author: Eckert, C. J..

text:
    (No. 3290
    Hartmann-Clark Bros. Company, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

      Petition of Claimant for rehearing denied December 18, 1947.

    Dent, Weichelt and Hampton; Hodges and Tragethon, and E. V. Champion, for Claimant.

      George F. Barrett, Attorney General; Glenn A. Trevor, William L. Morgan,- William J. Colohan, Assistant Attorneys General, for Respondent.
   Eckert, C. J..

During the year 1982, claimant, a general building contractor, having its principal office at Peoria, Illinois, entered into a series of nine contracts with the State of Illinois, for the construction of certain concrete highways. Under the terms of these contracts the respondent agreed to furnish the necessary cement. Claimant thereafter began work, supplying, transporting, and installing the necessary machinery, tools and equipment- at the situs of the work; securing workmen and laborers, and perfecting an organization in connection with each contract until it was forced to suspend operations because of respondent’s failure to supply cement. Claimant alleges that this failure interrupted and delayed the prosecution of claimant’s work; that it prevented claimant from completing its work in an orderly, usual, and economical manner, and in sequence; that it caused claimant ’s men and equipment to remain idle; and that it compelled claimant to pay an increased cost of gasoline, materials and labor. The total damages claimed are in the amount of $137,649.92.

The contracts provided that the work be done according to the Standard Specifications for Road and Bridge Construction of the Division of Hig'hways, adopted January 2, 1932. Work was begun on six of the contracts in the fall of 1932, and was suspended in November and .December when all work was shut down for the winter season. During the month of February, 1933, respondent notified claimant to file requisition for cement requirements on this projects not later than March 1st, and claimant accordingly thereafter filed requisitions for cement, requesting delivery by April 10th to April 14th. Claimant was ready to proceed with the paving work at that time, and in two instances two adjoining contracts were to be worked with the same paving units and equipment. The cement, however, was not made available to claimant when requested, and was not furnished until the 26th of June for three contracts. not until the 28th of June for three other contracts, and not until the 7th of July for two contracts.

From the time claimant was ready to proceed with the paving, until the cement was available, all of claimant’s equipment and organization were idle. Continued requests were made of the respondent during that period, and conferences were had between claimant and the Division of Highways. Claimant alleges that as a result of respondent’s failure to furnish cement as and when requested, claimant’s equipment and organization remained idle a total of 310 days. The fair rental value of this equipment, based upon the schedule of Equip7 ment Ownership Expense, published by the Associated G-eneral Contractors of America, would be $63,990.34.

Another element of damage alleged by claimant is general overhead amounting to $38,753.10. This amount was determined by computing its overhead for the year 1933, which, based on an eight month construction season, amounted to $15,001.75 per month. This was divided among four paving units, amounting to $3,750.44 per unit, or a total expense of $125.01 per. paving unit per day.

Claimant also alleges a loss of profits which it contends it could have earned during the period of idleness. This was found by taking the average profit for the preceding six years, which, based on an eight month construction season, and allocated to four units, amounted to $53.39 per day per unit, or a total of $16,550.90.

Other damages sought by the claimant consist of the following items:

Transporting paving unit to Altamont, Illinois, at the direction of respondent........................................$ 884.21
Maintaining night watchman............................... 124.61
Moving paving unit to Marshall County...........,......... 1,628.14
Rented equipment idle from April 14th to June 20th, 1933.... 3,666.89
Maintaining skeleton crew during delay..................... 2,022.61
Cost of cleaning brick...................................... 209.04
Equipment rental, R. Balton during delay.................. 2,557.20
Increased cost of labor-wage scale........................... 2,659.74
Increased cost of gasoline................................... 2,645.86
Increased cost of paving due to winter operations........... 424.90
Cost of straw curing method made necessary due to delay in furnishing cement ....................................... 972.57
817,795.77

In its answer, the respondent has alleged that during January 1933, “as a result of the persistent collusion by cement producers and others to impose exorbitant prices for cement and to induce and cause collusive bidding,” respondent by “executive order” refused to accept bids on cement; that it was not until June 15, 1933, that the respondent was able to procure cement through competitive bidding; that the conspiracy and collusion by cement producers and others prevented the State from obtaining and delivering cement to the claimant; and that the State of Illinois, as a sovereign commonwealth, is not liable to claimant in damages for any delay caused by such executive order, or its failure to deliver cement to claimant during the periods complained of.

The claimant contends, however, that the respondent - presented no evidence of any “collusion” or “conspiracy”, and presented no evidence that the respondent was prevented from delivering cement to claimant during this period. Claimant contends that the evidence shows that there was abundant cement in the market; that the companies were overstocked; that the price of bids was fair and in line with the then commercial market; and that the bids protected the State against any increase during the year.

At the hearing before Commissioner Blumenthal, Robert Kingery, former Assistant and Acting Director of the Department of Public Works and Buildings, testifying on behalf of the respondent, stated that on January 20, 1933 the respondent advertised for bids returnable February 27th; that seventeen companies submitted bids, and that the bids received were uniform at an average statewide bid of $1.62 per barrel at point of delivery; that he had a conference with Mr. Lieberman and, Mr. Hathaway, Engineer of Construction, to discuss what action should be taken; that it was agreed that they would reject the bids, but took the matter up with Governor Horner; that he told the Governor at that conference that the bids were 68c per barrel higher than the bids in 1932, but that during the preceding year there had been what was known as a “ cement war, ’ ’ and that the companies bidding in 1932 had bid prices which were, in his judgment, lower than the cost of cement; that he thought a fair price might be somewhat over $1.25 per barrel, but considered $1.62 out of line; that the Governor asked what his recommendation was, and that he recommended the bids be rejected and that the Governor told him to reject “those bids.” Accordingly, he rejected the bids, and advertised for new bids, returnable March 27th, 1933.

The new bids were likewise $1.62 per barrel, and were again uniform. The same procedure was followed, and the bids were again rejected. It.was then decided to advertise for bids for cement f.o.b. at the factory, returnable April 12th, 1933. The same bids were received as those for delivery at destination. Another conference was had with the Governor, and he directed these last bids be rejected as they were irregular. This was done.

Thereafter, Mr. ICingery arranged with three professors of the University of Illinois to make a study of the cement situation. They visited cement plants in Pennsylvania, Indiana and Illinois, and with the full cooperation of the cement companies, obtained factual records for a report to the Governor as to the cost of manufacturing cement. About June 15th or 16th, the respondent contracted for the purchase of cement with the Marquette Cement Company, at a price, Mr. Kingery testified, that was lower than the previous bids, and was for less than two-thirds of the required amount.

The record contains evidence as to the cost per barrel of cement to the state each year from 1919 to 1933, and considerable evidence as to conditions “in the cement market during the years 1932 and 1933. ' This evidence, obviously, was intended to indicate that the action of the Department of Public Works and Buildings, and the action of Governor Horner, were warranted by the facts. Neither the wisdom of the Governor, nor the wisdom of the Acting Director, however, is for determination by this court. It is neither necessary nor proper to question the judgment of the Governor or of the Acting Director ; no suspicion of bad faith on the part of either state officer is suggested by the record.

It is likewise clear that claimant was guilty of no default or breach, and was ready, willing and able to complete performance of its contracts; that it was unreasonably delayed in so doing by failure of the State to perform. When a claimant thus sustains a loss through no fault of its own, but occasioned solely by the State, the State is liable for the actual damages sustained. (The Strandberg Brothers Company, A Corporation, vs. State of Illinois, 8 C.C.B. 87; The Carson-Payson Company vs. State of Illinois, 8 C.C.B. 581; Willadsen, et al. vs. State of Illinois, 8 C.C.B. 604; Belding vs. State of Illinois, 12 C.C.R. 438.)

The respondent contends, however, that when the State, in the interests of the general public, delays the furnishing of cement because it believes that cement contractors are demanding excessive prices, it is justified upon the grounds of public policy, acts within its sovereign rights, and is not liable for damages resulting from such delay. This defense rests upon the principle that the rights of the general public must prevail over any rights of an individual, and was stated by this court in the cases of J. P. O’Keefe Company vs. State of Illinois, 10 C.C.R. 480, and Madison Construction Company vs. State of Illinois, 11 C.C.R. 64.

The claim in the O’Keefe case was in three parts: the first item ivas for additional compensation for stone excavation; the second item was for delay caused by the failure of a private corporation to furnish and maintain adequate equipment; and the third item was for delay in furnishing cement. The delay in furnishing cement in that case arose out of the same facts as the delay in this case. The court there said: “It was a matter of common knowledge that the cement producers were demanding exorbitant prices from the State for cement. The people of the State of Illinois were vitally interested. It might well be assumed that cement manufacturers knew that the State had agreed to furnish cement to numerous contractors, and that contracts were then in existence for public improvements which the State, had éntered into. It also might well be assumed that the public officials of the State of Illinois, through its Chief Executive, the Governor of the State of Illinois, rightfully felt that the action of the cement manufacturers or dealers was such as to make those public improvements so costly as to be prohibitive and against' public policy,”

The court then discussed the meaning of “public policy”, and concluded that: “The exorbitant price demanded by cement manufacturers affected the whole State of Illinois, and it must be conceded that such action was injurious to the public. This claim for damages arising from the fact that the State could not furnish cement must be denied on the grounds of public policy.

“It may be contended that in repudiating any liability on behalf of the State for its failure to furnish cement under the circumstances in this case is an unconscionable act. The answer to this is that in a situation of this kind the interest of the public, rather than the equitable standing of individual parties, is of determining importance, and we base our opinion upon principles of public policy and to conserve the public welfare. ’ ’

The claimant here, however, contends that although it is clear that O’Keefe was not entitled to recover for delay in furnishing cement, because of his own default, this court, in its opinion, went further than was necessary, and commented upon matters not raised by the pleadings or broug'ht out by the evidence. Claimant contends that that part of the decision which discusses the State’s failure to supply cement is obiter dicta. A careful redding of the opinion, however, indicates that the liability of the respondent for failure to furnish cement was clearly at issue, and that the liability of the respondent was denied by the court on the ground that the respondent acted within its sovereign rights when it delayed the furnishing of the cement in the interests of the general public.

The Madison Construction Company case is likewise in point. Under the contract in that case the State was to furnish the cement necessary for the improvement in question; upon completion of all necessary preliminary work the claimant requested the respondent to furnish cement in accordance with the contract; the respondent authorized the claimant to procure the necessary cement, but subsequently withdrew its authorization, so that the claimant was compelled to suspend operations from April 27, 1933 to June 27, 1933. An award was denied on the ground that claimant, by accepting final payment had released the respondent from all claim for damages. A rehearing was granted, and in the opinion on rehearing the court followed the decision of the O’Keefe ease.

The court there said: “It appears from the record in this case that the State had entered into a contract with the claimant at a time- when the price of cement was satisfactory to all concerned, and as we understand it, it is common practice to let contracts of this character at various seasons of the year, and at times when the' contract is not to be performed for several months. The questions here presented are of much importance for those reasons. The exorbitant prices demanded by cement manufacturers affected the whole State of Illinois. This claim for damages arising from the fact that the State could not furnish cement could, therefore, be denied on the grounds of public policy.”

After discussing cases in which the rights and duties of a sovereign were involved, the court said: “Basing our conclusions on the language of the Supreme Court of the United States in the Horowitz case, supra, (Horowitz vs. United States, 267 U. S. 458, 69 L. Ed. 736), we must hold that when the State of Illinois is sued as a contractor on a contract entered into by the Highway Department, it can not be held liable for an obstruction to the performance of a particular ¿ontract, resulting from its public and general acts as a sovereign. ’ ’ The claim was accordingly denied.

Claimant, however, contends that the O’Keefe case and the Madison Construction Company case, if in point, should be overruled; that the decisions in those cases are erroneous because there as here, there was no proclamation or executive order. It is true, there was no formal written order or proclamation by the Governor, but it is equally true that the Governor ordered the Director of the Department of Public Works and Buildings to reject bids, and that pursuant to such direction the bids were rejected. The mere existence or absence of a formal document is certainly not the test for determining the validity of the official action. If such act of the official in whom was vested the supreme executive power of the State was authorized, it is immaterial whether it was written or verbal in the absence of a constitutional or legislative provision prescribing documentary authentication.

But claimant, further contends that even if such executive order had been issued, the Governor was without any legal power or authority to take such action and thereby impair the contractual obligation in violation of Art. II, Sec. 14 of the Constitution of Illinois, or thus to deprive claimant of his contractual rights without due process of law in contravention of the Fifth Amendment to the Constitution of the United States.

The legal principle set forth in the Horowitz case, supra, is the answer to this contention. It is there stated: “It follows, therefore, that when the United States appears as a contractor it cannot be held liable for an obstruction to the performance1 of its contract resulting from its public and general acts as sovereign whether legislative or executive.”

It follows, therefore, that the question in this case, as in the O’Keefe case and the Madison Construction Company case is whether or not the act of the Governor, in directing the then acting Director of Public Works and Buildings to reject the bids for cement, under the circumstances disclosed by the record, was an official, public, general and authorized' act of the Governor as the head of the Executive Department of our State Government. The O’Keefe and the Madison Construction Company cases clearly hold that it was' such an official act, an act performed for the public welfare which precludes the claimant from recovering notwithstanding the fact that he suffered damage.

Furthermore the statutes of the State of Illinois (Ch. 121, Sec. 30, Ill. Rev. Statutes 1945) provide that the Department of Public Works and Buildings “may reject any or all proposals, and may at once advertise for new proposals as hereinbefore provided, if in its opinion the best interests of the State will thereby be promoted.” The Department of'Public Works and Buildings is established by legislative enactment; its Director is appointed by the Governor; it is essentially a division or arm of the Executive Department. Article V, Section 6, of the Illinois Constitution provides that the supreme executive power shall be vested in the Governor, “who shall take care that the laws be faithfully executed.”

When the Director of Department of Public Works and Buildings, after conference with the Governor, and presentation of the facts in relation to the bids received in February and March, 1933, recommended the rejection of such bids, and the Governor directed him to reject the same, the Governor, was discharging his constitutional duties in the enforcement of this statute.

The validity and the propriety of the Governor’s action is not to be tested by anything more than the facts then confronting him. Subsequent events or judicial determination of the innocence or culpability of cement manufacturers does not constitute the criterion as to the legality for his action. The Federal Trade Commission later did make a finding that the cement manufacturers in question were guilty of a conspiracy, and although the Circuit Court of Appeals subsequently reversed that finding, a perusal of the opinion in that case reveals the complexity of the’ problem involved. The accuracy of this observation is further confirmed by the Supreme Court in issuing its writ of certiorari to review that record. Obviously the Governor can not be required to act with judicial deliberation and exactitude under such circumstances. This court is not called upon in this case to pass upon the merits of the controversy involving the cement producers. The Governor at the time acted within his constitutional power in rejecting proposals to promote the best interest of the State, as he saw it, in good faith.

Despite the persuasive and extensive briefs and arguments, and despite the urging of claimants that the O’Keefe and the Madison Construction Company cases are not controlling here, and if controlling should be overruled, this court is of the opinion that the principle followed in those cases is correct. The decisions in those cases are reaffirmed, and found to be controlling here.

Although we have discussed at considerable length the applicability of the O’Keefe and the Madison Construction cases, aside from the principle of those cases, and aside from any question of the power of the sovereign to act as in this case, an award would not be possible. The contracts in question contained the Standard Specifications for Road and Bridge Construction of the Division of Highways, adopted January 2, 1932. Section 6.6 of those Specifications states: “The Department will furnish the portland cement.” Section 6.6 (a) (3) states: “The Department assumes no responsibility for the delivery of the cement at the time desired, nor will extra compensation be allowed the Contractor for the non-delivery of the same when required.” In Section 4.3 of the specifications, the Department reserves the right to alter the quantities of work to be performed or to extend or shorten the work, provided the total price for all such alterations, extensions, or deductions does not exceed 25% of the original contract price. In Section 4.4 the Department also reserves the right to make such changes in the plans and in the character of the work as may be necessary or desirable to insure completion in the most satisfactory manner, provided such changes do not materially alter the original plans and specifications.

The case of U. S. v. Foley, U. S. 91 L. ed. 135, reached the Supreme Court on certiorari to review a judgment against the Federal Government upon a claim by an electrical contractor for damages occasioned by delay in making available certain airport runways upon which his work was to be done. The majority opinion in that case reversed the Court of Claims, and much of what was said in that opinion is applicable to the contractual provisions above quoted. The Supreme Court there said:

“In no single word, clause, or sentence in the contract does the Government expressly covenant to make the runways available to respondent at any particular time. Cf. United States v. Blair, 321 U. S. 730, 733, 734, 88 L. Ed. 1039, 1042, 1043, 64 S. Ct. 820. It is suggested that the obligation of respondent to complete the job in 120 days can he inverted into a promise by the Government not to cause performance to be delayed beyond that time by its negligence. But even if this provision standing alone could be stretched to mean that the Government obligated itself to exercise the highest degree of diligence and the utmost good faith in efforts to make the runways promptly available, the facts of this case would show no breach of such an undertaking. For the Court of Claims found that the Government’s representatives did this work ‘with great, if not unusual, diligence,’ and that ‘no fault is or can be attributed to them.’ Consequently, the Government cannot be held liable unless the contract can be interpreted to imply an unqualified warranty to make the runways promptly available.
“We can find no such warranty if we are to be consistent with our Crook and Rice decisions (WS) supra. The pertinent provisions in the instant contract are, in every respect here material, substantially the same as those which were held in the former cases to impose no obligation on the Government to pay damages for delay. Here, as in the former cases, there are several contract provisions which showed that the parties not only anticipated that the Government might not finish its work as originally planned, but also provided in advance to protect the contractor from the consequences of such governmental delay, should it occur. The contract reserved a governmental right to make changes in the work which might cause interruption and delay, required respondent to coordinate his work with the other work being done on the site, and clearly contemplated that he would take up his work in the runway sections as they were intermittently completed and paved.”

Even if it may be said that the provision of Section 6.6 (a) (3), absolving respondent of any responsibility for non-delivery of cement when required, contemplated only delays by the mill or in transportation, there is no express provision elsewhere in the specifications whereby the Department covenanted or warranted to furnish the cement at any particular time. In the absence of any such express warranty, and in view of Sec. 6.6 (a) (3), and the other quoted provisions, which contemplated the possibility of delays on the part of respondent, the situation disclosed by this record invokes the rule enunciated in the Foley case and precludes claimant from an award.

For the reasons stated, the claim is, therefore, denied. ' ■


source: Caselaw Access Project

author: Damron, J.

license: Public Domain

text:
    (No. 3944
    Myrtle H. Heller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

      Petition of claimant for rehearing denied December 18, 1947.

    Sewell and Petty, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Damron, J.

This claim is brought by Myrtle H. Heller for benefits under Section 7, paragraph (c) of the Workmen’s Compensation Act. The record consists of the complaint, departmental report, motion of claimant for an extension of time, transcript of evidence, reporter’s bill, abstract of evidence, brief of', claimant, brief • and argument of respondent, and claimant’s reply brief.

The record discloses that claimant’s mother, Anna Gertz, was employed for a number of years as a cook at the Chicago State Hospital and in the early morning of January 29, 1945, she attempted to light a gas stove in said institution. The explosion which followed caused the door to blow open which struck her on the top of her legs between the knees and the hips. Mrs. Gertz was given first aid at the hospital by Doctor Cohen and was hospitalized at the institution for several days and on February 16, 1945, she died.

This claimant., Myrtle H. Heller, was also employed in this Chicago State Hospital, receiving a salary of $85.00 per month and $20.00 per month for maintenance. The testimony of claimant discloses that she lived in her mother’s house with her invalid husband and that her mother lived in the Chicago State Hospital. That while the .claimant and her husband occupied her mother’s house, the mother made no charge for rent and also periodically assisted her in other expenses of the household.

This claim is based primarily on the help that was given to claimant by her mother during her lifetime inasmuch as the claimant testified she could not wholly support her husband on the salary she was making.

Evidence further discloses that the invalid husband died a short time after claimánt’s mother died.

G-enerally speaking, the question of partial dependency is one of fact. Those dependent upon an employee killed by an accidental injury sustained while in the course of and arising out of his employment, belong to a class entitled to compensation. Sec. 7(c).

The right to relief is purely statutory. If the condition or relation authorizing an award of compensation does not exist, the award as a matter of law, cannot be sustained. One claiming an award as a dependent on another, must show by the evidence that she was sustained by or relied for support on the aid of the other, or looked to her for support and relied on her for reasonable necessaries consistent with the dependent’s position in life, Alden Coal Co. vs. Industrial Commission, 293 Ill. 597, and that she was to a substantial degree supported by the employee at the time of her death. Pratt Co. vs. In dustrial Commission, 293 Ill. 367; Keller vs. Industrial Commission, 291 id 314; Peabody Coal Co. vs. Industrial Commission, 311 id 338; Lederer Co. vs. Industrial Commission, 321 id 563.

The evidence of claimant fails to disclose legal liability on the part of her mother to support her and we must construe her evidence as showing that her mother made voluntary contributions periodically which in no sense can be construed as partial dependency or a legal liability on the part of her mother to support claimant’s invalid husband.

It is well settled in law that a mere showing of parentage or lineal relationship raises no presumption of dependency but whether there is dependency under paragraph (c) of the Act is a question of fact to be established by the claimant. Wedron Silica Co. vs. Industrial Commission, 312 Ill. 118;, Peterson vs. Industrial Commission, 315 id 199. The word “dependency” implies a present existing relation between two persons, where one is sustained by another or looks to or relies on the aid of another for support or for reasonable necessaries consistent with the dependent’s position in life. Wasson Coal Company vs. Industrial Commission, 312 Ill. 241. The test is whether the contributions were relied upon by the claimant for her means of living judging by her position in life, and whether she was to a substantial degree supported by the employee at the time of the latter’s death. General Construction Company vs. Industrial Commission, 314 Ill. 58; Peabody Coal Company vs. Industrial Commission supra; Pratt Company vs. Industrial Commission supra.

An award must be based upon facts and evidence and cannot rest upon conjecture, speculation, or surmise. The evidence does not establish the claimant’s partial dependency upon the earnings of the deceased.

The Attorney General contends that there is no dependency shown by this evidence and we agree with this contention.

The claimant having failed to establish, by the evidence that she is entitled to an award, her complaint must be dismissed.

Award denied.

A. M. Rothbart, Court Reporter, has filed a bill for reporter services in this case in the sum of $51.00 supported by affidavit. The bill appears reasonable for the services rendered and is hereby allowed.

Award is hereby rendered in favor of A. M. Rothbart in the sum of $51.00.


author: Bergstrom, J.

text:
    (No. 4017
    Kathryn S. Clark, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1947.

      Petition of Claimant for rehearing denied December 18, 1947.

    Claimant, pro se.

    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Kathryn S. Clark, who filed her claim April 2, 1947 for payment of medical and hospital bills under the provisions of the Workmen’s Compensation Act, was employed by respondent in the Department of Public Aid Commission, Division of Standards and Services.

The record consists of the Complaint, Departmental Report, Stipulation, and Waivers of Brief and Argument by Claimant and Respondent.

Claimant was qualified as Visitor I, and her duties consisted of investigating and determining original and continued eligibility of applicants for various types of public assistance; interviewing applicants, their relatives, and others in connection with investigations and case services, checking various public records, and other information; preparing complete written reports covering case information; preparing assistance budgets according to established policies and recommending assistance awards; interpreting public aid progress to applicants, recipients and other persons and agencies in the community. Her duties required her to travel by automobile and by various forms of public transportation.

On September 25, 1945 claimant, in the performance of her duties, made a visit to the home of Mrs. Effie Bell "Warden, an Old Age Pension recipient, in Noble, Illinois, and after completing her visit and while leaving the premises, she slipped on the board walk leading from the home of Mrs. Warden to the sidewalk, breaking her left leg at the ankle. Immediately thereafter she was taken to the Olney Sanitarium,. Olney, Illinois, for medical attention and treatment.

Claimant and respondent were operating under the provisions of the Workmen’s Compensation Act, and we find that claimant’s injuries were sustained through an accident arising out of and in the course of her employment by respondent.

The record shows that claimant was employed July 2,1945 and was paid the sum of $378.15 for services rendered to September 25, 1945 — the date of her incapacity. The record also shows that she was absent from work from the date of her injury, September 25, 1945, to March 31, 1946, and that she recéived full salary for this period of her total temporary disability.

Under the provisions of the Workmen’s Compensation Act, claimant has obviously been overpaid for this period of her total temporary disability, but • from the record we are unable to determine the amount she received in salary covering this period, nor does it show the annual earnings which persons of the same class and the same employment as hers received from the Department, as provided in Section 10, Paragraph C of the Act. However, as this claim must be denied for the reasons hereinafter stated, these facts which would otherwise be pertinent, need not be considered.

The only claim made by claimant is for payment of medical care and attendance incurred by her as a result of this injury, namely, $167.50 to Dr. Frank C. Weber, Olney, Illinois, and the sum of $386.95 to The Olney Sanitarium, Inc., Olney, Illinois, for services rendered from September 25, 1945 to July 19, 1946. Claimant was permitted to secure such medical services with the full approval of respondent.

The record shows that claimant was injured on September 25, 1945, and received full salary to March .31, 1946, which was over one year prior to the filing of her complaint on April 2, 1947.

Section 24 of the Workmen’s Compensation Act provides that claim must be filed within one year after the date of the accident where no compensation has been paid, or within one year after the date of last payment of compensation where any has been paid. It has been repeatedly held by this Court, and the Supreme Court, that the making of claim for compensation and filing application therefor within the time fixed by Section 24 of the Workmen’s Compensation Act, is a condition precedent without which the Court of Claims does not have jurisdiction to enter an award. As this claim was filed over a year after the accident or the payment of any compensation, it must be denied.

The claim is therefore denied.


author: Eckert, C. J.

text:
    (No. 4024
    James Wilson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1947.

    Cassidy, Sloan and Crutcher, for Claimant.
    George F. Barrett, Attorney General; and C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On June 25th, 1946, the claimant, James Wilson, an employee of the respondent in the Department of Public Welfare, while driving a tractor from the Peoria State Hospital to the gardens of the institution, and while crossing a driveway, was struck by an approaching automobile. Immediately after the accident, he was taken to the Peoria State Hospital where he received medical care for a period of five months. He was then sent to the nurse’s home where he remained until January 17, 1947. On April 18, 1947 he resumed his employment at the Peoria State Hospital.

At the time of the accident the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. Claimant has one child under sixteen years of age.

Claimant, testifying in his own behalf, stated that he sustained injuries to his back, his pelvis and his jawbone ; that the front of his right hip is flat; that he has a protrusion, and also a large lump on his back. He stated that there is stiffness and weakness in his right leg, which tires easily, and that he has a bit of a limp. He testified that as a result of being dragged along the r> blacktop road he has a scar over the right eye and a scar between the jawbone and the right ear. On cross-examination, claimant testified that there is nothing wrong with his right arm, his right knee, his right ankle, or his right leg, and that his injury is confined to the area surrounding his right hip.

Dr. Fred Stuttle, a witness called on behalf of claimant, testified that he had examined and treated the claimant, and had examined X-ray plates taken of claimant’s injuries. He stated that the X-rays and his clinical examination showed a fracture of the right iliac crest; that the last X-rays showed a good union of this fracture in the lumbar sacro region with a narrowness of the disk of the fifth lumbar and sacro. He stated that there is some sclerosis of the bone in this region, and a spasm of the muscles of the low back. Dr. Stuttle testified that the narrowing of the disk was doubtless a condition existing before any injury; that the existence of muscular spasm was an indication of a painful stimulation arising from this region; and that the narrowing of the disk allows a settling of the joint between the vertebrae in the lumbar sacro region with some arthritis, which he felt'was aggravated by the injury.

Dr. Stuttle also testified that the displacement of the illium affects the function of the hip. He stated: •

“The bone which was displaced has certain muscles attached to it. They all go down the leg and have to do with the function of the hip and somewhat of the knee. The man does show evidence of shortening of this muscle in that he has shortening of the most important muscle, the tensor fascia lata. That is the muscle which is about the size of a hand attaching from the anterior superior spine, which was part of trie bone broken' off and going from this region to a broad flat band of fascia, which is a thick coating of the outer thigh on the outer side.”

Dr. Stuttle also said that he considered claimant’s condition to be permanent.

Claimant’s annual earnings during the year immediately preceding the injury were $1,422.43, so that his weekly wage was $27.35. Since claimant had one child under sixteen years of age, his compensation rate, under the provisions of the Workmen’s Compensation Act, is 55% of this weekly wage, or $15.04. The injury having occurred after July 1, 1945, this must be increased 20%, making his compensation rate the maximum of $18.00 per week.

Claimant was temporarily totally disabled for a period of 42 1/7 weeks. At the compensation rate of $18.00 per week, he would be entitled, for that period, to an award of $758.57. He had, however, already received from the respondent^ for unproductive time, the sum of $584.57, so that there is due claimant a balance of $174.00 on account of temporary total disability.

The record fails to sustain any claim for facial disfigurement, for back injury, or for complete or partial permanent disability. It is clear, however, that claimant has sustained a loss of use of his right leg, and that he-has properly incurred medical expenses in the amount of $37.00. From the testimony, and from the report of Commissioner Jenkins, who observed the claimant, the court finds that claimant has sustained a 15% partial permanent loss of use of his right leg.

The testimony at the hearing was taken and transcribed by Mary I. Reynolds, who has submitted a statement for her services in the amount of $31.50. This statement appears reasonable for the services rendered.

An award in the aggregate amount of $755.50 is therefore entered, payable as follows, to-wit:

To Mary I. Reynolds, for taking and transcribing testimony, $31.50, payable forthwith.

To claimant, on account of .temporary total disability, the balance of $174.00, payable forthwith.

To Dr. Fred Stuttle, for medical services, $37.00, payable forthwith.

To claimant, for 15% partial, permanent loss of use of his right leg, being 28% weeks, at $18.00 per week, $513.00, all of which has accrued, payable forthwith.

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


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    (No. 4033
    Charles W. Young, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1947.

    Claimant, pro se.

    George F. Barrett, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Claimant, Charles W. Young, filed his complaint on August 2nd, 1947 for loss of the use of his left eye resulting from an accident which occurred on March 18, 1947.

He was employed by respondent in the Department of Public Works and Buildings, Division of Highways, as a common laborer. On March 18, 1947 claimant was engaged in removing' broken portions of the paved surface of U. S. Highway 36 and making temporary patches with a bituminous mix. Pie placed his pick under the edge of a V-shaped piece of broken concrete to pry it loose from the surrounding pavement, and as he pried back on his pick a small piece of concrete broke off and struck claimant in his left eye. The foreman took him to Dr. Harry 0. Pope, who treated him for a lacerated cornea, and the following morning, March 19, 1947, took claimant to Dr. T. ■ P. Leonard, an eye, ear, nose and throat specialist in Decatur. On July 5, 1947 Dr. Leonard submitted his final report to the Division of Highways, as follows:

“Nature of Injury — Intraocular foreign body in left eye, traumatic cataract. Treatment — Removal of intraocular foreign body, linear extraction of cataract. X-rays — 3/19/47, 3/22/47, 4/4/47. Date patient was discharged — June 6, 1947. Date able to work — April 24, 1947. Permanent disability — 100 per cent loss of vision in left eye. O. S. 20/400.”

From the record, we find that claimant was injured during the course of and out of his employment, and as all jurisdictional requirements have been satisfied, he is entitled to the benefits as,provided in the Workmen’s Compensation Act.

Claimant is married but has no children. His earnings in the year preceding his injury were $1,803.30. His compensation rate would be the maximum of $15.00 per week, which must be increased 20% to .$18.00 per week, the accident having occurred subsequent to July 1, 1945. He was paid $84.86 for total temporary disability for the period of March 19, 1947 to April .20, 1947 inclusive. All medical, hospital and nursing bills were paid by respondent in connection with this injury, totalling $691.15.

We find from the evidence that claimant has suffered a 100 per cent loss of vision in his left eye, and is entitled to receive the sum of $2,160.00, based on 120 weeks at his compensation rate of $18.00 per week.

The sum of $100.00 should also be paid to the Treasurer of the State of Illinois for the special fund provided in Section 7, Paragraph E of the Workmen’s Compensation Act and as authorized under Section 8, Paragraph E, Sub-paragraph 20 of the said Act.

An award is therefore entered in favor of claimant, Charles W. Young, in the sum of $2,160.00, payable as follows:

$ 540.00, which has accrued and is payable forthwith;
$1,620.00, payable in. installments of $18.00 per week for 90 weeks, commencing November 24, 1947.

An award is also entered for the sum of $100.00, payable to the Treasurer of the State of Illinois.

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


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    (No. 4040
    Gilbert E. Koerner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1947.

    Claimant, pro se.

    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General.
   Eckert, C. J.

On April 3, 1947, the claimant, Gilbert E. Koerner, an employee of the respondent in the Department of Public Works and Buildings, Division of Highways, while guiding a piece of lumber into. a power-driven jointer, caught the distal phalanx of his third middle finger in the revolving blade. Immediately following the accident, Dr. David J. Lewis of Springfield, Illinois, rendered first aid and amputated a portion of the distal phalanx of the injured finger. Claimant returned to limited duties the day following the injury and continued to work throughout the period of his convalescence.

At the time of the accident, the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. All medical services were paid by the respondent, and no claim is made for temporary total disability. Claimant, however, seeks an award for approximately a 33%% loss of the third finger of his right hand.

On April 3,1947, Dr. Lewis submitted a report to the respondent in which he stated that claimant had lost about one-fourth of the distal phalanx of the injured finger; that about one-half of the proximal nail remained On May 16, 1947, Dr. Lewis reported that the laceration was completely healed; that there was a loss of the tip of the-distal phalanx involving about one-third of the length of the normal nail; and that the bony loss was about one-fourth of the distal end of the distal phalanx. There is no evidence of any loss of use.

The Illinois Workmen’s Compensation Act provides that the loss of the first phalanx of a finger shall be considered a loss of one-half of such finger. Here, the question is what constitutes the loss of the first phalanx. In the case of McMorran & Co. vs. Industrial Commission, 290 Ill. 569, the Supreme Court held that the loss of one-sixteenth of an inch of the first joint of a finger is not the loss of the first phalanx. The court pointed out the distinction between cases in which only a small tip of the bone is taken without the destruction of the use of the first joint of the finger, and eases in which a substantial portion of the first phalanx is amputated. In the case of Ide vs. Paul & Timmins, 179 N.Y. App. Div. 567, where a workman sustained the loss of one-fourth of an inch of the bone of the index finger, and one-eig*hth of an inch of the bone of a second finger, the New York Court held that an award for the loss of the first phalanx was not justified. In the case of Geiger vs. Gotham Can Co., 164 N.Y. Supp. 678, it was held that the loss of one-eighth of an inch of the bone of the first phalanx of the second finger did not constitute the loss of the phalanx within the meaning of the Workmen’s Compensation Act. To the same effect is the case of Thomson vs. Sherwood Shoe Co., 164 N.Y. Supp. 869, where a workman lost approximately one-fourth of an inch from the tip of one of his fingers.

In the case of Macon County Coal Co. vs. Industrial Commission, 367 Ill. 458, one-third of the bone of the distal phalanx of the second finger of an employee’s right hand was removed by the attending physician following an accident, and the employee’s finger, after healing, was three-eighths of an inch shorter than the corresponding finger of his left hand. The finger nail had grown back to half of its former size, and the flesh at the end of the finger had been restored to a point approximately even with, the end of the nail. The employee testified that his finger was tender, and that there was limitation in the flexion of the first joint. The arbitrator and the Industrial Commission found that the injury amounted to the loss of the first phalanx of the second finger, and the Supreme Court held that these findings were well within the evidence, and should not have been reversed by the Circuit Court “especially in view, of a voluntary admission of partial liability by defendant in error.” The court held that there was an actual loss of a substantial portion of the employee’s finger, which entitled him to statutory compensation as if he had lost one-half of his finger.

From these decisions it appears that the loss of a small fractional part of the first phalanx of a finger does not constitute the loss of one-half a finger. The court is of the opinion that it would be unreasonable to hold that the loss of one-fourth of the distal end of the phalanx of claimant’s right middle finger, involving about one-third of the length of the normal nail, is a loss of the first phalanx. Furthermore, there is no legal basis for an award for a 33%% loss of a finger, which claimant here seeks. (Macon County Coal Co. vs. Industrial Commission, supra.)

The claim is therefore denied.


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    (No. 4043
    Lena Cornale, widow of Matthew M. Cornale, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1947.

    Root and Hoffman, Attorneys for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Damron, J.

The record in this case consists of the complaint, report of the Division of Highways, and waiver of brief, statement, and argument, on behalf of claimant and respondent. It is stipulated by and between the parties hereto that the report of the Division of Highways filed November 5, 1947, shall constitute the record.

The report of the Division of Highways shows that Matthew M. Cornale was an employee of the Department of Public Works and Buildings, Division of Highways, since June 1, 1941 and continued such employment without interruption until April 8, 1947. For more than one year next preceding said date, he received a monthly salary of $184.00 and the year prior to April 8, 1947 received a total of $2,208.00 as wages from the respondent.

The report further discloses that about 2:10 P. M on April 8, 1947 the said Matthew M. Comale and a fellow employee, Benjamin Dorman, were engaged in a highway maintenance operation known as dragging shoulders. This is accomplished by attaching a spike drag to the right rear of a truck. The truck is then ■driven on the pavement at the right edge and the drag is wholly on the highway shoulder. Mr. Cornale was driving the Division truck and Mr. Dorman rode in the cab with him. Mr. Dorman was holding the cab door on the right side in an open position so that he could observe any surface obstructions that might interfere with the drag.

The truck was proceeding southwesterly on U. S. Route 66 at about five miles an hour. The location is approximately one mile north of the Milage of Gardner, Grundy County, and 1,100 feet south of the Maduct over the Alton Railroad tracks. A south bound truck driven by Gerald Byerson and occupied by the owner, Maurice Benkendorf, drove into the left rear of the DiMsion’s truck forcing it off the highway to the right. It came to rest in the ditch. The Benkendorf truck came to rest to the left and the rear of the Division’s "truck. The claimant’s intestate, Cornale, was thrown out of the truck to the left and onto the left shoulder. When found, the body was under the truck about midway between the left front and rear wheels. An ambulance was sum-. moned. A Deputy Coroner arrived at the scene of the accident a short time after it occurred and found that Mr. Cornale was dead.

The complaint shows, that Matthew M. Cornale at the time of his death was 59 years of age and left surMving him Lena Cornale, his widow and claimant herein. The complaint further alleges that the respondent had notice of the accident on the date of the injury which resulted in Mr. Cornale’s death.

Prom this record we make the following findings; that on the 8th day of April, 1947, the claimant’s intestate and the respondent were operating under the provisions of the Workmen’s Compensation Act; that on the date last above mentioned, he sustained accidental injuries which arose out of and in the course of his employment; that the respondent had immediate notice of the injuries and death of claimant’s intestate and that claim for compensation was made on said respondent within the time required under the provisions of Section 24 of the Act; that the earnings of claimant’s intestate during the year next preceding the injury which resulted in the death were $2,208.00 and his average weekly wage was $42.46, making his weekly compensation rate amount to the sum of $18.00.

An award is hereby entered in favor of Lena Cornale, the widow of Matthew M. Córnale, in the sum of $4,800.00 payable at $18.00 a week, as provided under Section 7, Paragraph (a) of the Workmen’s Compensation Act. Of this amount, the sum of $666.00 has accrued representing 37 weeks from the date of his death, which is payable forthwith to claimant in a lump sum. The remainder of said award, amounting to $4,134.00 is payable to claimant at $18.00 a week for 229 weeks, commencing December 24, 1947 with one final payment of $12.00.

This award is subject to the approval of the Governor, which is hereby, if and when an approval is given, made payable from the appropriation from the Road Fund.

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


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    (No. 3976
    B. C. Schuemann, H. E. Buhman and E. C. Jackson, assignees of the Illinois Oil Co., a Corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 18, 1947

    Bertrand C. Schuemann, for Claimant.
    George F. Barrett, Attorney General, and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

Illinois' Oil Company, a corporation, filed its claim on July 30, 1946 for the sum of $7,869.19. Subsequent to that time, on January 29, 1947, it filed a motion through its attorney, requesting that B. C. Schueman, H. E. Buhman and E. C. Jackson be substituted as party claimant in the name, place and stead of the Illinois Oil Company, a corporation. The basis of the motion, which this Court allowed, is that the corporation is in liquidation and that by assignment properly executed by the officers of the corporation, authorized by proper corporate resolution which is part of the record, this claim was assigned to the said parties.

The claimant, Illinois Oil Company, a corporation, was a duly licensed distributor under the Motor Fuel Tax Law of the State of Illinois, and up to and including July 1945, it made its reports and remittances to the Motor Fuel Tax Division of the Department of Revenue. In accordance with the provisions of the said Motor Fuel Tax Law it filed its final return for the month of July 1945. The claim now made is for over-payments made from October 1942 to and including April 1945, less certain under-payments, caused by clerical errors in computing the gallonage on which tax was due.

The evidence clearly substantiates the contention of claimant and clearly supports the claimed over-payment of $7,869.19. Similar claims by licensed distributors under the Motor Fuel Tax Law have been approved by this Court, and the Court has held that the collection and payment of this tax to the State by claimants in similar circumstances was as an agent of the respondent, fulfilling the certain duties imposed upon the licensed distributors by law, and as the over-payments were made under a mistake of fact, claimants were entitled to a refund of the over-payments.

Silver Fleet Motor Express, Inc. vs. State of Illinois, 10 C.C.R. 396;
Edwin T. Breen as Trustee of the Worth Refining Company, Inc. vs. State, 12 C.C.R. 285;
Mitchell and Hills vs. State, 12 C.C.R. 317.

This claim clearly comes within the provisions of the law as heretofore interpreted by this Court.

However, the Attorney General raises the question that that portion of the claim based on errors in reports made prior to July 30, 1944 are barred by the Statute of Limitations. He bases his contention on Section 22, Court of Claims Act (Chapter 37, Section 439.22, Ill. Rev. Stat..45) which reads:

“Every claim cognizable by the court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the clerk of the court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons, and persons under other disability at the time the claim accrues two years from the time the disability ceases.”

Counsel for claimant argues that this section is strictly a Statute of Limitations and as such should be construed for its prospective effect and should not be applied with reference to its retroactive effect. On page 691 of Volume 37 of Corpus Juris the general rule with reference to statutory interpretations of Statutes of Limitation is stated .as follows:

“As a general rule — a fundamental rule for the construction of statutes — Statutes of Limitations will not be given a retroactive effect, unless it clearly appears that the Legislature so intended;

citing

Carlin vs. Peerless Gas and Light Company, 283 Ill. 142;
George vs. George, 250 Ill. 251;
Walker vs. People, 202 Ill. 34; and other cases.

In the case of. George v. George, 250 Ill. 251, in discussing-the act which reduced the time for filing of a writ of error from five to three years, the Court said on page-255:

“In addition to the general rule that limitation acts will not be given a retroactive effect, in the absence of clear legislative intention, Section 4 of the Act to revise the law in relation to the construction of Statutes provides that no law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any right accruing or claim arising under the former law, or, in any manner whatever to affect any right accruing or claim arising before the new law took effect.”

The instant case would present no difficulty in its determination if the said Section 22 could be construed by itself and as strictly a Statute of Limitations. The weight of authority will unquestionably support the view that it would have no retroactive effect. The question presented here, however, is whether this particular section can be construed by itself or whether it must be construed in conjunction with the complete Court of Claims Act. The Court of Claims Act, under which the present Court is functioning, went into effect on July 1, 1945. The Court of Claims is strictly a creature of the Statute, and all of its powers and duties are derived by and through the said Act. The jurisdiction of the Court is circumscribed by the Act, and every section of the Act is just as much a part thereof as the said Section 22. As another part of the said Act, there is Section 24 which reads:

“An Act to create the Court of Claims and to prescribe its powers and duties, approved June 25, 1917, as amended, is repealed. All claims pending in the Court of Claims created by the above Act shall be heard and determined by the Court created by this Act in accordance with this Act. All of the records and property of the Court of Claims created by the Act herein repealed shall be turned over as soon as possible to the Court created by this Act.”

By reading of this section, there seems to be no question that the Legislature intended to repeal the former Act, which is further evidenced by the fact" that they retained jurisdiction in the court of pending claims but were silent with respect to unfiled claims not barred under the previous five year limitations contained in the prior Act, but which would now be barred by the two-year limitation contained in said Section 22. In construing said Section 22, this Court must do so in conjunction with Section 24 and all of the other sections of said Act. It is well settled in this State that the power of the Court of Claims to entertain a claim against the State is purely statutory inasmuch as the State is not suable in a court of general jurisdiction and this power can be exercised only in a manner and within the limitations as prescribed by the Statute creating this Court. Our existing powers are derived entirely from the new Act, and this Court’s jurisdiction to hear any claims is derived exclusively from the new Statute and can be exercised only in the manner and under the limitations prescribed by the said Statute. As such it operates as a limitation on the jurisdiction of this Court.

An analogous situation was presented in the case of Carlin v. Peerless Gas and Light Company, 283 Ill. 142, where the Court said on page 144:

“At common law no right of action existed in anyone to maintain an action against any person or corporation causing the death of another by any wrongful act, neglect or default. A right of action for such causes was given by our Injuries Act, which was adopted in 1853, and which for the first time in this State created such cause of action and provided in whose name the suit should be brought and how any money recovered should be distributed. The act fixed the time within which such an action should be brought at two years after the death. Similar statutes are in force, we believe, in all the States of the Union, and the question whether the time fixed by the statute for bringing such actions is a statute of limitations has been passed upon by many courts, and it has generally, if not universally, been held that the statute creates a new liability unknown to the common law, fixes a time within which the action may be commenced, and is not a statute of limitations; that the time fixed for commencing the cause of action created by the statute is a condition of the liability, and operates as a limitation of the liability itself and not of the remedy, alone.”
The Harrisburg, 119 U. S. 199;
Rodman vs. Missouri Pacific Railway Co. (Kan.) 59 L.R.A. 704;
Partee vs. St. Louis & San Francissco Railroad Co., 123 C.C.A. 292; 51 L.R.A. (N.S.) 621;
Gulledge vs. Seaboard Airline Railroad Co., (N.C.) 125 Am. St. Rep. 544; 8 R.C.L. 801-805; 8 Am. & Eng. Ency. of Law, 875.
In Spaulding v. White, 173 Ill. 127, this court considered the question whether the amendatory act of 1895, fixing the time within which a bill might be filed to contest a will at two years instead of three years, (the time allowed by the former act) applied to cases where wills had been probated prior to the amendment. In that case the will had been admitted to probate March 28, 1894, and a bill was filed to contest it in March, 1897. When the will was admitted to probate the statute gave three years’ time in which to file a bill to contest it, and the bill was filed within three years from the probate of the will. The amendment of 1895 reduced the time to two years, and if the amended act applied the bill was not filed within the time limited. The court said, in substance, that the jurisdiction to entertain a bill to contest a will was derived exclusively from the statute and could be exercised only in the manner and under the limitations prescribed by the statute, and that the time allowed for filing such a bill is not a limitation law. The court said: “There is a material distinction between a statute conferring jurisdiction and fixing a time within which it may be exercised, and a statute of limitations.” That case was followed and its reasoning adopted in Sharp v. Sharp, 213 Ill. 332.

In the case of Hathaway v. Merchants Loan and Trust Company, 218 Ill. 580, a clear distinction is made between statutes conferring jurisdiction and fixing the time in which it may be exercised and a statute of limitations. That case held, “the time in which a bill may be filed, under the Statute, by any person interested, is not a limitation law and the statute in force at the time of the filing of the bill is the statute conferring jurisdiction and must govern.”

In Merlo v. Johnston City Coal and Mining Company, 258 Ill. 328, the court said, “it is a well established rule that no one has a vested right in a particular remedy or mode of procedure for the redress of grievances, and the legislature may change these and the changed procedure may be applied to pending causes.”

Under the existing Court of Claims Act, claimant lost its right to action for refunds under the five year limitation and can now only recover for claims accruing to it within two years of the filing of the complaint herein, namely from July 30, 1944, that date being two years prior to the filing of this complaint.

For the reasons stated, the Court will deny that portion of the claim based on errors in reports made prior to July 30, 1944, and will only consider that portion of the claim based on errors in reports made subsequent to said date. According to the record this amounts to $1,064.01, from which amount must be deducted the sum of $191.37 admitted by the claimant to have been underpaid.

An award is therefore made in favor of B. C. Schuemann, H. E. Buhman and E. C. Jackson (assignees of Illinois Oil Company, a corporation), in the sum of $872.64.


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    (No. 2682
    S. G. Cool Company, a corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    A. C. Lewis and Edward G. Kesler, for Claimant.
    George F. Barrett, Attorney General; William L Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

The complaint in this case was filed June 17, 1935. This court is asked to grant an award to the claimant in the sum of $616.28 extra expenses alleged to have been incurred by the claimant by reason of the respondent’s failure to furnish cement required for the completion of á construction contract.

The contract was awarded to claimant on November 7, 1932 for the construction of a bridge in Logan County and is identified as State Bond Issue Route 121, Federal Aid Project, No. 2-163, Section 116 B, Contract No. 5027.

The testimony of George C. Whitty, President of claimant corporation, shows that work was started on this project in December 1932 and completed in August, 1933. The State failed to furnish cement in April 1933 upon the request of claimant and work was suspended on May 18, 1933. On that date construction was completed except for surfacing the roadway. Shipment of cement was resumed about June 30, 1933 and work was then continued to completion.

This witness further testified in reference to machinery and equipment which was left by claimant at the site during the time he was unable to work due to the lack of cement, and the rental value thereof, amounts paid to maintain watchmen and other items comprising the alleged damages.

It is stipulated between the parties through their respective counsel that a final estimate was prepared and scheduled by the State Auditor for payment to claimant on November 13, 1933; that State warrant No. 222078 in the sum of $1,939.18 evidencing final payment was issued by the State Auditor November 16, 1933, payable to S. Gr. Cool Co., a corporation, the claimant herein; the said warrant was endorsed by the claimant-corporation and was deposited for payment through the First National Bank of Chicago, November 17, 1933 and was paid and marked cancelled by the State Auditor on November 18, 1933.

It is further stipulated by and between the parties hereto that the “Standard Specifications for Road and Bridge Construction” adopted January 1932 are by reference incorporated as a component part of the contract out of which this claim arises. Division I, Section 9, Article 9.7 of these Standard Specifications provides as follows:

“The acceptance by the contractor of the last payment as aforesaid shall operate as and shall be a release to the Department from all claims or liability under this contract for anything done or furnished or relating to the work under this contract, or for any act or neglect of said Department relating to or connected with this contract.”

There is no contention by claimant or any evidence offered as to any waiver of this release provision.

The contractual provision above quoted is identical with other claims which have been decided by this court in which we have held that the acceptance of final payment by the claimant constituted a full release of all claims growing out of contracts such as the one before us. Urech vs. State, 8 C.C.E. 212; Midwest Construction Company vs. State, 9 C.C.E. 443; Henkel Construction Company vs. State, 10 C.C.E. 538; Strandberg and Son Co. vs. State, 13 C.C.E. 49.

The law as enunciated in the above eases is controlling here. Award denied.


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    (No. 3999
    Allen Galloway, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Van Peursem and McNeilly and Henry S. Petz, for Claimant.
    George F. Barrett, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On August 24, 1945, the claimant, Allen Galloway, an employee of the respondent in the Department of Public Works and Buildings, Division of Highways, while trimming trees and picking up debris from the highway right of way along U.S. Route 52 in LaSalle County, near Troy Grove, Illinois, slipped backward from a rubble wall, and turned Ms right ankle. Following the injury, claimant, at the instruction of Ms foreman, went to see Dr. W. M. Avery, in Mendota, Illinois, who prescribed an elastic bandage and rest.

On September 28, 1945, a representative of the Division of Highways called on Mr. Galloway and found Ms ankle still swollen and painful. An X-ray was taken at St. Mary’s Hospital, LaSalle, the following day; it disclosed an incomplete fracture of the external malleolus and a small periosteal chip of the internal malleolus apparently due to a tendon rupture.

Claimant’s ankle failed to improve, and on December 3, 1945, he was sent to Chicago and placed in the care of Dr. H. B. Thomas, professor emeritus of Orthopedic Surgery, Illinois University, School of Medicine, who ordered physiotherapy treatments. These treatments were begun December 28, 1945 and continued until February 5, 1946. On February 15, 1946 claimant was discharged by Dr. Thomas, and on that day compensation payments for temporary total disability, begun on August 26, 1945 were terminated. The respondent also paid medical and travelling expenses in the total amount of $98.85.

At the time of the injury, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of decedent’s employment.

Dr. W. M. Avery, testifying on behalf of claimant, stated that the injury received by claimant, considering Ms age, constituted a permanent injury, and that claimant would not again be able to pursue his usual course of employment. Dr. Avery, however, had not examined claimant since November 1945 when the ankle was still stiff and swollen.

Dr. C. 0. Harris, of Mendota, testifying on behalf of claimant, stated that he first examined claimant on December 18, 1946; that claimant then had limited motion in his ankle joint; that there was tenderness and pain; that an X-ray showed no evidence of an old or recent fracture, but showed an indistinctness between the joints of the tarsal bones and in the right ankle joint. Dr. Harris’s diagnosis was arthritis, probably traumatic, and arteriosclerosis. He found restrictions in all motions of the ankle to the extent of 25 to 35%. Dr. Harris also stated that he had examined claimant just prior to the hearing on April 29, 1947, and found the condition of claimant’s ankle unchanged; that claimant could do no type of work involving the use of his right foot or ankle, but could do work that would not involve such use. He considered claimant’s condition permanent, and stated that in his opinion 40% of claimant’s disability was due to his age (he being a man 78 years old) and 60% was the result of the accident.

From the testimony, and from the report of Commissioner Jenkins, who observed claimant at the hearing, the court finds that claimant has not sustained, as a result of the injury, a total permanent disability, but that claimant has sustained a 33x/3% permanent partial loss of use of his right foot. Under the provisions of the Workmen’s Compensation Act, he is therefore entitled to 50% of his average weekly wage for a period of 45 weeks. On the basis of his annual earnings, which were $1,443.94, his average weekly wage was $27.76. He had no children under sixteen years of age dependent upon him for support. His compensation rate is thus $13.88. Since the injury occurred subsequent to July 1, 1945 this must be increased 20%, making a compensation rate of $16.66 per week. Claimant has been fully paid for his temporary total disability, and no moneys are due claimant for medical expenses.

An award is therefore entered in favor of the claimant, Allen Galloway, in the aggregate amount of $749.70, all of which is accrued and is payable forthwith.

The record discloses that Helen Zawacki, shorthand reporter, has submitted a statement for $15.00 for taking and transcribing the evidence. This charge is fair and reasonable.

An award is therefore entered in favor of Helen Zawacki in the amount of $15.00 which is payable forthwith.

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


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    (No. 4022
    John B. Tomasheski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    London G. Middleton, for Claimant.
    George F. Barrett, Attorney General; and C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Bergstrom, J.

The claimant, John B. Tomasheski, filed his complaint April 28, 1947, alleging that he received certain serious and permanent injuries to his person due to the negligence, of the respondent while he was an inmate at the Peoria State Hospital, Bartonville, Illinois.

He alleges that.in June 1946, while an inmate in the State Institution, in Cottage 2-3, he went to the bathroom early one morning while no attendant was present, had an epileptic attack during which he grabbed an unprotected steam pipe, resulting in his sustaining serious burns. On July 23, 1947 complainant amended his complaint, changing Paragraph 6 to allege that his left hand, was burned rather than his .right hand, and substituting a new paragraph for Paragraph 11, which was made to allege that claimant had received surgical treatment at the Illinois Research Hospital at Chicago, and that because of the burns which he received it was necessary to amputate his right little finger.

The record in this case' consists of the complaint with the amendments thereto, the answer of respondent, transcript of testimony on behalf of both claimant and respondent, waiver of brief and argument on behalf of claimant, statement, brief and argument of respondent, and reply argument on behalf of claimant.

The claimant contends that injuries he sustained are a result of negligent treatment of his bums by the doctors at the Peoria State Hospital and by the negligence of respondent in leaving the steam pipes uncovered.

With reference to his first contention, there is no evidence showing any negligence in the medical treatment of claimant. The evidence shows that the usual and recognized method of treatment for burns was given the claimant and that the results were satisfactory under the circumstances..

With reference to the second contention of claimant that the accident occurred through the negligence of respondent, the pertinent facts, as deduced from the evidence, are as follows: The Peoria State Hospital did not ordinarily hospitalize epileptics. Claimant was there as a voluntary patient. They did not refuse him admission, because the necessary treatment was available. He was in need of treatment, but his condition did not require personal supervision. He was physically able to help in the work at the cottage to which he was assigned. Dr. Trigger testified that the pipes in question were off in one corner. They are not covered and had been there in this condition for about forty years, and that an accident had never happened at this particular place before. He also testified on cross-examination, that at the State Hospital individuals had previously had epileptic attacks and got burned on radiators and pipes. From the claimant’s testimony, it is apparent that he does not recall exactly what occurred, and Dr; Trigger testified that a person does not remember what takes place during an epileptic seizure, and also that it is characteristic of such patients, during a seizure, to try and grab hold of some object. We can conclude from all the evidence, however, that claimant suffered an epileptic seizure and, while in this condition, grabbed hold of the hot steam pipes in the corner of said bathroom, and burned his hands as alleged.

The controlling issue to be determined from the record is whether the accident in question was one which an ordinary prudent person, under the circumstances, ought to have foreseen and could reasonably anticipate. The Attorney General, for respondent, argues that where a condition is negligently permitted to exist, but some intervening act causes an injury to occur in connection with such a condition, the intervening act and not the existing condition is the proximate cause of the injury. He alleges that the hot steam pipes were an existing condition, and the epileptic seizure, an intervening act beyond the control of either the claimant or the respondent, Avas the proximate cause. He cites the case of Merlo v. Public Service Co., 381 Ill. 300, in which case electric wires, which were not protected by insulation, Avere held to be a dangerous condition, but the operation of a crane, which came in contact Avith the Avires and resulted in the death of a workman, was held to be an intervenin'! act Avhich was the proximate cause of the death, and the company maintaining the electric wires Avas held not to be responsible for the death. He also cites the recent case of Moudy v. New York Central Railroad Co., 385 Ill. 446, where the Supreme Court of Illinois, in determining the proximate cause of the accident, stated on page 453, as follows:

“The theory of the Appellate Court that he was in the exercise of «due care ibecause he had a right to believe that his brakes would, stop him in proper time at the speed he was going, and that their failure to act, without negligence upon his part, renders the railroad company liable, is also untenable. We have frequently held that, in order for a plaintiff to recover, the defendant’s negligence must have proximately caused, or contribtited to cause, the injuries, rather than vierely causing a condition providing >an opportunity for other causal agencies to act. Merlo v. Public Service Co., 381 Ill. 300; Briske v. Village of Burnham, 37.9 Ill. 193; Illinois Central Railroad Co. v. Oswald, 338 Ill. 270.) In the Merlo case we said: ‘The test that should be iapplied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural .and probable result of the first party’s own negligence.’ It icould be an extreme application of the law to require a railroad company operating its trains on fixed tracks, and required by the exigencies of commerce to move its passengers and commodities rapidly, to anticipate (at every grade crossing) there might be defective brakes upon every automobile approaching a crossing, which would relieve the driver of the exercise of due care, and make the railroad company liable, when not its negligence, but the traveler’s lack of due care, caused the accident.
“The distinction between a crossing accident occurring from lack of due care upon the part of‘the plaintiff, or because of an intervening cause under its control, or at least not under the control of the defendant, is so slight as to make rules applicable to them practically the same. We are of the opinion that the evidence in this case most favorable to the plaintiff fails to show that he was in the exercise of due care, or that the alleged negligence of the defendant was the proximate cause of the •accident. Under such circumstances, as a matter of law, the plaintiff is not entitled to< recover.”

Counsel for claimant, in his reply argument, calls attention to that part of the Merlo case, supra, where the court said: “The test that should be applied in all cases, in determining the question of proximate cause, is whether the first wrongdoer might have reasonably anticipated the intervening cause, as a natural and probable result of the first party’s own negligence.”

It is fundamental in tort law that to prove negligence there must be shown a duty to the person injured, a breach of the duty and an injury proximately result-' ing from such breach.

If we should conclude that the uncovered pipes creates a condition so that an ordinary prudent person could have reasonably anticipated the accident in question, we must necessarily resolve the issues in favor of claimant. However, the record would not sustain this view except by a very narrow application of this rule The evidence shows that these particular steam pipes were in their present condition for a period of approximately forty years, and that no one was previously injured because of their existence. There is no evidence in the record that the danger of their exposed condition was ever brought to anyone’s attention, as was done in the Neering v. Illinois Central Railroad Co. case, 383 Ill 366. where the dangerous condition present at the station was repeatedly called to the company’s attention. The evidence also shows that the treatment of epileptic patients at this hospital was the exception and not the rule. It would be an extreme application of the law to require respondent to insulate all steam pipes in all public buildings, without regard to the persons who might come in contact with them. Considering the many years that these particular pipes had remained in their present condition without any resulting accident, it could not be reasonably concluded that they were a menace or hazard to the patients or workers at the Peoria State Hospital It is customary for persons having an epileptic seizure to fall wherever they might be at the time of an attack. This might have happened while the patient was in some other part of the hospital or grounds and under such circumstances that he could have injured himself by falling to the floor, on a piece of furniture, or any hard or sharp object which might have" come in contact with his person. This is one of the inherent dangers always present to those unfortunate enough to be suffer.ing from this disease. To say that respondent would have to protect a person having this disease from all possibilities would create a greater duty on the part of respondent than we feel is justified. It would, in fact, make it an insurer of all such patients.

Considering the accident from the evidence and all the circumstances surrounding it, we are of the opinion that the accident is one that could not reasonably have been anticipated. The presence of the uninsulated steam pipes was merely a condition similar to the unprotected wires in the Merlo case, supra, and the epileptic seizure an intervening act beyond the control óf either the claimant or the respondent. It was the proximate cause of the injury.

The evidence is not clear as to the damage which was sustained by claimant, if any. At the time he entered the hospital he was suffering from Dupuytren’s contracture of both hands, and they were seriously crippled from this disease. Undoubtedly, the condition was aggravated by the bums, but there is some indication from the evidence that his hands and fingers are in better condition now than they were at the time he entered the hospital, with the exception of Ms amputated little finger, which was undoubtedly affected by his pre-existing disease. He also testified that he had not worked for two or three months prior to entering the hospital. However, in view of our findings that respondent was not negligent, it is not necessary to further consider the question of damages.

For the reasons stated, an award is denied.


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    (No. 4035
    Betty Healy Mason, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Browning and Parkin, and J. Albert Cagney, of Counsel for Claimant.

    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Eckert, C. J.

On September 25, 1946, the claimant, Betty Healy Mason, while employed as a clerk-stenographer in the Chicago office of the Factory Inspection Division of the Department of Labor, slipped on the polished office floor and sustained a fractured neck of the right femur. She seeks compensation under the Workmen’s Compensation Act for temporary total disability and for total and permanent loss of use of her right leg.

At the time of the accident the employer and employee were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the act. The accident arose out of and in the course of claimant’s employment. All hospital, medical, and surgical care has been furnished by the respondent.

At the hearing before Commissioner Blumenthal, claimant testified that she was still suffering pain; that she still has difficulty in walking; that she can not walk without a cáne; that she has difficulty getting up and down stairs; and that she tires very quickly. She stated that she was unable to carry on her regular office work; that she has tried to do typewriting at home, but that even when sitting the pain starts in her right hip and goes down the leg. Occasionally her right foot swells, and becomes stiff. She has not worked since the accident.

Dr. Charles B. Puestow, testifying on behalf of the claimant, stated that he first examined her on the afternoon following the accident; that she then had a deformity of the right lower extremity with external rotation and inability to move the entire extremity, a rather typical picture of a fractured neck of a femur. X-rays confirmed the diagnosis, and claimant was placed in traction for three days to overcome muscle spasm, at which time an operation was performed reducing the fracture and fixing it with a Smith-Peterson Nail. The claimant remained hospitalized until November 11, 1946, and remained continuously under the care of Dr. Puestow until November 12, 1947. Dr. Puestow stated that the union showed no permanent disability, but that claimant would have some limitation of motion resulting largely from disuse and from the scarring of soft tissue which occurs after such an injury and after a long disability.

The record also discloses a report from Dr. M. G. Luken, made at the request of the respondent. Dr. Luken reported that the flange inserted for the reduction showed no absorption; that movements of inversion, eversion, and flexion were excellent; that in about 85% of the cases the flanges remain permanent and cause no disturbance, but that in 15% of the cases absorption takes place, necessitating the removal of the flange Dr. Luken" stated that in his opinion claimant was making a splendid recovery, but that she did have a permanent disability of approximately 50%.

From the testimony, and the reports in the record, and from the recommendation of the Commissioner who observed claimant at the hearing, the court finds that claimant was temporarily totally disabled from September 25, 1946 to November 12, 1947, a period of 59 weeks. Claimant’s salary for the year preceding the injury was $2,004.00, making her weekly compensation $38.53. Her compensation rate would therefore be the maximum of $15 00; since the injury occurred subsequent to July 1, 1945, this must be increased 20% making a compensation rate of $18.00 per week. Claimant is thus entitled to an award for temporary total disability of 59 weeks at $18.00 per week, or $1,062.00.

Claimant has also suffered a 50% permanent loss of use of her right leg, for which she is entitled to an award of 95 weeks at $18.00 per week, or $1,710.00. Claimant, however, was paid her regular wages of $38.53 per week from the date of the accident until May 31, 1947, or a total of $1,370.92, for non-productive time. This sum must be deducted from her award.

A. M. Bothbart & Associates were employed to take and transcribe the evidence at a hearing before Commissioner Blumenthal. Charges in the amount of $42.95 were incurred for these services, which charges are fair, reasonable, and customary.

An award is therefore entered in favor of A. M Bothbart & Associates in the amount of $42.95, which is payable forthwith; and an award is entered'in favor of the claimant, Betty Healy Mason, in the total amount of $2,772.00, from which sum must be. deducted the sum of $1,370.92 paid to her for non-productive time, leaving a balance of $1,401.08 payable to her in weekly installments of $18.00 per week, beginning March 19, 1948 for a period of 77 weeks, with an additional final payment of $15.08.

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


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    (No. 4037
    Elizabeth Soper, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1948.

    Warner and Warner, for Claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for Respondent.
   Damron, J.

This complaint alleges that the claimant,- Elizabeth Soper, is the surviving widow of Elijah L. Soper, who departed this life July 11, 1947 leaving her as his sole and only heir at law of his personal property.

It further alleges that Elijah L. Soper was for several years prior to his death employed by the respondent as a plumber at the Dixon State Hospital and that on November 3, 1946 he completed a full year of employment at said Dixon State Hospital and by the rules of employment then in force he thereby became entitled to twelve (12) days vacation with pay, but no part of said vacation was ever taken by him so that at the time of his death he was still entitled to twelve (12) days of vacation.

The complaint further alleges that at the time of his death the hourly rate of pay which was then being paid to him was $1.95:

Claimant alleges that she is entitled to receive from the respondent an amount equal to twelve (12) days pay at the rate which was being paid to him at thé time of his death amounting to the sum of $187.20.

A motion to dismiss the complaint has been filed by the Attorney General for the reason that the claim is not compensable under the laws of the State of Illinois.

This court has passed on claims similar to the one at bar.

In Tripp vs. State, 10 C.C.R. 137, the claimant was formerly an assistant Quartermaster General in the Military and Naval Department of the State of Illinois. He made a claim for $208.00 representing one-half month’s salary claimed to be due him for a period of two weeks for a vacation during the years 1932-1933, for which he claimed he was entitled. In his claim he alleged that he did not .receive a vacation during said period due to the fact that his work at the time was such that his absence from the office was not practicable; that having been entitled to an additional two weeks pay for this vacation period, he was entitled to an award.

The Attorney General filed a motion to dismiss the claim for the reason it.failed to state a legal cause of action against the State. „

In denying the claim, this court cited Crooker vs. Sturgis, 175 N. Y. 158. This case was based upon a demand for additional pay because of a vacation period which had not been availed of by the plaintiff, the court held, “a vacation is a personal privilege that can be waived.” In this case, as in the Crooker case siopra, there is no showing that a request for a vacation was ever made by Mr. Soper or such vacation denied to him.

• At the same term of this court another claim was denied to Myrtle Lewis, claimant (Lewis vs. State, 10 C.C.R. 136.) This was a claim for additional pay during-vacation, period not availed of. The court in denying the Lewis claim cited the case of Tripp vs. State, supra, and held it was controlling in the Lewis claim.

The complaint in this case shows that Mr. Sopercompleted a full year of employment for the State and. it is presumed that he was paid his salary from month to month as issued to him by monthly warrants by the State of Illinois, and which on the face covered the period of service for which salary was thereby paid.

Since the deceased accepted the amounts due him for services rendered during stated periods, his widow cannot claim an award from the State for an additional amount for those periods.

There being no basis for an award, the motion of the Attorney General to dismiss this claim must be sustained and the claim dismissed.