ill. 11, said:

“The employer is liable for compensation only for an injury which occurs, to the employee while performing some act for the employer in the course of his employment or incidental to it. When the work for the day is ended and the employee has left the premises of his employer to go to his home, the liability of the employer ceases unless after leaving the plant of the employer the employee is incidentally performing some act for the employer-under his contract of employment. * * * * * * The injury odours in the course of the employment within the meaning of the Workmen’s Compensation Act when it occurs within the period of the employment, at a place where the employee may reasonably be and while he is reasonably fulfilling. the duties of his employment or is engaged in doing something incidental to it.”

In the case of Schweiss vs. Ind. Com., 292 Ill. 90, the Supreme Court said:

“The general rule followed in construing the Workmen’s Compensation Act appears to he that a man’s employment does not begin until he has reached the place where he has to work or the scene of his duty, and it does not continue after he has left unless the conveyance in which he. travels to or leaves the premises is furnished by his employer. (Bradbury on Workmen’s Compensation, 3d ed., 468). The controlling factor in determining whether an injury arose out of the employment is whether the employee was within the orbit, area or sphere of his duty, and it has been usually held that if an employee is injured on the premises of the employer in going to or from work he is entitled to compensation for such injuries. (1 Honnold on Workmen’s Compensation, Sec. 122; Bradbury on Workmen’s Compensation, 3d ed. 473, and authorities cited.) The employment is not limited to the exact moment when the workman reaches the place where he is to begin his work and to the moment when he ceases that work. It includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances surrounding the accident. (Boyd on Workmen’s Compensation, Sec. 486.) An accident befalling the workman on his way to or from work cannot be held to arise out of the employment where he has not yet come within or has left the sphere of his employment, and where an employee, without knowledge of the employer, uses a way other than that provided by him, an accident thereon cannot be said to arise out of the employment. (Corpus Juris, treatise on Workmen’s Compensation Acts, Sec. 68.) Whether an employee in going to or returning from the place of his employment is in the line of his employment is governed and controlled by the particular circumstances and facts of each case. There must be a line beyond which the liability of the employer cannot continue, (and this would apply to the beginning of the employee’s work as well as the ending), and the question where that line is to be drawn is a question of fact. (Elliott on Workmen’s Compensation Acts, 7th ed. 41.) The area of an employee’s duty may be readily ascertained in some cases, as where the premises are confined to a single building or plant or enclosure, and may be much more difficult of ascertainment in other cases, as, for example, where a railroad company’s shops and yards and right of way extend for miles on a main line of track of the railroad and for a considerable distance on switch tracks.”

In the case of Scully vs. Ind. Com., 284 Ill. 567, the court said:

“An injury may occur within the course of the employment and arise out of it, even though it happen while the employee is on his way to or from his usual place of employment or while engaged in the doing of an act that is necessary to or an incident of the employment.”

In the case of Wabash Ry. Co. vs. Ind. Com., 294 Ill. 119, the court quoted with approval the decision in the case of Schweiss vs. Ind. Com., and said:

“One of the controlling factors in determining the question here under consideration is whether the employee at the time of the accident was within the orbit, area, scope or sphere of his employment.”

A similar question was involved in the case of IrwinNeilsen & Co. vs. Ind. Com., 346 Ill. 89. In that case the Supreme Court analyzed a number of its previous decisions on the question, and concluded as follows (p. 93):

“Plaintiff in error contends that as Sawyer was on the way to his home rather than to the office of the company he was not in the course of his employment. It has uniformly been held that when an employee travels for his employer and returns after working hours he remains in the course of his employment on the way to his home.”

It appears from the cases cited that although the question here involved has been considered by the Supreme Court in numerous cases, yet the decision in practically every case has been governed by facts which were peculiar to that case, and different in some respects from practically every other decided case. After reviewing the cases on the question and considering the circumstances of this case, and particularly the fact that the claimant at the time of the accident was driving a car furnished by the State; that the accident occurred in the territory which he was required to patrol; and that at the time of ' the accident he was doing something which was incidental to-the duties of his employment; we have no hesitancy in holding that the accident in question arose out of and in the course of his employment and that he is therefore entitled to compensation under the terms and provisions of the Workmen’s Compensation Act.

Under the evidence, claimant is entitled to compensation from July 1, 1930, to January 5, 1931, to-wit, 26 6/7 weeks, at the rate of $16.00 per week, to-wit, $429.71.

With reference to the medical and hospital services incurred by him and for which he seeks to be paid, another complication arises. There is no question but what the bills of Dr. Sale in the amount of $59.50, and Dr. Nortell in the amount of $10.00, should be paid. The difficulty arises with the bill of the Norbury Sanitorium Company in the amount of $727.61. Claimant might have been treated at a State institution in the first instance had snch treatment been offered him, but there is nothing in the record to indicate that such treatment 'was offered to him at that time. The evidence discloses that two of his superior officers, to-wit, Mr. Apple and Mr. Gordon, took him to the Norbury Sanitorium at Jacksonville. He remained at such sanitorium until he was discharged on December 23,1930. It appears from the evidence, however, that Fred Tarrant, Engineer of Maintenance of the respondent, advised the Norbury Sanitorium on October 30, 1930, that he did not feel that the State should be responsible for Foster’s maintenance in a private sanitorium, and that it would be necessary for such sanitorium to look to Foster’s family or relatives for reimbursement. No notice to that effect was given to Foster at that time or later. However, it appears that Mr. Tarrant wrote to Mrs. Foster on November 24, 1930, enclosing a copy of his previous letter to the Norbury Sanitorium, and advising her that he did not feel that the State was obligated in any way to provide maintenance for her husband in a private sanitorium. Under the circumstances, claimant should have been removed to a State institution within a reasonable time after the notice by Mr. Tarrant to Mrs. Foster as aforesaid, and in default thereof, the State should not thereafter be liable for his maintenance at the Norbury Sanitorium. We feel that a week from the receipt of such notice by Mrs. Foster was a reasonable time within which to have claimant removed to a State institution, and that therefore the State is not responsible for his maintenance at the Norbury Sanitorium after December 2, 1930.

Claimant is therefore entitled to the cost of his care and maintenance at the Norbury Sanitorium from September 17, 1930, to December 2, 1930; the pro rata amount due for such period being $568.50.

Claimant is therefore entitled to compensation as above set forth in the amount of $429.71 and is also entitled to the sum of $638.00 for expenses incurred by him for medical and hospital services as follows, to-wit:

Norbury Sanitorium..................................... $568.50
Dr. L. O. Sale.......................................... 59.50
Dr. Nortell............................................. 10.00

Award is. therefore hereby entered in favor of the claimant for the sum of $1,067.71.

Inasmuch as the bills of the Norbury Sanitorium and Dr. L. O. Sale have not been paid by claimant, it is further ordered that the vouchers for said award be issued and be payable as follows, to-wit:

To Vera D. Poster...................................... $439.71
To Vera D. Foster, for the use of the Norbury Sanitorium. 568.50
To Vera D. Foster, for the use of Dr. L. O. Sale........... 59.50
Total.............................................. $1,067.71


text:
    (No. 2074
    Herbert E. Cleveland, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

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

delivered the opinion of the court:

The declaration herein filed on February 21, 1933, alleges that on September 18, 1932, highway employees of the State were using a spray for eradication of Canada thistles; that said highway employees so negligently operated the spray that quantities of the chemicals fell within a field of claimant’s adjoining the highway; that the cattle were attracted by the taste and from there went through the pasture fence onto the highway, where they ate the grass and weeds that had been sprayed and as a result were poisoned; that six Guernsey cows of the value of Eighty-five Dollars ($85.00) each died; that two more became damaged and lessened in value to the amount of One Hundred Seventy Dollars ($170.00) and two others to the amount of One Hundred Twenty Dollars ($120.00), and that claimant lost the value of milk from said herd in the sum of Two Hundred Twenty-five Dollars ($225.00), making a total claim of One Thousand Twenty-five Dollars ($1,025.00).

Claimant states in his brief that he has failed to find an analogous case, and fails to cite any authority which would authorize this court to hold that there is a basis for legal liability upon the part of the State for the damages in question. Counsel suggests that the law of “Attractive Nuisances” might well apply as cited in the case of Fallatt vs. I. C. Railroad, 288 Ill. 506.

There is no doubt that Mr. Cleveland, as the owner of the cattle has suffered a substantial loss, but in the absence of some law creating a legal liability against the State, this court believes itself without jurisdiction to make an award.

The declaration is drawn on the theory that the State is liable for injuries caused by the negligent conduct of its employees. The maintenance of a State highway is a governmental function which the State exercises through its officers and employees, and there is no basis for an award by the State for the negligent acts of its employees in maintaining such highway.

Braun vs. State, 6 C. C. R. 104.
Derby vs. State, 7 C. C. R. 145.

In his reply brief claimant insists that the damage was caused by the State of Illinois rather than by the acts of its servants. The State can only act through its officers, servants or agents, and the court is of the opinion that no award can be properly allowed herein. Claim denied. Cause dismissed.


author: Mb. Justice Linsoott

text:
    (No. 2043
    George C. Goforth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    George C. Goforth, pro se.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mb. Justice Linsoott

delivered the opinion of the court:

This claim was filed in this court on January 7, 1933, and alleges that the claimant, George C. Goforth, on November 1, 1930, and for sometime prior thereto was Director of Music at the Illinois State Reformatory at Pontiac, and at the time that George C. Goforth entered into the performance of his duties, June 1, 1930, there was a shortage of musical instruments at the reformatory. George C. Goforth discussed this matter with the superintendent, and was advised that the instruments could not then be purchased, and the claimant volunteered to bring some of his own instruments into the institution and use them until such time as the reformatory could make a purchase of the needed instruments. The declaration sets forth that he brought two gold B Flat Soprano Saxophones with cases, one E Flat Baritone Saxophone and case, and one Cundy-Bettony B Flat Metal Clarinet with case into the institution, and that on November 1, 1930, about 10:45 A. M. at the Illinois State Reformatory, Pontiac, a fire destroyed a two story building which housed a carpenter shop on the main floor and the Department of Music on the upper floor, and these musical instruments. Claimant also avers that he lost a suit of custom-made clothes at $85.00 and shirts and accessories at $36.00, making a total of $121.00. The musical instruments were valued at $908.00. Claimant avers that he is making no claim for the clothing, and states that the musical instruments had been used for approximately two years, and had depreciated in value 20 per cent, and requests that this court enter a judgment for the value of the musical instruments.

A motion to strike has been filed by the Attorney General, and must be allowed for the following reasons: No charge of negligence is contained in the declaration, and if the State were a private individual there would be no liability because there could not be liability for any loss not occasioned by negligence, either by the individual or servants. It is not charged that the State did not take ordinary care of the musical instruments, that means that degree of care that an ordinary person would under like circumstances care for his own property. No negligence is averred; the cause of the fire is not averred, and the declaration is not predicated upon any legal grounds. The motion to dismiss therefore will be sustained, and under the rules of this court, the claimant will have thirty days from the date of the filing of this opinion to file an amended declaration, and in the event he so fails to do, the case will be automatically dismissed.


text:
    (Nos. 2191 and 2297, consolidated
    John A. Hanna and Hattie Hanna, No. 2191, J. B. Lamb, Jr., No. 3397, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    Tom W. Smurr, for claimants.
    Otto Keener, Attorney General $ John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

It appears from the claims filed in the two foregoing cases that John A. Hanna and Hattie Hanna were the owners of certain farm lands located between the Illinois-Michigan Canal and the Illinois River in the East three-quarters of Section fifteen (15), Town thirty-three (33) North, Range two (2) East of the Third Principal Meridian in the County of LaSalle and State of Illinois at the time of the alleged damage.

That J. B. Lamb, Jr., was the tenant on said lands from March 1, 1932 to March 1, 1933. Counsel for claimants and respondent have agreed that these two cases may be consolidated. Attention is called to the existence of another case now pending in this court upon the claim of John A. Hanna and Hattie Hanna, No. 2192, which involves a claim for damages alleged to have arisen several years prior to the matters set forth in the two claims here under consideration.

Claimants herein allege that it was the duty of respondent to make the necessary repairs to the north bank of the Illinois and Michigan Canal, so as to prevent water passing through the canal flowing into and upon the lands of claimants; that respondent did not regard its duty in that behalf, but failed and neglected and refused to repair a certain break; that from about the month of May 1932, until the 13th day of July, 1932, the respondent, through its agents and servants, failed and neglected to keep the flow of water in the canal retained therein, and negligently and carelessly permitted the same to flow upon and submerge the lands of claimants, thereby destroying crops to the damage of claimants John A. Hanna and Hattie Hanna in the amount of $556.50, and to the damage of claimant J. B. Lamb, Jr., $496.25.

The Attorney General has filed a motion to dismiss the claims upon the ground that if the claims came within the Illinois Waterway Act the Court of Claims should not take jurisdiction, and if the claims are not within said Act, then under the Statutes and Decisions no award should be made because of the constitutional provisions relative to said Illinois and Michigan Canal. Counsel for the State cites the case of Burke vs. Snively, 208 Ill. 328 and the case of Hollenbeck vs. State of Illinois, 6 C. C. R. 330. The constitutional and statutory provisions are there set out in detail. The Constitution of 1870 (Separate Sec. 3) provides:

“The General Assembly shall never loan the credit of the State, or make appropriations from the treasury thereof, in aid of railroads or canals: provided that any surplus earnings of any canal may be appropriated for its enlargement or extension.”

The only exception made for the voting of appropriations from funds that have reached the treasury of the State, is stated in the last line and is limited to enlargement or extension of such ccmal. Any appropriation to meet expenses or liabilities connected with or growing out of the operation of the canal would be in aid of it. In construing this section of the Illinois Constitution the Supreme Court in the Burke case said that the word “aid” should be given its natural and ordinary meaning and means simply to help to support, to assist, to sustain, to succor or to relieve. The court further said:

“We are of the opinion that the true meaning of the constitutional provisions with reference to the canal is, that the Legislature should have power to operate it to the extent, and to the extent only, that the income of the canal would defray the expenses of operation, maintenance and preservation, and that no monies shall be appropriated from the treasury of the State in aid of the operation, maintenance or preservation thereof, and that if the earnings of the canal produced a surplus, appropriations of such surplus might be made to aid in the enlargement or extension of the canal.”

We believe it was the intention of the framers of the Constitution to require the expenses and liabilities incurred in the maintenance and operation of the Illinois and Michigan Canal, to be paid out of its earnings. The claims in question all arose out of the maintenance and operation of the canal and could only be payable therefrom.

Section 9 of an “An Act to revise the law in relation to the Illinois and Michigcm Canal cmd for the improvement of the Illinois and Little Wabash Rivers, approved March 27, 1874” gives the Canal Commissioners (under Act of April 22, 1871) the control and management of the Illinois and Michigan Canal. The second paragraph of the section makes it their duty to keep the canal, locks and dams in proper repair and condition for use and authorizes them “to enter upon and use, prevent overflow or damage to any contiguous lands, and to procure and appropriate all such material as in their judgment may be necessary or proper, etc., — and may take proceedings in their official name to ascertain the compensation therefor in the manner at the time provided by law for the exercise of the right of eminent domain; provided, that the damages, cost of materials and improvements shall in all cases be paid out of the net proceeds derived from tolls.” By the enactment of the Civil Administrative Code in 1917, the rights, powers and duties of the Canal Commissioners were given to the Department of Public Works and Buildings, and later in June, 1925, by amendment were conferred upon the Department of Purchases and Construction. Section 9 was not changed by any of these Acts in any other respect.

In 1908 an amendment to said section of the Constitution added the following proviso to the original wording:

“Provided that any surplus earnings of any canal, Waterway, or waterpoioer may be appropriated or pledged for its enlargement, maintenance or its extension.” . The words underscored were added to the amendment.

The Department of Purchases and Construction is clothed with all the powers and duties pertaining to the maintenance of the Illinois and Michigan Canal. It is also the definite conclusion of the court that the Court of Claims has no jurisdiction in claims for damages to property arising under the Illinois Waterway. It is equally apparent that the Court of Claims has no jurisdiction to pass upon claims for damages to property arising out of the construction, maintenance or operation of any portion of the Illinois and Michigan Canal. If the damages claimed relate to those portions of the canal incorporated in the Illinois Waterway, the amount of damages must be determined as provided in the Waterway Act. If they relate to portions of the canal not included in the Illinois Waterway, and come within Section 9 heretofore referred to of the Illinois and Michigan Canal Act, approved March 27, 1874, then the amount of damages must be ascertained and paid as provided by said Section 9. We believe the Department of Purchases and Construction has authority to use its receipts of the canal in any way necessary in the proper maintenance of the canal, turning only such amount into the State treasury as may be left after such maintenance expense. We do not believe that the Court of Claims' has authority to make an award — nor that the Legislature would have authority to appropriate money from the treasury of the State for the payment of any award which we might allow under the facts herein. The claims are hereby dismissed.


author: Mb. Justice.Yantis

text:
    (No. 2192
    John A. Hanna and Hattie Hanna, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    Tom W. Smitre, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice.Yantis

delivered the opinion of the court:

The declaration in this case claims relief for damage and destruction of crops of grain growing upon farm lands of claimants located between the Illinois and Michigan Ganal and the Illinois River in Section Fifteen (15), Township Thirty-three (33) North, Range Two (2) East of the Third P. M., in the County of LaSalle and State of Illinois; that such damage and destruction of crops was caused by the blockading and obstructing of the natural flow of water across the lands of claimants by the servants and agents of the State of Illinois in the course of construction of and work on the Illinois Waterway at a portion of same commonly referred to as the ¿ ‘ Starved Rock Dam Site. ’ ’

A motion to consolidate this cause with the case of John A. Hanna et al. vs. State of Illinois, No. 2191, has been filed by claimants, and an agreement made between the respondent and the parties interested that case No. 2191 and No. 2297 may be consolidated. The motion to consolidate Nos. 2191 and 2192 is denied.

The Attorney General, on behalf of the State, has filed a motion herein to dismiss this case for lack of jurisdiction of this court, and because of the provisions of Section 24 of the Act known as the Illinois Waterway Act, approved June 17, 1919.

The Illinois Waterway Act provides as follows:

“All claims for damages to persons (except to employees) and all claims for damages to property, real or personal, shall be ascertained, determined and fixed by the Department of Public Works and Buildings, and paid out of any monies which shall, from time to time, be provided for the payment of such claims.
“* * * All claims for damages to persons or property shall be filed with the Department of Public Works and Buildings within five years after the injury complained of.”

Cahill’s Illinois Statute, Chap. 19, Paragraph 114.

Claimant contends that this section does not exclude jurisdiction by the Court of Claims, but this court has repeatedly held and is of the opinion that it has no jurisdiction over the matter complained of herein and the motion of the Attorney General will be allowed.

Motion allowed. Claim dismissed.


author: Mr. Chief Justice' Houlerich

text:
    (No. 2090
    Jess Lightner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    James A. Watson, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice' Houlerich

delivered the opinion of the court:

Prior to and on the 14th day of September, A. D. 1932, the claimant was employed by the respondent as a State highway maintenance policeman, and on the last mentioned date, was on duty at the County Fair at Marion, Illinois. About eleven o ’clock that night he and Edgar Modglin, another highway maintenance policeman, left Marion for Cairo, to do police duty there. On account of a confusion of lights, Modglin, who was driving the car, drove into the side of a coal train and as the result of the collision, the claimant sustained serious and permanent injuries to his right hand and right leg, as well as numerous cuts and injuries about the face and body.

All medical and hospital bills were paid by the respondent, and claimant was continued on the payroll at the regular monthly salary of State maintenance police until the time of his discharge on March 15, 1933. At the time of the accident in question he was earning $175.00 per month, and had one child under sixteen years of age.

It is conceded that at the time of the accident, both claimant and respondent were operating under the provisions of the Workmen’s Compensation Act; that on said day the relation of employér and employee existed between them; that on said day the claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given and claim for compensation made as required by law; that the only question in dispute is the nature and extent of claimant’s injuries, and the amount of compensation to be allowed therefor.

The evidence shows that claimant was in profound shock for three days, and was unconscious for two weeks after the accident; that he sustained a multiple fracture of the right tibia with no misplacement of parts; super-orbital lacerations extending from the base of the nose around the right eye down about one and one-half inches on the right cheek; also fracture of super-orbital process about one and one-half inches by one inch depression; a four-inch laceration under the chin, with small cuts and lacerations on the hands; disarticulation of the left clavicle at a cromial end; and a fracture of the left scapula. There is also some disfigurement of the face, resulting from a scar over the right eye, one inch long; a scar under the right eye, one inch long; and a scar under the chin four inches long. Dr. B. B. Hutton of Harrisburg states that claimant’s vision is below normal, but there is nothing in the record to indicate the extent of any loss of vision resulting from the accident.

Claimant was examined by Doctors Harry Phillips and C. D. Nobles of the Anna State Hospital, who state that there is a permanent disability of the right hand resulting from contracture of the fingers, which disability is from forty to fifty per cent, and that the disability to the right leg at this timé is approximately fifty per cent, although there is a possibility of a partial correction of this disability by surgery.

Claimant was paid his regular salary from the time of the accident to the date of his discharge, to-wit, March 15, 1933, which time covered the full period of temporary total incapacity, and consequently he is not entitled to recover any compensation for such temporary total incapacity.

From all of the evidence it appears that claimant has suffered the permanent and complete loss of forty per cent of the use of his right hand, and the permanent and complete loss of fifty per cent of the use of his right leg. At the time of the accident, his salary was $175.00 per month and he is therefore entitled to compensation at the rate of Fifteen Dollars ($15.00) per week.

Under Section 8E-12 of the Workmen’s Compensation Act, the amount due claimant for permanent and complete loss of forty per cent of the use of the right hand is $1,020.00, and under Section 8E-15 of such Act, the amount due claimant for the permanent and complete loss of fifty per cent of the use of the right leg is $1,425.00. We also find that claimant is entitled to the sum of $300.00 for serious and permanent disfigurement to the face — thereby making a total of Twenty-seven Hundred Forty-five Dollars ($2,745.00), which said amount is payable in weekly installments of Fifteen Dollars ($15.00) commencing on September 15,1932.

Payment by the respondent in weekly installments, however, is not practicable under existing laws and the award will therefore be commuted to an equivalent lump sum in accordance with Section nine (9) of the Workmen’s Compensation Act.

The amount due the claimant after commutation to an equivalent lump sum as aforesaid, is Twenty-seven Hundred Forty Dollars and Twenty-five Cents ($2,740.25).

An award is therefore hereby entered in favor of the claimant, Jess Lightner, for the sum of Twenty-seven Hundred Forty Dollars and Twenty-five Cents ($2,740.25).


author: Mb. Chief Justice Hollebioh

text:
    (No. 2151
    Marshall Manhart, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    Victor C. Miller and Wm. T. Hollenbeck, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebioh

delivered the opinion of the court:

Prior to and on the 13th day of May, A. D. 1931, claimant was employed by the respondent in the Department of Public Works and Buildings, Division of Highways, and was engaged in mowing weeds along the right-of-way of S. B. I..Route No. 1 just north of Walnut Prairie in Clark County.

On the last mentioned date, while claimant was driving a team of mules and operating a mower for the purpose of mowing weeds on the shoulder of the highway, said mower was struck by a truck owned by one Harold Adams, and driven by his agent, which approached from the rear. The force of the collision demolished the mower, killed one of the mules and injured the other. Claimant was thrown onto the pavement between the mules, and the mowing machine passed over him, whereby he sustained injuries to his right ankle and leg, his knee, in the pelvic region and other parts of his body ■ — for which injuries he seeks to recover compensation herein.

It appears from the evidence that said Harold Adams owns no real estate and very little, if any, personal property over his exemptions, and for that reason a judgment against him, if such judgment could be obtained, would avail nothing. Notwithstanding that fact, he bought a new mower for claimant, also another mule, and repaired the harness — borrowing the money for that purpose, which money had not been entirely repaid at the time Adams testified herein. Claimant therefore makes no claim against the State for the damage done to his personal property.

This court has held in numerous cases that in the maintenance of its hard-surfaced roads, the State is engaged in an extra-hazardous business or enterprise within the meaning of Section 3 of the Workmen’s Compensation Act. There is no question but what the claimant’s injuries arose out of and in the course of his employment and he is therefore entitled to compensation under the terms and provisions of the Workmen’s Compensation Act. The respondent paid medical, hospital and other bills in the aggregate amount of $888.10, and also paid compensation for about eleven months, the exact amount being uncertain, claimant contending that the amount paid was $518.40, and respondent contending that the amount paid was $536.40. Claimant’s earnings at the time of the accident were $21.60 per week, and he. contends that his earning capacity has been reduced fifty to seventy-five per cent as the result of the injuries sustained by him, and that he is entitled to additional compensation for temporary total disability for six weeks at $10.50 per week, and that in addition thereto, he is entitled to compensation for permanent partial disability for 416 weeks at the rate of $8.10 per week.

It appears from the evidence that although claimant was discharged from the hospital about July 12 or 15, 1931, he continued under the doctor’s care for about eleven months after the accident, and that he received compensation for about eleven months at $10.80 per week. Dr. Junkin discharged him on April 19, 1932, and apparently claimant has received compensation for the entire period of temporary total disability.

Section 8d of the Workmen’s Compensation Act provides as follows:

“If, after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to fifty percentum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some" suitable employment or business after the accident.”

The evidence of Dr. Charles O. Highsmith, a physician who treated claimant at the time of the injury and who was called by him as a witness, is to the effect that there is no permanent injury except to the right ankle and leg and there is no substantial evidence to the contrary. Claimant therefore is not entitled to compensation for any permanent partial disability under Section 8d, but is entitled to compensation for the specific loss sustained by -him under Section 8el5. The evidence is not entirely satisfactory, but indicates that the claimant has sustained a loss of fifty per cent of the use of his right leg.

Under the provisions of Section 8el5, claimant is entitled to 95 weeks compensation at $10.80 per week for the loss of 50.per cent of the nse of his right leg, to-wit, the snm of $1,026.00, which amount under the terms and provisions of the Workmen’s Compensation Act is payable in weekly installments of $10.80 commencing at the time the period of temporary total incapacity ceased, but which amount under the terms of said Act is all now due.

Award is therefore entered in favor of the claimant for the sum of One Thousand Twenty-six Dollars ($1,026.00).


author: Mr. Chief Justice Hollerich

text:
    (No. 2239
    Redyth E. Newell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    Charles C. Lee, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

It is stipulated and agreed by and between the parties hereto that prior to and on the 7th day of August, A. D. 1933, Thomas Frank Newell was employed by the respondent under the Department of Public Works and Buildings, Division of Highways, as a painter, and was engaged with a number of other employees in the painting of a bridge on S. B. I. Route No. 130, over the Embarrass River near Charleston, Hlinois; that it was part of the contract of employment that the claimant and other employees working on said bridge should receive for their services thirty-five cents (35c) per hour, and in addition thereto should be transported by the respondent from the City of Charleston to their work each morning, and should be returned at the end of the day’s work, to the place from which they started; that one Frank Crable, an agent of the respondent, was in charge of the painting crew, as a foreman, and took the men to their work in the morning and returned them from their work in the evening in a State truck which was kept in Charleston; that on August 7, 1933, while said Frank Crable was driving said truck and was returning* from said bridge with the members of the painting crew after the completion of the day’s work, said truck collided with another automobile driven by one Archie Layton, and as the result of such collision, said Thomas Frank Newell sustained injuries from which he died the next day; that said Thomas Frank Newell left him surviving the claimant, Redyth E. Newell, his widow, and Thomas Mac Newell, aged thirteen years, and Doris Jean Newell, aged nine years, his children, as his sole and only heirs at law; and that said Archie Layton is insolvent and has no property subject to execution.

It is further stipulated that at the time of the accident in question the claimant’s intestate and the respondent were operating* under the provisions of the Workmen’s Compensation Act; and that the injuries sustained by said claimant’s intestate arose out of and in the course of his employment.

Under the facts as stipulated, there remains nothing for this court to do but fix the amount of the award. Upon consideration of the facts stipulated herein, the court finds as follows:

1. That under the provisions of Sections 7A, 7Gr and 7H1, the widow and minor children of said decedent are entitled to compensation in the total amount of $3,100.00; the said Redyth E. Newell being entitled to $2,500.00 and the said Thomas Mac Newell and Doris Jean Newell being entitled to $300.00 each.

2. That said compensation is payable in weekly installments of $12.00 commencing* on August 9, 1933.

3. That it is to the best interests of all parties concerned that the compensation to which said Thomas' Mac Newell and Doris Jean Newell are entitled as aforesaid be paid to their mother, Redyth E. Newell, for the support and maintenance of said children.

4. That payment by the respondent in weekly installments is not practicable under existing laws; and that it is to the best interests of the parties concerned that the compensation to be paid as aforesaid be commuted to an equivalent lump sum, in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

5. It is therefore ordered that the compensation to which the said Thomas Mac Newell and Doris Jean Newell are entitled as aforesaid be paid to their mother, Redyth E. Newell, for the support of said children; and that the total compensation to be paid to the claimant herein be commuted to an equivalent lump sum in accordance with the provisions of Section 9 of the Workmen’s Compensation Act.

As we compute it, the total amount of compensation to be paid as aforesaid, after commutation to an equivalent lump sum is Three Thousand Nineteen Dollars and Ninety-one Cents ($3,019.91).

It is Therefore Hereby Ordered that an award be and the same is hereby entered in favor of the claimant, Redyth E. Newell, for the sum of Three Thousand Nineteen Dollars and Ninety-one Cents ($3,019.91).


text:
    (No. 2062
    Goldie Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    J. A. Merry and Edward E. Adams, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant, Goldie Ryan, filed her complaint herein on January 20, 1933, and alleges therein that on the 10th day of November, A. D. 1932, she was in the possession of a certain Dodge sedan, and was driving the same in a southerly direction upon a certain public highway in Christian County, to-wit, S. B. I. Route 24, at a point between the City of Taylor-ville and the hamlet of Velma, in said county; that as she was driving said automobile on said highway and was appro aching her home, which was on the east side of said highway, she held out her left hand plainly for the purpose of indicating that she intended to make a left-hand turn from the highway into the driveway of her home; that at the same time one Walter L. Moody, Chief of the State Highway Police, was driving a Chrysler sedan, the property of the.State, in the exercise of his duties as such Chief of Highway Police, and going in the same direction as the claimant, to-wit, in a southerly direction; that it was the duty of said Walter L. Moody to drive and. operate his said car with reasonable care and caution, so as to avoid injury to persons lawfully upon said highway; that said Moody disregarded his duty in that behalf and drove his said automobile at an excessive rate of speed, to-wit, sixty-five (65) miles an hour, and so negligently, carelessly and recklessly managed said car, that he failed to see, or disregarded the signal made byj the claimant, and attempted to pass the claimant upon her left, just as she was -turning into the driveway of her home, whereby the automobile so being driven by said Walter L. Moody as aforesaid, ran and struck with great force and violence upon the automobile then and there being driven by the claimant, whereby she was greatly bruised and injured in and about her person and was incapacitated for work for the period of two weeks; for which injuries she seeks to recover herein.

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

There can be no question but what the State in the maintenance of its State Highway Police is acting in a governmental capacity. This court has repeatedly held that the State, in the exercise of its governmental functions, is not liable for the negligence of its servants and agents under the 'doctrine of respondeat superior, in the absence of a Statute making it so liable. Morrissey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77; Chumbler vs. State, 6 C. C. R. 138; Braun vs. State, 6 C. C. R. 104; Derby vs. State, 7 C. C. R. 145; Bucholz vs. State, 7 C. C. R. 241.

This rule is supported by numerous decisions of the Supreme Court of this State. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

There being no legal liability on the part of the State if the State were suable, this court has no jurisdiction to enter an award. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

The motion of the Attorney General will therefore be sustained and the- case dismissed.


text:
    (No. 2063
    John F. Ryan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

    J. A. Merry and Edward E. Adams, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

This case arises out of the same accident which was involved in the case of Goldie Ryan vs. State, No. 2062. The claimant herein is the husband of said Goldie Ryan, and was the owner of the car which was damaged in that accident, and s¿eks in this case to recover damages done to his car as the result of such accident. The facts in the case are fully set forth in the case of Goldie Ryan, vs. State, No. 2062, to which reference is hereby made. What is said in that case applies with equal force to this case. For the reasons set forth in the case of Goldie Ryan vs. State, No. 2062, award herein is denied and the case dismissed.


author: Mb. Justice Yantis

text:
    (No. 2203
    Ruth Thetford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1935.

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

delivered the opinion of the court:

This claim was filed pro se June 29, 1933, for Six Hundred Nine and 66/100 Dollars. Claimant alleges that she was employed on June 27, 1927, as an attendant at the Chicago State Hospital at Dunning and has been continuously in the employ of the State since that time, except during the months of January, February, March and April, 1931, and that she is now in the employ of the State as an attendant, although performing the services of a staff stenographer, receiving a salary as such of Fifty-four Dollars ($54.00) per month.

Claimant was employed as an attendant at Forty-five Dollars ($45.00) per month. The Bill of Particulars filed by claimant seeks an award of $100.00 per month for the months of April, May, June, July, August and September, 1932— and $9.66 for the month of October, 1932 — or a total of Six Hundred Nine and 66/100 Dollars ($609.66), for services rendered as a record, clerk. A stipulation herein filed states that claimant was first employed as an attendant on June 27,1927; that she resigned on December 31, 1930; that she was reemployed on May 13, 1931; that she was not paid any salary for the months of April to September inclusive nor for the first three days of October, 1932; that on May 13, 1931, she again worked in the office of the hospital as record clerk receiving an attendant’s salary of Sixty Dollars ($60.00) per month; that in September, 1931, she passed a Civil Service examination as record clerk, the salary of which was One Hundred Dollars ($100.00) per month. Claimant was disapproved by the Civil Service Commission as record clerk on October 4, 1932, and on said date went into service as an attendant, receiving a salary regularly thereafter as such.

On March 30, 1932 the Civil Service Commission notified Dr. Daniel D. Coffey, managing officer of the hospital that there were a number of eligibles ahead of Mrs. Thetford and that they had not been authorized to approve her employment as a record clerk. On April 30, 1932 the Commission notified Dr. Coffey that claimant was classified as an attendant and that they had no authority to certify her as a record clerk ahead of others having preferential standing. On May 6,1932 the Commission notified Rodney H. Brandon, Director of the Department of Public Welfare that “On March 30, 1932 we wrote Dr. Coffey that we would not approve the employment of Ruth Thetford — as record clerk, but she appears on the April roll as such”. On May 12, 1932 Dr. Coffey’s pay-roll list was returned to him with Ruth Thetford’s name stricken. On September 12, 1932 Dr. Coffey notified the State Civil Service Commission that Mrs. Thetford had been advanced to record clerk automatically because of the failure of others, employed in his office as record clerks, to pass such examinations. On November 17, 1932 the Civil Service Commission notified A. L. Bowen, Superintendent of Charities that “Vouchers for Ruth Thetford as record clerk had not, and would not be approved because the managing officer had been notified not to carry her as such.”

The position of record clerk was within the Civil Service classification and no appointment could be made thereto, except upofi the certification by the Commission from the eligible list under such classification. If there had been no eligible list, then a temporary appointment could have been made by the appointing officer with the authority of the Commission, such appointment to remain in force only until a regular appointment could be made. Claimant was never certified to the appointment of the position as record clerk nor was any temporary appointment to such position approved by the Commission. The appointment of claimant as record clerk by Dr. Coffey required the approval of the Civil Service Commission, and as the Commission not only did not approve but directly disapproved such appointment, cliamant was not authorized to serve as such. Claimant could not, through the co-operation of Dr. Coffey, create a liability against the State by seeking out and performing services for the State for which no proper authorization had been given.

The Civil Service Law requires that the Civil Service Commission shall certify to the State Auditor all appointments to offices and places in the classified civil service and all vacancies occurring therein. There is no showing that she performed any duties as an attendant during the period for which an award is sought and she could not well contend for compensation as a record clerk and at the same time ask for an award for services rendered as an attendant. Apparently an attempt was made to evade the Civil Service ¡Commission’s rulings and to carry the claimant on the payroll at an advanced wage over that which she was entitled to receive under her employment. Such efforts continued for six months and three days. No action was taken by the claimant during that time with the Civil Service Commission. Had the employment been for but a month or two and had the claimant made any effort through the Commission during that time for an adjustment, an award might be justified. No employee nor managing officer should be encouraged to continue in an employment in the manner herein indicated in the belief that they have everything to gain and nothing to lose, and that if they failed to collect the larger salary they might always obtain an award for the smaller. As there is nothing in the record upon which to base an award to claimant as an attendant at the hospital, the claim is dismissed.


text:
    (No. 2499
    The Automatic Recording Safe Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    The Automatic Recording Safe Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

During the month of May, 1934 claimant received from the Secretary of State a statement for a franchise tax in the amount of $63.40, based upon its capital stock and paid-in surplus of $126,802.00, and thereafter paid the tax claimed to be due as per the statement rendered.

In June, 1934 claimant reduced its capital stock $25,000.00, and on June 22nd, 1934 received a corrected statement of the amount of the franchise tax due from it on its stated capital and paid-in surplus as thus reduced, to-wit, a tax of $50.90.

Thereafter claimant filed its claim herein to recover the amount overpaid by it as aforesaid, to-wit, $12.50.

It appears that the excess payment was made pursuant to a statement rendered by the Secretary of State; and that the same was made without any fault or neglect on the part of the claimant. Having inadvertently paid more than it was legally required to pay without any fault on its part, claimant should be reimbursed the amount of such excess payment.

Award is therefore hereby entered in favor of the claimant for the sum of Twelve Dollars and Fifty Cents ($12.50).


text:
    (No. 2341
    Chloe Ayer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    Gillespie, Burke & Gillespie and Bolla Babcock, 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 of Five Thousand Nine Hundred and Fifty Dollars ($5,950.00) for back salary alleged to be due her, as an employee of the State of Illinois. About December, 1919 claimant passed a Civil Service examination, was certified and assigned to a position of tax clerk at a salary of One Hundred Seventy-five Dollars ($175.00) per month, which position she held until March 15, 1929. At this point the record is uncertain. Claimant states that she was asked to resign and refused to do so, but a notation appears on the records of the Civil Service Commission on March 15, 1929 that claimant had resigned. The last pay she received, according to the records of the Commission, was for one-half month in March, 1929. If a resignation was signed by Mrs. Ayer same cannot be located in the files of the Civil Service Commission.

The records disclose, however, that on May 13, 1929 claimant was appointed to a position as clerk in the general office of the Department of Public Welfare, she accepted that appointment and continued therein under that classification until May 19, 1929. On July 10, 1931 an affidavit was filed by Mrs. Ayer’s attorney with the Civil Service Commission and a hearing was granted claimant for reinstatement, and on January 12, 1932 claimant was reinstated to her position as tax clerk in the Department of Finance. Claimant thereafter continued in such employment until July 15, 1933, when she was laid off because of the abolishment of said position of Tax Clerk. From the foregoing it appears that claimant seeks an award from March 15, 1929 to January 12, 1932 at One Hundred Seventy-five Dollars ($175.00) per month, or Five Thousand, Nine Hundred Fifty Dollars ($5,950.00).

“Whenever an employee who has been removed, discharged or reduced shall file with the Civil Service Commission within five days after his removal, discharge or reduction, a statement in writing alleging that his removal, discharge or reduction was made for political, racial or religious causes and that he believes that upon a hearing he will be able to establish such a fact, it shall be the duty of such commission to order a hearing. The time and place of such hearing shall be fixed by the commission and due notice thereof given to the appointing officer and the employee.
Hi * * * * $5: *
“If upon such hearing the commission shall find that the removal, discharge or reduction was made for political, racial or religious causes it shall enter an order reinstating the employee in his former position and directing the payment of all back salary due.”

From, Section 12 — Civil Service Act of Ill.

The Civil Service Commission in reinstating claimant expressly called attention to the fact that it was not making any recommendation for the allowance of back pay. The application for reinstatement was not filed within five days as required by the foregoing Act. In her Reply Brief claimant states that she had no right to file a statement and apply for a hearing since no charges were filed against her and the Commission had no jurisdiction to act; further that there is no time prescribed by the Act within which claimant herein might have applied for a hearing and that the five day limitation applies only to cases where charges have been filed, and that the Commission had no jurisdiction to act.

The Commission had the same authority and jurisdiction to act within a reasonable time after claimant states she was discharged as it did to act when she finally filed her application for a hearing for reinstatement on July 10, 1931. If the Commission had authority to hear her application at the later date and to make a valid order reinstating her, they could have heard the same had she made her request within a reasonable time or within the five days contemplated by the foregoing section of the Act.

“Laches consists of such neglect or omission to assert a right as taken in conjunction with lapse of time more or less great and other circumstances causing prejudice to the other party operates as a bar.”

Carroll vs. Houston, 341 Ill. 531-538.

“Where a civil service employee has been wrongfully discharged it is his duty to file with the Civil Service Commission within five days after such discharge a statement in writing alleging that he had been discharged for political, racial or religious causes, and that he believes that upon a hearing he would be able to establish such fact and unless such statement is so filed the discharge becomes final and binding.”

Osborne vs. Bradford, 346 Ill. 464.

Examination of the evidence taken herein discloses that there was considerable difficulty in regard to the work and employment of claimant for some time before she was discharged in March, 1929. Whether she was discharged with all the formalities of Civil Service notifications or not, or whether she upon request filed her resignation under the pressure of the Director of the Finance Department, is somewhat in doubt, but in either event she failed for a long period of time to seek to establish any right to reinstatement or a claim to payment. The Civil Service Commission in reinstating her did not see fit to make any allowance for back pay, and this court is of the opinion that no award for same is warranted. Claimant contends that this was not a reinstatement and that the only effect of the order of the Commission made upon her application, was to send her back to work. Claimant submitted herself to the jurisdiction of the Civil Service Commission and the order of that body entered, January 12, 1932 reads:

“That in view of the fact that Mrs. Ayer was certified as tax clerk in the civil service of the State, the commission directs that she shall be reinstated to the position of tax clerk in the Department of Finance.”

An award is denied and the claim dismissed.


text:
    (Nos. 1942, 1943, consolidated
    Gustavus M. Blech, No. 1942; Edgewater Hospital Corporation, a Corporation, No. 1943, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    Linenthal, Scheyer & Myles, for claimants.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Both of the above cases arise out of the same transaction and involve the same subject matter, and therefore, by agreement of counsel for both claimants and the Attorney General, the cases are consolidated for the purpose of consideration.

In the declarations on file it is averred that on or about November 11th, A. D. 1930, the claimant, Dr. Gustavus M. Blech, at the special instance and request, and at the direction of Major Leo C. DuBois, Regimental Surgeon of the 202nd Coast Artillery, performed an appendectomy on Private James Wall, an enlisted man and member of the 202nd Coast Artillery, Illinois National Guard, who became so seriously ill while attending a session of the drills, that he had to be immediately removed and operated upon for appendicitis. It is further averred that the charge of the claimant, Dr. Gustavus M. Blech, for his services in performing the operation is $200.00, and that no part thereof has been paid.

The claim of Edgewater Hospital Corporation is for hospital services rendered to said Private James Wall, in connection with the aforementioned operation, for which claimant asks the sum of $96.25.

It appears that the services of Dr. Blech as well as the services of the Edgewater Hospital Corporation, were rendered at the instance and request and at the direction of Major Leo C. DuBois, Regimental Surgeon of said 202nd Coast Artillery, to a member of that Regiment.

The act of the Major being within the apparent scope of his duty and there being no evidence that the charge made is unreasonable, It is Therefore Ordered that the claimant, Dr. Gustavus M. Blech, be and he is hereby awarded the sum of Two Hundred Dollars ($200.00); and that the claimant, Edgewater Hospital Corporation, be and it is hereby awarded the sum of Ninety-six Dollars and Twenty-five Cents ($96.25).