text:
    (No. 1684 —
    Peter McElyea, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 3, 1932.

    J. E. Carr, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

On the 16th day of September, 1922, claimant alleges that he was injured while a prisoner in the Southern Illinois Penitentiary at Menard, Illinois. As a convict he had been working on the above day in a stone quarry outside the prison walls, and was returning to the prison as a passenger on a truck driven by a fellow convict. Upon entering the prison the gate had been opened to admit the truck failed to catch and swung back upon the truck in which claimant was riding on the seat beside the driver. As the gate swung back it caught the claimant’s right foot between the bars and he was jerked from his seat. The flesh of the claimant’s right leg was thereby stripped off above the ankle near the knee joint and the bones of this leg were broken and crushed. He was taken to the prison hospital where the right leg was amputated below the knee.

Claimant remained as a prisoner in said institution until about the first of July, 1930, when he was released on parole.

The above facts are set forth in the declaration. To this declaration the Attorney General has filed a demurrer.

The declaration filed by claimant alleges that he was not able to file his petition within five years from the date of his injury because he was confined as a convict in the said penitentiary and therefore not in a position to enforce his rights.

The law of this State gives unto a prisoner serving a sentence in any penal institution the right to sue or be sued in the courts of this State during the period of such confinement. A convict does' not lose his personal rights because of his imprisonment although he is deprived by law of certain rights of citizenship. Therefore, as he possessed said personal rights the claimant was entitled, able and free to exercise them, even though he was confined in the penitentiary. He could have brought his cause of action any time after September 16, 1922 and should have filed his claim within five years from the date of his injury. Inasmuch as seven years elapsed after his right of action accrued before he filed his claim the statute of limitations applying to actions before this court applies in this case.

Section 10 of the Act creating the Court of Claims provides that every claim against the State cognizable by the court shall be forever barred unless it is filed with the secretary of the court within five years after it first accrues. It appears on the face of the declaration that this claim was not filed within the time required by the statute.

The claimant’s right of action is therefore barred and the demurrer filed by the Attorney G-eneral in behalf of the State of Illinois is sustained, the claim disallowed and the case dismissed.


source: Caselaw Access Project

author: Mr. Justice Eoe

license: Public Domain

text:
    (No. 1780 —
    Charles H. Tibbs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 3, 1932.

   Mr. Justice Eoe

delivered the opinion of the court:

Charles H. Tibbs, the claimant, has been employed at the Peoria State Hospital for more than twenty-nine years as an attendant and as an assistant in farm and garden work at this institution. The classification under which he received his pay was that of a farm laborer.

The Peoria State Hospital is an institution for the care and custody of the insane maintained by the State of Illinois at South Bartonville, Illinois. The institution has some seventy acres of land set aside as a farm and garden upon which vegetables for the entire hospital are raised.. The work in the garden is carried on largely by inmates who have been committed to the said institution who have progressed in their treatment so that they may be trusted out of doors. They are required to work partly for the purpose of such treatment and partly as an economic convenience to the institution. It was the duty of the claimant as assistant gardener to instruct and supervise the inmates assigned to this garden work.

On June 28, 1930, while the claimant was directly and assisting in such garden work on a piece of ground on the right of way of a railroad adjacent to the seventy acre garden tract, he was severely injured by one of the inmates and it is for this injury that he claims damages from the State of Illinois. While claimant was bending over showing one of the inmates how to hoe parsnips, another inmate came up from behind, and struck the client on the head, shoulders and back with an eight and one-half inch metal hoe attached to a five and one-half foot handle. The blows were so violent that claimant was rendered unconscious, the inmate who struck him being a stout man weighing about one hundred fifty to one hundred sixty pounds.

The Attorney General agrees that the statement filed by the claimant herein clearly sets forth the facts as to claimant’s employment and the circumstances of the accident. These facts are admitted. However, there is not unaminity as to the results of the injury.

Claimant asserts that the first stroke of the hoe, a sharp instrument, contacted claimant’s spinal column at the small of the back while he was bending over; that further strokes came in contact with the claimant’s head and shoulders and other parts of the body, thereby prostrating and physically incapacitating claimant. He further asserts that he was removed to the hospital in the said institution and that thereafter he experienced great pain and suffering and is still unable to walk without the aid of a cane and is not able to do manual labor. The claimant also asserts that he is suffering from a permanent and total disability resulting from an injury to the base of the spine and sarcroillese joints caused by traums received when attacked. The respondent admits the injury was serious but contends that the injury has resulted in a partial total disability of approximately fifty per cent.-

The claimant’s employment and the circumstances surrounding the cause of the injury are admitted by the respondent, and the results of the injury have been set forth in the depositions and have been ably discussed by both sides, therefore the important question to be determined by this court is one of liability.

The Attorney General seems inclined to the opinion that the duties appurtenant to an attendant at a State welfare institution, where such attendant or gardner has direct control or supervision of insane inmates, is of such a nature as properly classified as extra-hazardous under the Workmen’s Compensation Act.

This court has consistently held that when this Act is applied to State employees, it shall apply only to such occupations as are clearly classified by Statute as extra-hazardous, and therefore we are constrained to find that this case does not come within and under this Act. The provisions of the Act declare certain enterprises or businesses only to be extra-hazardous and enumerates them. The only paragraph which might be construed as applicable to the present case is Paragraph 7% which refers to an “enterprise in which sharp-edged cutting tools, grinders or implements are used.” But' later on the Act, in Paragraph 8, provides that “nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil * * * or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered.” It is therefore the opinion of this court that the foregoing provision is conclusive that this claimant’s occupation cannot he considered as extra-hazardous and does not come under or within the Workmen’s Compensation Act.

It has been the rule of this court to endeavor to treat the employees of the State of Illinois in the same manner as if they were employed by private individuals. Coons vs. State of Illinois, No. 1175, Vol. 5, page 385, Court of Claims Reports.

Under Section 6, clause 4, of the Act creating the Court of Claims, it provides that this court shall have the power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State as a Sovereign Commonwealth should in equity and good conscience discharge and pay.

In the case of Stoddard, etc. vs. State of Illinois, Nos. 1066-1067, Vol. 6, page 29, Court of Claims Reports, this court says:

“It is clear from this language that the Legislature intended that all claims allowed against the State should be based upon either a legal or equitable right. This question has been before the Court a number of times.”

This court has held that where the injury does not come within the provisions of the Workmen’s Compensation Act, there is no other statute making the State liable for injuries suffered by employees. Hoenig vs. State of Illinois, No. 1705, Vol. 6, page 562, Court of Claims Reports. While this is the strict rule of law applied by this court, the statute contemplated that the Court of Claims, when it deems that the facts and circumstances justify it in so doing may consider the ease from a broader viewpoint than the strict rules of law allow, and consider the case in the light of commonsense and fair dealing as a matter of equity and good conscience. The statute thereby contemplated that situations might arise where employees of the State should not be dealt with under the strict rules of the law and left the application of this principle of commonsense and fair dealing to the wisdom of the court. This court has therefore set a definite standard in this regard whereby litigants before the court may proceed and be guided.

Time after time where there is no legal liability on the part of the State for damages sustained by claimants, as a matter of equity and good conscience awards, have been made under Section 6, Clause 4.

Stanley Stachowick vs. State of Illinois, No. 683, Vol. 5, page 276, Court of Claims Reports;
Brennan Packing Company vs. State of Illinois, No. 735, Vol. 5, page 137, Court of Claims Reports;
Wright vs. State of Illinois, No. 824, Vol. 5, page 161, Court of Claims Reports;
Stack vs. State of Illinois, No. 875, Vol. 5, page 180, Court of Claims Reports;
Carroll vs. State of Illinois, No. 1149, Vol. 5, page 422, Court of Claims Reports;
Clary vs. State of Illinois, No. 1179, Vol. 5, page 386, Court of Claims Reports;
William J. Brennan vs. State of Illinois, No. 1148, Vol. 5, page 420, Court of Claims Reports;
DeSale vs. State of Illinois, No. 1053, Vol. 6, page 172, Court of Claims Reports;
Hanson vs. State of Illinois, No. 1452, Vol. 6, page 275, Court of Claims Reports;
Love vs. State of Illinois, No. 1383, Vol. 6, page 183, Court of Claims Reports;

In considering the evidence in the case before the court, we find that the claimant was required to work with an inmate who had previously attacked and seriously injured another employee at the same institution. The evidence further shows that the care and treatment of the inmates was determined by persons known as supervisors. The inmates detailed to assist claimant in the garden were chosen by these supervisors and the evidence also shows that the inmate who attacked the claimant had been troublesome and more or less of a menace since his former attack upon an employee, but because of his changed appearance he was not recognized by the claimant. Although claimant asserts that he did not recognize his assailant as one known to him as troublesome, he should have been on the alert always when dealing with insane persons and this court believes that all persons who deal with the insane should ever be on their guard and should exercise more than ordinary care for their own safety.

Nevertheless, in equity and good conscience, we believe that a trusted employee, sixty-two years of age, married and supporting a wife, should be reimbursed for this injury inflicted by an insane person and received while the claimant was on duty.

The Court of Claims has jurisdiction to determine whether the claimant is entitled to compensation and if so, the amount he should be allowed. Quoting from the decision in the case of Michael W. Wright vs. State of Illinois, No. 824, Vol. 5, page 161, Court of Claims Reports, the language there used is applicable here:

“There is no doubt in the minds of the Court that the claimant is in a very bad physical condition, and from the evidence we must conclude it was due to the injuries, both external and internal, he received at the time of the accident that caused the condition. He testifies that he is practically totally disabled.”

The evidence shows that claimant has been very kindly treated by the State and has received medical and hospital care free. Therefore, taking into consideration all these facts, we believe the circumstances warrant the finding that in equity and good conscience the claimant be and he is hereby awarded the sum of Two Thousand Dollars ($2,000.00) and we recommend that he be paid this amount.


author: Mr. Justice Thomas

text:
    (No. 1650 —
    Illinois Steel Bridge Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 14, 1932.

    Doyle, Sampson & Giffin, C. Terry Linder, and Alfred F. Newkirk, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On October 25,1926, claimant entered into a contract with the State to construct the superstructure of a steel bridge over the Illinois River near the City of LaSalle. On the 23rd of October the State had contracted with Stresenreuter Bros, to construct the substructure or piers of the same bridge. The contract for the piers provided that they should be completed within 13 months after notice to begin work had been given the contractor and the contract with claimant that its contract should be completed within 20 months after such notice had been given to it. At the time claimant entered into the contract for the erection of the superstructure of the bridge it knew of the contract for the construction of the piers by Stresenreuter Bros.

Claimants’ bid for the superstructure was $204,775.06 and the contract was awarded to it at that price. It was paid for the work, including some additions and extras, $205,935.36. The final estimate was approved on January 28, 1930, and a warrant for the balance then due claimant under the contract for the sum of $20,625.79 was delivered to and accepted by claimant on January 30, 1930.

On September 10, 1930, this suit was filed in which claimant is asking for additional compensation in the sum of $20,089.54. This sum is made up of various items which the declaration alleges “were lost to the claimant herein in and .about the erection of the steel superstructure for said bridge under its contract aforesaid by reason of the failure of said Stresenreuter Bros, to erect and complete the substructure or piers for said bridge within the time limited by its contract and by reason of the failure of said State by and through said department to compel the same to be done.”

In the view we take of the case it is not necessary to dismiss the evidence relative to the various items constituting the claim. The plans and specifications for the work to be performed by claimant are a part of its contract and it is bound by their provisions. One of these provisions is as follows: “The contractor shall assume all liability, financial or otherwise, and shall protect and save harmless the department from any and all damages or claims which may arise because of inconvenience, delay, or loss experienced by him. because of the presence and operations of other contractors on the same project.” This claim is based solely upon the delay of Stresenreuters Bros, in the construction of the piers. Their failure to have the piers in condition to receive the superstructure is the alleged cause of all the damages claimant charges is suffered. This clause of the contract specifically provides that the State shall not be liable for any damages so caused, and is a complete bar to the claimant’s demand.

Another provision of the contract is: “The contractor shall receive and accept the compensation here provided in full payment for furnishing all materials, labor, tools, and equipment; for performing all work contemplated and embraced under the contract; for all loss or damage arising out of the nature of the work or from the action of the elements; for any unforseen difficulties or obstructions which may arise or be encountered during the prosecution of the work until its final acceptance by the Engineer; for all risks of every description connected with the prosecution of the work; also, for all expenses incurred by or in consequence of suspension or discontinuance of said prosecution of the work as herein specified, or for any infringement of patents, trademarks, or copyrights and for completing the work in an acceptable manner according to the plans and specifications.” Then there is this further provision: “The acceptance by the contractor of the last payment as aforesaid shall operate as and shall be a release to the department from all claims or liability under this contract for anything done or furnished or relating to the work under-this contract, or for any act or neglect of said department relating to or connected with this contract.” These provisions of the contract are broad and comprehensive, and they effectually bar claimant from any demand for loss suffered on account of any negligence of agents of the State. If as claimant contends the employees of the Department of Public Works and Buildings negligently failed to require Stresenreuter Bros, to complete the substructure of the bridge within the time provided in their contract and such failure caused the loss for which this suit is filed, these provisions specifically release the State from payment of such loss. It may be the provisions are harsh, but with that we are not concerned. Claimant knew these provisions would be in its contract when it submitted its proposal or bid. When the work was awarded to it claimant executed the contract containing these provisions.

The contract establishes the rights and the liabilities of the parties thereto, and this court has no power to change or modify its terms. “The law permits parties competent to contract and free to. do so, in the exercise of their judgment, to make their own contracts, and the proper function of courts is to enforce such contracts as made, where they do not conflict with any rule of law or good morals or the declared public policy of the State. When the intention of the parties to a contract is ascertained it is the duty of the courts to carry it out, and they cannot properly assume a guardianship over those who have the requisite capacity and are free to make such contracts as they choose.” (Parker-Washington Co. vs. Chicago, 267 Ill. 136.) It is clearly manifest that the purpose of these provisions of the contract was to limit the compensation which claimant should receive to the contract price and to bar it from any claim to extra compensation.

It is not contended that claimant has not been paid the full contract price for the work. But extra compensation is asked because of additional expense alleged to have been incurred on account of the delay in the construction of the piers. Section 9 of Article 4 of the Constitution provides that “the General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contract, after service has been rendered or a contract made” etc. “Extra compensation is a payment or allowance in excess of that which was fixed by law or contract when the services were rendered.” (Porter vs. Loehr, 332 Ill. 353.) The language of this provision is clear and unambiguous and its purpose cannot be misunderstood. (Fergus vs. Brady, 277 Ill. 272.) We have held in a number of cases that it was adopted by the people to protect themselves from the evils likely to arise from claims such as this one, and that it is mandatory and binding upon the legislature and the courts. (Conway vs. State, 6 Ct. Cl. 363; Hall Construction Co. vs. State, 6 Ct. Cl. 326; Anderson, et al vs. State, 6 Ct. Cl. 318; Paschen vs. State, 6 Ct. Cl. 23.)

It follows that the award asked cannot be allowed. The claim is therefore denied and the case dismissed.


author: Per Curiam:

text:
    (No. 1333 —
    United Drug Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1932.

   Per Curiam:

Now comes the respondent by Oscar E. Carlstrom, its Attorney General, and duly moves the court for dismissal, pursuant to an order to show cause entered by this court on the 12th day of January, 1932, wherein the claimant was ordered to show cause on or before September 13, 1932, why the above entitled cause should not be dismissed for want of prosecution. And it appearing to the court that sufficient cause has not been shown by claimant, in accordance with ■ the requirements of said order;

It is therefore, hereby ordered, adjudged and decreed, that said claim be and is hereby dismissed without an award, for want of prosecution, and the case stricken from the docket.

Done in open court during the above regular session this 13th day of September, A. D. 1932.


text:
    (No. 1334 —
    Palm Olive Peet Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1932.

   Per Curiam:

Now comes the respondent by Oscar E. Carlstrom, its Attorney General, and duly moves the court for dismissal, pursuant to an order to show cause entered by this court on the 12th day of January, 1932, wherein the claimant was ordered to show cause on or before September 13, 1932, why the above entitled cause should not be dismissed for want of prosecution. And it appearing to the court that sufficient cause has not been shown by claimant, in accordance with the requirements of said order;

It is therefore, hereby ordered, adjudged and decreed, that said claim be and is hereby dismissed without an award, for want of prosecution, and the case stricken from the docket.

Done in open court during the above regular session this 13th day of September, A. D. 1932.


text:
    (No. 1341 —
    Ward Baking Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1932.

   Per Curiam:

Now comes the respondent by Oscar E. Carlstrom, its Attorney General, and duly moves the court for dismissal, pursuant to an order to show cause entered by this court on the 12th day of January, 1932, wherein the claimant was ordered to show cause on or before September 13, 1932, why the above entitled cause should not be dismissed for want of prosecution. And it appearing to the court that sufficient cause has not been shown by claimant, in accordance with the requirements of said order;

It is therefore, hereby ordered, adjudged and decreed, that said claim be and is hereby dismissed without an award, for want of prosecution, and the case stricken from the docket.

Done in open court during the above regular session this 13th day of September, A. D. 1932.


author: Mr. Justice Bob

text:
    (No. 1747 —
    John L. Leach, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1932.

    Walter E. Lindgren, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, John L. Leach, presents a claim for damages in the amount of Ten Thousand Dollars because of injuries received by him while employed as military training officer at the St. Charles School for Boys on March 9, 1929. It appears that in the evening of this day the daughter of the managing officer, Mr. Otto A. Elliott, was married. The claimant discovered before the departure of the wedding party that the automobile in which the newly married couple were to ride was chained to another car. The wedding event had occasioned the gathering of several cars. As these cars were lining up to leave, the claimant had gone out to call attention to the fact that two cars were chained together, and with this evident intention of unfastening the chain. As he approached the place of departure the wedding party started away. With a flashlight in his hand he attempted to hail the cars. They paused, and he went to the rear car. As he was doing so the chauffeur in the front car started on. The claimant then crossed the highway toward the place where his car was parked. Just after he had crossed he was struck by an automobile going in the opposite direction to the wedding cars. This car was running at a high rate of speed without lights and had swung off the highway to give the cars of the wedding party more room. The claimant was thrown about forty feet by the impact and most severely injured.

Because of the accident the claimant suffered a com-minuted fracture of the left femur; fracture of the right radius ulna; fracture of one of the hones of the right hand; lacerated wound over the nose and another one over the right temple, and a severe nervous shock. These injuries caused the claimant to be confined in various hospitals for a period of eleven months, the amputation of one leg and the stiffening* of the other leg.

There is no doubt that the injuries received by the claimant were exceedingly painful. His resultant condition is deplorably serious.

The evidence established the fact that the injuries were received while he was an employee of the State of Illinois in the regular performance of his duties. In this regard the testimony of the managing officer was as follows: “I had given Mr. Leach and the other men instructions in the event of any disturbance or trouble in or about the institution, that they were to take care of the trouble or disturbance as soon as they learned of it. These were specific instructions given by me. This same rule had prevailed at the institution for many years prior to this time. If any of these special men did not take care of trouble or disturbance such as was caused on March 9th, they would have been subjected to being fired or suspended for neglect of duty. It would be impossible to conduct the affairs of the institution without such a condition prevailing. ’ ’

Although it is conceded by the attorney for the claimant that there is no legal liability, the claim is urged upon the ground of social justice, and that under the doctrine of equity and good conscience an award should be made in this case. It is true that under certain circumstances this court has held that such an award might be made when the claimant was acting clearly in the course of his employment and within the scope of his duties as an employee of the State. In this case the court finds that the claimant was so acting.

Since the accident claimant has received a salary of Eighteen Hundred Dollars per year, making a total of Fifty-four Hundred Dollars ($5,400.00) for the past three years. Taking this fact into consideration and allowing* hospital and doctor’s bills, compensation for the loss of one leg and sixty per cent loss of the other leg and temporary disability, the claimant would be entitled to receive Thirty-eight Hundred Dollars ($3,800.00).

While we do not concede any legal liability on the part of the State of Illinois, we believe on the grounds of fairness, equity and good conscience, under all the circumstances, that the claimant should be reimbursed for the losses sustained and this court therefore recommends that payment be allowed in the sum of Thirty-eight Hundred Dollars ($3,800.00) in complete and final settlement of all claims and demands occasioned by said injuries.


text:
    (No. 1759 —

      Opinion filed September 14, 1932.

    Lundeen, Hooton, Roozen & Schaeffer, Claimant, vs. State of Illinois, Respondent.
   Per Curiam:

This cause coming on to be heard upon the stipulation and agreement by and between the claimant, Lundeen, Hooton, Roozen & Schaeffer, co-partnership by A. N. Schaeffer, a co-partner, and the respondent by Oscar E. Carlstrom, Attorney General, that the above entitled claim be dismissed for the reason that said cause of action has been satisfied and the court being fully advised in the premises and there being no reason why the case should not lie dismissed, it is therefore considered by the court that the cause be and the same hereby dismissed.


author: Mr. Justice Roe

text:
    (No. 1467 —
    William Hirtman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

      Rehearing denied January 10, 1933.

    Noah Gullett and Habold Trapp, for claimant.
    Oscab E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

The claimant, William Hirtman, was employed as a special policeman or watchman at the Illinois State Fair Grounds in Springfield. He alleges that he was injured while in the peri formance of his duties on the night of July 20, 1927.

In making his rounds on what was called the West Beat about nine o’clock at night he noticed a fire near the grandstand and a large wooden toilet which was about three blocks away from where the claimant was at the time. He started to run toward the fire and as he did so he ran into a slay iron which was part of the equipment used by a wrecking company then employed in wrecking the old grandstand. His left leg struck the stay iron on the front or interior side of the leg between the knee and ankle. The wounded portion was out about four inches in length and about a quarter of an inch wide and bled after the injury.

At the time of the accident the claimant was 63 years of age.

From the evidence submitted there is no doubt that the claimant was injured in the manner claimed. However, there is grave doubt as to the results of the injury. There does not seem to be any temporary total disability nor any permanent partial disability resulting from this injury.

It is clear that the accident does not come within the provisions of the Workmen’s Compensation Act because the claimant was not engaged in one of the extra-hazardous occupations enumerated in Section 3 of this Act. As the injury does not come within the provisions of the Workmen’s Compensation Act and there is no other statute making the State liable for injuries received by employees; there is not any legal liability on the part of the Stale to pay the claimant compensation for his injuries.

The claim is therefore denied and the cause dismissed.


text:
    (No. 1620 —
    Grace Bartle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    Maurice B. Johnston, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This action is for $10,000.00 damages claimant alleges she sustained on account of injuries occasioned by a fall on the stairway of the school building in School District No. 32, of Clinton County. On May 25, 1930, the baccalaureate sermon for the graduating class of the school was delivered in the school building. Claimant attended those services and while leaving the building “tripped on a loose and defective matting on one of the steps of the main stairway leading toward the main exit of the building and fell headlong down a flight of seven steps into the exit doors.” Her right arm was broken at the wrist and her arms and legs and other portions of her body were bruised and injured by the fall. The foregoing facts are set forth in the declaration. It also charges the board of education of the school district “knew or by the exercise of reasonable diligence should have known” the “step was in a dangerous and unsafe condition” and negligently failed to properly repair it and put it in a safe condition.

The State has questioned the sufficiency of the declaration and the jurisdiction of this court by its plea.

The school building was under the supervision and control of the board of education of the school district. But the district is the mere agency of the State created to perform such duties as the State deems necessary to maintain therein a free school. It follows, therefore, that neither the district nor the State is liable for the negligence of the board of education unless such liability is expressly provided by some statute. (Lindstrom vs. City of Chicago, 331 Ill. 144; Peretz vs. State, 6 Ct. Cl. 356.) As there is no statute making the State liable for injuries caused by the negligent acts of school boards claimant is not entitled to an award. The claim is denied and the case dismissed.


text:
    (No. 1621 —
    Cecil T. Bartle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    Maurice B. Johnston, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This is an action for $5,000.00 for damages claimant alleges he sustained on account of injuries to his wife caused by a fall on the stairway of the school building in School District No. 32 of Clinton County.

The facts upon which this claim is based are the same as that of Grace Bartle vs. The State, No. 1620, and the opinion in that case governs this. The claim is denied and the case dismissed.


text:
    (No. 1668 —
    Delmar C. Blake, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    Robert M. Niven, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Eoe

delivered the opinion of the court:

The claimant, Delmar C. Blake, was employed as a carpenter with the Congress Construction Company in the construction of the Deep Water Way of the State of Illinois between Morris and Joliet. On October 12th, 1929, while he was so employed the scaffolding on which he was working broke, and he fell or jumped about fourteen feet landing on concrete. The heel bones of both feet were crushed and he was taken to a hospital at Morris where he remained three weeks. Thereafter he was obliged to use a wheelchair until about January 1st, 1930. For this injury the claim for damages is made. It is a claim filed under the provisions of the Workmen’s Compensation Act of 1911, for recovery of damages due to personal injuries sustained by claimant while an employee of the respondent.

Claimant was employed by the Congress Construction Company, with the consent and approval of the Division of Illinois Waterways, Department of Purchases and Construction and worked as a carpenter on the Dresden Island Project No. 3, Illinois Waterways. Claimant is considered an employee of the State because construction work on this project proceeded under the provisions of a contract of employment entered into December 4, 1928, between the Department of Purchases and Construction and the Congress Construction Company, known as Contract No. 3 or Dresden Island Lock and Dam contract.

This contract sets forth an agreement whereby the said company was to act as superintendent of labor and manager of construction in behalf of the respondent through its Department of Purchases and Construction in the completion of certain construction work on the Dresden Island Lock and Dam, near Morris, Illinois.

This contract was entered into under the statutory authority granted by virtue of Section 12 of “An Act in relation to the construction, operation and maintenance of deep waterway, etc.,” approved June 17, 1919 and commonly called the Waterway Act. (Par. 20, Chap. 19, Smith-Hurd’s Illinois Revised Statutes, 1931.)

Claimant worked at his occupation as a carpenter for about twenty years and at the time of the accident was forty-five years of age. He was married and living with his family consisting of his wife, a daughter nineteen years, old and a son seventeen years of age when the accident occurred. His wife has subsequently died.

There is no dispute as to the facts relating to the injury. Claimant suffered broken heel bones in both feet, and as a consequence of which he suffered a temporary total disability from October 12, 1929 to approximately April 1, 1930. This is a period of approximately twenty-six weeks or six and one-half months.

This claim is filed under the provisions of the Workmen’s Compensation Act by virtue of Section 25 of the Waterway Act of 1919. (Par. 103, Chap. 19, Smith-Hurd’s Revised Statutes, 1931.)

Claimant is entitled to the maximum of $15.00 per week by virtue of Section 8(e) of the Act. Por a period of twenty-six weeks’ disability this would total the sum of $390.00 as temporary total disability.

At the time of the accident claimant has no minor children under the age of sixteen years and is, therefore, not entitled to any additional compensation by virtue of minor children. As to permanent partial disability of fifteen per cent in the loss of the use of right foot, under Section 8(e)-14) claimant would be entitled to fifteen per cent of $15.00 per week for one hundred thirty-five weeks or a total of $303.75.

In view of all the evidence we award the claimant the sum of $693.75 and recommend that the same be paid.


text:
    (No. 1692 —
    V. B. Marquis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    V. B. Mabquis, M. D., pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

The claimant, V. B. Marquis, presents his claim in the amount of sixty-five dollars and fifty cents ($65.50) for medical services rendered to the Illinois Normal University of Normal, Illinois.

In the month of April, 1929, an epidemic of smallpox broke out in the communities of Bloomington and Normal, Illinois, and therefore it was deemed necessary by the President of the Illinois State Normal University at Normal to have all the students vaccinated. The University Physician was authorized by the said University President to do the work and to employ whatever help necessary. ■ V. B. Marquis a practicing physician and surgeon was engaged to help in this work and on April 26, 1929, vaccinated 150 students and on May 6,1929, he vaccinated 112 students. Due to the fact that claimant’s bill for these services was not presented to or received by the proper State authorities prior to September 30, 1929, it was impossible to make the payment because of the lapse of the biennial appropriation.

There is no controversy as to the services rendered or value of the same. The President of the Illinois State Normal University says in his report: “It seems to me that the account should be approved.”

Therefore, inasmuch as he has presented his claim to this court within the proper time fixed by the Statute of Limitations the court recommends that the claimant be allowed the sum of $65.50.


text:
    (No. 1714 —
    Fred A. Sapp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    Follett & Follett, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent. . °
   Mr. Justice Roe

delivered the opinion of the court:

This is a claim- for damages alleged to have been caused by the negligence of a driver of a truck owned and operated by the State Highway Department of the State of Illinois at Ottawa.

The material facts are that on March 26, 1930 at approximately 10:30 a. m. one Walter Phau, an employee of the Division of Highways, Department of Public Works and Buildings of the State of Illinois was backing a Reo truck A-14 equipped with a V-snow plow from a highway garage located in the City of Ottawa, Illinois. That the said State employee backed the truck from an entrance to the garage down an alley connecting with Clinton Street in said city. At the intersection of the alley with said street there was a building owned by claimant herein, Fred A. Sapp, in the front of which were large plate glass windows. That on this occasion there was a car parked in the alley near the intersection with Clinton Street and on the opposite side of the alley from the Sapp building. The width of the alley was eighteen feet measured from building to building near the point of its intersection with Clinton Street.

Further, that in backing said truck down the alley it became necessary for the employee, Walter Phau, to pass between the parked automobile and the Sapp building. The truck driver was closely watching the parked automobile so as not to strike it with his truck when the left corner of the V-snow plow came in contact with the plate glass window, near the front of the Sapp building, breaking it. That said plate glass window was five feet, one and one-half inches by seven feet, seven and one-half inches in size. That at the time of the accident the surface of the alley and street was slippery due to snow and ice. The cost of replacing said window was Forty-four and 50/100 Dollars, as shown by the itemized statement of such expenditure. Claimant, at the time, carried no plate-glass insurance to cover said loss.

It has been stated many times in the decisions handed down by this court that the maintenance of a State highway is a governmental function which the State exercises through its officers and employees. If in the discharge of his duties an employee of the State is negligent and such negligence causes damage to property, as in this case, the negligence is an act of the employee only and cannot be regarded as the act of the State.

Therefore, no award will be made for damages caused by the alleged negligence of an employee of the State, unless there is a statute expressly making the State so liable.

The claimant’s right of action in this case is against the driver of the truck and not against the State.

The claim is, therefore, denied and the cause dismissed.


text:
    (No. 1779 —
    W. D. Phipps, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    Charles C. Lee, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant was employed by the Department of Works and Buildings, Division of Highways, in the repair of State Route No. 16. On September 17, 1930, while engaged with other employees in carrying heavy pieces of concrete off the highway he became very ill and was taken to a hospital. There it was discovered that he was suffering from a traumatic abscess in the abdominal cavity. He was operated upon September 20th and remained in the hospital until the first of November following when he was taken to his home. After going home he was- confined to his room for about thirty days, and says he was not able to work until about the first of July.

His average weekly earnings for the year previous to Ms injury was $19.23, and he contends that he was totally incapacitated for work for 38 weeks. His medical bill was $172.25 and his hospital bill $261.50. These charges it is admitted are reasonable and have not been paid by the State. It is also conceded that his injury arose out of and in the course of his employment.

Section 3 of the Workmen’s Compensation Act provides that the provisions of the Act shall apply automatically to the State when the State is engaged in business declared by the Act to be extra hazardous; and Paragraph 1 of Section 3 declares that the erection, maintaining, removing, remodeling, altering or demolishing of any structure to be extra hazardous. We have held in a number of cases that the construction or repair of a State paved highway is a structure within the meaning of tMs Act. (Van Hoorbeke vs. State, 5 Ct. Cl. 337; Connole vs. State, 6 Ct. Cl. 477.)

Section 8(a) of the Act provides that the employer shall provide the necessary medical, hospital and surgical services reasonably -required to cure or relieve the injury of the employee. Section 8(b) provides that the employee shall be paid one-half of his weekly earnings for the period he is totally incapacitated, which was 38 weeks. Upon that basis his compensation is the sum of $365.18. He is also entitled to be paid his medical and hospital bills which added to his compensation makes the sum of $798.93.

Claimant insists that he is also entitled to be paid $7.50 per week for six weeks on account of partial incapacity. There is no evidence in the record upon which that claim can be sustained.

It is therefore ordered that claimant be and he is hereby awarded the sum of $798.93.


text:
    (No. 1789 —
    Gottlieb Kayhs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

   Mr. Justice Bob

delivered the opinion of the court:

The claimant, G-ottlieb Kayhs, was seriously injured by an employee of the State of Illinois on May 14, 1931, and damages in the amount of Twenty-five Thousand Dollars is claimed therefore.

On the above day at about five o’clock in the afternoon the claimant was walking south on a bridge across the Sangamon Biver and a portion of Lake Decatur. This bridge forms a part of State Bond Issue Boute No. 2 with an eighteen foot roadway in the center, flanked on both sides by a raised sidewalk four feet in width and on the outside border of the bridge is an iron protection railing approximately four feet high.

While the claimant was thus crossing the bridge a State owned motor truck used by the Division of Highways and driven by Wallace Dudley, a State employee, crossed the bridge in the opposite direction. The said Wallace Dudley had been dragging- the earth shoulders on the road south of the bridge. In order to accomplish this work it was necessary to fasten a wooden timber or pole crosswise of the truck to which was attached the drag. Mr. Dudley having stopped dragging had detached the drag from the pole but neglected to remove the pole which projected about four feet from the side of the truck. As he proceeded across the bridge the pole which evidently stuck out across the sidewalk hit the claimant and dragged him about twelve feet.

The claimant suffered great bodily injury, necessitating the amputation of his left leg and considerable medical attention and hospitalization. He is sixty years of age and the father of two minor children. There is no doubt that the claimant sustained such grave injuries that he will be unable to follow his occupation as a coal miner, being crippled for life by the loss of his left leg. In addition to the leg which was amputated, the right leg was severely injured. His nose which was fractured has not healed properly, as is disclosed by the medical testimony in the record.

The attorneys for the claimant have frankly said: “We concede that under the law, the State of Illinois is not liable for the torts of its agents, employees or servants, under the rule of respondent superior. This is admitted to be one of the attributes of the Sovereignty of the State of Illinois, but this court has been created as a tribunal to pass- upon claims ex contractu or ex delicto, which the State as a Sovereign Commonwealth, in equity and good conscience should pay and discharge. It it under this statutory provision that this claim is presented.” It is the well settled rule of law that the State is not liable for damages or injuries caused by the carelessness or negligence of its servants, employees, agents or officers. This rule has been so frequently set forth by this court that it is not necessary to again recite the many cases so holding.

However, it is also the duty of this court to consider the principle of equity as well as the rule of law. There have been some exceptional and isolated cases where the injuries have been so grave and the conditions surrounding the claimant so deplorable that under the principle of equity exceptions have been made very infrequently and only upon the broad theory that when all the facts in the case are considered together, there is sufficient justification for the court to conclude that the claim should be classified as an exception to the general rule above stated. In this case the counsel for respondent have not filed a demurrer but have on the other hand suggested that this case may be an exception to the general rule. Counsel says :

“In order to bring a claimant within this exception, the personal injuries suffered must be grave and permanent in nature with serious and grievous consequences resulting; the injuries must be directly attributable to the gross and wanton negligence of an agent of the respondent, and the claimant must be free from all contributory negligence in reference to the injury. (Hansen vs. State, 6 C. C. R. 548; Rickenberg vs. State, 6 C. C. R. 286; Parker vs. State, 6 C. C. R. 71 (75). The Court has frequently seen fit to apply this exception to the general rule, paraphrasing by granting an award in the interest of social justice and equity, or, as sometimes stated, applying the doctrine of equity and good conscience. Regardless of the terms used to designate this equitable and humanitarian doctrine when applied, the general application of this principle amounts to a well recognized exception to the general rule, although its application is dependent entirely upon the individual facts presented by each case. In addition to the Hansen, Rickenberg and Parker cases, supra, the exception has been applied by the Court in the following eases: (McGhee vs. State, 4 C. C. R. 144; Engelman vs. State, 5 C. C. R. 242; Stachowiak vs. State, 5 C. C. R. 275; Williams vs. State, 5 C. C. R. 368.”

In the report of the Division of Highways, Department of Public Works and Buildings submitted September 11, 1931, the Engineer of Maintenance says: “I am convinced that

there was more or less carelessness on the part of the driver of the State truck and I believe that Mr. Kayhs is entitled to a reasonable reimbursement for damages sustained on account of the accident.”

While there is no legal liability on the part of the State to pay claimant compensation for his injuries the injuries in this case are “directly attributable to the gross and wanton negligence of an agent of the respondent” and are serious and distressing and are not the result of contributory negligence. We believe that upon the theory of equity and good conscience an exception should be made in this case. However, we also believe that when an exception is so made that the compensation should be adequate only to and commensurate with humanitarian needs to recompense the claimant for medical attention, hospitalization and other necessairy expense caused by the accident. This court wishes to be fair to the claimant and consider his case from a reasonable and equitable viewpoint, yet it must also be mindful that the funds of the State must be safeguarded and the interests and rights of all the People of the State preserved.

The Court of Claims has jurisdiction to determine whether the claimant shall have such compensation and it also has the right to determine the amount of compensation which should be allowed.

In view of all the circumstances under which the injuries were received and also because of the recommendations made by the Division of Highways we allow the claimant, in full settlement of all claims arising from this accident, the sum of Twenty-five Hundred Dollars and recommend that the same be paid.


text:
    (No. 1870 —
    Winnebago County Forest Preserve District, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    T. G. Lindquist, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $244.92 for damages caused by destruction of trees of claimant by members of the Illinois National Guard. T. J. Lindquist is County Forester of Winnebago County and has the control and supervision of the Winnebago County Forest Preserve District. In August, 1930, Mr. Lindquist granted the National Guard permission to use a portion of the Forest Preserve District for an overnight camp, by the 122nd Field Artillery, and it was while they were camped there that the trees were destroyed.

The National Guard is a part of the State government, its officers and members being agents of the State when in the lawful discharge of their duties. It does not follow, however, that the State is liable for all damages caused by them. The State is never liable for the torts of its agents unless there is a statute making it so liable. This rule is so universal and has been so often announced by this and other courts that a citation of authorities is deemed unnecessary. There is no statute in this State making the State responsible for the wrongful destruction of property by members of the National Guard. Claimant, however, is not without remedy for any loss it may have sustained by the destruction of. the trees. It was the duty of the officers in charge of the Field Artillery to see that the horses and tents of the men under their command were so placed and supervised that claimant’s trees would not be injured, and if they failed to do so such failure was actionable negligence. When officers of the National Guard by wrongful and negligent acts cause injury to the person or property of others they are answerable to the injured party in the courts for the loss sustained by such acts. Such acts are the acts of the officers and not the State. (Joos vs. Ill. National Guard, 257 Ill. 138; Haye vs. State, 5 Ct. Cl. 358; Kershaw vs. State, 6 Ct. Cl. 387.) There being-no statute making- the State liable for claims of the character of this one, and the State never being liable for the wrongful conduct of its officers and agents this court is powerless to make an award for the damages claimant alleges it suffered. The claim is therefore denied -and the case disallowed.


text:
    (No. 1969 —
    H. Channon Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    H. Channon Company, by its Secretary, E. C. Nelson.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

This claim is filed by the claimant company, pro se, for the sale price of a' thirty-inch saw blade in the sum of $20.16. This saw blade was part of a shipment of goods ordered by the Department of Purchases and Construction on June 16, 1929, order number C-52457, to be used in State construction work on the Dresden Island Lock and Dam Project, Illinois Waterway at Devine, Illinois. The shipment was delivered but through inadvertent error the cost of the saw blade was billed to the respondent at $30.16. Recognizing this error the respondent paid for the goods so ordered, less the cost of the saw blade, the order being* billed at $595.22 and the respondent paying thereon the sum of $565.06 on August 30, 1929. A separate billing- was then requested from claimant, covering the disputed item of cost of saw blade and this corrected statement, in the amount of $20.16, was received by the respondent on to-wit: September 17, 1929. However, the Department of Purchases and Construction failed to approve and place this corrected statement in line for payment until after the biennial appropriation from which the claim could have been paid had lapsed into the general fund on to-wit: September 30, 1929.

There can, therefore, be no question but what the authority of the Department of Purchases and Construction was properly exercised in making this purchase and that the bill could have been properly paid by such department had it not been for the lapsing of the appropriation as aforesaid.

For the reasons above set forth, the court recommends that the claimant be allowed the sum of $20.16.


text:
    (No. 1987 —
    Raymond DeSutter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 14, 1932.

    F. W. Bennick, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

On March 21, 1930, claimant’s herd of cattle was tested for tuberculosis by one of the veterinarians of the Department of Agriculture. Four of his milk cows were found to be infected with that disease, and he was ordered to have them destroyed within 30 days as the law provides. The cows were appraised, 3 of them at $110.00 each and one at $115.00, the total appraisement being $445.00. On April 22nd claimant shipped the cattle to Chicago for sale and slaughter and they were sold for the total sum of $274.82, being $170.18 less than their appraised value, and were slaughtered on April 24th. Claimant asks for an award against the State for two-thirds of the difference between the appraisement of the cattle and what they sold for.

Section 8 of the Bovine Tuberculosis Eradication Act provides: “No compensation shall be paid to any person for an animal condemned for tuberculosis if the owner retains the animal for more than thirty days after it has been adjudged infected with tuberculosis.”

This statute is mandatory and its meaning is so plain it cannot be misunderstood. Claimant was ordered to have the infected cows destroyed within 30 days and neglected to do so. He cannot, therefore, be granted an award as the court has no power to allow claims in disregard of the plain provisions of the law. (Paddock vs. State, 6 Ct. Cl. 496; Ritz vs. State, 6 Ct. Cl. 526.) The claim is denied and the case dismissed.


text:
    (No. 1869 —
    E. B. Kaiser, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 25, 1932.

    C. W. Middlekaue, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Roe

delivered the opinion of the court:

The claimant, E. B. Kaiser, presents a claim for $12,-062.85. E. B. Kaiser is a trade name, the business being owned by Albert C. Kaiser and Edward W. Kaiser, co-partners doing business under the firm name of E. B. Kaiser. On November 7th, 1929, the complainants, who are plumbing contractors entered into a contract with the State of Illinois, through the Department of Purchases and Construction of which Mr. Henry H. Kohn is Director, to furnish material, labor and supervision in installing the plumbing in ten new buildings at the Lincoln State School and Colony, Lincoln, Illinois. When the contract was entered into, co-partnership included Edmund B. Kaiser who has since died.

The contract provides that the claimants, E. B. Kaiser, were to install the various items of plumbing in the ten buildings as the work of the general contractor, the J. B. French Company, should progress, Article 2 of the contract specifies that E. B. Kaiser shall substantially complete their contract by April 22,1930.

It appears from the evidence submitted that it is the established custom of the building business that the plumbing contractors install the plumbing work at such times as the general contractor makes it. possible, by his work, to have the plumbing installed, and that this plumbing cannot be installed until the general contractor’s work has progressed to the point where such installation is possible.

The general contractor, the testimony shows, did not proceed with its work according to the contract and progress schedule, and therefore the claimants were delayed in completing their contract at the time specified. It seems clear from the evidence in the case that the claimants were constantly on the ground ready and willing to complete their contract but were delayed and hindered from so doing by the delays in the construction of the said ten buildings caused by the J. B. French Company. Inasmuch as the claimants had no contract, agreement or understanding of any kind with the J. B. French Company, and were not subcontractors under the direction of the general contractor, but that a separate contract directly with the State of Illinois, and the contract does not recite that the State shall not be holden for damages for delay, the State is liable to the Claimants for the damage actually sustained by them, and they should be reimbursed for added expenditures caused by the delay.

The claimants on July 23, 1930, advised the Department of Purchases and Construction that the delays of the general contractor had already cost the claimants $8,278.90. After some correspondence, the Division of Architecture and Engineering advised that the claim would have to be referred to this court. Thereafter, claimants aver on account of delays caused by the J. B. French Company, the claimants could not complete their contract until November 19, 1930, which was six months and twenty-seven days later than the time schedule agreed upon by the claimants and respondent. Upon the completion of their work, the claimants’ total damage for extra expense caused by the delays was fixed at $12,062.85. This amount the Division of Architecture and Engineering-says is exaggerated and should be reduced.

Therefore, although the respondent concedes that a legal liability does exist, by stating that the amount should be reduced yet it contends that the claim of $12,062.85 is excessive and not fully proven by the evidence. To support this contention reports from the Division of Architecture and Engineering set forth the negotiations for settlement and its recommendations in regard thereto. In these reports it appears that as to most of the items of damage there is no dispute.

There is no doubt that the claimant, E. B. Kaiser did submit its claim as set forth in the above reports. Furthermore, it is clear that E. B. Kaiser is the only one of the various contractors who filed a claim and therefore is the only contractor entitled to any consideration for damage due to the delays of the General Contractor.

No objection is made to an extra six month’s salary paid to the field superintendent amounting to $2,210.00 and no objection is made to his expense of room and board and railroad fare expended during that time amounting to $447.36. However, respondent contends that the item of overhead during the period figured at $7,031.00 is unreasonable and excessive. The original report of the Division of Architecture and Engineering says that the sum of $3,131.97, which is set up therein is a reasonable allowance for overhead based upon the contract work to be done after June 4, 1930, amounting to $36,725.15, balance of the work on contract. This amount is undisputed as balance of work to be done. The Attorney General recommends that an award be made in the sum of $7,789.33. The court has carefully considered the evidence and has given cognizance to the cases and arguments submitted.

The Court of Claims is given jurisdiction in Paragraph' 4 of Section 6 of the statute “to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should in equity and good conscience discharge and pay.” It is manifest from this provision of the statute that the legislature intended to give this court jurisdiction in such claims as herein presented and not only jurisdiction to determine whether the claimants are entitled to compensation, but also the amount they should be allowed.

Taking all the facts and circumstances into consideration with the reports from the Division of Architecture and Engineering and the recommendation of the Attorney General, we are of the opinion that the claimant is entitled to an award in the total sum of, Seven Thousand Seven Hundred Eighty-nine and Thirty-three One Hundredths ($7,789.33) Dollars, and this court recommends that payment in that sum be allowed and made.


text:
    (Nos. 540-552-560-566-567-901 —
    The New York Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

   Per Curiam:

This cause coming on to be heard upon motion of claimant filed on November 23, 1932, to dismiss the above entitled claims, and the court being fully advised in the premises and it appearing there is no reason why said case should not be dismissed, it is, therefore, considered by the court that said cases be and the same is hereby dismissed upon motion of claimants.


text:
    (No. 553 —
    Lake Erie & Western Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

   Per Curiam:

The cause coming on to be heard upon motion of claimant filed on June 12, 1932, to dismiss the above entitled claim, and the court being fully advised in the premises, and it appearing there is no reason why said case should not be dismissed, it is, therefore, considered by the court that said case be and the same is hereby dismissed upon motion of claimant.


text:
    (No. 1132 —
    George Katanich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

   Per Curiam:

This cause coining on to be heard upon motion of claimant to reopen said cause, and for leave to amend his declaration and increase the ad damnum, which motion was filed on May 12, 1931, and it appearing to the court that at an adjourned session of the January term held on May 12, 1927, an award of $2,500.00 was made, the said amount being in full of demand in the claim filed by claimant, and it further appearing that said motion was not filed for more than two years after the filing of the opinion making said award, it is, therefore, considered by the court that said motion be and the same is hereby denied.


text:
    (No. 1528 —
    William L. Lindsay, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

    Walter. W. Williams and Carter Harrison, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Bob

delivered the opinion of the court:

On October 13, 1927, William L. Lindsay, the claimant, received a personal injury while a student of Mining Engineering at the University of Illinois, for which he seeks damages.

The University of Ulinois is a State institution, organized under the laws of Illinois in 1887, and is situated in the cities of Urbana and Champaign.

It is claimed that on the day of the injury, David Mitchell an instructor and agent of the State, was conducting a laboratory class in Mining Engineering in Boom 101 of the Mining Engineering Laboratory at the said University. William L. Lindsay, who was a student in the above laboratory class, known as Mining 20, was observing* an experiment in the detection and ventilation of mine gases, which was being made by his instructor, David Mitchell. This experiment was performed by introducing gas into a small wooden box or container, with a glass observation window in the front. A .safety lamp surrounded by a wire gauge specially prepared, was placed in the wooden box which was about two feet high and one foot in length and width. The principle of the experiment was to detect the presence of gas in the above wooden box or chamber, by the use of this safety lamp. The lamp was lighted and protected by the wire gauge, the presence of gas was denoted by a change of color in the flame as the gas was let into the box through holes or nipples. The change of color was indicated by the gas cap that formed on the top of the flame. To observe this gas cup rise on the flame, it was necessary to stand very close to the box and look through the glass front. The object of this particular experiment was to determine the presence of methane gas, known as chemical formula C H 4.

On this occasion acetylene gas and a Koehler lamp were used for the experiment. A fellow student, George Young, put the lamp into the box which was filled with acetylene gas of an unknown quantity, while the claimant, with his instructor, was standing in front of the box, peering through the glass to observe the cap on the flame. As they were observing this experiment, suddenly an explosion occurred which shattered the glass observation window and pieces of flying* glass cut both the instructor and the claimant about the face, and a piece of the glass was hurled into the left eye of claimant.

Because of this accident medical and surgical treatments were necessary and the claimant expended therefore the sum of $269.25.

As the result of the injury and subsequent operation the iris of the claimant’s left eye has lost much of its contractile strength with a permanent loss of about fifty per cent of the eye sight, and a permanent disfigurement of the eye.

For this injury the claimant asks One Thousand Dollars in damages, upon the grounds that the State is liable because experiment box was not properly constructed; also because acetylene instead of methane gas was used, and further because the instructor was grossly and wantonly negligent for conducting his classes with appliances which should have been free from defects and safe for experimentations.

Counsel for the respondent contend, and counsel for the claimant admit that the doctrine of respondent superior does not apply to the State and the State is not liable for the misfeasance, wrongs, and negligence of its employees, agents or servants. It follows, therefore, that in this case there is not any legal liability on the part of the State of Illinois.

It is contended, however, by the claimant that even if there is no legal liability on the part of the State, it should be required to pay as an act of equity and social justice. We agree with claimant’s counsel that “any claimant or individual who considered himself aggrieved might bring a suit in law or in equity, as the case might necessitate. ’ ’

Paragraph 4 of Section 6 of the Act creating the Court of Claims supports this contention. The language of paragraph 4 is as follows:

“To hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth should in equity and good conscience discharge and pay."

The question, therefore, for this court to consider in the present claim is one of equity and good conscience. In this regard the rule has been repeatedly announced and followed by this court that the State should pay claims for damages in which negligence of a State, agent or employee is alleged, only when such agent or employee has been grossly careless and wantonly negligent. Consequently the main matter for discussion and decision is one of gross and wanton negligence. Was the instructor in this case grossly careless and wantonly negligent for making an experiment with a box or container which did not have a “false or safety back,” and in using for this experiment acetylene instead of methane gas?

The record shows that the acetylene gas was much easier to make, but its use was much more dangerous than methane gas.

Furthermore, if a card-board back such as is used by the Bureau of Mines, had been on the back of the box or container, the resistance to the gas would have been less than the glass front when the explosion took place, and the glass would not have broken because, the gas would have burst out through the false back.

It is often difficult to draw the line of distinction between ordinary negligence and gross or wanton negligence. To determine the negligence in most instances, it is necessary to study carefully all the facts presented by the evidence. An investigation of the record herein would indicate that the instructor, David Mitchell, was not wantonly nor grossly negligent. The evidence shown that he also was hit in the face by the shattered glass. It is reasonable to conclude that he would not have subjected himself as well as his students, to possible injury by using either a box or a gas that he knew was extremely dangerous. It is always easy to say after an accident occurs that if something else had been done the accident could have been avoided. In this matter, it would seem that the instructor conducted the experiment with reasonable care and in accordance with usual custom of making this particular experiment at the University of Illinois.

The case of Archie L. Johnson vs. State of Illinois, Court of Claims Report, Vol. 5, page 178, is cited by counsel for claimant to sustain their contention that this court therein made a decision and thereby set a precedent in a very similar case.

In the above case set forth an act of an agent or employee of the State was not involved in the decision and the question of gross or wanton negligence was not raised. The student himself was operating a saw and not an agent or employee of the State. That is the distinction between this case and the one cited above.

From all the facts and circumstances we have concluded that the claimant’s case cannot be considered to come under the rule of equity and good conscience. It is, therefore, recommended that the claim be disallowed and it is herewith denied and dismissed by this court.


text:
    (No. 1647 —
    K. & S. Manufacturing Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

    Watkins, Ten Hoor & Gilbert, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for the State.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant’s demand is for $36,985.78 damages it alleges it suffered because the Department of Public Welfare failed to comply with the provisions of a contract made with claimant on June 5, 1929. On August 19, 1929, the Attorney General advised the Director of the Department of Public Welfare that the contract was void and the department thereupon refused to proceed further with the matter. The contract is in evidence. The first party is the Department of Public Welfare and the second party is claimant. The contract contains the following provisions:

“It is hereby agreed and understood the party of the second part contracts with the party of the first part for the output of the furniture plant located at Stateville, Illinois, and the product to be manufactured in a line of cribs, bassinets and novelty furniture, the same as is now being manufactured by the party of the second part in their own plant. The party of the second party hereby agreed to pay the party of the first part cost of material and labor used in the manufacture of the above mentioned furniture, the labor to figure on a basis of fifteen cents per hour per man, employed six hours or more per day, and in addition to the above are to pay 10 per cent on the items of labor and material, the intent being the State to make a 10 per cent profit, plus cost of labor and material on prices agreed upon, provided, that in the event the party of the second part should furnish the materials used in any particular production, no charge shall be made by the State for materials in such production.” The contract further provides that claimant will accept and pay for at least $760,000.00 worth of merchandise manufactured under its terms, and as much more as the State can furnish up to $1,000,000.00, for each twelve months of the life of the contract, and recites: “Party of the second part will furnish and be responsible for a general superintendent of the plant, who is to have full supervision and his salary is to be paid by the party of the second part. If it should be found necessary, for legal reasons, to have him appear as a State employee the State’s payment will be purely nominal.” There are other provisions in the contract but in our view these are the most important and the ones necessary to be considered in arriving at a proper decision of the questions involved in the case.

The State contends the contract is void because it contravenes the provisions of the Constitution and the statute regulating the employment of prisoners. . Claimant insists that it is not contrary to any constitutional or statutory provision and that the State is liable to pay it all damages it suffered on account of the failure of the Department of Public Welfare to comply with its provisions.

The fourth amendment to the Constitution became effective November 22, 1886, and is as follows: “Hereafter it shall be unlawful for the commissioners of any penitentiary, or other reformatory institution in the State of Illinois, to let by contract to any person, or persons, or corporations, the labor of any convict confined within said institution.” The language of this provision is plain, and its purpose can not be misunderstood. It was intended to prevent prison labor from entering into competition with free labor. No legislative enactment was necessary to its operation. Any contract the effect of which is to let the labor of the prisoners is in violation of this clause of the Constitution and wholly void, and no cause of action can be based upon it. No court will lend its aid to enforce a contract entered into with a view of carrying into effect anything that is prohibited by law. (Ambrose vs. Root, 11 Ill. 497; Paige vs. Hieronymus, 192 Ill. 546.) “The rule established in this State undoubtedly is that a contract made in violation of a statute of Illinois is void and unenforceable, regardless of whether the statute so declares or merely prohibits the thing contracted to be done. ’ ’ (The People vs. Board of Supervisors, 122 Ill. App. 40 and cases where cited.) The contract in question is for the “output” — the entire production — of the furniture plant of the State at the Stateville prison, and all claimant is bound to pay for the output is the cost of the labor at 15 cents per hour, plus 10 per cent thereof which is in effect 16% cents per hour. While the contract recites claimant is to also pay the actual cost of the material used, plus 10 per cent of such cost, it also provides “that in the event the second party should furnish the materials used in any particular production, no charge shall be made for the State for materials in such production.” Under this clause of the contract claimant had the right to furnish the material, and if it exercised that right all it would pay the State would be for the labor entering into the products. The contract is clearly one for the labor of the prisoners, and the fact it is called a contract for the production or “output” of the prison factory does not change its legal effect. The goods were to be manufactured in the prison by prison labor for claimant and under claimant’s supervision. It is obvious from the language of the contract that the purpose of claimant was to secure cheap prison labor in the manufacture of goods of the same kind then being manufactured in its own plant. These goods were cribs, bassinets, and novelty furniture. The contract is clearly prohibited by the fourth amendment to the Constitution and is void.

It is urged by claimant that under Section 11 of the Act to regulate the employment of convicts and prisoners the Department of Public Welfare had the right to enter into the contract. That Act was passed in 1903 and later was amended. At the time this contract was executed Section 3 of the Act contained the following provisions: The Board of Prison Industries shall see “that under no circumstances, shall any of the products of the labor of said. convicts or prisoners mentioned in this Act, be sold upon the open market, except as hereinafter provided. They shall see that the said products do not enter into conflict with any of the established industries of the State except as hereinafter provided. It shall be their duty at all times, to inform themselves, so far as possible, of the industrial conditions of the State of Illinois, and to see that the labor of said convicts and prisoners does not enter into competition with the products of free labor, except as herein provided.” Section 5 provided the Board of Prison Industries “shall not, nor shall any other authority whatsoever, make any contract by which the labor or time of any prisoner or convict in any penitentiary or reformatory of this State or the product or profit of his work shall be contracted, let, farmed out, given or sold to any person, firm, association or corporation; except that said prisoners or convicts in said penal or reformatory institutions may work for, and the products of their labor may be disposed of to the State, or for or to any public institution owned or managed and controlled by the State.” Section 6 declared “that it shall be the policy of the State to use in such industries no more machinery or motive power, other than hand or foot power, than may be required to carry this Act into effect.” Section 10 of the Act required the prisoners to be employed for the State, or in productive industries for the benefit of the State, or for the use of public institutions owned or managed and controlled by the State. ’ ’ Section 11 provides that the labor of prisoners “after the necessary labor for the manufacture of all needed supplies for said institutions shall be primarily devoted to the State and the public institutions and buildings thereof, and the manufacture of supplies for the State and public institutions and buildings thereof, and secondly to the school and road districts of the State and the public institutions thereof: But, provided, that if the demands of the State, the State institutions and the school and road districts thereof, as herein provided, shall not be sufficient to furnish employment to all the prisoners of the penal and reformatory institutions of the State, then the Board of Prison Industries may and are hereby authorized to dispose of the surplus products of such labor to the best advantage of the State.” It is clear from the language of these various provisions of the law that the intention of the legislature was to prevent the competition of prison labor with free labor; that it intended the prisoners should be employed in such work and in the manufacture of such articles as could be- used by the State, the institutions of the State and the school and road districts of the State so that the products of their labor would not enter into goods sold on the open market to the general public. The law is in harmony with the letter and spirit of the fourth amendment to the Constitution. The contract in question violates the letter and spirit of both that amendment and this Act. It is an apparent attempt to evade their provisions. It is axiomatic that one cannot do indirectly what he cannot do directly.

It is urged that the contract was made in good faith, and that if it violates the law claimant and the officials of the Department of Public Welfare did not know it. They will not be heard to say they were ignorant of the Constitution and laws of their State. (Lewis vs. Headley, 36 Ill. 433.) It would seem, however, they must have had some doubts as to the validity of the contract for it recites that if it should be found necessary, for legal reasons, to have the superintendent of the plant appear as a State employee the State’s payment will be purely nominal.

It is urged that Section 11 gives the prison officials the right to dispose of the surplus products of the prison industries. It will not be assumed that the legislature intended to give the prison officials authority to do what the Constitution prohibits. It is manifest from a reading of all the sections of the Act that the intent of the legislature was to have the labor of the prisoners confined to the production of supplies that were needed by the State, State institutions and school and road districts. The legislature could not authorize, and it will not be assumed that it intended to authorize, the prison officials to deliberately create a vast surplus for the purpose of disposing of it on the open market in competition with free labor. It was their duty to inform themselves as to the needs of the State and State institutions and to produce only such articles as the State and State institutions, school and road districts used, and to confine such production to their estimated needs. It is only such surplus that may remain after having done this that they are permitted to sell.

It is urged that similar contracts to this had been entered into by the prison officials before and for that reason this one should be held valid and enforceable. This contention cannot be sustained. Even if the Department of Public Welfare had been executing similar contracts for a period of years such fact would not render them valid. Long usage of an assumed right to do an Act does not make it valid where the Act done is clearly prohibited by law. These provisions of the Constitution and statute were enacted by the people for the purpose of declaring the public policy of the State relative to prison labor, and they cannot be ignored or set aside by public officials because the officials may think them unwise.

It is suggested that claimant has an equitable right to an award because it relied upon the State furnishing the goods and suffered loss because of its failure' to do so. No right, either legal or equitable, can be founded on a contract prohibited by law. The contract being in violation of the Constitution and statute is void. There is no exception to this rule. Claimant is not entitled to an award, and the cause is dismissed.

Claimant has filed a petition for a rehearing. The petition is merely a reargument of the reasons urged by claimant in its original brief for the allowance of its claim. Every question raised in the original brief and petition for rehearing was carefully considered by the court, and decided in the opinion filed.

On August 19, 1929, the Attorney General gave Honorable Rodney H. Brandon, the Director of Public Welfare, an opinion in which he held the contract relied on by claimant to be illegal and void. He has filed an answer to the petition for rehearing recommending an allowance of $30,625.90 to claimant, although he states in his answer that he still adheres to that opinion. As this court also holds the contract to be in violation of the Constitution and statute of the State it follows no award can be made. The petition for a rehearing is therefore denied.


text:
    (No. 1680 —
    Sandy Crawford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

    Sandy Craweord, pro se.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Sandy Crawford, late of Co. L, 8th Ill. Inf., claimant, has filed his claim for two months services between enrollment and date rejected. In his declaration he states that he was enrolled on the 28th day of June, 1898 and was rejected at Springfield, Illinois, the latter part of August, 1898, and filed his declaration in this case on the 18th day of November, 1930. To the declaration the State has plead the Statute of Limitations. The records show conclusively that the claim accrued more than five years prior to the time it was filed with the secretary of this court. Section 10 of the Act creating the Court of Claims provides that every claim against the State cognizable by the Court of Claims shall be forever barred unless the claim is filed with the secretary of the court within five years after the claim first accrued. This statute is mandatory and under its provisions the claim is barred.

An award is therefore denied and the case dismissed.


text:
    (No. 1739 —
    Warren E. Moore, Claimant, vs. State of Illinois, Respondent.

      Opitdon filed December 5, 1932.

   Per Curiam:

Now on this 6th day of December, A. D. 1932, comes the complainant, Warren E. Moore, with his motion in writing asking the court to dismiss his case.

The court being fully advised in the premises hereby dismisses the above case and grants the motion of the complainant.


text:
    (No. 1892 —
    Franklin County Coal Company, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

    Essingt on & MoKibben, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

The declaration and stipulation of facts filed in this case show that the claimant, Franklin County Coal Company, Inc., a Delaware corporation licensed to do business in Illinois, submitted to the Division of Purchases and Supplies of the Department of Purchases and Construction of the State of Illinois a certain proposal to supply coal to the State, which proposal was duly accepted by the State. The claimant on that contract shipped on May 7, 1931, 97,200 pounds of coal, constituting one carload, to St. Charles School for Boys, which was delivered and accepted by said school on or about May 8, 1931, and that the contract price was $1.90 per ton, a total of $92.25 plus freight charges of $2.04 per ton, a total of $99.04, making a grand total payable on the shipment of coal of $191.29. The claimant promptly submitted its bill, but for some reason the bill was not approved until after the appropriation was exhausted to pay the same. The State received the coal and the bill is due the claimant and unpaid.

There appears to be no question that this is a just claim and should be paid.

We, therefore, recommend that an award be made to claimant in the sum of $191.29.


text:
    (No. 1988 —
    Nellie Turner, Assignee and Widow of Lige W. Turner, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 5, 1932.

    Charles T. Thompson, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

Claimant is the widow of Lige W. Turner, deceased, who was sheriff of Saline County in 1926. On July 12,1926 Turner and Charlie Wiggins, one of his deputies, went to Jacksonville, Florida, to get Edgar Mayes, a fugitive from justice charged with murder in Saline County. The expenses in going after Mayes and returning him to Saline County for trial are alleged to have been $243.75. A claim for that amount was presented to the county board of Saline County by claimant on January 3, 1931. The county board refused to allow the claim on the grounds that it was a charge against the State, and on September 21, 1932, claimant filed her declaration in this court asking for an award against the State for the amount of the claim. To the declaration the State has plead the Statute of Limitations.

The record shows conclusively that the claim accrued more than five years prior to the time it was filed with the secretary of this court. Section 10 of the Act creating the Court of Claims provides that every claim against the State, cognizable by the Court of Claims shall be forever barred unless the claim is filed with the secretary of the court within five years after the claim first accrues. This statute is mandatory and under its provisions the claim is barred.

An award is therefore denied and the cause is dismissed.


text:
    (No. 1277 —
    Milwaukee Bridge Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

   Per Curiam:

On the 8th day of September, A. D. 1931, of this court, an order was entered against claimant to show cause why this case should not be dismissed for want of prosecution.

Now on this 10th day of January, A. D. 1933, nothing appearing of record to show that the claimant made any effort to show cause why this case should not be dismissed, as ordered on the 8th day of September, 1931.

And it further appearing that notice of the order entered on the 8th day of September, 1931, has been given to claimant in the said above entitled cause.

And it further appearing that no appearance or response appears upon the record of said claimant, the court is of the opinion that said claimant is in default.

Therefore, it is the order of the court that said above entitled cause is hereby dismissed for want of prosecution.


text:
    (No. 1489 —
    Elmer E. Wahls et al., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

   Per Curiam:

On the 8th day of September, A. D. 1931, of this court, an order was entered against claimant to show cause why this case should not be dismissed for want of prosecution.

Now on this 10th day of January, A. D. 1933, nothing appearing of record to show that the claimant made any effort to show cause why this case should not be dismissed, as ordered on the 8th day of September, 1931.

And it further appearing that notice of the order entered on the 8th day of September, 1931, has been given to claimant in the said entitled cause.

And it further appearing that no appearance or response appears upon the record of said claimant, the court is of the opinion that said claimant is in default.

Therefore, it is the order of the court that said above entitled case is hereby dismissed for want of prosecution.


text:
    (No. 1555 —
    John Winston, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

   Per Curiam:

On the 8th day of September, A. D. 1931, of this court, an order was entered against claimant to show cause why this case should not be dismissed for want of prosecution.

Now on this 10th day of January, A. D. 1933, nothing appearing of record to show that the claimant made any effort to show cause why this case should not be dismissed, as ordered on the 8th day of September, 1931.

And it further appearing that notice of the order entered on the 8th day of September, 1931, has been given to claimant in the said above entitled cause.

And it further appearing that no appearance or response appears upon the record of said claimant, the court is of the opinion that said claimant is in default.

Therefore, it is the order of the court that said above entitled cause is hereby dismissed for want of prosecution.


author: Mr. Chief Justice Clarity

text:
    (No. 1737 —
    Illinois Central Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

    Graham & Graham, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.
   Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim for money advanced by claimant on behalf of the respondent in compliance with an order of the Illinois Commerce Commission, entered May 5th, 1928, in Case No. 14473 of the Commerce Commission. It appears this order was entered after a fair hearing on an application made by the City of Bloomington for a separation of grade at a point in the City of Bloomington, where the claimants’ tracks and right-of-way crosses. Oakland Avenue, in said City of Bloomington. It further appears that a subway for the street was contemplated and that the State of Illinois was represented at said hearing by its Attorney General. The construction was ordered to be paid by the Commerce Commission in the manner following: Fifty per cent by the Illinois Central Railroad Company; twenty-five per cent by the State of Illinois and twenty-five per cent by the Illinois Power and Light Corporation and the City of Bloomington. It appears from the record that the construction of said subway was completed to the satisfaction of the State of Illinois Highway Department and that there was no question raised as to the work being done properly and with the proper expenditures. It further appears that the cost of construction has been agreed upon; that the City of Bloomington and the Illinois. Power & Light Corporation have paid their proportions of the cost of such structure, under the Commerce Commission order; that the State of Illinois has not reimbursed the Illinois Central for the twenty-five per cent it was ordered to pay by the Commission’s order.

The Attorney General filed herein a statement setting forth that there was no argument as to the liability of the State of Illinois and recommends the award being allowed in the sum of $35,072.10. This court in considering this case is of the opinion that this structure was built and constructed under the order of a representative Commerce Commission and that the costs of the structure was within the knowledge of the Highway Department, Commerce Commission and Attorney General and therefore good faith has been shown that the claimant entered upon this expenditure with proper authority and in fact was ordered to make such construction, as above set forth. This court is further of the opinion that this is a legal and equitable claim against the State of Illinois and one that should not be avoided in view of all the facts and circumstances shown in the record herein, and further in view of the fact that the Attorney General has consented to an award as above set forth, this court is of the opinion that in view of the position taken by the Commerce Commission and the order entered by that body and the consent of the Highway Department and the consent of the Attorney General that an award should be entered.

This court, therefore, recommends that an award be made in the sum of $35,072.10 to the claimant and recommends that proper appropriation be made for such payment by the Legislature of the State of Illinois.


text:
    (No. 1762 —
    George Katanich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1933.

      Rehearing denied March 6, 1933.

    Egbert E. Larkin and Arthur H. Shat, for claimant.
    Oscar E. Carlstrom, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Thomas

delivered the opinion of the court:

This claim is for $25,000.00 damages occasioned by injuries claimant alleges he received on May 5, 1926, while assisting in the apprehension of some convicts that had escaped from the penitentiary at Joliet. The State has filed a plea of res judicata.

Claimant heretofore filed a claim in this court for the same injuries and on May 12, 1927, and award was entered in his favor for $2,500.00 to compensate him for the injuries he sustained. It is fundamental that a former adjudication con-eludes a party from another trial of the same cause of action. If that were not true there would be no end to litigation.

The claim is denied and the cause dismissed.