author: Mb. Chief Justice Hollebich

text:
    (No. 2289
    Maude Charles, Administrator de bonis non, of the Estate of John D. Charles, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    John J. Kritzer and Erie P. Field, for claimant.
    Otto Kerner, Attorney General; John Kasserman^ Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Prior to and on the 23rd day of November, A. D. 1933, John D. Charles was engaged in the military service of the State of Illinois, being a member of Battery B and attached to Headquarters Battery and Combat Train, 123rd Field Artillery, and on the last mentioned date was stationed at Taylorville, having been called out for the purpose of quieting disturbances in the mining region in that vicinity.

About seven o’clock P. M. on the evening of November 23, 1933, said John D. Charles was in the barracks getting his pistol preparatory to going out on detail. Just prior to that time Springfield rifles had been issued to another detail at the same place, and the members of said last mentioned detail were still in the barracks and were loading their rifles. A rifle in the hands of one of the members of such detail was accidentally discharged and the bullet therefrom struck Private John D. Charles, passing through both legs. He was given immediate medical and hospital attention, but an infection developed and one of his legs was amputated in an effort to save his life. The effort was unavailing, however, land said John D. Charles died on November 28, 1933 as the direct result of the wounds he received as aforesaid.

Said soldier left him surviving Samuel A. Charles, his father; Maud Charles, his mother; Arthur Charles and James Charles, his brothers; and Mabel Charles and Lila Charles Parsons, his sisters; all of whom are of legal age.

Samuel A. Charles, father of decedent, was appointed administrator of the estate of said decedent by the County Court of Warren County, and filed his complaint herein for the recovery of damages on account of the death of said decedent.

While the claim was pending in this court, said Samuel A. Charles died and said Maud Charles was duly appointed administratrix de bonis non of the estate of said John C. Charles, deceased, by said County Court of Warren County, and was thereafter substituted as claimant herein.

Thereafter on motion of the claimant, said Maud Charles, individually, and Arthur Charles, James Charles, Mabel Charles and Lila Parsons were made additional claimants.

Section 11 of Article 16 of the Military and Naval Code of this State provides as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-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.”

A military board of inquiry found that the injuries sustained by the decedent were received by him while in the performance of and in the line of his duty.

The Attorney General suggests that claimant’s right to recover must be based either upon the Military and Naval Code, the Injuries Act, or the Workmen’s Compensation Act; that if claimant’s rights are governed by the Military and Naval Code, she is entitled to an award, but that if claimant’s rights are governed either by the Injuries Act or the Workmen’s Compensation Act, no award should be allowed under the facts in the record. It seems to us, however, that the provisions of Section 11 of Article 16 are clear and unambiguous, and that the rights of the claimant herein must be governed by such section. Section 11 specifically provides that in every case where an enlisted man shall be killed while performing his duties, his heirs or dependents shall have a claim against the State for financial help and assistance, and that this court shall act on and adjust the same as the merits of each case may demand. Apparently it was the intention of the Legislature that financial help or assistance should be given in every such case and this court was given jurisdiction to act on and adjust each claim as the merits of each case may demand.

The evidence shows that said John D; Charles was 23 years of age at the time of his death, and had been in the military service of the State for a period of four years prior to the accident in question; that when he was not actually engaged in the military service of the State, said John D. Charles, for a period of six or seven years prior to the accident, had been employed by the Monmouth Dairy and Ice Cream Company, in which Ms father was interested; that he did not work steadily during the winter months, but when he worked he earned $15.00 or $20.00 per week; that he gave most of Ms earmngs to his mother and used the rest Mmself; that aside from necessary clotMng and other incidental expenses, he used tMs money in contributing to the care of the family; that Ms mother was saving the money for him in a way, and used part of it at times with Ms consent.

In some cases wMch have heretofore come before this court, the provisions of the Workmen’s Compensation Act of this State have been taken into consideration in determining the amount of the award. Eesort to the provisions of such Act, however, was merely advisory, and there is no provision of law wMch requires us to be guided by the provisions of the Workmen’s Compensation Act in cases arising under the Military and Naval Code, or which prevents us from using any other proper basis in arriving at the amount of the award, which under the evidence meets the demands of the particular case.

The only statutory provision for our guidance is the requirement of Section 11 of Article 16 of the Military and Naval Code to the effect that we shall adjust each case as 'V&e! merits 'thereof demand.

Under the evidence in the record, we feel that the claimant, Maud Charles, administratrix de boms non of the estate of John D. Charles, deceased, should be awarded the sum of $2,500.00.

Award is therefore entered in favor of the claimant, Hand Charles, Administratrix de bonis non of the estate of John D. Charles, deceased, for the sum of Twenty-five Hundred Dollars ($2,500.00).


source: Caselaw Access Project

author: Mr. Justice Yantis

license: Public Domain

text:
    (No. 2413
    Julia Grant, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    •Marguerite R. Gariepy, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein alleges that she was employed by the State of Illinois on and for some time prior to February 3, 1934 as cm employee for the Civil Worhs Service, a project supported by the Emergency Relief Commission; that the nature of her work was to canvass for the NBA getting signatures of housewives, and to give them in return Blue Eagle posters; that while so employed and on said date she tripped in a hole in the sidewalk and injured her right leg; that she received first aid treatment and is still in need of medical care, because of a permanent disability to her right leg. Wherefore claimant asks compensation under Section 8 of the Workmen’s Compensation Act of Illinois.

The Attorney General has filed his motion to dismiss the claim on the grounds that—

“The State is not liable as an employer for one engaged in activities for the NBA, and for the reason that the claimant was not an employee of the State of Illinois at the time of the accident.”

The record of the Illinois Emergency Belief Commission contains the following letter from the NBA offices:—

National Recovery Administration Washington, D. C.
1115 New Post Office.
Chicago, Illinois, February 9, 1934.
Mrs. B. Beverly,
Placement Department,
Civil Works Service,
126 North Wells St.,
Chicago, Illinois.
Dear Mrs. Beverly:
Below I am giving you a record of three canvassers who have been injured and one who has been in ill health: * * *
Julia Grant,
4720 Dorchester Ave.
Identification No. 8-527.
On Friday, February 2nd, Miss Grant reported that she had twisted her knee while crossing a street and has not worked since. On February 3rd, she went to Dr. George Dittmann. On February 6th, she saw Dr. Oliver C. Foreman, from whom she obtained a letter stating that she would be unable to work on account of her knee. She was removed from the payroll as of February 2nd.
(s) Ruth E. Porter, Supervisor, for Mrs. E. A. Conkey,
Foreman CWS Project No. 21.

It is apparent that claimant was not employed by the State of Illinois and could not be classified as a State employee and no award can be made to her as such.

In addition to this, there is nothing in the complaint to indicate that the claim in question would be compensable. The case seems analagous to that of:—

“Chicago Circular Ad. Service vs. Indus. Com., 332 Ill. 156, wherein an employee of appellant was distributing circulars for his employer while traveling on foot from house to house. The court held that such employment was not extra hazardous and that no compensation was allowable.”

Under the contentions of Claimcmt’s Reply Brief every employee of the State of Illinois would be within the terms of the Workmen’s .Compensation Act. The State is engaged in many activities, and the Workmen’s Compensation Act applies to many of its employees because of the particular nature of the business in which such employees are engaged or the hazardous nature of their individual employment, but this court is not of the opinion that every employee of the State of Illinois, regardless of the Division or Department or nature of his employment, is within the Act.

For the reason that the injury is not compensable under the terms of the Workmen’s Compensation Act — and for the further reason that in the distribution of Blue Eagle posters and organization activities of the NBA, the State of Illinois was not claimant’s employer, we are of the opinion that no claim could arise against the State of Illinois under the facts alleged.

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


author: Mr. Chief Justice Hollerich

text:
    (No. 2306
    Metropolitan Trust Company, a Corporation, as Administrator of the Estate of Marie Damico, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    Clifford G. Bob and Bobbrt S. Cook, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its declaration herein on January 5, 1934, and alleges therein in substance that on the 20th day of July, A. D. 1933, Marie Damico, claimant’s intestate, then a child of the age of thirteen years, was a patron of a certain swimming pool in Ogden Park, in the County of Cook and State of Illinois; that on said date the respondent was in control of and maintained said park for the benefit of the residents and citizens of Illinois; that it thereby became the duty of the respondent to protect the life and limb of its residents and citizens and to keep said swimming pool in a safe condition; that it failed in the performance of its duties in that behalf, in that it failed to place and maintain a screen over a certain water outlet pipe, which said pipe was ten inches in diameter; that by reason of such neglect of duty, said Marie Damico who entered said pool on said 20th day of July, A. D. 1933 about seven o’clock P. M., was immediately caught by the suction and drawn into said outlet pipe; that although she was a good swimmer, she could not extricate herself therefrom; that several lifeguards tried to extricate her but were unable to do so on account of the suction; that before the flow of the water from such outlet pipe could be shut off and the child’s body removed, she was dead.

Claimant’s intestate left her surviving her father and mother, one brother and sister, as her only heirs at law.

Letters of administration were issued to Metropolitan Trust Company by the Probate Court of Cook County, Illinois, and said administrator filed its claim herein, and seeks to recover the sum of $10,000.00 from the respondent on account of the death of said decedent under the facts set forth in the complaint.

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

For the purpose of the motion, the court must assume the truth of the averments of the complaint with reference to the control and maintenance of said pool by the respondent.

The question then arises as to whether there is any liability on the part of the State for the negligence of its servants and agents in the operation and control of a swimming pool maintained by it.

The liability of a municipal corporation for the negligence of its servants and agents in connection with the maintenance of a municipal swimming pool, was considered by our Supreme Court for the first time in the recent case of Gebhardt vs. Village of LaGrange Park, 354 Ill. 234. After reviewing the authorities in the different States, the court held that the maintenance of a swimming pool was a governmental and not a proprietary function, and that the general rule as to exemption from negligence applies. The same conclusion was reached by the Appellate Court of this State in the case of Stein vs. West Chicago Park Commissioners, 247 Ill. App. 479; Hendricks vs. Urbana Park District, 265 Ill. App. 102; and Love vs. Glencoe Park District, 270 Ill. App. 117, in each of which cases the facts were quite similar to this case.

This court has applied the law as above set forth in the case of Stein, Admr. vs. State, 6 C. C. R. 329; and in the case of Raffaele Trombello, et al. vs. State, No. 2237, decided at the January term, 1934.

It is the well established law of this State and other States that in the exercise of its governmental functions, the State is not liable for the negligence of its servants and agents in the absence of a Statute making it so liable. Kinnare vs. City of Chicago, 171 Ill. 332; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; Stein vs. West Chicago Park Commissioners, 247 Ill. App. 479; Hendricks vs. Urbana Park District, 265 Ill. App. 102; Love vs. Glencoe Park District, 270 Ill. App. 117; 25 R. C. L. p. 407; sec. 43; 8 R. C. L. Supp. p. 5580, sec. 43.

The Legislature has not enacted any law making the State liable in cases of this kind, and consequently we have no authority to allow an award. Crabtree vs. State, 7 C. C. R. 207; Morrissey vs. State, No. 2233, decided at the January term, 1934, of this court.

Award must therefore be denied and the case dismissed.


author: Mr. Justice Tantis

text:
    (No. 2506
    W. B. Read & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    W. B. Read & Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant herein alleges that on June 1, 1930 W. B. Read & Company furnished to the Illinois School for the Blind certain supplies set out in their Bill of Particulars amounting to the sum of One Hundred Thirty-two and 14/100 Dollars ($132.14). A report from the school at Jacksonville with invoice attached shows that the goods were received and accepted and that the bill is unpaid.

The claim seems to fall within the rule mentioned in the Shell Petroleum case (reported 7 C. C. R. 224).

“Where the facts are undisputed that the State has received supplies as ordered by some department, within their authorized limitation, and that the bill for same was not presented for payment before the lapse of the appropriation, out of which it could have been paid, an award for the amount due will be made.”
Franklin Coal Co. vs. State, 7 C. C. R. 114.

There being no question raised as to the validity of the account and the claim having been filed within five years, an award is made to claimant in the sum of One Hundred Thirty-two and 14/100 Dollars ($132.14).


author: Mb. Justice Tantis

text:
    (No. 2507
    W. B. Read & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    W. B. Bead & Company, pro se.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Tantis

delivered the opinion of the court:

Claimant alleges that on November 7, 1929 it furnished goods to the Illinois State Reformatory at Pontiac, Illinois as per Bill of Particulars attached, amounting to One Hundred Seventy-nine and 84/100 Dollars ($179.84). A statement in the record, signed by the receiving officer of the reformatory states that the merchandise was received and accepted and that the bill was correct; further that the reason same was not paid was that no invoice was received therefor until May 23,1934. Apparently the original invoice was misplaced and the appropriation out of which same could have been paid therefore lapsed.

This case is similar to that of the same claimant decided at this same term, i. e. — Read vs. State Court of Claims No. 2506, and an award is herein made in favor of claimant in the sum of $179.84.


text:
    (No. 2492
    William C. Schreiber Lumber Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

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

delivered the opinion of the court:

On June 12,1933 the Division of Purchases and Supplies of the respondent ordered certain lumber from the claimant, for delivery to the Illinois State Penitentiary at Joliet. Delivery was made on June 22nd, 1933 and the claimant states that invoices therefor in the amount of $30.08 were mailed to respondent on August 24,1933. However, such invoices were not received by the proper officers of the respondent, and after some correspondence regarding the matter, claimant mailed and respondent received a statement of account in the amount of $30.08 on May 4, 1934. By that time the appropriation from which payment should have been made had lapsed, and claimant was advised that it would have to file its claim in this court.

The merchandise in question was ordered by the proper authorities of the respondent and the delivery thereof duly made. No question is raised as to the amount claimed or the reasonableness of the charges made. There is nothing in the record to indicate any unreasonable delay on the part of the claimant in presenting its claim, and an award is therefore entered in favor of the claimant for the amount claimed, to-wit, Thirty Dollars and Bight Cents ($30.08).


text:
    (No. 2512
    Sinclair Refining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Claimant seeks to recover the sum of One Hundred Dollars and Thirty-nine Cents ($100.39) for 159.3 gallons of compound cylinder oil; 160.1 gallons bearing oil; and 29.4 gallons lard oil, purchased from it by respondent through Mr. A. W. Daily, State Purchasing Agent of the Division of Purchases and Supplies, and delivered by claimant to Kankakee State Hospital, part being delivered on February 15, 1933 and part on March 10, 1933.

The claim was not presented in time for payment out of the current appropriation, and said appropriation thereafter lapsed. When the claim was presented there were no available funds out of which payment could be made.

The oil in question was purchased by the proper authorities of the respondent, and delivery thereof was duly made. No question is raised as to the' amount of the claim or the reasonableness thereof. There is nothing in the record which indicates that the claimant has delayed unreasonably in presenting its claim, and it is therefore ordered that an award be and the same is hereby entered in favor of the claimant for the amount claimed, to-wit, One Hundred Dollars and Thirty-nine Cents ($100.39).


text:
    (No. 2399
    Henry Swan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    Gariepy & Gariepy, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Claimant filed Ms complaint herein on January 14, 1934, and alleges therein in substance that prior to and on the 25th day of October, A. D. 1933, he was an employee -of the respondent at the Illinois Emergency Belief Commission Shelter House at 1210 South Morgan Street; that on said date he sustained an accidental injury “wMch arose out of and in the course of his employment, by falling when stepping oft the curb into a torn-up street wMle on an errand for said respondent”; whereby he sustained injuries causing a permanent disability to Ms right leg, for which he asks compensation under the provisions of the Workmen’s Compensation Act.

The Attorney General has filed a motion to dismiss the case for the reason that the respondent is not liable for the injuries so sustained by the claimant. Claimant contends that “if the State in any of its departments or enterprises is actually engaged in an extra-hazardous business or enterprise as defined in Section 3 of the Workmen’s Compensation Act, then all of the employees of the State, whether engaged in the extra-hazardous or non-extra-hazardous business of the State, are subject to the provisions of the Workmen’s Compensation Act”, and cites Illinois Publishing Co. vs. Ind. Com., 299 Ill. 189, which holds in effect, that if the employer is engaged in an enterprise or business within the provisions of Section 3 of the Compensation Act, then all of his employees, in any department of such business or enterprise are under the Act even though their duties involve no hazards and do not bring them in contact with any of the hazardous parts of such enterprise or business.

The complaint, however, does not allege any facts from which it appears that the respondent is engaged in any of the enterprises or businesses which are declared to be extra-hazardous under the provisions of Section 3 of the Act.

In carrying on the various functions for which the State was organized, it is engaged in a large number of different activities of various kinds, many of which are separate and distinct from each other, and practically complete in themselves, some of which are or may be hazardous in their nature and others of which clearly are not hazardous in any respect whatsoever." The question frequently arises, therefore, as to when the State and its various employees come within the provisions of the Workmen’s Compensation Act, and when not.

In considering a similar question, Angerstein in his work “The Employer and the Workmen’s Compensation Act of Illinois ’ ’, on page 39 says:

“The business itself is the determining factor. For illustration, an employer might own a factory containing power-driven machinery, etc., which automatically would bring it under the Act. All the employees of such factory would be under the Act regardless of what their duties were, just so long as they were engaged in any department of the business, and this would include stenographers, salesmen, clerical help, etc. The same employer might own and operate a clothing store entirely separate and apart from the factory, in which store there were no appliances or machinery of, any description. This “clothing store, therefore, would not come under the Act automatically, and the employees, therefore, would not be under the Act unless and until the employer had filed his written acceptance of the Act with the Industrial Commission.”

In the ease of Peterson vs. Ind. Com., 315 Ill. 109-202, the employer was engaged in farming, and also operated a sawmill on the same tract of land. Thei employee was injured while working in the sawmill, and the court held that although the employer was not under the Act as to the work bn the farm, yet the operation of the sawmill was an independent enterprise of a hazardous nature, and as to such enterprise the employer was under the Act. In that case the court said:

“It is not required by the Workmen’s Compensation Act that one shall be exclusively engaged in one of the hazardous occupations enumerated in the Act to make him liable for compensation. A man may engage in two kinds of business, one not within the Workmen’s Compensation Act and the other may be within the Act because it is extra-hazardous. (Vaughn’s Seed Store vs. Simonini, 275 Ill. 477; Davis vs. Ind. Com., 297 Ill. 29). " * » * * c -^ve are of the opinion that plaintiff in error and the deceased at the time of the accident were both under the provisions of the Workmen’s Compensation Act.”

The same conclusion was reached in the case pf Davis vs. Ind. Com., 297 Ill. 29, where the employer owned a hardware business and also owned an apartment building which he rented at a profit; also in the case of Walsh vs. Ind. Com., 345 Ill. 366, where the employer was in the small loan business, and also owned eight (8) or ten (10) houses which he kept in repair.

We conclude, therefore, that the State in the conduct of the various activities under its control is in the same position as an individual or a corporation which is engaged in a number of different enterprises or businesses, some of which are or may be extra-hazardous and some not; that each business or enterprise must be considered separately, and the liability of the State in each case depends upon whether that particular business or enterprise comes within any of the provisions of Section 3 of the Compensation Act, or whether such business or enterprise is extra-hazardous in fact.

Hence, when any employee of the State seeks to recover compensation for injuries sustained by him, it is necessary for him to aver and prove that he was engaged in some department of an enterprise or business which is extra-hazardous within the meaning of Section 3 of the Compensation Act, or which is extra-hazardous in fact.

There is nothing in the complaint to indicate that claimant was engaged in any department of a business or enterprise which is extra-hazardous within the meaning of Section 3 of the Act, or is extra-hazardous in fact, and consequently the motion of the Attorney General must be sustained.

Under the rules, the claimant has thirty days in which to file an amended complaint. Unless an amended complaint showing a right of action against the respondent is filed within thirty days from the date of the entry of this order, final judgment will be entered dismissing the claim.


author: Mb. Justice Linsoott

text:
    (No. 2371
    LeRoy Thompson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

    Dove & Dove, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linsoott

delivered the opinion of the court:

LeRoy Thompson, the claimant, filed his petition for claim in this court on April 29, 1934, alleging that while he was employed by the State as a maintenance laborer on State Route No. 16 on or about November 7, 1933, and while assisting another employee of the State in loading a picket fence, commonly called a snow fence onto a truck, he strained himself, which strain caused a hernia; that it was accompanied by severe pains; that his foreman had notice at the time of the injury, and that the injury arose out of and in the course of his employment.

From the medical testimony introduced, it appears that claimant did suffer a hernia.

At the time of the injury, claimant was receiving $3.15 per day and has three children, aged nine years, four years and one and one-half years respectively. His surgeon operated upon him for this injury and he was out of employment thirty weeks.

No question arises upon the record as to the law or the facts. Clearly, claimant was under the Compensation Law of Illinois. We find that his surgeon’s and hospital bill have been paid in the sum of $148.00, but claimant has not been paid under the Compensation Act.

We, therefore, hold that he is entitled to $13.00 per week for thirty (30) weeks, or a total of $390.00, and recommend to the Legislature that an appropriation for that sum be made to the claimant, LeRoy Thompson.


text:
    (No. 2275
    John Waddell and Alma Waddell of Kansas City, Doing Business as The Hill Manufacturing Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1935.

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

delivered the opinion of the court:

Claimants on the 29th day of December, 1931 sold and immediately thereafter installed at the Joliet Stateville Penitentiary one Hill Non-Condensable Gas Separator; and they also installed a similar machine at the Chicago State Hospital, at a charge of Three Hundred Seventy-five Dollars ($375.00) each with additional express of Three and 22/100 Dollars ($3.22) or a total of Three Hundred Seventy-eight and 22/100 Dollars ($378.22) for each of said machines for which they ask an award with interest at six per cent (6%) from December 29, 1931. Claimants contend that said machines have been in constant use and operation at said institutions from the time they were installed. Claimants contend there is an implied contract of sale, under the provisions of the Hniform Sales Act which provides as follows:

“When goods have been delivered on approval or on trial or satisfaction or other similar terms, the property therein passes to the buyer * " * (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, and if a time has been fixed for the return of the goods, at the expiration of that time, and if no time has been fixed, on the expiration of a reasonable time.”

See. 121 Cahill’s Rev. Statutes Par. 22, Rule 3, Part 2.

On February 25, 1932 A. L. Bowen notified C. Herrick Hammond, Supervising Architect as follows:

“In reply to yours of February the sixteenth, on the subject of the gas separator in the refrigerating system at the Chicago State Hospital, let me advise that the financial condition of the treasury makes it impossible to approve the purchase of the equipment which has been installed on trial by the Hill Manufacturing Company.”

On March 1, 1932 L. A. Snider, Consulting Engineer of the Department of Purchases and Construction, through whom the installation had been effected notified claimants as follows:

“Some time ago I recommended that the gas separator furnished for Chicago State Hospital be purchased.
I forwarded your invoice in the amount of $378.36 to Springfield with my letter of recommendation. I have just been advised by Springfield that it will be impossible to approve the purchase of this equipment. I am requested to advise you and ask that you remove the equipment at Chicago State Hospital at no expense to the State.
I am sorry that it is necessary to so advise you, because the equipment has proved to be very efficient and desirable. I am- sure that it would pay for itself in a very short time. Mr. A. L. Bowen, Superintendent of Charities for the Department of Public Welfare, has found it necessary to refuse approval for this purchase, stating that the financial condition of the treasury makes purchase impossible.
I know that you will be particularly disappointed in this matter because you came to my office, sent by Mr. Rodney H. Brandon, Director of the Department of Public Welfare, with the request that you be permitted to demonstrate your equipment. Tou will, however, appreciate the fact that this office can do no more than it has done, as final decision in a matter of this kind rests with the department in Springfield.
At this date I do not have any instructions with reference to the equipment furnished by you and installed at Illinois State Penitentiary.”

A statement in the record by A. L. Bowen, Director of the Department of Public Welfare recites that the equipment in question was installed on a trial basis and that the purchase of the equipment could not be authorized regardless of whether same was satisfactory or otherwise, because of the financial condition of the treasury. At the time of the installation in question the Department of Purchases and Construction had the power to procure and supply all plumbing, light and engine supplies needed by the several departments. No officer, institution, department, board of commission was authorized to contract any indebtedness in behalf of the State nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law —Sec. 30 State Finance Act.

The machines in question were installed about the end of 1931 at the apparent solicitation of Claimants. As early as February 25,1932 notice was given them that the machines could not be purchased and that same should be removed. For some reason claimants did not see fit to remove the machines and now seek to, indirectly through the Court of Claims, receive payment for that which the State at that time would not buy in a direct manner. The machines have at all times since the notice in February, 1932, awaited the pleasure of claimants. The fact that claimants have preferred to leave the machines in the possession and use of the State in the apparent belief that eventually they might be paid for is their privilege, but no award for the price of such machines is justified thereby. To grant an award under the conditions herein stated would be to establish a rule or precedent, which the court does not believe to be warranted by law. Claim is denied, and case dismissed.


author: Mb. Chief Justice Hollerich

text:
    (No. 1985
    Amelia Streitmatter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1935.

    J. Edward Radley, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed her complaint herein on September 19, 1932 and alleges therein in substance that on July 31, 1932 she was the owner of a Town Sedan Ford which was then and there being used and operated by the respondent through its servants and agents in transporting troops of the Illinois National Guard from the Armory in Peoria to the rifle range seven (7) miles north of said city; that said auto while being used for such purpose, was damaged, broken and destroyed.

The complaint also avers that the agent of the respondent who was operating said automobile as aforesaid, was in the exercise of ordinary care and caution for his own safety, and had due regard for the rights of other automobiles in and upon said highway; that the coroner’s inquest found that said accident was unavoidable; that a board of officers impanelled to investigate said accident found that no blame attached to the respondent or its servant driving and operating said automobile; and that by reason of the loss of her car as aforesaid, claimant has sustained damages in the amount of Seven Hundred Dollars ($700.00).

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

This court has no authority to allow an award in any case unless there would be a legal liability on the part of the State to pay the same if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Watkins vs. State, 6 C. C. R. 172; Perry vs. State, 6 C. C. R. 81; Peterson vs. State, 6 C. C. R. 77.

The complaint does not allege any negligence on the part of the respondent; — on the contrary, it alleges that no blame attached to the respondent or its agent who was operating the car. Even if the accident had resulted from the negligence of the servants and agents of the respondent, there would be no liability on the part of the respondent in the absence of a Statute making it liable therefor. Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange, 354 Ill. 234.

There being no liability on the part of the State under the facts set forth in the complaint, award must be denied.

Award denied. Case dismissed.


author: Mr. Justice Linscott

text:
    (No. 2060
    George Wallis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1935.

    A. H. Hanneken, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed on January 24, 1933, alleging that on the 10th day of November, 1932, and for a long time prior thereto, the State of Illinois had under its management, control and supervision, a cement paved highway, running between the City of Dixon, Lee County, Illinois, and the City of Sterling, Whiteside County, Illinois, being State Highway Number 6, commonly known as The Lincoln Highway; that on that date and for a long time prior thereto, the plaintiff was employed by the State in the doing of maintenance and repair work upon this highway, at a weekly wage of Twenty-seven Dollars ($27.00) per week; that on the 10th day of November, 1932, the claimant was drilling holes in a dip in the cement pavement of said highway with a drill driven by compressed air, which holes were to be filled with a mixture of earth and cement pumped into the same by means of a machine known as a mud jack; that attached to the shank of the drill was a device known as a cutting cap which actually cut the holes into the cement pavement; that on the day aforesaid, a new cutting cap was being replaced on said machine; that said cutting cap was furnished by the State and was put on said machine under the direction of the proper authorities; that while replacing the cap, a part of the machine was placed in a vise and was being struck with a hammer in order to loosen it, and while the claimant was striking the same with a hammer, a particle of steel became dislodged from said cutting cap, and struck the plaintiff’s eye, penetrating the lower lid and lodging in the back end of the eye ball, and penetrating the edge of the lens of said left eye, and by reason théreof, the claimant has lost the complete sight of Ms left eye.

It is agreed that Ms average weekly wage was Twenty-seven Dollars ($27.00) per week.

Under the direction of the district engineer in charge of the State Highway offices in the city of Dixon, Illinois, plaintiff called upon Dr. Harry S. Gradle, in Chicago, and the plaintiff was confined to the Michael Reese Hospital from the 15th day of November, 1932 to the 23rd day of November, 1932. Dr. Gradle removed the particle of steel from the eye. Plaintiff then returned to his home in Dixon, Illinois on the 23rd day of November, 1932 and was under the care of Dr. W. A. McNichols.

Plaintiff avers in his declaration that he has been advised that the State has paid or has agreed to pay all the necessary medical, surgical and hospital expenses incurred by him as the result of the injury, and that the State further paid the plaintiff fifty per cent, of the weekly earnings to which he would have been" entitled, from the 10th day of November, 1932 to the 3rd day of January, 1933, and damages in the sum of Five Thousand Dollars ($5,000.00) was asked.

We must treat this as a claim filed under the Compensation Act.

Evidence was taken which substantiated the allegations of fact in the complaint, and there was a total loss of vision of the left eye.

Under the Compensation Act, for the loss of the sight of an eye, fifty per cent, of the average weekly wage during one hundred and twenty weeks is provided as compensation.

From the evidence, it appears that the injury arose out of and in the course of the employment. It does not appear whether or not the claimant had any cMldren under .sixteen years of age at the time of the injury.

We, therefore, hold that he was entitled to one-half of his weeldy wage, which was Twenty-seven Dollars ($27.00) for one hundred twenty weeks, making a total of One Thousand Six Hundred Twenty Dollars ($1,620.00), and we recommend an appropriation be made for that amount.


text:
    (No. 2067
    Wisconsin Bridge & Iron Co., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1935.

    Lafrom, Tighe, Engelhard & Peck, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

This claim as originally filed on February 7, 1933, contained two items of damages alleged to have been occasioned by the respondent in connection with a bridge contract awarded to claimant on S. B. I. No. 121 over the Illinois River near Pekin, Illinois.

The first item of the claim, as stated in plaintiff’s Bill of Particulars is as follows:

Labor and expense of shop crew, storing and rehandling structural steel work for the approach to the Cedar Street Bridge at Peoria, Route No. 121, Sec. 103C, due to J. L. Simmons Company’s inability to complete the substructure in accordance with their proposed schedules. $4,052.00

The second.item of plaintiff’s claim grew out of labor troubles experienced by plaintiff and includes—

Insurance, deputy sheriff fees, taxes, flood lights, guards, labor, additional equipment, attorney fees and court costs incident to injunction proceedings in a total of..........$10,007.97

An amended declaration was filed on December 27, 1933 which includes the two foregoing items and an additional item for an extra allowance on steel and iron used in the bridge, in addition to the weights as previously determined by the State Engineers to the amount of........$ 3,393.70 making a total claim by plaintiff herein of........ 17,453.67. As to its first cause of action claimant contends that upon the contract being awarded to it for the bridge in question, a letter was written to it by the Division of Highways, Department of Public Works and Buildings which stated—

“This contract is awarded to you upon condition that you will start work on this section immediately and will prosecute the work as outlined in the special provisions included in your proposal.”

Claimant contends that immediately thereafter representatives of the Highway Department met with claimant and agreed upon a Schedule of Progress for the construction of the work covered by the contract; that it was agreed that the substructure for the bridge that was being built by other parties would be ready so that claimant could begin its operations for erecting the superstructure on April 1, 1932; that claimant was prevented from shipping its material in accordance with the Progress Schedule because the bridge bite was being used by the substructure contractor. Claimant contends that it was necessary by reason of the delay 'in substructure work, for it to store and rehandle its fabricated material; that the cost of work, unless otherwise designated in the specifications, is figured on the basis of fabrication and immediate shipment, and that this is the basis upon which claimant figured on this job (Plaintiff’s Brief, P. 4).

The respondent contends that the report of the Highway Department states that it is common practice for the structural steel to be fabricated early and remain in storage either in plant or at the bridge site until the workmen are ready for same; that the specifications permit payment for steel in storage pending erection and that such provision for payment was actually taken advantage of by the plaintiff in the amount of $65,457.67 paid May 13,1932 — $11,653.91 paid June 28,1932 —and $18,316.78 paid July 22, 1932, all for steel in storage.

Plaintiff’s claim must be determined by the conditions and provisions stated in the contract. Claimant concedes that its contract did not require it to begin work specifically on April 1, 1932, and that there was no guarantee that work could be started on that date. Claimant knew when it received the letter of award, dated December 1, 1931, stating that “This contract is awarded to you upon condition that you will start work on this section immediately, etc.,” that the substructure work had to be advanced to certain stages before the actual superstructure construction could take place. The estimate of time made by plaintiff for the fabrication of its steel work was a matter for its own judgment and the fact that the State advanced the claimant a total of $65,457.67 in May, 1932 — $11,653.91 in June, 1932 — and $18,316.78 in July, 1932, under a section of the specifications (96) indicates that storage and rehandling of structural steel was anticipated at the time the contract was made, and that plaintiff took full advantage of its opoprtunity to obtain such advance payment.

No legal ground existing for an award for item one of plaintiff’s claim, an award therefor is denied.

Plaintiff’s second cause of action, i. e. — Claim for special items of expense arising by reason of labor troubles in connection with the performance of the contract in question carries with it no legal basis upon which an award could be predicated. Claimant contends that because the Governor of Illinois did not order out a military force to protect the claimant in its work, that the State should be liable for any expense to which claimant was put in hiring armed guards or any additional expenses to which it was put. The Statutes of Illinois provide for a specific liability upon the part of cities in case of strikes and riots, but there is no Statute fixing any legal liability against the State in such matters. In the absence of any such legal liability this court cannot justify an award. Another portion of this item of plaintiff’s claim is based upon an understanding which it had that it could place a derrick on the portion of the bridge owned by the City of Peoria, but that at some stage of the construction work it was ordered by the City of Peoria to remove its derrick from the Peoria side of the bridge and as a result additional truck expense was incurred in handling its material. Under no process of legal reasoning can the State be held responsible for the action of the officials of the City of” Peoria. Any award to claimant under item two is hereby denied.

Plaintiff's third claim results from a controversy over the method of computing the weights of structural steel, iron and steel castings. It is agreed that the method of determining the weight is not by actual weighing, but such weight is computed according to certain methods of measurements existing in the steel and construction industry. The contract in question was awarded under “Standard Specifications for Road and Bridge Construction” adopted by the Highway Department of Illinois on February 1, 1930. Section 44.4 thereof contains the following:

“The weight paid for shall be the weight given in the contract, or revised by authority of the engineer.”

Claimant cites Section 39.19, Method of Measurement, which provides:

“The quantities of the various items which constitute the completed and accepted structure will be measured for payment according to the plans and specifications for the several pay items.”

Also, Section 39£0 Basis of Payment:

“The quantities, measured as provided herein, will be paid for at the contract unit prices for the" several pay items constituting the structure and listed in the proposal, which price shall be payment in full for all foundation and substructure work, removal of existing structures, furnishing, preparing, fabricating, transporting, placing, and erecting all materials for the complete structure, for all shop work, painting, and field work, for all labor, equipment, tools, and incidentals, necessary to complete the work as required herein.”

Claimant contends that under the specifications and contract, the computed weight for which it was to be paid should have allowed variation for overrun on plates over thirty-six inches in width and on iron or steel castings, and for weight of paint. The method of payment used by the Division of Highways is based on nominal weights without allowance for overrun or weight of paint, and has been used by that Department for the past twenty years. The record shows that eleven states out of a total of twenty-five are using the same method as Illinois. Claimant in its introduction of evidence and in its argument refers to other methods of determining weights and refers specifically ° to the rules of the American Society for Testing Materials, and the American Institute of Steel Construction, Inc.

Claimant submits (Brief p. 21). The sole question presented in claimant’s third cause is whether or not the methods used by respondent in computing the weights upon which claimant was paid is in accordance with well recognized engineering practice. Section 9.1 of the standard specifications seems, by its general wording, to refer to roadway rather than bridge construction, but if it may be said to pertain also to the latter, then the wording 1 ‘ actual quantities of work * * * shall be measured by the engineer * * * in accordance with well recognized engineering practice” when considered with Section 44.4 of the Specifications gives to the State Engineer discretion in the method and manner of computing the weights of steel and iron. Apparently the State Engineer in this instance followed a rule which had up to that time received approval in many States and one that has been followed in Illinois for twenty years. The fact that the steel manufacturing industry had adopted a different rule, or even that the State of Illinois since that time has changed its rule, would not affect the engineer’s right at the time stated, to follow the rule which he did. The Constitution of Illinois provides as follows:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any * * * contract or after service has been rendered or a contract made, nor authorize the payment of any claim or part thereof hereafter created against the State under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”

Sec. 19, Art. TV" Constitution of Illinois.

An award for item 3 is also denied, and plaintiff’s claim is hereby dismissed.


text:
    (No. 2176
    Will A. Akin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    L. E. Stewart, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 3d day of March, A. D. 1933, claimant was employed by respondent as Industrial Superintendent at the Southern Illinois Penitentiary at Menard. The Attorney General concedes that on the last mentioned date claimant was engaged in an extra-hazardous employment within the meaning of the Workmen’s Compensation Act; that on said day he sustained an accidental injury which arose out of and in the course of his employment; that notice of accident was given and claim for compensation made as required by law; that claimant’s wages were $40.00 per week, and that he had two children under sixteen years of age at the time of the accident.

It is also agreed by counsel for claimant and respondent that medical and hospital services were furnished by the respondent, and that the only question for determination is the nature and extent of claimant’s injuries and the amount of compensation to he paid therefor.

The evidence discloses that at the time of the accident claimant was helping to move a load of material in a dump truck. While turning a crank to raise the load for the purpose of dumping it, the truck kicked, and jerked the lever out of claimant’s hand in such manner as to strike him on the rig’ht side of the head, whereby he sustained injuries to his head from which he still suffers, also a wound on his jaw about four inches in length, and one of his molar teeth was injured so that it had to he removed. Seven stitches were required to sew up the wound, and claimant now has a permanent and easily noticeable scar about three inches in length, extending from a point just below the mouth, down across the jaw bone and about an inch on to the neck, running downward and outward.

As the result of the accident, Akin claims that he was incapacitated for work for the period of ten weeks, and there is no evidence to the contrary.

Upon a consideration of the evidence we find that claimant is entitled to recover ten (10) weeks’ temporary total compensation at the rate of $16.00 per week, and in addition thereto is entitled to twenty (20) weeks’ compensation for serious and permanent disfigurement of the face — in all, thirty (30) weeks at $16.00 per week, making a total of $480.00.

Award is therefore entered in favor of the claimant, Will A. Akin, for the sum of Four Hundred Eighty Dollars ($480.00).


author: Me. Chief Justice Houlbbioh

text:
    (No. 2171
    Herman J. Arnold, Administrator of the Estate of Ambrose Sullivan, Deceased, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    Downing & Helebich, for claimant.
    Otto Keener, Attorney General; John Kassbeman, Assistant Attorney General, for respondent.
   Me. Chief Justice Houlbbioh

delivered the opinion of the court:

For about eight days prior to the 16th day of June, A. D. 1932, Ambrose Sullivan had been employed by respondent in mowing weeds on S. B. I. Routes Nine (9), Three (3) and Ninety-five (95) in McDonough County, under the supervision of Jesse Walters, Highway Maintenance Superintendent. Sullivan lived about two miles north of Macomb, and was the owner of a team of horses and a mower which he used in his said work. For the first few days of his employment he worked near his home, and drove his team home at the end of the day’s work. After the first few days, he was at some considerable distance from his home at quitting time, and on those days he left his team and mower with some farmer who lived near the place where he stopped work, and rode home with Mr. Jesse Walters, the Maintenance Superintendent, and the next morning he would come out with his Maintenance Superintendent to the place where he left his team the night before. The matter or custom of riding back and forth with the Maintenance Superintendent was not a part of the contract, but was a sort of mutual arrangement or understanding between them. The same custom existed with other men who were also employed in mowing weeds. The mowers ordinarily worked nine hours a day, usually commencing at seven o’clock a. m., and quitting at five o’clock p. m. Sometimes they started a little before seven or a little after seven, but they aimed to start work at seven o’clock. Their time commenced when they got on the job. On a wet morning their time commenced when the weeds were dry enough to mow.

On June 15, 1932, Sullivan was about seven miles from his home when he quit work. He left his team and mower with a farmer living about forty rods north of S. B. I. Route 95, and rode home with his Maintenance Superintendent.

The next morning the Maintenance Superintendent in driving out to work met Sullivan about one-half mile from his (Sullivan’s) house, and stopped to pick him up. The Maintenance Superintendent was driving a small pick-up truck with a single seat, and there were two men riding in the seat with the driver. Sullivan rode in the back of the truck, which went north on Route 3 to the Junction and then east on Route 95, to a point about seven miles from Macomb where the Maintenance Superintendent stopped the truck so that Sullivan could get out and get his team and mower. Sullivan got out and started across the road to the north. Just then Mr. Walters, the Maintenance Superintendent, called to him and he came back. In this connection Mr. Walters testified:

“It had come a rain the day before and we were in doubts whether it was going to dry enough to go on mowing. After he got out I spoke to him, and I said, ‘Mr. Sullivan, you can use your own judgment about when to start.’ ”

Homer B. Carey, the only other witness who testified as to this conversation, said:

“Mr. Sullivan got out and started across the road and Jess hollered at him and called him back and told him that it was too wet, we wouldn’t hitch up for about two hours until it got a little dryer.”

After this conversation, Sullivan started back across the road again to the north. Just then one Keith Sapp who was also driving east on said Route 95, approached the State truck, and turned to the left to pass it just as Sullivan was crossing the road the second time. Sapp turned further to the left to avoid an accident, but Sullivan evidently became confused, and ran into the side of Sapp’s car, whereby he was thrown to the pavement, and sustained injuries from which he died while being taken to the hospital.

Sullivan left him surviving his wife and four children, two of whom were under sixteen years of age at the time.

Sullivan’s earnings were eighty-five cents (85c) per hour for himself, team and mower, of which amount forty cents (40c) was regarded as his for his individual services and the balance for the team and mower. Claimant, as administrator of the estate of said decedent, seeks to recover compensation under the terms and provisions of the Workmen’s Compensation Act.

The Attorney General contends that claimant is not entitled to recover for the following reasons:

1. No claim for compensation was made within six months after the accident, as required by Section 24 of the Workmen’s Compensation Act.

2. The accident in question did not arise out of the employment of said decedent.

We have examined the evidence carefully and do not find any evidence whatsoever which bears in any way upon the question as to whether any claim for compensation was made.

The making of claim for compensation within six months after the accident, in accordance with the requirements of Section 24 of the Workmen’s Compensation Act, is jurisdictional, and is. a condition precedent to the right to maintain a proceeding under the Compensation Act. City of Rochelle vs. Ind. Com., 332 Ill. 386; Inland Rubber Co. vs. Ind. Comm., 309 Ill. 43; Bushnell vs. Ind. Comm., 276 Ill. 262; Haiselden vs. Ind. Board, 275 Ill. 114.

The making of claim for compensation being a condition precedent to the right to recover, we have no jurisdiction to proceed further with the case. It therefore becomes unnecessary to consider the question as to whether the accident in question arose out of and in the course of decedent’s employment.

For the reason above set forth, award must be denied. Under the rules the claimant has thirty days in which to file an amended complaint. Unless an amended complaint stating a cause of action against the respondent is filed within thirty days from the date of the entry of this order, final judgment will be entered dismissing the claim.


author: Me. Justice Yantis

text:
    (No. 2433
    Audrea Du Val Laboratories, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

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

delivered the opinion of the court:

Claimant submits its claim under a statement that there is no dispute concerning the facts in the present case, the matter for determination by the court being the question of whether the Secretary of State may for the purpose of computing the Annual Franchise Tax of an Illinois corporation disregard the annual reports filed by such corporation.

The claim was filed on July 13, 1934, for One Hundred Dollars as refund of a franchise tax which claimant claims to have paid in excess of the amount properly due. Claimant alleges that it was incorporated under the laws of Illinois on October 23, 1928, with an authorised capital stock of Twenty-five Thousand Dollars ($25,000.00); that during that year Two Thousand Dollars ($2,000.00) worth of such capital stock was issued, which amount remained outstanding down to and including September 5, 1933, at which time four and one-half (4%) shares were surrendered for cancellation and that the capital stock remaining thereafter has been One Thousand Five Hundred Fifty Dollars ($1,550.00). That on or about October 10, 1929, claimant amended its charter by increasing the capitalization to Seventy-five Thousand Dollars ($75,000.00) consisting of Five Hundred (500) shares of preferred stock of the par value of One Hundred Dollars ($100.00) per share and Five Thousand (5,000) shares of fcommon stock of no par value; that no part of such increased capital stock was ever issued; that during the years 1930, 1931 and 1932 claimant filed with the Secretary of State of Illinois, as required by law, its annual report and in answer to interrogatory No. 10 in each of said annual reports, claimant offered to pay a franchise tax based upon its entire issued capitalization of Two Thousand Dollars ($2,000.00); that upon each of said reports being filed, the Secretary of State mailed to claimant a notice in writing that there was due the State for the year next ensuing commencing respectively on July 1, 1930, 1931 and 1932 the sum of Thirty-seven and 50/100 Dollars ($37.50) with the statement that such franchise tax was based upon all of claimant’s authorised capital stock of Seventy-five Thousand Dollars ($75,000.00), although the entire capital that had been issued, at no time exceeded Two Thousand Dollars ($2,000.00); that the franchise tax for each of the said three years upon a Two Thousand Dollars ($2,000.00) capital would have been Ten Dollars ($10.00) instead of Thirty-seven and 50/100 Dollars ($37.50); that upon receipt of such notices for said years claimant paid Thirty-seven and 50/100 Dollars ($37.50) on July 25, 1930 — • Forty-one and 25/100 Dollars ($41.25), (including penalty of 10%) on June 30, 1931 — and Thirty-seven and 50/100 Dollars ($37.50) on June 28,1932. Claimant avers that said payments were made in reliance upon the accuracy of said notices, and to avoid the penalties for failure to pay such franchise tax when due. Apparently the first objection that was made by plaintiff to such payment was in a letter addressed to the Secretary of State on August 8, 1933. Claimant in its argument contends that as each of the annual reports showed that the amount of stock actually issued was at no time in excess of $2,000.00, and inasmuch as said reports were made upon the forms prescribed and furnished by the Secretary of State, and were prepared and filed for the specific purpose of informing the latter of the amount of capital stock then issued, upon which the assessment of an Annual Franchise Tax for the ensuing fiscal year should be based, that it did not lie within the province of the Secretary of State to adopt, as the basis for such annual tax, other records or data in conflict therewith. Claimant contends that the Secretary of State made a mistake and computed the franchise tax on an erroneous basis and that inasmuch as he did not have the power to assess a tax in excess of Ten Dollars for each of said years, that a refund should be allowed in the sum of Eighty-five and 25/100 Dollars ($85.25).

The reason for the assessment, on the basis stated, is clearly apparent. The Secretary of State had before him at the time of the assessment, the amendment voted by claimant increasing its capital stock, — the resolution whereof recited that the additional Seventy-five Thousand Dollars ($75,000) worth of stock was to be- issued at once and paid in cash. This resolution and amendment were made on the 28th day of September, A. D., 1929.

If claimant recovers it must be on the basis of a “mutual mistake of fact. ’ ’ The Corporation Act of Illinois provides:

“The Secretary of State shall from the Annual Report filed assess a tax at the rates herein prescribed against each corporation.
“He shall from the best available information also assess such tax on all corporations organized or admitted between January 15th and March 1st.”

The Secretary of State should have assessed the tax from the annual report filed by claimant. It is true the amendment to their charter, stating an immediate proposed increase, would well put the Secretary of State on inquiry, but fwould not in itself justify assessing a franchise tax on a basis other than that indicated by the annual report.

The original certificate of incorporation showed a proposed issue of stock in the amount of Two Thousand Dollars, ($2,000.00) and the latter amount is the one that appears in the annual reports as the amount of issued stock.

“Where there is no controversy as to the facts and it appears that a franchise tax was erroneously paid by reason of a mistake in computation an award will be allowed.”

6 C. C. R. 206.

7 C. C. R. 6.

Claimant filed a correct report stating the amount of stock issued but the Secretary of State erroneously submitted a statement for fees, not based thereon. Claimant apparently accepted the statement as being based on the correct figures in the report. A mutual mistake having occurred, a refund is due claimant and an award is therefore made in the sum of $27.50 for the excess charge made for each of the years of 1930, 1931 and 1932, making a total of Eighty-two and 50/100 Dollars ($82.50).


author: Mb. Chief Justice Hollebioh

text:
    (No. 2368
    Carlin Frary Gibbs, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    August C. Meyeb, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebioh

delivered the opinion of the court:

For some time prior to and on the 15th day of May, A. D. 1933, claimant was acting as assistant in chemistry in the Department of Chemistry in the University of Illinois, pursuant to employment by the Board of Trustees of such University. On the date last mentioned, about nine o’clock p. m., while assembling laboratory apparatus and attaching a rubber tube to a glass arm of a distilling flask in connection with the performing of an experiment with chemicals of various kinds, the glass tube broke and one of the fragments cut the little finger of claimant’s left hand, severing a tendon, which retracted, necessitating an operation, and resulting in the permanent loss of part of the use of such little finger.

It seems to have been taken for granted both by claimant and respondent that the respondent was engaged in a hazardous business or enterprise within the meaning of Paragraph seven (7) of Section three (3) of the Workmen’s Compensation Act, which provides in substance that the provisions of the Act shall apply automatically to all employers and all their employees engaged in any department of any enterprise wherein molten metal, or explosive or injurious gases or vapors, or inflammable vapors or fluids, or corrosive acids are manufactured, used, generated, stored or conveyed in dangerous quantities.

Although such assumption may be justified by facts within the knowledge of counsel for the respective parties, yet the present state of the record does not justify the same.

The Attorney General takes the position that the accident in question did not arise out of and in the course of claimant’s employment, and if he is correct in such contention, it will be decisive of the case, as under such circumstances claimant will not be entitled to an award even though he was engaged in an extra-hazardous enterprise at the time of the accident. We will therefore consider the question raised by the Attorney General.

The question as to when an accident arises out of and in the course of the employment has been considered by our Supreme Court in many cases, and the words “arising out of” and the words ‘ ‘ in the course of ’ ’ now have a fixed and definite meaning. In the case of Board of Education vs. Industrial Commission, 321 Ill. 23, the court said:

"It was incumbent on the defendants in error to prove that the injury to their husband and father arose ‘out of and in the course of’ his employment. These words have often been discussed and defined by this court, and it is now well established that the words ‘out of’ point to the origin of the cause of the accident, and that the words ‘in the course of’ point to-the time, place and circumstances under which the accident occurred. These words are used conjunctively, and there can be no recovery in this case unless the injury occurred in the course of the employment and also arose out of the employment. The full meaning of this statement is, in substance, that the accident must result from a risk incidental to the employment and while the employee is doing that which he is reasonably required to do within the time of his employment and at the place where he may be reasonably expected to be while discharging the duties of his employment. Dietzen Co. vs. Ind. Board, 279 Ill. 11; Morris & Co. vs. Ind. Com., 295 id. 49; Mueller Construction Co. vs. Ind. Board, 283 Ill. 148; Vincennes Bridge Co. vs. Ind. Com., 351 Ill. 449.”

In the case of Edmunds vs. Ind. Com., 350 Ill. 197, the court said:

“Employees are not in the course of their employment even though they may be in the general area of it, if they are not engaged in the particular duties for which they were employed or some work incidental thereto.”

In the ease of Cruzan vs. Ind. Com., 350 Ill. 407, the court said:

“It is not enough that the injured person may be present at the place of the accident because of his work unless the injury is the result of some risk of the employment. * * * * * * One claiming compensation under the Compensation Act for the death of an employee must prove by direct and positive evidence or by evidence from which the inference can fairly and reasonably be drawn, that death was caused by an accidental injury which occurred not only in the course of the employment of the deceased but also arose out of such employment.”

However, it is not always a simple matter to apply the definitions given to the facts in the particular case.

In this case it appears from the evidence that the claimant’s position was what is known as a teaching fellowship; that teaching fellows in positions similar to that of the claimant are employed to teach part time in order to make it easier for them to carry on advanced work for which they have shown special aptitude; that an assistant is appointed primarily for his teaching ability, but as a secondary requirement he must be capable of doing competent graduate work toward an advanced degree; that the acceptance agreement between claimant and the Board of Trustees of the University under which claimant was working at the time of the accident in question recites as follows:

“That the Board of Trustees of the University of Illinois has appointed you to the position of assistant in chemistry on one-half time for the second semester of the academic year 1932-33 at a cash compensation of three hundred dollars ($300) (with exemption from tuition incidental, and laboratory fees in the Graduate School, except matriculation or diploma fees).”

The evidence further shows that no assistant is appointed unless he is an active student for an advanced degree, which in turn requires research work involving laboratory experimentation; that if the claimant were to discontinue his research work or it was to prove unsatisfactory, he would not be retained after the expiration of his existing contract.

Dr. C. S. Marvel, Professor of Chemistry at the University and claimant’s research director, was inclined to regard the work being done by the claimant at the time of the accident as part of his duties, while Dr. Roger Adams, head of the Chemistry Department of the University, was inclined to the opposite view.

The evidence shows that claimant’s teaching hours were from eight to ten, and ten to twelve m., and from five to six p. m.; that on the date in question he returned to Room 214B in the Chemical Building, about seven-thirty p. m., to do certain research work; that the work upon which he was engaged at the time of the accident in question was in connection with his work for his doctor’s thesis; that he received credit toward his graduate degree for such work; that he expects to receive his degree in February, 1935.

Claimant testified that a fair characterization of the arrangement between the Board of Trustees and himself is as follows: That while at the University, registered as a graduate student doing work towards his doctor’s degree, the University during the second semester of the academic year 1932-33 employed him for half time at the stated compensation, the other half of the time being his own to do as he saw fit or as might be required of a student doing work towards a doctor’s degree.

Although the matter is not entirely free from doubt, we are inclined to the opinion from all the evidence that at the time of the accident the claimant was not engaged in the performance of any of the duties required of him by his contract of employment or in the doing of anything which was incidental to the performance of such duties. He was employed as an instructional assistant to do teaching work, and the graduate work was no part of the work for which he was employed and paid — but he was required by the rules of the Chemical Department to do such research work if he was to remain in the Graduate School and pursue his studies therein.

The evidence shows that the work upon which the claimant was engaged at the time of the accident was not teaching work, but was his own individual work done for the purpose of obtaining his degree, and incidentally for the purpose of enabling him to remain in the Graduate School, but was not a part of the duties of his employment within the terms of his contract.

We conclude, therefore, that the accident to the claimant did not arise out of and in the course of his employment and award must therefore be denied.

Award denied. Case dismissed.


text:
    (No. 2345
    The Edward Gillen Dock, Dredge and Construction Company, a Corporation, Claimant, vs. State of Illinois, Despondent.

      Opinion filed February 13, 1935.

    Clarence W. Heyl, for claimant.
    Otto Keener, Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This case comes to the court on a complete stipulation of facts, signed not only by counsel for the respective parties, but also by the Assistant Director and Acting Director of the Department of Public Works and Buildings of the State of Illinois, and approved by the Chief Engineer of the Division of Highways.

It appears that on October 21, 1933, the Edward Gillen Dock, Dredge and'Construction Company, a corporation, entered into a stipulation with the Department of Public Works and Buildings wherein it was agreed that it should file its suit in the Court of Claims of this State and that said court may enter a judgment in favor of the plaintiff based upon the facts and agreements set forth in that stipulation. The original of the stipulation was attached to the declaration of the plaintiff filed in this court.

It was further agreed that upon a hearing this court should award the plaintiff a judgment in the sum of Twenty-eight Hundred Sixty-eight Dollars and Twenty-four Cents ($2,868.24). The original stipulation' is made a part of the declaration.

Plaintiff averred that its claim is based upon said stipulation and agreement and that said stipulation and agreement was duly executed by the Assistant Director and Acting Director of the Department of Public Works and Buildings of the State of Illinois, approved by the Chief Highway Engineer of the Division of Highways of the State of Illinois, and further approved by the Attorney General of the State of Illinois. The facts are as follows: 0

The General Assembly, prior to July 26, 1926, appropriated funds and authorized the construction of a road in Fulton County, Illinois, to be known and designated as “ Copperas Creek Lock Road,” Section one being a road extending from the Village of Banner to Copperas Creek Locks on the Illinois River in Fulton County. The original contract was let by the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, to one Charles E. Bradbury, of Canton, Illinois, as contractor. Prior to the time of the letting of this contract, the said Department took a certain release of right of way and dedication of the lands claimed to have been owned by Dan W. Voorhees, Sr. The description is set out in a certain stipulation contained in the file. The release of right of way and dedication was signed by Joseph A. Weil, administrator of the estate of Dan W. Voorhees, Sr., deceased, and not by any of the heirs at law of the said Dan W. Voorhees, Sr., and consequently had no legal force and effect. It does not appear that the Department of Public Works and Buildings of this State ever secured an opinion from the Attorney General upon the title of this land, neither does it appear just why this Department assumed to act without such an opinion in a matter involving important legal questions, but it appears that the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, went upon the said lands upon the assumption that the release and dedication above referred to gave it the right of way to take the lands for the purpose of the construction of a highway thereon.

It appears from the stipulation that Charles E. Bradbury, the original contractor, defaulted in the contract and was unable to complete the same and the surety on his bond, the New Jersey Fidelity & Plate Class Insurance Company, of Newark, New Jersey, a corporation, went upon said premises for the purpose of attempting to complete said construction and on April 11, 1929, the said bonding company, then bound to complete said road for and on behalf of said Charles E. Bradbury as the original contractor, entered into a written contract with the Edward G-illen Dock, Dredge and Construction Company, a corporation, of Beardstown, Illinois, the original of which said contract is attached to the stipulation, and made a part thereof.

After the making of the contract, the last mentioned company was directed by the then officers and engineers of the Department of Public Works and Buildings, Division of Highways, of the State of Illinois, to go upon said premises and complete the original contract and this company did, thereupon, go upon said premises described in the contract and continue the prosecution of the work under the contract until the same was completed. The Department of Public Works and Buildings accepted the work and the Edward Grillen Dock, Dredge and Construction Company was paid for the performance of the contract after the approval of the work by the proper officers of the Division of Highways.

It further appears from the stipulation that some time during the progress of the work, the construction company was advised by someone that the State did not have title to that portion of the road being constructed over the premises of Dan W. Voorliees, Sr., deceased, and thereupon the construction company took the matter up with the Division of Highways and reported to it this information, and the State Department, by its then duly authorized officers, directed the construction company to proceed with the work and to pay no attention to the complaints that were made as to the sufficiency of the State’s title.

Thereupon the Edward Gillen Dock, Dredge and Construction Company did proceed with the work and completed the same in good faith under the direction of the Division of Highways upon the premises as surveyed and staked out by the Department of the Division of Highways.

About the time the work was completed and before the construction company had removed' its equipment, it was duly served with a summons in a case brought in the Circuit Court of Fulton County, Illinois, to the May, 1930, Term, by one B. M. Chiperfield, as plaintiff, being Law No. 22696, in which the plaintiff claimed damage in the sum of Five Thousand Dollars ($5,000.00), for trespass to real estate, charging that the Edward Gillen Dock, Dredge and Construction Company, with force and arms broke and entered the premises of the plaintiff and fell, cut and destroyed certain trees and saplings, and had excavated in various places upon said premises and had thrown earth upon other portions of the premises and deprived the plaintiff of the use, occupancy and enjoyment of the premises. The Chiperfield premises were adjacent to the premises owned by the estate of Dan W. Voorhees, Sr., and upon the same date another suit was commenced against the construction company on behalf of the owners of the Voorhees lands, the description of which is stipulated and contained in the file, and against the Edward Gillen Dock, Dredge and Construction Company, and known as Law No. 22697. The damages in this latter case, however, were claimed to be Ten Thousand Dollars ($10,000.00).

The allegations of the latter declarations were similar to those of the Chiperfield case and in addition thereto the destruction of one thousand trees and saplings, the property of the said plaintiff, growing upon said premises, were charged.

The Edward Gillen Dock, Dredge and Construction Company employed Clarence W. Heyl as its attorney to look after the defense of these cases and he prepared and filed the necessary pleadings and did the necessary preliminary work for a trial of these cases which included numerous conferences with the State Highway officials, an investigation as to the title of the lands in question, examination of numerous witnesses and so forth, and making several trips from his office in the City of Peoria to Springfield and to the situs of the construction work.

The stipulation filed herein on behalf'of all the parties goes into considerable detail. The Chiperfield case was finally settled for the sum of Five Hundred Dollars ($500.00) and the Voorliees case was finally settled for the sum of Two Thousand Dollars ($2,000.00).

It fairly appears from the stipulated facts that the Edward Grillen Dock, Dredge and Construction Company were lulled into the belief that they had a perfect legal right to proceed to carry out the provisions of their contract for the construction of a road upon the premises that the State had no right to enter or build a road thereon.

And it further appears that this construction company became liable for the reasonable attorneys fees in the defense of their actions. The stipulation sets forth that the Chiperfield case was settled for Five Hundred Dollars ($500.00), proper releases taken and the money paid by the Hig’hway Department.

It further appears from this stipulation that the sum of Two Thousand Dollars ($2,000.00) was a reasonable amount to pay for the Voorhees land.

Clarence W. Heyl has filed an itemized account of his attorneys fees and his expenses and costs expended, and it has been stipulated that a reasonable and customary charge as attorneys fees for the services rendered in these cases to the construction company is the sum of Eight Hundred Dollars ($800.00), and to this is added for telephone and telegraph charges, traveling expenses and incidentals in connection with the litigation, the sum of Fifty-three Dollars and Twenty-four Cents ($53.24), and further sum of $15.00 court costs.

We therefore recommend that the Legislature make an appropriation to the Edward Grillen Dock, Dredge and Construction Company, a corporation, for the sum of Two Thousand Dollars ($2,000.00), to pay a certain judgment rendered against it in the Circuit Court of Fulton County, in Law Case No. 22697, it having been stipulated that no interest should be charged upon this judgment for a period of two years from July 1, 1933; and the further sum of Eight Hundred Sixty-eight Dollars and Twenty-four Cents ($868.24), as attorneys fees and costs and that this money be paid to the said construction company when proper deed of conveyance, conveying the premises which is the subject of this controversy, to the State of Illinois, be delivered to the Attorney General for his approval.


author: Mr. Chief Justice Holderich

text:
    (No. 2498
    H. C. Hussman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    H. C. Hussman, Pro Se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holderich

delivered the opinion of the court:

This case is submitted upon a stipulation of facts from which it appears that for some time prior to the 18th day of March, A. D. 1934, claimant was a CWA. worker assigned to duty as a carpenter at the Illinois State Arsenal, at Springfield, under the direction of the custodian of said building, to assist in the repair work then being done thereon. Claimant commenced work on December 19, 1933, and continued such work until the destruction of the building by fire on February 18, 1934. Claimant furnished his own tools which, during the course of the work, were kept in his own chest in a room provided with a lock and key, which room was furnished by the custodian of the building for that purpose, for the convenience of the claimant and other workers.

A fire occurred in said building between eleven o’clock a. m., and one o’clock p. m., on Sunday, February 18, 1934, the origin of which does not appear from the stipulation, and the chest of tools belonging to the claimant, together with other tools in said room, were destroyed or rendered of no value, “as the result of the fire.

Claimant seeks to recover the value of his tools thus destroyed and has filed his claim herein- for the sum of $122.50.

From the facts contained in the stipulation, it appears that the leaving of his tools in the Armory by the claimant was for his own convenience and without charge, and therefor constituted a bailment for the sole benefit of the bailor.

Under the ordinary law of bailments of this class, the bailee is liable where the destruction of the property bailed is the result of gross negligence on his part. In this case, however, where the State is bailee a different rule applies. In the conduct and maintenance of the State Arsenal, the State is engaged in a governmental function and the rule has been repeatedly announced in this and other courts, that in the exercise of a governmental function the State is not liable for the negligence of its servants and agents in the absence of a Statute making it so liable. Kinnare vs. City of Chicago, 171 Ill. 332; Minear vs. State Board of Agriculture, 259 Ill. 549; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234; Chumbler vs. State, 6 C. C. R. 138; Braun vs. State, 6 C. C. R. 104; Bucholz vs. State, 7 C. C. R. 241.

Consequently there can be no liability in this case, even if there was any evidence to show that the fire which destroyed the articles bailed was the result of gross negligence on the part of the servants and agents of the respondent.

Award must therefore be denied.

Award denied. Case dismissed.


text:
    (No. 2488
    Klein & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

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

delivered the opinion of the court:

Claimant herein seeks to recover the sum of Two Hundred Thirty and 36/100 Dollars ($230.36) for franchise tax alleged to have been erroneously paid to the State for the years 1928 to 1933 inclusive. A stipulation of fact has been entered into- between claimant and respondent; that claimant filed its annual reports for the years 1927 to 1933 inclusive; that such annual reports except for the year 1931 gave the issued capital stock as follows:

Common .............................................. $200,000.00
Preferred ............................................. 26,275.00

That its annual report for 1931 gives the issued stock as follows:

Common .............................................. $200,000.00
Preferred ............................................. 23,225.00

which is an error in the statement of preferred stock, which item should have been in the amount of $26,275.00. The stipulation of fact further shows that claimant received statements from the Secretary of State each year calling for the payment Of One Hundred Fifty Dollars ($150.00) based on the figure ■of Three Hundred Thousand Dollars ($300,000.00) authorised capital stock; that said amount was paid by mistake and that claimant, in fact, has been over-charged the following amounts:

1928........... ........ $36.86 1931.......... ......... $40.54
1929........... ........ 36.86 1932.......... ......... 42.38
1930........... ........ 36.86 1933.......... ......... 36.86

Claimant contends that only recently did it come to its attention that it had been making such overpayments.

Under the provisions of the 1919 Corporation Act the Secretary of State should have assessed the tax on the amount of issued stock shown by the Annual Reports filed by claimant. The Secretary of State notified claimant the amounts which were claimed to be due, contrary to the reports so filed and, no doubt, the claimant accepted such information as authorative computations of the amount of tax due. In a report dated September 5, 1934, from the Corporation Department of the Secretary of State’s Office it is stated:

“According to our computation it would appear the Company would not he entitled to refunds of more than the following amounts:
1927 ......... 1931 ......... ......... $40.54
1928 ......... .......... $36.86 1932 ......... ......... 42.38
i<m ....... 36.86 1933 ......... ......... 36.86’
1930 ......... ......... 36.86

No award can properly be allowed by the court for the items above that were paid prior to 1930, because of the Five-year Limitation Statute of this court. The limitation period would date from the time the right of action accrued, which was in this case the day the tax was paid. The only items within such five-year period are those paid in 1930,1931,1932 and 1933.

As the tax during those years was not assessed in accordance with the annual report filed by plaintiff, but was mistakenly computed by the Secretary of State on another basis and the plaintiff thereupon paid the amount requested under an apparent mistaken idea that the tax was figured upon the amount of stock stated in the annual report as having been issued, a refund is due the claimant for the excess amount paid.

An award is therefore made to claimant for such excess on the following items, to-wit:

$36.86 paid in 1930
40.54 paid in 1931
42.38 paid in 1932
36.86 paid in 1933

making a total award of $156.64.


author: Me. Chibe Justice Hollebich

text:
    (No. 2477
    Joseph Martin and Harold Kellerman, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

    Nelson B. Layman, for claimants.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Chibe Justice Hollebich

delivered the opinion of the court:

The complaint herein alleges in substance that on June 4, 1934, about 7:40 p. m., the claimant, Joseph Martin, was driving his team and wagon in an easterly direction on S. B. I. Route No. 152, at a point about one and one-quarter miles east of Pyatt Station in Perry County; that the claimant, Harold Kellerman, was an employee of the claimant, Joseph Martin, and was riding as a passenger in said wagon; that the claimants were in the exercise of all due care and caution and that said wagon was being driven on the right of the center of the concrete roadway; that at that time one Tangman who was then and there in the employ of the respondent as a maintenance police patrolman, was driving a motorcycle of the defendant on said road and was travelling in the same direction as claimants; that said Tangman was traveling at a high rate of speed and negligently drove said motorcycle against the rear end of the wagon in which the claimants were riding, whereby said claimants were thrown from said wagon to the ground, the wagon was destroyed, the horses injured, and claimants each sustained personal injuries and lost work as the result thereof; for all of which the claimant, Joseph Martin, seeks to recover the sum of $341.00, and the claimant, Harold Kellerman, the sum of $21.00.

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

The complaint apparently is drawn upon the theory that the State is liable the same as a private corporation would be for the negligence of its servants and agents. Such, however, is not the law. We have uniformly held that in the maintenance of its hard-surfaced roads, and in the maintenance of its State police, the State is engaged in a governmental function. We have also held in numerous eases that in the exercise of its governmental functions, the State is not liable under the doctrine of respondeat superior for the negligence of its servants and agents in the absence of a Statute making it so liable. Morrissey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77; Chumbler vs. State, 6 C. C. R. 138; Braun, vs. State, 6 C. C. R. 104; Derby vs. State, 7 C. C. R. 145; Bucholz vs. State, 7 C. C. R. 241.

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

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

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