author:
Mr. Chief Justice Hollerich
      Per Curiam:

text:
    (No. 1944
    Jean A. Mack, Administratrix of the Etate of Roland E. Mack, Also Known as Raymond E. Mack, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 12, 1935.

      Rehearing denied October 17, 1935.

    Ralph L. Nettland and Howard S. Nettland, for claimant.
    Otto Keener, Attorney General, and John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On or about the 15th day of July, 1931 plaintiff’s intestate, Roland E. Mack, enlisted as a private in the 202nd Coast Artillery, AA, Rational Guard, which was to go into camp at Camp Grant, Illinois on or about August 1st, 1931. He was a member of the advance detail which was sent to Camp Grant on July 28th, 1931, to wit, three days before the arrival of the regiment, and was assigned to Battery H. The regiment had arrived at Coon Creek on August 1st, had pitched a bivouac for the night, and intended to break camp early in the morning and proceed to Camp Grant. It was necessary that additional provisions be drawn to the location from Camp Grant for the morning breakfast, and on August 1st, Captain Walter Reichardt ordered a truck to load provisions at Camp Grant, and proceed to Coon Creek in the evening.

Several members of the advance detail stated to Captain Reichardt and Captain Leonard McPhail that they desired to attend a dance at Coon Creek that evening and asked for some means of transportation to make this possible. Captain McPhail told the men that the provision truck would be loaded and sent to Coon Creek about six o’clock P. M. and that if there was room for them to get aboard and ride, it would be satisfactory to him, provided they were in uniform. Claimant’s intestate, however, was not one of the men who asked Captain McPhail for transportation to Coon Creek as aforesaid.

Plaintiff’s intestate and about ten others of the advance detail helped load the truck at the regimental supply house, with the expectation of obtaining a ride. When the truck left Camp Grant, there were thirteen (13) men on it, in addition to the load of provisions. There was not room for all of the men in the truck, so several of them rode on the fenders and running boards. Plaintiff’s intestate was seated on the left front fender of the truck, facing the rear of the truck, with his back to Private Walter S. Heller who was also seated on the left front fender, but was facing the front of the truck, with his feet on the bumper. The truck left Camp Grant about seven o’clock P. M. and proceeded on S. B. I. Route 25. It was without lights, but Sergeant Stone, who was seated at the right of the driver, was holding a large-battery flash light type lamp to be used for lighting purposes when that became necessary. The official weather reports show that the sun set at 7:05 P. M. that day. After leaving Cherry Valley, and about 7:35 P. M., while the truck was going around what is known as “Cassidy Curve” at a speed of about 25 miles per hour, it collided with a passenger car proceeding in the opposite direction at a speed of about forty or forty-five miles per hour, and as the result thereof, plaintiff’s intestate sustained injuries from which he died on August 3d, 1931.

Said Boland E. Mack left him surviving Jean A. Mack, his widow, and Lorraine C. Mack and Bichard E. Mack, his minor children, as his only heirs; — all of whom were dependent upon him for their support.

Prior to the time of his enlistment, claimant’s intestate was a union carpenter whose income prior to May 1st, 1931 was approximately $4,000.00 a year.

Jean A. Mack was appointed administratrix of the estate of said decedent by the Probate Court of Cook County, and filed her claim herein on July 13th, 1932 and seeks to recover the sum of $10,000.00 as financial help or assistance under the provisions of Paragraph eleven (11) of Article (16) of the Military and Naval Code of this State.

Such administratrix commenced a suit against Bichard James Luhmann, the driver of the car which collided with the army truck, and recovered a judgment for $5,000.00, but it appears that such judgment is uncollectible.

A military board of inquiry found that the injuries sustained by Private Boland E. Mack were incurred while in line of duty and not as a result of his personal misconduct. This finding was disapproved by Charles C. Dawes, Colonel Commanding, and by C. E. Black, Adjutant General of Illinois, as to being in line of duty. The report of said Charles C. Dawes, Colonel Commanding, was to the effect that the “death was not incurred in line of duty and was due to the misconduct of Private Mack, who should not have been riding on the fender of the truck. ’ ’

Claimant bases her right to recover on Section eleven (11) of Article sixteen (16) of the Military and Naval Code of this State which provides in substance that when an enlisted man shall be killed “while performing his duty,” his heirs shall have a claim against the State for financial help or assistance, and the Court of Claims shall act upon and adjust the same as the merits of each case may demand.

It therefore devolves upon the claimant to prove that her intestate was killed “while performing his duty” within the meaning of those words as used in said section.

The words “while performing his duty” as used in the Military and Naval Code seem to be more restricted in their meaning than the words “in the line of duty,” which latter words have often been considered in cases involving pensions to disabled soldiers.

In 1855 Caleb Cushing, Attorney General of the United States, gave to the Department of the Interior an opinion regarding the meaning of the words “in line of duty,” which has been quoted with approval in many cases since that time. In such opinion the Attorney General said in conclusion, “In fine, the phrase ‘line of duty’ is an apt one to denote that an act of duty performed must have relation of causation, mediate or immediate, to the wound, the casualty, the injury or the disease producing disability or death. ’ ’

In the case of Gillespie’s application for a pension, 2 Dec. Dept. Int. Pensions 16, the claim was based upon an injury which claimant received in an altercation with a member of his company, in which the latter struck Gillespie upon the head with a board and injured his skull. The claim was disallowed on the ground that the injury was not received “in line of duty.” In disposing of the case it was said, “but the fact that the claimant did not sustain a culpable relation to the cause of his disability does not by reason of the same, affect his title to pension. The question involved in the claim is not whether claimant was to blame for the conduct of his assailant, but whether the blow struck by the latter was a necessary, or even a reasonable incident of line of duty in the service. ’ ’

In the case of Harding’s application for a pension, 2 Dec. Dept. Int. Pen. 232, claimant sustained a partial paralysis of the brain as the result of a saber cut inflicted by a comrade while claimant was asleep in his bunk on a boat, being mistaken for another person. The claim was' rejected upon the ground that the injury was not received while “in service and in the line of duty.” In that case it was said: “The Department holds in this and all similar cases that the wound, injury or disease must be the natural, probable, or proximate result, either mediate or immediate, of the soldier’s military duty, and that the phrase ‘line of duty’ denotes that an act of duty performed in order to entitle claimant to a pension must have relation of causation, mediate or immediate, to the wounds or injury received or the disease contracted, and which produced the said disability or death. * * * The question is not whether the soldier was in line of duty at the time he received his injury, in the sense that he was not disobeying any military law, rule or regulation, or guilty of any culpable negligence, but rather, what is the quality or condition of the act which produced the injury of which complaint is made? Claimant was not wounded or disabled because he was a soldier.”

In the claim of Ammerman for pension, 1 Dec. Dept. Int. Pen. 5, the claim was rejected on the ground that the cause of the disability or death giving title to pension must in some manner pertain to, and have a natural and logical connection with, the military service and to line of duty in said service.

In the case of Hutchins vs. Covert, 30 Ind. App. 382, 78 N. E. 1061, it was held that a policeman who, while on duty, committed suicide because of insanity, did not lose his life “while in the line of duty,” within the meaning of that phrase as used in a statute providing for a pension for members of the family of a policeman, upon his death, “while in the line of his duty, or from natural causes,” where it is not shown that the insanity was the result of the performance of any duty.

In McAuliffe vs. Policemen’s Pension Fund (Ky.) 115 S. W. 808, it was held that where a policeman, while at his home, and not on duty, undertook to clean his pistol, and in so doing accidentally killed himself, his widow was not entitled to a pension under a statute providing a pension for the widow or children of any officer, member, or employee of the police department who “shall, while in the performance of his duty, be killed or die as the result of an injury received in the line of his duty.”

In Scott vs. Jersey City, 68 N. J. 629, 54 Atl. 441, it was held that the widow of a fireman killed by falling from a trolley car while on his way home to supper, under leave for that purpose, was not entitled to a pension under a statute providing for the allowance of a pension to the widow of any officer or man permanently employed in the fire department, who should be fatally injured while in the performance of, or attempting to discharge, his duty. A preceding section of the Act provided for a like pension to a fireman “whose duty requires active service in the extinguishment of fires,” and who should become incapacitated for further duty as the result of injury received or sickness contracted in the discharge, or attempt to discharge, such duty. The two sections, read in conjunction, were held clearly to show that what the Legislature intended was that the principle upon which the municipal body should dispense its bounty should be the same under both sections, and that was the recognition of the extra hazard that comes to the members of the department while discharging, or attempting to discharge the duties required in the active service of extinguishing fires.

In Gummorson vs. Toronto Police Benefit Fund, 11 Ont. L. Rep. 194, it was held that an injury sustained by a policeman while vaulting over a wooden horse in a gymnasium, this being part of a manual exercise prescribed by an inspector in the police force, was received while engaged in the execution of his duty, within the meaning of a rule of a police benefit fund, providing for pensioning policemen who receive injuries in the execution of duty.

In the case of Meyer vs. Dollar SS Line, 49 Fed. (2nd) 1002, the plaintiff, a seaman, received a leg injury in a goodnatured scuffle with a fellow shipmate, and the question arose as to whether the injury occurred “in service of ship.” In that case the court said that the phrase “service of ship” as applied to ordinary seamen, is closely analagous to the phrase “line of duty” as applied to soldiers and sailors in the service of the United States; that an injury suffered or a disease contracted by a sailor is considered to have been in “line of duty” unless actually caused by something for which the sailor is responsible, which intervenes between his performance of duty and the injury or disease; — and held that the injury did not occur in “service of ship.”

In the case of The People ex rel Donovan vs. Retirement Board, Etc., 326 Ill. 579, plaintiff’s intestate was a member of the Police Department in the City of Chicago and a member of the Department band and octette, and frequently procured music for his organization upon the order of the drill master of the Police Department. He was unable to get certain music which he desired in Chicago, and his superior officer directed him to send to New York therefor. He dictated a letter to the stenographer, and thereafter walked across the street to deposit the same in a mail box. In crossing the street he was struck by an automobile and suffered injuries from which he died. His widow sought to recover an award of compensation annuity under the provisions of an Act which authorized the payment thereof to the widow of any policeman whose death “shall result from injury incurred in the performance of any act or acts of duty.”

In that case the court said, “We are of the opinion that any injury occurring in the course of and arising out of the work of a policeman is an injury ‘incurred in the performance of any act or acts of duty. ’ When Donovan was killed he was performing a task assigned to him by his superior officer, and that task was in connection with his duties as a member of the band and octette of the Police Department. * * * An officer assigned to this work in the Department by his superior officer is performing his duty as a member of the Department as much as when he is assigned to walking a beat or serving a writ.” The right of the claimant to the compensation annuity was sustained.

Upon consideration of the cases above referred to and other authorities on the subject, we conclude that the words “while performing his duty” require that the claimant, in order to be entitled to an award in this case, show not only that her intestate was in the military service at the time of the accident, but that there was a causal relation or connection between the act of duty of such intestate and the injuries sustained by him; that the death of said soldier was the proximate result, either mediate or immediate, of the performance of his duty; that the injuries arose out of and in the course of the duties of the soldier; that the military service was the cause of the injury, and not merely coincident in time. If the soldier was guilty of any Act not connected with the service, which intervened to cause the accident in question, such accident must be held to be the result of the intervening act of the soldier and not the result of the performance of his duty.

From a.consideration of all of the evidence, we find that the claimant has not established a causal relation or connection between the- duty of her intestate and the accident which caused his death; that the death of claimant’s intestate was not the proximate result of the performance of his duties; that the independent act of the soldier in riding in an exposed position on the fender of the truck intervened to cause the accident in question, and would have constituted contributory negligence in an action against a private employer.

We conclude, therefore, that the claimant’s intestate was not “killed while performing his duty,” and that claimant therefore has no claim against the State for financial assistance under the provisions of Paragraph eleven (11) of Article sixteen (16) of the Military and Naval Code.

Case dismissed.

Opinion on Rehearing.

Per Curiam:

Upon petition for rehearing claimant contends that inasmuch as she recovered a judgment in the Circuit Court of Boone County against Richard James Luhmann, driver of the automobile which collided with the truck, it cannot be said that her decedent was guilty of contributory negligence, for the reason that if he was guilty of contributory negligence, she could not have recovered in such suit.

It does not appear from the record whether the aforementioned case was contested or not, but even if it be conceded that claimant’s decedent was free from contributory negligence, that fact alone will not entitle her to an award.

In order to entitle claimant to an award, she must show that the decedent was killed “while performing his duty,” within the meaning of these words as used in Section 11, Article 16 of the Military and Naval Code. The proper construction of the words “while performing his duty” was fully considered at the time of the original hearing, and there is nothing in the petition for rehearing which causes us to change the views there expressed.

The petition for rehearing is therefore denied.


source: Caselaw Access Project

author: Mr. Justice Tantis Mr. Justice Yantis

license: Public Domain

text:
    (No. 2173
    Edward Brougham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 13, 1935.

      Rehearing granted April 30, 1935.

      Opinion on rehearing filed April 30, 1936.

    Martin K. Miller, for claimant.
    Otto Kerner, Attorney General, and John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant filed his claim herein on May 9, 1933 representing that on March 3, 1933 while employed by the State of Illinois as a mason laborer under the Department of Public Welfare; that on that date while in the course of his employment he was riding on a construction elevator from the upper levels of a building then under construction at the State Prison at Joliet (Stateville); that the brake of such elevator failed to hold and the elevator dropped with a crash, resulting in “A fracture of the middle third of the Os Caléis and a fragment being detached from the Navicular bone of the ankle”; that a temporary disability resulted, from which claimant at the time he filed his claim expected to lose about four months work. An award in the sum of One-thousand Dollars, ($1000.00) was requested. A Transcript of the evidence taken in said matter has been filed and counsel for claimant and respondent have both waived the filing of Abstracts, Briefs and Arguments. They have also filed a Stipulation as to what the evidence indicates, but as it is the duty of the court to determine what the facts are as disclosed from the evidence, its decision is based thereon, rather than on the Stipulation.

From the testimony in the record it appears that claimant resided in Joliet, Illinois and was on the 3rd day of March, 1933, and intermittently prior to said time, employed by the Department of Public Welfare as a laborer. His wages were $6.00 per day for five and one-half days a week. On the day in question while employed in the construction of the new hospital at the Joliet Prison, and in the course of his duties, he went up to the third floor after some scaffolding on a construction elevator. One of the inmates was operating the engine — apparently the brake failed to work and the elevator hit the bottom with considerable force, throwing the claimant over backwards. According to his testimony he was carried to the hospital and a Prison Doctor, named Dr. Chmelik made an X-ray examination, then told claimant to go home and put ice on his injured right heel and ankle. Ten days later claimant went to Dr. Chmelik and asked about his fracture or dislocation, and the Doctor informed him there was none. Four weeks later he again called on the Doctor, who took a second X-ray and again told him ‘ ‘ everything was all right. ’ ’ Two and one-half weeks later claimant, on advice of counsel, consulted Dr. Arthur Schreffler, at Joliet, Illinois. The report of Dr. Schreffler appears in the record as “Exhibit A” and shows that, “He sustained a fracture of the middle third of the Os Calcis, with no displacement of the fragments.” The Doctor, in that same report, dated April 18, 1933, further states “It will be another eight or ten weeks before he will be able to do much work.”

. After Dr. Schreffler had made the X-ray examination and the above report — Dr. Chmelik, under date of April 21, 3933, made a report of his X-ray examination of March 3, 1933, appearing in the record as “Exhibit B” in which he states “There is a fracture of the Os Calcis in its middle third; there is also a fragment detached apparently from the Navicular bone. Both are in good condition. Healing is proceeding in accordance with the lapsed time. In my opinion Mr. Brougham will be disabled until about May 10, 1933.” Under date of January 29, 1934 Dr. Chmelik made a further report stating the nature of the injury to be “Fracture of the Os Calcis in its middle third, fragment detached apparently from the Navicular bone, both are in fair condition. Bight Knee: Evidence of Periostitis involving the shaft of the Femur eight inches above the joint. Posterior surface.” Dr. Chmelik further states in said report that “There is a permanent disability ’ ’; that ‘ ‘ there is considerable atrophy „of • disuse of the small bones”; and that the case in his opinion was “properly and adequately treated.” The report is typewritten. Someone has also written in ink.at a different time and with ink of a different color from the ink used in the signature the following “75% of leg,” referring doubtless to the per cent of disability.

The statement by Dr. Chmelik that the case was adequately treated is apparently denied by the claimant’s testimony as above detailed. Neither does the evidence as a whole satisfactorily prove any partial permanent disability.

The claimant, according to the evidence, was unemployed because of said accident, from March 3,1933 to July 17, 1933. He has been re-employed in the same occupation and at the same wages from the latter date. The evidence shows that he still suffers some pain in his right leg, especially in going down stairs, and that “his right leg is swollen, to a certain extent more than his left leg.” Under general medical experience where there is no displacement of fragments in a break of the Os Calcis or Heel, and the latter is properly mobilized, the foot should heal with no permanent disability. In this case Dr. Schreffler reported that there was no displacement as evidenced by his X-ray examination six weeks after the date of injury.

The record discloses that claimant, at the time of the injury, was the father of three children under the age of sixteen years. Under his wage scale of Thirty Three Dollars ($33.00) per week he would be entitled to a maximum of Eighteen Dollars ($18.00) per week by virtue of the three children under sixteen years of age, such compensation extending over a period of nineteen weeks, or a total of Three Hundred Forty Two Dollars ($342.00). From the record we believe the claimant was justified in availing himself of additional medical care, the cost thereof being stated by claimant to be One Hundred Dollars ($100.00). There is no sufficient showing in the record to justify an allowance for partial permanent disability. An award is therefore made to claimant for temporary total disability for nineteen weeks in the sum of Three Hundred Forty Two Dollars ($342.00); for additional expense incurred One Hundred Dollars ($100.00)— total award Four Hundred Forty Two Dollars, ($442.00).

Opinion on Rehearing.

Mr. Justice Yantis

On February 13, 1935 an award of Three Hundred Forty-two ($342.00) Dollars was allowed claimant for temporary total disability for nineteen (19) weeks on a maximum allowance of Eighteen ($18.00) Dollars per week, and an award for partial permanent disability was denied for lack of sufficient showing in the record to justify same. From the evidence, appearing in the record, the court held that claimant was justified in availing himself of personally selected medical care, and a further award was allowed him therefor in the sum of One Hundred ($100.00) Dollars, making a total award of Four Hundred Forty-two ($442.00) Dollars. A petition for rehearing was filed February 27,1935. On March 13,1935 claimant’s attorney appeared in person before the court to support orally his petition for rehearing. At that time he requested leave to file an additional medical report and an x-ray picture that had been made prior to the time of the original hearing but not introduced. Allowance was given to introduce these new exhibits, and thereupon the entire record, including the two additional exhibits, were carefully considered on the petition for rehearing. On April 9, 1935 the petition for rehearing was denied and the award of Four Hundred Forty-two ($442.00) Dollars was re-affirmed. Claimant’s counsel thereafter contending that he understood he was to have been given an opportunity to take still further testimony, the court in order to remove any question of misunderstanding, vacated the order denying the petition for rehearing and thereupon granted claimant leave to take further evidence. Such additional evidence was filed on May 16, 1935 and the entire record is now before the court for final consideration.

The court has carefully rechecked the record and finds that it did not in its original opinion, as contended by claimant in his petition for rehearing, disregard the stipulation of facts entered into by the parties, but did decline to be governed by the conclusions and suggestions which counsel drew from the facts in evidence; that court did not, contrary to the evidence, assume that the claimant suffered no displacement of fragments as a result of the fracture of the Oscalcis, but based its conclusion as to such fact from all the evidence in the record. Dr. Shreffler in a report dated April 18, 1933 certilled to an examination of plaintiff, and therein stated as follows: “I find that he sustained a fracture of the middle third of the Oscalcis with no displacement of the fragments.” Since filing his petition for rehearing, counsel for plaintiff has submitted another report by Dr. Shreffler of an examination of plaintiff made on July 28, 1934, and an examination of that report shows that Dr. Shreffler was, on July 28, 1934, still in accord with the report made by him on April 18th, for in answer to Question 5 as to the location, nature and extent of injury, he states “Fracture through mid-portion of right Oscalcis.” In the Sixth (6th) clause of plaintiff’s petition for rehearing counsel purports to quote the court as having said “In this case Dr. Shreffler reported that there was no displacement as evidenced by his X-ray examination six weeks after the injury.” Counsel mis-states the opinion. The court therein said “After Dr. Shreffler made the X-ray examination and the above report — Dr. Chmelik, under date of April 21, 1933, made a report of his X-ray examination of March 3, 1933, appearing in the record as ‘ Exhibit B.’ ” This is a correct statement of the facts in the record and the petition for rehearing confuses the same. In plaintiff’s testimony (Page 4) he stated, “He (Dr. Shreffler) 'gave me a complete examination.” Exhibit A is Dr. Shreffler’s report of that examination. The next day, April 19, 1933, Dr. Shreffler examined the X-rays. On April 21, 1933 Dr. Chmelik made a report of the examination made by himself on March 3, 1933, which appears in the record as “Exhibit B.” The latter report is in direct conflict with what claimant testified Dr. Chmelik had repeatedly told him, to-wit: “That there was no fracture or dislocation.” In the supplemental testimony of Dr. • Chmelik, filed May 16, 1935, he was asked “So far as the X-ray shows the( heel bone is properly healed is it not?” Answer — “yes.” Question — “With reference to the Oscalcis —Where is this other bone that was fractured, the Navicular?” Answer — “It was above the Oscalcis (looks at X-ray.) I just can’t say. I am not familiar with it.” Question— “Was it fractured at the near junction to the heel bone?— Can you tell by looking at the X-ray?” Answer — “Don’t know whether it’s the nearest part to the heel bone or farther away.”

The record as now found, including the supplemental evidence contains some proof of permanent lameness and partial disability of claimant’s foot, but the medical evidence taken at different timés is so conflicting that the court does not consider itself justified in changing the conclusion heretofore reached. As above stated, an additional award of One Hundred ($100.00) Dollars was originally allowed for medical expense, based upon claimant’s testimony that he had not received adequate medical attention from the doctors furnished by respondent and the record as it now stands does not appear to justify a reversal of that award.

The award heretofore allowed is hereby affirmed in favor of claimant in the sum of Four Hundred Forty-two ($442.00) Dollars.

This award being subject to the provisions of an Act entitled, “An Act making an appropriation to pay compensation claims of State employees and providing for the method of payment thereof,” approved July 2d, 1935 (Sess. Laws of 1935, p. 49) and being, by the terms of such Act, subject to the approval of the Governor, is hereby, if and when such approval is given, made payable from the General Revenue Fund in the name provided for in such Act.


author:
      Mb. Justice Linscott
      Per Curiam:

text:
    (1799 and 1806, consolidated
    Mary Harmon, Administratrix of the Estate of Patrick T. Harmon, Deceased, No. 1799 and Mary Harmon, Individually, No. 1806, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 12, 1935.

      Rehearing denied November 12, 1935.

    Rot J. Egan, for claimants.
    Otto Keener, Attorney General; Gael Dietz, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Mary Hannon, as administratrix of the estate of Patrick T. Harmon, deceased, and also on behalf of herself individually, filed her declaration in this court on July 11, 1931 and July 16, 1931 respectively. Both cases grow out of the same state of facts and for that reason are consolidated.

It appears that on the 22nd day of July, 1930, she, together with her husband and Dr. E. Thomas Brand, were on their way from Crystal Lake, Illinois to the City of Chicago, Illinois where Patrick T. Harmon was engaged in business. They were riding in a Packard automobile over a highway known as Northwest Highway, located in Main Township, County of Cook, over a concrete road built by the State of Illinois. The deceased, Patrick T. Harmon was driving.

Claimant alleges that it was the duty of the State of Hlinois to keep this highway in such a state of repair that it would be safe to travel thereon but neglected its duty in this regard and negligently suffered the same to be and remain in an unsafe condition and as a direct and proximate result thereof and by means whereof, claimant’s decedent who was driving the automobile, necessarily and unavoidably drove into holes in the highway which caused the automobile to turn over and capsize, and Patrick T. Harmon was so severely injured that in consequence thereof he died on the day he received the injuries, and damages in the sum of $10,-000.00 is asked.

Substantially the same averments are made concerning the cause of the accident in the cause that Mary Harmon filed.

Mary Harmon testified that on the day in question her husband, Patrick T. Harmon, was driving the car, which was a new Packard, about thirty days old; that they had left their home that morning in Crystal Lake, Mr. Harmon driving, Mrs. Harmon sitting to his right and Dr. Brand was sitting in the rear of the car; that Mr. Harmon was driving about thirty-three or thirty-five miles an hour, and that she and Dr. Brand were talking casually. She testified that they seemed to strike a rut in the road; that it was a terrible jolt, and that is about the only thing she could remember as to what happened. This occurred near Desplaines. Mrs. Harmon was rendered unconscious and “came to at quite a distance from the car in sort of a prairie, and the ambulance was there.” Both she and Mr. Harmon were placed upon stretchers and taken to the Desplaines Hospital in Desplaines, Illinois. Mr. Harmon died about three hours after that. From the time of the accident until his death, Mr. Harmon was in sort of a semi-conscious condition. Mrs. Harmon testified that Mr. Harmon promoted athletics in connection with the Chicago Stadium Corporation, and Mrs. Harmon testified that he earned from $24,000.00 to $28,000.00 per year. He left an adopted son twenty-eight years old and a daughter, Patricia Harmon, three years of age. Mrs. Harmon did not remember of seeing any other traffic as they drove east on the fatal morning, and had not noticed any warning signs or red flags of any description. She received a very badly lacerated left hip and thigh, the flesh being torn almost to the bone over an area of eight or nine inches square, according to the testimony of Dr. E. Thomas Brand, who was her attending physician. He attended her from the day of the injury which was the 22nd day of July, 1930 up to the 8th or 9th of July, 1931. His bill for professional services is the sum of $1,183.00, no part of which has been paid. Mrs. Harmon also testified she incurred a bill for medicine in the sum of $483.40. She further testified that it was necessary for her to employ a nurse from the day of the injury until sometime in the following May when she tried to get along without a nurse for a week or two, but suffered a very nervous condition and called the nurse back after a few days time and kept her up until July, 1931, at a salary of $49.00 per week. One Thousand Four Hundred Dollars has been paid on her salary, out of a total of $2,451.00. There was also a charge for nurse’s board of $343.00. The total amount of her expenditures was $4,459.00. Mrs. Harmon was only in the hospital a day and a night. The hospital bill, though small, was not paid because she considered it too large.

Mrs. Harmon testified that she did not think her husband lost control of the car after striking the so-called bump. It seemed that he just held on to the steering wheel and the car swerved first to the left and then to the right, — the car swerved back and forth and finally left the pavement. Mrs. Harmon could not say whether the car travelled in this manner a city block or not, and she could not describe this so-called rut that the car struck which caused the accident. Mrs. Harmon did not suffer any fractures or broken bones because of the accident. She was confined to her bed about thirty days as the result of the accident, and then was in a wheel chair for about thirty days, and after sixty days was unable to stand up longer than five or ten minutes at a time; after that she was able to walk about on crutches. It was about the first of October, 1930 before she was able to walk alone.

Edward J. Geiger, Sporting Editor of the Chicago American also testified that he was not an eye witness to the accident, but went to the scene of the accident after he heard of it and took photographs, which were offered in evidence, he being there within two hours after the accident. Claimant’s Exhibit 1 is a picture of the concrete road in question. While it shows that the road is not absolutely level, there is nothing in the picture that would indicate any dangerous condition to the road and this is true of Exhibits 2 and 3.

Dr. Brand, who was also present, testified that he was sitting directly behind Harmon; that just before the accident happened, there was a very rough spot in the highway, and it threw the front wheel off to the right, down on the ground on the side of the road off of the concrete; that he, (meaning Harmon) immediately tried to adjust the car and when he did the car shot back over the pavement and over to the opposite side, and the last that Dr. Brand could remember was the car turning over the third time before he became unconscious. He also testified that he could not see the speedometer, but was of the opinion that the car was going about thirty-five miles per hour and there was no other traffic on the road. He testified that at the place where the accident happened, there was a depression in the road where a piece of the concrete was broken out; that it was about two and a half feet long and about two feet wide. The pictures, however, taken within a couple of hours after the accident show that this had been filled in with concrete, and it appears to be ordinary material used to repair concrete highways.

This court must be both judges of the law and the facts in cases of this kind, and nowhere in the record is there such a description of the concrete rut wherein we could say that by the greater weight of the evidence it appears that the road was in such a state of repair as to render it unsafe for an automobile to be driven over it at thirty-five miles per hour. The evidence contains no measurements that would throw any light upon the depth of the alleged rut, and from the circumstances surrounding the accident, we cannot convince ourselves that at the time of the accident and immediately prior thereto, the driver was free from contributory negligence. It appears from the testimony of Dr. Brand, that at least a part of the car got off on to the shoulder of the road and then shot across the road and turned over at least three times. Insofar as the record is concerned it was broad daylight and the road was dry and there was nothing to obscure vision, and we do not feel-that the averment of the declaration, that the deceased was in the exercise of due care and caution, is borne out by the evidence, and giving this testimony the most favorable consideration to support the view of the claimant, we are unable to say that the deceased has been free from contributory negligence, which he must be before she could recover, and the claim on account of the death of Patrick J. Harmon will he dismissed.

We will now consider the claim of Mrs. Harmon who was riding with her husband.

It is the rule that the negligence of the owner and driver of a vehicle cannot be imputed to a person who is riding with him, in case of a collision between the vehicle and another, and we consider this rule as being the same in the ease at bar.

Mrs. Harmon testified in substance that she was not paying attention to the road; that she was engaged in casual conservation with Dr. Brand. She did nothing. If she, by using her faculties with ordinary and reasonable care in looking out for danger, could have avoided the injury, but negligently failed to do so, and thereby contributed to her injury, then she cannot recover.

It is a fair inference from the evidence that the alleged hole in the road was 60 or 75 feet from the point where the deceased’s car went off the road and into the field. This depression or hole in the pavement was on the right side of the road for traffic headed in the direction the deceased was travelling and it was about 100 feet diagonally from this depression southeast that the Harmon car left the road and went into the field to the point where it stopped. This appears from the testimony of Edward J. Geiger, and there is no direct testimony that the Harmon car struck this particular depression.

E. F. Aderman of the State Highway Department investigated on the following day. He found skid marks plainly visible, and made a sketch which is a part of the record, showing the location, direction and length of the skid marks, and the location of the rough pavement. According to his report this car turned over and rolled about eighty feet. There is no evidence of the car skidding sideways until it passed the ditch.

We have gone into the facts in this case at length. There are other reasons why there could not be a recovery in this case.

It is a well-established rule of law that the doctrine of respondeat superior does not apply to a State in the exercise of purely governmental functions. The Supreme Court of the United States in the case of Seymour vs. VanSlyck, 8 Wend. 403; 422; United States vs. Kirkpatrick, 9 Wheat. 720, 723, laid down this rule:

“The government itself is not responsible for the misfeasances, or wrongs or negligences, or omissions of the duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties and losses, which would be subversive to the public interests; and, indeed, laches are never imputable to the government."

This court said in Hinchscliff vs. State, 2 C. C. R. 159, decided in November, 1931:

“It is * * * a well established rule in this and all other courts that the State is not liable for the negligence, torts, misfeasances or omissions of duty of its officers, agents or servants, for it does not guarantee the fidelity of the agents or officers it employs to carry on its governmental functions.”

and this rule has been applied and followed by this court in so many instances where claims have arisen as the result of alleged negligence of officers or servants of the State that a citation of cases is hardly necessary. In each instance such claims were denied for the reason that the State cannot be held liable for the negligent acts of its agents.

Without unduly extending this opinion, it is sufficient to say that enough has been set forth to show that there is no liability in this case, and both claims will, therefore, be denied. Cases dismissed.

Opinion on Reheaeing.

Per Curiam:

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

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


author: Mb. Justice Linscott

text:
    (No. 1995
    Moweaqua Home Telephone Company, Claimant vs. State of Illlinois, Respondent.

      Opinion filed March 13, 1935

      Rehearing denied March 10, 1937.

    S. S. Clappeb, for claimant.
    Otto Kebneb, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Claimant alleges that on the 15th day of June, 1932, and before that, it had permission of the Village of Moweaqua, a municipal corporation, to construct and lay in conduits beneath the surface of South Main Street in that Village, for certain telephone lines and wires in lead cables for the purpose of establishing a telephone system, and on that date, the Department of Public Works and Buildings, which had laid a concrete highway north and south through the Village of Moweaqua on North and South Main Street, known as State Hard Road Route No. 2, by its employees, drove an iron or steel post at the intersection of South Main Street and Wall Street at Moweaqua, for the purpose of erecting thereon a sign commonly called a stop sign to prevent drivers of vehicles from entering on to State Hard Road Route No. 2 without first stopping; that in driving the iron or steel post, the workmen for the State drove it through the lead cable containing the telephone lines of the claimant, thereby destroying the usefulness of the lines until the same could be repaired. There is also an itemized statement of the repairs which were made to the property of the claimant in the sum of $38.25.

A stipulation of facts is contained in the file and the fact that the iron or steel post was driven through the lead conduits of the claimant, is admitted.

The Attorney General while admitting the damage to the wires of the claimant company, states that while the State, in the construction, maintenance and operation of its hard road system is in the exercise of its governmental functions, there is no technical legal liability, and admits that in similar cases this court has heretofore granted awards in such cases.

It does not appear that the employees of the State knew, or should have known of the existence of the conduits beneath the surface of the ground.

The State has paramount authority over all public highways and the Legislature may, in the absence of special constitutional restriction, regulate or discontinue public highways or invest municipal corporations with authority to do so.
People ex rel. Foote v. Clark, 283 Ill., 221.

The Legislature having authorized the building of the State Highway No. 2, it impliedly at least, authorized the erection of a stop sign for the purpose of protecting the general public.

The Village of Moweaqua, apparently, for ought appears in the file, had the right to give its consent to the laying of the conduits in question, but it did not give any greater or superior right than the State had in the same highway, and nothing having appeared upon the surface that would give the agents of the State any notice of the property of the claimant beneath the surface, it does not seem reasonable to hold that the State must first make an investigation before driving an iron or steel post into the ground for the purpose that it did in this instance.

While it is unfortunate that the property of the claimant was damaged, we cannot see that the cause of the damage was the wilful or negligent act of the agents of the State.

The claim, therefore, will be denied. Case dismissed. .


author: Mr. Justice Yantis

text:
    (No. 2344
    Rollin F. Streitmatter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1935.

      Rehearing denied September 11, 1935.

    Clarence W. Heyl and Verle W. Safford, for claimant.
    Otto KIerner, Attorney General, and John KLasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

In his Declaration filed herein on March 19,1934 claimant seeks an award of Fifteen Thousand Dollars ($15,000.00) because of alleged permanent loss of earning capacity due to injuries received while in the course of his duties as a member of the National Guard of Illinois.

The Declaration states that he was a member of Company E of the 130th Ill. Infantry; that on the morning of July 31, 1932 he was ordered by his Captain to report at the Armory in the City of Peoria for duty and to take other memhers of the Company to the Rifle Range for practice; that pursuant thereto he drove his mother’s automobile to the Armory, received other members of the Company as passengers and drove toward the Rifle Range; that there were several automobiles driven to the Range, being driven about two rods apart on a gravel road; that while driving on a hill, with care and caution for his own safety and the safety of the car, his car collided with other automobiles, due to the negligence of the drivers of the other cars, and as a result thereof he suffered severe injuries to his back and head that will cause him to be a cripple for life. The Declaration further states that prior to the time of the accident he was engaged as a farm hand at Thirty Dollars ($30.00) per month and that due to his injuries he is no longer able to perform such duties.

A record of the evidence and an Abstract thereof have been filed, and plaintiff and respondent have each waived the filing of any Brief or Argument.

Any allowance of this claim would be by virtue of the provisions of the Military and Naval Code, subject to the rules applicable to the hearing of claims by this court.

Section 10, Article XVI of the Military cmd Naval Code provides as follows:

“Any officer or enlisted man of the National Guard or Naval Reserve who may he wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade, or other occupation from which he gains his living, shall be entitled to be treated by an officer of the medical department detailed by the surgeon general, and to draw one-half his active service pay, as specified in sections 3 and 4 of this article, for not to exceed thirty days of such disability, on the certificate of the attending medical officer; if still disabled at the end of thirty days, he shall be entitled to draw pay at the same rate for such period as a board of three medical officers, duly convened by order of the Commander-in-Chief, may determine to be right and just, but not to exceed six months, unless approved by the State Court of Claims.”

Bule 5(a) of the Buies of the Court of Claims provides:

"Claimant shall state whether or not his claim has been presented to any State Department or officer thereof, or to any person, corporation or tribunal, and if so presented, he shall state when, to whom and what action was taken thereon.”

Plaintiff’s declaration fails to comply with the above rule. There is no statement therein of any effort made by plaintiff to obtain relief, before filing his claim herein.

In the record of evidence (Transcript, p. 20) plaintiff testified that he had been called to Chicago and there appeared before three medical officers. If plaintiff was wounded or disabled while on duty so as to prevent his working at his trade, Section 10, Art. XVI of the Military and Naval Code provides for the steps that should be taken in certain cases before the matter is presented to the Court of Claims. It is evident therefrom that such matters should be first determined through military channels before invoking the services of the Court of Claims as a tribunal.

The claim is hereby dismissed, because of failure to show compliance with Rule 5 above stated.

Opinion on Rehearing.

After a careful consideration of the petition for rehearing in the above case we find nothing therein that would justify setting aside the Order of Dismissal heretofore entered.

Further attention is called to the fact that the petition was not filed within ‘thirty days from the date the Order Dismissing said claim was filed, as provided in Rule 33 of the Court of Claims.

The order heretofore entered in this case is therefore affirmed and the petition for rehearing denied, without prejudice.


author: Mb. Justice Yantis

text:
    (No. 2489
    The American Sales Book Co., Ltd., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

      Rehearing denied September 11, 1935.

    Gillespie, Burke & Gillespie, for claimant.
    Otto Keener, Attorney General, and John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This is a claim for merchandise sold and delivered to the State of Illinois by claimant through its agent, H. C. Harris of Springfield, Illinois. Claimant states that the merchandise for which payment is claimed is set out in the bill of particulars attached and is of the aggregate value of One Thousand Five Hundred Ninety Eight and 25/100 Dollars ($1,598.25) for which sum it asks an award. The twenty-one (21) invoices which constitute and make up the bill of particulars aggregate the sum of Two Thousand Three Hundred Twenty Eight and 18/100 Dollars ($2,328.18.) No satisfactory evidence appears in the testimony of claimant as to which of these twenty-one (21) invoices go to make up the excess over the purported aggregate value of One Thousand Five Hundred Ninety Eight and 25/100 Dollars ($1,598.25), but an examination of the invoices discloses that at least two of them are apparently duplicates of other invoices included in the list. There are five of the invoices appearing in the bill of particulars that do not show any requisition number and the records show a statement by H. C. Harris, the agent of claimant, that the merchandise charged in five of the invoices i. e. that for $220.00 dated March 21, 1933; $83.50, dated April 4, 1933; $41.75, dated March 27, 1933; $20.36, dated August 10, 1932 and $5.12, dated April 14,1933 making a total of $370.73 were not State orders and were never proper charges against the State of Illinois.

Claimant contends that payments to the amount of its claim herein were erroneously paid by the State to H. C. Harris instead of the voucher being mailed direct to the company and it bases its demand upon the fact that the invoices used by it contained the notations “Please send remittances to The American Sales Book Co., Ltd., Elmira, N. Y.” and “Pay no money to Salesman.” Their agent, Harris, testified that he had been an employee of claimant since 1905 and from then until August 15, 1933; that he usually handled the orders obtained by him from the State of Illinois as follows:

“Usually requests were sent to me for quotations by the Division of Printing. Quotations were made by me individually back to the Division of Printing. The orders were then let according to the bid or quotation and sent back to my address or in some instances I was summoned on the telephone to come and get them. These were then reduced to our Springfield form of order blank for factory purposes and sent to the factory; the order being then shipped back to the State with the invoice and bill of lading being sent to me. I mean the goods were shipped to the State and the invoice sent to me. We reinvoiced according to the invoice that I had from the factory. In some specific cases the invoice was not given to the State but was made on a local invoice as of Springfield, Illinois. Many invoices were made that way; I could not tell the number. As many as three or four a year. The purpose of reinvoicing at Springfield was that, it was the State’s policy to buy everything they could buy in the State and this could have been bought in the State. Therefore, it was better to have it shown as a local proposition than coming from a foreign State. * * * Sales and shipments to the State were usually paid by warrant. All local invoice warrants were made to me, and all those not reinvoiced locally to the American Sales Book Company and usually cleared through this office. The State would usually mail such invoices to the local office and the local office would remail them. Warrants issued in the name of the American Sales Book Company by the State of Illinois were never cashed hy me. Those that had been reinvoiced at Springfield and the warrants that were made payable to me were cashed by me.”

He further testified (P. 6 of record) that as a rule the requisition received by him from the .Department of Printing was retained by him and not sent to the company; that he usually sent his own form.

It was stipulated between claimant and the State that the item of $753.00 appearing in claimant’s statement of account was paid to H. 0. Harris by warrant No. 32086 issued on November 16,1932, and was personally endorsed by him.

That the item of $100.70 was paid to him by warrant No. 69251, dated August 25,1932 and endorsed by him.

That the items of $23.36 — $51.13 — $72.01 and $474.25 were included in warrant No. 404858 in the sum of $649.00 paid to H. C. Harris and endorsed by him.

That the item of $63.15 was vouchered to H. 0. Harris, voucher No. 1522, $36.00 thereof being paid to him on account of the Peoria State Hospital; that the total amount paid to H. C. Harris was $1,510.45.

In contradiction of the testimony of former Agent Harris, varions requisitions or orders purporting to bear the signature of H. L. Williamson, then Supt. of the Division of Printing have been introduced as exhibits.

Claimant also denied through testimony of various office employees that after 1926 Harris was ever authorized by the company to make collections from any of its customers on any of its accounts. This, however, is negatived by examination of the record as a whole; claimant’s witness, Totten, testifying that salesmen were in special instances authorized to make collections, and stated that in regard to their bills against the State for the items in question “We kept writing him concerning these items which had not been paid and his replies indicated that he was still working on them.” In. a letter to D. F. Totten under date of May 31, 1932 Mr. Harris stated “If you would mail me the 1st of each month a statement, not as a whole, but as each invoice, I could follow through — occasionally an invoice will go through the department in thirty to forty-five days; there are other times when they are sixty to ninety days vouchering.”

There appears in the evidence a commission statement dated January 1, 1933 received by H. C. Harris and delivered by him to E. T. Bank, present Superintendent of the Division of Printing, wherein he is charged with a number of these sales aggregating with others $1,994.42 or a net charge of $1,695.26, after discounting 15% commission. His total commissions shown there to be due him and unpaid to January 1, 1933 were $2,461.09, from which the amount charged against him of $1,695.26 is deducted and a notation made of “check attached” to balance in the sum of $765.83. With the department letter of September 6th last mentioned (Exhibit 16) appears a statement of what disposition had been made in regard to a number of the items claimed by plaintiff. On the order of February 5, 1932 for $753.00 voucher No. 2076 was issued to H. C. Harris and same appears as one of the items allowed by the company in its commission statement settlement with him above referred to. The same is true of the items under date of April 19, 1932 of $23.75 and $36.90. A voucher was issued to H. C. Harris for the item of July 18, 1932 in the sum of $100.70 and was credited in the commission statement. The same is true as to the items of December 16, 1932, $23.36 — December 19, 1932, $51.13 and December 21, 1932, $72.01. The item of July 22, 1932 for $63.15 was also credited against the account of Harris in the commission statement. According to the Agent Harris the charge of August 10, 1932 for $20.36 was not a State of Illinois charge but was for carbon ordered direct by Harris and was credited against his account in the commission statement. The charge of March 21, 1933 of $220.00 is also testified to as not being a State of Illinois charge, and the invoice bears no requisition number and is not billed to any officer or Department, but merely reads “State of Illinois.” Neither does the invoice of $41.75 under date of March 27, 1933 carry any requisition number and neither this nor the invoice of $83.50 dated April 4, 1933 were for State orders, according to Harris. The same is true in regard to the invoice of $5.12 under date of April 14, 1933 and that of $20.36 under date of August 10, 1932.

There is additional testimony in the record of cash advances made to Harris by the company both prior and subsequent to January 1, 1933. Complaint is made of his failure to forward orders which he claimed to have at that time, and upon the possibility of obtaining which, the company advanced further funds to him, but such evidence has no material bearing upon the status of the account prior to January 1,1933.

Claimant contends in its original and Reply Brief that the burden of proof is on the State to show the agent’s authority to receive payment for the principal and that such agency is not presumed but must be proven, and further argues there is no evidence in the record that any of the items enumerated in the stipulation were ever reinvoiced or that warrants were made therefor to H. C. Harris and not to The American Sales Book Co. Ltd. The record discloses that the witness, Harris, testified repeatedly that he never cashed any warrants that were made payable to The American Sales Book Co. Ltd. The witness, Harris, had been employed by claimant for twenty-eight years and testified that he had been delivering a volume of approximately Ten Thousand Dollars ($10,000.00) worth of business a year from the State of Illinois to claimant. They apparently had confidence in him and were also willing to juggle orders through his hands so that they might appear as supplies furnished by an Illinois bidder.

From a consideration of the entire record and examination of the. invoices and in the absence of many requisitions from the exhibits and the commission statement showing settlement of the items therein listed, we conclude that the claimant has no just claim against the State of Illinois.

Counsel for respondent has cited the following authority:

“Payments made to an agent are good and obligatory upon the principal. In all cases where the agent is authorized to receive payment, either by express authority * * *or from the particular dealings between the parties the principal is equally bound by authority which he actually gives, and by that which by his own acts he appears to give.”
Smith vs. Peoria County, 59 Ill. 412.
Phoenix Ins. Co. vs. Stocks, 149 Ill. 319.
James vs. Conklin & Hill, 158 Ill. App. 640, 644.

We believe the above exceptions to the general rule apply to the case at bar. Regardless of the notations on the invoices used by claimant it is apparent from the record that in-so-far as the dealings between the Division of Printing of Illinois and claimant that H. C. Harris was the American Sales Book Co. Ltd. and that he clearly was vested with more authority than to merely solicit orders. Payment of the account has been made by the State, and if we give to the commission statement the credit to which it seems to be entitled, settlement has also been made with the claimant. An award is denied and the claim dismissed.

Opinion on Rehearing.

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

The decision heretofore rendered in this cause is therefore affirmed and the petition for rehearing is denied.


author:
Mr. Justice Yantis
      Per Curiam:

text:
    (No. 2503
    Wolff Company, a Corporation. Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 31, 1935.

      Rehearing denied October 17, 1935.

    Wm. Jaeee and Wm. S. Coleen, for claimant.

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

delivered the opinion of the court:

In its declaration claimant asks for an award of One Thousand Eight Hundred Seventeen and 79/100 Dollars ($1,817.79) but its Bill of Particulars attached shows a total claimed indebtedness of One Thousand Four Hundred Ninety-one and 96/100 Dollars ($1,491.96). Under a stipulation of facts filed herein it appears that plaintiff made a verbal contract on June 17, 1929 with Charles B. Ewing who held a contract with the State of Illinois for furnishing necessary plumbing and sewerage materials in the construction of an Armory at Bandolph Street and Lake Michigan in Chicago, Illinois; that pursuant to such verbal contract claimant furnished the materials and supplies listed in its Bill of Particulars in a total sum of One Thousand Four Hundred Ninety-One and 96/100 Dollars ($1,491.96) and that said materials and supplies became a permanent part of the said Armory Building'; the first of said supplies being furnished on the 17th day of June, A. D. 1929, and the final delivery on the 29th day of June, A. D. 1929; that no agreed price or time of payment was stipulated but that the said sum of One Thousand Four Hundred Ninety-one and 96/100 Dollars ($1,491.96) was a fair and reasonable value and that the said sum then and there became due and owing to claimant. It further appears from the record that an affidavit of the furnishing of said supplies was made by an authorized agent for claimant from said Ewing and in accordance with the statute in such case made and provided a copy thereof was served upon the then Auditor of Public Accounts, State Treasurer, Director of Finance and Assistant Director of the Department of Purchases and Construction of the State of Illinois, said service being on the 21st day of October, 1929. The stipulation further shows that on November 19, 1929, claimant filed its bill of complaint in the Superior Court of Cook County against Charles B. Ewing; that an order of default was entered against Charles B. Ewing on February 29, 1930 and said cause was referred to the Master-in-Chancery. On July 1.5, 1932 said cause was stricken from the docket of said court and was thereafter reinstated and a decree entered on the 1st day of November, 1933, in said cause whereby the sum of One Thousand Four Hundred Ninety-one and 96/100 Dollars ($1,491.96) was found to be due plaintiff for materials delivered to said Charles R. Ewing with the further sum of Three Hundred Eighteen and 28/100 Dollars ($318.28) interest and Seven and 55/100 Dollars ($7.55) stenographer’s charges, making a total of One Thousand Eight Hundred Seventeen and 79/100 Dollars ($1,817.79) for which judgment was rendered against said Charles R. Ewing; and said plaintiff being the claimant herein, was thereby given a lien against such portions of money, bonds and warrants appropriated for the construction of said Armory Building, against which no vouchers or other evidence of indebtedness had been issued to Ewing at the time of the service of the notice upon the several State officers as above referred to. The stipulation further recites that neither Charles R. Ewing or anyone in his behalf has been paid any part of the said sum; that subsequent to the decree above stated claimant attempted to effect a settlement of his claim but was advised that the appropriation covering the subject matter had lapsed.

From the foregoing it might appear that claimant was entitled to redress herein, but the stipulation further shows that Charles R. Ewing who held the contract with the State, defaulted under his contract under date of August 7, 1929 being two months prior to the service of Notice of Lien by claimant. No payments were made to Charles R. Ewing or anyone in his behalf but after his default negotiations were had with his bonding company and on September 10, 1929 a new contract with the Murphy Plumbing Company was awarded, therefore no money, bonds or warrants became due to Ewing. Claims and liens were filed against the Murphy Plumbing Company and the work was finally finished by G-ormley and Company with final payment made to them on September 1, 1931.

According to the stipulation herein the debt due claimant as a sub-contractor under Ewing, matured when final delivery of supplies was made by claimant on June 29, 1929. Counsel for claimant was notified on December 13,1933 by the Office of the Attorney General that the only place it might seek a remedy was in the State Court of Claims. Claimant had approximately six months thereafter during which a claim might have been filed within the statutory limitation period of five years, hut the claim was not filed until September 17, 1934. Both as a matter of jurisdiction and on the merits of the claim an award is denied and the claim dismissed.

Opinion on Rehearing.

Per Curiam:

After a careful consideration of the petition for rehearing filed in the above entitled case we find nothing therein that was not carefully considered by the court in its consideration of the original record herein.

The decision heretofore rendered in this cause is affirmed and the petition for rehearing denied.


author: Mr. Chief Justice Holherich

text:
    (No. 1783
    James H. Book, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1935.

    Frank G. Thompson, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holherich

delivered the opinion of the court:

Claimant filed his claim herein on the 30th day of June, A. D. 1931 for the recovery of compensation for personal injuries which he claims to have sustained on the 18th day of March, 1931, while employed as a keeper in charge of the furniture factory at Stateville Prison. It appears from the stipulation and the evidence in the record that on the last mentioned date claimant was severely beaten, kicked, trampled upon, and abused by some of the inmates at Stateville Prison in the course of a riot which occurred there on said date; that he was taken to the prison hospital and examined by the inmate doctor, and on the next day was examined by the prison physician; that he was also examined by his family physician, and some time thereafter a number of X-ray pictures- were taken.

He was laid up for several weeks and thereafter was assigned to work as keeper in charge of the hospital, which is lighter work than he previously performed, but received the same pay as he previously received. So far as the record indicates, he is still employed at the same employment and is receiving the same salary.

On account of the fact that he has continued in the same employment and at the same wages as he previously received, and on account of the fact that all doctor and hospital bills have been paid by the State, no claim is made for temporary total compensation, and no claim is made for medicinal, surgical or hospital services.

Claimant complains that he is still disabled and still suffers pain as the result of injuries sustained at the time of the riot; that he still suffers pain in the left side of the head, the left eye, and the left shoulder, as well as in the left side and spine extending up over the heart; that he has pain about the nose, has sinus trouble; that his breathing has been interfered with; that he has headaches constantly, etc.

Claimant’s right to compensation for the injuries so sustained by him, must be determined in accordance with the provisions of the Workmen’s Compensation Act of this State. Cahill’s Revised Statutes, 1933, Chapter 37, Paragraph 467, Section 6.

The Workmen’s Compensation Act provides compensation for injuries not resulting in death, as follows:

1. Necessary first aid, medical, surgical and hospital services.

2. For temporary total incapacity.

3. For serious and permanent disfigurement to the hand, head or face.

4. Partial permanent incapacity.

5. Compensation for specific injuries.

6. Complete disability.

The medical, surgical and hospital services have been furnished by the State; no claim is made for temporary total compensation; there is no serious or permanent disfigurement of the hand, head or face; there is no specific loss and it is not claimed that the claimant is completely and permanently disabled.

His claim for compensation, therefore, is limited to permanent partial disability. Section 8-d of the Compensation Act, which has reference to permanent partial incapacity, is as follows:

“If after the injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in Paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in Paragraphs (b) and (h) of this section, equal to 50 percentum of the difference between the average amount which he earned before the accident and the average amount which he is earning or able to earn in some suitable employment or business after the accident.”

Section B referred to in Section 8-D limits the total amount of compensation to the amount which would have been payable as a death benefit, in case the accident had resulted in the death of the injured employee; and Section H limits the period over which compensation may' be paid to eight years from the date of the accident.

Inasmuch as the claimant is still working for the same employer and earning the same amount now as he earned prior to the accident, there is no basis upon which a claim for compensation for partial permanent incapacity can be made at this time.

Notwithstanding that fact, it may be possible that claimant has sustained a permanent partial disability for which he will be able to establish a right to compensation at some future time within the time limited by the Compensation Act.

It is therefore ordered that an award be denied at this time, and that the case be continued on the docket for such further proceedings as may be in conformity with the provisions of the Workmen’s Compensation Act.


author: Mb. Chief Justice Hohlebich

text:
    (No. 2218
    O. L. Campbell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1935.

    Chipebeield & Chipebeield, for claimant.
    Otto Keenee, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hohlebich

delivered the opinion of the court:

Prior to and on the 4th day of March, A. D. 1933, claimant, Dr. O. L. Campbell, was licensed, veterinarian in the employ of the Department of Agriculture, Division of Animal Industry, and was engaged in the testing of cattle for tuberculosis. On the last mentioned date, claimant was working on the farm of John Stoll in Walker Township, Hancock County, and while attempting to tag an animal, showing that it had been tested for tuberculosis, was attacked by the animal and thrown against the fence or corral wall, and sustained injuries to his right hand, arm and shoulder, for which he claims compensation under the terms and provisions of the Workmen’s Compensation Act.

Respondent maintains that the work being done by claimant at the time of the accident was in its nature farm work and that the claimant therefore comes within the terms of the proviso contained in Paragraph eight (8) of Section three (3) of the Compensation Act which is as follows:

“Provided nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil or stock raising, or to those who rent, demise or lease land for any such purposes, or to anyone in their employ, or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered.”

The question here involved was considered by this court in the case of Grover Ewing vs. State, No. 2286, decided at the January, 1935 term of this court, in which the facts were practically identical with the facts in this case, and the same contentions were made by claimant and respondent.

In that case the court after fully considering the question, held that the claimant, at the time of the accident in question, was employed in “work done on a farm” within the meaning of those words as used in the aforementioned proviso, and therefore the injuries so sustained by him were not compensable.

We see no reason for departing from the rule laid down in the Ewing case and must therefore deny the claim. Award denied.


text:
    (Nos. 2259-2260-2261, consolidated
    Wood Hayes, No. 2259, Agnes Garza, No. 2260, John Dennison and Blanche Dennison, No. 2261, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1935.

    Kane, Scott & Lee and K. C. Konaeds, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

These three claims arose out of the same accident and have been consolidated for the purpose of the hearing. From the complaints it appears that Charles Garza, husband of claimant, Agnes Garza — Hubert Dennison, the son of claimants, John Dennison and Blanche Dennison — and Wood Hayes were working in a gravel pit near Equality, Illinois when a cave-in occurred, killing Charles Garza and Hubert Dennison, and injuring Wood Hayes.

A motion to dismiss these claims was filed by respondent and same was ordered to be considered with the case. The record discloses that Charles Garza, Hubert Dennison and Wood Hayes were residents of Gallatin County and were on the relief rolls of the Illinois Emergency Relief Commission for that county on October 3, 1933. The report of Orval P. Townshend, Civil Works Administrator for Gallatin County, appearing in the record discloses, that the work involved was for the improvement of the village streets of Equality, Illinois; that the men in question were under the direct supervision of Clarence Pemberton, City Marshal of Equality, and were not under any supervision of the State Highway Department. The statement of Mr. Pemberton, City Marshal, corroborates this, his evidence being that he was in charge of some men who were working out their village auto license fees and also some men who were working out their relief orders, among the latter being the men in question; that the latter were working out at the gravel pit, which he had inspected, and about which he found nothing to indicate the danger of a slide or cave-in. A report of the Division of Highways of the State of Illinois under date of April 2,1934 states that the work being done by these men was not a function of maintenance usually done by the State Highway Department, and that they were not engaged in maintenance work under the supervision of that department at the time of the accident; further, that the men were then working under the supervision of the City Marshal, Clarence Pemberton.

Counsel for claimants contend that the deceased and injured men should be treated as State employees within the meaning of the Workmen’s Compensation Act, and that the State of Illinois should therefore enter an award in these claims. The court is of the opinion that the men were not employees of the State of Illinois within the meaning of the Workmen’s Compensation Act and that this court has no authority to make an award in the premises.

Section 2 of the Illinois Emergency Relief Act approved February 6, 1932 provides—

“It shall be the duty of the Commission * * * to provide relief to residents of the State of Illinois who, by reason of unemployment or otherwise, are destitute and in necessitous circumstances. * * * For the purpose of carrying out the provisions of the Act the Commission is authorized to make use of and cooperate with counties, townships and other municipal corporations charged by law with the duty of poor relief.”

The Act in its wording, intent and effect was a beneficient and charitable one and the care which the State attempts to bestow thereby upon those in need of such aid is comparable to the beneficient and charitable work which the State accords to its unfortunate citizens in the various institutions of the State. There is no legal right on the part of the latter to an award from the State for injuries suffered while confined in such charitable institutions. Unless those whose injuries and death are the basis of the claims herein can be shown to have been employees of the State within the meaning of the Workmen’s Compensation Act this court is without authority to enter an award. The record discloses, as above stated, that they were not working on a State project, they were not under the supervision of the State Highway or any other State Department, but as shown by the testimony of the Civil Works Administrator for Gallatin County, the City Marshal of Equality, and the State Highway Department were, in fact, engaged in work for the improvement of the streets of the Village of Equality and were under the direct supervision of the City Marshal of that village. The fact that their names were carried upon the relief rolls of the Illinois Emergency Belief Commission did not in itself make these men employees of the State of Illinois.

The motion to dismiss each of these claims is allowed and the claims are accordingly dismissed.


author: Me. Chief Justice Hollerich

text:
    (No. 2088
    James Little, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1935.

    George E. Dodd, for claimant.

      Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed his complaint herein on March 13th, 1933 and alleges therein that on September 7th, 1932 he was in the employ of the State of Illinois “under the Illinois Emergency Relief Commission of Springfield, Illinois”; that on said date he was unloading cinders from a State truck on South Cherry Street in the City of West Frankfort, Illinois; that while he was in the act of throwing a large clinker or cinder from such truck, his foot slipped and he fell, thereby sustaining injuries, consisting of a rupture of an old incision in his side, and tearing loose two ligaments leading from the hip to the region of the groin; — for which injuries he claims damages.

The Attorney General has moved to dismiss the case for the reason that the complaint fails to show: (1) That notice of injury was given or claim for compensation made as required by the provisions of the Workmen’s Compensation Act; (2) That the respondent was in any way concerned with the cinders in question; (3) That the Illinois Emergency Relief Commission had no power to employ the claimant at or prior to the time of the injury.

It cannot be determined from the complaint whether the claimant bases his right of recovery on the Workmen’s Compensation Act, or whether he seeks to recover independently of such Act. However, unless he can recover under such Act, he cannot recover at all. The mere fact that the claimant sustained personal injuries while in the employ of the State, and in the performance of his duties, which is all that the complaint alleges, does not give him a right of action against the State, in the absence of a statute making the State liable therefor.

Paragraph six (6) of Section six (6) of the Court of Claims Law provides that the court shall have jurisdiction,

“To hear and determine the liability of the State for accidental injuries or death suffered in the course of employment by any employee of the State, such determination to be made in accordance with the rules prescribed in the Act commonly called the “Workmen’s Compensation Act,” the Industrial Commission being hereby relieved of any duty relative thereto.”

Consequently, if the claimant is entitled to an award in this case, it must be by virtue of the provisions of the Workmen’s Compensation Act, and in order to entitle him to an award under such Act, it is incumbent upon him to bring himself within the provisions of the Act.

The making of claim for compensation within the time required by Section twenty-four (24) of the Compensation Act is a condition precedent to the right to recover under such Act. Crabtree vs. State, 7 C. C. R. 207; Bushnell vs. Ind. Com., 276 Ill. 262; Hailselden vs. Ind. Board, 275 Ill. 114; Inland Rubber Co. vs. Ind. Com., 309 Ill. 43; City of Rochelle vs. Ind. Com., 332 Ill. 386.

The complaint fails to show that notice of the accident was given or claim for compensation made within the time required by Section 24 of the Compensation Act, and consequently the same is fatally defective in that regard.

It therefore becomes unnecessary to consider the other reasons urged by the Attorney General for the dismissal of the ease.

For the reasons hereinbefore set forth, the motion of the Attorney General must be sustained. Under the rules the claimant has thirty (30) days in which to file an amended complaint. Unless an amended complaint showing a right of action against the respondent is filed within thirty (30) days from the date of the entry of this order, final judgment will be entered dismissing the claim.


author:
      Mr. Justice Yantis
      Per Curiam:

text:
    (No. 2558
    Standard Oil Co. (Indiana), Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 10, 1935.

      Rehearing denied December 11, 1935.

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

delivered the opinion of the court:

Claimant seeks to recover Seven Hundred Forty-three and 30/100 Dollars ($743.30) claimed to have been expended in rebuilding a concrete platform and re-setting the equipment of a filling station, incident to the improvement of a section of S. B. I. No. 4 near Joliet in Will County, Illinois.

A stipulation of facts has been filed herein whereby it appears that claimant was at the time of the alleged damage and is now the owner in fee simple of a certain tract of real estate in Will County, Illinois which is improved with a building, concrete floor and other necessary equipment for the conducting of a retail gasoline station; that some years ago the State of Illinois improved the S. B. I. road known as Route No. 4 upon, along and in front of the premises owned by claimant at the intersection of what is known as Smith Street and Broadway, by constructing thereon a twenty foot concrete roadway, and that the station of claimant was improved to conform with the grade of said Broadway and said Smith Street; that during the months of July and August, 1934 the State of Illinois acting by and through the Department of Public Works and Buildings again improved said road in front of claimant’s premises by the widening of said concrete roadway to forty feet, and in so doing reconstructed said roadway and lowered the grade thereof about eighteen inches and the roadway of Smith Street in front of said premises about one foot, as a result of which, access to said gasoline station was destroyed, and in order to make it available for further use as a gas station it became necessary to and' the claimant did, in fact, lower the concrete area and its equipment to conform with the new grade, and in so doing necessarily paid out Seven Hundred Forty-three and 30/100 Dollars ($743.30). The stipulation concludes that it is executed for the purpose of avoiding the necessity of taking evidence, and that if conclusions are included therein same are not intended to be binding upon the parties or the court.

It appears from the entire record that while the location of the property in question is stated to be at the intersection of Smith Street and Broadway, the property in fact is not within the corporate limits of any city, but is located near Joliet in Will County, Illinois. It further appears that when the forty foot pavement was laid by the State a strip of approximately ten feet additional concrete slab was laid by the State between the outer edge of the forty foot slab and the concrete area that was later replaced and re-built by claimant. In addition to this the State re-laid a strip of concrete 38' x 16½' at the north end of claimant’s property and replaced a fifteen inch drain tile in said area. It is apparent that the State went to considerable effort and expense to remove any damage which claimant might have suffered in the access ability of its property by reason of the new construction work at said point, and the record does not sufficiently show the necessity for the work by plaintiff for which reimbursement is now sought, or the damage to plaintiff’s property which occasioned same.

While the record discloses that after the State made a very material improvement at the corner in question, plaintiff also expended the sum of Seven Hundred Forty-three and 30/100 Dollars ($743.30), there is no proof in the record as to the decrease in the value of claimant’s property from the construction of the new pavement. Because of the failure of the record to preponderate in claimant’s favor as to damages being sustained, the claim is hereby dismissed.

Opinion on Rehearing.

Per Curiam:

The court having re-examined the record in this case and having duly considered the petition for rehearing filed herein finds there is no sufficient matter to authorize a rehearing of said cause and the petition for rehearing is hereby denied.


author: Mb. Chief Justice Hollerich

text:
    (No. 2529
    Joe Boner and Harrison Boner, Co-partners, Doing Business as Boner Brothers, Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    B. R. Dial, for claimant.
    Otto Keener., Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Claimants allege in their complaint that they are the owners of a certain Dodge truck; that on February 28th, 1934, about two o’clock P. M., said truck was being driven by their servant and agent in an easterly direction on S. B. I. Route No. 13, near the Village of Crab Orchard in Williamson County, at a speed of about twenty-five miles per hour; that at the same time and place one of the employees of the respondent was operating a certain snow plow owned by the respondent; that as the result of the carelessness and negligence of the employee of the respondent in charge of such snow plow, the same struck and collided with the truck of the claimants, whereby the same was damaged to the extent of $215.45, for which amount claimants ask an award.

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

The same question was presented in the case of George McGready, et al. vs. State, No. 2604, decided at the present term of this court, and in that case we held that the motion to dismiss should be allowed.

For the reasons set forth in the McGready case, the motion of the Attorney General to dismiss is allowed. Case dismissed.


text:
    (No. 2634
    Charles M. Bridis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    B. W. Harris, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks an award of Two Thousand Six Hundred Fifty Dollars ($2,650.00) for land owned by him taken and/or damaged in the course of the construction of a State Aid Boad in Williamson County, Illinois.

Complaint recites that condemnation proceedings were duly had in the County Court of Williamson County wherein a portion of the lands in question were condemned for the purpose of being used in the construction of said road, for which an allowance of Four Hundred Dollars ($400.00) for damages was made by the jury in said cause; and a further allowance of Three Hundred Dollars ($300.00) being therein by them made for damages to premises adjoining said tract known as Parcel No. 6.

The complaint further recites that a motion by claimant for a new trial was overruled and exception noted, judgment entered and the verdict approved on the 19th day of July, 1934; that pursuant to the orders entered therein the said sum of Seven Hundred Dollars ($700.00) has been paid to Clara A. Biley as administratrix of the estate of Mary A. Isley, deceased, the latter being the holder of a mortgage upon said premises. Claimant now contends that he was underpaid for the lands taken in said proceeding and for the lands damaged by said construction, and that said lands have been taken and damaged for public use without just compensation.

The Attorney General on behalf of respondent has filed a motion to dismiss the claim for the reason that said cause has heretofore been adjudicated in a court of general jurisdiction.

Claimant, in his reply brief, concedes that the contention of respondent is true as a matter of law, but urges that an award be allowed “under the°rule of equity and good conscience. ’ ’

Complaint is made in the pleadings that the jury in the County Court of Williamson County was prejudiced against claimant because it was represented to them by the States Attorney, in his final argument, that claimant is a foreigner and not naturalized. The trial court was in a position to consider the remarks of counsel and the trial evidence in the case. Plaintiff therein had his right of appeal. We must accord to the decision of the County Court the strength due to the judgment of a tribunal properly appointed by law for the determination of the matter involved.

“The Court of Claims will not take jurisdiction where the claimant has a remedy in law or in equity in courts of general jurisdiction and will not review the acts and conduct of courts of general jurisdiction.”
The Michigan Central R. R. Co. et al., vs. State, 7 C. C. R. 133.

The motion to dismiss is allowed and the claim dismissed.


text:
    (No. 2414
    Neil C. Crafton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

      Rehearing denied November 12, 1935.

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

delivered the opinion of the court:

The complaint herein alleges that some time prior to August 23, 1930 claimant was employed in the Division of State Fair,.Department of Agriculture, as a teamster; that on that date while lifting a track harrow, he received a double hernia; that as a result of said accidént he was unable to work from the date of injury to the date complaint was filed, i. e. June 21, 1934; that respondent had notice of said injury within thirty days thereafter and that demand for compensation was made within six months;, further that wages in lieu of compensation were paid from November 15, 1930 to May 14, 1933. An award for an indefinite amount is sought in the petition but in the proof and arguments counsel asks for an allowance of at least Two Thousand Two Hundred Twenty-seven and 50/100 Dollars ($2,227.50.) As above indicated, the complaint fails to allege that notice of injury was given to the employer within fifteen days, but the proof indicates that the State in fact had notice within that time.

The material objection however to further consideration of the claim by this court appears from the fact that an operation was had by claimant in September, 1930 for relief from the hernia complained of, after which he was again given employment by the State as a watchman at a salary varying from Seventy-five Dollars ($75.00) to One Hundred Dollars ($100.00) per month until May 14,1933 when he was laid off, and at which time he was given vacation pay until May 31, 1933. Claimant testified that a further operation became necessary in the summer of 1934 for the further relief of the double hernia with which he was suffering, but states in his complaint that all doctor and hospital bills have been paid to date and no claim for either of such items is involved herein.

Section 24 of the Workmen’s Compensation Act provides as follows:

“In any case unless application for compensation is filed with the Industrial Commission within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file such application will be barred.”

As stated by Angerstein, Section 587 the rule has been clearly defined that where no compensation has been paid the time within which the claim must be filed dates from the injury. When compensation has been paid the time dates from the actual date of the last payment. This period of one year is a definite limitation and where the application is not filed within that time the claim is absolutely barred.

Claimant and his counsel in some instances speak of the money that was paid to claimant following his injury in 1930 as “wages.” At other times they contend such payments were made as “compensation.” Regardless of whether the payments are treated as one or the other, the fact remains that his employment ceased on May 14, 1933, with a further vacation allowance to May 31, 1933. As no claim was filed herein until June 21, 1934 the record fails to warrant an award and the claim is therefore denied.

Opinion on Rehearing.

Per Curiam:

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

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


author: Me. Justice Yantis

text:
    (No. 2394
    L. G. England, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 11, 1935.

    C. J. Ahern and C. J. Ahern, Jr., for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant herein seeks to recover damages to his automobile and for injuries to his person, occasioned by a collision between the automobile owned and driven by claimant, and an automobile owned by the State of Illinois, and then and there operated by one Sue Fischer, an employee of the State in the Department of Conservation, it being alleged that such collision was the result of the careless, negligent and wrongful driving of the said State employee, while engaged in the performance of her duties.

The Attorney General has filed a motion to dismiss the claim for the reason that no right to an award is set forth in the complaint.

As suggested by the Attorney General:

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

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

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

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