text:
    (No. 2004
    Bertha Hilderbrandt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

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

delivered the opinion of the court:

On October 17,1932, claimant was driving her automobile on S. B. I. Route No. 25, between Chebanse and Kankakee. The highway there consists of a macadam roadway and the employees of the State were then oiling same. The complaint avers that no notice was given to the claimant of the condition of the roadway, and that on account of the slippery condition thereof, her automobile skidded off the highway and collided with a culvert, whereby the said automobile was damaged.

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

Claimant’s right to recover is based upon the negligence of the servants and. agents of the State in the maintenance of said State Route No. 25.

It is well settled by the decisions of this court that in the maintenance of its hard-surfaced roads thé State is acting in a governmental capacity. Chumbler vs. State, 6 C. C. R. 138; Stoddard et al vs. State, 6 C. C. R. 27; Bucholz et al vs. State, 7 C. C. R. 241.

It is also the well-settled law of this State that the State is not liable for' the negligence of its servants and agents Vhile in the exercise of any of its governmental functions. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Morrissey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77.

Under the well settled law of -this State the motion to dismiss will have to be sustained.

Motion sustained.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 1900
    John Miller, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

      ^ John Miller, pro se.
    Otto Keener, Attorney General;,, John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

On September 23, 1931, claimant was in the employ of the State in connection with the maintenance of its S. B. I. Boute No. 116 in Iroquois County. On that date, while in the performance of his duties, he claims to have sustained a hernia while pulling on a post.

The complaint contains no averment as to notice of the accident or claim for compensation, and the Attorney General has entered a motion to dismiss the case for the reason that notice was not given to the employer within fifteen (15) days after the accident and claim for compensation was not made within six (6) months after the accident, as required by the terms and provisions of Section twenty-four (24) of the Workmen’s Compensation Act.

Our Supreme Court has frequently held that the making of claim for compensation within the time required by the Statute is jurisdictional, and is a condition precedent to the right to maintain a proceeding under the Compensation Act. Haiselden vs. Industrial Board, 275 Ill. 114; Bushnell vs. Ind. Com., 276 Ill. 262; Inland Rubber Co. vs. Ind. Com. 309 Ill. 43; City of Rochelle vs. Ind. Com., 332 Ill. 386; Beverly Country Club vs. Massachusetts Bonding Co., 268 Ill. App. 380.

The complaint therefore is insufficient under the law, and the motion to dismiss must be sustained.

Motion allowed.


author: Mb,. Chief Justice Hollebich

text:
    (No. 2075
    Elizabeth A. Morrow, Executrix of the Estate of Joseph A. Morrow, Deceased, Claimant vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

    Schaefer & Dolan, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb,. Chief Justice Hollebich

delivered the opinion of the court:

Elizabeth A. Morrow as executrix of the estate of Joseph A. Morrow, deceased, has filed herein her complaint against the State for the recovery of compensation for the death of her husband, Joseph A. Morrow under the terms and provisions of the Workmen’s Compensation Act.

Said Joseph A. Morrow, for about forty-five years immediately preceding his death was an employee of the University of Illinois, and for over fifteen years prior to his death was Superintendent of Buildings at the University, pursuant to appointment by the Board of Trustees upon the recommendation of the President and Supervising Architect. Mr. Morrow maintained an office on the campus at 110 Power Plant from which office he exercised direct supervision over the physical plant of the University, including operations of the buildings and control of the janitors and employees of the power plant. It was part of his duties to see that the buildings should be properly taken care of, maintained and operated.

In the performance 'of his duties he was subject only to the Board of Trustees, the President of the University, and the Supervising Architect thereof.

Among other duties, Mr. Morrow had charge of the purchase of coal for the University heating and power plant, which consumed approximately forty-five thousand (45,000) tons per annum. With the approval of the Board of Trustees and the Supervising Architect, Mr. Morrow had been accustomed for a number of years to purchase coal from the mines in southern Illinois. The method employed by the Trustees involved the making of trips to the coal mines by Mr. Morrow for the purpose of ascertaining if coal was available and the approximate tonnage thereof. After obtaining such information, Morrow would return to the University and the purchase would then be completed by telephone. This had proven to be the most economical way to purchase coal for the use of the University.

On August 22, 1932, while enroute to southern Illinois to purchase coal for the University he sustained accidental injuries as the result of a collision between the automobile in which he was riding and another automobile, which injuries resulted in his death within an hour after the accident.

It was stipulated between the claimant and the respondent, among other things, as follows:

“The care of the physical plant of said University which was under the personal supervision and control of the said Joseph A. Morrow as such Superintendent of Buildings, required the services of about 250 employees, all under said Morrow. There are about 125 buildings in said physical plant, of which about 75 are located on a campus area of about 500 acres; the other (principally agricultural buildings) being located some distance from the campus proper.
“That the power and heating plant, the electrical plant, the water plant, garages, storage buildings, telephone system, auto and truck equipment, and police force and fire department, were all under the personal and direct supervision of said Morrow as such Superintendent of Buildings.
"One of the duties of said Joseph A. Morrow in the operation of the heating plant of said University was the purchase of coal for the plant. The said Morrow was engaged in this specific duty, going to the coal mines in southern Illinois to buy coal for said heating plant at the time of the accident in which he was killed, about 11:00 o’clock A. M., Monday, August 22, 1932.
“Said accident was the result of an automobile collision which occurred at the intersection of Illinois State Routes 25 and 121 at Tuscola, in Douglas County, Illinois, and the said Joseph A. Morrow died within an hour after the accident, without regaining consciousness. The said Morrow was not guilty of any contributory negligence, but was in the exercise of due care and caution for his own safety at the time of the accident.
“At said time and place, said Morrow was riding in a Chevrolet sedan owned by the University of Illinois, and driven by S. E. Griffith, another employee of said University, for the special purpose of taking said Morrow to southern Illinois to purchase coal for the University, as above stated. Said Morrow was riding in the front seat of said auto with said Griffith, and they were not talking as they approached the said intersection.
“The plaintiff paid out the items of $10.00 to Dr. John O. Cletcher for medical services, and $10.20 to Enos H. Renner for ambulance services, as set forth in the plaintiff’s Bill of Particulars, marked ‘Claimant’s Exhibit B,’ and attached to her Declaration of Claim filed in this cause.”

Although in the service of the University, Mr. Morrow was paid by the Auditor of Public Accounts of the State and under repeated decisions of the Supreme Court of this State, was an employee of the State. People vs. Board of Trustees, 283 Ill. 494-501; Thomas vs. University of Illinois, 71 Ill. 310.

The State therefore was an employer and Morrow was an employee within the meaning of those words as used in the Compensation Act. Under the evidence there is no question hut what Morrow was in the performance of his duties at the time of the accident in question.

The Attorney General contends that the accident in question did not arise out of and in the course of the employment of Mr. Morrow. The evidence shows conclusively that his duties necessarily took him away from the University for the purpose of purchasing coal, and that he was in the performance of his duties at the time of the accident. Being engaged in the performance of his duties at the time of the accident, there can be no question but what the accident arose out of and in the course of his employment. Mueller Construction Co. vs. Ind. Bd., 283 Ill. 148; Invin Niesler & Com., 346 Ill. 89; Swift and Co. vs. Ind. Com., 350 Ill. 413; Kennedy Van Saun Mfg. Co. vs. Ind. Com., decided by the Supreme Court at the February term, 1934, thereof, but not yet reported.

The real question in the case is as to whether under the circumstances, the State was engaged in a business or enterprise which is extra-hazardous within the meaning of Section three (3) of the Act.

In a general opinion heretofore rendered to the University of Illinois, this court held to the view that the University is engaged in an “enterprise” within the meaning of the Compensation Act, and also held to the view that although the University was chartered primarily to furnish instruction to students in various branches of learning, yet it consists of a number of different departments or schools which are practically complete in themselves; and therefore it is in the same position as an individual or corporation which is engaged in several different businesses or enterprises, some of which may be extra-hazardous and some not; that each department or school must therefore be considered a separate business or enterprise, and the liability of the University in each case depends upon whether that particular school or department comes within any of the provisions of Section three (3) of the Act, or is a business or enterprise which is extra-hazardous in fact.

Under the evidence and the stipulations in the record, it satisfactorily appears that the heating and power plant is an independent department of the University; that the heating plant contains eight (8) large stokers, eight (8) furnaces, and eight (8) boilers, having a capacity of about seven thousand (7,000) horsepower; that there are about Fifty-five Hundred (5,500) feet of large covered tunnels for heating pipes; that there are about Twenty-eight Hundred (2,800) feet of open lines in basements of buildings and about Sixteen Thousand Five Hundred (16,500) feet of conduit tunnels for insulated steam lines and electric lines connecting the more distant buildings; that the power plant is a part of the heating plant, and connected with it; that the power room contains Three (3) generators aggregating about Seventeen Thousand Five Hundred (17,500) kilowatt power with dynamos and other machinery in proportion, which would be sufficient to furnish power and light for a city of Five Thousand (5,000) people; that the machinery is such that the laws of Illinois and the ordinances of the cities of Champaign and Urbana require it to be surrounded by guards and rails to protect the employees and the public from injury; that such guards and rails have for years been maintained around such machinery.

It appears, therefore, that in the operation and maintenance of its heating and power plant the University comes within the provisions of Paragraph eight (8) of Section three (3) of the Act and possibly several other paragraphs of said Section three (3), and, further, that the business or enterprise of maintaining and operating the heating and power plant is extra-hazardous in fact, and that the claimant is therefore entitled to an award under the provisions of the Act.

The deceased left him surviving Elizabeth A. Morrow, his widow, and Charles E. Morrow and Thomas W. Morrow, his adult sons, as his only heirs at law. Elizabeth A. Morrow was dependent on said Joseph A. Morrow for her support at the time of his death. Neither Charles E. Morrow nor Thomas W. Morrow were so dependent. The wages of said Joseph A. Morrow were $416.66 per month, and the claimant is therefore entitled to an award of Four Thousand Dollars ($4,000.00), and in addition thereto the sum of Twenty Dollars and Twenty Cents ($20.20) for medical services, etc., rendered at the time of the accident, making a total of Four Thousand Twenty Dollars and Twenty Cents ($4,020.20). The compensation, however, is required to be paid to the widow' individually and not as executrix. Keller vs. Ind. Com., 291 Ill. 314; Peabody Goal Co. vs. Ind. Com., 299 Ill. 142.

Award is therefore entered in favor of the claimant for the sum of Four Thousand Twenty Dollars and Twenty Cents ($4,020.20), payable as hereinbefore set forth.


author: Mb. Chief Justice Hollebich

text:
    (No. 1973
    Genevieve Sullivan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

    L. Feed O’Bbien, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

On November 1, 1931, claimant, with several others, was riding as a guest in an automobile then being driven by Claude L. Cashman in an easterly direction on S. B. I. Route No. 90 between Camp Grove and Sparland.

The complaint avers that the north and south crossroad near the Charley Ruth Corner had been newly graveled and that the servants and agents of the State had negligently left large quantities of gravel in long piles across said Route 90; that when the automobile in which claimant was riding struck the gravel, it was thrown out of the control of the driver and rolled over an embankment onto a wire fence, whereby the claimant was seriously injured.

The Attorney General has entered a motion to dismiss the case for the reason that there is no liability on the part of the State under the facts set forth in the complaint. The facts in the case are very much disputed, but for the purpose of the motion the allegations of the complaint will be taken as true.

Claimant’s right to recover is based upon the negligence of the servants and agents of the State in the maintenance of said State Route No. 90.

It is well settled by the decisions of this court that in the maintenance of its hard-surfaced roads the State is acting in a governmental capacity. Chumbler vs. State, 6 C. C. R. 138; Stoddard et al. vs. State, 6 C. C. R. 27; Bucholz et al. vs. State, 7 C. C. R. 241.

It is also the well-settled law of this State that the State is not liable for the negligence of its servants and agents while in the exercise of any of its governmental functions. Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Minear vs. State Board of Agriculture, 259 Ill. 549; Morrisey vs. State, 2 C. C. R. 254; Tuttle vs. State, 5 C. C. R. 3; Peterson vs. State, 6 C. C. R. 77.

Under the settled law of this State the motion to dismiss will have to be sustained.

Motion sustained.


author: Mr. Justice Yantis

text:
    (No. 1949
    Peter Trompeter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

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

delivered the opinion of the court:

This claim was filed July 15, 1932, and is supported by a Bill of Particulars, setting forth damages to the automobile .of plaintiff in the sum of Twenty-six Hundred Sixty-five Dollars ($2,665.00). The declaration alleges that claimant was the owner of a Cadillac twelve cylinder sedan, and on the 10th day of December, 1931, was driving in a westerly direction on State Bond Issue Route No. 69 near the intersection of State Bond Issue Route No. 23 in LaSalle County; that an employee of the State of Illinois, then in the scope of his employment, was operating and driving an automobile truck in a northerly direction along Route No. 23 and that the latter drove in and upon Route No. 69 without regard to a stop sign, and while claimant was in the exercise of ordinary care for his own safety, that through the carelessness and negligence of the driver of said truck, the claimant and his automobile were forced off the highway and damaged in the amount of $2,665.00. The declaration consists of seven counts, all alleging the careless and negligent action of respondent through its agent; special negligence being alleged in the failure to observe the stop sign at the entrance to Route No. 69, driving to the right of the center of Route No. 69 and" across the pathway of the automobile of claimant and driving without lighted lamps in accordance with the Statutes in such cases made and provided. A motion to amend the declaration, together with the proposed amendment, was filed April 27, 1934, whereby the claimant asked leave to make the “Firemen’s Insurance Company, a corporation,” an additional party claimant, and inserting in said declaration the fact that under the insurance carried by claimant, Peter Trompeter, with the Firemen’s Insurance Company, the latter had paid to said Peter Trompeter the sum of Twenty-six Hundred Sixty-five Dollars ($2,665.00), for damages incurred by him in said accident, and asking that in case of an award that such award, if any, made by this court would be, decreed to be paid to the Firemen’s Insurance Company up to the amount of the said sum of $2,665.00, and praying further that this court would determine and fix whatever just compensation and damage claimants are entitled to as a result of the alleged negligent and careless driving of the automobile truck in question by the agent of respondent.

Following the filing of the record and abstract of evidence, the Attorney General filed his motion to dismiss the claim, for the reason that no legal liability is shown to exist upon the part of respondent for the negligent and careless action of its employee. Citations contained in claimant’s brief correctly set forth the rule pertaining to the liability of private individuals in cases of this character, but the Attorney General, in objecting to the allowance of such claim, relies upon the rule that the.State is not liable for damages caused by the negligence of its employees and agents. The claimants in the citation of additional authorities, indicate that they believe an award should be made regardless of the rule of respondeat superior.

While individuals and private corporations are liable for damages caused by the negligence of their employees and agents, the rule does not apply to the State nor to sub-divisions of the State created for governmental purposes. The State does not undertake to guarantee to anyone that its employees will be competent or careful or free from negligence in the performance of their duties, as that would involve the State in endless difficulties and losses which would be subversive to the public interests.

Minear vs. State Board of Agriculture, 259 Ill. 549.

Hollenbeck vs. County of Winnebago, 95 Ill. 148.

The claimants in their original statement, brief and argument base their contention and claim purely upon legal rights and upon the neglig’ence of the employee of the State. Additional authorities cited by claimants indicate that they would base their right upon the so-called Doctrine of Equity and Social Justice. This court recently held, in the case of Crabtree vs. State, 7 C. C. R. 207,

"that when the Legislature created this court and clothed it with power to hear claims against the State, we do not think it thereby intended to waive the right of the State to interpose any legal or equitable defense it might have to the demands of claimant.”

The case of Murdock Grate Co. vs. Commonwealth, a Massachusetts case, was referred to in the Crabtree case, wherein the court said,

“The Act * * * discloses no intention to create against the State a new and heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal where well recognized, existing liabilities can be adjudicated.”

Further,

"Before a claimant can have an award against the State, he must show he comes within the provisions of some law making the State liable to him for the amount claimed. If he cannot point to any law giving him the right to an award, he cannot invoke the principle of equity to secure the award."

In passing upon the motion of respondent to dismiss, the court recognizes the meritorious nature of the claim presented, but being limited to a consideration of the rights involved from the standpoint of the legal liability of the State, this court is of the opinion that the motion to dismiss should be allowed.

It appears that the original claimant, Peter Trompeter, has been reimbursed by the company with which he carried insurance, for the major part of the value of the car at the time of the accident. Claimants are not without a remedy. If, as they allege, their injuries were caused by the negligence of the State employee, Mr. Geft, while claimant Trompeter was in the exercise of due care (upon which questions we express no opinion), claimant can bring proper actions against him in a court of general jurisdiction and have their damages determined. The claim is denied and case dismissed.


author: Me. Justice Yantis

text:
    (No. 1882
    Almer Wolf et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 21, 1934.

    John M. Stager, for claimant.
    Otto Keener, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant herein asks an award of $875.00 for damages claimed to have been occasioned by flood waters, resulting- in loss and damage to stock and grain on the farm owned by the Henry Wolf estate on which claimant was a tenant. The Declaration filed herein avers that the loss occurred on October 11, 1931, and was due to the fact that when the embankment for laying the slab on Route 40 in the North West Quarter of Section 4, Township 21, N. R. 7 East of the 4th P. M. in Whiteside County, Illinois, was built, that same was constructed without culverts to admit the passage of flood waters under said highway; that a pond or lake was thereby created, resulting in the damages stated.

The Attorney General’s office has filed a motion on behalf of respondent to dismiss the claim.

There is no sufficient averment in the Declaration to legally justify an award, and- the motion to dismiss should be allowed. While the damage is charged to be the result of flood waters, there is no charge in the Declaration of any legal neglect or negligence on the part of the State that could warrant a claim against it.

However, as the evidence has all been taken, the case can be disposed of on its merits, under the evidence as submitted.

An examination of the evidence and the record discloses that when Route 40 was built, the embankment on which the slab was laid was built to the west of the former roadway and was built to a grade which was considered high enough to prevent flood waters from rising above the surface of the highway, and was built two feet higher than the maximum high water mark of which any record could be obtained; that on the night of October 11, 1931, a cloudburst occurred and the water in the Elkhorn bottoms where the Wolf land laid rose higher than at any previous time; that even on the downstream side of the highway, it was approximately a foot higher than ever before, and that the latter could not have been affected in any way by the building of the road in question.

The record further discloses that the old bridge over Elk-horn Creek that existed before the construction work, had a span of 77 feet and that the new bridge has three 60-foot spans; that Elkhorn Creek is a winding, twisting stream through the Wolf land and that the engineers in charge of the preliminary construction plans for the State, made additional offers and submitted plans to Henry Wolf, the then owner of the land, to avoid the future possibility of the flood waters of Elkhorn Creek piling’ .up on the land back of the Wolf buildings. The record further discloses that approximately eight inches of rain fell in the area in question on the nig'ht of October 11, 1931, that the maximum high water record before the construction work was 158.0 which was considerably higher than the old highway, and which would be sufficient to make the entire Elkhorn bottom impassable in case of flood. The new pavement was built at elevation of 160, and the elevation of water on the upstream side on the night of the cloudburst, was approximately 161.2.

The court finds from the record that there is no proof that S. B. I. Route 40 was constructed in a negligent or improper manner in the section complained of; that the evidence conclusively shows proper construction throughout with sufficient and adequate drainage under conditions which might be ordinarily and reasonably expected; that the charge made in the complaint “That the embankment was built without culverts, etc.”, is not supported by the evidence, but that the record discloses affirmatively that concrete culverts were constructed and that the new bridge offered a flow-opening almost two and one-half times greater than the former bridge.

Where it appears that the respondent has exercised ordinary care in the construction of bridges and culverts over water-courses on private land and is not otherwise guilty of negligence there is no liability for damages occasioned an adjacent proprietor by extraordinary and unforeseen floods choking or washing out the channel of the stream. Peoria & P. U. R. Co. vs. Barton, 38 Ill. App. 469; Illinois Cent. R. R. Co. vs. Bethel, 11 Ill. App. 17.

This court in many instances has held that respondent in building and maintaining a system of improved hard-surfaced highways acts in its sovereign capacity in carrying out a governmental function and cannot be held liable for the negligence of its officers or agents. Morrissey vs. State, 2 C. C. R. 254; Dunning vs. State, 5 C. C. R. 232; Highland vs. State, C. C. R. 384; Bucholz, Admr. vs. State, 7 C. C. R. 241.

While the flood in question, no doubt, resulted in grave hardship and misfortune to claimant, there is no legal or equitable grounds upon which the State could be held to respond in damages, and the claim is therefore denied and ease dismissed.


author: Me. Justice Linscott

text:
    (No. 2082
    Joe White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 14, 1934.

    Eldon L. McLaughlin, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

Claimant filed his claim in the nature of a common law action on March 7, 1933 claiming One Thousand Three Hundred Twelve Dollars and Forty Cents ($1,312.40) by reason of an accident that occurred on November 17, 1932, while the claimant was engaged in the operation of a snow plow on State Aid Route No. 7, near Sidell, Illinois. The plow had proceeded over two railroad tracks and had crossed a bridge at the north edge of Sidell. About two blocks farther on and north of the C. & E. I. tracks, the plow caught a man-hole and threw claimant off.

It abundantly appears from the record that the claimant did receive an injury arising out of and in the course of his employment and that his superior officer had notice on the same day of the accident.

Dr. M. L. Hole, at Danville, Illinois, was called and testified that claimant had a contusion of the scalp, an abrasion across the left popliteal space; a strain of the posterior ligaments of the left knee; that the doctor had treated the claimant for those injuries continuously from that time, and was the only physician on that case. He further testified that claimant was still having trouble with the knee, and that there was some swelling with a loss of motion, and the doctor gave as his opinion that the posterior ligaments of the knee were pulled. X-ray pictures would be of little or no help in determining the extent of the injury. The doctor was asked, if in his opinion there would be a permanent disability, and he answered to the effect that there would be; that the disability would be to the left knee. He was then asked: ‘ ‘ How much about, in your opinion would be the permanent loss of use of the left knee as a result of this injury!” There was an objection, and he answered: “I would say about fifty per cent of the use of his knee.” We are forced to sustain this objection. It is for the court to determine the extent of an injury after being fully advised of all the facts and circumstances, and under the decisions, this kind of testimony is incompetent.

Outside of the testimony of the doctor, there is practically no evidence to aid the court in ascertaining the extent of this injury, and the amount of temporary total disability. It is, however, virtually conceded by the Attorney General that the claimant is entitled to Ten Dollars and Eighty Cents ($10.80) per week for eight weeks during temporary total disability, or the sum of Eighty-six Dollars and Forty Cents ($86.40); also the further sum of Ten Dollars and Eighty Cents ($10.80) per week for ninety-five weeks, or the sum of One Thousand Twenty-six Dollars ($1,026.00) for fifty per cent loss of the use of claimant’s left leg.

Claimant was fifty-seven years of age at the time of the accident; married, but no children.

It appears from a letter dated March 31, 1933, written by Fred Tarrant, State Highway Engineer of Maintenance, that the claimant in this case did receive an injury arising out of and in the course of his employment; that he was carried on the payroll for one-half time from November 17 to January 7, and was paid a total amount of Seventy-nine Dollars and Eighty Cents ($79.80), but no doctor bills were paid.

Claimant was not taken to a hospital, and is not claiming any hospital bill or nurses bill. He did receive a severe injury.

The Attorney General probably reaches the figure eight weeks temporary total disability from the cross-examination of Mr. White, the claimant. He was asked: “How long after the accident was it before you could get around?” and he answered to the effect that it was in the neighborhood of about seven weeks.

It is the general rule of law, applicable to cases of this kind, as well as others, that the burden is upon the applicant to prove by the greater weight of the evidence, the injury complained of.

In the case of Mt. Olive and Staunton Coal Co. vs. Industrial Commission, 301 Ill. 521, it was held that it is not enough for the defendant in error to show that he did not work. It must also appear that he was not able to work.

The period of temporary total disability has been defined by our Supreme Court as the period of the healing process. Temporary, as distinguished from permanent disability is a condition that exists until an injured workman is as far restored as the permanent character of the injuries will permit. It has also been said that the period of temporary total incapacity is that period immediately after the accident during which the injured employee is totally incapacitated for work •by the reason of illness attending the injury. It might be described as the period of healing process.

The claimant having the burden to prove the extent of the temporary disability and having failed to do so, we must accept the Attorney General’s conclusions, that this disability only covered a period of eight weeks.

Under the Compensation Act, the employer is liable for medical, surgical and hospital services to the employee, and under the provisions of Paragraph (a) of Section 8 there is no limitation of time or amount of the medical, surgical and hospital services which the employer is required to furnish and they are limited only to that which is reasonably required to cure or relieve from the effects of the injury.

Dr. Hole testified that his services were reasonably worth the sum of Two Hundred Two Dollars ($202.00), and he filed an itemized statement which was introduced in evidence as claimant’s exhibit. 1. It consisted of one item of Five Dollars ($5.00) for first aid. He made eight calls upon the claimant in November, 1932, eleven calls in December, and two calls in the following January, making a total of twenty-one calls. It is not contended that any "bones were broken, or any serious lacerations. The doctor also filed a claim for ten physiotherapy treatments in January; eleven in February; fourteen in March; thirteen in April; twelve in May and seven in June "at Two Dollars ($2.00) apiece. Considering the nature of the injury, the slow process that nature requires to heal such an injury; further considering all that might be done by human agencies in cases of this kind, the testimony of the doctor is conclusive to "the effect that the claimant received ample surgical attention. After the testimony was taken in this case, the doctor filed an affidavit increasing his bill to the sum of Two Hundred Sixty-eight Dollars ($268.00). It appears that at the time the testimony was taken, Dr. Hole had done all that he could for claimant. We, therefore, cannot allow the extra claim for medical services rendered after the hearing, and upon which the Attorney General had no opportunity to cross examine Dr. Hole.

We, therefore, recommend to the legislature that an appropriation be made in this case to the claimant for eight weeks temporary total disability at Ten Dollars and Eighty Cents ($10.80) per week, less the sum of Seventy-nine Dollars and Eighty Cents ($79.80) paid to the claimant, and in addition to that, the sum of One Thousand Twenty-six Dollars. ($1,026.00) for fifty per cent (50%) loss of the use of the left leg, the same being for ninety-five (95) weeks at Ten Dollars and Eighty Cents ($10.80) per week, and the further sum of Two Hundred Two Dollars ($202.00) for medical care and attention, or a total sum of One Thousand Two Hundred Thirty-four Dollars and Sixty Cents ($1,234.60).


author: Per Curiam:

text:
    (No. 2339
    Fred Grassle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 4, 1934.

   Per Curiam:

The claimant, Fred Qrassle, who owns certain property in the city of Joliet, which immediately adjoins The Illinois Waterway, and who claims that such property has been damaged by the construction of such Waterway and the Cass Street Bridge over the same, filed his claim for damages with the Department of Public Works and Buildings, pursuant to the Statute of this State commonly known as The Illinois Waterway Act. The claimant and the Department of Public Works and Buildings were unable to agree upon the amount of damages to which claimant is entitled, and stipulated that the claim be submitted to this court for determination. It is stipulated and agreed that the award made by this court, if any, shall be paid by the Department of Public Works and Buildings and not by way of appropriation made by the legislature, as in cases where awards are made by this court under the Court of Claims Act.

The lot owned by the claimant is situated at the Northeast corner of the intersection of Western Avenue (called Cass Street east of the Waterway) and Bluff Street in the city of Joliet immediately west of the Waterway, which said lot has a frontage on Western Avenue of Eighty-five and two-tenths (85.2) feet and a frontage on Bluff Street of One hundred (100) feet. It is improved with a three-story brick building and basement, erected in 1912. The basement is of concrete construction, and has a cement floor and built-in bakery oven which was used for the operation of a bakery until the latter part of 1929; the first floor contains four storerooms, all of which face on Western Avenue and are of approximately the same dimensions; the second and third floors each contain four five-room apartments.

Prior to the construction of The Illinois Waterway, the street grade on Western Avenue in front of the property in question was approximately level and the sidewalk and entrances to the stores on the first floor were approximately even with the then existing grade.

In the course of the construction of The Illinois Waterway through Joliet, the old bridge over the Illinois and Michigan Canal was removed and a new bridge over the Illinois Waterway was constructed, the west approach to which is on a seven per cent (7%) grade. Such grade commences at a point variously stated to be from seventeen (17) to twenty (20) feet east of the west property line, and the approach, as now constructed, is about five feet above the former sidewalk level at claimant’s east property line.

Claimant relies upon the provisions of the Illinois Waterways Act and seeks to recover damages which he claims have resulted and will result to his property by reason of the construction and maintenance of The Illinois Waterway, including the Cass Street bridge over the same, and the work done in connection therewith. Claimant maintains that he is entitled to recover for the following elements of damage:

1. The loss of revenue from the time it was announced that the present grade was to be the permanent grade for the approach to the bridge, to-wit, from the summer of 1930, to date.

2. The difference in market value of the property before and after the completion of the Illinois Waterway Improvement.

3. The cost of remodeling and reconstructing the building on the property so as to conform to the new street grade.

It is not questioned that the claimant has sustained damages, and consequently the only question for this court to determine is the question as to the amount of damages to which the claimant is entitled.

The true measure of damages in cases of this kind, that is, for property damages by a public improvement, but not taken for public use, is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it. Benefits to land not taken may be set off against damages to lands not taken. Damages must be direct and proximate and not such as are merely speculative and remotely contingent. Department of Public Works vs. McBride, 338 Ill. 347, 352; Department of Public Works vs. Caldwell, 301 Ill. 232, 247.

The several elements of damage claimed, as above, will be considered in the order above set forth.

I.

Loss of Revenue From Summer of 1930 to Date.

With reference to this item, it has been repeatedly held by our Supreme Court that inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made and therefore give no cause of action against a municipality therefor. Osgood vs. City of Chicago, 154 Ill. 194; Lefkovitz vs. City of Chicago, 238 Ill. 23; Chicago Flour Co. vs. City of Chicago, 243 Ill. 218; Peck vs. Chicago Railway Co., 270 Ill. 35, 40.

If such rule applies to a municipality, it must apply with equal force and effect to the State, and we therefore award no damages against the State as to the item claimed for loss of revenue.

II.

Depreciation in Market Value.

On the question as to the difference in the market value of the property prior to and subsequent to the construction of the Waterway, four witnesses testified on behalf of the claimant, one being the son-in-law of the claimant and the others being men who had had considerable experience in real estate values and appraisals in the City of Joliet.

As in most cases where similar questions are involved, there is a wide divergence in.the views of the several witnesses. The witnesses for the claimant differed greatly from each other in their opinions as to value, and there was a wide difference between the average of the witnesses for the claimant and the average of the witnesses for the respondent.

After a careful consideration of all of the evidence, the court is of the opinion that the fair cash market value of the property just prior to the construction of The Illinois Waterway was $65,400.00; and that the fair cash value of such property after the construction of the improvement, and assuming that certain alterations which had been recommended by the architects for the respondent had been made, was $34,700.00.

The record shows that during the period of time in question, there was a decrease in rentals in the City of Joliet, of approximately forty per cent (40%), and during the same period a decrease in market value of real estate of approximately twenty-five (25) to thirty per cent (30%), which was attributable solely to economic conditions. Assuming that the value of the property prior to the making of the improvement was $65,400.00, and that there was a decrease in the market value of thirty per cent (30%) as the result of economic conditions, the value of the property at the present time, entirely disregarding the Waterway Improvement, would be $45,780.00. Assuming the present value of the property, after the making of the improvements suggested by the State architect, is $34,700.00, as above set forth, there is a loss in the amount of $11,080.00, which, in our opinion, represents the depreciation in the market value of the property as the result of the construction of the Illinois Waterway. The present valuation of $34,700.00 was based, however, upon the assumption that the alterations and repairs necessitated by construction of the Waterway had been made, and the cost of such alterations and repairs constitutes the third item of damages claimed.

III.

Cost oe Remodeling and Reconstructing Building.

Mr. J. E. Coll, an architect, who testified on behalf of the claimant, estimated the total cost of making the alterations and repairs necessitated by the change in grade of Western Avenue, in accordance with the drawing prepared by the State architect, as well as the cost of redecorating the interior of the entire building, and including also a ten per cent charge for overhead and supervision, and a ten per cent profit — at the sum of $9,610.34, and submitted a detailed and itemized statement of the several items thereof.

We feel, however, that the evidence does not justify a charge for redecorating the second and third floors of the building, and must therefore exclude from the estimate of Mr. Coll the item of $2,160.00 charged by him for decorating the second and third floors, and must also make the necessary adjustments on that account for overhead and supervision as well as profit. After making such deduction and making the necessary adjustments as aforesaid, we have the sum of $6,996.80 as the net cost of remodeling, repairing and decorating the building to the extent made necessary by the construction of the Waterway and the bridge over the same.

With reference to the claim now made to cover the cost of waterproofing the basement and tearing down and reconstructing the bakery, we further find that the evidence does not justify the charging of that expense to the State. No claim therefor is made in the complaint and the itemized statement prepared by the architect, J. E. Coll, who testified on behalf of claimant, which purports to cover all of the items of expense connected with the remodeling, altering and repairing of the building, contains no item whatsoever relating either to the waterproofing of the walls or the tearing down and reconstruction of the bakery. The bakery has been vacant since the Fall of 1929 and consequently it cannot be said that such vacancy resulted from the construction of the Waterway. Prior to the construction of the Waterway, there was no entrance direct from the bakery to either Western Avenue or Bluff Street, and consequently there is no interference with ingress to or egress from said basement from either of said streets as the result of the change of grade. The evidence discloses no reason aside from economic conditions, why such basement should not produce as much revenue at this time as it did prior to the construction of the Illinois Waterway, and consequently we award no damages for that item.

From the foregoing, therefore, we conclude that the claimant is entitled to recover the following items of damage to his property on account of the construction of the Illinois Waterway and the bridge over the same, to-wit:

1. Depreciation in market value of the property, as
above set forth................................... $11,080.00
2. Cost of remodeling, altering, repairing and redecorat-
ing, as above set forth............................ 6,996.80
Total........................................... $18,076.80

Award is therefore hereby made in favor of the claimant, Fred Gfrassle, and against the State of Illinois, for the sum of Eighteen Thousand Seventy-six Dollars and Eighty Cents ($18,076.80), payment to be made by the Department of Public Works and Buildings of the State of Illinois within fifteen (15) days from the entry of this order, in accordance with the stipulation heretofore filed herein.


author: Mb. Justice Yantis

text:
    (No. 2352
    The Alton Railroad Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    William L. Patton and Silas H. Stbawn, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion, of the court:

Claimant seeks payment in the sum of Thirty and 10/100 Dollars ($30.10) for freight shipments furnished the respondent through the Division of Highways, during the month of May, 1933. For some reason the bills were not presented to the Department until December 22, 1933 and payment therefor was then refused because of the lapsing of appropriations of. said Highway Department on September 30,1933. There is no question raised between the parties as to the law or the facts and as it clearly appears that the service was rendered and that a legal obligation exists upon the part of the State for the payment of same, it is hereby ordered that an award be made in favor of claimant herein for the sum of Thirty and 10/100 Dollars ($30.10).


author: Mr. Justice Tantis

text:
    (No. 1890
    W. G. Andersen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    W. G. Andersen, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claimant herein asks for an award in the sum of Five Dollars as a refund for over-payment through a mutual mistake of fact in connection with his application for a Broker’s Certificate of Authority under date of February 29, 1932. From the statement made by the then Superintendent of Insurance of Illinois, it appears that due to the rush in the issuance of certificates, the fact that claimant was already licensed as a real estate broker was not noted. Payment was made in the sum of $10.00 for the Broker’s Certificate of Authority in question, whereas $5.00 was the correct fee. The 1931 Act was amended in 1933 and the license would now be $10.00, but from the statement appearing in the record and the undisputed facts that the over-payment of $5.00 was made through a mutual mistake of fact, an award should, and will be made for such over-payment.

Commercial Nat’l. Bank & Trust Co., vs. State, 7 C. C. R. 122;

Bates Valve Bag Corp. vs. State, 7 C. C. R. 64;

Cairo Water Company vs. State, 7 C. C. R. 6.

Claim allowed and an award made in the sum of Five Dollars ($5.00).


text:
    (No. 1828
    Chicago and Northwestern Railway Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Samuel H. Cady and Nye F. Morehouse, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

There is no dispute of facts as to this claim. It appears that during June and July of 1927 complainant, in compliance with an order of the Illinois Commerce Commission, made at the instance of the Division of Highways, expended $209.15 in removing obstructions at a grade crossing in connection with S. B. I. Route No. 18. The location of the route was changed under a decision of the Supreme Court, and the Department of Public Works and Buildings was thereafter unable to expend any money in connection with the location as originally planned, and for that reason the said claim of $209.15 has remained unpaid. It appears from the record that the claim is correct and that the claimant was acting in good faith when the claim arose, and the work was done; that same is in pursuance of a legal agreement between the parties, and the claim should be paid.

Claim is allowed, and an award recommended in the sum of Two Hundred Nine and 15/100 Dollars ($209.15).


text:
    (No. 2089
    Sam Costello et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Robert A. Meier, Jr., for claimant.
    Otto Kerner, Attorney General; John Kasserman,. Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

This claim was filed March 15, 1933 and asks an award for damages in the sum of Fifty-seven and 03/100 Dollars ($57.03) by reason of a collision by a certain truck, belonging to the State of Illinois, and then and there operated by employees of the State in the Department of Public Works and Buildings, Division of Highways, with a truck then owned and operated by the claimant. The declaration alleges that on November 15, 1932, while claimant’s servants were driving the said truck of claimant on State Bond Issue Route No. 7 near the City of Morris, Illinois, the said truck of respondent was so negligently and carelessly operated by the State employee in question that a collision occurred, resulting in damages and necessary repairs in the sum of $57.03.

The Attorney General has filed a motion to dismiss the claim for the reason that it is sought to recover damages caused by the alleged negligence of an employee of the State, i. e., the driver of the State truck; that there is no legal ground for liability against the State for damages so caused, and that the rule of respondeat superior does not apply.

From the files it appears that the State truck in question was equipped with a snow plow and was engaged, at the time, in plowing snow on S. B. I. Route No. 7; that the plow struck some slight obstruction and the truck skidded against the pavement and in so doing hit the truck of claimant. The courts have, had occasion many times to consider the question of liability for damages in connection with the maintenance of its hard road system. Cases cited by the Attorney General are in point, and as is there stated:

“In the construction and maintenance of its roads, the State acts in a governmental capacity and in the exercise of such governmental functions it does not become liable in actions of tort by reason of the malfeasance, mis- • feasance or negligence of its officers or agents in the absence of a statute creating such liability. Such has been the settled decision of this court for many years.”

Bucholz, Admx. vs. State, 7 C. C. R. 241, 243.

Sapp vs. State, 7 C. C. R 89.

Morrissey vs. State, 2 C. C. R. 454.

Minear vs. State Board of Agriculture, 259 Ill. 549.

The rule of respondeat sibperior does not apply, and the court is of the opinion that the motion to dismiss should be allowed.

Motion to dismiss allowed.


text:
    (No. 1898
    Fowler Mfg. Co., Ltd., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Fowler Meg. Co., Ltd., pro se.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

Claim was filed pro se May 2, 1932 for $15.00, under an averment by claimant that it received a bill from the Secretary of State on May 15, 1930 for $15.00 franchise tax, which sum it paid on May 27, 1930, but at the same time notified the Secretary of State that it was surrendering its authority to transact business in Illinois; that the Secretary of State thereupon forwarded a blank form with instructions that if same was returned with One Dollar by June 25th, a refund of the $15.00 tax would be made. The claimant executed and returned the form on June 11, 1930, but that no refund has ever been made of the said sum of $15.00..

It is apparent that the payment of the franchise tax has been wrongfully.retained by the State, as the Certificate of Withdrawal was filed prior to the time which such franchise tax would apply. Where payment of a franchise tax is made under a mutual mistake of fact, a refund will be made.

Commercial Nat’l. Bank & Trust Co. vs. State, 7 C. C. R. 122.

It is apparent from the record that the refund should have been made prior to July 1, 1930 and that claimant is entitled to an award and such an award is therefore made in the sum of Fifteen Dollars ($15.00).


text:
    (No. 2240
    A. C. McClurg & Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Musgbave, Oppenheim, Price & Ewins, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claim is herein made for the sum of $111.40 for erroneous payment of franchise tax. No disagreement of facts appear in the record. Claimant is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, and under the provisions of the General Corporation Act filed its return in connection with the franchise tax to be paid to the State of Illinois for the year 1933 and received from the Secretary of State a statement in connection therewith showing that a franchise tax had been assessed against it upon a capitalization of $854,800.00, and that the tax assessed upon such valuation was $427.40. Claimant on the 22nd day of June, 1933 paid the Secretary of State the latter sum, but prior to said date, i. e., on June 21, 1933, the Secretary of State issued to claimant a corrected statement showing the franchise tax assessed against it for 1933 upon a capitalization of $632,000.00, with a tax assessed thereon in the sum of $316.00; that claimant’s check of $427.40 was sent to the Secretary of State prior to the time claimant received the corrected statement issued by the Secretary of State; that the payment so made was deposited by the Secretary of State before receipt of notice from the claimant and before the latter could stop payment upon said check. It further appears that the claimant, on June 30, 1933, requested a refund, but that due to the fact that the check had been already credited to the Secretary of State’s office, no refund has been made by same. The Secretary of State’s office has approved a stipulation in accordance with the above facts and for a refund of $111.40. It therefore appears that an over-payment of $111.40 has been made. Under the holdings that where a franchise tax has been paid for a taxable year on one capitalization and before such year begins the capitalization has been reduced by an amendment of its charter, an award may be made for the difference between the amount paid and the amount which would have been due under the amended charter, and an order for a refund of said amount should be made.

An award is therefore allowed in favor of claimant in the sum of One Hundred Eleven and 40/100 Dollars ($111.40).


text:
    (No. 2354
    Moulding-Brownell Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Arthur J. Hughes, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

Claim is herein made for $73.08 for one car load of gravel furnished and delivered to the Illinois State Highway Department on June 19, 1931, as set forth in the Bill of Particulars. The bill was presented to the Department of Public Works and Buildings and claimant was thereupon advised that the appropriation under which same was purchased had lapsed. There seems to be no conflict of law or facts involved and the claim seems to have remained unpaid because of the legislative appropriation out of which same might have been payable having lapsed.

The supplies having been sold, delivered and used by the State and the claim appearing legal, and an award having been recommended by the department to which such gravel was furnished, an award is therefore made in the sum of Seventy-three and 08/100 Dollars ($73.08).


text:
    (No. 2258
    James Reid, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

      Rehearing denied February 13, 1935.

    David Krueger, for claimant.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Me. Justice Yantis

delivered the opinion of the court:

Claimant alleges in his declaration that on August 4, 1933 his Pontiac sedan was parked along the curb on Fifteenth Avenue in Rockford, Illinois; that about 1:15 A. M. one James W. Taylor, as agent of respondent, was operating a National Guard military truck along said avenue. Claimant alleges that respondent, through its agent, was operating said motor vehicle in a negligent and reckless manner, wholly disregarding the safety of other people, and in the course thereof struck and collided with the motor vehicle of claimant while the latter was in the exercise of ordinary care for the safety of himself and his property, resulting in property damage to said car in the amount of $187.40. A stipulation has been entered into between the parties, agreeing upon the foregoing facts except as to the question of reckless and negligent driving upon the part of the military truck. A report from the Adjutant General’s office, appearing in the files, discloses that the military truck was proceeding westward on Fifteenth Avenue at the time in question, at a speed not to exceed twenty-eight miles per hour, and with proper lights; that a car approached from the west, swerving from one side of the street to the other, and that in attempting to avoid a crash with that car, Corporal Taylor, who was driving the military truck, swerved quickly to the right and in so doing ran into the back of plaintiff’s car which was parked parallel to the curbing. A Military Board found that the responsibility for the accident laid with the reckless driver of the unknown car and that there was no evidence that the military truck was operated in a negligent or reckless manner or in disregard of the safety or property of others. Neither is there any evidence of any negligence or blame upon the part of claimant.

The claim herein is made upon the averment and presumption of negligence upon the part of the State through its employee. The proof does not support such averment.

Claimant assumes that the State is liable for all damages caused directly or indirectly by an employee of the State. Under the rule of respondeat superior, the State would not be legally liable in the case at bar, even had the driver of the military truck in question been guilty of carelessness and negligence, but in some instances this court, in cases of gross negligence upon the part of the State employee and an entire lack of contributory negligence upon the part of claimant, has made an award under the theory of equitable relief. We do not believe that such awards were properly allowed under the existing Statutes, but regardless of same there is no theory upon which this court could legally justify the making of an award to claimant in the case at bar.

Derby vs. State, 7 C. C. R. 145.

We recognize, however, that claimant was entirely without fault and has suffered damages in an amount about which there is no disagreement, and in denying an award herein we do so without prejudice to any other rights which claimant may see fit to pursue. Claim denied without prejudice.


text:
    (No. 2328
    Rock Island Sand and Gravel Co., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Huber & Reidy, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant represents that it is engaged in the business of procuring and selling sand, gravel and other building materials and that it furnished to the State of Illinois, through the Department of Purchases and Construction, certain building supplies duly itemized in the bill of particulars attached to said claim in various amounts totalling $201.19. The facts are admitted and from same it appears that the supplies in question were sold and delivered to the State but for some reason the bills therefor were not presented until after the appropriation, from which they might have been paid, had lapsed.

Where the facts are undisputed that the State has received supplies as ordered by it and that such supplies were legally bought by the State and that a bill therefor was not presented before the lapse of the appropriation out of which such payment could be made, and further that claimant has not permitted an unreasonable length of time to elapse in so failing to present the bill, an award for the amount due will be made by the Court of Claims.

Shell Petroleum Corp. vs. State, 7 C. C. R. 224.

The claim appearing to be legal and just, an award is therefore made for the payment of same in the sum of Two Hundred One and 19/100 Dollars ($201.19).


text:
    (No. 2236
    Shell Petroleum Corporation, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Cyrus S. Gentry and W. W. Yeager, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant asks an award for merchandise and supplies furnished to the State of Illinois during the period of April . 8, 1931 to June 29, 1931 in the sum of $112.52. The bill was presented to the Anna State Hospital, to which the supplies were delivered, but was not paid because presented subsequent to the 30th day of September, 1931, when the appropriation, from which payment might have been made, had expired. It appears from the files that a credit of Forty-five and 16/100 Dollars ($45.16) should be made upon the invoices included in the account filed, and the State, through the Attorney General’s Office, has stipulated that the sum of Sixty-seven and 36/100 Dollars ($67.36) is due and payable to claimant.

An award is therefore made in the sum of Sixty-seven and 36/100 Dollars ($67.36).


text:
    (No. 2182
    John Sigler, etc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    J. S. Cook, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

The claimant, John Sigler, seeks to recover under the Workmen’s Compensation Act for the death of a brother of claimant, i. e., one Robert Sigler, alleged to have occurred as the result of injuries sustained by the said Robert Sigler on the 27th day of January, A. D. 1933, while said employee was engaged in the discharge of his duties as an employee of the State of Illinois, to-wit: as a “Towpath Walker” in the maintenance of the Illinois and Michigan Canal. The complaint avers that on the day in question, while Robert Sigler was in and about his duties as a “Towpath Walker”, and engaged in his duties as such, and while in the course of his employment was struck by a truck; that the towpath upon which he was walking at the time he was run over ran between the cities of Seneca and Marseilles, Illinois; that he died as a result of the accidental injuries sustained and that claimant was totally dependent upon the earnings of said Robert Sigler for his own maintenance and support. An award is asked for medical and hospital indebtedness incurred in the sum of Two Hundred and Fifty Dollars ($250.00) and Thirty-seven Hundred Fifty Dollars ($3,750.00) compensation.

The Attorney General has filed a motion to dismiss for the reason that the records (of the State of Illinois) show the alleged injury occurred elsewhere than on the property of respondent; that .there is no allegation in the complaint as to what the deceased was in fact doing at the time of the alleged injury; that there is no averment in the declaration as to where the accident occurred and that the declaration contains no averment that the duties or occupation of the deceased were extra-hazardous or that same were in fact within the Workmen’s Compensation Act. The claimant has filed a brief and argument in opposition to the motion to dismiss. In same he departs from the averments of his declaration, wherein it is stated “that the towpath upon which the said Robert Sigler was walking at the time he was run over and injured by said truck was the towpath running between the cities of Seneca and Marseilles, Illinois”, and in such reply brief state that “if injured at a time when he was about one hundred feet from the canal and walking from the interurban station to the towpath to start on his regular trip along the towpath” that he would still be entitled to compensation and that claimant herein would be entitled to an award under the theory that this case is one of the exceptions to the general rule that a person’s employment does not begin until he reaches the place where he is to work.

In view of the fact that the declaration does not contain any allegation that would show that the employee was engaged in any of the occupations which would come within either of the ten sub-divisions of Section 3 of the Workmen’s Compensation Act, and no averment that the work in which said employee was engaged was in fact extra-hazardous, the motion of the Attorney General will be sustained, and the other objections which are primarily matters of proof will not be considered in determining the motion.

Contrary to the contention of counsel for claimant under point III of his reply brief, the court is of the opinion that in order to bring an employee within the purview of the Workmen’s Compensation Act, so that an award could be recommended (if otherwise justified under the pleadings and proof), the State in its employment of such employee must have been engaged in one of the enterprises or businesses enumerated in one of the ten sub-sections of said Section 3 of the Compensation Act or such business or enterprise must have been in fact extra-hazardous.

The motion to dismiss the complaint is allowed and under the rules claimant will have thirty (30) days within which to file such amendment as he may desire.


text:
    (No. 2340
    The Texas Company, a Delaware Corp., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    James T. Nielson and Doyle, Sampson & Giffin, for claimant.

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

delivered the opinion of the court:

Claim is herein made for One Hundred Ninety-nine and 46/100 Dollars ($199.46) for merchandise set forth in the bill of particulars claimed to have been sold and delivered to the State of Illinois from January 1, 1933 to June 30, 1933, for which a bill was presented to the Department of Public Works and Buildings November 18, 1933. There seems to be no conflict of law or facts involved and the claim seems to have remained unpaid because of the legislative appropriation out of which same might have been payable lapsed on October 1, 1933.

The supplies having been sold, delivered and used by the State and the claim seeming to be legal in every respect and an award having been recommended by the department to which such supplies were furnished, an award is therefore made in the sum of One Hundred Ninety-nine and 46/100 Dollars ($199.46).


text:
    (No. 1632
    Union Central Life Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 13, 1934.

    Brown, Hay & Stephens, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Tantis

delivered the opinion of the court:

This claim was filed August 6, 1930 and is for a refund of certain privilege taxes paid by claimant and including $2,739.26 for the year 1925, $4,009.81 for the year 1926, $6,003.21 for the year 1927 and $9,298.34 for the year 1928,-a total of $22,050.62 alleged to have been paid as a tax on insurance premiums on policies written by claimant and re-insured by it, plaintiff claiming that such additional tax so charged on re-insurance premiums in excess of the maximum amount chargeable under the Ohio basis for the four years in question, amounted to $22,050.62; that in addition thereto was an item of $6,877.76 alleged to be due claimant as a refund of one-half of one per cent on $1,375,552.00, the amount of premiums collected in Illinois from January 1, 1927 to May 24, 1927, the complaint being that the Insurance Division of Illinois computed the amount of tax for said period at the rate of three per cent, instead of two and one-half per cent, which was a mistake of fact as to the foreign law.

Claimant was incorporated under the laws of the State of Ohio, and was licensed to do business in the State of Illinois. Under the provisions of Section 2 of the Act in relation to the taxation of non-resident corporations, it is provided that if the laws of another state require of insurance companies license fees on a rate which will produce amounts greater than would be produced under the regular provisions of Section 1 of said Act, etc., then such insurance companies shall be required to pay a tax in Illinois on the same basis as is imposed by the laws of that State upon similar insurance companies organized under the laws of Illinois. Immediately prior to May 24, 1927, the laws of Ohio required a payment of two and one-half per cent (21/2%) of the balance of the gross amount after deducting return premiums, etc. On the above date, the Ohio law was amended to provide for a rate of three per cent (3%). The claim of plaintiff for a refund of $6,877.76 is made for the reason that the Insurance Division of the Department of Trade and Commerce of Illinois computed the amount of tax for the period from January 1, 1927 to May 24, 1927 at the rate of 3% under the theory that the amendment of May 24,1927 was retroactive. Plaintiff avers that such construction or view by the said department was a mistake of fact as to the foreign law and that it is entitled to a refund of one-half per cent on $1,375,552.00, being the amount of premiums collected in Illinois from January 1, 1927 to May 24th of that year.

As to the first portion of plaintiff’s claim, i. e., the claim for refund of $22,050.62 for additional tax charged on reinsuring premiums, the court holds that the objection by the Attorney General is well founded. The Illinois Supreme Court, in the case of Union Central Life Insurance Company vs. Lowe, Director, etc., 349 Ill. 464, refused to sustain this contention when raised by the Company in litigation relative to the tax for the years 1930 and 1931. This decision, as conceded by plaintiff, disposes of plaintiff’s contentions as to the items contained in its claim of $22,050.62, and this portion of plaintiff’s claim is therefore denied.

In regard to the remaining item of plaintiff’s claim, i. e., that of $6,877.76 it appears that the tax was fixed by the Superintendent of Insurance of Illinois for the year from January 1,1927 to December 31, 1927 under the provisions of Section 2 of the Act in question (Cahill Ill. Rev. Statutes, 1933, Chapter 73, Paragraph 80), using the Ohio rate because it was higher than the Illinois rate and making his calculation at 3% for the entire year under the belief that the Ohio Law, which became effective on May 24, 1927, was retroactive. Claimant paid the taxes assessed, which amounted to $104,599.26. Subsequently thereto, the Supreme Court of Ohio held that the amendment of May 24, 1927, changing the Ohio rate from 2%% to 3% was not retroactive and that 3% rate did not become effective until May 24, 1927. (Safford vs. Met. Life Ins. Co., 119 Ohio State 332.) If the claimant had been taxed at 2%% from January 1, 1927 until May 24, 1927 and at 3% for the balance of the calendar year of 1927, its tax would have been $97,721.50, or a difference of $6,877.76, being the amount now claimed by plaintiff.

“When a franchise or privilege tax has been erroneously calculated by the taxing officer, recovery will be allowed for the amount illegally collected.”

Holland Butter Co. vs. State, 6 C. C. R. 512.

Cairo Water Co. vs. State, 7 C. C. R. 6.

Liquid Carbonic Co. vs. State, 5 C. C. R. 390.

"The determination as to what is the foreign law is a question of fact and not of law.”

Dearlove vs. Edwards, 166 Ill. 619.

Marshall vs. Coleman, 187 Ill. 556.

The court is not unmindful of the views expressed in the case of the Ohio Casualty Ins. Co. vs. State, 6 C. C. R. 504, and of other cases wherein a more strict view has been taken of the rights to an award and a recovery of franchise and privilege taxes, but regarding the facts herein as showing that the payment made was in truth made under a mistake of fact upon the part of the Insurance Department of the State, plaintiff seems to be entitled to a recovery. The court is aware of no theory upon which the allowance of interest could be made, and an award will therefore be allowed the plaintiff for the sum of $6,877.76.


text:
    (No. 2320
    Edward M. Armstrong, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    Edward M. Armstrong, pro se.
    Otto Keener, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

Prior to and on the 20th day of December, A. D. 1933, the claimant was employed by the respondent as a carpenter in the State Capitol Building. On that date he was working with a wood-working machine in a shop in the basement of the Capitol Building, and his hand came in contact with a rip saw and as a result thereof, he sustained injuries resulting in the permanent loss of seventy-five per cent (75%) of the use of the second finger of the left hand and the permanent loss of fifty per cent (50%) of the use of the third finger of the left hand. He also expended the sum of Seventy Dollars and Fifty Cents ($70.50) for physicians’ and hospital bills, and presents .his claim in the amount of Two Hundred Dollars ($200.00) for compensation for the loss so sustained as well as for money advanced for physician’s and hospital bills.

It appears that at the time of the accident in question, the claimant and respondent were operating under the terms and provisions of the Workmen’s Compensation Act, and the claimant is therefore entitled to compensation under the terms and provisions of such Act, for the specific loss sustained by him, as well as for the money paid and advanced by him for physicians’ and hospital bills. The amount so due him under the terms and provisions of the Compensation Act is in excess of the amount of his claim, and an award is therefore hereby entered in favor of the claimant for the amount claimed, to-wit, Two Hundred Dollars ($200.00).,


author: Mr. Chief Justice IIollebich

text:
    (No. 2065
    J. W. Butler Paper Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    H. W. Beiher, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice IIollebich

delivered the opinion of the court:

On February 1, 1933 claimant filed its complaint herein and seeks to recover the sum of Eighteen Dollars and Seventy-nine Cents ($18.79) for stationery and supplies furnished to the respondent under date of January 19, 1931. There was an ample balance in the proper appropriation when the stationery and supplies were ordered, but the appropriation had lapsed by the time this claim was filed, and consequently payment was refused by the department.

There is no question but what the merchandise in question was ordered by the respondent and delivered to it; nor is it contended that the prices charged are excessive. Award is therefore entered in favor of the claimant for the sum of Eighteen Dollars and Seventy-nine Cents ($18.79).


text:
    (No. 2362
    L. C. Hill, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

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

delivered the opinion of the court:

Claimant seeks to recover the sum of Eight Dollars and Thirty-three Cents ($8.33) on account of excess license fees which he claims to have paid to the respondent. It appears that on November 7, 1933 claimant sent a draft to the respondent in the amount of $33.33 as license fee for malt and vinous beverage license for the period ending June 30, 1934, under the impression that said date was the end of the license year. The license year, however, ended on April 30, 1934, and although. the respondent retained the draft for $33.33, it sent claimant a receipt in the amount of $25.00 to cover his license fee for that period.

After receiving his license for the period ending April 30, 1934, and the receipt of the respondent in the amount of $25.00, claimant took the matter up with the Department of Finance, and asked for a refund of the overpayment. He was advised that it was impossible for such department to make such refund, as the Malt and Vinous Beverage Act did not provide any way for the making of refunds of this character, and was further advised to file a claim against the State with the Court of Claims.

The money having been paid to the respondent as the result of a mistake of fact, claimant is clearly entitled to the return thereof. Blomstrom vs. Dux, 175 Ill. 435-439; Firemen’s Insurance Co. vs. State, 2 C. C. R. 220; Moorman Mfg. Co. vs. State, No. 1886 (decided May, 1934).

Award is therefore hereby entered in favor of the claimant for the amount claimed, to-wit, Eight Dollars and Thirty-three Cents ($8.33).


author: Mr. Justice Yantis Justice Hollebich,

text:
    (No. 2054
    Harold Houlihan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

      Rehearing denied November 13, 1934.

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

delivered the opinion of the court:

This claim was filed in this court January 19, 1933. Plaintiff alleges that on the 13th day of January, A. D. 1930 he was employed as a steam-fitter’s helper by the State of Illinois, acting by and through the Division of Waterways of the Department of Purchases and Construction, and employed in connection with the construction of the Illinois deep waterway; that on the date in question, i. e., January 13, 1930, while engaged in construction work on said project, he fell into a hole about two feet deep and three feet in diameter, and was seriously injured by striking timbers which projected upward in said hole; that as a result of said injuries he suffered permanent disability, for which damages in the sum of Five Thousand Dollars ($5,000.00) are requested of the State; said employment being alleged to be a .hazardous one within the meaning of the Workmen’s Compensation Act.

Respondent, by the Attorney General, has filed a motion to dismiss the claim because the injury is alleged to have occurred January 13, 1930, and the claim was not filed until January 19, 1933, and that under Section 24 of the Workmen’s Compensation Act a recovery is barred. The claim would be barred by said section and the holdings of this court, as stated in the case of Crabtree vs. State, 7. C. C. R. 207, unless the fact that the claimant was employed on the Illinois Waterway exempts him from the limitations set forth in Section 24 of the Workmen’s Compensation Act.

Counsel for plaintiff have contended in their briefs in other cases of this character that the claim is filed under Section 25 of the Waterway Act, approved June 17, 1919 (Cahill’s Revised Statutes, Chapter 19), and that none of the provisions of the Workmen’s Compensation Act apply except those which prescribe the amount of compensation in the respective cases.

The court cannot concur in the further contention of plaintiff that the limitations of Section 24 of the Workmen’s •Compensation Act do not apply to this claim by reason of the fact that claimant was employed in the construction of the Illinois Waterway system and that by the terms of the later Act (Section 25, Paragraph 115, Chap. 19, Cahill’s Illinois Revised Statutes, 1933), the Workmen’s Compensation Act shall be referred to by the Court of Claims only for the purpose of ascertaining the amount of- the award.

The Illinois Waterway Act was passed, and approved June 17, 1919. Prior to the time of its passage the legislature had already provided for the hearing of all claims by this court against the State of Illinois. By Section 23 of the Waterway Act, the liability of the State for damages to real estate or personal property by reason of the construction, maintenance or operation of the Illinois Waterway and its appurtenances was made specific. By Section 24 all claims for damages to property or persons other than employees of the State were made determinable by the Department of Public Works and Buildings. It was apparently the desire of the legislature to make clear its intention that claims for damages by employees engaged in the waterway project should be left in the forum of this court for determination. It is provided in said Section 25, that

“The Court of Claims shall have and exercise jurisdiction over all claims for compensation hereunder.”

There is nothing contained in the wording of said section or anywhere in the Waterway Act which indicates that the court in exercising such jurisdiction should give to employees of the Illinois Waterway any different consideration in regard to the requirements of notice and filing claim and other provisions of the Workmen’s Compensation Act than those applied to all other employees.

There is no conflict between the Court of Claims Act, the Workmen’s Compensation Act and the Waterway Act, and the only question is as to whether there is any wording contained in said Section 25 of the Waterway Act which would indicate that a different rule should be applied by the Court of Claims in passing upon claims for compensation made thereunder than is applied to other claims.

The legislative act by which this court exists, provides that

“The Court o£ Claims shall hear and determine the liability of the State for accidental injuries or death * 6 * by any employee; further that such determination shall be made in accordance with the rules * * * of the Workmen’s Compensation Act.”

(Section 6 Court of Claims Act)

There is nothing in Section 25 of the Waterway Act that repeals, adds to or .modifies this enactment. It is provided in Section 25 that,

“The amount of such liability shall be ascertained by the Court of Claims by reference to the provisions of * * * the Workmen’s Compensation Act.”

but one cannot read into that language any intent to repeal or modify the existing law under which the Court of Claims hears compensation cases.

It appears from the record herein that no claim for compensation was made within six months after the accident and that no application for compensation was filed in this court within one year after such accident. Under the provisions of the Waterway Act, this court is to find the amount due the claimant. The court finds that there is no amount due, because of a failure of the injured employee to bring himself within the classification for the allowance of an award, by reason of his failure to comply with the provisions of Section 24 of the Workmen’s Compensation Act.

Motion to dismiss claim allowed.

Justice Hollebich,

dissenting:

I dissent for the reasons set forth in the case of Joseph Kump vs. State of Illinois, No. 1881.

C. N. Hollerich, Chief Justice.


author: Me. Chief Justice Hollebich

text:
    (No. 2095
    William Huff, Administrator of the Estate of Janie Huff, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 9, 1934.

    A. L. Williams, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent*
   Me. Chief Justice Hollebich

delivered the opinion of the court:

William Huff, as administrator of the estate of Janie Huff, deceased, filed his complaint herein on March 25, 1933, seeking* to recover damages for the pecuniary loss sustained by the husband and next of kin of said decedent by reason of her death, which occurred on September 25, 1931. On that date claimant’s intestate was engaged in the performance of her domestic duties in the yard at the rear of her home in Chicago, when she was struck by a bullet fired by certain police officers of said city who, in the performance of their duties, were in pursuit of a thief in that vicinity.

Claimant alleges in substance that such police officers were then and there in the employ of the City of Chicago, a municipal corporation; that said City of Chicago was an agent of the State, whose duty it was to preserve the peace and tranquillity thereof; that by virtue of their offices and the laws of this State, such police officers were conservators of the peace; that they were in the performance of their duties when claimant’s intestate was killed, and that her death was the result of the carelessness and negligence of such police officers; and claims that by reason of such facts the respondent is liable in this case for the pecuniary loss which the husband and next of kin of said decedent have sustained by reason of her death.

The Attorney General moves to dismiss the case for the following reasons:

1. Such police officers were in the employ of the City of Chicago, a municipal corporation capable of suing and being sued, and the State therefore is not liable for their acts.

2. The death of claimant’s decedent occurred on September 25,1931, and claim was not filed in this court until March 25, 1933, whereby the claim was barred by the provisions of Section two (2) of the Injuries Act of this State.

It is admitted that the police officers were appointed by and were agents of the City of Chicago. The State had no right to appoint them, had no control over their actions, and no right to discharge them. They were paid by the City of Chicago, and were in no sense agents of the State so as to bind the State by their acts in the performance of their duties, notwithstanding the fact that by virtue of their office, they were conservators of the peace of the State. There is no theory upon which the State can be held liable for their acts.

' It has long been the rule in this State that a municipal corporation is not liable for the acts of its police officers in the performance of their duties. Culver vs. City of Streator, 130 Ill. 238; Craig vs. City of Charleston, 180 Ill. 154; City of Chicago vs. Williams, 182 Ill. 135-137.

In the cases cited, as well as numerous other cases in this State, our courts have uniformly held that a municipal corporation, in the exercise of its police powers, is not liable for the acts of its officers, even though in violation of the laws of the State and in excess of the legal powers of the city. The ground for such decision is that in the enforcement of its police regulations and in the promotion and preservation of the public and general welfare, a municipal corporation is exercising a governmental function, and in the exercise of such functions is not liable under the doctrine of respondeat superior.

The same rule applies with equal force to State officers.

In this case there is no liability on the part of the State, because the police officers in question were the agents of the City of Chicago and not the agents of the State. However, even if they were agents of the State, the State would not be liable for their negligent acts which constitute the basis of this claim, for the reason that the State is not liable under the doctrine of respondeat superior for the negligence of its servants and agents.

It is suggested by the claimant that an award should be made on the ground of equity and good conscience.

The right of this court to make an award in any case on the ground of equity and good conscience was fully considered in the case of Crabtree vs. State, 7 C. C. R. 207, as well as in the case of Morrissey vs. State, No. 2235, decided at the January term, 1934, of this court. In those cases, we held in substance that the jurisdiction of this coqrt is limited to claims in respect of which the claimant would be entitled to redress against the State-either at law or in equity, if the State were suable; that this court has no authority to allow any claim unless there is a legal or equitable obligation on the part of the State to pay the same, however much the claim might appeal to the sympathies of the court; that unless the claimant can bring himself within the provisions of a law giving him the right to an award, he cannot invoke the principles of equity and good conscience to secure such an award.

The same conclusion was reached by this court in numerous previous cases. See Schmidt vs. State, 1 C. C. R. 76; Jorgenson vs. State, 2 C. C. R. 134; Ryan vs. State, 4 C. C. R. 57; Watkins vs. State, 6 C. C. R. 172; Mercer vs. State, 6 C. C. R. 20; Peterson vs. State, 6 C. C. R. 77; Perry vs. State, 6 C. C. R. 81.

The claimant has not established a case wherein he would be entitled to redress against the State if it were suable, and consequently we have no authority to make an award. It therefore becomes unnecessary to consider the second point raised by the Attorney General.

It is Therefore Ordered that an award be denied and the case dismissed.