text:
    (No. 2877
    Julian R. Little, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    Charles E. Keller, for claimant.
    Otto Keener, Attorney General; Sveinbjorn Johnson and Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant, Julian E. Little, seeks an award for loss of wages, expense for hospital and' medical attention and partial loss of vision, resulting from injuries sustained by him on July 26,1935 while employed by the Board of Trustees of the University of Illinois, in the Department of Chemistry at the University. At the time of the accident claimant was preparing one of the chemicals which is sold by the Department in which he was working to the University and other institutions. He had been engaged in this employment since June 17th, 1935. Prior to that time he had been employed by the University as an Assistant Instructor on half time service, for which he received Six Hundred ($600.00) Dollars over a nine month period and in addition thereto, was exempted from fees at the University of approximately One Hundred ($100.00) Dollars per year. His wages at the time of the accident were Forty (40) Cents per hour, for a ten hour day, six days per week. The Division of Organic Chemical Manufacturers of the University employ many persons during the summer months to manufacture chemicals. All are employed on a short time basis and neither the claimant nor any other employee had been engaged in the employment of the University in the same class and employment for the full year immediately preceding the accident.

The injuries in question occurred as the-result of a flask collapsing. The material on which Mr. Little was working was in a fairly large flask under slightly reduced pressure. As he was trying to remove a volatile material from it the walls of the flask suddenly gave way and the liquid was thrown in all directions. Claimant had just taken off his glasses to wash his face and the liquid not only sprayed upon his skin resulting in slight burns but was thrown into his eyes causing the injuries now complained of. He received immediate first-aid, then went to the Carle Hospital and received care from Dr. Gf. L. Porter who testified that from the time he first treated the patient on July 26, 1935 the destruction of corneal epithelium progressed daily in each eye until August 2nd, at which time the lower two-thirds of the right cornea and the lower half of the left cornea were involved. Dr. Porter accompanied his patient to the Mayo Clinic, at Rochester, where further treatment was given. He took his patient in his, Dr. Porter’s car, for which no charge was made. They were accompanied by claimant’s wife, who attended to the changing of bandages on patient’s eyes and bathing them during the course of the trip, thereby saving the expense of a nurse, who would otherwise have been required, according to Dr. Porter. Prior to the accident claimant had worn glasses for many years. He was examined before the Health Officer, Dr. J. H. Beard of the University, on September 15th, 1934, and his record at that time shows that his vision without glasses was 20/40 in the right eye; 20/25 in the left eye; normal with correction in both eyes. He again examined the patient the day before his testimony on April 20th, 1936.

Dr. Beard testified that pursuant to the rules laid down by the Ophthalmological section of the American Medical Association, he arrived at the visual efficiency of claimant’s right eye of sixty-five (65) per cent loss, and for the left eye at a loss of thirty-seven and seven tenths (37.7) per cent, giving a total permanent disability of forty-four and five tenths (44.5) per cent of visual efficiency. Dr. Porter testified that the percentage loss of visual efficiency is fifty-one- (51) per. cent in the rig’kt eye for distance and seventy-three- (73) per cent for near vision; and for the left eye, thirty (30) per cent for distance and thirty-six (36) per cent for near vision, and that the average loss is sixty-two (62) per cent in the right eye and thirty-three (33) per cent in the left eye. That this loss percentage in the loss of vision is the loss existing with use of glasses, and that without glasses his vision would be poorer. A prior examination at the University Health Service Office, September 15th, 1934, revealed a vision of 20/20 in each eye with correction. Without correction, the vision in the right eye was 20/40, and in the left eye 20/25. The visual acuity with correction was normal at that time. It further appears from the testimony of Dr. Porter that a portion of the cornea in each eye is opaque as a result of the accident and that such condition is permanent, and that this condition is responsible for the loss of visual acuity.

Dr. Hallard Beard, Associate Professor and Acting Head of the Department of Ophthalmology of the University of Illinois College of Medicine, testified that he examined claimant, on December 9th, 1936; that without glasses his visual acuity in the right eye was 20/200 and in the left eye was 20/65 minus 1. That with his glasses the visual acuity of the right eye was 20/40 minus 1, and of the left eye 20/25 minus 2. That patient has been wearing glasses ever since he was nine or ten years of age, and that the condition of the pupils was round, equal and active, with no sign of redness in either eye, and that such condition of the pupils and eyes is a normal condition; further, that the optic nerves of both eyes and the ocular tension or pressure were quite normal. Dr. Beard further testified that there was a large opacity over the lower two-thirds of the cornea of the right eye extending through all layers of the cornea. On the cornea of the left eye is a roughly circular, irregmlar superficial opacity of low density in front of the lower part of the pupil; also a dot one-fourth millimeter wide on the right lens in the center of the pupil, and one three times as large on the left lens. From his examination he states that the loss of visual efficiency of Mr. Little’s right eye is approximately seventy-five per cent (75%) and of the left eye approximately fifty per cent (50%); that he will be continually annoyed by any strong light, and when subjected to average conditions of laboratory and office the handicap of vision will be greater than the bare estimate of the loss of visual efficiency so testified to by him; further, that such condition is permanent, and that such loss of vision was caused by the contact of his eyes with the caustic or corrosive chemical that entered his eyes at the time of the accident in question.

Claimant’s work is such that the injury to his eyes in near vision is apparently a more serious loss than that resulting in distant vision. Considering the testimony of the three Doctors we find that on the right eye the average loss in near vision work is fixed at seventy-one per cent (71%) and of the left eye at forty-one and two tenths per cent (41.2%).

Accepting the above figures as' the basis upon which compensation for loss of vision should be determined, we are next to consider the basis of earnings upon which computation should be made. Claimant was not engaged in the same grade of employment for the same employer for the full year immediately prior to the accident, and neither had others been so employed in the same or neighboring employments of the same kind. The work in question was carried on for short periods through the summer months, and as heretofore stated, claimant’s wage was Forty (40) Cents per hour for a ten hour day. His employment would therefore come within the provisions of Section 10 (e) of the Workmen’s Compensation Act of Illinois, under which the minimum number of days to be used as a basis for determining a year’s work is fixed at a minimum of two hundred (200) days. Upon such basis claimant’s annual earnings would figure Eight Hundred ($800.00) Dollars, with an average weekly wage of Fifteen and 38/100 ($15.38) Dollars.

The Workmen’s Compensation Act contains the following provisions relative to the loss of sight:

“For the loss of the sight of an eye or for the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred twenty weeks.”
;S¡fee. 8 (e) 16, Ill. Workmen’s Compensation Act.
“For the permanent partial loss ... of sight of an eye . . . fifty percentum of the average weekly wage during that proportion of the number of weeks in the foregoing schedule provided for the loss of sight of an eye which the partial loss of use thereof bears to the total loss of sight of an eye.”
Sec. 8 (e) 17, Ill. Workmen’s Compensation Act.

Under the facts here in evidence claimant would therefore be entitled to an award of Six Hundred Fifty-five and 18/100 ($655.18) Dollars for the partial loss of use of his right eye, and Three Hundred Seventy-nine and 99/100 ($379.99) Dollars for the partial loss of use of his left eye, or a total of One Thousand Thirty-five and 18/100 ($1,035.18) Dollars. To this sum is to be added temporary total disability for a period of eight (8) weeks from July 6, 1935 to September 1, 1935 on the basis of fifty (50) per cent of his average weekly wage of Fifteen and 38/100 ($15.38) Dollars, i. e. Seven and 69/100 ($7.69) Dollars, or Sixty One and 52/100 ($61.52) Dollars.

In addition thereto, it appears from the record and it is conceded by counsel for respondent that Doctor and Hospital bills owing to the following persons, and in the following amounts, should be allowed.

Carle Hospital Clinic, Urbana, Illinois..................... $175.00
Carle Memorial Hospital, Urbana, Illinois.................. 32.00
Mayo Clinic, Rochester, Minnesota......................... 25.00
Worral Hospital, Rochester, Minnesota..................... 16.28

Also that claimant has expended the sum of Forty Eight and 73/100 ($48.73) Dollars for necessary care during his temporary total disability for which he is entitled to reimbursement as shown by the record herein.

An award is hereby made in favor of claimant for the sum of $1,145.42 as compensation; also a further award in his favor for the use of the hereinafter named Clinics and Hospitals as follows, to-wit:

Carle Hospital Clinic, Urbana, Illinois..................... $175.00
Carle Memorial Hospital, Urbana, Illinois.................. 32.00
Mayo Clinic, Rochester, Minnesota......................... 25.00
Worrall Hospital, Rochester, Minnesota.................... 16.28
Total ................................................ $248.28

Of said award the amount due claimant for temporary total disability of $61.52, and the amount due for moneys expended for necessary care during such temporary total disability, of $48.73, and the several amounts due the various hospitals herein above enumerated amounting to $248.28,' are all payable from the appropriation made under Senate Bill No. 483 from the “University of Illinois Revolving Fund,” (Senate Bill No. 483, Sess. Laws, 1937 p. 239, No. 8) in the usual manner of disbursements therefrom.

That portion of said award made for specific loss suffered by claimant, i. e.:

For 71 per cent partial loss of vision of right eye....... $655.18
For 41.2 per cent partial loss of vision of left eye......... 379.99
Total .............................................. $1,035.17,

is payable in weekly installments of $7.69 per week, dating from July 6, 1935. Compensation in the sum of $915.11 accrued hy the 16th day of October, 1937.

The compensation due for temporary total disability and money necessarily expended in special care during such temporary total disability, amounting together to $110.25 (also the sum of $248.28 due the several hospitals and clinics above enumerated) will presumably be paid instanter.

It is further ordered that the sum. of $804.86 (being a part of said total award) shall be paid to claimant as compensation earned to October 16, 1937, for which immediate payment is due; and that the further balance of $230.32 shall be paid to claimant in future monthly warrants based upon weekly payments of $7.69 per week for twenty-nine (29) weeks; and one final payment of $7.31.

This award of $1,035.17 representing the lump payment of $804.86, and the future weekly payments, being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved July 3,1937 (Sess. Laws 1937, p. 83), and being, Toy the terms of such Act, subject to the approval of the Governor, is hereby, if ánd when such approval is given, made payable from said appropriation from the General Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Me. Justice Linscott

license: Public Domain

text:
    (No. 2309
    Frankie Jones, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    Raymond F. Hayes, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The complaint herein alleges that on October 1st, A. D. 1933, while claimant was passing over and along a portion of Lincoln Park in Chicago, near Sheridan Road and Mont-rose Avenue, her foot and leg were caught or entangled by a wire which was extending from a certain tree to a stake, whereby she fell and received severe and permanent injuries, for which she seeks damages in the amount of $5,000.00.

The complaint also alleges that said Lincoln Park is a State park and is possessed and controlled by the respondent; that at the time of the accident in question, claimant was in the exercise of all due care and caution for her own safety, and that her injury was the result of the carelessness and negligence on the part of the respondent in permitting said parkway to be obstructed by wires and other obstructions.

The Attorney General has entered a motion to dismiss on the ground that the State is not liable under the facts set forth in the complaint.

Our courts of last resort have held in a number of cases that park districts organized under the laws of the State, are municipal corporations, and that such park districts as well as other municipal corporations, in the maintenance of their public parks are exercising governmental functions, and in the exercise of such functions are not liable for1 the acts of their servants and agents, in the absence of a statute making them so liable. Stein, Admr. vs. West Chicago Park District, 247 Ill. App. 479; Hendrix, Admr. vs. Urbana Park District, 265 Ill. App. 102; Love vs. Glencoe Park District, 270 Ill. App. 117; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

The same rule applies to the State and wé have so held in numerous cases. Bartle vs. State, 7 C. C. R. 85; Trombello vs. State, 8 C. C. R. 56; Metropolitan Trust Co., Admr. vs. State, 8 C. C. R. 377; Tony Monaco, Admr. vs. State, No. 2057, decided at the September Term, 1935.

We have also repeatedly held that the jurisdiction of this court is limited to claims in respect of which the claimant would be entitled to redress against the State, either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Kramer vs. State, 8 C. C. R. 31; Shumway vs. State, 8 C. C. R. 43.

We have no authority to allow an award under the facts set forth in the complaint, and the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2279
    Henry W. Austin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

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

delivered the opinion of the court:

Claimant alleges in his complaint that on September 30th, 1933, about six o’clock P. M., he was driving his automobile in a northerly direction on S. B. I. Route No. 45, about one mile south of Frankfort, Illinois; that at that point certain repairs were then being made by the employees of the Division of Highways of the Respondent, who barricaded the highway by stretching a wire cable across the same; that said employees wholly failed and neglected to place a light or give other warning of the existence of such barricade to persons who were using the highway; that claimant was unable to see said barricade, and by reason of such fact, ran his automobile into the same, whereby it was materially damaged.

Claimant bases his claim upon the negligence of the servants and agents of the respondent in failing to give proper warning of the erection of the barricade in question.

The Attorney General has moved to dismiss the case on the ground that the State is not liable for the negligence of its servants and agents unde rthe doctrine of respondeat superior •in the absence of a statute making it so liable.

We have repeatedly held that in the maintenance of its hard-surfaced highways, the State is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents in the absence of a statute making it so liable. George McCready, et al. vs. State, No. 2604, decided at the September Term, 1935; Lester A. Royal vs. State, No. 2597, decided at the September Term, 1935; Peter Tivnan vs. State, No. 3051, decided at the May Term, 1937; Cecil W. York vs. State, No. 2701, decided at the May Term, 1937.

There is no statute authorizing an award under the facts set forth in the complaint, and the motion of the Attorney General must therefore be sustained.

Motion to dismiss allowed. Case dismissed.


author: Me. Jtjstice Linscott

text:
    (No. 1660
    Alwart Bros. Coal Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

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

delivered the opinion of the court:

This matter coming before the court on a demurrer to the declaration filed by the claimant on October 15th, 1930, and the ■ declaration alleges that Alwart Bros. Coal Company of Delaware is the claimant and has a claim against the State of Illinois, for the sum of Ninety Dollars ($90.00), arising out of the fact that through error this corporation was confused with the Alwart Bros. Coal Company, an Illinois Corporation, with an outstanding capital stock of Two Hundred Thousand Dollars ($200,000.00), which later changed its name to Alwart Coal Company; the Delaware corporation having been authorized to do business in the State of Illinois with capital stock of One Thousand Dollars ($1,000.00), the Delaware corporation having paid One Hundred Dollars ($100.00) as a franchise tax when it should have paid Ten Dollars ($10.00), which was done on July 15th, 1929.

It does not appear from the declaration the amount of franchise tax assessed against the Illinois corporation, Alwart Coal Company, or whether it paid any franchise tax. It is not averred that the error was the result of a mutual mistake, neither is it averred that the tax was paid under protest. Under the Illinois Statute, whenever money is paid to the Secretary of State for the State of Illinois, it is his duty to hold the same for thirty (30) days, when such funds are paid under protest, and then such funds are to be paid over to the State Treasurer unless the party making such payment shall within such period file a bill in chancery and secure a temporary injunction restraining the making of such deposit; in which case such payment shall be held until the final order or decree of the court.

A tax voluntarily paid cannot be recovered back.

Western Electric Co. vs. State, 6 C. C. R. 414.
American Bridge Co. vs. State, 6 C. C. R. 485.
Commercial Solvents Corp. vs. State, 6 C. C. R. 442.
Conkling vs. City of Springfield, 132 Ill. 420.
Yates vs. Royal Ins. Co. 200 Ill. 202, 206.

Judge Dillon, in his work on Municipal Corporations, (3d ed. sec. 944) in discussing this question, makes the following statement:

“Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license or fine, cannot, there being no coercion, no ignorance or mistake of facts but only ignorance or mistake of the law, be recovered back from the corporation, either at law or in equity, even though such tax, license, fee or fine could not have been legally demanded and enforced.”

We, therefore, sustain the demurrer and the claimant will have thirty (30) days from the filing hereof, to file an amendment to his declaration and if no amendment is filed within the said period of thirty (30) days, this claim will be dismissed for want of prosecution.


author: Mr. Justice Linsoott

text:
    (No. 2179
    John Merkle & Sons, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    Carl Behrman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

Claimant filed its complaint herein on May 25th, 1933, and alleges therein in substance that on August 20th, 1932 a certain Tudor Ford sedan belonging to the claimant was damaged as the result of the carelessness and negligence of one of the agents of the respondent in charge of the State Highway Bridge across the Illinois River at Pekin.

It appears that a portion of the bridge is lifted in order to provide for the passage of steamers thereunder, and that as the bridge is lifted, a steel gate is automatically lowered for the protection of persons driving over the bridge. In some way the steel gate was lowered on top of claimant’s car, and it was thereby damaged. Claimant contends that the damage in question resulted from the carelessness and negligence of the bridge tender, and asks to be compensated for the damage so sustained.

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

The bridge in question is a part of the State highway and is owned and operated by the respondent.

This court has held in many cases that in the maintenance of its hard-surfaced highways, the State is acting in a governmental capacity, and while acting in that capacity, is not liable for the negligence of its servants and agents, in the' absence of a statute making it so liable. Beecher Williams vs. State, 8 C. C. R. 578; Sullivan vs. State, 8 C. C. R. 140; McDonald vs. State, 8 C. C. R. 84. See also Minear vs. State Board of Agriculture, 259 Ill. 549.

We have no jurisdiction to allow any claim unless the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, No. 2475, decided at the January term, 1937.

There being no liability on the part of the State under the facts set forth in the complaint, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2147
    Mid-City Stationers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 13, 1937.

    R. P. Lichtenwalnbr, for claimant.
    Otto Keener, Attorney General; John Kassbeman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Prior to and on the 11th day of March, 1933, claimant was engaged in business at 415 East State Street in the City of Rockford, where it was conducting a store for the sale at retail of stationery and office supplies.

The complaint herein alleges that on the last mentioned date, one of the highway maintenance patrolmen of the respondent in the performance of his duties was driving a certain State highway truck in an easterly direction on State Highway No. 5, and that said patrolman then and there drove and operated said truck in such a careless and negligent manner that it ran into and struck against the front of the building in which plaintiff was conducting its business as aforesaid, whereby the plate glass window and certain personal property there in display were, damaged and destroyed; — for all of which claimant seeks to be compensated in this proceeding.

The Attorney General has moved to dismiss the case on the ground that the State is not liable for the negligence of its servants and agents.

We have repeatedly held that the State in the maintenance of its hard-surfaced roads is engaged in a governmental function, and that in the exercise of such functions, it is not liable for the negligence of its servants and agents, in the absence of a statute making it so liable. The liability, if any, rests upon the negligent employee and not upon the State. Goldie Ryan vs. State, 8 C. C. R. 361; Audie Crank vs. State, No. 2868, decided at the January Term, 1937; Wiley Jenkins, et al. vs. State, No. 2987, decided at the-March Term, 1937; George Franklin Garbutt, Admr., etc. vs. State, No. 2246 — Opinion on rehearing filed at the present term of this court.

We have no jurisdiction to allow any claim unless the claimant would be entitled to redress against the State either at law or in equity, if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Titone vs. State, No. 2475, decided at the January Term, 1937.

There being no liability on the part of the State under the facts set forth in the complaint, the motion of the Attorney General must be sustained.

Motion to dismiss allowed. Case dismissed.


text:
    (No. 2273
    Charles Baker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 7, 1936.

      Rehearing denied October 15, 1937.

    Frank R. Eagleton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

On November 16, 1933, this claim was filed under the Workmen’s Compensation Act, alleging that on or about September 26, 1929, the claimant was duly appointed to the highway maintenance police at a salary of One Hundred Seventy-five Dollars ($175.00) per month, and from then on, performed all the duties of that employment up to June 18, 1932, when he was injured while riding his motorcycle near the City of Sumner, Illinois; that said injury occurred when one Oscar Baird started his car which was parked on the side of the road and made a left turn directly in front of the claimant, causing the claimant to strike the left side of said car head on; that as a result of the accident, the claimant received a badly wrenched back, a badly sprained right arm and shoulder and sustained injuries to his right leg and right foot, and as a result, the claimant was unable to work at his employment from the date of the injury to July 2, 1932. It appears that the respondent has paid all the medical bills with the exception of a small amount for medicines which were required for home treatment after his being discharged by the doctor to return to work.

The claimant has no children under sixteen years of age but has a wife, who is dependent upon him.

It is now claimed that he has a permanent disability of twenty-five (25%) to his right leg.

As said above, the accident occurred on June 18, 1932, and the claim was filed herein on November 16, 1933.

Section 6 of the Court of Claims Act provides that this court must 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.”

The Attorney General argues that under Section 24 of the Workmen’s Compensation Act, claimant is now barred from presenting his claim, and this court has no jurisdiction of the case. In the case of William Hopkins vs. State of Illinois, No. 2097, we recently decided similar questions and what is said therein, applies with equal force to this case.

We must, therefore, dismiss this case for want of jurisdiction.


author: Mb. Justice Linsoott

text:
    (No. 1991
    Claude Echols, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

      Rehearing denied October 15, 1937.

    Harris B. Gaines, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Linsoott

delivered the opinion of the court:

The claimant alleges in his claim filed on September 28, 1932, that he is a resident of the city of Chicago, and had been a member of Company B of the Eighth Illinois Regiment since 1931; that on the 1st day of August, 1931, by orders of the superior officers, he went to Camp Grant for encampment; that on the 2nd day of August, 1931, while in Camp Grant, he was ordered by a superior officer to assist in loading a truck with lumber to take out to the drill field for the purpose of building a boxing ring for the members of the regiment; that pursuant to the order, the claimant assisted in loading the truck with lumber, and climbed on top of the truck to take the lumber to the drill field and unload the same; that in their journey over to the place where they were to unload the lumber, the driver of the truck, who was also a member of claimant’s regiment, drove into a hole about eight inches deep; that this caused the load of lumber to move, and the claimant lost his hold and fell from the top of the lumber on said truck to the ground, falling upon his back and rig-ht side; that as the result of the fall, one of his vertebrae was fractured and another one was knocked out of place, and the claimant was otherwise injured and suffered great pain.

Claimant further alleges that he was examined by the regiment’s physician and sent to the hospital at Rockford, Illinois, where he remained for three or four days; that while in said hospital he was put into a plaster cast, and was compelled to remain in the hospital until about the 15th day of August, 1931, at which time he was transferred to the hospital at Fort Sheridan, Illinois, where he was compelled to remain until the 28th day of October, 1931, and up to the time of the filing of the declaration, he was compelled to remain in his home. He also contends that he was at the time of the filing of the declaration, suffering great pain and was a charge upon charity, and was then unable to work and earn a living. He claims a permanent injury and states that he feels that he will never be well again and consequently he will not be able to do any laborious labor. Claimant also alleges that he is a married- man and the head of a family, consisting of his wife and two children, who at the time of the injury, were 13 and 12 years respectively.

It is also averred that the injury was caused solely because of the failure of his superior officers to see to it that the large hole was filled in, and because of the insistence of the officers of the regiment that the lumber be moved on a rainy day, which lumber was wet and slippery, which made it difficult for the claimant to sustain his position while riding on the lumber. He also charges that it was the duty of his superior officers to see that he worked under safe conditions and that the roads were in good repair and free from holes and bumps, and charges that he was in the exercise of due care and caution for his own safety.

A mqtion was made.by the Attorney General to dismiss this case on the ground that claimant seeks to recover for injuries alleged to have been received while on duty as a member of the Illinois National Guard and the Military Code makes, provision for. compensation for the injuries complained of without resort to the Court of Claims, and because thereof this court has no jurisdiction of the case.

It appears from the evidence that on October 4, 1932, General C. E. Black, the Adjutant General, filed a statement to the effect that claimant was on duty at field instruction of the Illinois National Guard as a member of Company “B” 8th Infantry, from August 1 to 15, inclusive, 1931; that on August 2, he was on fatigue duty, transporting a boxing ring from the warehouse to the regimental area by means of a truck; that shortly after leaving the main road, enroute to the boxing ring, the truck struck a depression, and the claimant fell out of the truck and struck the ground. The diagnosis made at the time was “Fracture of eleventh and twelfth thoracic vertebrae”; that the injury complained of was not due to the soldier’s misconduct; that after the accident occurred, he was hospitalized at St. Anthony’s Hospital, in Rockford, under observation and treatment for compression fracture of eleventh and twelfth thoracic vertebrae, and was admitted to the hospital at Fort Sheridan August 15, 1931, for further treatment. During this time has was in a plaster cast that fit well and had been very well put on; that this cast had been applied at the hospital in Rockford, Illinois, on August 7th. The Adjutant General further stated that physical examination on completion of hospitalization shows a complete recovery; that the claimant walks normally; that the maximum degree of improvement from hospitalization and treatment has been reached; that the claimant is physically fit for the performance of full military duty and further hospitalization or treatment is not necessary, and that the claimant was discharged from the hospital on October 28,1931 and ordered home; that upon the recommendation of his Company Commander, he was discharged from the service of the State of Illinois because of removal from jurisdiction, having moved to Houston, Texas. From a second letter dated May 4, 1933, he states that supplemental to his report of October 4, 1933, regarding the case of Claude Echols vs. State of Illinois, No. 1991, in the Court of Claims, the Attorney General was informed a Board was convened for the purpose of inquiring into the present physical status of the claimant. The board found the diagnosis to be ‘ (1) Compression fracture, slight 11th — 12th dorsal vertebrae— healed, without deformity. (2) Osteo-arthritis, lumbo sacro spine — which existed prior to Military service and was probably not aggravated by the injury sustained August 2, 1931. (3) Syphilis. After the word “Syphilis” there is a question mark in parenthesis. The Board recommended that (1) A history of findings and treatment of Cook County Hospital and St. Lukes Hospital, Chicago, Illinois, be obtained if possible. (2) That as far as Military service is concerned there is no further need for medical or surgical treatment. (3) That claimant is not entitled to pay under provisions of the Military and Naval Code. (4) An X-ray picture of the lower dorsal lumbar spine be taken at this time. ’ The following-additional data was submitted: ‘Claimant is 35 years old, married, two children — 14-12 years old, former occupation that of truck driver. Unemployed past two years approximately. He has not worked since his discharge from hospital at Fort Sheridan, August 27, 1931. During* the six months following discharge from Fort Sheridan, he received outpatient treatment at Cook County Hospital. He was then sent to the Veterans’ Bureau where he was informed he was not eligible for treatment by them, and for the past two months has been receiving treatment twice weekly at St. Lukes Hospital, Chicago, — anti-luetic. It was also ascertained that claimant was under treatment in out-patient department at St. Luke’s Hospital, Chicago, for syphilis. The Military Board that examined the claimant felt that the claimant had fully recovered from any injury sustained at camp, and that his present complaints were said to be numerous and indefinite but were not due to Military service, but rather to a rheumatic condition aggravated by syphilis. There was considerable doubt in the mind of the Surgeon G-eneral, after examining the X-ray pictures made at Bockford at the time of the injury, that the man ever had a compression fracture of any vertebrae, although one of the Medical officers insisted that he did, but the fact remains it could not be found by examination while the patient was at Fort Sheridan.

“Any officer or enlisted man of the National Guard or Naval Reserve who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade, or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and draw one-half his active service pay, as specified in sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer, if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the Court of Claims.”
Section 10, Article XVI, Military Code.
“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing Ms duty as an officer or enlisted man in pursuance of orders from the Comía ander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending action of the Court of Claims, the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of a board of three officers, one of whom shall be an officer of the medical department.”
Section 11, Article XVI, Military Code.
“Necessary hospital charges incurred in cases stated in sections 10 and 11, and for beds in open or general wards, shall be paid by the State on proper vouchers made out by the attending medical officer, approved by the Surgeon General.”
Section 13, Article XVI, Military Code.

The Attorney General argues:

“It would seem that the only provision made by the legislature for the payment of claims for injuries occurring to enlisted men while on duty are Sections 10 and 11, Article XVI of the Military Code. Section 10 provides that for thirty days the enlisted man shall draw one-half of service pay on the certificate of the medical officer; and if still disabled at the end of thirty days he shall be entitled to draw pay at the same rate for such period as a board of three medical officers may determine to be right but not to exceed six months unless approved by the State Court of Claims.

Under that section the only claim the enlisted man would have against the State for a period of six months would be to draw one-half pay and that only in case the attending medical officers should so certify for the first thirty days and thereafter if a board of three medical officers should so determine. After six months if the medical board should still think it advisable and the Court of Claims should approve, further payments of one-half pay would be made.

Section 11, Article XVI provides that where the enlisted man shall be injured, wounded or killed while performing his duty in pursuance of orders, said enlisted man or his heirs or dependents shall have a claim against the State for financial assistance and the State Court of Claims shall act on and adjust the same as the merits of each case may demand. Pending such action the Commander-in-Chief is authorized to relieve emergency needs upon recommendation of three officers, one an officer of the medical department. ’ ’

Sections 10 and 11 above referred to, are not in our judgment inconsistent under the rule of statutory construction. We must give to each of the above sections a construction as nearly as possible as what appears to be the intent of the legislature. The working of Section 10 apparently was to apply to an enlisted man “who may be wounded or disabled in any way while on duty.” Section 11 applies when the enlisted man “shall be injured, wounded or killed” while performing his duty in pursuance of orders from the Commander-in-Ohief.

If both sections should automatically become applicable to any injury arising to an enlisted man then two separate bodies might at the same time be called upon to adjust the claim for the injury. Certainly the legislature did not intend this. To give each one the proper construction, first apply Section 10 to all bases possible and where that section is broad enough to fully compensate for the injury, no resort need be made to Section 11. In case of death Section 10 could not apply and Section 11 would apply, or if the injury should be so severe that it would be impracticable to apply Section 10, then Section 11 would apply. Under Section 10 the Court of Claims would have no jurisdiction until a payment constituting a period of six months, one-half pay, had been made to the injured man and then such jurisdiction would only be in the way of an approval of the action of a medical board advising that such payment should be made for a period in excess of six months.

It is the opinion of the court that Section 10 became applicable to claimant’s injury, and before claimant could invoke the jurisdiction of this court he would have to show that a medical board provided for, had determined that he was entitled to one-half pay for a period in excess of six months, and the board has decided he was not entitled to any such pay for a period of six months.

We cannot hold, as a matter of law, that it is the duty of his officers to see that he worked under safe conditions; that by the very nature of the services rendered by a soldier to a military company, whether in peacetimes or in war, that soldier is required to perform military duties whether in sham battle or not, and we cannot as a matter of law, hold, that the superior officers were required under the circumstances in this case to furnish the claimant a safe place in which to work.

No attempt is made to show either by the proof or evidence that claimant’s superior officers knew, or should have known by the exercise of due care and caution, of the depression in the road complained of. Neither could we hold as a matter of law, that he could legally bind the State even if they did know of such depression.

By the very nature of things, military service is not a rocking chair employment.

It appears that all of the claimant’s expenses, while at St. Anthony’s hospital, Rockford, Illinois, and while in Chicago hospitals were paid. For the reason that the military board had made no finding, in favor of the claimant, we feel that we have no jurisdiction in the case, and the motion to dismiss will, therefore, be sustained.


author: Mr. Chief Justice Hollbrich

text:
    (No. 2837
    John Newton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollbrich

delivered the opinion of the court:

For about three weeks prior to the 2d day of October, 1935, the claimant was employed by the respondent as a laborer in the Division of Highways, and was engaged in the work of patching cement pavements on S. B. I. Route 148, about five miles north and west of Marion.

On the last mentioned date, he had worked a little over time, and about 4:30 P. M. was leaving for home. While getting into a State truck which the respondent furnished for the transportation of such of the workmen who cared to avail themselves thereof, and while on the premises of the respondent at the working site, the driver started the truck, and the claimant was thrown against the rear fender and fell to the pavement, thereby injuring his right wrist.

At the time of the accident, claimant was a married man and aside from one child born on December 31st, 1935, he had no children. Whether such child, born approximately ninety days after the accident, is to' be considered as a child of the claimant ‘ at the time of the injury to the employee, ’ ’ within the meaning of those words as used in the Compensation Act, is one of the material questions in this case.

Section 8-J-2 provides a minimum compensation of $11.00 per week “in case of an employee having one child under the age of sixteen years at the time of the injury to the employee. ’ ’

The question as to whether a child en ventre sa mere entitled an employee to the benefit of the foregoing provision of the Workmen’s Compensation Act, has not been directly passed upon by our Supreme Court. In the case of American, Liability Insurance Co. vs. Ind. Com., 342 Ill. 605, the Industrial Commission held that a child en ventre sa mere, if born alive, was to be considered as a child of the employee at the time of the injury. The award of the Industrial Commission was affirmed by the Supreme Court, but the question here involved was not directly presented to that court.

The question was considered by this court in the case of Elliott vs. State, 8 C. C. R. 289, and we there held that a child en ventre sa mere was to be considered as a child of the employee at the time of the accident. The question was directly presented to the court in that case, and was fully considered, and we can see no reason for departing from the conclusion there reached.

Upon consideration of the facts in the record we find as follows:

That the claimant and respondent were, on the 2d day of October, A. D. 1935, operating under the provisions of the Workmen’s Compensation Act; that on said date the claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of said accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of the Compensation Act.

That the earnings of the claimant during the year next preceding the injury were $640.00; and that his average weekly wage was $12.30.

That -the claimant at the time of the injury in question was twenty-six years of age and had one child under the age of sixteen years.

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

That the claimant was temporarily totally disabled from October 2d, 1935 to February 7th, 1936, and that he sustained the permanent loss of thirty-three and one-third per cent of the use of his right hand.

That under the provisions of Sections 8-B and 8-J-2 of the Compensation Act, the claimant is entitled to have and recover from the respondent the sum of $11.00 per week for the period of eighteen and two-sevenths weeks, that being the period of his temporary total incapacity for work.

That under the provisions of Sections 8-E and 8-J-2 of the Compensation Act, the claimant is entitled to have and recover from the respondent the sum of $11.00 per week for a further period of fifty-six and two-thirds weeks, for the reason that the injuries sustained by him resulted in the permanent loss of thirty-three and one-third per cent of the use of his right hand.

That the sum of One Hundred Nine Dollars and Seventy-one Cents ($109.71) has been paid by the respondent to the claimant to apply on the compensation due him.

That all of the compensation to which the claimant is entitled as above set forth has accrued prior to this date.

It Is Tiiebbeobe Obdebbd that an award be entered in favor of the claimant for the sum of Seven Hundred Fourteen Dollars and Seventy-six Cents ($714.76).

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

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


author: Mr. Chibe Justice Hollerich

text:
    (No. 2766
    James Fish, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Peter V. Fazio, for claimant.
    Otto Keener, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chibe Justice Hollerich

delivered the opinion of the court:

For some time prior to December 28th, 1934 the claimant was in the employ of the respondent as a truck driver in the Division of Highways. On the last mentioned date, while driving his truck over an icy road, the truck swerved and crashed into a bridge, and claimant’s right knee struck the hand throttle, whereby he sustained a fracture of the patella. He was removed to the hospital, and received the necessary medical, surgical and hospital care and attention at the expense of the respondent.

On May 15th, 1935 claimant returned to work for the respondent as a laborer. He was paid compensation for his temporary total disability from the date of the injury, to-wit, December 28th, 1934, to the date he returned to work, to-wit, May 15th, 1935. All medical, surgical and hospital bills incurred on account of the injury, amounting to the sum of $968.50, were also paid by the respondent.

Claimant contends that as the result of said injury he has sustained a partial permanent disability, as well as a permanent partial loss of the use of the right leg, and asks for compensation for such partial permanent disability under Section 8-D of the Compensation Act, or, in the alternative, for the specific loss under Section 8-E of such Act.

Claimant returned to work for the respondent as a laborer on May 15th, 1935, and claims to have sustained another injury on July 11th, 1935. The evidence as to an accidental injury arising out of the claimant’s employment on the last mentioned date is not at all convincing. No one testified with reference to the conditions existing at the time of the accident, except the claimant. He stated that he commenced work at 8:00 A. M., and went out on a truck with a driver by the name of Quinn, to patrol a section of the highway and see if everything was all right; that there was a washout at a certain point on the highway, and they drove to another point for the purpose of obtaining some pieces of concrete to fill such washout; that at about 9:30 the truck stopped and' he got out. After that he remembers nothing as to what happened to him. The driver of the truck was not called as a witness, and his absence is not accounted for.

Claimant was taken to a doctor by the truck driver, and was later taken to Oak Park Hospital, and afterwards to Mother Cabrini Hospital in Chicago. He was examined the same day by Dr. Carmen Joseph Pintozzi who found him apparently unconscious, and who made a tentative diagnosis of heat exhaustion. Apparently he was treated for that condition, but there is nothing in the record to indicate whether the subsequent developments confirmed the tentative diagnosis. Several spinal punctures were performed and a microscopic examination was made. Claimant continued under the treatment of Dr. Pintozzi until July 29th, 1935 when he was discharged. The doctor testified “I believe a man should follow a sedentary life for some period immediately after this condition;” also that it would be approximately two months after his discharge before claimant would be in proper condition to follow any type of real work, in order to avoid a recurrence, but that within a period of thirty or forty days after his discharge, he should be able to perform the character of work "he was performing at the time of the hearing herein. At the time of the hearing claimant was employed by the Sunkist Pie Company, mixing whipped cream, the duties of which employment did not require any heavy work.

As to the accident and injury of December 28th, 1934, it appears that the claimant has been paid compensation for his temporary total disability, and that all medical, surgical and hospital bills have been paid by respondent. The only question remaining for consideration as to such accident, is whether claimant is entitled to compensation for permanent partial disability or for specific loss of the use of the right leg, or both.

Section 8-E of the Compensation Act provides in part as follows:

“For injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such injury, in accordance with the provisions of paragraphs (a) and (b) of this section, for a period not to exceed sixty-four weeks, and shall receive in addition thereto compensation for a further period subject to limitations as to amounts as in this section provided, for the specific loss herein mentioned, as follows, but shall not receive any compensation for such injuries under any other provision of this Act.”

Among the specific disabilities therein mentioned are the following, to-wit:

“15. For the loss of a leg, or the permanent and complete loss of its use, fifty percentum of the average weekly wage during one hundred and ninety weeks.”
“17. For the permanent partial loss of use of a member * * * fifty percentum of the average weekly wage during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member * * * which the partial loss of use thereof bears to the total loss of use of such member * * *.”

From the foregoing provisions of the Compensation Act, it appears that where the claimant is entitled to compensation for injuries resulting in any of the specific losses mentioned in Section 8-E, he is not entitled to compensation for such injuries under any other provisions of the Act. Consequently the claimant is entitled to compensation for such permanent partial loss of the use of his right leg as is shown by the evidence, but is not entitled to compensation for any other partial permanent disability.

The evidence discloses that there is a limitation of flexion of the right knee of from thirty to forty-five per cent, but no limitation of extension. In our judgment such limitation of flexion, together with a certain amount of crepitation, as shown by the evidence, constitutes the permanent loss of ten per cent of the use of claimant’s right leg.

As to the injury of July 11th, 1935, there is no evidence in the record which justifies an award. It is encumbent upon the claimant to prove not only that he sustained an accidental injury which arose in the course of his employment, but also that such injury arose out of the employment. The evidence in the record shows merely that the claimant was riding in an automobile truck in the course of his duties, from 8:00 to 9:30 A. M.; that the truck stopped and he stepped out of it; that he remembers nothing thereafter with reference to his injury; that he was taken to a doctor, later to a hospital; that he apparently was unconscious when he was examined by the doctor who diagnosed his case as heat exhaustion. There is nothing in the evidence to indicate whether the doctor’s diagnosis was thereafter confirmed. The driver of the truck, who was with the claimant at the time of the accident, did not testify, and his absence is not explained. There is no evidence in the record as to the temperature or weather conditions at the time and place of the accident.

The question as to whether heat prostration constitutes an accidental injury arising out of the employee’s employment, was considered by our Supreme Court in the case of City of Joliet vs. Ind. Com., 291 Ill. 556. In that case the court held that under the facts there in evidence, the employee sustained an accidental injury which arose out of and in the course of his employment. In considering the question the court, on page 558, said:

“The heatstroke occurred in the course of the employment, and there was evidence from which the commission might reasonably conclude that it arose out of the employment. The man was overcome by the heat. In his employment, and because of it, he was exposed to a degree of heat beyond the ordinary temperature of the day.”

The case of Consumers Co. vs. Ind. Com., 324 Ill. 152, involved the question as to whether injuries resulting from frost bite constituted accidental injuries arising out of the employment. The injuries in that case resulted from weather conditions which were the direct opposite of those in the City of Joliet case; but the legal principles involved are the same in each case. In its consideration of such principles, the Supreme Court, on page 155, said:

“The Question in dispute is whether the injuries suffered by defendant in error arose out of his employment. Injuries resulting from exposure to weather conditions, such as heat, cold, ice, snow or lightning, are generally classed as risks to which the general public is exposed and not within the purview of Workmen’s Compensation Acts, although the injured person, at the time he received his injury, may have been performing duties incident to and in the course of his employment. The rule is generally recognized, however, that if an employee, because of his duties, is exposed to a special or peculiar danger from the elements, — a danger that is greater than that to which other persons in the community are subjected, — and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment within the meaning of Workmen’s Compensation Acts. If the character of the employment is such as to intensify the risks that arise from extraordinary natural causes, an accident under such circumstances is one arising out of the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. If the accident, under the circumstances of the employment, was merely a consequence of the severity of the elements, to which persons in the locality, whether so employed or not, were equally exposed, it is not compensable.”

It is not every case of heat exhaustion or prostration that constitutes an accidental injury arising out of the employment. If the employee is subjected only to such conditions as other people in the same community, it cannot be said that the injury arose out of the employment, as in such case, the conditions causing the injury cannot be said to originate in such employment.

The evidence in the record furnishes no basis for a finding that the injury sustained by the claimant arose out of his employment, and consequently we have no authority to allow an award for the injuries sustained on July 11th, 1935.

Claimant’s average weekly wage was $33.00, and lie had two children under the age of sixteen years at the time of the accident. He is therefore entitled to compensation at the rate of $16.00 per week for the period of nineteen weeks for the permanent loss of ten per cent of the use of his right leg, to-wit, the sum of Three Hundred Four Dollars ($304.00), all of which has accrued at this time.

Award is therefore entered in favor of the claimant for the sum of Three Hundred Four Dollars ($304.00).

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

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


author: Me. Chibe Justice Hollerich

text:
    (No. 2746
    J. E. Bangs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    George C. Dixon, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Chibe Justice Hollerich

delivered the opinion of the court:

The complaint herein alleges that on the 14th day of February, A. D. 1934, the claimant was the owner of certain goods and chattels valued at $139.70, which he then kept in a certain building located at 105-110 North Galena Avenue in the City of Dixon; that on said date said goods and chattels were taken from said building without the knowledge or consent of the claimant; that the claimant is informed and believes that said goods and chattels were taken by certain inmates of the Dixon State Hospital, who had escaped from such institution on that day.

Claimant seeks an award for the value of such goods and chattels, and bases his right of recovery upon the provisions of an Act of the General Assembly entitled, “An Act Concerning Damages Caused by Escaped Inmates of Charitable Institutions over which the State has Control,” approved June 21st, 1935, (State Bar Assn. Revised Statutes, 1937, Chapter 23, Par. 372-A) which said Act provides as follows:

“Whenever a claim is filed with the Department of Public Welfare for payment of damages to property, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare shall conduct an investigation to determine the cause, nature and extent of the damages inflicted and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have power to hear and determine such claims.”

The Attorney General has moved to dismiss the case, and the cause now comes on for hearing upon such motion.

If the claimant has any right to an award, it must arise by virtue of the statute above quoted, as we have heretofore held that there is no liability on the part of the State under the facts set forth in the complaint, in the absence of a statute imposing such liability. Bangs vs. State, 8 C. C. R. 508.

Claimant’s right to an award being based upon the provisions of the aforementioned statute, he must bring himself within the provisions of such statute.

As. we view the matter, the statute contemplates the filing of a claim in the first instance with the Department of Public Welfare, and an investigation by said Department. If, as the result of such investigation, the Department finds that the damage was caused by an escaped inmate of a charitable institution over which the State had control, and while said inmate was at liberty after his escape, the Department may, but is not required to, recommend to this court that an award be made to the injured party. Upon such recommendation being made, and not until then, has this court any jurisdiction to consider the matter.

From the complaint herein it appears that the claimant filed his claim in this court on October 29th, 1935, and at the same time requested the Department of Public Welfare to conduct an investigation and make its recommendation to this court.

There is nothing in the complaint or in the record to show that any investigation has been made by the Department of Public Welfare, or that any recommendation has been made by such Department.

For aught we know, if and when such investigation is made, the Department of Public Welfare may find that the damage was not caused by an escaped inmate; or for other reasons it may recommend the disallowance of the claim; or it may make no recommendation whatsoever; — in any of which events we have no authority to allow an award.

The statutory requirements are preliminary and prerequisite to the filing of a claim in this court, and we have no authority to entertain or consider a claim of this character until such requirements have been complied with.

The complaint in this case has been filed prematurely, and therefore the motion of the Attorney General to dismiss must be sustained.

Motion to dismiss allowed. Case dismissed.


author: Mb. Chief Justice Hollerich

text:
    (No. 3019
    Pauline Embree, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Gillespie, Bttrke & Gillespie, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

From December 16th, 1935 to October 15th, 1936, Bay Embree was in the employ of the State of Illinois, Department of Public Works and Buildings, Division of Highways, as a highway maintenance police officer.

On October 14th, 1936 said Bay Embree was directed by his superior officer to carry certain papers to Chicago in a State car which was assigned to him for that purpose. He left Springfield at 6:00 P. M. on that day, delivered the papers in Chicago, and started on his return trip, traveling on U. S. Boute 66, which at that time was the most direct route from Chicago to Springfield. About 2:15 A. M. on October 15th, 1936, at a point on said Boute 66 between Lexington and Towanda, the car then being driven by said Bay Embree collided with a truck owned and driven by Arthur J. Gisinger of Cisco, Illinois, whereby said Embree sustained injuries which resulted in his death on the same day.

Said Bay Embree was thirty-five years of age at the time of his death and left him surviving the claimant, his widow, and Betty Jean Embree, his daughter, who was born June 29th, 1923.

No compensation has been paid by the respondent, and the only objection urged to the allowance of an award arises from the fact that said Bay Embree on said trip to Chicago and return was accompanied by an employee of the Secretary of State, in violation of a rule of the Bureau of Police to the effect that no civilian shall be transported in a police car except on official business or in line of duty.

Under certain circumstances and conditions, the violation of rules or orders may bar a recovery under the Workmen’s Compensation Act. In order to bar such recovery, however, it is necessary that the violation of the rules or orders be of such nature as to take the employee outside the sphere of his employment.

In the case of Republic Iron and Steel Co. vs. Ind. Com., 302 Ill. 401, the Supreme Court in considering a similar question, said (page 406):

“The rule is, that where the violation of a rule or order of the employer takes the employee entirely out of the sphere of his employment and he is injured while violating such rule or order it cannot be then said that the accident arose out of the employment, and in such case no compensation can be recovered. If, however, in violating such a rule or order the employee does not put himself out of the sphere of his employment, so that it may be said that he is not acting in the course of it, he is only guilty of negligence in violating such rule or order and recovery is not thereby barred.”

The rulé there laid down has been followed in numerous cases since that time. Applying the same to the facts in this case, we find nothing in the violation of the rule or order of the Bureau of Police which bars the claimant from recovery.

Upon a consideration of the record herein, the court finds as follows:

1. That said Bay Embree and the respondent were, on the 14th day of October, A. D. 1936, operating under the provisions of the Workmen’s Compensation Act; that on said date said Bay Embree sustained accidental injuries which arose out of and in the course of his employment, and which resulted in his death on the same day; that notice of said accident was given to said respondent, and claim for compensation made within the time required by the provisions of such Act; that the earnings of said Bay Embree during the year next preceding the injury were $1,737.50, and his average weekly wage was $33.41; that the necessary first aid, medical, surgical and hospital services were provided by the respondent; that said Bay Embree left him surviving Pauline Embree, his widow, and Betty Jean Embree, his daughter, both of whom were totally dependent upon the earnings of said Bay Embree for their support and maintenance; that said Betty Jean Embree was born June 29th, 1923, and therefore was thirteen years of age at the time of the death of her father as aforesaid.

That under the provisions of Section 7-A and 7-H-3 of the Workmen’s Compensation Act, the amount of compensation to be paid by the respondent on account of the death of said Bay Embree is $4,450.00; subject, however, to reduction when said Betty Jean Embree arrives at the age of eighteen years, to-wit, June 23d, 1941, provided she is then physically and mentally competent; in accordance with the provisions of Section 7-A of the Compensation Act; that said compensation is payable in weekly installments of $15.00 each commencing on October 15th, 1936.

That the share of such compensation which otherwise would be payable to said Betty Jean Embree, should be paid to her mother, Pauline Embree, for the support of said child.

That said Pauline Embree is, now entitled to have and receive from the respondent the sum of Eight Hundred Forty Dollars ($840.00), being the amount of compensation which has accrued from October 16th, 1936 to November 12th, 1937.

It Is Therefore Ordered that the share of such compensation which otherwise would be payable to said Betty Jean Embree shall be paid to her mother, Pauline Embree, for the support of said Betty Jean Embree.

It Is Further Ordered that an award be entered herein in favor of the claimant, Pauline Embree, for the sum of Forty-four Hundred Fifty Dollars ($4,450.00); — subject, however, to reduction when said Betty Jean Embree arrives at the age of eighteen years, to-wit, June 23d, 1941, provided she is then physically and mentally competent; — in accordance with the provisions of Section 7-A of the Compensation Act.

It Is Further Ordered that such award be payable as follows: the sum of Eight Hundred Forty Dollars ($840.00), being the amount of compensation which has accrued from October 16th, 1936 to November 12th, 1937, shall be paid forthwith. The balance of such compensation shall be payable in weekly installments of Fifteen Dollars ($15.00) commencing November 19th, 1937.

It Is Further Ordered that this cause be continued until the first session thereof to be held after said Betty Jean Embree arrives at the age of eighteen years, to-wit, June 23d, 1941, for the entry of such further orders with reference to the amount of the aforementioned award, or the reduction thereof, as may he in accordance with the provisions of the Workmen’s Compensation Act; and that in the meantime, compensation be paid by the respondent as hereinbefore provided.

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

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


author: Mr. Chief Justice Hollerioh

text:
    (No. 2482
    Ted Johnston, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    John 0. Cowan, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerioh

delivered the opinion of the court:

On May 19th, 1934, and for one or two days prior thereto, the claimant, Ted Johnston, was employed by the State of Illinois as a laborer in the Division of Highways, and was working on S. B. I. Route No. 146 near G-rantsburg. He worked nine hours a day, and was paid forty cents per hour.

On said 19th day of May, 1934, about two o’clock P. M., while engaged in unloading posts from a truck, the claimant apparently collapsed, and claims to have received a sunstroke or heat stroke. He was immediately taken to the office of Dr. J. L. Jackson at Vienna, Illinois, and at that time had a temperature of 105°, and was in a semi-conscious condition. Dr. Jackson continued to treat him for several days, and claimant was confined to his bed for two weeks after the accident. After two weeks he was able to be up and around.

Claimant contends that he is wholly and permanently disabled, but the record shows that he worked for a number of different employers for short intervals after May 19th, 1934; also that he was on police duty for the City of Vienna from October 20th, 1934 to January or February, 1936; also that 0 he worked for other employers, including the Division of Highways, for short periods after he left the police force. The record also shows that he sustained a heat stroke in 1930 while in the employ of the Jaickes Construction Company.

Counsel seems to have taken it for granted that claimant suffered a heat stroke, but the evidence on that question is far from satisfactory.

The question as to whether a heat stroke constituted an accidental injury arising out of and in the course of the employment, was considered by our Supreme Court in the case of City of Joliet vs. Ind. Com., 291 Ill. 556. In that case the court said (p. 558):

“The heatstroke occurred in the course of the employment, and there was evidence from which the commission might reasonably conclude that it arose out of the employment. The man was overcome by the heat. In his employment, and because of it, he was exposed to a degree of heat beyond the ordinary temperature of the day.”

The court there held that under the facts there in evidence, the heat stroke constituted an accidental injury which arose out of and in the course of the employment.

In the case of Consumers Co. vs. Ind. Com., 324 Ill. 152, the employee suffered injuries as the result of frost bite, and contended that such injuries arose out of and in the course of his employment. The underlying principles of law are the same, whether the injuries result from exposure to excessive heat or from exposure to excessive cold. In the Consumers Co. case the question was carefully considered and the authorities reviewed. In arriving at its conclusions, the court there said (page 155):

“The question in dispute is whether the injuries suffered by defendant in error arose out of his employment. Injuries resulting from exposure to weather conditions, such as heat, cold, ice, snow or lightning, are generally classed as risks to which the general public is exposed and not within the purview of workmen’s compensation Acts, although the injured person, at the time he received his injury, may have been performing duties incident to and in the course of his employment. The rule is generally recognized, however, that if an employee, because of his duties, is exposed to a special or peculiar danger from the elements, — a danger that is greater than that to which other persons in the community are subjected, — and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment within the meaning of workmen’s compensation Acts. If the character of the employment is such as to intensify the risks that arise from extraordinary natural causes, an accident under such circumstances is one arising out of the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the - relation of master and servant. If the accident, under the circumstances of the employment, was merely a consequence of the severity of the elements, to which persons in the locality, whether so employed or not, were equally exposed, it is not compensable.”

Under the rule laid down in the Consumers Company case, it devolves upon the claimant to prove that because of his duties, he was exposed to a special or peculiar danger from the elements, a danger which was greater than that to which other persons in the community are subjected.

The only evidence in the record regarding climatic conditions was that it was awful hot, about 98° or 100°. There is nothing in the record to show just where the claimant was working, or to show conditions at the place of work, or to show that it was any hotter where he was working, than it was in any other place in that community. Under the evidence in the record, claimant has not established the fact that he sustained an accidental injury which arose out of his employment.

Even if he had established the fact of an accidental injury arising out of and in the course of his employment, he still has failed to establish his right to an award under the terms and provisions of the Workmen’s Compensation Act for any permanent disability.

Undoubtedly he was temporarily totally disabled for some period of time, but aside from the two weeks during which he was confined to his bed, the period of such disability does not appear in the evidence. He makes no claim for a specific loss, but does claim that he is totally and permanently disabled. Such claim, however, is not supported by the evidence. If there is any permanent disability, it is a permanent partial disability.

Section 8-D of the Compensation Act provides that in case of permanent partial disability the claimant shall “receive compensation subject to the limitations as to time and maximum amounts fixed in paragraphs B and H of this section, equal to fifty percentum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.”

As the record now stands, there is no evidence as to claimant’s earnings or his ability to earn after the accident, and consequently there is nothing from which the amount of an award for any permanent disability could be computed, if claimant were entitled thereto.

Award denied. Under the provisions of Sec. 19-B of the Compensation Act, petition for review may be filed within 15 days.


author: Mr. Justice Yantis

text:
    (No. 2247
    J. Myrtle Lewis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.
    Claimant, pro se.
    Otto Keener, Attorney General; Carl Dietz and John Kasserman, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein recites that she was relieved from duty as an employee in the Military and Navy Department, upon one-half day’s notice, and that having been so relieved she did not receive pay for two weeks’ time which would have constituted her annual vacation period; that the reason for not having received her vacation was the fact that “work taken care of by Colonel S. 0. Tripp, for whom claimant worked, was such that neither he nor she could leave, and claimant was not permitted to take her vacation unless Colonel Tripp also decided to leave.”

A motion to dismiss the claim has been filed by the Attorney General for the reason that the claim upon its face does not recite a legal basis upon which an award could be made.

This is a similar claim to that of Stephen O. Tripp vs. State, No. 2248, decided at this term, and the reasons therein stated for a dismissal of the claim, apply in this matter. The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 2248
    Stephen O. Tripp, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Claimant, pro se.
    Otto Keener, Attorney General; Carr Dietz and John Kasserman, Assistant Attorneys General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant was formerly an Assistant Quarter Master General in the Military and Naval Department of the State of Illinois, and herein makes claim for Two Hundred Eight ($208.00) Dollars, representing one-half month’s salary claimed to be due for the period of two weeks for a vacation period during the year 1932-1933, to which plaintiff claims he was entitled. In his claim he avers that he did not receive a vacation during said period due to the fact that his work at that time was such that his absence from the office was not practicable; that having been entitled to a vacation which he did not receive he is entitled to an additional two weeks ’ pay.

The Attorney General has filed a motion to dismiss the claim as it fails to state any legal cause of action against the State.

The Civil Administrative Code contains the following provision, upon which claimant relies, i. e.:

“Bach employee in the several Departments shall be entitled during each calendar year to fourteen days leave of absence with full pay.”
Sec. 22, Civil Administrative Code.

We do not believe that the Civil Administrative Code is applicable to the Military Department, and even if it were so construed, claimant herein would not have an allowable demand on the facts stated. In the case of Sanitary Dist. of Chicago vs. Burke, 88 Ill. App. 196, a laborer had worked overtime and sought additional pay therefor. The court there held that, “The mere fact that the employee has voluntarily worked more than eight hours a day does not of itself authorize a demand for extra compensation, unless it should also appear that extra compensation was agreed upon or was reasonably within the contemplation of the parties at the time. ’ ’

In Crooker vs. Sturgis, 175 N. Y. 158 in passing upon a demand for additional pay because of a vacation period which had not been availed of by the plaintiff, the court held, “A vacations is a personal privilege that can be waived.”

It does not appear in the complaint herein that any request for a vacation was ever made by claimant, or such vacation denied to him. It does appear that his employment by the State was terminated upon a summary notice, but the complaint fails to show any ground upon which an additional amount of compensation over the regular wages received by him, could now be allowed.

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


author: Mb. Justice Yantis

text:
    (No. 2266
    Reick, Langendorf and Company, a Corporation, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Simon T. Sutton, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claimant company was incorporated June 16, 1917 with a capital of Fifteen Thousand ($15,000.00) Dollars. According to the complaint its capital stock was increased on June 27, 1918 to Seventy-five Thousand ($75,000.00) Dollars. Claimant alleges that of the increased capital stock only one hundred fifty (150) additional shares were issued and that the remaining four hundred fifty (450) additional shares were not issued; that through inadvertence and under a mistake of law claimant, from May 12, 1927 up to and including the year 1932, paid its annual Franchise Tax yearly on the basis of Seventy-five Thousand ($75,000.00) Dollars instead of Thirty Thousand ($30,000.00) Dollars; that the first knowledge that claimant had of its alleged overpayment was in the month of March, 1933 when it was so informed by its attorney.

Claimant seeks a refund for the alleged overpayment of Twenty-two and 50/100 ($22.50) Dollars for each of the years 1927 to 1932 both inclusive, making a total of One Hundred Thirty-five ($135.00) Dollars.

The Attorney General has filed a motion to dismiss the claim, for the reason that under the law in- force at the time of the increase in capital stock, all the capital stock was required to be subscribed before the issuance of a charter or the approval of an amendment to a charter, and that same became subject to the Franchise Tax under the terms of the Corporation Act of 1919; that such tax was properly assessed down to such time as the capital stock might have been reduced; that the declaration does not show any reduction in the outstanding capital stock as ever having been made, and that the claim should therefore be dismissed.

A report, dated November 29, 1933, from the Secretary of State’s Office, appearing in the Respondent’s Statement, contains the following :■ — ■

“It appears that the Company has never set up the contention until this year that all of the stock was not issued. Apparently these fees have been paid voluntarily each year, and accepted in good faith by the State.”
“Where the amount of Franchise Tax is computed and collected by the Secretary of State in accordance with the law, based on information submitted by claimant, a claim for rebate of a part thereof alleged to have been excessive on account of error in information furnished by claimant will be denied.”
Yates vs. Royal Ins. Co., 200 Ill. 202.
Standard Oil Co. vs. Bollinger, 337 Ill. 353.

Under the Corporation Act effective July 1, 1919, the entire capital stock of claimant, i. e. Seventy-five Thousand ($75,000.00) Dollars, became subject to a tax. There does not appear to have been any such thing as “authorized” stock under that law. It was all “issued” either actually or in legal effect.

The objections made by respondent to a further consideration of the claim are valid. It further appears from the declaration that the payments in question were made by claimant as a mistake of law. The decisions are numerous and well recognized that no award will be made upon such ground. The motion of the Attorney General is allowed and the claim dismissed.


text:
    (No. 2073
    Spellman & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    Claimant, pro se.
    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 Twenty and 80/100 ($20.80) Dollars. The declaration recites that on June 13, 1932 claimant corporation had a total authorized capital stock of One Hundred Thousand ($100,000.00) Dollars, but that only Fifty-eight Thousand Four Hundred ($58,400.00) Dollars of such stock had been issued; that claimant, in response to a notice from the then Secretary of State, paid a capital stock tax of Fifty ($50.00) Dollars, based upon the authorized capital stock, whereas it should have paid only Twenty-nine and 20/100 ($29.20) Dollars, based upon the capital stock issued and outstanding.

Where the statement submitted by the tax payer has contained the correct figures of existing facts and the Secretary of state has made an erroneous computation or certificate based thereon, the court has heretofore made awards in certain instances. The attention of the court has more recently been called to certain provisions of the General Corporation Act of this State, approved June 12, 1919, whereby the payor of such corporation tax is accorded definite opportunities for a review. This claim having arisen prior to the adoption of the Business Corporation Act, claimant’s rights must be determined under the provisions of the Corporation Act as it then existed.

Section 12 of such Act provided that between the 1st day of February and the 15th day of June, the Secretary of State shall mail a notice in writing to each corporation against whom such tax is assessed, notifying the corporation of the amount of the tax assessed against it, and that objections, if any, to such assessment will be heard by the officer making-such assessment, upon request by the corporation, on a date not later than the 25th day of June, etc. Under the provisions of such Act the Secretary of State is given authority to change or modify such assessment upon such hearing being had.

The effect of this statute has been considered by the court in a number of recent cases, among them — Butler Co. vs. State, C. of C. No. 2500, and Fried & Bell Paper Co. vs. State, C. of C. No. 2244. As there stated,

"Where an illegal or excessive tax is paid voluntarily and with a full knowledge of all the facts it cannot he recovered.
“Where a franchise tax is erroneously assessed and no objection is made thereto and no request is made for a hearing thereon in accordance with the. statute, and the tax is paid, such payment constitutes a voluntary payment within the legal meaning of those words.”

Claimant herein made no objection to the tax assessed against it and made no request for a hearing thereon, paid the tax voluntarily and without protest and with a full knowledge of both its “authorized” and “issued” capital stock. We are compelled to hold that under the provisions of the statute and the decisions of our courts upon the question of voluntary payments, claimant is not entitled to a refund.

The award is therefore denied and the claim dismissed.


author: Mb. Justice Tantis

text:
    (No. 1880
    City of Quincy, a Municipal Corporation, Etc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 9, 1937.

    James P. Nielson, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

On April 5, 1931 and for many years prior thereto, the State of Illinois was the owner of a property located on the South side of Jersey Street in the City of Quincy, on which was located an Armory Building, built and maintained by the State. On the night of said date one Marguerite Golden was walking along the sidewalk that abutted said Armory Building. Complainant represents that there was a basement beneath such sidewalk of a depth of ten (10) feet, and that there was an iron lid resting on a metal frame in the sidewalk, such opening being thirty (30) inches wide and thirty (30) inches long, nsed by the respondent for the purpose of dumping coal into the basement of the Armory Building; Claimant further represents that the iron lid was improperly constructed, that it was not securely fastened and that its defective condition had existed for more than a year prior to the night in question and that such condition was known or could have been known to respondent, had it exercised reasonable care in the maintenance and inspection of such sidewalk.

Marguerite Golden stepped upon the covering of this opening and when it tilted under her weight she was thrown through the opening into the basement beneath such sidewalk, sustaining the injuries complained of. Suit was instituted against the City of Quincy for Twenty-five Thousand ($25,-000.00) Dollars damages, and a settlement was thereafter agreed upon between Marguerite Golden and the City of Quincy whereby she received One Thousand Eight Hundred Sixty ($1,860.00) Dollars.

The City of Quincy as claimant now seeks an award from the State of Illinois for reimbursement of the sum thus expended, and predicates it claim upon the charge that said accident was due to the negligent construction and maintenance by the State of the coal hole and sidewalk in front of the Armory Building.

The Attorney General has filed a motion to dismiss the claim on the ground that the State could not be held liable for injuries resulting from the tort actions of its servants or employees. The question of whether the State should respond in damages arising through the negligence of its employees has been before the court many times. It is a well established principle of law, supported by the decisions of other courts as well as by numerous decisions of this court, that the State is not liable for the negligence of its officers, servants or agents in the performance of governmental functions. (Hinchscliff vs. State, 2 C. C. R. 159, Petersen vs. State, 8 C. C. R. 9, Parks vs. Northwestern University, 218 Ill. 381 and Minear vs. State Board of Agr. 259 Ill. 549.)

In the case of Kramer vs. State, 8 C. C. R. 31, claimant sustained injuries in the office of the Civil Service Commission in the State House by tripping over a piece of heavy linoleum which had become worn and broken and was projecting upwards from the floor. Recovery was sought upon the theory that it was the duty of the State to maintain and keep the floor in question in proper and safe condition. An award was denied for the reason that the State is not liable for- the negligence of its officers, servants or agents in the performance of governmental functions, and the ruling therein stated applies to the present claim. The Doctrine of RESPONDEAT SUPERIOR does not apply to the State. The present claim is based directly upon the alleged negligence of employees of the respondent both in the construction and in the maintenance of the sidewalk in question, and no recovery can be allowed therefor. The motion of the Attorney General is allowed and the claim dismissed.


author: Mr. Chief Justice Hollerich

text:
    (No. 2886
    William Bricker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 10, 1937.

    Miley & Gombe, for claimant.
    Otto Keener, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

For a short time prior to the 29th day of November, A. D. 1935, the claimant was employed by the respondent as a truck driver in the Division of Highways, and was working on a roadside planting project on S. B. I. Route 45 in Saline County.

On the last mentioned date, while unloading a tree weighing approximately three hundred pounds, the tree slipped and the entire weight thereof fell upon the claimant, whereby he was thrown backwards and sustained injuries to his left leg at the knee. He was placed under the care of Dr. R. B. Nyberg of Carbondale who continued to treat him until February 21st, 1936, and he returned to work on March 4th, 1936.

The only evidence in the record as to claimant’s earnings was'to the effect that he was paid sixty cents per hour for not to exceed eig’ht hours per day, forty hours per week, or one hundred thirty hours per month.

He claims an additional amount for temporary total disability and also asks for an award for the permanent partial loss of the use of his left leg.

It is agreed that at the time of the accident both parties were working under the provisions of the Compensation Act; that on said date the claimant sustained an accidental injury which arose out of and in the course of his employment; that notice of the accident was given and claim for compensation on account thereof was made within the time required by the Act; that claimant’s wages were approximately $78.00 per month; that he had three children under the age of sixteen years at the time of the accident; that all medical, surgical and hospital expenses were paid by the respondent, and that claimant was paid $151.56 for temporary total disability.

The only questions for determination are whether claimant is entitled to further compensation for temporary total disability; whether he has sustained the permanent partial loss of the use of his left leg; and if so, the extent of such disability and the amount of compensation to be paid therefor.

Upon a consideration of all of the evidence, in the record, we find that as the result of the accident in question, the claimant was temporarily totally disabled from the date of the accident in question to the 4th day of March, A. D. 1936, to-wit, for thirteen and two-sevenths weeks, and that he is entitled to compensation therefor at the rate of Thirteen Dollars ($13.00) per week.

We further find that as the result of the accident in question the claimant sustained the permanent loss of ten per cent of the use of his left leg, and that under the provisions of Sections 8-E-17 and 8-J-2 he is entitled to nineteen weeks’ compensation therefor, at the rate of Thirteen Dollars ($13.00) per week.

We further find that all of the aforementioned compensation has. accrued at this time.

The total amount due the claimant in accordance with the foregoing findings, is Four Hundred Nineteen Dollars and Seventy-one Cents ($419.71). He has heretofore been paid the sum of One Hundred Fifty One Dollars and Fifty-six Cents ($151.56) to apply thereon, leaving a balance due of Two Hundred Sixty Eight Dollars and Fifteen Cents ($268.15).

Award is therefore hereby entered in favor of the claimant for the sum of Two Hundred Sixty Eight Dollars and Fifteen Cents ($268.15).

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

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