text:
    (No. 4502
    Robert Goethuys, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

    ■ John W. Preihs, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

On November 9, 1950, the claimant, Robert Goethuys, was driving his Willys Jeep, pulling a trailer, on Route No.' 66," in a southerly direction, near the intersection of said Route No. 66/with Route No. 113S near Braidwood, Illinois. Claimant approached the stop sign, and, as he proceeded to stop, was struck from the rear by a truck of the Department of Public Safety, which was transporting bread from the Stateville Prison Bakery to the prison at Pontiac, Illinois. The truck was driven by an employee of the respondent, State of Illinois.

Claimant’s trailer was demolished, and twenty-five cases of beer were lost for a total damage of $184.36.

The record consists of the complaint, stipulation waiving briefs of both parties, and transcript of evidence.

The testimony of the claimant indicates that the brakes of respondent’s truck failed, causing the accident, and the respondent did not introduce any evidence.

The negligence of respondent’s employee was the proximate cause of the accident, and claimant is entitled to be compensated for his damages.

An award is, therefore, hereby entered in favor of claimant, Robert Goethuys, in the amount of $184.36.


source: Caselaw Access Project

author: Lansden, J.

license: Public Domain

text:
    (No. 4505
    Springdale Cemetery Association, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

    Springdale Cemetery Association, An Illinois Corporation, Claimant, pro se.
    . Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

In 1949, the 66th General Assembly appropriated funds to pay for the erection and installation of Government markers at the graves of deceased veterans, buried in Illinois.

Claimant, Springdale Cemetery Association, an Illinois Corporation, during the period from September, 1950 to May 1951, caused 18 such markers to be erected and installed at its cemetery in Peoria County, at an expense of $10.00 per marker.

By the time claimant requested reimbursement, said appropriation had lapsed, and its bill could not be paid. Claimant is, therefore, compelled to proceed in this Court.

All of the facts in this case have been stipulated, and such stipulation is hereby approved.

The Military and Naval Department concedes that the 18 markers were erected during the time the appropriation was alive; that the $10.00 charge per marker is just and reasonable; and that funds were available, to reimburse claimant had its bill been presented in apt time. Said Department has recommended that claimant be reimbursed.

From the foregoing, and based upon similar cases in this Court, claimant is clearly entitled to an award. Elmwood Cemetery Co. vs. State, No. 4268, opinion filed December 15, 1950; Roselawn Memorial Park vs. State, No. 4327, opinion filed December 15, 1950.

An award is, therefore, entered in favor of Spring-# dale Cemetery Association, an Illinois Corporation, in the sum of $180.00. . ¡


text:
    (No. 4513
    Richmond Insurance Company of New York, subrogee of Maurice Shifris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 8, 1952.

    Arnold F. Berger and Samuel Levin, Attorneys for Claimant.
    :Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Lansden, J.

" > ' On August 17,1948, claimant, Richmond Insurance Company of New York, was the insurer against collision damage of an automobile belonging to one Maurice Shifris.

On that day, a collision occurred on the South Side of Chicago between the Shifris vehicle, and a truck, owned by respondent, and operated by an employee of the Division of Highways.

On September 27, 1948, claimant liquidated its liability under an insurance policy for $1,900.00, and took from Shifris a subrogation receipt.

On March 28, 1949, attorneys for claimant wrote the Division of Highways concerning the collision, and, on April 1, 1949, Earl McK. Guy, Engineer of Claims for : said Division, replied to said' letter denying all liability, and suggested that a claim be filed in this Court.

Claimant filed its complaint herein on May 14, 1952, alleging that its loss, arising from the accident on August 17, 1948, was due to the negligence of respondent.

On May 21, 1952, respondent filed a motion to dismiss the action on the ground that this Court is without jurisdiction to hear and determine the case, because it was filed more than two years after the claim, upon which it was based, accrued.

Section 22 of the Court of Claims Act, Ill. Rev. Stat., 1951, Chap. 37, Sec. 439.22, clearly and unequivocally provides that a claim of this type is forever barred unless it is filed within two years of its accrual.

Claimant, having filed its complaint almost four years after the accident occurred, has filed same too late, and this Court is without jurisdiction to entertain the claim. Weber vs. State, 19 C.C.R. 33; Robertson vs. State, 19 C.C.R. 146.

The motion of respondent to dismiss is sustained, and the complaint and the case are both dismissed.


author: Schuman, C. J.

text:
    (No. 4365
    Buildice Company, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    Blum and Sang, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter and Harry K. O’Melia, Assistant Attorneys General, for Respondent.
   Schuman, C. J.

The claimant, Buildice Company, Inc., a Corporation, filed its claim in this Court seeking to recover damages for unreasonable delay by the State in permitting it to commence work under a contract dated October 17, 1946.

The contract was to install a refrigeration system in the Kankakee State Hospital, Kankakee, Illinois, at a total cost of $19,340.00. It is conceded claimant was to complete the work in 300 calendar days, but could not commence work until April 15, 1950, and, by reason thereof, sustained damages over and above the contract price in the amount of $5,984.00, as listed in exhibit “B” attached to claimant’s complaint.

The contract specifically provided under Article IV that the General Conditions of the contract, the specifications, etc., formed the contract. Under the General Conditions of the contract, Article 25, it is provided:

“The making and acceptance of the final payment shall constitute a waiver of all claims by the owner, otherwise than under Article 15 of these conditions or under requirements of the specifications, and of all claims by the contractor, except those previously made and still unsettled. (Emphasis Supplied.)”

In the case of Herlihy Mid-Continent Company vs. Sanitary District, 390 Ill. 160, the Court, on page 166, said:

“In construing a contract, the primary object is to ascertain the intention of the parties. (Decatur Lumber and Mfg. Co. vs. Crail, 350 Ill. 319.) That intention must be determined from the language in the contract. If the intention may be ascertained from the wording of the contract, rules of construction have no application. (Domeyer vs. O’Connell, 364 Ill. 467.) No words can be added to or taken from a contract and thereby change the plain meaning of the parties as expressed therein. (Stevens vs. Felman, 338 Ill. 391.) Nor may the courts engage in surmises as to what the parties intended but which they failed to express.”

The contract in this case is clear and explicit in stating that final payment bars all claims, and cannot be changed by any wording or construction outside of its own terms.

Claimant, in its brief, concedes that the cases cited by it of Underground Construction Company vs. Sanitary District, 367 Ill. 360, and the Herlihy Mid-Continent Co. vs. Sanitary District, supra, denied recovery where the contract provided that no damages may be allowed from delays caused by defendant. The contract in the instant case is much broader in effect, when it provides that the acceptance of final payment waives all claims of the contractor. This Court has construed provisions relating to acceptance of final payments in a number of cases. S. G. Cool Company vs. State, 17 C.C.R. 138; Urich vs. State, 8 C.C.R. 212; Midwest Construction Company vs. State, 9 C.C.R. 443; Henkel Construction Company vs. State, 10 C.C.R. 538; Strandberg and Son Co. vs. State, 13 C.C.R. 49. All of the cases cited, while the language of the contract may vary, have held that the acceptance of final payment constituted a full release.

The contract in this case, as previously cited, stated that the making and acceptance of final payment constituted a waiver of all claims by the contractor. There is no dispute that a check in the amount of $4,340.00 was accepted as final payment, as shown by the exhibits in evidence in this case.

Respondent’s exhibit No. 3-b discloses that claim-: ant submitted the required guarantee form to receive its final payment of $4,340.00, and nowhere in the evidence, or in the exhibits, is it shown that claimant advanced any amount for damages due to delay.

The provision of the contract with reference tó the acceptance of final payment waiving all claims is a binding provision on the parties, and a bar to the claim filed herein.

An award is denied, and the claim dismissed.


text:
    (Nos. 4393-4394 — Consolidated
    William Winston and Patrick Clancy, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    Charles A. Bellows, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

On December 16, 1949, at about 3:30 P.M., John M. Flahive was driving his 1947 Plymouth Sedan automobile north on Torrence Avenue toward the intersection of 147th Street in Calumet City, Cook County, Illinois. In his automobile were William Winston, seated . next to the driver, Patrick Clancy, seated at the right, and, Thomas Flisk, seated at the left in the rear seat,

John M. Flahive and his passengers had been to Gibson City, Indiana on Union business for the Brotherhood of Railway and Steamship Clerks. All of said parties were officials of said Union.

The undisputed facts show that the intersection was protected by traffic lights, and, as Flahive approached, the light turned to green in his traffic lane, and a car ahead of him went across the intersection. At said time Stanley Glowezenski, a maintenance patrolman, employed by respondent in its Department of Public Works and Buildings, Division of Highways, was operating a dump truck loaded with cinders in an easterly direction on 147th Street. The State truck failed to stop, and Flahive’s car struck it. The truck driver made statements to witnesses, which is corroborated by respondent’s Departmental Report, that he saw the red light and applied his brakes, but that they failed to hold, and both cars approached the intersection at the same time.

As a result of the collision, complaints were filed by Patrick Clancy and William Winston for personal injuries sustained in the collision.

From the undisputed facts, there is no question that the proximate cause of the collision and resultant injuries were due to the negligence of the respondent, through its agent and servant, and no further details of any facts causing said collision are deemed necessary.

The cases were consolidated for trial, and so heard, and will be considered as consolidated by the Court.

The pertinent question in this case is the effect of the covenant not to sue executed by both claimants to Stanley F. Glowezenski, employee of the respondent. The liability of the respondent can only be predicated on the theory of respondeat superior. While both employer and employee may be sued jointly in Illinois, they are not considered joint tort feasors, and, in the event of the employer having to pay for any damages due to the negligence of his employee, he may recover said sum from the employee. The covenant not to sue does not reverse a cause of action against the employer, but only says it does not operate as a release to Stanley F. Glowezenski. In the event respondent would have to pay additional damages, it could sue its employee for the amount it had to pay, and, would, therefore, involve the employee in litigation to respond its damages, which the covenant was supposed to guard against.

In Purple Swan Lines vs. Egyptian Transportation Co., 256 Ill. App. 442, the Court, on page 444, said:

“An employee is directly liable to his employer for any damages occasioned by his negligence, whether such damage be direct to the property of the employer, or arise from the compensation which the employer has been obliged to make to third persons for injuries sustained by them; 18 R.C.L. 502.”

In Griffiths and Son Co. vs. Fireproofing Co., 310 Ill. 331, the Court, on page 339, said:

“The further general principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency, and place the ultimate liability upon him whose fault was the primary cause of the injury.”

There is no reason why the rule above enunciated does not apply to the facts in this case. The rule as applied would, if a recovery is allowed against respondent, authorize a cause of action against the covenantee, and, in effect, defeat the very purpose of the covenant. In the case of Karcher vs. Burbank, Et Al, Mass. 21 N.E. (2d) 549, as reported in 124 A.D.R. 1292, the Court, on pages 1296-1297, said:

“The Company’s liability is of a derivative or secondary character, resting solely upon the doctrine of respondeat superior. Pangburn vs. Buick Motor Co., 211 NY 228, 234, 105 NE 423. The Company was, in effect, the plaintiff’s surety, and could, therefore, recover over against him if compelled to pay damages for his negligence while he was acting as its agent within the scope of his authority. Kramer vs. Morgan, 2 Cir., 85 F (2d) 96. See Pittsley vs. Allen, Mass., 7 NE (2d) 442. It is a principle of the law of suretyship that a release or covenant not to sue the person known by the covenantor to be the principal will discharge the surety. Potter vs. Green, 6 Allen 442, 444. See 2 Williston on Contracts (Rev. Ed.) s. 342; compare Tobey vs. Ellis, 114 Mass. 120; see Matheson vs. O’Kane, 211 Mass. 91, 94, 95, 97 NE 638, 39, ERA (NS) 475, Ann Cas 1913B, 267. But such a covenant not to sue does not so operate where it contains an express reservation of the covenantor’s rights against others. Sohier vs. Loring, 6 Cush. 537; Hutchins vs. Nichols, 10 Cush. 299. Kenworthy vs. Sawyer, 125 Mass. 28. In the case at bar the covenant contained no such reservation. Whether or not the defendants knew of the relationship between the plaintiff and the Company when the covenant was entered into, they must have known, on the record that is before us, that any claim they might then have against the Company on account of the plaintiff’s negligence would be of a derivative character. Although the result of granting injunctive relief to the plaintiff has the effect of releasing the Company, nevertheless we are of the opinion that this does not amount to a denial of the correctness of the result reached in the Johnson case. Compare New York Central Railroad vs. William Culkeen & Sons Co., 249 Mass. 71, 144 NE 96. Wells Fargo & Co. vs. Taylor, 254 US 175, 41 S. Ct. 93, 65 L.Ed. 205.
The defendant’s covenant was at least an undertaking “to forever restrain from . . . in any way aiding any claim” against the plaintiff. If they should recover judgment in their actions against the Company, a possible cause of action against the plaintiff will have been created. Although these actions are against the Company, the defendants must know that, in theory at least, the ultimate loss in the event that damages are recovered will fall upon the plaintiff, and that under the principle stated in Levinton vs. Poorvu, Mass. 200 NE 9, the plaintiff, if he does not take, over the defense of the actions against the Company, may be bound by any judgment recovered. It has been said, in discussing the effect of a covenant not to sue that “the intention of the parties is carried out by allowing the creditor to take, judgment at law, leaving the party who holds the covenant to his remedy in equity for a specific performance, by which he is fully protected not only from paying any more directly, but, if there be sureties, by restraining the creditor from collecting any amount out of them, because that would subject him to their action, and thus indirectly violate the covenant, or, if there be other principal obligators, by restraining the collection of any more than an aliquot part of the debt, or any amount that would subject the party to an action for contribution.” ”

In the case of Losito vs. Kruse, 136 Ohio St. 183, 24 N.E. (2d) 705, and annotated in 126 A.D.R. 1194, the Court, on page 1197, said:

“A settlement with and release of the servant will exonerate the master. Otherwise, the master would be deprived of his right of reimbursement from the servant, if the claim after settlement with the servant could be enforced against the master. Herron vs. City of Youngstown, Ohio Sup. 24 NE (2d) 708; Bello vs. City of Cleveland, supra; Brown vs. Town of Louisburg, 126 NC 701, 36 SE 166, 78 Am. St. Rep. 677.”

The form of the covenant not to sue, limiting its effect to the employee only, amounts to a release, and necessarily a bar to a cause of action by claimants herein.

For the reasons above assigned, both claims are hereby denied.


text:
    (No. 4410
    Loren Perry and Naomi Perry, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    David M. Wilson, Attorney for Claimants.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Lansden, J.

Commissioner Wise, who heard the evidence in this case, has filed a report herein, which reads as follows:

“Loren Perry and Naomi Perry, husband and wife, residents of Springfield, Illinois, filed their complaint herein on April 3, 1951 for damages to an automobile allegedly belonging to claimant, Naomi Perry, and for personal injuries suffered by claimant, Loren Perry. The accident occurred on July 3,1950 at approximately 9:40 A.M. on U. S. Highway No. 67, approximately fouvto four and one-half miles west of Virginia, Illinois. The car involved was a 1940 Studebaker Four-Door Sedan, which had been driven approximately 40,000 miles. •

On the morning of July 3, 1950, Loren and Naomi Perry,-claimants, accompanied by their small son and daughter, left Springfield, Illinois on a trip to Beards-town,. Illinois. Loren Perry was driving, and his wife and son were in the front seat, and the daughter in the rear seat. They left a filling station in Springfield at approximately 8:20 A.M., and drove westwardly on Illinois Highway No. 125 to Virginia, Illinois, and then continued on U. S. Highway No. 67. As they were nearing a point approximately four miles west of Virginia, there was mud and water on the highway in several spots, and at the point of the accident the road made a slight curve across a bridge, and in that area there was considerable water. Perry was driving about 40 miles per hour,, and slowed to about 35 miles per hour. While driving through the water, he suddenly lost control of the car, which swerved across the highway, and landed in a ditch. Perry, his wife and son were thrown from the car, and both Mr. and Mrs. Perry sustained injuries, but the injuries to Mrs. Perry were not serious, and no claim was made for same in this suit. The daughter and the son were not injured.

There is very little evidence on behalf of claimants as to the condition of the highway, how long the condition had existed, and whether or not the State of Illinois had notice of this condition. Gordon A. Smedley, a former employee of the respondent, testified that he had maintained this section of the highway for approximately the six year period from 1943 to 1949; that the highway in the area of Virginia to Bluff Springs, Illinois was lower than the surrounding area, running through and around the hills, and that during the farming season, when the soil was plowed, the highway would become covered with mud, and that he had helped remove mud on several occasions. He further testified that water from approximately 90% of the land north of the highway drained toward the road.

Naomi Perry testified substantially the same as her husband, but again there was little testimony as to the condition of the highway, and how long said condition, had existed. Mrs. Perry testified that her husband was driving about 40 miles per hour, and never over 50, and that he slowed down at her request shortly before the accident. She also corroborated his testimony as to the injuries sustained, and his inability to perform his former occupation.

The respondent offered no evidence other than the Departmental Report. From the Departmental Report it appears that the highwaymen had been working on a ditch-cleaning job in the area of the accident, and that on the night of July 2, and the early morning of July 3, 1950 there was a heavy rainfall in the area of the accident. The report further shows that in this particular area the highway follows the foot of the hills for several miles, and that, when the hills are cultivated, the State is burdened by filling ditches, and removing mud from the pavement after each rain. The Departmental Report further discloses that the highway section man arrived on the scene prior to the wreck, and found the highway covered with mud and water, and proceeded to the vicinity of Bluff Springs to get the scraper to remove it, and that, when he returned to the scene of the accident, the wreck had occurred. The highway man then proceeded to clear the highway, and put up proper warning signs. From the evidence and the Departmental Report, it appears that'this mud and water covered the highway sometime in the early morning of July 3, 1950, and that the highway section man, who lived at Ashland, Illinois, arrived at the scene of the wreck within a reasonable time after the highway became covered; that there was no negligence on the part of the State in discovering the condition, and that its employees did everything possible to clear the highway.

It is my opinion upon hearing the evidence and reading the Departmental Report that this accident was caused solely by the negligence of the claimant, Loren Perry, in driving at a too high rate of speed! through the water and mud on the highway. He had a clear view of the highway, saw the condition of. the; highway, and attempted to drive through the same at the speed of approximately 35 miles per hour. He was1 also cautioned by his wife shortly before the accident to slow down. It is my opinion that there was no negligence on the part of the State. For these reasons, I recommend that the claim of both Loren Perry and Naomi Perry be denied.”

The report of Commissioner Wise is hereby adopted as the opinion of the Court, and his recommendations are approved, since they are in harmony with previous decisions of this Court, such as: Mounce vs. State, No. 4317, opinion filed April 10, 1951, and Beenes.vs. State, No. 4377, opinion filed October 5, 1951.

Awards to claimants are denied.


text:
    (No. 4427
    Frank Lusher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    W. H. Beckwith, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Frank Lusher, claimant, filed his claim herein on; April 17, 1951 for injuries sustained as a result of an' accident, which occurred on November 30, 1949.

On the date of November 30, 1949, claimant was 30 years old, married, but had no dependent children. -He was employed by the Division of Highways on a temporary basis, but the earnings and the hours of -work place him within the maximum rate of compensation. On November 30, 1949, at approximately 1:30 P.M., claimant was working with a clean-up gang. The driver of the Division truck backed it a short distance, and struck‘claimant, who was in a stooping position, fracturing his right femur in the middle third. An ambulance was called, and he was first taken to the Pekin Hospital, and then to the St. Francis Hospital in Peoria where several operations were performed. He was attended by Dr. Hugh Cooper.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident arose out of and in the course of the employment.

The evidence showed that claimant had not worked for respondent for a year preceding the date of injury, and that other employees in a similar capacity worked less than 200 days, so the annual earnings would be •computed by multiplying the daily rate of $8.00 by 200, which would make claimant’s earnings $1,600.00 a year.

The Department has paid bills for doctor and hospital services in the total amount of $742.20.

Claimant was off work from the date of his injury to June 16, 1950, and from July 17 to August 6, 1950, at which time he returned to his regular duties. He was paid compensation for these periods of temporary total disability at the rate of $22.50 per week, in the total amount of $700.67. In the present case no claim was made for additional medical care, or for temporary total disability. The only question involved is the disability to his right leg. From a Departmental Report, and especially from the report of Dr. Cooper dated November 13, 1950, as well as by evidence, including the report of Dr. Harold F. Diller, and by examination of the claimant, it is shown that he has only slight disability, and an award is made in favor of claimant for 10% loss of use of his right leg.

On the basis of this record, we make the following award: .

For 10% permanent and complete loss of the use of the right leg, 19 weeks at $22.50 per week, or a total of $427.50, all of which has accrued, and is payable forthwith.

Ruth E. Cox was employed to take and transcribe the evidence in this case, and has rendered a bill of $20.60, which is found to be fair, reasonable and customary, and an award is entered for said amount.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


author: Delaney, J.

text:
    (No. 4441
    Charles B. Reed, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    A. R. Cagle, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

This claim is brought under Section 3 of the Workmen’s Occupational Diseases Act by the above named claimant for alleged damages sustained as a result of contracting tuberculosis during the course of his employment by the above named respondent.

Claimant entered service on September 11, 1943 as an attendant, and was employed continuously at the Kankakee State Hospital until January 24,1950. During the course of his employment, he worked in the capacity of a charge attendant, regular attendant and relief attendant.

In his various capacities, while in the employment of respondent, claimant had occasion to come into contact with patients in the tuberculosis ward, and also with patients, who were transferred to the tuberculosis ward. While working in the tuberculosis ward, claimant checked the beds every thirty minutes, and removed the soiled sheets. On different occasions, claimant was also required to work more than six days without a day of rest.

The. record consists of the following: complaint, amended complaint, Departmental Report, transcript of evidence, reporter’s bill, Supplemental Departmental Report, letter from counsel considered as waiver of brief of claimant, waiver of respondent of right to file statement, brief and argument.

Chest reports at the time claimant was first employed were suggestive of chronic bronchial infection and fibrotic infiltration. However, no active tuberculosis infection was discovered at the time claimant was first employed.

Although the record shows that claimant refused certain observatory procedures, positive cultures in June and July, 1950 were suggestive of an active tuberculosis process.

During the -year of 1950, claimant received $1,125.42. The above earnings are based upon a salary of $193.00 per month, representing annual earnings of $2,316.00 for persons in a similar class of employment.

Claimant is entitled to the benefits of “An Act to Promote the Public Health and Comfort of Persons Employed by Providing One Day of Rest in Seven”, which provides, among other things, that an employee in a hospital, etc., shall be allowed at least twenty-four consecutive hours of rest in every calendar week, in addition to the regular period of rest allowed at the close of each working day. Ill. Rev. Stat. 1949, Chap. 48, Sec. 8b, Domke vs. State, 12 C.C.R. 451.

That such statute has been violated is shown by claimant’s testimony, and such violation was negligence on the part of respondent under Section 3 of the Workmen’s Occupational Diseases Act.

Claimant, therefore, is entitled to an award.

As to damages, we feel, after a close examination of the record, that with proper confinement and medication claimant’s tuberculosis may become permanently arrested. We, therefore, conclude that claimant is entitled to an award of $2,000.00.

Helen Cox, Court Reporter, was employed to take and transcribe the evidence in this case, and has rendered a statement for services in the amount of $29.40. The Court finds that the amount charged is fair, reasonable and customary in the community where the service was rendered, and said claim is allowed and payable forthwith.


text:
    (No. 4455
    Frank M. Rice, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    A. M. Fitzgerald and Walter T. Day, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Frank M. Rice, seeks to recover of respondent under the Workmen’s Compensation Act for injuries to his right knee in an accident that arose out of and in the course of his employment as a hydro-therapist at the Chicago State Hospital, operated by the Department of Public Welfare.

On June 24, 1950, claimant was administering hydrotherapic treatments to excited and violent mental patients in the hydrotherapic ward of said institution, when one patient, who was awaiting treatment, attacked him, and as a result thereof claimant sustained a fracture of the tibial spine of his right knee.

Claimant was hospitalized for a short time at the hospital for employees of the institution.

Dr. Harold A. Sofield, Oak Park, Illinois, treated claimant until the latter part of December, 1950, at which time he discharged him from further treatment, because claimant’s knee had reached its maximum recovery without further surgery. Respondent has never offered, nor has claimant requested an operation, because it is doubtful whether an operation would really improve the condition of claimant’s right knee.

No jurisdictional questions are involved, and the record discloses that claimant has a limitation of 10% in extension and 15% in flexion in his right knee, coupled with a slight roughening in the joint space. The knee is somewhat weak and unstable, and does cause claimant some pain.

We, therefore, conclude that claimant is entitled to an award under Section 8 (a) (15) (17) of the Workmen’s Compensation Act for a 15% loss of use of his right leg.

On February 2, 1952, an award was made to claimant, but on March 11, 1952, we granted claimant’s petition for rehearing and motion for new trial, and remanded the case to Commissioner Wise to hear further testimony relating to the duration of claimant’s temporary total disability. Such evidence is now in the record, and shows without dispute that claimant was so disabled from June 24, 1950 through May 11, 1951, and that claimant returned to work on May 12, 1951. Claimant also agrees that we are correct in the 15% loss of use of his right leg.

During the period of temporary total disability, claimant was paid $1,031.39 as compensation, or an underpayment of only $0.40, for the 45-6/7 weeks of such disability.

On the date of his accident, claimant, 50 years of age, was married and had one child, four years of age, dependent upon him for support. His earnings in the year prior to his accident amounted to $2,928.60, and his rate of compensation is, therefore, $22.50 per week.

Hugo Antonacci, Springfield, Illinois, was employed to take and transcribe the testimony at the hearing before Commissioner Wise. He has rendered a statement in the amount of $52.40 for his services, and we find said amount to be reasonable and customary. An award is, therefore, entered in favor of Hugo Antonacci for $52.40.

An award is entered in favor of claimant, Frank M. Rice, under Section 8 (a) (15) (17) of the Workmen’s Compensation Act, for a 15% loss of use of his right leg, being 28)^ weeks at $22.50, or the sum of $641.25, plus the sum of $0.40, underpayment for temporary total disability, making a net award of $641.65, all of which has accrued, and is payable forthwith.

An award is also entered in favor of claimant for" the use of Dr. Harold A. Sofield in the sum of $30.00.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1951, Chap. 127, Sec. 180.


text:
    (No. 4510
    John H. Clayton, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

    John W. Fribley, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Delaney, J.

John H. Clayton, Jr., claimant, filed his complaint herein on April 24, 1952, alleging that he is the duly elected, qualified, and acting Judge of the City Court of Johnston City, Illinois, and has been since May 17, 1949. He further alleges that the 1940 Federal census disclosed the population of Johnston City to be 5,418 persons, and that under the provisions of Chap. 37, Par. 355, Ill. Rev. Stat., 1947, he was entitled to a salary of $2,500.00 per year, and that such salary was, in fact, paid until November 16, 1951.

Claimant further alleges that on November 16, 1951 he was advised by the Auditor of Public Accounts of the State of Illinois that inasmuch as the 1950 Federal census disclosed that the City of Johnston City had a population of 4,479 persons, his salary would be reduced to $1,000.00 per annum, which was the amount provided for judges of city courts of cities under 5,000 population. Claimant further alleges that, since November 16, 1951, he has been paid $83.33 per month salary as the Judge of the City Court of Johnston City, Illinois, and brings this action to recover the difference between $83.33 per month and $208.33 per month to which he contends he is entitled. In this claim he seeks to recover for the period from November 16, 1951 to April 16, 1952, in the sum of $625.00.

The statutes in force at the time of the election of the claimant as Judge of the City Court of Johnston City, Illinois provided an annual salary for judges of city courts, based upon a sliding scale, in the words -and figures, in part, as follows:

“The judges of said court shall be allowed and receive as an annual salary in lieu of all other fees, perquisites or benefits whatsoever, in cities or towns having a population not exceeding five thousand (5,000) inhabitants, the sum of one thousand dollars ($1,000); and in cities or towns having more than five thousand (5,000) and not exceeding eight thousand (8,000) inhabitants, the sum of twenty-five hundred dollars ($2,500);” (Chapter 37, Par. 355, Ill. Rev. Stat., 1947.)

Provision was also made to determine the population, as follows:

"The number of inhabitants shall be determined by reference to the Federal census, or a census taken by the city, village or town authorities.” (Chap. 37, Par. 353, Ill. Rev. Stat., 1947).

It is clear that the salary of a city judge cannot be increased or decreased by any action after his election. (Wolf vs. Holt, 210 Ill. 50.) However, where a statute provides a graduated scale at the time of the election to office, the salary may vary during the term according to the population or property values. This rule was stated by the Supreme Court of Indiana in Crowe vs. Board of Com’rs., 210 Ind. 404, 3 N.E. (2d.) 76, at page 78, as follows:

“There is no merit in the contention that an increase in the salary of an officer during his term is involved. The salary was fixed before he was elected. The amount he was to receive from time to time was made to depend upon the population of the county. It is as though the statute in existence when the officer was elected had provided that he should receive $1,000 the first year, and $2,000 the second year of his term. In the statute under consideration the Legislature chose to make the amount of salary dependent upon population shown by the United States census. It might continue during the latter part of the term the same as before the census. It might be more if the population increased. It might be less if it decreased.”

It is held in many jurisdictions that a variation in compensation of an officer automatically brought about by a change in population or valuation of property does not violate a constitutional provision prohibiting an increase or decrease in compensation during the officer’s term. Additional authorities following this view are:

Yuma County vs. Sturgess, 15 Ariz. 538, 140 P. 504;
Puterbaugh vs. Wadham, 152 Cal. 611, 123 P. 804;
State ex rel Moss vs. Hamilton, 303 Mo. 302, 260 S.W. 466;
State ex rel Harvey vs. Linville, 318 Mo. 698, 300 S.W. 1066;
State ex rel Jaumotte vs. Zimmerman, 106 Mont. 464, 73 P. (2d) 548;
Board of County Com’rs. vs. Mathews, 147 Okla. 296, 296 P. 481;
Drolte vs. Board of County Com’rs., 176 Okla. 622, 56 P (2d) 800;
State ex rel Mack vs. Guckenberger, 139 Ohio St. 273, 39 N.E. (2d) 840;
Derhammer vs. Board of County Com’rs., 83 N.E. (2d) 400.

The Supreme Court of Ohio in State ex rel Mack vs. Guckenberger, 39 N.E. (2d) 840, held that a statute effective before the term of a judge commenced could automatically increase or decrease his compensation by reason of a fluctuation of population as shown by the Federal census without conflicting with a constitutional limitation, which provided that the compensation could not be increased or diminished during his term of office. In this case the Court said at page 843:

“The purpose of the constitutional inhibition now under consideration is to make sure that the judge and the electorate are advised before he is appointed or elected what his compensation will be, with the assurance that it cannot be changed by the Legislature during the term; that the judge is precluded from using his personal influence or official action to have the Legislature increase his salary; and that at the same time he is protected against the Legislature and the people from decreasing his compensation after his term .begins. These same salutary purposes are fully and effectually preserved by the terms of the present statute, albeit the compensation of the judge is made variable, from and after the last Federal census becoming effective during his term.”

The provisions of the Illinois Constitution prohibiting the increase or decrease in salary during the term of office are based upon similar reasons, as appears from the opinion of the Illinois Supreme Court in the case of People vs. Sweitzer, 280 Ill. 436, wherein the Court said at page 442:

“The Constitution expressly prohibits the Legislature from increasing the salaries of circuit judges, and, in fact, of all State officers, during the terms for which they are elected. The theory of the framers of the Constitution was to make the three branches of government, the legislative, executive and judicial, separate and independent of each other, as far as possible. The power to fix the salaries of State officers is in the legislative branch of the government, the duty to enforce acts of the legislature is in the executive branch, and the power to construe the acts of the legislature is in the judiciary. The acts of the officers of each branch, while such officers are in power, should not be made to depend upon or be influenced by the acts of another branch, nor should there be anything in the conduct of either that would even give rise to a suspicion of such a thing as coercion by reducing salaries or a reciprocal interchange of favors by increasing salaries, hence the reason for the constitutional provision putting it beyond the power of the Legislature to increase or diminish the salaries of State officers in office and in power. This is fully borne out by the Debates and Proceedings of the Constitutional Convention as reported in volume 1, pages 1015, 1018, 1019, 1020, 1058 and 1059, in which the practices which had theretofore obtained in securing, or attempting to secure, increases in salaries by certain State officers were set forth forcibly and at length.”

None of the evils sought to be eliminated by the constitutional provisions can possibly arise where the change in compensation is automatically accomplished through the happening of a contingency, such as a fluctuation in population over which the office holder has no control, as is the case now before the Court. It is submitted that the Auditor of Public Accounts properly reduced the amount of the payments to the claimant as Judge of the City Court of Johnston City, Illinois, based upon the 1950 Federal census and the statute providing for such salary. As the claimant has received the salary to which he was entitled by the statutory provisions in force at the time of his election, his complaint herein does not state a cause of action, and should be dismissed.

When payment is made to an officer or employee of the State of Illinois for services rendered for specific periods, such payment is payment in full, and no additional compensation may be paid for the same period. Par. 145, Sub-par. (3), of Chap. 127 provides as follows:

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

Section 19, Article IV, of the Illinois Constitution provides:

“The General Assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, 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 agreement or contracts shall be null and void; Provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.”

Under the above quoted provisions, it has long been the rule in the Court of Claims that claimants cannot recover for services rendered the State of Illinois during stated periods after warrants were accepted for such periods. The Court said in Hollender, Et Al vs. State, 14 C.C.R. 40, at page 43:

“Under this provision of the Statute, it was held in Mills vs. State, 9 C.C.R. 69, that a claimant cannot accept warrants purported to cover the full amount due him for services during stated periods, and, thereafter, when his active service has ended, obtain an award from the State for an additional amount for those periods for which he had apparently been paid for services in full.”

Some of the additional cases in which this rule has been followed by the Illinois Court of Claims are:

Shields and Gruber vs. State, 14 C.C.R. 136;
Hollender, Et Al vs. State, 14 C.C.R. 40;
Klapman, Et Al vs. State, 13 C.C.R. 139;
Agsten, Et Al vs. State, 13 C.C.R. 8;
Gholson vs. State, 12 C.C.R. 26;
Smith vs. State, 11 C.C.R. 374;
Novak vs. State, 10 C.C.R. 258;
Broderic vs. State, 9 C.C.R. 458;
Mills vs. State, 9 C.C.R. 69;
Hunter vs. State, 9 C.C.R. 1.

The record consists of the complaint, motion of respondent for an extension of thirty days in which to file pleadings, order of the Chief Justice granting respondent an extension of time in which to file pleadings, motion of respondent for leave to file instanter its motion to dismiss, together with points and authorities in support thereof, and motion of respondent to dismiss, for the reason that the complaint is substantially insufficient in law to state a cause of action.

Inasmuch as it appears on its face that the complaint is insufficient in law to state a cause of action, the motion of respondent to dismiss the complaint is hereby sustained, and the case is dismissed.


text:
    (No. 4118
    Nadine Burton, widow, et al, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1959.

    W. W. Damron, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Lansden, J.

On December 9, 1948, claimant, Nadine Burton, widow of Marsh Burton, deceased, was given an award for $5,875.00 under the Workmen’s Compensation Act for the death of her husband, as the result of an accident that arose out of and in the course of his employment on April 27, 1948. Burton vs. State, 18 C.C.R. 99. This Court reserved jurisdiction of the case in the event future orders were necessary.

At the time of his death, Marsh Burton had one child, Dennis Gene Burton, then nine months of age.

On January 29, 1952, Nadine Burton remarried, and her name is now Nadine Ledbetter. Such remarriage was, in and of itself, sufficient to require a modification of the award. Ill. Rev. Stat., 1947, Chap. 48, Sec. 144a.

However, on June 25, 1952, Dennis Gene Burton received accidental injuries, which resulted in his death that day.

Respondent paid claimant under the original award until January 29, 1952. The total of such payments amounted to $3,822.00, leaving an unpaid balance of $1,963.00, payable at the rate of $19.50 per week.

The death of Dennis Gene Burton extinguishes any unpaid balance of the award that might not have accrued prior to the date of his death, but his mother is entitled to receive the payments that accrued from February 7, 1952 to June 25, 1952, a period of 20 weeks. Ill. Rev. Stat., 1947, Chap. 48; Sec. 144g. Beckemeyer Coal Co. vs. Ind. Com., 370 Ill. 113; Waechter vs. Ind. Com., 367 Ill. 256.

The amount, which accrued during such 20 weeks period, is the sum of $390.00, which is payable forthwith to Nadine Ledbetter, and, with the payment of such sum, all of respondent’s obligations under the previous award and this modification thereof will be completely and finally liquidated.


author: Delaney, J. Delaney, J.

text:
    (No. 4158
    T. I. Moss, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 15, 1950.

      Supplemental opinion filed October 10, 1952.

    Neil H. Thompson, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; C. Arthur Nebel and Charles H. Evans, Assistant Attorneys General, for Respondent.
   Delaney, J.

Claimant, T. I. Moss, was employed on February 19, 1948 at the State Game Farm, Mt. Vernon, Illinois in the capacity of a night watchman. In the course of his employment, he slipped on some ice. As a result of the fall, claimant injured his right testicle. On February 23, 1948, Dr. C. 0. Hamilton removed the injured testicle.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

On the date of the accident, T. I. Moss was not married, and did not have any one depending on him for support. The earnings of claimant in the year prior to his accident amounted to $2,100.00. His compensation rate would be the maximum of $15.00; since the injury occurred subsequent to July 1, 1947, this must be increased 30%, making a compensation rate of $19.50 per week.

The record consists of the complaint, stipulation continuing case, original transcript of evidence, and stipulation relative to days absent from employment.

For the loss of his right testicle, claimant should receive the sum of $19.50 per week for fifty weeks, amounting to $975.00 under Article 8 (c) - (16%) of the Workmen’s Compensation Act.

The records of the department, which were also stipulated to by the parties hereto, indicate claimant was injured on February 19, 1948, and returned to work on March 8, 1948, but became ill two days later and was absent from his job from March 11, 1948 to May 3, 1948, making a total of 10 1/7 weeks. Claimant was paid full salary while absent from his job, the rate of pay being $175.00 per month. Claimant was entitled to receive $197.79 for 10 1/7 weeks temporary total disability. He was paid $443.75. Claimant was paid $245.96 in excess of the compensation to which he was entitled, and this sum of $245.96 must be deducted from the award.

Dr. C. 0. Hamilton of Mt. Vernon, Illinois rendered the claimant professional services in the. amount of $83.00, which are unpaid, and the Good Samaritan Hospital of Mt. Vernon, Illinois has submitted an unpaid statement in the amount of $179.50.

An award is, therefore, made in favor of the claimant, T. I. Moss, in the sum of $1,237.50, less the sum of $245.96 paid to claimant for non-productive time, or a sum in the aggregate of $991.54, payable as follows, to-wit:

To Dr. C. 0. Hamilton of Mt. Vernon, Illinois for professional services, $83.00, payable forthwith; '
To Good Samaritan Hospital of Mt. Vernon, Illinois for hospital care, $179.50, payable forthwith;
To claimant, for loss of his right testicle, $729.04, payable forthwith.

The testimony at the hearing was taken and transcribed by Ruth B. Clark, who has submitted a statement for her services in the amount of $45.45. This statement appears reasonable for the services rendered. An award is, therefore, entered in favor of Ruth B. Clark, in the sum of $45.45, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.

Supplemental Opinion

Delaney, J.

Claimant, T. I. Moss, was employed on February 19,1948 at the State Game Farm, Mt. Vernon, Illinois in the capacity of a night watchman. In the course of his employment, he slipped on some ice. As a result of the fall, claimant injured his right testicle, coccyx and buttocks. Shortly afterwards, it was necessary that he have an operation for removal of the right testicle, and this was followed by a rectal abscess, which was operated upon. Since his injury, claimant has pain in the back, and in the legs. Claimant was examined by Drs. J. Albert Key, Fred C. Reynolds, Lee T. Ford, George Saslow and Harold K. Roberts of St. Louis before a rehearing was had, and their examinations of the back and lower extremity showed that the patient has a ruptured intervertebral disc, which apparently had its origin in the injury, which he describes, and is the primary cause of his disability. No treatment was offered the claimant, as the physicians did not believe a surgical removal of the ruptured disc would restore him to work because of his age, although it would be expected to relieve his pain and general condition.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

On the date of the accident, T. I. Moss was not married, and did not have any one depending on him for support. The earnings of claimant in the year prior to bis accident were $175.00 per month, or $2,100.00 a year. At the hearing, claimant testified that he can work about an hour at a time since his injury repairing electric motors, and that he earns about seven dollars a week.

Claimant is entitled to an award under Section 8, Paragraph (d) of the Workmen’s Compensation Act of $5,200.00 for permanent, partial disability. The differential between claimant’s earnings before and after the accident would exceed the maximum; therefore, his compensation rate is $19.50 commencing February 20, 1948, the day after the accident.

The record consists of the complaint, amended complaint, stipulation continuing case, original transcript of evidence, stipulation relative to days absent from employment, petition for rehearing, reports of Drs. George Saslow, Harold K. Roberts, and Fred C. Reynolds, transcript of evidence, abstract of evidence, statement, brief and argument of claimant, and stipulation between the parties hereto permitting claimant to cash warrant previously submitted herein in the amount of $729.04.

In an earlier opinion in this cause, we allowed a specific loss, and granted claimant temporary total disability. Respondent also overpaid claimant for nonproductive time. The total amount of temporary total disability allowed, and the overpayment by respondent was in the sum of $443.75.

On rehearing, due to additional medical testimony, we are granting claimant an award for permanent partial disability. In Charles Love vs. State of Illinois, Case No. 4247, 20 C.C.R. 234, this Court held that the total of the payments for temporary total disability and permanent partial disability, together, could not exceed the maximum amount provided for a death award.

From claimant’s award of $5,200.00 must be deducted the sum of $443.75, making a net award to claimant of $4,756.25, payable as follows, to-wit:

$4,719.00, which has accrued from February 20, 1948, from which must be deducted the sum of $443.75, representing overpayment for nonproductive time, and the sum of $729.04, representing warrant No. 649890 previously cashed by stipulation between the parties hereto, malting a sum of $3,546.21, which is payable forthwith;
$481.00, to be paid in weekly installments of $19.50, beginning on October 17, 1952, for a period of 24 weeks with a final payment of $13.00.

Dr. Harold K. Roberts of St. Louis, Missouri has rendered the claimant professional services in the amount of $30.00, which is unpaid; the Department of Neuropsychiatry of Washington University School of Medicine, (Dr. Saslow), St. Louis, Missouri rendered the claimant professional services in the amount of $25.00, which is unpaid; Drs. J. Albert Key, Fred C. Reynolds and Lee T. Ford, St. Louis, Missouri rendered the claimant professional services in the amount of $75.00, which is unpaid; and Barnes Hospital, St. Louis, Missouri has rendered its statement in the amount of $108.60, which remains unpaid.

An award is made in favor of Dr. Harold K. Roberts of St. Louis, Missouri for professional services in the amount of $30.00, payable forthwith;
An award is made in favor of the Department of Neuropsychiatry of Washington University School of Medicine, (Dr. Saslow), St. Louis, Missouri for professional services in the amount of $25.00, payable forthwith;
An award is made in favor of Drs. J. Albert Key, Fred C. Reynolds and Lee T. Ford, St. Louis, Missouri for professional services in the amount of $75.00, payable forthwith; and
An award is made in favor of Barnes Hospital, St. Louis, Missouri in the amount of $108.60, payable forthwith.

The testimony at the various hearings of this cause was taken and transcribed by Ruth B. Clark, who has submitted statements for her services in the amounts of $12.25 and $46.48, making a total of $58.73. These statements appear reasonable for the services rendered. An award is, therefore, entered in favor of Ruth B. Clark, in the amount of $58.73, payable forthwith.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


author: Lansden, J. Lansden, J.

text:
    (No. 4304
    Bryan Bird, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 12, 1952.

      Supplemental opinion filed October 10, 1952.

    Francis P. Flynn, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Bryan Bird, seeks to recover under the Workmen’s Compensation Act for alleged injuries that arose out of and in the course of his employment as a guard at the Illinois State Penitentiary, Stateville, Illinois.

On June 12, 1949, claimant, while riding in a bus furnished by respondent to haul guards to said Penitentiary, was injured in a collision with another vehicle.

Claimant was off work for two weeks, and then returned to work until the end of August, 1949. He worked some in September, all of October, and two days in November. He was dropped from the roster of the institution on January 3, 1950. However, on May 21,1950, he went to work as a guard at the Penitentiary in Menard, Illinois, and worked there 22 months, or until March, 1952, at which time he voluntarily quit.

The record further shows that an action at law was filed in the Circuit Court of Will County for claimant, and that he is entitled to recover in said action the sum of $500.00.

On the whole, this record is very unsatisfactory from the standpoint of claimant. There is no way that the Court can calculate whether he was paid any temporary total disability compensation, and we must, therefore, conclude that the amount received in settlement of his action at law would more than equal what might be coming to him for temporary total disability compensation.

Although there was extensive medical testimony in the record, all that it shows is that claimant does have some partial permanent disability, but we are unable to grant claimant an award in this case, because the record conclusively shows that claimant was able to and did earn as much or more after his accident than he did before while working for respondent.

In similar cases this Court has previously denied awards on records that were somewhat stronger in favor of claimant than this one. Rohles vs. State, No. 4223, opinion filed September 19, 1950; Paschal vs. State, No. 4389, opinion filed September 7, 1951.

However, claimant is entitled to reimbursement for certain medical expenses incurred by him, and also for his expenses in traveling from his home in Golconda, Illinois to Joliet, Illinois for a medical examination by a doctor of respondent’s choosing, pursuant to an order of this Court.

An award is, therefore, entered in favor of Bryan Bird, for the use of the Estate of Dr. Killinger, Joliet, Illinois in the sum of $22.00; and an award is also entered in favor of claimant, for the use of Dr. L. S. Beecher, Golconda, Illinois in the sum. of $100.00. And, an award is entered in favor of claimant for his travel expenses to and from Joliet, as stipulated at the trial, in the sum of $40.00.

Any further awards to claimant are denied.

William J. Cleary & Co., Court Reporters, was employed to take and transcribe the testimony at the hearing before Commissioner Anderson. Charges in the amount of $139.60 were incurred, which charges are reasonable. An award is entered in favor of William J. Cleary & Co. for $139.60.

These awards are subject to the approval of the Governor. Ill. Rev. Stat., 1951, Chap. 127, Sec. 180.

Supplemental Opinion.

Lansden, J.

Pursuant to stipulation of the parties herein that claimant has already been reimbursed by respondent for his agreed expenses of $40.00 in traveling from Golconda, Illinois to Joliet, Illinois, and return, it is necessary to modify the opinion filed herein on September 12, 1952, as follows:

By deleting from the eighth paragraph all of said paragraph appearing after the phrase “incurred by him”.

By deleting from the ninth paragraph the following words: “and an award is entered in favor of claimant for his travel expenses to and from Joliet, as stipulated at the trial, in the sum of $40.00”.

All of the remainder of said opinion shall stand as originally approved and filed.


text:
    (No. 4447
    Valley E. Gross, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1952.

    Joseph M. De Laurenti, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; Charles H. Evans, Assistant Attorney General, for Respondent.
   Delaney, J.

Claimant filed his complaint herein on June 18, 1951 seeking an award under the provisions of the Workmen’s Compensation Act.

On October 13, 1950, Valley E. Gross was employed by the respondent as a Visitor of the Illinois Relief Commission in the Madison County Department of Welfare. Mr. Gross was sitting at a desk in a swivel tilt back chair. He leaned back, and the chair overturned.

No jurisdictional question is raised. Respondent and claimant were operating under the Workmen’s Compensation Act, and the accident in question arose out of and in the course of the employment.

The record consists of the complaint, motion of respondent for an extension of time in which to file pleadings, order of the Chief Justice granting respondent an extension of thirty days in which to file pleadings, Departmental Report, deposition of Dr. Francis M. Barnes, Jr. taken on January 15, 1952, transcript of evidence taken on February 28, 1952, claimant’s exhibit No. 1, original stipulation relative to claimant’s exhibits Nos. A - F, inc., and copy of the stipulation.

Mr. Gross was absent from his employment from October 19, 1950 to February 1, 1951. He returned to his employment February 1,1951, and worked to March 8, 1951. From March 8, 1951 to June 16,1951 Mr. Gross was put on a leave of absence with pay. Mr. Gross has not worked since March 8, 1951.

The medical evidence in this case consists of claimant’s exhibit No. 1, and the deposition of Dr. Francis W. Barnes, who examined the claimant on November 28, 1951, and again on January 8, 1952.

Exhibit No. 1 states that claimant was seen by Dr. Hediger of Highland, Illinois for ten days beginning on November 16, 1950, from whom he received some hypodermic medication and pills. He was then referred to Dr. Rehberger, a chiropractic physician, for one week. Dr. Hediger then referred claimant to Dr. Jones, who hospitalized him at Missouri Baptist Hospital on November 7, 1950, and from- which he was discharged on November 21, 1950. Dr. Jones’ final diagnosis was “Neuropathy, multiple, due to unknown cause.” Claimant was discharged with condition unchanged. (Claimant’s exhibit No. 1, page 38 trans.)

Claimant entered Jefferson Barracks Hospital, and on May 13, 1951 was seen by Dr. J. J. Gitt, Consultant in Neurology. Dr. Gitt’s findings revealed all deep reflexes were gone except the left biceps in the right knee with summation. There was a questionable dorsal flicker on the left. Conclusion was, patient had an involvement of the cord secondary to trauma. Recommendations for rectal examination, and X-Rays of the coccygeal spine were made. Therapy with large doses of Vitamin B-12 was made. The patient was seen in Orthopedic Consultation on May 1, 1951 on account of the pain in the coccygeal region. Consultation Report by Dr. Donald O. Burst, Orthopedic Consultant, revealed only slight tenderness on pressure of the coccyx externally, and rectally over the coccyx, and otherwise there were no irregularities. Rectal examination revealed absolutely no pain on motion of the coccyx. Impression was, “No organic bone pathology found in the coccyx, and recommend no treatment at all”. The patient was seen by Dr. H. Schwartz, Neurosurgical Consultant, following a request dated April 25, 1951 (exact date of consultation unknown due to lack of notation). Dr. Schwartz noted that the tendon reflexes were markedly depressed, obtained with reinforcement. The impression was a polyneuritis. This patient was seen by Dr. J. J. Corda, Genitourinary Consultant on April 30, 1951, who stated that the prostate gland had not changed any during the past four months; there have been nó urinary symptoms. (Was seen in private consultation by Dr. Corda.) X-Ray examinations: X-Ray of the chest, April 16, 1951, was essentially negative. Examination of the sacrum in the A-P and lateral views failed to reveal evidence of pathology of the bony structure. This was dated April 16, 1951. X-Ray examination of the lumbosacral spine, April 2, 1951, showed the presence of osteophytic changes characterized by lipping and spur formation, which was best visualized in the lower lumbar vertebrae and the anterior portions of the bodies. There also appeared to be failure of fusion of the isthmus of L-5 on the left side, but no accompanying spondylolisthesis was visualized. Reports are by Radiologist, S. Kamberg, M.D. Laboratory examinations: Alkaline phosphate 1.2 Bod. Units. Acid phosphates 1.6 K.A.U. Icteric index 5.1 units. RBC 4.93 million. Hemoglobin 96%, 14.9 grams. Spinal fluid examination: Zero WBC; 4% RBC, all show some crenation; Sugar 7 mg.%.; Globulin, weakly positive; total protein 70 mg.%; complement fixation negative. Gold curve was unsatisfactory. Kahn Test was negative. White Blood Cell count 7,700; stabs 5, segs. 50. Lymphocytes 38, monocytes 5, eosinophils 2. The urine examination was within normal limits.

The patient was placed on Vitamin B-12 Rubrumin, 30 micrograms, daily, for two weeks. Following this, he was put on multivitamin capsules, 1 t.i.d. He ¡was continued following Rubrumin with Vitamin B, 100 mg, t.i.d. Following this treatment, the patient showed improvement. The patient was seen by Neurological Consultant, Dr. Gitt, again on May 14, 1951. The patient revealed to the Consultant that he has definitely improved; the pain in the coccygeal region had diminished. Recommendation for continuance of Vitamin B-12 made.

Inasmuch as the patient had expressed improvement on the Vitamin therapy, it was felt he could be discharged, maximum hospital benefits. The patient was to continue his medication on the outside, and was advised to return to the hospital periodically for checkups. Examination of reflexes prior to discharge, revealed depressed deep reflexes, and slight elicitation only on reinforcement. There continued to be positive toe signs. The patient is to be discharged May 19,1951, M.H.B. Diagnosis:

1. Neuropathy, multiple, with history of onset following fall from a tilted chair (October 13,1950) Date:

May 13, 1951.

Treated — Improved (slight.)

Prognosis is guarded. Disability is moderate. Recommendation: It is further recommended that this patient does not resume any laborious physical or mental tasks until there is evidence of final recovery.

(s) L. M. Hart

L. M. Hart, M.D. Psychiatric and Neurologic Service.

(Pages 39-42 Claimant’s exhibit No. 1.)

From his examination of the claimant on November 28, 1951 Dr. Francis W. Barnes stated “There were no pathological toé signs. The abdominal and cremasteric reflexes were present. Sensation over the head and trunk were normal. No sensory disturbance in the saddle area. No inco-ordination, no muscle group weakness, no tremors were present.

In the first place, my conclusions show it is my opinion that the fall from the chair was the cause of his condition, neurologically speaking, and his disability resulting from that, but I did not make a definite diagnosis upon the fact that it was from an organic condition. I don’t know what it is. There is evidence, but I can’t clarify it. To go back to the Jefferson Barracks record where the diagnosis of “Multiple Neuropathy” had been made, well, that don’t mean anything. With my statement, I don’t know what it is, is just as good as that term.

I consider that trauma, as related to have occurred on October 13, 1950, was the cause of his present condition, and also the present disability.

I think the condition is permanent. That would be my opinion. It has been going on for a considerable length of time with no change that I have been able to discover, and I think it is fixed.

I don’t know what to give the man for treatment. I don’t know what the trouble is. He has an organic nervous condition. Not knowing exactly what it is, a specific line of treatment would be impossible to lay out. He does need medical observation and indicated treatments, of course.

He could remain under the care of his physician and at his physician’s discretion, but seen by a specialist when he thought it should be necessary.”

Claimant was 57 years of age at the time of his accident, and he did not have any children under the age of 18 years dependent upon him for support. His annual earnings during the year preceding the accident were $2,868.00. His compensation rate, therefore, would be $15.00 per week. However, as the injury was incurred after July 1, 1949, this must be increased 50%, making his compensation rate $22.50 per week.

From the medical testimony and the other evidence in the record, we find that at the present time the disability condition is temporary, and has not reached a permanent condition. Claimant is entitled to an award under Section 19, Paragraph (b) of the Workmen’s Compensation Act to the date of hearing on February 28, 1952, or 71 5/7 weeks at the compensation rate of $22.50 per week, or the sum of $1,613.55, less the sum of $1,397.87 for non-productive time, or a total award of $215.68, payable forthwith.

Dr. Edward L. Hediger rendered the claimant professional services in the amount of $545.00, which is unpaid; Dr. L. P. Rehberger rendered professional services in the amount of $57.50, which amount is unpaid; Dr. Andrew B. Jones rendered professional services in the amount of $175.00, which is unpaid; Dr. Joseph J. Gitt rendered professional services in the amount of $65.00, which amount is unpaid; Dr. Herbert C. Wiegand rendered professional services in the amount of $35.00, which amount is unpaid; Dr. Justin Cordonnier rendered professional services in the amount of $10.00, which amount is unpaid; and the claimant, Mr. Gross, made payment of $25.00 to Dr. Andrew B. Jones for an initial examination, and made payment to Missouri Baptist Hospital in the amount of $70.00, for which he has not been reimbursed.

An award is made in favor of Dr. Edward L. Hediger for professional services in the amount of $545.00, payable forthwith;

An award is made in favor of Dr. L. P. Rehberger for professional services in the amount of $57.50, payable forthwith;

An award is made in favor of Dr. Andrew B. Jones for professional services in the amount of $175.00, payable forthwith;

An award is made in favor of Dr. Joseph J. Gitt for professional services in the amount of $65.00, payable forthwith;

An award is made in favor of Dr. Herbert C. Wiegand for professional services in the amount of $35.00, payable forthwith;

An award is made in favor of Dr. Justin Cordonnier for professional services in the amount of $10.00, payable forthwith; and

An additional award is made in favor of claimant, Valley E. Gross, in the amount of $95.00, representing a payment he made to Dr. Andrew B. Jones of $25.00, and a payment to Missouri Baptist Hospital of $70.00, payable forthwith.

Betty Jo Zagar was employed to take- and transcribe the evidence at the hearing before Commissioner Summers. Charges in the amount of $45.40 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Betty Jo Zagar in the amount of $45.40, payable forthwith.

Henry P. Keefe was also employed to take and transcribe the evidence at an additional hearing before Commissioner Summers. Charges in the amount of $80.00 were incurred for these services, which charges are fair, reasonable and customary. An award is, therefore, entered in favor of Henry P. Keefe in the amount of $80.00, payable forthwith.

All future payments being subject to the terms and provisions of the Workmen’s Compensation Act of Illinois, jurisdiction of this cause is specifically reserved for the entry of such further orders as may from time to time be necessary.

This award is subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State employees”.


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    (No. 4511
    Baron-Huot Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1952.

    Granger, Beckers and Snow, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Baron-Huot Oil Company, a Corporation, seeks to recover the sum of $459.90, which it claims it erroneously paid as inspection fees under the Oil Inspection Act. Ill. Rev. Stat., 1951, Chap. 104, Secs. 1-18.

Claimant is a jobber of petroleum products at Kankakee, Illinois, and deals in gasoline, kerosene, range oil and fuel oil. During the period from April, 1950 through January, 1952, as required by said Act, claimant filed returns with the Department of Revenue, and paid the inspection fee of .0003 cents per gallon on all gasoline and kerosene received by it. Its auditor, however, during such period, in making up the tax return, included range oil and fuel oil gallonage amounting to 1,532,991 gallons within the kerosene gallonage.

The auditor during such period testified that he learned of the fact that no inspection fees were due on range oil and fuel oil early in 1952, and this action for refund, therefore, resulted.

We will not decide whether the range oil or fuel oil involved in this case was a motor fuel within the meaning of the Oil Inspection Act, and the rules and regulations of the Department of Revenue issued pursuant thereto.

However, claimant cannot prevail in this case, because it failed to comply with Ill. Rev. Stat., 1949, Chap. 127, Secs. 172 and 172a, which require any person paying money to the State, with some exceptions not pertinent here, to pay same under protest, and then to proceed in chancery, and obtain a temporary injunction within 30 days of such protest payment. If a payor fails to proceed in accordance with this statute, payments become a part of the general revenue funds of the State. Peo. ex rel City of Highland Park vs. Mc Kibbin, 380 Ill. 447.

This Court has held that a failure to pursue this remedy, even when the tax or fee statute involved was later held unconstitutional, acts as an absolute bar to any recovery in this Court. Farm Bureau Oil Co., Inc., vs. State, 14 C.C.R. 153, and see decisions cited therein.

We see nothing in the record herein, which would warrant any departure from the above rule, which has been uniformly followed in this Court.

The claim of Baron-Huot Oil Company, a Corporation, must be, and hereby is denied.


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    (No. 4387
    Bradie Shockley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1952.

    Walter J. Simhauser and Allen T. Lucas, Attorneys for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Bradie Shockley, brings this action to recover damages for the alleged negligence of respondent in operating a truck, to which a snow plow was attached, along one of the highways in this State.

On February 13, 1950, snow had fallen in substantial quantities in Carroll and Whiteside Counties along Illinois Route No. 78 north of its intersection with U. S. Highway No. 30. The wind was blowing in such fashion as to cause drifts to form at various intervals.

At approximately 3:00 P.M. of that day, a Division of Highways truck was proceeding in a northerly direction along said Route No. 78 plowing snow off of the highway, and the blade of the snow plow was so angled as to cause the snow to be pushed in an easterly direction onto the highway shoulder.

Claimant was proceeding in a southerly direction driving his 1949 Kaiser sedan, to which was attached a two-wheeled trailer in which two Poland China hogs were being transported.

At and near the point where the collision occurred, the highway was straight but undulating.

Although there is the usual conflict of testimony, as we view the record, the facts can apparently be sifted and analyzed to such an extent as to determine the fault in the case without any misgivings on our part.

Claimant, proceeding south, crested a sharp hill and started down. Respondent’s truck was at the bottom of the incline, proceeding north. As the two vehicles approached, two sizable snow drifts were encountered. Claimant followed the ruts made by another car through the northerly drift, and entered the southerly drift, following the same ruts, which were entirely within his lane. While claimant’s car was coming through the southerly drift, respondent’s truck entered it on the southerly side, and, almost immediately upon entering it, respondent’s truck veered to the left, and the projecting blade of the snow plow struck the left front wheel of claimant’s car, and then continued along the left side of claimant’s car.

When the vehicles came to rest, claimant was unconscious, and his car was virtually demolished. The snow plow blade was knocked from its operating position, and dangled along the left side of the truck.

Testimony of disinterested witnesses confirm these facts, and the physical facts at the scene of the accident, coupled with an admission by respondent’s driver that he drove the truck into the drift at such speed as to cause it to slide into claimant’s lane, all compel us to conclude that the negligence of respondent has been proven by the preponderance of the evidence.

There is extensive testimony in the record concerning the speed of the two vehicles, the condition of the highways, the lights on the truck, and the control each driver was exercising, but such testimony skirts the fringes of the ease, and does not pinpoint the crucial question of the place of impact, which we decide was in claimant’s lane.

For the violation of the Uniform Act Regulating Traffic on Highways, Ill. Rev. Stat., 1949, Chap. 95½, Sec. 151, respondent is liable. Roberson vs. State, 19 C.C.R. 58.

As to claimant’s damages, it is obvious, and apparently conceded by respondent, that such damages exceed $2,500.00. However, claimant contends that, although his cause of action arose in 1950, he is entitled to the benefits of the amendment that the Legislature made in 1951 to the Court of Claims Act, which increased the maximum amount this Court can award to any claimant in a tort case from $2,500.00 to $7,500.00. Ill. Rev. Stat., 1951, Chap. 37, Sec. 439.8.

However, we do not believe claimant’s contention in this regard is sound. In 1947, the Legislature increased the amount recoverable in a wrongful death action from $10,000.00 to $15,000.00. Ill. Rev. Stat., 1947, Chap. 70, Sec. 2. (The limit has since been raised to $20,000.00. Ill. Rev. Stat., 1951, Chap. 70, Sec. 2.) In Theodosis vs. Keeshin Motor Exp. Co., 341 Ill. App. 8, it was held that a cause of action, which arose prior to the effective date of the amendatory act, was limited to a recovery of $10,000.00, or, in other words, that an amendment of this type operates only prospectively, and not retrospectively. See also: Ill. Rev. Stat., 1951, Chap. 131, Sec. 4. We respect this holding, and are convinced it is representative of the greater weight of authority, and, therefore, we conclude that claimant’s damages are limited to $2,500.00. Ill. Rev. Stat., 1949, Chap. 37, Sec. 439.8.

An award is, therefore, entered in favor of claimant, Bradie Shockley, in the sum of $2,500.00.


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    (No. 4476
    Nat Hershenson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1952.

    David Chaimovitz, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Nat Hershenson, filed his complaint herein in which he seeks damages for the alleged negligence of respondent, acting through certain employees of the Division of Highways.

The transcript of the testimony in this case is 203 pages in length. Same was filed in this Court on May 15, 1952. When the time for claimant to file an abstract of the testimony and his brief had expired, the case was assigned for opinion. A few days later claimant filed a motion requesting that the case be removed from the advisement docket, and that claimánt be granted leave to file his abstract, brief and argument on or before September 10, 1952. For good cause shown, said motion was granted.

However, no abstract or brief for claimant or respondent has been filed to date, and the case, therefore, proceeds to a decision on the record as it now stands.

Fortunately for the Court, an analysis of the transcript of the testimony discloses that the case turns on factual, rather than legal questions.

At the outset, it should be observed that the length of the transcript resulted in large measure from the repetitive questioning of most of the witnesses as to certain distances involved in the occurrence. Not only did counsel want to know how many feet there were, but also how many yards, rods, paces, and even inches. In this search for the ultimate in accuracy (or inaccuracy), one of the most important vehicles in the case was almost lost sight of, and another highly important vehicle just disappeared.

On October 19, 1950, at about 3:30 P.M., claimant was proceeding in a westerly direction in his Studebaker car along State Highway No. 17 at a point less than one mile west of its intersection with State Highway No. 170 in Livingston County, and approximately twelve miles east of Streator. Route No. 17 at this point is straight and level for over two miles. The weather was clear and bright, and the pavement dry.

Claimant testified he was following a large truck at a distance of about 150-200 feet, and at a speed of approximately 45 miles per hour. Suddenly the truck pulled to the left into the east bound lane, and claimant then saw ahead of him a parked highway truck, and a highway maintenance crew engaged in putting tar in cracks in the pavement. Then the truck pulled to the right into its proper lane, and claimant was confronted by a car heading at him in the eastbound lane. To avoid an impending head-on collision, claimant testified that he applied his brakes, swung further to the left, went off the highway, careened through a fence, then hit a tree, and finally stopped at some distance south of the highway. Considerable damage was done to claimant’s car, but he suffered only slight injuries.

The three members of the highway maintenance crew, a farmer, who was only a few hundred feet from the scene, and a tractor mechanic, who was repairing the farmer’s tractor, all testified for respondent.

The latter two heard the screeching of the skidding tires of claimant’s car, but the farmer’s house obscured their view of the car as it left the highway, and ultimately crashed into the tree.

Not one witness for respondent recalled seeing, hearing or noticing a truck proceeding ahead of claimant’s car, and none even mentioned the car supposedly proceeding eastwardly toward the threatened head-on collision. If there was such a car, it certainly did not stop, although had it been there the driver would have had a front-row seat to view the gyrations of claimant’s vehicle, and almost certainly would have stopped to render assistance. This curious hiatus in the record leads us to the conclusion that there was insufficient proof of the very presence of such vehicle.

As for the truck claimant was supposed to have been following at a distance of 150-200 feet, a witness for respondent testified he moved the highway truck westwardly in the proper lane a short distance, and looked into the rear view mirror as he stopped, and he saw, at least four hundred feet behind him, claimant’s oncoming car. If claimant was following the truck as closely as he testified, then the truck would have been visible in the rear view mirror, and probably claimant’s car would have been obscured.

The physical facts in the case show, without dispute, that claimant’s car left the highway several hundred feet east of the maintenance crew, and that it came to rest at a point south of, but still east of the location of the maintenance crew.

It is almost proven beyond peradventure of doubt that the maintenance crew had put up three thirty-inch signs bearing the legends: “Men Working”, “Road Repairs”, and “One-way Traffic” along the highway shoulder. The first sign was 30 feet west of the junction of Highways Nos. 17 and 170. The second sign was 200 feet west of the first, and the third 200 feet further west. Although the third of these signs was about 3,500 feet east of the highway crew at the time of the accident, because the crew kept moving slowly away from them, the fact remains that claimant could and should have seen them, and acted accordingly.

It was also testified that claimant stated immediately after the accident that he was going 65 miles per hour, and that the sun blinded him.

Claimant also testified that no member of the maintenance crew came over to assist him after the crash. However, every witness for respondent testified to the contrary.

This Court has not been reluctant to grant awards in tort cases, but we are bound by the rule that a. claimant must prove his case by a preponderance of the evidence. This claimant has failed to do herein. From the record we conclude that respondent was not negligent, and that claimant has failed to prove his freedom from contributory negligence.

An award to claimant, Nat Hershenson, is, therefore, denied.


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    (No. 4300
    Cornelius E. and Margaret E. Tenboer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 26, 1952.

    Bull, Yost and Ludens, Attorneys for Claimants.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

Complaint was filed herein by claimants on May 5, 1950 to recover for damages to property and loss of business by virtue of a highway improvement in front of their property, and an amended complaint was filed on September 28, 1950, in which the claim for damages for loss of business was eliminated.

The claimants, Cornelius E. Tenboer and Margaret E. Tenboer, husband and wife, are the owners of premises in the town of Union Grove, about three miles west of the City of Morrison in Whiteside County, Illinois, which have been used for many years as a place of business and residence of the claimants. The property was purchased by claimants in the year 1941. It adjoins the Chicago and Northwestern Railway right-of-way, and is immediately to the north of State Bond Issue Route No. 6, also known as U. S. Route No. 30.

On September 11, 1947, the State of Illinois began work on a project designated as State Bond Issue Route No. 6, Section 17-R-IVB. It consisted of a combination reinforced concrete and steel structure over the Chicago and Northwestern tracks. The center line of this structure extends in an east-west direction, south of the previous aligrment of State Bond Issue Route No. 6 through Union Grove.

On May 17, 1948, the State of Illinois began a project designated as State Bond Issue Route No. 6, Section 1. It consisted of an earth-fill leading to the bridge of the project of 17-R-IVB. These projects were completed on October 5, 1949, and September 21, 1949, respectively.

The grade crossing over State Bond Issue Route No. 6 at the Chicago and Northwestern Railway tracks was closed and barricaded on both sides of the tracks, and across the highway.

The face or front of claimants’ building is 30 feet north of the center line of the old pavement, and the center line of the old pavement is 76 feet north of the center line of the new pavement. The difference in elevation between the old and new pavements opposite the east end of claimants’ property is 25.5 feet, and the same difference opposite the west end of claimants’ property is 21.8 feet. A connection made between the old and new highways is 870 feet west of the west line of claimants’ property.

The hearing was had in this matter, at Morrison, Illinois on September 27, 1951. The evidence on behalf of the claimants consisted of testimony of Cornelius E. Tenboer, Margaret E. Tenboer, William R. Bealer, a real estate man; Clayton Dykema, a real estate broker; J. A. Bull, owner of the elevator and lumber yard at Union Grove; and John Davis, former assessor of the town of Union Grove. The evidence on behalf of the respondent consisted of testimony of Arthur L. Good-enough, a farmer, who was acquainted with the property in question; and Harry R. Hanley, a civil engineer of the Division of Highways of the State of Illinois. Photographs were also introduced in evidence by both claimants and respondent.

The respondent raises the question of this Court's jurisdiction to award consequential damages where no property has been taken, but admittedly the property has materially depreciated by reason of the improvement, and its effect on accessibility resulted in a depreciation of the fair, cash market value of the property. To support this contention, respondent cites the case of People vs. Smith, 374 Ill. 286. The Smith case passed on the validity of an Act of the Legislature of 1939, wherein the Court of Claims was given exclusive jurisdiction to ascertain just compensation arising out of cases under Eminent Domain. The Smith case specifically held that the Act was unconstitutional in divesting constitutional courts of jurisdiction over a judicial matter. This can only mean one thing, and that is that the Circuit Court has jurisdiction by mandamus to compel the Director of the Department of Public Works and Buildings to institute appropriate proceedings in accordance with the provisions of the Eminent Domain Act to ascertain the just compensation due for damages. The Smith case was one for consequential damages, because there had been no physical invasion or taking of any property. The first case of this kind arose in People vs. Kingery, 369 Ill. 289, which was likewise a case for consequential damages. This case, likewise,required the Director to institute proceedings under the Eminent Domain Act for the ascertainment of damages.

Both of the above cases specifically held that the remedies were provided under the Constitution and under the Eminent Domain Act. The Constitution and the Eminent Domain Act are both laws of the State.

Respondent contends, and with merit, that the-Court has repeatedly declined jurisdiction where an adequate remedy exists in the courts of general jurisdiction. All of these cases cited have been cases where the claimant had available to him a remedy established by statute. In the case of Tebeau vs. State of Illinois, No. 4468, recently decided by this Court, the claimant had commenced his proceeding before the Service Recognition Board, and it was held that where a claim was arbitrarily denied he had a remedy by mandamus, citing People ex rel Mosco vs. Service Recognition Board, 403 Ill. 442. The basis for the previous decisions of this Court was aptly stated in the case of Edward J. Barrett vs. State, 13 C.C.R. 13, where the Court, on page 17, held:

“The Legislature in creating the Court of Claims did not intend that it should usurp the powers of, contradict, or compete with Courts of general jurisdiction.”

However, under Section 8 of the Court of Claims law, subparagraph A, it is provided as follows:

“A, All claims against the State founded upon any law of the State of Illinois .....(emphasis supplied).”

Under this provision of the Court of Claims law, the Court is given jurisdiction to determine claims arising under the Constitution and laws of the State of Illinois, which include the Eminent Domain Act, and the provisions of the Constitution on the taking of private property. This Court has consistently taken jurisdiction in cases involving consequential damages arising out of the construction of public improvements. The action, as stated in People vs. Smith, supra, is not an action for a tort, nor a penalty, nor for forfeiture, but for injury to property, and the right to compensation is a vested property right. For said reason, jurisdiction of this Court is specifically given by the Legislature in a case of this kind arising under the specific terms of the Constitution and the Eminent Domain Act. To sustain this contention, both cases of People vs. Smith and People vs. Kingery, supra, required the Director to proceed under the Eminent Domain Act to determine plaintiffs’ damages. There can be no question that this is a claim under the law of the State of Illinois, and jurisdiction under this Court gives claimant a sure and positive remedy.

The jurisdictional question being resolved, the only question to determine is the amount of damages, for the reason that, by the evidence, it is admitted claimant has sustained damages.

From the evidence in this record, and from a view of the premises, the Court concludes that claimant has sustained damages in the amount of $4,500.00.

An award is, therefore, entered in favor of claimant in the amount of $4,500.00.


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    (No. 4334
    Jack T. Williams, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 26, 1952.

    Jacob Cantlin, Attorney for Claimant.
    Ivan A. Elliott, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Schuman, C. J.

The claimant herein seeks damages for the moving of a hatchery building, for loss of business, and expenses of this suit by reason of a new bridge being constructed adjacent to the location of his building, causing the level of the roadway to be 3 feet higher than formerly.

Claimant’s building was constructed in 1933 on what is called Williams Island, which lies between the cities of Sterling and Rock Falls in Whiteside County, Illinois. The building was originally 20 feet by 60 feet, and was placed on land owned by Jennie Williams, mother of the claimant. In 1937, an addition was made to the building of 30 feet by 12 feet. The front of the building faced the highway, and the building line was 1 foot from the west side of the highway right-of-way.

The old highway pavement was about 24 feet from the front of the building, and, after the new bridge was put in, a curb was made at the west side, and also a sidewalk. The distance from the west edge of the pavement to the front of claimant’s building was 13 feet.

Claimant had conducted a hatchery business, and, after the road improvements started, he discontinued the business, and rented the building for $40.00 a month. The evidence discloses that the State made an offer of $3,000.00 for moving the building, which apparently was never accepted, and, which was not paid, because the appropriations had all been expended.

The claimant, by his own evidence, does not claim any damages as a result of loss of business, and, as a matter of fact, he voluntarily discontinued his business. The claimant bases his claim solely on the ground that the improvement took away access to the front of his building, where trucks and other vehicles formerly could back up to his door to unload material, and take out baby chicks and poultry supplies.

There is no evidence in the record of just what interest claimant had in the land where the building was located. There is no competent evidence in the record to disclose any damages sustained by claimant.

The law is clear in Illinois that claimant had no property rights in the use of the streets or highways for the location and maintenance of his business.

In City of Chicago vs. Rhine, 363 Ill. 619, the Court, at page 625, said:

“The defendant had no property right in the use of any of the streets of Chicago for the location and maintenance of his business.”

In order for claimant to sustain a claim for damages, he must show a direct physical disturbance of a property right different in degree and kind from that sustained by the public at large. All of the cases cited by plaintiff sustain this statement, as do all of the Illinois cases. See: Illinois Power and Light Corporation vs. Wieland, 324 Ill. 411; Central Illinois Public Service Co. vs. Lee, 409 Ill. 19-24.

Claimant’s damages are alleged to have occurred because he was deprived of ground, which is admitted was the right-of-way of a public road. Claimant has no property rights in said area, and, as the result under the record in this case, no damages could be allowed. The law will not allow a claim for damages to land not taken, unless it is from a cause, which the law regards as a basis for damages. Central Illinois Public Service Co. vs. Lee, supra; Kramer, Et Al vs. State of Illinois, 10 C.C.R. 556, 560.

For the reasons assigned that the alleged claim is predicated on a cause, which is not the basis for damages, the .claim is denied.