author: Mr. Justice Yantis-

text:
    (No. 2655
    M. I. Leviton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    Jacob Goodman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis-

delivered the opinion of the court:

Claimant herein seeks to recover Three Hundred Seventy-two and 30/100 Dollars ($372.30), alleged to be the amount of damages to a Buick sedan as the result of an automobile collision on November 14, 1934. Claim was filed April 16, 1935 and it is alleged that on the day in question claimant was driving his automobile in a westerly direction on Diversey Parkway in Chicago; that one Elwing Carlson, a first-class Private in the 33rd Signal Company, Illinois National Guard, was then and there driving a State owned Chevrolet truck in a westerly direction on said highway and was driving at a speed of approximately fifteen (15) miles per hour; that claimant attempted to pass the truck but that the driver of the latter negligently, recklessly and carelessly and without giving a warning signal of any kind to indicate an intention of turning, suddenly swung and drove the truck toward the left thereby striking claimant’s automobile in the center of the right rear fender; that claimant’s automobile was thereby caused to collide with the curb and extensive damages resulted to the car, as set out in the bill of particulars attached to the complaint, whereby claimant was caused to expend the amount of Three Hundred Seventy-two and 30/100 Dollars ($372.30) in repairs.

Claimant recites that claim was presented to the Hon. Carlos Black, Adjutant General, and the latter denied liability, whereupon claim was filed herein.

A motion to dismiss the claim has been filed by the Attorney General on behalf of respondent for the reason that the damage, if any, is alleged to have been by reason of the negligence of the servant or agent of respondent, for which the State cannot legally be asked to respond for the reason that the State is not liable under the doctrine of respondeat superior for the negligence or torts of its servants.

As suggested by the' Attorney General:

“The rule is universal that the State is not liable for the negligence of its agents and employees, unless there is a statute making it so liable and in this State there is no such statute, and unless a claimant can show a legal or equitable liability on the part of the State for damages sustained as a result of the negligence of its employee or agent, the court has no authority to make an award.”
Derby vs. State, 7 C. C. R. 145.

Counsel for claimant in his brief upon the motion to dismiss contends that an award should be made regardless of legal liability, on the grounds of social justice and equity.

The position of the court upon claims so made has been repeatedly set forth in decisions to be found in Volume 8 of the Court of Claims Reports and is further stated in Crabtree vs. State, 7 C. C. R. at Page 219, where it is stated:

“Before a claimant can have an award against the State, he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point out any law giving him the right to an award, he cannot invoke the principle of equity to secure the award. Where there is no legal liability, equity cannot create one. Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to the high standard of abstract right, regardless of the law. * * *
“To give this statute the construction contended for by claimant would result in giving this court power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far-reaching change in the law when it enacted the statute creating this court.”

No award could properly be made by the court under the statements contained in the complaint, and the motion by the Attorney General to dismiss is therefore allowed and the claim dismissed.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2604
    George McGready and John DeLuise, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    Alois S. Knapp, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges that on December 23d, 1934, about six o ’clock A. M., claimants were traveling in the automobile of the claimant, George McGready, in a westerly direction on U. S. Highway No. 20, between the cities of Chicago and Elgin; that it was dark and the road was icy and slippery; that one of the highway trucks of the respondent was standing on said highway near the foot of a hill; that as claimants drove over such hill they could not see the aforementioned truck; that no light, lantern or flare was placed on or about such truck; that although claimants were in the exercise of all due care and caution, they could not prevent the car in which they were riding from running, skidding and sliding into the truck of the respondent; that as the result of such collision, the automobile of the claimant McGready was damaged and the claimant John DeLuise sustained personal injuries; for which compensation is sought in this proceeding.

Claimants base their right of action on the negligence of the employees of the State Highway Department in charge of such truck.

The Attorney General has filed a motion to dismiss on the ground that the doctrine of respondeat superior has no application to the State under the facts alleged in the complaint.

In the maintenance of its durable hard-surfaced roads, the State of Illinois is engaged in a governmental function. Elsie Baumgart vs. State, decided at the November Term, 1934, of this court; Goldie Ryan vs. State, decided at the January Term, 1935 of this court; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104; Chumbler vs. State, 6 C. C. R. 138.

In the exercise of its governmental functions, there is no liability on the part of the State for the negligence of its servants and agents, in the absence of a statute making it so liable. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; 25 R. C. L., p. 407, Sec. 43.

There is no statute in this State making the respondent liable under the facts alleged in the complaint, and the motion of the Attorney General must therefore be sustained. The liability, if any there be, rests upon the employee in charge of the truck in question, and not upon the State.

The motion to dismiss will be allowed. Case dismissed.


author: Mr. Chief Justice Hollerioh

text:
    (No. 2640
    Frank J. Penick and Neva D. Penick, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1937.

    Paul G. Weisenhorn, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

Claimants filed their complaint herein on March 22d, 1935, and allege therein that on the 4th day of November, A. D. 1934, at six o’clock P. M., the claimant Frank J. Penick was driving the automobile of the claimant Neva L. Penick in a southeasterly direction on S. B. I. Route No. 36 between Quincy and Payson in this State; that at the same time and place one of the servants and agents of the respondent who was in charge of a certain highway truck of the respondent, permitted such truck to be stopped on such highway, headed in a southeasterly direction, and also permitted the same to stand on said highway in such position that there was not room for two vehicles to pass upon said road, in violation of the statutes of this State; that the servant or agent of the State having charge of such truck carelessly and negligently failed to place any warning signals on said highway, and that as a result thereof the automobile of the claimant Neva L. Penick was caused to and did collide with said motor truck, and thereby the said automobile was damaged and the claimant Frank J. Penick was seriously and permanently injured.

The Attorney General has filed a motion to dismiss for the reason that there is no liability on the part of the respondent under the facts set forth in the complaint, the State not being liable "under the doctrine of respondeat superior.

Claimants contend that even if the State is not liable under the doctrine of respondeat superior, still an award should be allowed on the grounds of equity and good conscience.

The same contention was made in the case of Lester A. Royal vs. State, No. 2597, decided at the present term of this court. In that case the court sustained the motion of the Attorney General and dismissed the case.

For the reasons there set forth the same ruling must be made in this case.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Yantis

text:
    (No. 2606
    Dean L. Rider, M. D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    O ’Bbien & Hanbahan, for claimant.

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

delivered the opinion of the court:

Claimant alleges that on December 7, 1934 he was driving an automobile then owned by him in a westerly direction on 67th Street in Chicago then and there being in the exercise of ordinary care for the safety of himself and property; that an agent or servant of the respondent was then and there operating a motor truck owned by the State of Illinois bearing License Number 1164M — 1934; that the driver of said truck failed to stop at a stop signal located at the intersection of 67th Street and Crawford Avenue and that as a result of the negligent and careless operation of said motor truck same collided with claimant’s automobile and the latter was damaged to the extent of One Hundred Nineteen Dollars ($119.00).

A motion to dismiss the claim has been filed by the Attorney General on behalf of respondent for the reason that the damage, if any, is alleged to have been by reason of the negligence of the servant or agent of respondent, for which the State cannot legally be asked to respond for the reason that the State is not liable under the doctrine of respondeat superior for the negligence or torts of its servants.

As suggested by the Attorney General:

“The rule is universal that the State is not liable for the negligence of its agents and employees, unless there is a statute making it so liable and in this State there is no such statute, and, unless a claimant can show a legal or equitable liability on the part of the State for damages sustained as a result of the negligence of its employee or agent, the court has no authority to make an award.”
Derby vs. State, 7 C. C. R. 145.

The position of the court upon claims so made has been repeatedly set forth in decisions to be found in Volume 8 of the Court of Claims Reports and is further stated in Crabtree vs. State, 7 C. C. R. at Page 219, where it is stated:

“Before a claimant can have an award against the State, he must show that he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point out any law giving him the right to an award, he cannot invoke the principle of equity to secure the award. Where there is no legal liability, equity cannot create one. Equity is not the court’s sense of moral right; it is not the power of the court to decide a case according to the high standard of abstract right, regardless of the law. * * *
“To give this statute the construction contended for by claimant would result in giving this court power to hold the State liable for the misfeasance and malfeasance of all its officers, the torts of all its servants and agents, and all damages caused by the wrongful exercise of their powers by such officers and agents. We do not believe the Legislature intended any such radical and far-r.eaching change in the law when it enacted the statute creating this court.”

No award could properly be made by the court under the statements contained in the complaint, and the motion by the Attorney General to dismiss is therefore allowed and the claim dismissed.


text:
    (No. 2597
    Lester A. Royal, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    Kelly & Pratt, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed Ms complaint herein on February 7th, 1935 and alleges therein that on the 24th day of September, A. D. 1934, about nine o’clock A. M., he was driving his automobile on a public Mghway about one and one-half miles west of Somonauk, in tMs State; that at the same time a motor truck of the respondent in the service of the Highway Department was being driven in the same direction, just ahead of claimant’s automobile; that as claimant approached said truck he sounded Ms horn, and proceeded to pass the truck on the left side of the road; that just as claimant’s car was abreast of the truck, the driver thereof, without any warning to the claimant, turned said truck to the left, across the left traffic lane and in front of claimant’s car, striking the same and forcing it from the road, whereby it was damaged to the extent of $150.00. The complaint alleges that the claimant was at all times in the exercise of all due care and caution, and that the accident in question resulted from the careless and negligent manner in which the driver of the respondent’s truck drove and operated the same.

The Attorney General has filed a motion to dismiss for the reason that the State is not liable for the negligence of its servants and agents under the doctrine of respondeat superior.

This court has held in numerous cases that in the maintenance of its durable hard-surfaced roads, the State is engaged in a governmental function. Goldie Ryan vs. State, decided at the January Term, 1935 of this court; Elsie Baumgart vs. State, decided at the November Term, 1934 of this court; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104.

The law is well settled that in the exercise of its governmental functions the State is not liable for the acts of its servants and agents, in the absence of a statute- making it so liable. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; 25 R. C. L., p. 407, Sec. 43.

Claimant contends that even if the State is not liable under the doctrine of respondeat superior, this court should allow an award on the grounds of equity and good conscience. The jurisdiction of this court is limited to claims in respect of wMch the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. Unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award. Crabtree vs. State, 7 C. C. R. 207; Johanna Morrissey vs. State, decided at the January Term, 1934, of this Court; Andrew Rehman vs. State, decided at the January Term, 1935 of this court; Peterson vs. State, 6 C. C. R. 77; Perry vs. State, 6 C. C. R. 81.

There being no statute making the State liable for the acts of its servants and agents under the facts of this case, the motion of the Attorney General must be sustained. The liability, if any, rests upon the driver of the truck, and not upon the State.

. The motion to dismiss is therefore allowed and the case dismissed.


author:
      Me. Justice Yantis
      Per Curiam:
     Mr. Justice Tantis

text:
    (No. 2329
    Charles F. Mills, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

      Rehearing denied November 12, 1935.

      Motion to set aside order denied May 12, 1935.

    Frank B. Eagleton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of- the court:

Claimant herein was appointed an “Industrial Officer in the Department of Labor” of the State of Illinois on April 29, 1930, and continued to serve as such until his successor was appointed and qualified on February 1, 1933. During his service as such industrial officer he received payment of his salary at regular intervals on the basis of Five Thousand Dollars ($5,000.00) per year. He now claims that as such officer he was entitled to a salary of Six Thousand Dollars ($6,000.00) per year, and he seeks an award for such alleged unpaid deficiency in the sum of Two Thousand Seven Hundred Fifty Dollars ($2,750.00.) Claimant contends that he is justified in his demand by reason of the fact that the salary of all industrial commisisoners was fixed by Section 14 of the Workmen’s Compensation Act at Six Thousand Dollars ($6,000.00) per year at the time of his appointment, and that it was due to the fact that the 56th G-eneral Assembly appropriated only Five Thousand Dollars ($5,000.00) per annum, (Session Laws 1931, Page 131 and Session Laws 1933, Page 134); and that he was paid on the latter basis.

The Civil Administrative Code, became effective July 1, 1917, and thereafter the Code, and not the Workmen’s Compensation Act, controlled as to the salary of members of the Industrial Commission. The Code as in force at the time of claimant’s appointment on April 29, 1930 became effective as to such appointment.

Section 5 of the Code (Laws of 1929, p. 749) provides as follows :

“In addition to the Directors of Departments the following * * * shall hold offices, hereby created and designated as follows: * * *
“In the Department of Labor * * *
“The Industrial Commission, which shall consist of five Industrial Officers, one of whom shall be designated as Chairman.”

Section 9 of the Civil Code (Laws of 1929, p. 751) provides as follows:

“The Executive and Administrative Officers, whose offices are created by this Act shall receive salaries, payable in equal monthly installments as follows:
“In the Department of Labor * * * each Industrial Officer shall receive $5,000.00 except the Chairman who shall receive $6,000.00.”

The Civil Code and not the Workmen’s Compensation Act apparently controls and fixes the salaries of Industrial Officers, and the salaries are there fixed at Five Thousand Dollars ($5,000.00) per year. As claimant'has received the full sum of Five Thousand Dollars ($5,000.00) per year for his service as an Industrial Officer, and has apparently been paid the full amount of salary fixed by law, an award herein must be denied; an award is denied and the claim dismissed accordingly.

Opinion on Rehearing.

Per Curiam:

After a careful consideration of the petition for a rehearing and the record, in the above entitled case, we find nothing therein that was not carefully considered and passed on by the court in the original opinion in this cause.

The decision heretofore rendered is found to be in accordance with the law and the facts and is hereby affirmed, and the petition for rehearing is denied.

Opinion Denting Motion to Set Asms Order Denying Petition for Rehearing.

Mr. Justice Tantis

delivered the opinion of the court:

This claim was filed February 19,1934 for Two Thousand Seven Hundred Fifty ($2,750.00) Dollars, alleged by claimant to be due him for the difference in salary received by him and that which he claims to have been due, as an Industrial Officer in the Department of Labor. An award was denied herein on September 11, 1935. A petition for rehearing was filed, and on November 12, 1935 said petition for rehearing was denied. On September 8, 1936 claimant filed his motion to vacate the order denying a rehearing.

Under Rule 34 of the Court of Claims neither the claimant nor the respondent is permitted to file more than one application or petition for rehearing. Objection by the Attorney General is urged to the pending motion, on the ground that in effect it is an evasion of the above rule. The court is inclined to agree with counsel for respondent, but prefers to rule directly upon the motion.

Claimant was appointed an Industrial Officer in the Department of Labor on April 29, 1930, and qualified on May 1,1930, and continued to serve until February 1, 1933, during which, term of office he was paid a salary at the rate of Five Thousand ($5,000.00) Dollars per year. In his complaint he bases his claim under a contention that the Workmen’s Compensation Act fixed the salary for such office at Six Thousand ($6,000.00) Dollars per annum, but that notwithstanding this, the Legislature only appropriated the sum of Five Thousand ($5,000.00) Dollars per annum for such salary. Prior to July 1, 1929 the Civil Administrative Code fixed the salary of Industrial Officers at Six Thousand ($6,000.00) Dollars, and the salary of the Chairman thereof at Seven Thousand ($7,000.00) Dollars per annum. The statute further provided that such Commissioners should hold office for a term of two years from the 3rd Monday in January of each odd' numbered year, and until his successor was appointed and qualified. (Cahill Ill. Bev. Statutes, 1927' — Chap. 24 (a), Secs. 9 and 13.) This statute was amended, effective July 1, 1929 to provide that the salary should be Five Thousand ($5,000.00) Dollars for Commissioners and Six Thousand ($6,000.00) Dollars per annum for the Chairman and that the terms of such Commissioners should expire July 1, 1929 and when their successors were appointed and qualified, and that such successors should hold office until the third Monday in January, 1931 — and until their respective successors are appointed and qualified. (Cahill Ill. Bev. Statutes, 1929, Chap. 24 (a), Secs. 9 and 13.) Claimant contends that he began his service as a part of that term of office which commenced on the third Monday in January, 1929; that that term did not expire until the third Monday in January, 1931, and since he was not reappointed at the latter date, but continued in office until February, 1933 that such service was one continuous term from the third Monday in January, 1929, and that the change in salary, effective July 1, 1929 would not affect him, as it would constitute a reduction of salary during his term of office.

As above recited', the terms of Commissioners who were serving prior to July 1, 1929, were made to terminate at the latter date, or when their successors were appointed and qualified. The record does not disclose whether claimant’s predecessor terminated his service July 1, 1929 or continued to serve until claimant was appointed on April 29, 1930, but in either event the Legislative enactment, effective July 1, 1929, fixing the future salary of Commissioners at Five Thousand ($5,000.00) Dollars would not be a reduction of salary ‘1 during the term of office” of one who was appointed on or subsequent to July 1, 1929. The “term” of plaintiff, by the amended statute began July 1, 1929. The rules concerning a continuation of salary payments at established rates to officers during a period of “holding over” do not warrant such payments to claimant in this case, under the wording of Section 13 of the Civil Administrative Code above referred to. Claimant’s official term began Jnly 1, 1929, and by the statute effective as of that date the Commissioners’ salary was fixed at Five Thousand ($5,000.00) Dollars.

Claimant’s motion will be denied not only because of the foregoing, but for the further reason that it is apparent from the record he accepted his salary from month to month as issued to him by monthly warrants of the State of Illinois, which on their face cover the period of service for which salary was thereby paid. The State Finance Act of Illinois contains the following provisions:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purposes or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

Item 3, Sec. 9, State Finance Laws as Amended, 1923.

“When an appropriation is made for personal service for specific positions at a fixed rate or at a rate not to exceed a certain amount the incumbents of such positions at the time the appropriation law goes into effect shall be paid at such rate in full and a smaller rate may be paid to persons entering upon the duties of such positions after such appropriation law goes into effect.”

Item 5, Sec. 9, State Finance.

We believe this statute to be effective and that claimant cannot accept salary warrants, purporting to cover the full amount due him for services during stated periods, and thereafter when his active service has ended, legally claim an award from the State for an additional amount for those periods for which he has apparently been paid for services in full. The motion is denied and cause stricken.


author: Mr. Justice Linscott

text:
    (No. 2186
    W. W. Hileman, Claimant vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    W. W. Hileman, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant t Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On September 5, 1931, the claimant was employed by the State as a patrolman, and was using a motorcycle furnished by the State in the performance of his duty, and while so engaged, at a point between East Moline and Geneseo, he ran into and struck an abandoned truck which was owned by P. Liebowitz, and sustained somewhat serious injuries, and claims to have never fully recovered.

It appears from the claim that the doctor, hospital and medical bills were paid by the State, and he received his salary during the time he was unable to perform his duties because of the injury, and he asks the sum of $3,000.00.

The claim was filed June 5, 1933.

The motion was made by the Attorney General to dismiss this claim because it was not brought within the year, as provided by Section 24 of the Compensation Act. The complaint shows no amount of salary paid nor does it show the amount of his medical or hospital bills which were paid, or whether or not suit was ever commenced against the person who was guilty of the negligence which caused the injuries,

If this court has* jurisdiction of such matters, it is by virtue of the Act creating the Court of Claims and the provisions thereof with reference to the Workmen’s Compensation Act. The Act provides that such cases must be determined in accordance with the provisions of the Workmen’s Compensation Act.

The Supreme Court of this State, in the case of Lewis vs. Industrial Commission, 357 Ill., page 309, held that claims under the Compensation Act must he commenced within a year from the time of the injury, and unless proper claim is brought, the Industrial Commission has no jurisdiction in such cases.

We feel we are bound by the reason in that case, and, therefore, the motion of the Attorney General to dismiss this case will be sustained.


author: Mb. Justice Linscott

text:
    (No. 2183
    Fred A. Johnson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Tebby, Gueltig & Powell, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

The complaint alleges that the claimant was during the year 1932 an employee of the State of Illinois, engaged as a maintenance patrolman on State Highways in Madison County, Illinois, and while so employed on or about the 27th day of June, 1932, while cutting weeds on the right of way of State Highway No. 159, he contracted ivy poisoning, as a result of which he was confined to the Veterans Administration Hospital at Jefferson Barracks, Missouri where he was treated for some weeks; that his health has been seriously and permanently impaired, and as a result of said ivy poisoning, he is now totally disabled and unable to work.

He avers that for the year previous to the time of the alleged injury, his wages amounted to the sum of $1,500.00. He also avers that he was paid his full wages up to and including January 28, 1933, and since that time he has been paid nothing except $20.00 for services in breaking in new men on his work.

He also avers that he prepared and mailed to the State Highway Department at Springfield, on or about June 27, 1932, an accident report showing that his injury occurred as above stated, and gave notice of his disability as aforesaid; that he has been paid nothing on account of medical care and attendance occasioned by the said injury, but has been informed by the Division of Highways that the bill of one physician had been or would be allowed. He further states that he was a married man at the time of the injury and had five children under sixteen years of age, all residing with him, and makes claim under the Workmen’s Compensation Act for the sum of $15.00 per week for each week during the continuation of his total disability, as stated in his declaration. This declaration was filed on May 27, 1933, just 11 months after he suffered from the alleged injury. There is considerable proof in the case, much of it being medical testimony, but in the view we take of this case it will be unnecessary to take into consideration this testimony, except to determine whether or not there is anything in the record tending to show that the claimant complied with Section 24 of the Workmen’s Compensation Act.

Item 6 of Section 6 of the Act creating the Court of Claims makes it the duty of this court to hear and determine the liability of the 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.”

Section 24 of the Compensation Act in part provides

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

There is no question but what the State had notice of the accident, and the claimant alleges he received his full compensation of $125.00 per month from the time that he received the injury on July 27, 1932 up to and including January 28, 1933. He, therefore, received a considerable amount more than he was entitled to under the Compensation Act. Other provisions of Section 24 of the Workmen’s Compensation Act provide 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.”

Nothing contained in the declaration or the proof shows that claim was made for compensation by the claimant in this case. Under the statute, no proceedings for compensation shall be maintained unless claim for compensation has been made within six months after the accident, and the employee has the burden of proof that the claim was so made. The making of a claim is jurisdictional, and, unless there is proof of claim, this court is without jurisdiction. (Inland Rubber Co. vs. Industrial Commission, 309 Ill. 43.) In other decisions of the Supreme Court of this State, it appears that the making of a claim for compensation is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute; (Ideal Fuel Co. vs. Industrial Commission, 298 Ill. 463) and in other cases the court has said that the statute is mandatory, and must be complied with to give the Industrial Commission jurisdiction. This court has heretofore held that it had no more jurisdiction of a compensation case of the State of Illinois than the Industrial Commission has against private employers.

Another question which arises is the fact that the claimant received his entire wages at $125.00 per month from the time of his injury up to and including January 28, 1933 payment of compensation. That is to say, was the fact that he was paid by the State more than he was legally entitled to as compensation under the Compensation Act, such a payment as would bind the State now, and also the fact because the State had paid at least a part of his medical bills such a payment as would bind the State? To both of these questions we must answer in the negative. The statute specifically provides that the payment of doctor bills and hospital bills shall not bind the employer under the Compensation Act, and in a comparatively recent case, Lewis vs. Industrial Commission, et al., 357 Ill., 309, the Supreme Court again reiterated its former holdings, and held that the making of a claim for compensation within the statutory period is jurisdictional, and a condition precedent to the right to maintain a proceeding under the Compensation Act, and also further held that a claim for compensation is not made within six months as required by Section 24 of the Compensation Act, where the employee returned to work after his injury, worked for several months before he became ill of spinal meningitis, of which hé died one month later, 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 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; nor does the employer’s promise to pay for medical services during said illness constitute an admission of liability for or the payment of compensation, where the statute at the time of the injury provided the contrary.

We, therefore, conclude that we have no jurisdiction in this case. Claim denied.


author: Me. Justice Linscott

text:
    (No. 2058
    Walter Bortowski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    John R. McSweeney, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

This case is based upon the same set of facts as set forth in the case of Joseph Schultz vs. State of Illinois, No. 2059, except that in this case the claimant was a passenger, which, in our opinion, does not change the legal situation.

The Attorney General also made a motion to dismiss this case, and the motion will be sustained for the same reasons as set forth in Schultz vs. State of Illinois, No. 2059.


author: Mr: Justice Linscott

text:
    (No. 1979
    Esther May Boyd, a Minor, by Sarah Boyd, Her Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Manuel L. Wiseman and Brown, Hay & Stephens, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr: Justice Linscott

delivered the opinion of the court:

The claimant, Esther May Boyd, a minor, by Sarah Boyd, her mother and next friend, filed her declaration with the clerk of this court on September 6, 1932, alleging that on March 21,1932, Esther May Boyd, then ten years of age, was standing on the sidewalk on College Avenue in the City of Alton, when a Ford truck driven by Harry H. Hawkins, an employee of the State of Illinois at the Alton State Hospital at Alton, Illinois, drove by the place where Esther May Boyd was standing talking to a former minister.

This truck had a stake body and a crow-bar about four feet long was sticking out over the side of the truck and as it drove by it struck this child knocking her down to the sidewalk and breaking the right pelvis.

She was taken to a hospital owned by the State and treatments were given her by State doctors.

Damages in the sum of $10,000.00 are asked.

No question arises as to how the accident occurred. After being taken to the hospital, X-rays were taken and good results were obtained by the setting of the fracture and there are no deformities. She was in a hospital approximately four weeks. She responded readily to treatment and Dr. Stuart of the State Hospital testified that she had fully recovered.

An attempt was made to show that she was not keeping up with her classes because of nervousness but the testimony as to that was that she had passed in her classes in school but apparently, as to arithmetic she was on trial. This had also happened once or twice prior to the accident.

Dr. Groves B. Smith, who resides at Alton, testified that he was a Neuropsychiatrist and. Physician, and that at the time he testified he was Superintendent of Beverly Farm, Inc., a school for nervous and backward children, located at Godfrey, Illinois. In his • opinion, the claimant was a child who was markedly under an increased nervous tension and emotional. There was no tenderness or rigidity over pelvis neck or along the spinal column. The mental examination was made by use of the Terkes Bridges Point Scale, which gave a mental age life of 9% years, and this was checked with the Binet Simon Test, Standard revision, which showed a mental age life of 9% years. It was his opinion that her nervous condition would need some six months further treatment of once every two or three weeks.

The child’s mother or friend was permitted to stay at the hospital with her nights during the entire time she was confined there.

The State doctors also had the similar professional training of Dr. Smith.

From all the evidence, it is quite apparent that this child has fully recovered from her injury.

Dr. Smith’s claim for services is $93.00, but this included a charge of $50.00 for his appearance in court, which could not be allowed by the court in such cases.

This court has repeatedly held that the State is not liable for injuries resulting from the negligent acts of its employees, agents or servants in the exercise of governmental functions. That doctrine is so firmly established that it requires no citation of authority.

We must, therefore, deny any award in this case.


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    (No. 2066
    Consolidated Industries, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Consolidated Industries, Inc., pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This was a claim filed on February 1, 1933 to recover the sum of $52.10, a franchise tax which was assessed and paid on a sworn report required by law made by the claimant to the Secretary of State, which report, it is alleged was erroneous. It is claimed that the Secretary assessed this corporation on issued capital stock of $3,097,500.00 a tax in the sum of $1,548.75, while it is claimed that the correct amount of issued capital stock, per the Certificate of Issuance filed with the Secretary of State on July 26, 1932 is $2,993,300.00, and they should be assessed a tax in the sum of $1,496.65, making a difference of $52.10.

From letters written when the claimant filed their claim, it is apparent that the error, if any, was claimant’s. On November 28, 1932, Secretary of State Stratton, in reply to a letter from claimant under date of November 22, 1932, said:

“In reply to your letter of Nov. 22, it appears that an amendment was filed Dec. 31, 1931, indicating $3,097,500.00 of issued stock, and this is the amount upon which the 1932 franchise tax was based.”

It appears from the file that a Certificate of Insurance was filed July 26,1932, showing $2,993,300.00 of issued capital stock. The 1932 franchise tax was paid on July 23rd, and that was based on the greater capital stock. The basis for the annual franchise tax payable by a domestic corporation shall be the amount represented in this State, determined in accordance with the provisions of the statute, of the sum of its stated capital and paid-in surplus on the thirty-first day of December of the preceding calendar year as disclosed by its last annual report, or, in case no annual report has been filed, as disclosed by any other report or document filed by it with the Secretary of State.

The above is taken from Section 132, Chapter 32 of the capital law then in effect.

It would appear that the trouble in this case is a mistake over dates. The claim is based on the theory that the franchise tax for the year 1932 was assessed on an erroneous valuation, while the claim of claimant contains a statement to the effect that the correct amount of the capital stock 4 ‘ per the Certificate of Issuance filed with the Secretary of State on July 26, 1932 is $2,993,300.00.” Assuming that that statement is true, the tax involved in this claim would not be changed, as this claim was for the taxable year from July 1, 1931 to July 1,1932. Nothing appears in the records to show when the capital stock was reduced, if at all, from the larger amount on which the tax had been formerly paid.

The claim will, therefore, be denied.


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    (No. 2305
    Orville D. Dennison, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

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

delivered the opinion of the court:

From the declaration filed, it appears that on March 18, 1931 the claimant, who was employed by the Highway Division of the State of Illinois, was using a team in leveling off the gravel road on Route 94-B from Little York, Illinois, south to the intersection of Routes 94-B with 94-A. He was operating what was known as a one-man grader or drag with horse power, and while in the performance of his duty, and without any fault of his own, one Dell McGaffin, drove an automobile against the rear end of the grader upon which claimant was riding, with such force as to knock the claimant to the ground, and he suffered injuries which necessitated him being idle from his work about 11 days, and did some damage to his harness and horses.

Claim was not filed until December 21, 1933. A claim is made in the sum of $1,000.00.

It would appear that the State had notice of this accident, but no claim in writing was made to the State in six months, and no application in writing was filed within the year, as provided by statute, and the Attorney General contends that this court has no jurisdiction to hear the case. It is true that the claimant did sustain some injuries. He settled his case with the party who was the cause of the accident, and took his note for $250.00. Fifty dollars was paid on that note. It now appears that the maker of the note, who also had a third party as a signer thereof, is insolvent.

Whatever power or authority this court has to settle matters of this kind is by virtue of the Workmen’s Compensation Act and Section 24 of that Act provides: “No proceeding for compensation under the Act shall be maintained unless claim for compensation has been made within six months of the date of the accident, ’ ’ and provides further, 'that any case, unless written .claim for compensation paid is filed within one year after the date of the last payment of compensation, the right to file such application shall be barred.” In the case of Crabtree vs. State, we held we were bound by the limitations of the compensation Act. In the case of Lewis vs. Industrial Commission, 357 Ill. 309, the Supreme Court of this State 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. In that case, the court, on page 312 of the opinion, further held that Section 24 of the compensation Act declared no proceedings 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 further held that this provision of the statute meant that unless written claim for compensation is filed within one year after date of the injury, or within one year after the date of the last payment of compensation, the right to file application therefor .shall be barred, and cites numerous other authorities to that effect.

The counsel for claimant refers to the equity and good conscience provisions of the Act creating the Court of Claims. We have heretofore had occasion to discuss this feature of the law, and in the case of Crabtree vs. State, supra, we held the provisions of Paragraph 4 of Section 6 of the 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 the jurisdiction of the court to claims under which the 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.

An award in this case will, therefore, be denied.


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    (No. 2052
    James A. Gardner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Baer & Barr, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

. This claim was filed on January 19, 1933 and avers that James A. Gardner, on the 15th day of January, A. D. 1929 and for some time prior thereto had been employed as a rock driller by the State of Illinois, acting by and through the Division of Waterways of the Department of Purchases and Construction of said State, and employed in connection with the construction of the Illinois Deep Waterway as such rock driller for the purpose of blasting rock; and on the 15th day of January, 1929, while engaged in the performance of his duties, on the north side of the lock at Brandon’s Road, and on the west side of the Desplaines River,' while removing the drill from the hole that had just been completed, the drill became lodged in the hole, and in attempting to prevent the drill from slipping back into the hole, claimant fractured his right wrist. Sufficient facts are averred to show the claimant did come within the provisions of the Workmen’s Compensation Act of the State of Illinois, and claimant alleges that he suffered damages to the extent of $5,000.00.

The testimony was taken and an abstract of that testimony filed. On cross-examination on page 10 of the abstract, the claimant testified: “I was employed by Green and Sons Company at the time of the injury.”

The Attorney General filed a motion to dismiss this claim for two reasons. One, because the claimant was not in the employ of the State at that time, and second, because claim was not filed at the right time. Either of these reasons is sufficient. Manifestly, the State should not be required to pay a claim under the compensation Act when such injured person was not in the employ of the State at the time he received the alleged injury. We do not see how there could be a mistake as to who employed the claimant. He should know, and his evidence on that should be convincing. Claimant states that he was injured sometime between the 15th of January and the 25th of January, 1929. Suit was not filed or proper claim was not made under the compensation Act for approximately four years later. Section 24 of the Workmen’s Compensation Act provides, as far as material here, as follows:

“ * * * provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case, unless application for compensation is filed with the Industrial Commission 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 shall be barred.”

To meet this argument, the claimant directs attention of the court to Sections 23 and 25 of “An Act in relation to the construction, operation and maintenance of a deep waterway from the water power plant of the Sanitary District of Chicago, at or near Lockport to a point in the Illinois River at or near Utica, and for the development and utilization of the water power thereof. This Act is commonly called the “Illinois Waterway Act.” Section 23 provides that the State should be liable for all damages to persons caused by the construction, maintenance or operation of the Illinois Waterway, and its appurtenances, such damages to persons who are employees to be ascertained, determined and fixed as provided in the Act. Without determining whether or not this provision of statute applies to injured workmen, we pass to Section 25 of the Act, also cited by claimant. This statute clearly provides that the Department of Purchases and Construction shall construct the waterway services by the direct employment of labor, services and equipment, and the State shall be liable for accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be ascertained by reference to the provisions of the Act commonly called the Workmen’s Compensation Act. The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder and shall make and file its finding and determination in each case. It must be conceded that the Court of Claims has jurisdiction over this case on account of accidental injuries or death suffered by any employee arising out of and in the course of his employment, the amount of such liability to be determined by provisions of the Act commonly called the Workmen’s Compensation Act, and it is argued that this claim is brought under the provisions of the Illinois Waterway Act, Sections 23 and 25; that the language of these two sections is unambiguous, and that the Court of Claims shall refer to the Workmen’s Compensation Act only in determining the amount of the liability, and that Section 10 of the Court of Claims Act provides that every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed within five years after it first occurred. It is our opinion that the Legislature intended to give an employee of the State of Illinois the benefit of the Workmen’s Compensation Act to the same extent and in the same way that benefit is extended to other employees of the State, doing similar or equally hazardous work. The Act creating the Court of Claims and determining its jurisdiction in compensation cases, gives the.court power “to hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made according to the rules prescribed in the Act commonly called the Workmen’s Compensation Act, the Industrial Commission being hereby relieved of any duty relative thereto.”

In the case of Crabtree vs. State of Illinois, 7, Court of Claims report, page 207, we had occasion to construe this same provision, and we there held that the time which claims for compensation for accidental injuries sustained by State employees must be filed is governed by Section 24 of the Workmen’s Compensation Act and not by Section 10 of the Court of Claims Act, and that the determination of the provisions of the Workmen’s Compensation Act, as far as the same are applicable, are considered the same as though they were incorporated in the Court of Claims Act.

For these reasons, the motion of the Attorney General will be sustained.


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    (No. 2104
    J. H. McIntyre & Co., a Corporation of Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

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

delivered the opinion of the court:

J. H. McIntyre & Co., a corporation, organized under the laws of the State of Illinois, filed its declaration for the return of a franchise tax unlawfully demanded by the Secretary of State “for the years of 1928, 1929, 1930, 1931 and 1932, and asked damages of $100.00. The file contains a stipulation between the parties as follows:

“It is hereby stipulated and agreed by and between the parties hereto, by their respective counsel, that the following represents a true statement of the facts with respect to the claim of the plaintiff in the above named suit:
1. That plaintiff was incorporated under the laws of the State of Illinois in November of 1919, with an authorized capital stock of $40,000, consisting of 400 shares of common stock of the par value of $100 each.
2. That during the year 1919 there was issued $21,200 of such capital stock, all of which stock remained outstanding during the period from 1919 down to and including December 30, 1932, at which time, through the voluntary surrender by the stockholders of a part thereof, in accordance with the statute in such case made and provided, the issued capital stock was reduced from $21,200 to $10,000; that for each of the years 1928, 1929, 1930, 1931 and 1932 the plaintiff filed with the Secretary of State of Illinois its annual reports, as required by law; that following the filing of such reports, the Secretary of State of Illinois mailed to the plaintiff notices in writing to the effect that there was due to the State of Illinois for the year next ensuing, commencing, respectively on July 1, 1928, 1929, 1930, 1931 and 1932, the sum of $20.00, with the statement that such franchise tax of $20.00 was based upon all of plaintiff’s authorized capitalization; that such statements should have been in the amount of $10.60 each, based upon the issued capital stock of $21,200.
3. That upon receipt of the notices mentioned in paragraph 2 above, defendant made payment of the amounts shown as due, in the aggregate of $100, or $47.00 in excess of the amount which should have been charged against and paid by the plaintiff as a franchise tax to the State of Illinois, under the laws in effect with respect to the assessment and collection of franchise taxes for each of the years in question.”

This court has in numerous cases held:

“Where it appears from undisputed facts that franchise tax, in excess of amount due was made through mutual mistake of fact, an award will be made.”
Commercial Nat’l Bank & Trust Co., vs. State, 7 C. C. R. 122;
Bates Valve Bag Corp. vs. State, 7 C. C. R. 64;
Cairo Water Co. vs. State, 7 C. C. R. 6.

It appears in the stipulation that the claimant has overpaid the State the sum of $47.00.

We, therefore, make an award in the sum of $47.00 in favor of J. H. McIntyre & Co. against the State.


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    (No. 2024
    J. Maxwell Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Gariepy & Gariepy, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Petition was originally filed for claimant by the clerk of this court on December 5, 1932 and an amended petition was filed October 25, 1933. The petition states that the claimant was employed by the State of Illinois as a foreman of the St. Charles School for Boys at St. Charles, Illinois, at a weekly wage of $71.50 per week; that on May 4, 1931 he sustained accidental injuries which arose out of and in the course of his employment, by falling a distance of 18 or 20 feet, sustaining injuries to his back and left leg, and the petitioner avers: “although sick, sore and lame, he returned to his supervising post, which required no physical labor.”

Permanent disability is claimed for the left leg and back, and a disability to the right leg. Compensation as provided by Section 8 of the Workmen’s Compensation Act of this State is requested.

The motion is made by the Attorney General to dismiss for the reason that the claim was not filed within the time fixed by Section 24 of the Workmen’s Compensation Act. Section 24 of the Workmen’s Compensation Act provides, as far as material here:

“* * * provided, no proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident, provided that in any case, unless application for compensation is filed with the Industrial Commission 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 shall be barred.”

No claim is made that compensation was ever paid in this case. Under the Court of Claims Act we are bound to follow the Workmen’s Compensation Act in a case of this kind.

Under the decision of the Supreme Court of this State, the above quoted part of the statute is jurisdictional. No claim for compensation having been made within six months after the accident, or within one year after the date of the injury, this court has no jurisdiction.

Claim will, therefore, be denied.


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    (No. 2057
    Tony Monaco, Administrator of the Estate of John Monaco, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

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

delivered the opinion of the court:

The facts alleged in this case are as follows: That on the 9th day of January, 1932, the respondent, the State of Illinois, through its agents, the West Chicago Park Commissioners, was in control of a certain public park known as Columbus Park, situated in the Town of West Chicago, in the City of Chicago, County of Cook, and State of Illinois; That the West Chicago Park Commissioners, seven in number, were appointed by the Governor of the State of Illinois, and the Board had been given power to manage and direct all parks authorized by statute, to lay out, regulate and improve the same, and to pass ordinances for the government thereof, the total cost of the parks to be assessed on the property benefited, to appoint a police force, etc.; that the respondent, by and through its agents, the said Commissioners, had directed and maintained various conveniences, comforts and means for diversion for the convenience of the general public, and among other things, appeared a small body of water, commonly known as a lagoon or pond, to be used for boating and swimming in summer and skating during the winter.

It was then averred that it became and was the duty of the respondent to take all precautionary measures required by reasonable prudence to guard against dangers which might arise because of insufficient thickness of the ice, and to warn the public against such danger by proper signs; that it disregarded its duty in this behalf, and that claimant’s decedent, an infant of, to-wit 12 years of age, was in the park, seeking diversion and amusement, and while in the exercise of care and caution for his own safety, was attracted by the ice for purpose of skating upon it, and did go upon it, and it gave way and broke, and decedent was thrown into the water and was drowned. The declaration consists of two counts, both setting forth the same cause of action in a little different way.

A general and special demurrer was filed to the declaration, and later, when the new Practice Act of this State became effective, that was changed to a motion to dismiss.

We are further compelled to take judicial notice of the fact that the Commissioners are officers of a municipal corporation, capable of suing and being sued. This court has repeatedly held that it has no jurisdiction under “An Act to create the Court of Claims and prescribe its powers and duties,” to entertain suits filed by individuals against municipal corporations as such individuals must seek their legal remedy in courts of record in this State. Further, that such municipal corporations as the Board of Park Commissioners of Lincoln Park, the West Chicago Park Commissioners, and the South Park Board of the City of Chicago, and Boards of Education of cities or school districts, are not arms or agencies of the State government so as to bring them within the jurisdiction of the Court of Claims. (See Perkins, Fellows & Hamilton vs. State, 4 C. C. R. 197; Mary O’Brien vs. State, 5 C. C. R. 30; William Dawson vs. State, 5 C. C. R. 41; Otto Stein, Admr. vs. State, 6 C. C. R. 329; Union Bank of Chicago, Admr. vs. State, 6 C. C. R. 370; Joe Williams vs. State, 6 C. C. R. 456; Ella Kirkpatrick, et al, vs. State, 6 C. C. R. 480, and several other opinions all to the same effect.

The motion to dismiss will, therefore, be sustained.


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    (No. 2072
    James Morlock, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Charles J. McKeown, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

James Morlock, claimant, was the proprietor of a gasoline filling station located at 401 South Chicago Street, in the city of Joliet, Illinois, that location being on the southwest corner of the intersection of East Marion Street with said South Chicago Street, both streets being public highways. He sold the usual grades of fuel oils and various automobile accessories and supplies. He did car greasing, and servicing cars, repairing tires, etc., and' from this business he received a fair and reasonable profit, and was entitled to the enjoyment of free and unobstructed ingress and egress to and from his said place of business, both for himself and patrons, access being had to the said premises by means of South Chicago Street.

The declaration further charges that on October 5, 1932, South Chicago Street was closed to all traffic by the Division of Highways of the Department of Public Works and Buildings of the State of Illinois, from the south line of the intersection of East Washington Street to the north line of the intersection of Fifth Avenue, which blocked off the claimant’s place of business, and that the said South Chicago Street remained closed from the Fifth day of October, 1932 to the Eighth day of December, 1932.

It is charged that the closing off of the streets herein mentioned caused the claimant damage in the sum of $750.00. A Bill of Particulars was filed showing the profit that accrued to the claimant for preceding months.

The Attorney General has moved to dismiss.

It is not claimed that the State unreasonably delayed the work being done. The declaration charges that the closing of this street was done by the Division of Highways of the Department of Public Works and.Buildings of the State of Illinois, and was done for the purpose of improving the public highway. It is not claimed that any of the claimant’s property was taken, but only that he suffered loss of profits while this improvement was being constructed. It is not contended that the action of the State was without warrant of authority.

In the construction of such improvements for the benefit of the public, that some citizens should suffer inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work in cases of this character, is unavoidable, but this would not give a cause of action against a municipality under the same circumstances. (See Peck vs. Chicago Rys. Co., 270 Ill. 35, 40, and cases therein cited.)

For the same reason, the same circumstances would give no cause of action against the State. The case above referred to and the cases cited therein are in point in this case.

Therefore, the motion of the Attorney General in this case will be sustained.


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    (No. 1968
    William R. Schaffer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Samuel M. Friedlander, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The declaration is based upon an action of trespass on the case, and alleges that on or about the 1st day of April, 1926, the claimant plead guilty to the crime of larceny in the Circuit Court of Peoria County, Illinois, and thereafter, on or about the 1st day of December, 1926, he was taken into custody charged with violating his parole and was sentenced to serve a term of one to ten years in the Joliet penitentiary; and while confined in this institution, he was required to perform certain labor; that on or about the 1st day of August, 1927, at and under the directions of the warden and his subordinates and officers, the claimant was working with twelve other inmates of said institution in a stone quarry, and while in the performance of his duties that were required of him, and while in the exercise of due care and caution for his own safety and the safety of others, a great quantity of rock weighing about eight tons fell upon him striking his left lower limb and causing him great and severe pains, requiring him to be confined in the hospital of that institution for a period of thirteen months; that these injuries necessitated three major operations, and incapacitated him from the further use of said limb and leg and marred and disfigured the said limb in such a condition that the said limb is wholly useless.

It is also alleged that on the 29th day of July, 1927, the claimant, while in the exercise of due care and caution for his own safety, sustained a broken toe and injury to the same foot while in the course of his labors while confined in this institution, and that on the 1st day of August, 1927, the date on which the rock fell on his leg, he was forced to work in the stone quarry by the orders of the warden and his subordinates and officers, in a condition which warranted his care and confinement in the hospital of the institution; that he informed the officers in charge that the rock which later fell was in a dangerous position and about to fall, and that unless the circumstances were changed, the claimant and other inmates were refusing to perform their duties in the stone quarry, but disregarding these warnings, the officer in charge, forced the claimant and his fellow inmates to continue with their duties in the stone quarry; that the stone did fall and crushed and injured claimant’s leg and it became necessary to remove the bone of the major portion of the lower left limb, and that the injuries were permanent, and damages in the sum of $25,000.00 are asked.

The Attorney General has filed a motion to dismiss on the grounds that claimant is seeking to recover for an injury received by him while an inmate at the Joliet penitentiary and, therefore, the State is not liable, and also on the grounds that the declaration was filed July 30, 1932 and alleges that the injuries for which the claim was filed occurred on August 1, 1927, and no showing is made in the declaration that the requirements of Section 24 of the Compensation Act were complied with.

Our view of this case is that the claimant is not an employee of the State of Illinois so as to bring him within the terms and conditions of the Workmen’s Compensation Act.

In the absence of statute, the State is not liable to a convict for injuries sustained by him as a result of the negligence of a prison employee, whether the convict is working! outside or inside the place of imprisonment.
Clodfelter vs. State, 86 N. C. 51; Lewis vs. State, 96 N. Y. 71.

The reason for the rule is that the maintenance and conduct of such institution is a purely governmental function, to which the rule of respondeat superior does not apply.

It is said that if a prisoner has sustained injury as the result of the negligence of an officer charged with hisi custody, the injury must he attributed to the cause which occasioned his confinement.
Lewis vs. State, supra.
Therefore to enable a prisoner to maintain an action against the State or a governmental agency exercising the functions of a State in regard to a penal institution, the authority to sue them must be expressly given by the statute.

Curran vs. Boston, 151 Mass. 505.

The claim will, therefore, he denied.


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    (No. 2059
    Joseph Schultz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

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

delivered the opinion of the court:

This is a suit at law, filed by the claimant through his counsel, and alleges that on the 19th day of March, A. D. 1931, the State was operating a snow plow in a westerly direction on Ogden Avenue, a public highway in the County of Cook and State of Illinois, near the intersection of Wolf Boad, and the claimant, while exercising due care and caution, was driving an automobile in an easterly direction on Ogden Avenue. It is charged that it became the duty of the State, through its agents, to so manage, operate, control, propel and drive its snow plow so as not to injure the claimant, but not withstanding that duty, the agents of the State carelessly drove the snow plow so as to throw a large amount of snow with great force and violence against the automobile driven by claimant, by means whereof the claimant was injured.

The declaration consists of two counts, both counts practically charging the same thing and asking damages in the sum of $5,000.00.

A motion to dismiss was filed by the Attorney General for the reason that the claimant seeks to recover from an injury alleged to have been caused by the negligence of the agent of the State in the operation of a snow plow, and the State is not liable for such injuries.

The declaration was filed on January 20, 1933.

Braun vs. State, 6 C. C. R. 104, provides as follows:

“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 is negligent and such negligence causes injury or damage to the person or property of another, the negligence is then an act of the employee and cannot he regarded as the act of the State.”

It is stated in the case of Bucholz, Admrx. vs. State, 7 C. C. R. 241, as follows:

“In the construction and maintenance of the roads, the State acts in the governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its qflicers or agents in the absence of a statute creating such liability. Such has been the settled decision of this court for many years.”

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


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    (No. 2144
    Samuel S. Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    O. S. Miller, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, Samuel S. Thompson, had been in the employ of the State of Illinois under the Department of Public Works and Buildings, Division of Highways, and was engaged in the repair and maintenance of State Bond Route No. 2 near Ullin, in Pulaski County, and while engaged in that employment on the 14th day of August, 1929, while assisting in lifting a steel drum of asphalt from the ground and loading it onto a State truck, the third and fourth fingers of his right hand were caught between the drum and the steel butt of the truck, crushing and mangling them so that the fingers had to be amputated. Notice was immediately given to his superior officer and he was continued in the employ of the State at the rate of $125.00 per month until the 26th day of January, 1933, when he was discharged as an employee of the State.

The State paid all medical bills arising from the injuries, but never paid compensation for loss of two fingers. They filed this claim on April 6, 1933. The Attorney General filed a motion to dismiss this claim, because claimant did not comply with the terms and provisions of Section 24 of the Workmen’s Compensation Act of 1911, as amended, because no claim'or demand was made upon the State for compensation within six months after the date of the accident, and no application for compensation or declaration of claim was made within one year after this injury or within one year after date of the last payment made by the State to the claimant of any temporary total compensation payable under the Act. The claim was originally filed for $720.00. A subsequent affidavit appears in the file that the claim is $675.00.

The Attorney General makes objection here on the grounds that this court has no jurisdiction to make an award, in this case,- and the same should be dismissed for the reason that the record and proof submitted by the claimant fails to show that claimant has complied with the terms and provisions of Section 24 of the Workmen’s Compensation Act. Hnder the statute giving this court jurisdiction in compensation cases, we are bound to determine such cases in accordance with “the rules prescribed in the Act commonly called the Workmen’s Compensation Act.” We, therefore, have only such powers and jurisdiction as the Industrial Commission would have, were a private employer and not the State involved.

In a very recent case, that of Lewis vs. Industrial Commission, et al, 357 Ill., 309, the Supreme Court held that the making of a claim for compensation within the statutory period is jurisdictional and a condition precedent to the right to maintain a proceeding under the statute.

No claim having been filed in this case for approximately three years and nine months after the date of the injuries, we must hold that we have no jurisdiction in the matter.

Motion to dismiss this claim will, therefore, be sustained.


text:
    (No. 1897
    Roy L. Watson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    Baer & Barr, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed April 28, 1932, averring that the claimant, who is a practicing physician and surgeon in Joliet, Illinois, had been requested by a representative of the Department of Purchases and Construction, Division of Waterways of the State of Illinois, on or about April 18, 1929 to treat one James A. Gardner, who was at that time employed as a laborer by the same Department; that he did treat the said James A. Gardner for a vertical fracture through the right carpal semi lunar with slight separation, and that $125.00 is the usual customary fee for this service.

The Attorney General moved to dismiss this case.

It appears from the evidence that Dr. Watson had submitted a bill to the assistant director of this Department on November 27, 1931, for Ms services in the sum of $75.00. Dr. Watson’s testimony is to the effect that he was requested on or about April 18,1929 by a representative of the Department of Purchases and Construction to treat Gardner. That Dr. Watson did perform the services for James A. Gardner is not denied. He did not recall what foreman sent Gardner to him and someone told him to send the bill to the State. This conversation was had over the telephone.

We held in the case of James A. Gardner vs. The State of Illinois, No. 2052, that Gardner was barred from recovering from the State of Illinois, because he was not in the employ of the State at the time he received his injuries, according to his own testimony.

It is the universal rule that before a plaintiff is entitled to recover damages in any court he must prove his case by greater weight or preponderance of the evidence. The claimant in this case does not attempt to fix the identity of the alleged employees of the State who hired him to take care of Gardner. It is not shown that this employee of the State had any power or authority to hire him. One dealing with an agent is bound to know the extent of authority that that agent has to bind his principal.

Claim will, therefore, be denied.


text:
    (No. 1981
    Jacob H. Wright, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 15, 1935.

    John M. Peepers, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

This is a claim at law against the State which was filed on September 8, 1932. On the 8th day of March, A. D. 1931, about one o’clock in the morning, the State of Illinois was, through its agents, operating a motor truck driving a snow plow, clearing off the State highway on Route No. 4 between Williamsville and Lincoln, and at that time the claimant was driving a Model T Ford automobile over the same highway in a southerly direction, and claimant avers that it became and was the duty of the State, by its agents, not to allow or permit or cause a motor truck or snow plow to stand and remain upon a public highway during the period of one hour after sunset until sunrise of any day without exhibiting therefrom lighted lamps, as required by the statute.

It is further averred that the claimant, without fault or negligence on his part, and while in the exercise of due care and caution for his own safety, was driving along said highway; that the State, by its agents, wilfully and carelessly disregarded its duty and caused a motor truck and snow plow to stand and remain on a public highway without lights, as provided by statute; that due to lack of lights on said motor truck and snow plow, claimant drove his automobile against and upon said motor truck operating the snow plow, and as a result thereof, his automobile was damaged beyond repair and he received serious injuries, and has been compelled to pay out the sum of $1,395.00 for the services of physicians, surgeons and for medicines in endeavoring to be healed of the said injuries.

There are four counts in the declaration. As to the declaration and all the counts thereof, the Attorney General has made a motion to dismiss, on the grounds that the State, in the construction and maintenance of its roads, acts in the governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability. Such has been the settled decision of this court for many years. (See Morrissey vs. State of Illinois, C. C. R. 2, 454; Bucholz, Admrx. vs. State, 7 C. C. R. 241, 243, and Minear vs. State Board of Agriculture, 259 Ill. 549.)

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


author: Mr. Justice Linsoott

text:
    (No. 2437
    A. G. Fleming, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 16, 1935.

    James 0. Miller, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

On December 30, 1930 claimant was an employee of the State of Illinois at the Chester State Hospital for the care of convicts. In the course of the performance of his duties, it was necessary for claimant to remove a convict named Schultz. When the claimant entered Schultz’ cell, he was struck on the head with a receptacle, inflicting a scalp wound on the top of the head, extending over the left ear of claimant to the comer of his left eye, causing a slight brain concussion, and requiring several stitches to close the wound. After a short absence he went back to his position and continued employment until May, 1933, when he was no longer able to do the work.

This claim was not filed until July 18, 1934. Apparently, this claim has some merit, but we must hold that we have no jurisdiction in the matter. In the Court of Claims we are bound within the provisions of the Workmen’s Compensation Act, and unless a claim is filed within the time limited by Section 24 of the Compensation Act, we have no jurisdiction.

The Attorney General has made a motion to dismiss for the reason that the claim is barred by the statute. The reason for this ruling is apparent in this case. The records of the institution disclose nothing concerning the casé. No report appears to be on file at the hospital.

In the recent case of Lewis vs. Industrial Commission, 357 Ill. 309, it is held that the making of a claim for compensation within the statutory period is jurisdictional, and a condition precedent to the right to maintain a proceeding under the Compensation Act.

We have repeatedly held that this court is hounded by the provisions of the Compensation Act.

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


text:
    (No. 1817
    Lawrence Baie, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 17, 1935.

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

delivered the opinion of the court:

Claimant alleges that on July 12, 1930, a team of horses rented of him by one Henry Ederer, a patrolman employed by the State Highway Department of the State of Illinois on Route No. 71, was then and there being used by Ederer in mowing weeds; that one of the horses slipped on the embankment, fell, broke its leg and had to be shot. Claim is filed for payment .of $125.00 alleged to be the value of the horse.

There is no theory under which this court could justify an award in this ease. The team was rented by Ederer from Baie, for mutual benefit, and was not contracted for by the State. The injury to the horse was due to no outside agency or action.

“In bailments for mutual benefit the bailee is bound to use but ordinary care, and if the thing bailed is lost or destroyed without his fault the loss must fall on the owner.”
Standard Brewery vs. Bemis & Curtis Malting Co. 171 Ill. 602.
Saunders vs. Hartsook, 85 Ill. App. 55.

There being no statute making the State liable for claims of this character, and no ground of legal liability existing, this court is without authority to make an award for the damages claimed. Motion to dismiss is allowed and as no amendment could enhance the rights of plaintiff to an award, the claim is dismissed.


author: Mr. Justice Tantis

text:
    (No. 2730
    W. F. Foley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1935.

    W. F. Foley, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant seeks a refund of Eight Dollars ($8.00) for overpayment of auto license fees by mistake of fact. From the complaint and the records of the Secretary of State’s office it appears that claimant is the owner of a Buick coupe No. 186-980, engine No. 1-922-626. In applying for auto license for the years 1932 and 1933 through a mistake in information furnished by him to the Secretary of State the horse power was given as 29.04 upon which a license fee of Twelve Dollars ($12.00) was charged and paid. The correct horse power for said motor was 23.04, for which the correct license fee should have been Eight Dollars ($8.00) per year. It further appears that adjustment of the difference has been made for the license fees for the years 1934 and 1935 and claimant therefore seeks an award for the over-payment of Four Dollars ($4.00) per year for the years 1932 and 1933 or a total of Eight Dollars ($8.00).

Bach of these payments made by claimant was seemingly the result of a mistake of fact and under the law as set forth in the case of Moorman Mfg. Co. vs. State, No. 1886 and John Read vs. State, No. 2175 claimant is entitled to a return of the amount thus over-paid through said mistake.

Award is therefore hereby entered in favor of claimant for the sum of Bight Dollars ($8.00).


text:
    (No. 2232
    Walter P. Rossiter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1935.

    George V. B. Weeks, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant filed his claim on August 11, 1933, alleging that on September 21, 1932 while employed by the Division of Highways of Illinois and while engaged in work on Highway No. 17 in helping to operate a mud-jack the latter was thrown into gear without warning and the knives and blades of same struck the right hand of claimant, whereby he suffered certain injuries and the loss of use of said right hand. Complaint further alleged that claimant’s wages were $4.50 per day; that no compensation has been received for the said injury; that the claim'has never been presented to any department or officer of the State and he files his Bill of Particulars as follows:

Services of Dr. Barackman................................$ 13.00
St. Mary’s Hospital....................................... 5.00
Loss of use of hand since Sept. 21, 1932.................... 1,482.00

The Attorney General has filed a motion to strike from the Bill of Particulars Item No. 3, for the reason that same fails to show that any claim for compensation was made within six months after the date of the accident, as required by “Section 24” under the “Workmen’s Compensation Act.”

The injury, for which claim was filed, was received on September 21, 1932, and the records do not show that any claim for compensation was made until the claim was filed on August 11, 1933. Such being the situation, the claim of $1,482.00 for compensation cannot be maintained.

“No proceeding for compensation under this Act shall be maintained unless a claim for compensation has been made within six months after the accident."
Section 24 W. C. A. Ill. Revised Statutes.
“The making of a claim for compensation is jurisdictional and is a condition precedent to the right to maintain a proceeding under the Workmen’s Compensation Act.”
City of Rochelle vs. Industrial Comm., 332 Ill. 386.

The above rules would not apply to the rendering of first aid and medical treatment and an award in settlement of the bill of Dr. Barackman for $13.00 and St. Mary’s Hospital for $5.00 may be properly made.

The motion to strike from Bill of Particulars Item No. 3, for compensation for loss of use of hand, is allowed, and an award is hereby entered in favor of claimant, Walter P. Rossiter, for use of Dr. Barackman, $13.00, and for the use of St. Mary’s Hospital, $5.00, being a total of $18.00.

This award is made under the terms of the Workmen’s Compensation Act of Illinois, and is payable,.upon approval by the Governor, from the road fund appropriation, authorized under House Bill No. 1139, approved July 2, 1935.


author: Mb, Justice Yantis

text:
    (No. 2650
    Jesse R. Wagner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1935.

    M. F. Abrahamson, for claimant.
    Otto Keener,■ Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb, Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of One Hundred Twelve and 30/100 Dollars ($112.30) for damages to his automobile and expense incurred therewith as the result of an automobile collision with a State truck operated by one Joe Witteker. The complainant alleges that he was driving his automobile in a northerly direction on U. S. Highway No. 66, on March 5, 1935, approaching the intersection of State Highway No. 116; that Joe Witteker of Cullom, Illinois was driving State truck No. 527, as an employee of the Division of Highways; that Witteker negligently and carelessly drove the State truck across the path of claimant’s car striking and damaging it and causing him incidental expense thereto in the total sum of One Hundred Twelve and 30/100 Dollars ($112.30.)

The Attorney General on behalf of respondent has filed a motion to dismiss the claim for the reason that there is no legal basis of liability by which the State can be held liable for the negligence of its agents and employees. Such is the rule unless there is a statute making the State liable. This rule has been announced in many cases. See Derby vs. State 7 C. C. R. 145 and Chumbler vs. State 6 C. C. R. 138.

The motion is sustained and the claim dismissed.


author: Mb. Justice Yantis

text:
    (No. 2678
    Gust Caslyn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1935.

    Thomas H. Taylor, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of One Hundred Fifty Dollars ($150.00) for damage to a horse owned and used by claimant while in the employ of respondent in cutting weeds and grass growing along State Route No. 81 near Cambridge, Illinois. The claim alleges that while so working one of the horses slipped and was cut by the blade of the mower on the right rear leg, leaving the horse in a lame condition and reducing his value from One Hundred Seventy Five Dollars ($175.00) to Twenty Five Dollars ($25.00).

The Attorney General on behalf of respondent moves to dismiss the claim for the reason that there is no existing law or statute authorizing an allowance of such claim.

Even negligence on the part of respondent, though none is alleged here, could not authorize an award in this case. The right of redress by an injured employee is fixed by the terms of the Workmen's Compensation Act but there is no rule of law by which the State can be held to insure the property of an employee that is being used by such employee as appears in the complaint herein. The possibility of such loss or damage to the property is a risk incident to the employment, and this risk was assumed by claimant when he accepted the employment in question.

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


text:
    (No. 2684
    The Kerber Packing Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1935.

    Barber & Barber and R. L. Kemler, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

A stipulation of facts has been filed herein whereby it appears that an order was placed with claimant by the State through the Division of Purchases, for supplies to be furnished to the Kankakee State Hospital; that pursuant to such order shipments were duly made on April 11,1933, April 25, 1933, May 8, 1933, May 23, 1933, June 5, 1933 and June 19, 1933 of the merchandise specified in the purchase order. The supplies were duly received and paid for except the first shipment of April 11,1933. No voucher for payment for said item was issued prior to September 30, 1933 and same remains unpaid due to the fact that the appropriation from which it might have been paid lapsed September 30, 1933.

A report from the Managing Officer of the Kankakee State Hospital states that the merchandise was duly received and used and is unpaid for because of the above facts.

“Where the facts are undisputed that the State received supplies as ordered and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could be paid, an award for the amount due will be made in the absence of the showing of laches upon the part of claimant.”
Shell Petroleum, Corp. vs. State, 7 C. C. R. 224;
Grant Tire Co. vs. State, 7 C. C. R. 183.

The claim is hereby allowed and an award made in the sum of Eighty Five and 73/100 Dollars ($85.73).


text:
    (No. 2564
    Edward G. Morgan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1935.

    Edward G. Morgan, pro se.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant seeks an award of Thirty Five Dollars ($35.00) for damages resulting from an accident in the City of Waukegan, Illinois on May 4,1934. Claimant represents that he was driving westward on Liberty Street; that he stopped his automobile at the intersection of McAlester Avenue and Belvidere Street, which latter street at the time was closed to traffic; that one Edward Manoian, an employee of the State Highway Department, was driving a State truck in an easterly direction on Belvidere Street, approaching the intersection of same with McAlester Avenue and Liberty Street; that the driver of the State truck was driving at a reckless rate of speed and failed to exercise reasonable and ordinary care, disregarded the obstruction, lost control of the truck and skidded about forty feet into claimant’s automobile where the latter stood at the stop sign at Belvidere Street.

The Attorney General on behalf of the State has filed a motion to dismiss the claim for the reason that there is no legal basis of liability by which the State can be held liable for the negligence of its agents and employees. Such is the rule unless there is a statute making the State liable. There is no such statute in this State and the motion of the Attorney General is granted. See Derby vs. State, 7 C. C. R. 145 and Chumbler, etc. vs. State, 6 C. C. R. 138.

The court is reluctant to deny the claim because, if the facts are as represented in the complaint, the driver of the State truck should be held responsible. This however does not authorize this court to grant an award against the State in settlement of damages resulting from the negligent acts of such employee, and the claim is therefore dismissed.


text:
    (No. 2737
    Mary E. Widick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1935.

    Charles E. Lee, for claimant.
    Otto Kerner, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

On September 1, 1934, claimant was employed as a cook at the Lincoln State School and Colony at Lincoln, Illinois. Her complaint represents that on said date she fell while in the course of her employment and seriously fractured her left wrist and arm. Her claim for an award in the sum of Eleven Dollars ($11.00) per week on the basis of a permanent injury, was filed October 9, 1935.

A motion to dismiss the claim has been filed by the Attorney General for the reason that same was not filed within one year after occurrence of the alleged injury, and further that there is no allegation in the complaint that notice of claim was given within six months after such injury. In considering claims for compensation to injured employees the Court of Claims is limited and governed by the provisions of the Workmen’s Compensation Act of Illinois. Section 24 of the Act provides:

“No proceedings for compensation under this Act shall be maintained unless claim for compensation has been made within six months after the accident; provided, that in any case, unless application for compensation is filed with the Industrial Commission (Court of Claims) 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 shall be barred."

Under existing statutes the motion of the Attorney General to dismiss must be allowed, and the claim is hereby dismissed.


text:
    (No. 2740
    K. H. Waterstreet, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1935.

    K. H. Waterstbeet, pro se.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Twenty Six and 55/100 Dollars ($26.55) for damages to claimant’s automobile on August 28, 1935 by reason, as he alleges, of being struck by a State highway maintenance truck No. 361 at Elburn, Illinois, driven by one Charles Nelson.

The Attorney General has filed a motion on behalf of respondent to dismiss the claim on the ground that the State cannot be held to respond for the torts or negligent acts of its employees. If the facts are as represented in the complaint the employee in question should be compelled to pay for the damages caused, but this court has not jurisdiction to make such an order, and neither can an order be properly entered against the State as the rule of respondeat superior does not apply thereto. Similiarly as stated in Minear vs. State Board of Agriculture, 259 Ill. 549 and in Bucholz, Admrx. vs. State, 7 C. C. R. 241.

"In the construction and maintenance of its roads the State acts in a governmental capacity and in the exercise thereof does not become liable for the malfeasance, misfeasance or negligence of its officers or agents in the absence of a statute creating such liability.”

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