text:
    (No. 3084
    Ann Moffett, nee Ann Howe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    John E. Babb, for claimant.
    Otto Rerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein represents that while calling at the Office of the Illinois Free Employment Bureau, on the third floor of the premises at 116 North Dearborn Street, in Chicago, Illinois, on the 10th day of October, A. D. 1934, she slipped and fell on a strip of linoleum which served as an aisle from the front to the rear of the office room of said Bureau; that the cause of the fall was that the floor had been mopped a short time prior to her visit, and was in a wet and slippery condition. Claimant remained at home for two weeks, during which time her left knee became sore and swollen, and thereafter, on October 30, 1934, while she was in the Boston Store, in Chicago, the knee collapsed and she was removed to the County Hospital, where she received treatment and an operation and remained until June 4, 1935. Suit was filed by her in the Superior Court of Cook County against Dibblee and Manierre as owners of the building where the Employment Bureau was located, and such sum was eventually settled for the sum of One Hundred Twenty-five ($125.00) Dollars. She now seeks an award from the State in the sum of Ten Thousand ($10,000.00) Dollars, to compensate her for the lame and crippled condition and medical care alleged to have been incurred as a result of such accident.

The Attorney General has filed a motion to dismiss the complaint for the reason that same is predicated on an alleged liability of respondent while engaged in a governmental function, and for the negligent and wrongful acts of its officers, agents or employees.

This court has been frequently called upon to pass upon claims based upon such allegations.

In the case of Kramer vs. State, 8 C. C. R. 31, the court, in denying an award, said:

“The right to recover is based upon the theory that it was the duty of the State to maintain and keep the floor in question in proper and safe condition; and even though the State is not liable for the negligence of its servants and agents, nevertheless an award should be made as an act of social justice and equity.
“It is a well established principle of law in the courts of this and other states that the State is not liable for the negligence of its officers, servants or agents in the performance of governmental functions; neither can this court allow an award as a matter of social justice and equity in any case where the State would not be liable at law or in equity if the State were suable. The latter proposition is considered at length in the case of Crabtree vs. State, 7 C. C. R. 207.”

The views expressed in the two foregoing cases are decisive in the present matter. The motion 'of the Attorney General to dismiss the complaint is allowed and the complaint is dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Hollebich

license: Public Domain

text:
    (No. 2485
    Anna Peck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Busch & Harrington, for claimant.
    Otto ICerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollebich

delivered the opinion of the court:

For about nine months prior to June 14th, 1934, Sherman Earl Peck was regularly employed at the University of Illinois in the Physical Plant Department, as a janitor. On June 7th, 1934 he worked in the basement of the New Gymnasium helping to place chairs on the floor for commencement exercises, and on June 9th, 1934 he worked from 9:00 p. m. to 11:00 p. m. in the Quadrangle and the University Auditorium removing chairs and band equipment after the president’s reception. The chairs were conveyed on a small truck and were piled thereon in such manner that the top of the load was about level with the chest of the mover, or somewhat higher.

Claimant, who is the widow of said Sherman Earl Peck, contends that Mr. Peck was struck in the side while moving chairs as above set forth, and that the injury so received was the cause of his death which occurred on June 20th, 1934.

About June 1st Mr. Peck suffered with abdominal distress and consulted his family physician, Dr. Dalton, who diagnosed the trouble as chronic appendicitis. Mr. Peck, however, continued with his work until June 14th. While at work on that date he suffered considerable pain, accompanied by a swelling on his right side in the region of the appendix, which swelling he showed to some of his fellow workmen. He telephoned Dr. Dalton from his place of work, and then went home. The doctor called at Mr. Peck’s home, and had him immediately taken to the hospital, where the doctor operated at once, with the idea in mind that the patient was suffering from an attack of appendicitis.

However, as the result of such operation, it was found that the appendix was practically normal; that there had been an acute hemorrhage in the abdominal wall; and that there was evidence of a severe bruising of, or trauma to the abdominal muscles, although there was no discoloration or other external evidence thereof. The bruised area was about two inches in diameter. The hemorrhage extended down deep into the muscle, and required packing of the wound to control the hemorrhage. The swollen area was right over the appendix region, and was in the abdominal wall itself, between the outer and inner abdominal walls. Following the operation, septicemia developed and Mr. Peck died on June 20tli, 1934.

Dr. Dalton, the attending physician, originally diagnosed the case as chronic appendicitis, but testified on the hearing that the operation disclosed that the appendix was practically normal, and that the cause of death was septicemia due to an infection of the abdominal wall, and that the septicemia was brought about by an injury to the abdominal wall.

From the evidence in the record, there is no question but what the employer and employee were both operating under the terms and provisions of the Workmen’s Compensation Act, and the only question involved in this case is the question of whether the claimant’s intestate sustained an accidental injury which arose out of and in the course of his employment, and if so, the amount of the compensation which is to be paid on account of his death.

The only testimony offered by the claimant to show that Mr. Peck sustained accidental injuries which arose out of and in the course of his employment was the testimony of Dr. A. J. Dalton, the attending physician; Reverend E. H. Heicke, and Anna Peck, claimant herein. The testimony of Dr. Dalton and Reverend Heicke was based upon statements made to them by Mr. Peck after the operation, to wit, either five or seven days after the date of the injury, and the testimony of Mrs. Peck was based upon statements made to her by her husband after he returned home from work at the University on the day on which the injury is alleged to have been sustained. None of these statements are part of the res gestae, and consequently none of such statements are competent evidence in the case.

Claimant maintains that the testimony of Dr. Dalton as to the statements made to him by Mr. Peck was properly admissible, and cites the case of Cuneo Press Co. vs. Ind. Com., 341 Ill. 572, in support of her contention. An examination of that case, however, discloses that the statements made to the doctor in that case were with reference to the part of the employee’s body which was injured, and not with reference to the cause of the injury.

The rule is stated in Anger stein’s “The Employer and the Workmen’s Compensation Act,” Page 79, Section 43, as follows:

“The statements of a deceased employee either to a physician or to other witnesses, are not competent to prove that an accidental injury was sustained, or to prove the cause of the injury, or that it was due to an accident arising out of and in the course of the employment.”

There is, of course, an exception to this rule in the case of statements which are a part of the res gestae, but clearly none of the statements to Dr. Dalton, to Reverend Heicke, or to Mrs. Peck were part of the res gestae.

The case of Spiegel’s H. F. Co. vs. Ind. Com., 288 Ill. 422, was very similar to the present case. In that case the court said:

“No one saw Cloyes (the employee) receive the injury, and he did not tell his employer or any of his fellow employees about receiving it. The only proof that the injury arose out of and in the course of his employment was (1) the testimony of his widow and of his physician that he had told them he received his injury at his employer’s store while passing through a narrow aisle while showing customers goods in plaintiff in error’s store, and by striking his arm just above the elbow, against a sharp corner of a dresser.”
“The sole question raised in this case is whether or not there is any competent evidence in the record showing that the death of Cloyes was caused by an injury which arose out of and in the course of his employment. The oral testimony bearing upon that question, heard before the arbitrator and the Industrial Commission over the plaintiff in error’s objection, was hearsay and incompetent. That testimony consisted of statements of the witnesses of what the deceased told them about when, where and how he received the injury and what he was doing at that time. No one testified who had any knowledge of those facts except from the statements made to them by the deceased. Declarations made by one injured, to his attending phyisician, are admissible when they relate to the part of his body injured, his suffering, symptoms and the like, but not if they relate to the cause' of the injury. This rule is more rigorously enforced when applied to lay witnesses. Chicago and, Alton Railroad Co. vs. Industrial Commission, 274 Ill. 886.”

After considering other points raised, the court said: “ There is no competent evidence in the record tending to prove that the injury to deceased arose out of and in the course of his employment.”

Although Mr. Peck was working with five other janitors, he did not mention the fact of his injury to any of them, and none of them knew or heard that he sustained an injury. Before he left for home on the night he was operated, he showed some of his fellow employees a swelling on his side, but did not say anything to them with reference to the cause of such swelling, and did not mention anything about having received an injury while at work.

The claimant also relies upon the following statement in the stipulation of facts herein, to wit:

“That the said Sherman Earl Peck at the time of the injury, was working with several other employees of the University of Illinois all employed by the physical plant department, assisting in moving chairs and other equipment.”

It would be far-fetched construction of the foregoing statement, if it were construed to be an admission of the fact that Mr. Peck sustained an accidental injury, but even if it could be so construed,.it would be an admission of one of the nltimate facts in the case, and the stipulation by its terms was not intended to cover any question of ultimate liability. Section 13 of such stipulation provides as follows:

“That the sole intent of this stipulation is to set forth accurately a portion of the material facts in this cause; that nothing herein is to be taken as an attempt to fix or determine any question of ultimate liability.”

Furthermore, such stipulation provides that it is subject to the approval of the Attorney General, but it does not bear such approval.

The burden of proof is upon the claimant to show that Mr. Peck sustained accidental injuries which arose out of and in the course of his employment. Such proof may be established either by direct or circumstantial evidence. Porter vs. Industrial Commission, 301 Ill. 76-78.

In this case, however, all of the competent evidence in the record, both direct and circumstantial, together with all of the inferences which may reasonably be drawn therefrom, fails to establish the fact that said Sherman Earl Peck sustained an accidental injury which arose out of and in the course of his employment.

Claimant also takes the position that even if there were no legal liability on the part of the State, she is entitled to an award on the grounds of equity and good conscience. The question of the right of this court to allow an award solely on the grounds of equity and good conscience was fully considered in the case of Crabtree vs. State, 7 C. C. R. 207, in which we held that the jurisdiction of this court to allow an award is limited to claims in respect of which the claimant would be entitled to redress either at law or in equity if the State were suable. The decision of the court in the Crabtree case.has been followed in many, many cases since that time and is now the well established rule of this court. Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2475, decided at the January term, 1937.

Under the facts in the record, we have no authority to allow an award.

Award denied. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2484
    Frank Durkiewiecz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Brown, Hay & Stephens, for claimant.
    Otto Kerner, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On the morning of June 22d, 1934, the claimant was driving his Chevrolet truck in a northerly direction on S. B. I. Eoute No. 4, a short distance south of the Village of Elwood, in Will County, Illinois. It had been raining for some time, the pavement was wet, and the visibility was somewhat limited.

The evidence on the part of the claimant is to the effect that he was driving at a speed of about fifteen miles per hour, that his brakes were in good condition, and that there was no evidence of any mechanical defect in the operation of his truck immediately preceding the accident.

The evidence for the claimant is also to the effect that as he was proceeding in a northerly direction, another automobile with a trailer attached was approaching from the north, moving at a speed of ten or fifteen miles per hour; that as claimant’s truck and the automobile and trailer were about to pass each other, a light Ford convertible coupe owned by respondent and driven by an associate director of the Department of Finance in the discharge of his official duties, approached rapidly from the north at a rate of speed in excess of fifty miles per hour; that the State automobile turned to the left in an attempt to pass the automobile and trailer just as claimant’s truck was approaching from the south; that when the driver of the State car saw the claimant’s truck approaching, he attempted to turn back into his own traffic lane, but on account of the condition of the pavement and the speed at which he was traveling, he lost control of the car, which skidded and collided with the claimant’s truck, forcing the same off the highway and across the ditch on the east side of the road, whereby the claimant sustained severe and permanent injuries and his truck was damaged and destroyed.

There is evidence on behalf of the respondent to the effect that the State car just prior to the accident was traveling at a speed of thirty or thirty-five miles per hour; that the automobile and trailer hereinbefore referred to was parked on the highway, and in attempting to avoid a collision therewith the driver of the State car applied his brakes, whereby his automobile skidded, swerved first to the right and then to the left, and finally came to a complete stop while still on the road, but at right angles with the edge thereof; that while in this position the claimant’s truck collided with the State automobile and forced the latter off the highway and into the ditch, damaging the same to a considerable extent.

The claimant bases his right of recovery on two grounds:

1. That the accident in question was the result of the gross, reckless, wanton or wilful negligence of the servant of the State of Illinois.

2. That in any event he should be entitled to an award on the grounds of equity and good conscience.

The Attorney General contends that the State is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

Claimant concedes that the general rule is in accordance with the contention of the Attorney General, but maintains that an exception to such rule exists in those cases where the State is guilty of wilful and wanton misconduct, and the claimant himself is free from contributory negligence, and that in such cases an award is justified.

In the past there have been some decisions of this court in which such an exception was recognized, but such decisions have been overruled and such exception is no longer recognized by this court.

In denying a petition for rehearing in the recent case of George Franklin Garbutt, Admr. vs. State, No. 2246, decided at the present term of this court, the court, in disposing of the same contention, said:

“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this court.”

We have repeatedly held that we have no authority to allow an award in any case unless there would be a liability on the part of the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43; Titone vs. State, No. 2475, decided at the January Term, 1937.

Under the law as above set forth, we have no authority to allow an award, and the same must therefore be denied.

Award denied. Case dismissed.


author: Mb. Justice Linscott

text:
    (No. 2476
    Charles H. Hoff, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    R. N. Ingelson, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claimant alleges in his complaint that on June 17th, 1934 he was driving his automobile on S. B. I. Route No. 6 about five miles east of the City of Morris, Illinois, and was in the exercise of all due care and caution for his own safety; that at the time and place aforesaid, the shoulder on said highway was maintained by the respondent in a defective and dangerous condition; that as the result of the carelessness and negligence of the respondent in the maintenance of the shoulder on said highway as aforesaid, the automobile in which the claimant was riding, was caused to turn over and was thereby demolished; by reason whereof he claims damages.

The Attorney General has moved to dismiss the case for the reason that there is no liability on the part of the State for the acts of its servants and agents under the doctrine of respondeat superior in the absence of a statute making it so liable.

Claimant admits that the general rule is as stated by the Attorney General, but contends that the negligence of the respondent was wilful and wanton, and that an exception to the general rule exists in such cases.

This identical question was raised and fully considered by the court on rehearing in the case of George Franklin Garbutt, Admr. vs. State, No. 2246 (opinion on rehearing filed at the present term of this court) and we there held adversely to the contention of the claimant. In that case we said:

“If the State is not liable for the ordinary negligence of its servants and agents, there is no principle of law under which it can be held liable for the gross or wanton negligence of such servants and agents, in the absence of a statute making it so liable. The purported exception has no basis in law, and is no longer recognized by this court.”

Our jurisdiction is limited to claims in respect of which the claimant would be entitled to redress against the State either at law or in equity if the State were suable.

We have no authority to allow an award under the allegations of the complaint and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


author: Me. Justice Linscott

text:
    (Nos. 2342-2343-2349, Consolidated,
    Irene Blair Maxwell, No. 2342, Mary Blair, et al., No. 2343 and Arthur Layton, No. 2349, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    T. N. Gofer, for claimants.
    Otto Keener, Attorney General; John Kasserman, Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

All of the above cases arise out of the same accident and involve the same facts, and are therefore consolidated for the purpose of this hearing.

It appears from the several complaints herein that on August 7th, 1933 the claimant, Arthur Layton, was driving his automobile in an easterly direction on Harrison Street in the City of Charleston, and was approaching the intersection of said Harrison Street with S. B. I. Route No. 130. Harrison Street extends in an easterly and westerly direction and S. B. I. Route No. 130 extends in a northerly and southerly direction.

The claimants, Mary Blair, Eliza Blair, Charles Blair, Dorothy Blair, June Blair, and Irene Blair Maxwell were riding as passengers in said automobile. The several complaints further allege that as said Arthur Layton was crossing the aforementioned intersection of Harrison Street and S. B. I. Route No. 130, a certain State truck driven by one of the servants and agents of the respondent, and carrying certain employees of the respondent, was being driven in a northerly direction on said S. B. I. Route No. 130 in a careless and negligent manner, and at a high and dangerous rate of speed, to-wit, at a speed of sixty miles per hour, whereby, and as a result of the carelessness and negligence of the servant and agent of the respondent in the operation of said State truck as aforesaid, said truck ran into and struck the automobile in which the several claimants were riding as aforesaid, and they were each and all seriously and permanently injured.

The Attorney General has entered a motion to dismiss each case for the reason that the State is not liable under the facts set forth in any of the complaints.

This court has repeatedly held that the State in the maintenance of its hard-surfaced highways, is engaged in the exercise of a governmental function and that in the exercise of such functions, it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. Schweizer vs. State, 8 C. C. R. 432; Wright vs. State, No. 1981, and Joe Boner, et al. vs. State, No. 2529, both decided at the September Term, 1935.

We have also repeatedly held that we have no authority to allow an award in any case unless there would be a liability, either at law or in equity, on the part of the State, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43.

There is no law authorizing a recovery under the facts set forth in any of the complaints, and the several motions of the Attorney General must therefore be sustained.

Each motion to dismiss is allowed, and each of the consolidated cases is dismissed.


author: Me. Justice Linscott Mb. Justice Linscott

text:
    (No. 2103
    John H. Ray, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

      Rehearing denied, October 12, 1937.

    Leo P. Baied and L. Feed 0 ’Beien, for claimant.
    Otto Keenee, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

John H. Ray, the plaintiff, had been in the employ of the State of Illinois for several years in the Highway Department. On March 6, 1930 he was operating a gravel and dirt highway grader, which was being drawn by tractor on a public highway between the Counties of Knox and Peoria. He was standing on the rear end of the machine, which was proceeding in a southerly direction, when one W. Gr. Anderson, driving an automobile also in a southerly direction struck the grader and knocked the claimant to the ground, where he landed upon his head and shoulders.

At the time of the injuries, claimant was receiving $125.00 per month and received that sum from the time of his injuries until he returned to his employment, and was carried on the monthly payroll of the State at $125.00 per month until May 12, 1931. He was then placed upon an hourly basis and was paid about $40.00 per month from May 12, 1931 until November 25, 1931, when his services were terminated by State officials, for the reason that his services were of such a nature that they were entirely insufficient and unsatisfactory to the department.

He filed his suit for the May Term, 1931 in the Circuit Court of Warren County against Anderson, and upon a trial of that case by a jury, was awarded the sum of $100.00 damages, but has failed to collect that.

This claim was filed with the clerk of this court on April, 1933. Numerous injuries were alleged and damages claimed in the sum of $4,925.00. Because of the view that we take of this case, it will be unnecessary for us to determine the extent of claimant’s injuries or the amount of damages.

From the above, it will be noted that he was injured on the 6th day of March, 1930 and claim filed on April 3, 1933, more than three years after the alleged injuries.

Under the authority laid down by the Supreme Court of Illinois in the case of Lewis vs. Industrial Commission, 357 Ill. 309, an opinion filed on June 15, 1934 and re-hearing denied October 3, 1934, it is held that a claim for compensation is not. made within six months, as required by Section 24 of the Workmen’s Compensation Act, where the employee returned to work after the injury, worked for several months, no claim for compensation being made during the six months following the injury, and payment of the employee’s wages to his wife during his illness and up to the time of his death, the same is not the payment of compensation within the meaning of the statute allowing claim to be made within six months thereafter, where such wages were paid and accepted as wages without reference to any claim for compensation. In this case, the facts are the same. Bay received his wages, and although his wages were reduced after a time, it appears that all sums were paid to him as wages.

Section 24 of the Workmen’s Compensation Act declares that no proceeding for compensation shall be maintained unless claim has been made within six months after the accident, or, in the event that payments have been made under the provisions of the act, unless written claim has been made within six months after such payments have ceased and a receipt therefor or a statement of the amount of compensation paid shall have been filed with the commission. The section concludes with the proviso that, in any case, unless written claim for compensation is filed within one year after the date of the last payment of compensation, the right to file an application therefor shall be barred. Subdivision (a) of Section 8 provides that the furnishing by an employer of first aid medical and surgical services and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the injury, shall not be construed as an admission of liability on the part of the employer to pay compensation, and that the furnishing of any such services shall not be construed as the payment of compensation.

The Supreme Court in the Lewis case and other cases, held that the making of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute.

This court has held in Crabtree vs. State of Illinois that making claim for compensation in this court and filing application for compensation within the time fixed by the Workmen’s Compensation Act is a condition precedent, without which this court is without jurisdiction to proceed with the hearing.

We, therefore, hold that we have no jurisdiction in this case, and claim is accordingly dismissed.

Additional Opinion on Petition fob. Reheabing.

Mb. Justice Linscott

A petition for rehearing was filed in the above entitled cause. It is claimed that certain points were overlooked, one of them being that the court stated that Mr. Ray filed his suit for the May Term, 1931 in the Circuit Court of Warren County against Anderson (Anderson being the defendant in this suit brought to recover damages for Ray’s injury), and upon a trial of the case by a jury, was awarded the sum of $100.00 damages, but has failed to collect it. That statement was taken from the sworn declaration or petition filed in this case, and it was assumed by the court that if payment of the $100.00 was afterwards made, that an amendment would have been made to the declaration or petition. While it is true that Mr. Ray did testify that the $100.00 was paid, it is likewise true that the mis-statement in the opinion was not entirely the fault of the court.

The petition for rehearing also relies upon a statement made by Fred Tarrent to the effect that from the time of Ray’s injury, March 6, 1930 to the date of his release on November 25,1931, Mr. Ray was paid a total sum of $2,233.07, only a part of which was earned by his services to the department, and it appears that he was incapacitated by the injury. There is nothing in the statement which shows which part was earned or unearned. Mr. Tarrent also stated that it was his opinion that Ray was entitled to some compensation. From Mr. Tarrent’s statement, it appears that he did receive some compensation.

It is also contended that another letter from Mr. Tarrent addressed to L. Fred O’Brien, stated that he, Mr. Tarrent and others connected with the Highway Department, met with Mr. Ray and discussed the details of procedure outlining to him specifically the course necessary for him to follow and explaining that it was necessary for him to attempt to collect damages from Mr. Anderson before he could file his case in the Court of Claims for damages. Assuming that Mr. Tar-rent did make such a statement, that is not the law and could not be followed by this court. It is also argued that Mr. Tar-rent stated: “During this entire period and for a considerable length of time afterwards, Mr. Ray was carried on the monthly payroll at $125.00 a month which was his stipulated salary. He did practically no productive work on his maintenance section during this entire period.”

Mr. Bay’s testimony on this, however, is in conflict. He says that from March 6,1930, he was confined at home and did not report for duty for approximately four months. “I returned to duty after four months. After I returned to duty, I supervised the work. I did not attempt to do any manual labor. My duties consisted of just overseeing the work; going over the road, patrolling the road every day from one end to the other, round trip. I would have men working in different places at the job. During that time, I furnished my own car and my own gasoline. I received from salary or compensation from March 6, 1930 until March 12, 1931, $125.00 per month.” This is misstated in the abstract, but it appears from Bay’s testimony that he received $125.00 per month until May 12, 1931; until he was released from the service of the department on November 25, 1931, he received $458.07 ¿t the rate of forty cents per hour. This money was received on account of his employment. He also testified that Mr. Heffner of the Peoria District Office gave him notice that his services would terminate on the 25th of November, 1931, and he was then informed that he wasn’t able to do the work and that they had to get someone in the department who could.

In the petition for rehearing it is stated that they rely upon the case of Kennedy vs. State of Illinois, 7 C. C. R. 260, and it is contended that the facts in the Kennedy case are in point with the facts in the case at bar, and in that case this court said: “The evidence discloses that claimant was paid compensation in the amount of Three Hundred Seventy-five Dollars ($375.00). Such payment at the rate which claimant was entitled to receive, to-wit, Fourteen Dollars and Forty-two Cents ($14.42) per week, paid his compensation from the day after the accident to March 27th, 1932. The record shows that the declaration herein was filed in this court on February 14th, 1933.”

Under Section 24 of the Compensation Act, which we are "bound to consider, application for compensation must be filed within one year after the date of the injury or within one year after the date of the last payment of compensation.

According to Bay’s testimony, the last compensation that he received, whether he now contends was for services rendered or strictly compensation, was November, 1931. This claim was filed on April 3,1933. Manifestly, we have no jurisdiction in the case, but even if we had jurisdiction, when we take into consideration the medical testimony of the claimant himself, we would be compelled to deny an award.

Dr. E. E. Barbour on cross-examination stated that he never saw the claimant until the 24th, 25th and 26th of September, 1930, when he examined him, and that was the only examination he made; that he did form an opinion but it was the result of talking with others, and that he couldn’t tell at that time how extensive a wound the claimant had received, and that would have something to do with his opinion. He also stated that the extent of the injury might, or might not make some difference in his opinion. He also stated that the dizziness complained of by the claimant was not necessarily due to an accident. The claimant was 68 years old at the time of the injury, and this Doctor stated that men of that age are apt to have dizzy spells as a natural proposition and not attributable to any accident. He also stated that the cause of his dizziness might have been due to something that occurred after the date of the injury and before his examination.

Dr. C. J. Hyslop was called and his direct examination was conducted by Mr. O ’Brien. He was Fifth District Health Supervisor of communicable diseases under Public Health Department and employed by that department. He gave the claimant a cursory examination, which consisted of a general examination without taking blood tests, urinalysis, X-ray, seeing plates, or any laboratory work. He stated that he observed a man of about 70 years. Dr. Hyslop made a superficial neurological examination, and found a man well preserved, well nourished, weighing about one hundred seventy pounds, and apparently in fairly good health, suffering from a cataract on the right eye — slight cataract on both eyes. His heart was negative, and his blood pressure was 162/104, a little high for his age; no romberg sign and his coordination was fairly good. After bending his body, he is slightly unsteady, but m a minute or less, his coordination is very good. His walk is fairly normal; not very much hesitancy, no limp and no cane. Dr. Hyslop stated that in his opinion, for a man of Mr. Bay’s age, he is in apparently very good physical condition, and guessed that he had an expectancy of at least eight years. He thought he could only perform light manual labor. He stated that he was about fifty per cent efficient. On cross-examination he stated that he got around as a man of his age would get around, and his reaction after bending over was about normal for a man of his age, and stated that from his diagnosis he would say that the claimant had arteric schlerosis with beginning senility, with a chronic nephretis and a prostatic involvement, which is natural to assume in a man of his age, and which he found. His blood pressure, which is higher than normal, corroborates this statement. He further testified that these pathological conditions were no more attributable to trauma, that might have been occasioned two or three years ago, than to ordinary senility.

In a personal injury case, the claimant was given an award by the jury in the sum of $100.00. Whether this award was paid or not paid is immaterial in this case. We assume that the same medical testimony, at least by one witness it is true, was given at the trial of. the personal injury case as was given here. It is quite apparent that the jury and the court that tried the case was of the opinion that Mr. Ray’s injuries were in fact not as serious as he alleged in his claim in this court, but be that as it may, this court is bound by Section 24 of the Compensation Act, and bécause application for compensation was not filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application is barred, and we hold that we would have no jurisdiction in this case to grant compensation.


text:
    (No. 2235
    William J. Bomkamp, Administrator of the Estate of Raymond Bomkamp, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Clifford G-. Rob and Charles J. Trainor, for claimant.
    Otto Kernbr, Attorney General; John 'Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges that prior to and on the 18th day of August, A. D. 1932, Raymond Bomkamp was a student at the Morton Park High School in Cicero; that the school authorities of the Town of Cicero, in co-operation and conjunction with the Department of Commerce of the State of Illinois had inaugurated and was then conducting as a part of the curriculum of said school, studies in aeronautics and mechanics, under the direction and supervision of a Mr. Stiver; that the salary of said Stiver was paid by the State of Illinois and the Township of Cicero, in equal portions; that said studies in aeronautics and mechanics did not include the art of flying or controlling an airship; that said Stiver was possessed of an airship and at times took students of the school on flying expeditions; that on said 18th day of August, 1932, said aeroplane was not in good working order and condition, but was in bad condition and unsafe for flying, and had been in that condition for a long time prior thereto; that the unsafe condition of said aeroplane was known to the authorities of said School District of Cicero, and to the “authorities of the State of Illinois”; that the authorities of said School District also knew that said Stiver had taken his students for rides in said defective aeroplane on divers occasions.

That on said 18th day of August, 1932, said Raymond Bomkamp was riding in said machine at the request of said Stiver; that when said machine was at an altitude of several hundred feet, by reason of the defective condition thereof, it fell and both Stiver and Raymond Bomkamp were killed; that the claimant’s intestate was at all times in the exercise of due care and caution for his own safety; that claimant is the duly appointed, qualified and acting administrator of the estate of said decedent, and seeks to recover the sum of $10,000.00 as the pecuniary damages sustained by the next of kin of said decedent by reason of his death.

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

The basis of the claim against the State is not entirely clear. It is difficult to determine whether claimant contends that Stiver was an agent of the State, and that he was guilty of negligence in the operation of the aeroplane, for which the State is liable; — or whether he contends that the ‘ authorities of the State of Illinois” were negligent in permitting Stiver to take students for rides in an aeroplane which they knew to be defective. In either event there is no liability on the part of the State. Even if it be conceded that the State was co-operating with the Morton Park High School in conducting studies in aeronautics and mechanics, as set forth in the complaint, such work would constitute the exercise of a governmental function. The rule that in the exercise of its governmental functions the State is not liable for the negligence of its servants and agents, has been applied so often by this court, that the citation of authorities is unnecessary.

We have also repeatedly held that we have no authority to allow an award in any case unless there would be a liability on the part of the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43.

There being no liability on the part of the State under the facts set forth in the complaint, we have no authority to allow an award.

The motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (Nos. 2228-2229-2230, Consolidated
    Lora Spurrell, No. 2228, Lora Spurrell, Administratrix of the Estate of Muriel Spurrell, Deceased, No. 2229 and Vesta Rowley, No. 2230, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    Harold Metcalf, for claimant.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

All of the above cases grow out of the same accident, involve the same facts, and are governed by the same principles of law, and they have therefore been consolidated for the purposes of this hearing.

On the evening of August 17th, 1932, between seven and eight o’clock, the claimant Lora Spurrell was driving a certain 1926 model Dodge sedan in a northerly direction over S. B. I. Route No. 85 in Mercer County, at a speed of about thirty miles per hour. Muriel Spurrell, aged five years, daughter of said Lora Spurrell, and Vesta Rowley, sister of said Lora Spurrell, were also riding in said automobile. As Lora Spurrell drove her said car over the brow of a hill, she drove onto a strip of gravel or crushed rock in a space which had not been paved, and her automobile swerved and skidded, causing her to lose control thereof, whereby the automobile overturned, and as a result thereof, the said Muriel Spurrell was killed and the said Lora Spurrell and Vesta Rowley were each seriously and permanently injured.

The complaint in each case alleges that the respondent was negligent in not having a warning signal posted upon the highway a reasonable distance beyond the approach to the graveled portion, notifying the traveling public thereof; and that the respondent was also negligent in permitting and allowing gravel and crushed rock to be and remain on said highway at the point in question, thereby making it difficult and dangerous for drivers of automobiles.

The Attorney General has entered a general demurrer in each of said cases, which under the present practice will be considered as a motion to dismiss.

We have held in numerous cases that in the maintenance of its hard-surfaced roads, the State of Illinois is engaged in a governmental function, and have also held that the State in the exercise of its governmental functions, is not liable for the carelessness and negligence of its servants and agents, in the absence of a statute making it so liable. George McCready, et al vs. State, No. 2604, decided at the September term, 1935; Lester A. Royal vs. State, No. 2595, decided at the September term, 1935; Peter Tivnan vs. State, No. 3051, decided at the May term, 1937; Cecil W. York vs. State, No. 2701, decided at the May term, 1937.

There is no statute making the State liable under the facts set forth in the several complaints herein, and therefore we have no authority to allow an award.

Claimant also asks for an award on the ground of equity and good conscience. The right of this court to allow an award solely on the grounds of equity and good conscience was considered in the case of Crabtree vs. State, 7 C. C. R. 207, in which, after a consideration of the authorities on the subject, we held that the jurisdiction of this court to allow an award is limited to claims in respect to which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. The doctrine there laid down has been approved in numerous cases since that time and is now the well-established rule of this court. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43.

Under the law as above set forth, we have no authority to allow an award in any of the above cases.

The motion to dismiss in each case is allowed, and each of the above cases is dismissed.


text:
    (No. 1689
    Ida M. Yates, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, October 12, 1937.

    L. 0. Williams, for claimant.
    Otto Kernes, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On the 30th day of October, 1928, and prior thereto, claimant, Ida M. Yates, was employed at the Illinois Orphans’ Home located in the City of Normal, McLean County, Illinois, as a worker and an attendant in that institution; that in the course of her employment, she was required to wash the walls in certain rooms of that institution, and on the date last mentioned, while standing on a table that was provided for her, and while washing walls, she fell from the table and received a severe hip injury, consisting of a fracture of the hip, leaving when healed, that limb shorter than the other.

In view of the position that we take of the case, it is unnecessary to go into further detail as to the nature of the injury. This claim was filed December 15th, 1930.

The Attorney General has made a motion to dismiss this case for the reason that it appears from the evidence that no compensation or pay was ever made to the claimant, and claim for compensation was not made within six months, and claim was not filed within one year, pursuant to the terms of Section 24 of the Compensation Act. The Court of Claims Act provides that the Court of Claims shall hear and determine all cases resulting in injuries to the employees of the State who are under the Act, pursuant to the terms of the Compensation Act. We must, therefore, consider Section 24 of the Compensation Act.

It is argued by counsel for claimant that the five year Statute of Limitations under the Court of Claims Act should apply, and not the provisions of Section 24 of the Compensation Act, and it is argued that the law does not favor repeals by implication, and that the Legislature did not contemplate that the provisions of the Compensation Act would take precedence over the five year statute mentioned in the Court of Claims Act.

The Supreme Court of Illinois and this court has many, many times held that no jurisdiction can attach to a case where the claim was not filed within a year. The only jurisdiction this court has in compensation cases is statutory and the statute specifically provides that the court must hear and determine the liability of this State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the “Workmen’s Compensation Act.”

Clearly, we have no jurisdiction of a case when the provisions of Section 24 have not been fully complied with. Because claim was not filed within a year, the motion of the Attorney General must be sustained and the cause dismissed.


text:
    (No. 2146
    Max K. Meyer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1937.

    H. L. Feigenholtz, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The contention of the claimant, Max K. Meyer, of the Village of Winnetka, County of Cook and State of Illinois, in this case is that on the 8th day of December, 1927, Frank J. Bruno and Helen Bruno, his wife, gave their certain promissory note or notes to him, due five years after date with interest at six per cent, per annum, in the sum of $4,500.00, and to secure the same, gave a trust deed to Max K. Meyer, on premises described in the complaint.

It is further alleged that in the year 1930, the State of Illinois, wrongfully and unlawfully appropriated and took for the construction of the State road known as Skokie Highway, a part of the premises covered by the trust deed and described in the complaint, and it is alleged that the State of Illinois never paid the claimant the value of the land so taken, and claimant makes claim against the State for the sum of $1,000.00, being the value of the land so taken.

A considerable time after this claim was filed, an amendment thereto was filed by claimant, and the adamnum was increased from the sum of $1,000.00 to the sum of $2,500.00, the extra $1,500.00 alleged as damages is for damages for land not taken by the State.

A stipulation was filed to the effect that on the 8th day of December, 1927, Bruno and his wife, executed a trust deed to Max K. Meyer, as trustee, conveying the property involved, and that deed was duly recorded on December 21,1927 in the Recorder’s Office of Cook County, and that thereafter, on March 20, 1929, Bruno and his wife, executed a second trust deed to Max K. Meyer to secure a note for the sum of $1,200.00; that said second trust deed was duly recorded on March 22, 1929, and thereafter, on April 21, 1930, Bruno and his wife, conveyed by warranty deed, the property involved to Helen Lala, which deed was duly recorded. It is further stipulated between the parties that a Dedication Plat for Public Highway Route Ño. 57 was made by Bruno and his wife, the actual date not appearing upon the dedication plat, but which was acknowledged on August 7, 1930, and recorded on July 8,1932. It is also stipulated that a Certificate of Sale was issued by the Master in Chancery, Julius H. Miner, dated December 29, 1932, and recorded in the Recorder’s Office of Cook County on January 5, 1933. It, therefore, appears as a matter of record, that the trust deed dated on the 8th day of December, 1927, was a prior lien.

The record does not directly disclose the purport of the Master’s Certificate dated December 29, 1932, but we assume from other statements in the record that this Certificate of Sale is the result of the foreclosure of a second trust deed dated March 20, 1929. The warranty deed from Bruno and his wife, dated April 21,1930, and running to Helen Lala can have no effect upon the rights of Max K. Meyer, the claimant. The effect of the dedication plat might, however, be different. The record does not disclose who the actual owners of the notes secured by the trust deed are, but from the declaration it is averred that in the year of 1930, Meyer, the claimant, was the legal holder and owner of the trust deed and notes dated the 8th day of December, 1927.

A hearing was had and two real estate men, both equally familiar with the valuation of land in the vicinity of the premises wherein the land in question was located, testified. It appears that approximately one-fourth of the land was taken for highway purposes. The record does not disclose whether a Master’s Deed was ever issued upon the Master’s Certificate above referred to. Neither does the record disclose who had the possession of the premises dedicated for highway purposes, at the time of such dedication. While we might safely assume that a sale was had under the second trust deed, the record does not disclose who the purchaser at the sale was, nor the amount of the purchase price. These questions, and other similar questions that might be raised under the view that we take of this case, are unimportant. It is likewise unnecessary for us to consider “damages” to the land “not taken.” The witness, Louis T. Dodds, who testified for the claimant, apparently was a man who had had much experience as a real estate broker in this particular vicinity. An examination of his testimony discloses that he was a man of good judgment on such matters, and his testimony is, therefore, quite convincing. According to his testimony, the property in question at a time immediately after the dedication, was worth the sum of $9,000.00. What is said of Mr. Dodds can be said with equal force of the witness for the State, Mr. J. Frederick Kinney, who placed the valuation of the premises in question at $6,320.16. Insofar as this record is concerned, it is immaterial which witness is right or which witness is more nearly right, because the value fixed by both witnesses is sufficient to cover the principal am mint of the note secured by the first trust deed, less a depreciation of valuation on the property not taken. The complaint does not claim any damages under the second trust deed. If this had been a condemnation proceeding, it would leave the claimant here with all of his rights set forth in the trust deed. It is very apparent that he has not suffered any damages by the dedication of the specific property mentioned in said trust deed. Where the loss of security is material, as it is always assumed to be whenever the entire mortgaged estate is condemned, the courts will grant the mortgagee some remedy. In some states, the legal title to land, subject to a mortgage, is held to vest in the mortgagor and the mortgagee is regarded simply as a secured creditor. In such states, the latter party is not recognized as a party in the condemnation proceedings and the entire award is assigned to the mortgagor, but the mortgagee, in such jurisdictions, may have his award applied to the payment of his debt by a court of equity. 1 Nichols, Em. Dom. 353, 2 Lewis, Em. Dom. Secs. 523, 720. But in the majority of jurisdictions, particularly where the mortgagee is deemed to have title to the land, subject to defeasance and to the mortgagor’s equity of redemption, the courts recognize the interest of the mortgagee in the condemnation proceedings themselves. Whenever the entire mortgaged property has been “taken,” these courts have held that the award payable to the condemnor stands in the place of the land, and that the various liens which attached to the land, now attach to the award. Colehour vs. State Savings Inst. 90 Ill. 152.

The Supreme Court of Illinois in the case last cited also held that where mortgaged property is condemned and appropriated to public use, and the compensation awarded to the owner or mortgagor exceeds the sum due on the mortgage, and is not paid, it is not proper on bill to foreclose to order a sale of the premises. The sum found due should be ordered paid out of the condemnation money.

In the case before us, the security for the notes is not destroyed and may not be even substantially impaired. The record does not disclose that a receiver has been applied for. In such cases, a receiver could only be appointed by the court if there was scant security for the debt.

In Federal Trust Co. vs. East Hartford Fire District, 283 Fed. 95, and in Knoll vs. New York, etc., R. Co. 121 Pa. 467, 472, 1 L. R. A. 366, a case decided in 1888, where the condemnor had paid compensation to the mortgagor for a ‘ ‘ damaging,” the court refused to allow the mortgagee to recover against the condemnor, because it appeared that the mortgage debt was ‘ ‘ abundantly secure. ” So it appears in this case.

An award, therefore, will be denied, and the motion of the Attorney General, which motion we have construed as a demurrer to the evidence, will be sustained. This cause is, therefore, dismissed.


author: Me. Justice Yantis

text:
    (No. 2919
    Russell F. Wright, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.
    Josef T. Skinner and Arthur H. Ellis, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor and Murray F. Milne, Assistant Attorneys General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant, Russell F. Wright, entered the employ of the State of Illinois in February, 1933 and had been continuously employed thereafter until July 10, 1935. On the latter date he was working for the Division of Highways, as a helper in gravel repair work, on Illinois S. B. I. No. 92, in Bureau County. While loading a truck at a gravel pit the bank washed in, striking claimant on the right side and covering him waist deep. His companion extricated claimant from the gravel and he was taken to his home, and then, under the care of Dr. O. J. Flint, to the Hospital at Princeton. He was in the hospital from July 10th to July 15th, and thereafter at different times for X-rays. He performed no labor until June 15, 1936, since which time he has been employed under WPA at the gravel pit for a period of two weeks, four days in each week. Finding himself under strain at this work he was transferred and placed on a Project at the Bureau County Court House; where he had worked for six days up to the time of the taking of evidence on the 16th day of March, A. D. 1937.

Following his care at the Princeton Hospital, claimant was sent to the Methodist Hospital at Peoria, on January 9, 1936, where he received treatment under the care of Dr. Hugh E. Cooper. The latter testified that his first examination of claimant disclosed the following:

“A definite lateral instability in the right knee joint, with a forward and backward motion of the head of the Tibia on the Femur. There was a relaxation of the lateral ligaments of the knee joint and a stretching of the crucial ligaments which control the forward and backward motion of the Tibia on the Femur. A reconstruction of the lateral ligaments was performed. A long lateral incision was made along the outer side of the thigh and along fibrous structure which extends along the outer aspect of the thigh and attaches to the upper end of the Fibula just below the knee joint was cut loose at its upper end, a hole was drilled about a quarter inch in diameter laterally through the Femur, and the long strip of Facia Lata about an inch and a half wide was drawn through the hole in the Femur and brought down on the inner side of the Femural Condyle, and we having made another incision on the inner side of the knee joint and attached this Facia into the Periostium on the inner upper end of the Tibia, there giving a new ligament, enforcing both the inner and outer side of the knee joint. A cast was thereafter applied for .a limited time.”

Dr. Cooper, in testifying further as to claimant’s present condition, stated:

“There remained little or no lateral instability in the knee, practically no forward and back movement of the Tibia on the Femur, with free motion in a straight line to about 90 degrees, as compared to complete flexion which would be about 145 degrees. Some atrophy of the muscles of the thigh is apparent,”

and according to Dr. Cooper, there exists a permanent loss of functioning in the leg of approximately thirty (30) per cent. In expressing this opinion the witness took into consideration that in work not requiring heavy lifting the disability would prove very slight, but that for active manual labor requiring complete flexion and strength, the disability would be in excess of the average of thirty (30) per cent disability, suggested in Ms answer.

The evidence supports a finding of partial loss of use of claimant’s right leg.

It is conceded that claimant and respondent were operating under the Illinois Workmen’s Compensation Act; that the accident arose out of and in the course of claimant’s employment, that the necessary notices were given, and claim filed within the period provided by statute. It further appears by stipulation that all doctor, hospital and medical bills incurred by claimant, in the total amount of Four Hundred Fifty-one and 68/100 ($451.68) Dollars have been paid by respondent.

Claimant at the time of the injury was married and was the father of three children under sixteen years of age. He was receiving Forty (40) Cents per hour and working eight (8) hours per day. His actual earmngs for the year previous covered one hundred ninety-seven (197) actual working days and amount to Six Hundred Ninety-five and 30/100 ($695.30) Dollars, which indicates that he was employed at times for more than eight hours per day. As the actual annual earnings are here shown, the award is properly made on such basis, under the construction which we place upon Section 10 (e) of the Act. Fifty (50) per cent of claimant’s average weekly wage of Thirteen and 37/100 ($13.37) Dollars being less than Seven and 50/100 ($7.50) Dollars, the minin-mm weekly compensation payment for temporary total incapacity, and as claimant at the time of his injury had three children under sixteen years of age, the basis of weekly pay is fixed at Thirteen ($13.00) Dollars per week.

From the testimony of Dr. Flint claimant’s temporary total disability ceased June 15, 1936, and the period of temporary total incapacity therefor is forty-eight (48) weeks and five (5) days for which claimant would be entitled to the sum of Six Hundred Thirty-four and 80/100 ($634.80) Dollars. He was actually paid Five Hundred Thirty-eight and 72/100 ($538.72) Dollars, leaving a balance of Ninety-six and 08/100 ($96.08) Dollars due him for temporary total disability. The amount due for thirty (30) per cent partial loss of use of his right leg is Seven Hundred Forty-one ($741.00) Dollars, making a total award due the claimant of Eight Hundred Thirty-seven and 08/100 ($837.08) Dollars, payable in sixty-four (64) weekly installments of Thirteen ($13.00) Dollars each and one final installment of Five and 08/100 ($5.08) Dollars. The last payment received by claimant was on May 20,1936. As the total number of weeks compensation has heretofore accrued claimant is entitled to immediate payment of the entire sum of Eight Hundred Thirty-seven and 08/100 ($837.08) Dollars, and an award is hereby made in favor of claimant for said amount.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” Approved July 3, 1937 (Sess. Laws 1937 p. 83) and being, by the terms of such act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from said appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3028
    Bertha Nolan and Phyllis Nolan, a Minor by Bertha Nolan, Her Mother and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    John W. Fribley, for claimants.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

From the stipulation of facts herein, it appears that for more than one year prior to the 10th day of November, A. D. 1936, one Edward A. Nolan was in the employ of the respondent as a highway maintenance patrolman in District No. 6; that on November 10th, 1936, about ten o’clock A. M., while in the course of his employment, said Edward A. Nolan was removing some broken pavement on S. B. I. Route 48 near Willey’s Station in Christian County, preparatory to replacing it with new pavement; that at such time and place, while said Nolan was working with a pick on the pavement, a truck passed at a speed of about 25 miles per hour; that the corner of the truck either struck Nolan as it was passing, or struck the pick which he was using and threw it back against him, thereby causing injuries from which he died on the same day; that said Edward A. Nolan was removed to the hospital and an emergency operation performed; that apparently the driver of the truck did not know of the injury to Nolan, and the fellow employees of said Nolan were so excited over the accident, that they failed to obtain the license number of such truck, and the driver thereof has never been located, although the Sheriff and coroner of Christian County made diligent inquiry in that behalf.

Upon consideration of the record herein, the court finds:

1. That said Edward A. Nolan and respondent were, on the 10th day of November, A. D. 1936, operating under the provisions of the Workmen’s Compensation Act.

2. That on said date said Edward A. Nolan sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same day.

3. That notice of the accident was given to the respondent and claim for compensation made within the time required .by the provisions of such Act.

4. That the earnings of said Edward A. Nolan during the year next preceding the injury were $1,440.00, and his average weekly wage was $27.70.

5. That the necessary first aid, medical, surgical and hospital services were provided by the respondent herein.

6. That said Edward A. Nolan left him surviving Bertha Nolan, his widow, and Phyllis Nolan, his daughter, both of whom were totally dependent upon the earnings of said Edward A. Nolan for their support and maintenance; that said Phyllis Nolan was born- June 27th, 1923, and therefore was 13 years of age at the time of the death of her father as aforesaid.

7. That under the provisions of Section 7-a and 7-h-3 of the Compensation Act, the amount of compensation to be paid by the respondent on account of the death of said Edward A. Nolan is Forty-four Hundred Fifty Dollars ($4,450.00), payable in weekly installments of $15.24 per week commencing on November 11th, 1936.

8. That the share of such compensation which otherwise would be payable to said Phyllis Nolan, should be paid to her mother, Bertha Nolan, for the support of said child.

9. That said Bertha Nolan is now entitled to have and receive from the respondent the sum of Seven Hundred Thirty-one Dollars and Fifty-two Cents ($731.52), being the amount- of compensation which has accrued from November 11th, 1936 to October 13th, 1937.

It Is Therefore Ordered that the share of such compensation which otherwise would be payable to said Phyllis Nolan shall-be paid to her mother, Bertha Nolan, for the support of said Phyllis Nolan.

It Is Further Ordered that an award be entered herein in favor of the claimant Bertha Nolan for the sum of $4,450.00, payable as follows: the sum of $731.52 being the amount of compensation which has accrued from November 11th, 1936 to October 13th, 1937, shall be paid forthwith. The balance of said compensation, to-wit, the sum of Thirty-seven Hundred Eighteen Dollars and Forty-eight Cents ($3,718.48), shall be paid in weekly installments of Fifteen Dollars and Twenty-four Cents ($15.24) commencing October 20th, 1937.

This award being made under the terms of the Workmen’s Compensation Act for the death of a State employee, is subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Claims Arising Out of Injuries to State Employees, and Providing for the Method of Payment Thereof,” approved July 3d, 1937 (Session Laws of 1937, p. 83).

In accordance with the provisions of such Act, this award is subject to the approval of the Governor, and upon such approval, is payable from the appropriation from the Road Fund in the manner provided in such Act.


author: Mr. Justice Yantis

text:
    (No. 2565
    Carl Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1937.

      Rehearing denied, October 13, 1937.

    Carpenter, Neltnor & Scolnik, for claimant; Charles E. Carpenter and Roy A. Ptacin, of counsel.
    Otto Kerner, Attorney General; John Kasserman and Glenn A. Trevor, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim was filed January 7, 1935 for Ten Thousand ($10,000.00) Dollars. The complaint alleges that the claimant, Carl Johnson, is a resident of Marengo, McHenry County, Illinois; that on December 17, 1933, he was employed by the respondent, State of Illinois, in the Division of Highways in McHenry County and his services consisted of the maintenance of surfaced highways, state routes 23 and 67 for which he received One Hundred ($100.00) Dollars per month. That on December 17, 1933 while claimant was proceeding in a truck supplied by the respondent from Capron to Marengo in said County in the performance of his duty as State Highway Patrolman and while exercising all due care for his own safety, a passenger automobile came directly towards the truck driven by claimant. That claimant, to avoid a collision with said automobile, and to prevent injury to himself and others, drove said truck off the highway and into a culvert; that claimant, Carl Johnson, was violently thrown to the ground, greatly hurt and as a result permanently injured. That among other injuries claimant suffered a fracture of one vertebra in the spinal column in the region of the neck, several ribs were torn loose from the spinal column, and he is permanently disabled and unable to work at his usual occupation and has lost profits and wages he could have earned if not injured as aforesaid.

That as.a result of said injuries claimant was unable to perform his usual tasks in the employment in said Division of Highways and was confined to the hospital and his home from December 17, 1933 to April 4, 1934; that during said period he received his monthly salary for January, February and one-half of March, 1934. Claimant returned to work in said Division of Highways on April 4, 1934.

As a result of said injuries claimant was confined to hospitals and put under physicians’ care, and incurred medical and hospital bills for the same to the amount of Four Hundred Ninety-eight ($498.00) Dollars which have been paid by respondent.

Respondent raises the issue as to whether claim was made within six months after the accident occurred, and as to whether application for an award was filed within one year after such accident, as required by Section 24 of the Workmen’s Compensation Act. Whether we treat the payments made to plaintiff by respondent in December, 1934 and in January, February and March, 1935 as wages or compensation, is immaterial under recent decisions of the Supreme Court of this State. Such payments tolled the running of the statute. This court finds that the claim and application were made within apt time, and that the court has jurisdiction of the parties and the subject matter.

The third issue raised by respondent is “Upon what basis can an award be made?”

Claimant by counsel, contends that there is a “disfigurement,” “a permanent deformity” of his neck, compensable under Section 8 (c) of the Workmen’s Compensation Act. Compensation for such disfigurement, if any, was not provided for under the said Act as it read in 1933, when the accident occurred. Determination of relief is restricted to the statute as it then existed.

Claimant further contends for an allowance for permanent, partial loss of use of his right arm, under Schedule 8 (e) of the Act, and for permanent partial loss of hearing of one ear. A general contention is also made for partial, permanent disability. The testimony as to any loss of hearing is negligible, claimant testifying (Abst. p. 9) in answer to the question, “Any injury to your hearing?” “A little.” The evidence as to his general disability is not sufficient to support an award therefor. He was injured December 17, 1933. He returned to work April 4, 1934, and was paid the same wages and performed the same duties as before his accident. In July, partly due to a change in method of pay and partly to a change of his status as foreman, he was put on an hourly pay basis instead of a flat rate of One Hundred ($100.00) Dollars per month, and thereafter received Eighty-five and 95/100 ($85.95) Dollars for July — Ninety-seven and 40/100 ($97.40) Dollars for August — Eighty-six ($86.00) Dollars for September — Ninety-five ($95.00) Dollars for October and Eighty-one ($81.00) Dollars for November, 1934. In answer to the question of what character of work he has done since becoming a helper on Highway maintenance work (Transcript p. 19) he testified, “General work: Whatever there was to do. Although I have been favored some, I can practically do any of it.” The part that he apparently cannot do is seemingly due to the disability in his right shoulder and arm. The evidence shows (Transcript p. 11) that when working with a horse he cannot put the harness on it because he cannot get his arm up high enough. A fellow-employee, William A. Giblin, testified that, “Plaintiff cannot raise his right arm as high as his shoulder and he can’t lift or carry any heavy weight.” The medical testimony by Dr. E. J. Berkheiser, an orthopedic surgeon of Chicago, who first examined plaintiff on February 10,1934, supports the above evidence; the Doctor testifying that there is considerable limitation of motion in plaintiff’s right shoulder, due probably to adhesions and thickening of the soft structure about the shoulder joint.

It is difficult, under the evidence, to determine the per cent of disability, or loss of use of plaintiff’s right arm, suffered by him. From a careful consideration of the entire record the court is of the opinion that the record supports an award of 33 1/3% loss of use of such member. Section 8 (d-13) provides, ‘ ‘ For the loss of an arm, or the permanent and complete loss of its use, 50% of the average weekly wage during 225 weeks.”

Under Section 8 (d-17) an allowance is made “For the permanent, partial loss of use, etc. 50% of the average weekly wage during the portion of the number of weeks in the foregoing Schedule * * * which the partial loss of use of the member bears to the total loss of use thereof.”

Plaintiff’s average weekly wage was Twenty-three and 07/100 ($23.07) Dollars. Fifty (50) per cent thereof ($11.53) for one-third (1/3) of 225 weeks is Eight Hundred Sixty-four and 75/100 ($864.75) Dollars.

An award is hereby entered in favor of claimant in said sum of Eight Hundred Sixty-four and 75/100 ($864.75) Dollars for said specific loss. Such award would be payable in monthly payments of Eleven and 53/100 ($11.53) Dollars per week. As the full amount of said award has matured prior to this date, payment of the full amount at this time is approved.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 2, 1935 (Sess. Laws 1935, p. 49) and being, by the terms of such act, subject to the approval of the Governor is hereby, if and when, such approval is given, made payable from the Appropriation from the Road Fund in the manner provided for in such Act.


author: Mr. Justice Linsoott

text:
    (No. 2518
    Harry Y. Armstrong, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    George E. Drach, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

The complaint herein alleges that on the 15th day of April, A. D. 1934, claimant was driving his automobile in a westerly direction on U. S. Route No. 36 to and towards the intersection thereof with a paved highway leading south therefrom to the Town of Loami, Illinois, and was in the exercise of all due care and caution for his own safety; that one of the servants and agents of the respondent, to-wit, an employee of the Division of Highways was then and there driving a motor vehicle of the respondent a short distance ahead of the claimant and going in the same direction; that said employee of the respondent carelessly and negligently stopped the vehicle which he was driving, at or near the aforementioned intersection abruptly and without warning to the claimant; that the claimant was unable to stop his automobile in time to avoid a collision, and his automobile collided with the motor vehicle of the respondent and was damaged to the extent of $50.00, for which amount he seeks an award in this proceeding.

The Attorney General has moved to dismiss the case for the reason that the respondent is not liable for the negligence of its servants and agents under the facts set forth in the complaint.

The report of the Division of Highways presents a state of facts entirely different from that set forth in the complaint herein, but for the purposes of this motion, the facts set forth in the complaint will be taken as true.

This court has repeatedly held that the State in the maintenance of its hard-surfaced roads is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents, in the absence of a statute making it so liable. Allerton vs. State, 8 C. C. R. 218; Schweizer vs. State, 8 C. C. R. 432; Wright vs. State, No. 1981, decided at the September, 1935, Term; George McCready vs. State, No. 2604, decided at the September, 1935, Term; Joe Boner, et al. vs. State, No. 2529, decided at the September, 1935, Term.

There is no statute authorizing an award under the facts set forth in the complaint and we therefore have no jurisdiction to allow an award. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, No. 2473, decided at the January Term, 1937.

The motion of the Attorney General must therefore be sustained. Motion allowed. Case dismissed.


text:
    (No. 2513
    Edward Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    William R. Jordan, for claimant.

      Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges in substance that claimant resides at the corner of Lincoln and Eighth Streets in Hinsdale, Illinois; that on the evening of April 6th, 1934, a member of the Army Air Corps lost control of the plane which he was piloting, and landed same on the premises occupied by the claimant, striking a certain plow and disc owned by the claimant and demolishing same, to the damage of the claimant of $62.50, for which amount he seeks an award in this proceeding.

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

The report of the Adjutant General indicates that the accident in question was not caused by any fault or neglect on the part of the pilot, but for the purposes of this motion, the facts set forth in the complaint will Be taken as true.

The complaint does not allege that the pilot of the plane was an agent or servant of the respondent, nor does it allege that the damage in question resulted from any negligence on the part of said pilot. However, even if the proper allegations in that behalf were set forth in the complaint, we would have no authority to allow an award.

The State in the control and regulation of the Illinois National Guard, is acting in a governmental capacity, and this court has repeatedly held that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents, in the absence of a statute making it so liable. Haye, et al. vs. State, 5 C. C. R. 359; Kershow vs. State, 6 C. C. R. 587; Winnebago County, etc. vs. State, 7 C. C. R. 95. No such statute has been called to our attention, and in the absence thereof, we have no authority to allow an award. The motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2497
    William Nelson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    E. H. Wegener, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges in substance that prior to and on the 31st day of August, A. D. 1934, the claimant resided on a farm known as the Henry Bode farm in Randolph County, Illinois, which adjoins the premises of the Southern Illinois Penitentiary; that on said date a number of convicts from such Penitentiary in charge of a guard, were burning grass and rubbish on the respondent’s property, and thereafter returned to the prison without having put out the fire; that said fire afterwards spread and was communicated to a shed on the land occupied by the claimant, in which certain tools were kept, whereby said shed, tools and implements were destroyed, and the claimant seeks an award for the value thereof.

The Attorney General has moved to dismiss the case for the reason that the respondent is not liable under the facts set forth in the complaint.

The report of the Farm Superintendent of the respondent sets up a state of facts which are entirely at variance with the facts set forth in the complaint, but for the purposes of the aforementioned motion, the facts set forth in the complaint will be taken as true.

We have repeatedly held that the State in the conduct and maintenance of its penal institutions is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable.

The question here involved was presented to this court in the case of Rocco Titone, et al. vs. State, No. 2473, decided at the January Term, 1937, of this court. In that case, after a careful and exhaustive consideration of the authorities, we held that the State was not liable for damages caused by a fire which spread as the result of the negligence of the servants and agents of the respondent in the employ of its Highway Department.

Under the decision in the Titone case we have no authority to allow an award.

Motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2423
    George Stone, a Minor, by Lula Marshall, Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 1, 1937.

      Rehearing denied October 13, 1937.

    T. A. Gasa way and G. 0. Borders, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The complaint in this case alleges that George Stone, a minor, was riding in a car on a State Highway known as Route No. 11, which tunneled under the Baltimore and Ohio and Pennsylvania Railroad Tracks, on the Northern City Limits of East St. Louis, Illinois, and that there w'as constructed along that portion of the Highway usually used, a side walk for the use of foot travelers and pedestrians, and this side walk was protected by a certain iron railing through said tunnel; that said railing was constructed by iron posts and iron pipes spaced about two feet apart, the upper rail or pipe of which was fastened to the iron post by steel clamps ; that it became, and was the duty of the' Highway Department of the State of Illinois, to use due care and caution to keep said railing in reasonable repair and safe condition for the use of people lawfully using the Highway; that the Highway department disregarded its duty in this behalf and carelessly and negligently permitted the top iron rail or pipe to become in a bad and unsafe condition and repair; that where the same passes through the tunnel, one end was broken loose from its iron support and the south end of the said top iron pipe bent and protruded into the path where motor vehicles were being driven, and that about the hour of 9:00 P. M. on the 3rd day of July, 1933, the claimant while riding in an automobile traveling in a northerly direction, and while in the exercise of due care and caution for his own safety, struck the said railing with his right arm; that the arm was fractured and remained stiff; that he was put to the expense of $500.00 for doctors ’ bills and hospital bills, and asks the sum of $10,000.00 damages.

The boy was 18 years of age at the time of the accident. The proof substantiated the charges made in the declaration.

The Attorney General has made a motion to dismiss the case for the reason that damages are sought for an injury sustained because of the alleged negligence of the Highway Department, and urges that the case be dismissed for the reason that in the construction and maintenance of roads the State acts in its governmental capacity, — it is exercising its sovereign powers — and it does not permit these powers to be questioned by any tribunal. It can only act through its officers and employees, and if these officers perform their duties in a negligent manner, the negligence is the negligence of the officers and not of the State. These well known principles of law are so thoroughly established that citation of authorities seems unnecessary. In the case of Kinnare vs. City of Chicago, 171 Ill. 332, the rule is announced in the following language at page 335: “The State acts in its sovereign capacity, and does not submit its action to the judgment of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages, as master, for ne'gligent acts of its servants to the same extent as is the State itself, unless such liability is expressly proved by the statute created such agency.” See also Cooney vs. Town of Hartland, 95 Ill. 616; Jorgensen vs. State, 2 Ct. Cl. 14; and many other authorities are cited.

Claimant contends that the motion of the Attorney General should be dismissed for the reason that Paragraph 4 of the Court of Claims Act provides that: “The Court of Claims shall have power to hear and determine all claims and demands, legal and equitable, liquidated and unliquidated, ex contractu and ex delicto, which the State, as a sovereign commonwealth, should, in equity and good conscience, discharge and pay. ’ ’ This provision of the statute has been before this court in the case of Crabtree vs. State of Illinois, 7 Court of Claims Reports, page 207, where we said: “The provisions of Paragraph 4 of Section 6 of Court of Claims Act with reference to equity and good conscience merely defines the jurisdiction of the court and does not create a new liability against the State nor increase or enlarge any existing liability and limits jurisdiction of court to claims under which State would be liable in law or equity, if it were suable, and where claimant fails to bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure one.”

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

Case dismissed.


author: Mb. Justice Yantis

text:
    (No. 2355
    Edward Shilkitis, a Minor, by Stella Shilkitis, His Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 10, 1937.

      Rehearing denied October 13, 1937.

    John T. Zuris, for claimant.
    Otto Keener, Attorney General; John Kassbrman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Edward A. Shilkitis, at the age of thirteen years, was on January 10, 1931 committed to the St. Charles School for Boys. At that time he was in good physical health. His only assignment at the Institution up to October 27, 1932 was as a Saxophone and Clarinet played in the band. On the latter date one Bruce Meyer, an employee of the institution and in charge of the laundry, called Edward into the laundry and requested him to operate the mangle. He had received no previous instruction as to the handling of such machinery, and while operating it his clothing caught in the machine and his right hand was pulled into the mangle up to his elbow; that when he screamed for assistance, attendants attempted to extricate his arm, but because of the defective condition of the machine and the negligence of employees, his arm instead of being pulled out was drawn further into the mangle up to a point near the shoulder; that his arm was so crushed and torn it became necessary to amputate same at a point four inches below the shoulder, thereby ending his musical career, for which he had shown real promise, and handicapping him for all future time in earning a livlihood.

His claim for an award of Ten Thousand ($10,000.00) Dollars was filed herein by Stella Shilkitis as his mother and next friend.

The Attorney General has filed his motion to dismiss said claim for the reason that on its face it is an attempt to collect for injuries suffered by one while an inmate of one of the State’s charitable institutions, and further that such recovery is predicated upon the negligence of the State and its employees in placing Edward Shilkitis at the work in which he was injured, without his having received adequate prior instruction therefor.

Claims against the State by those who have been committed to its charitable or penal institutions have arisen before. One claim was based upon alleged ill health of the inmate, occasioned by the fact that the food in such institution was steam-cooked, which, he was not accustomed to and his stomach would not properly digest steam-cooked foods.

Another has complained of the unduly severe character of labor to which he was assigned.

In these and all other cases of a similar character, this court, as at present constituted, has felt compelled to deny any award. These matters were considered in the cases of Lillie Bell Jones vs. State, 8 C. C. R. 78 and Butler vs. State, 8 C. C. R. 103. • In the former case this statement appears, ‘ ‘ Strictly public institutions created, owned and controlled by the State or its subdivision such as State asylums, city hospitals, reformatories, etc., are not liable for the negligence of their agents. The doctrine of ‘Respondeat Superior’ does not apply.”

The serious and permanent injury suffered by this boy appeals most strongly to the sympathies of the court, and an opinion herein has long been delayed in the hope that some legislative action might be taken whereby the Court of Claims could in its discretion allow an award in cases where gross negligence upon the part of some employee of the State appears in the record, without any contributory negligence upon the part of the claimant. Even then however, the propriety of awards being granted to inmates of penal institutions would remain a question of grave doubt.

Under existing law and policies the court is compelled to dismiss the claim. Motion granted and claim dismissed.