text:
    (No. 4998
    John P. Stephanites, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Hollerich and Hurley and William J. Wimbiscus, Jb., Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Wabman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks $16,916.18 in damages allegedly incurred by loss of salary during his suspension as an employee of the Illinois State Highway Police.

The parties have stipulated as follows: On October 2, 1958, claimant, John P. Stephanites, was employed as a State Police Officer in the State of Illinois with the rank of Sergeant. He had been so employed since July 15, 1941. On October 3, 1958, claimant was suspended on the complaint of William H. Morris, Superintendent of the Division of State Highway Police of the Department of Public Safety. A complaint was filed by said William Morris with the State Police Merit Board charging said claimant with conspiracy, together with other persons, to violate the over-weight and over-width statutes of this State. After several hearings the Merit Board, in a decision dated March 23, 1959, found claimant guilty, and ordered his discharge from the Illinois State Highway Police.

On. April 17, 1959, claimant filed a complaint in the Circuit Court of Bureau County requesting a judicial review of the decision of the State Police Merit Board. Upon hearing, the Circuit Court of Bureau County entered an order reversing the decision of the Merit Board, and thereafter the Merit Board appealed the decision of said Circuit Court to the Appellate Court of Illinois, Second District. In its decision of May 1,1961, the Appellate Court sustained the order of the Circuit Court of Bureau County reversing the State Police Merit Board. No further proceedings have been held in the matter, and the decision of the Appellate Court is now final. On August 16, 1961, claimant was reinstated to his former position as a Sergeant of State Highway Police, and since that date has been and is now performing the duties of such position.

The parties have further stipulated that claimant has received no salary from the State of Illinois for the period of October 3, 1958 to August 16, 1961, and that he would have, during said' period, received $17,517.00 in salary from the State of Illinois had he not been suspended.

Respondent argues that claimant should not recover any back salary, since claimant did not prove that at all times during his three-year period of suspension he made every reasonable effort to obtain employment. Respondent further contends that claimant had been replaced in his position in the department, and is, therefore, not entitled to recover any back salary under the rule that payment to de facto employees is a complete bar to a cause of action for back salary.

The evidence does not support the affirmative defense alleged by respondent that claimant had been replaced in his position in the department. Respondent’s witnesses testified that the records do not indicate whether anyone was hired specifically to handle the duties of claimant, although there were some promotions made after his suspension. A letter from State Highway Police Superintendent Morris to the Attorney General, admitted as respondent’s exhibit No. 1, states: “therefore, we cannot say with any certainty that any one man was promoted or hired to replace any individual suspended.”

However, it is well established that it is the duty of all suspended State employees to mitigate damages incurred through loss of salary due to suspension and discharge, and to do all in their power to seek, find, and accept other employment during the period following discharge. Schneider vs. State of Illinois, 22 C.C.R. 453; Otto vs. State of Illinois, No. 4744; Poynter vs. State of Illinois, 21 C.C.R. 393; Kelly vs. Chicago, 409 Ill. 91.

Claimant must prove that he did all in his power to mitigate his damages by seeking employment. If he does not so prove, it is the function of this Court to determine the reasonable amount whereby an award should be mitigated. Schneider vs. State of Illinois, 22 C.C.R. 453.

Claimant testified that he made numerous attempts to search for jobs. His principal efforts were directed at jobs with construction companies and factories. He obtained employment on approximately four occasions. On two of these occasions he worked for a construction company. He also did odd jobs for the City of Spring Valley, and worked for the cemetery sexton. None of these jobs lasted more than a week, and his total earnings from these endeavors was only $600.83 for nearly a three-year period.

Claimant contends that he was hampered in obtaining employment because of his lack of education or special training, the fact that he was not a member of a union, and the further fact that he was more than 50 years of age.

It is the opinion of the Court that claimant has not established that he did all in his power to mitigate his damages by seeking and obtaining employment. We presume that one, who has attained the position of Sergeant in the Illinois State Highway Police, is a person of substance, and has reasonable ability to undertake a variety of jobs. Even if claimant sought menial work, he should have been able to earn $1.00 an hour for a forty-hour work week. The record shows that claimant concentrated his efforts to obtain employment principally on selective types of higher rated jobs.

In the light of the facts herein, it is the opinion of the Court that claimant’s recovery should be mitigated to the extent of $40.00 per week for the time he was unemployed. For the period involved, this would equal the sum of $4,970.00.

Claimant is hereby awarded $13,547.00.


source: Caselaw Access Project

author: Perlin, C. J.

license: Public Domain

text:
    (No. 5005
    Robert Worden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Barash and Stoerzbach, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Robert Worden, seeks recovery for loss of wages incurred when he was suspended and discharged from his duties as a State Police Officer from October 4, 1958 until his reinstatement on August 16, 1961.

The facts of this case disclose that claimant was employed as an officer of the Division of State Highway Police of the Department of Public Safety from February 6, 1950 until October 4, 1958. On such date he was suspended from his duties as a State Police Officer for an indefinite period, pending disposition of charges filed by the State Police Merit Board. After a hearing before the Board on charges filed against claimant, he was discharged from the Illinois State Highway Police on March 23, 1959. He appealed the order of discharge to the Circuit Court of Bureau County, Illinois. That court adjudged the order of the State Police Merit Board to he erroneous, and reversed the decision and order of the Board. The Merit Board then appealed the Circuit Court decision to the Appellate Court of Illinois, Second District. On May 6, 1961, the Appellate Court affirmed the order and decision of the Circuit Court of Bureau County.

Upon demand by claimant to Mr. William H. Morris, Superintendent of the State Highway Police, he was reinstated to his position as an officer of the Division of State Highway Police on August 16, 1961.

The parties have agreed that the sum, which would have been paid to claimant had he not been suspended or discharged from October 4, 1958 to August 16, 1961, is $17,459.06.

This Court has held that, where a Civil Service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal with set-offs of any earnings during the time of removal. (Schneider vs. State of Illinois, 22 C.C.R. 453 at 460; Pointer vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202.) In the Schneider case and Otto vs. State of Illinois, No. 4744, this Court has further held that a claimant in this situation must do all in his power to mitigate damages.

In the instant case, claimant has testified and presented evidence in the form of full income tax returns showing that, after his suspension and discharge, he earned $857.25 during the remainder of 1958; $3,976.48 during 1959; and $2,941.47 during 1960. Claimant explained that his net income for 1961 until August 16 was only $5.08, since his earnings were offset by the losses incurred in the operation and sale of his service station. Claimant testified that he was required to dispose of the business upon reinstatement to the State Highway Police Department, because it is a departmental policy that an officer may not have a business interest in his own name, or have an active part in business interests.

It is the opinion of the Court that claimant has amply demonstrated his intent to mitigate his damages, despite the loss from the sale of his service station. He acted reasonably in obtaining a business, which could be expected to sustain himself and his family, and provide employment.

Claimant earned $7,780.28 during the period of his suspension. This amount will be used in mitigation of his claim of $17,459.06.

Claimant is hereby awarded the sum of $9,678.78.


text:
    (No. 5017
    Booker T. Young, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Paul F. Blanks, Attorney for Claimant.

      William G. Clark, Attorney General; C. Abthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant seeks recovery of $684.54 in wages lost due to suspension from his position as a Psychiatric Aide at the Manteno State Hospital at Manteno, Illinois.

The facts in this case are undisputed, and the filing of briefs or arguments were waived. On April 10, 1961, claimant was suspended from his position as a result of charges filed against him by the Department of Public Welfare and approved by the Department of Personnel.

On May 5,1961, the Civil Service Commission of the State of Illinois held a hearing on such charges, and by decision dated September 12, 1961 judged the testimony supporting the charges against claimant to be insufficient, and ordered that he be retained in his position.

As a result of his suspension, claimant did not work from April 11 until October 4, 1961. After returning to work on October 4, 1961, claimant was allowed, and was paid full salary payments from July 1, 1961. He did not receive any salary or compensation for the period beginning April 11, 1961 to and including June 30, 1961.

The parties stipulated that, on and before April 10, 1961, claimant was paid by the State of Illinois and the Department of Public Welfare at the basic pay rate of Two Hundred Sixty Dollars ($260.00) per month.

The decision of the Civil Service Commission concerning claimant’s suspension and discharge, which was entered on September 12, 1961, provided:

“It is, therefore, the decision of the undersigned Hearings Referee that the respondent be and he is hereby retained in his position as ‘Psychiatric Aide I’ in the Department of Public Welfare, State of Illinois, petitioner herein, with full compensation, as provided in Section 11 of the Personnel Code (Chap. 127, Par. 63 b 111, Ill. Rev. Stats., 1959).”

Claimant, Booker T. Young, testified that, during the period of April 11, 1961 to June 30, 1961, he did not receive any wages or compensation for work or services or employment performed of any nature. The only income he received was $55.00 from the Township Belief Office in Kankakee. Apparently the appropriations provided in the legislative biennium had lapsed for the period prior to July 1, 1961.

Claimant is, therefore, entitled to the sum of $684.54, less the $55.00 paid by the Kankakee Township Belief Office.

Claimant is hereby awarded $629.54.


author: Pezman, J.

text:
    (No. 5019
    Albert J. Barauski, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Charles M. Nelson and James D. O’Grady, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward G. Finnegan, Assistant Attorney General, for Respondent.
   Pezman, J.

Albert J. Barauski, claimant, seeks to recover the sum of $17,352.00 in salary for a period of suspension from October 12,1958 to August 16,1961, when the claimant was restored to his position as a Sergeant in the lilinois State Police as the result of a decision by the Appellate Court of the State of Illinois.

The evidence discloses that claimant was employed as a State Police Officer by the State of Illinois from March 28,1949 to October 11, 1958, at which time he was suspended from duty by the Superintendent of the Illinois State Police. At the time of his suspension he was a Sergeant. Hearings were held before the State Police Merit Board relative to the charges filed against claimant, and, by order and decision of that Board, dated March 23, 1959, claimant was discharged. Claimant filed an application for judicial review of the decision of the State Police Merit Board, and, after a hearing, the Circuit Court of Bureau County, Illinois, reversed the findings of the Merit Board. The State of Illinois, respondent, then appealed to the Appellate Court of the State of Illinois in the Second District. This Court considered the merits, and affirmed the decision of the Circuit Court of Bureau County, reversing the State Police Merit Board. No further proceedings were held relative to the matter, and the decision of the Appellate Court became final. Claimant was restored to duty on August 16,1961. There is no dispute as to the amount, being $17,352.00, in salary lost during the period of suspension.

Respondent contends that it is entitled to a set-off for wages earned by claimant during the period from October 11,1958 to August 16,1961, and that all earnings of claimant during the period of suspension and wrongful dismissal be used as a set-off in determining the amount of the claim against the State of Illinois.

Claimant contends that he had applied for and received permission from the Superintendent of Illinois State Police, Phil M. Brown, to perform off-duty employment, and that this provision had never been revoked. He testified that he had authority to work 20 to 25 hours a week, based on 4, 5 or 6 hours a day, as a compositor. Claimant stated that he made reports from time to time to his superiors relative to his off-duty employment. Claimant argues that, in the event respondent is entitled to a set-off, the entire amount of claimant’s earnings during his period of suspension should not be taken into consideration, because claimant had permission to work a portion of this time. Claimant testified that after his wrongful suspension he took up his trade on a full-time basis. It is this contention of claimant upon which the Court has focused its greatest attention. This Court has recognized time and time again that it is the duty of the claimant to mitigate his alleged damages by doing everything in his power to seek, find and accept other employment during the period of his illegal suspension. This position has been supported by Schneider vs. State of Illinois, 22 C.C.R. 453, Otto vs. State of Illinois, No. 4474, Kelly vs. Chicago, 409 Ill. 91, Poynter vs. State of Illinois, 21 C.C.R. 393, and many others cited by this Court on numerous occasions.

The evidence shows that claimant was a compositor by trade prior to his employment by the Illinois State Police, and that upon his suspension he returned to this trade as a full-time employee. The same transcript of evidence discloses that, during his employment by the Illinois State Police from March 28, 1949 until the time of his resignation subsequent to his restoration, claimant had always worked the shift from 12:00 M. to 8:00 A.M., in order that he could work part-time at his trade as a compositor. The evidence clearly discloses that his superiors were fully aware of his extra employment, and that he had complied with the regulations of the Department with regard to procuring approval for part-time work outside of his regular hours of employment as a State Policeman. Claimant testified that he had the authority to work 20 to 25 hours a week, based upon 4, 5 or 6 hours a day, and this testimony was not disputed by any of respondent’s witnesses.

It is the contention of claimant that, should this Court find that he is not entitled to the full amount of his salary lost by him during the period of his suspension and wrongful dismissal, he should be entitled to a reasonable application of the mitigation rule by virtue of the fact that he had previously been given the right to work at least half of the amount of time that he was working during his suspension. The proof in the case at hand further indicates that he was not able to work more than 40 hours per week as a compositor during the period of his suspension. We find some merit in claimant’s contention as to the reasonableness of the application of the rule to mitigate, and believe that the set-off must be reasonable. Claimant establishes a total loss of salary during his suspension of $17,352.00. The evidence introduced in his behalf indicates that his earnings during that same period of time amounted to $15,742.00. We hold that claimant should not be penalized, and his claim only mitigated to the extent of one-half of his earnings, or the sum of $7,871.00.

Claimant is, therefore, awarded the sum of $9,481.00.


author: Pezmatt, J.

text:
    (No. 5020
    Nicholas Mellas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Wolslegel and Armstrong, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward G. Finnegan, Assistant Attorney General, for Respondent.
   Pezmatt, J.

Claimant, Nicholas Mellas, by reason of his reinstatement by the Illinois Civil Service Commission following his disciplinary suspension and wrongful discharge by the Illinois Youth Commission, seeks to recover back salary in the amount of $1,603.33.

The parties hereto stipulated as follows: That claimant, presently a Guard Sergeant at the Industrial School for Boys in Sheridan, Illinois, was appointed to his present position on February 16, 1954, and performed his duties until written charges seeking a thirty day disciplinary suspension pending discharge was served on claimant on February 20, 1961; that notice of grievance concerning this disciplinary suspension pending discharge was filed with the Chairman of the Illinois Youth Commission on March 1,1961; that on March 20,1961 written charges seeking the discharge of claimant, effective March 20, 1961, were served on claimant; that claimant appealed by written notice of appeal to the Illinois Civil Service Commission; that a hearing was held before John Morrow, Hearings Referee, on April 28, 1961, and, on November 22,1961, Morrow’s decision was that claimant be retained in his position as Guard Sergeant at the Illinois Industrial School for Boys with full compensation ; that the decision was unanimously concurred in by the Illinois Civil Service Commission on November 29, 1961; that claimant requested the Director of the Department of Personnel to review the thirty day disciplinary suspension in accordance with the Department of Personnel Rule No. 25; that the Department of Personnel, through its Director, replied by letter stating that the Department would be bound by the ruling of the Civil Service Commission as to the thirty day disciplinary suspension insofar as the accrual pay and other benefits were concerned; that on December 15, 1961 the Director of the Department of Personnel, by letter, recommended to the Chairman of the Illinois Youth Commission that claimant be paid his regular monthly salary from February 20,1961 to March 20, 1961, the period of disciplinary suspension.

In the cause at hand, claimant Mellas testified that he had no employment, and earned no money during the time he was wrongfully suspended and discharged except the sum of $112.00 in National Guard drill pay, He further stated he had received no salary for the period from February 20, 1961 to July 1, 1961, but that he was paid $1,530.70 back salary from July 1, 1961 to December 10, 1961 by the Youth Commission. Claimant further testified that his gross salary of $1,603.33 for the period from February 20,1961 to July 1,1961 was not paid due to the fact that the appropriation for the salary for the period in question had lapsed. These facts were confirmed by the testimony of Dr. Arthur E. Wright, Superintendent of the Illinois Industrial School for Boys at Sheridan, who was also called as a witness. Dr. Wright testified claimant was paid back salary for the period from July 1, 1961 to November 30, 1961, and further stated that claimant would have been paid his salary from February 20, 1961 to July 1, 1961, if the appropriation had not expired. Respondent raises the argument that it was the duty of claimant to mitigate his alleged damages by securing employment; that, in fact, it became incumbent upon claimant to show that all times during his ten month period of suspension he made every effort consistently to obtain employment.

The principle that it is the duty of every suspended State employee to mitigate damages incurred through loss of salary due to suspension and discharge, and to do all in their power to seek, find, and accept other employment during the period following discharge is well established. Schneider vs. State of Illinois, 22 C.C.R. 453; Otto vs. State of Illinois, No. 4744; Pointer vs. State of Illinois, 21 C.C.R. 393; Kelly vs. Chicago, 409 Ill. 91, and many others. However, the mitigation rule cannot be broadly applied without distinction as to the particular facts of each case. In the ease at hand, we are only concerned with the period from February 20, 1961 to July 1, 1961, or a total of approximately four months and ten days of the total suspension of ten months. The Youth Commission has already paid him his back salary from July 1,1961 to November 30, 1961, after being told to do so by the Department of Personnel. During the four month period involved in the claim at hand, claimant was grossly occupied defending the charges against himself. The facts reveal that written charges were served on claimant on February 20, 1961. These charges sought a thirty day disciplinary suspension pending discharge. Subsequently, on March 1, 1961, a notice of grievance concerning this disciplinary suspension was filed with the Chairman of the Youth Commission. On March 20, 1961, written charges seeking the discharge of claimant, effective March 20, 1961, were served on claimant, and after that claimant appealed by written notice of appeal to the Illinois Civil Service Commission for a hearing in defense of the written charges. A hearing was held before the Hearings Eeferee on the 28th day of April, 1961, and again later on November 22nd of the same year. It is easy to discern that claimant had his hands full defending the charges against him during the period for which the appropriation has lapsed for salary that he claims. The basic facts are not in dispute between the parties hereto, nor are the amounts claimed by claimant disputed by respondent, and, in fact, the chief witness called by respondent, Dr. Arthur Wright, Superintendent at the Industrial School, testified that claimant was not paid for the period of February 20, 1961 to July 1, 1961, but was paid for the period from July 1, 1961 to November 30, 1961, and that claimant would have been paid his salary for the prior period starting February 20th, if the appropriation had not expired.

It is the opinion of this Court that claimant has clearly established his right to recover his back salary for the period involved, February 20, 1961 to July 1, 1961, without the application of the rule requiring him to mitigate by seeking and obtaining employment. The application of this rule has been distinguished herein, and the particular facts involved in this cause, including the short span of time, the large number of charges and defenses required of claimant, cause this Court to believe that claimant could not have had much time during the four month and ten day period within which to mitigate, and still prepare his own defense.

Claimant is hereby awarded the sum of $1,603.33.


text:
    (No. 5047
    Bongi Cartage, Inc., A Corporation, and Salvatore Annoreno, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.
    Joseph I. Bulger, Attorney for Claimants.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimants here seek to recover, the sum of $1,500.00 by reason of their contention that the Police Magistrate’s order of forfeiture of a fine was illegal and void and ex parte and without legal effect, and that, as a result thereof, the transmission of the bond to the State Treasurer of the State of Illinois was without warrant in law, and should not have been made. Claimants seek to have this Court enter an order directing the State Treasurer to return to claimants, through their attorney, the monies held by the State Treasurer.

From the pleadings and exhibits in this cause, it appears that, on May 3, 1961, claimant, Salvatore Annoreno, was arrested for an alleged violation of the Illinois Motor Vehicle Law for gross over-weight, overweight on license, and no identification card in the cab of the truck. Two tickets were issued, and he was ordered to appear on May 11, 1961 at the hour of 4:00 P.M. before the Police Magistrate.

It further appears that claimant, Bongi Cartage, Inc., posted as bail, guaranteeing the appearance of claimant, their check No. 32397 in the sum of $1,500.00. The check was payable to Police Magistrate James E. McBride. Claimants then engaged the services of an attorney, Joseph I. Bulger, to represent them at the hearing-before the Police Magistrate, who entered his appearance on behalf of claimants, and requested that he be notified of the date of trial. The evidence at hand clearly indicates that no answer was ever received either by claimants or by their counsel as to the date the case was continued to, and, further, we find that an ex parte judgment was entered against claimants, and there was a forfeiture of the $1,500.00 bond. Subsequently, the bond funds were transmitted in the sum of $1,450.00 to the State Treasurer by the Police Magistrate. We presume that the $50.00 was retained as costs. Subsequently, claimants’ counsel successfully filed a petition to vacate and set aside the bond forfeiture, and to have the cause reinstated and set down for trial.

On June 29, 1962, claimants’ counsel, Joseph I. Bulger, filed a complaint in the Court of Claims seeking to recover the forfeited bond. On July 12, 1962, respondent filed a motion to strike and dismiss the complaint of claimants, and, on November 13 of the same year, this Court in an order entered principally by the three Judges thereof, denied the motion to strike and dismiss, and held as follows:

“In the present case, the forfeiture was ex parte and involuntary, without claimants having the benefit of a hearing to determine their guilt or innocence. For the reasons above stated, it is, therefore, the order of this Court that respondent’s motion to strike and dismiss is hereby overmled.
“It is further ordered that the order of the Police Magistrate should be carried out, and that hearings be held on the violations set forth.
“It is further ordered that the monies deposited with the State Treasurer he held until a final determination of the violations set forth by exhibits A, B and C has been finally made.”

On March 19, 1963, claimants ’ counsel filed with this Court a certified copy of the order of the Justice of the Peace in Cook County determining the causes involved in which the Bongi Cartage Company and Salvatore Annoreno were defendants. The Justice of Peace Court determined the causes on behalf of the defendants. We quote in part from that decision:

“This court having been advised that heretofore the said bail was forfeited and erroneously remitted to the State Treasurer in the sum of $1,450.00 by the aforesaid Police Magistrate, and the defendants have heretofore filed their petition to recover said bail in Cause No. 5047 in the Court of Claims of the State of Illinois, which Court has entered an order, which this court has duly considered, therefore, since the matter has been adjudicated in favor of the defendants said money be returned and forwarded to this court.”

The order is signed by C. August Taddeo, Justice of the Peace, Village Hall, Melrose Park, Illinois.

At this setting, this Court feels that it has neither the power to order the State Treasurer of the State of Illinois to refund any monies, which have been transmitted to the Treasury, nor the power to order said funds transmitted by the Treasurer of the State of Illinois to the Justice of the Peace in Melrose Park, Illinois. However, we feel strongly that claimants have been wronged in the manner in which their cause was handled in the original Police Magistrate Court, and said claimants have clearly established that $1,450.00 of their money has been transmitted into the hands of respondent through the Treasurer of the State of Illinois. In the case of Richard F. Smith vs. State of Illinois, 21 C.C.R. at page 459 and 460, claimant paid his fine to the Clerk of the County Court, and the money was then remitted to the State Treasurer. This Court, in that ease, stated as follows: “No statute is cited making provision for repayment of fines voluntarily paid. Such a voluntary payment is made under a mistake of law, if it develops that the fine should not have been imposed.”

The Court held further, ‘ ‘ Similarly, when a fee or tax is paid voluntarily, with knowledge of the fact, it cannot be recovered in the absence of a statute authorizing such recovery.” Great American,Insurance Company vs. State of Illinois, 19 C.C.R. 91; American Can Company vs. Gill, 364 Ill. 254. We feel that the decision of this Court, as written by Judge Farthing in the Smith case, supports claimants in the case at hand. Claimants in the cause we are considering paid the bond involuntarily, and this same bond was illegally transmitted to the State Treasurer of the State of Illinois after an ex parte hearing in which judgment was found against claimants. Clearly, in this case, claimants have protested long and loud, and have acted to protect their rights after the involuntary payment. Claimants’ counsel filed a petition to vacate and set aside the previous order of the Police Magistrate, and then later, after a change of venue to a Justice of the Peace, obtained an order or adjudication in favor of his clients with relation to the charges that were contained in the original hearing before the Police Magistrate.

We find this cause on behalf of claimants, and award them the sum of $1,450.00.


text:
    (No. 5079
    Commonwealth Edison Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    Joseph C. Sibley, Jr., and Emmett T. Gallagher, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Commonwealth Edison Company, seeks recovery of $2,726.23 for the temporary relocation of its company facilities to clear construction for a new dam across Fox River at Geneva, Illinois.

The parties hereto have stipulated in part as follows:

“1. Commonwealth Edison Company, An Illinois Corporation and claimant herein, is a public utility engaged in the business of generating, distributing and selling electricity in northern Illinois.
2. Commonwealth Edison Company and the State of Illinois, Department of Public Works and Buildings, Division of Waterways, entered into an agreement at the special instance and request of said Division of Waterways whereby Commonwealth Edison Company was to temporarily relocate and later restore certain of its poles, conductors and other facilities to clear construction for a new dam being constructed by the State across the Fox River in Geneva, Kane County, Illinois, and the State was to reimburse Commonwealth Edison Company for the actual cost of such work.
iVi
5. The Seventy-first biennium appropriation out of which the bill was payable had lapsed at the time the bill was mailed, and the funds to pay said bill were no longer available to the Division of Waterways, and Commonwealth Edison Company was so advised by letter, a tme copy of which is attached to the complaint herein as exhibit ‘D’.”

There being no questions of law or fact in controversy, as reflected by the stipulation of the parties hereto, by and through their respective counsel, an award is hereby made to claimant in the sum of $2,726.23.


text:
    (No. 5081
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1963.

    William A. Schuwerk, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, County of Randolph, seeks reimbursement of $12,903.00 in expenses incurred by claimant and its officials for services performed in connection with court proceedings involving petitions for Writs of Habeas Corpus by the inmates of the Illinois State Penitentiary and the Illinois Security Hospital. These are penal and charitable institutions of the State of Illinois. Both are located within the County of Randolph.

The parties have stipulated as follows:

“First: That divisions of the Illinois State Penitentiary, a State penal institution of the State of Illinois, are situated in Randolph County, Illinois;
“Second: That Petitions for Writs of Habeas Corpus in forma pauperis by inmates of the Illinois State Penitentiary, not residents of or committed from Randolph County, are frequently filed in the Circuit Court of Randolph County;
“Third: That by virtue of certain statutory provisions (Chap. 65, Pars. 37, 38 and 39, Ill. Rev. Stats., 1961) the State of Illinois is required to assume and pay the necessary expenses, including all costs and fees of County officers, arising from such Petitions for Writs of Habeas Corpus;
“Fourth: That attached to the complaint as claimant's exhibit ‘A’ is a list of the Petitions for Writs of Habeas Corpus in forma pauperis filed in the Circuit Court of Randolph County between the dates of October 31, 1960 and October 31, 1962, inclusive, which is a true and correct itemization of said petitions filed between the said dates, and, further that in all cases on the said exhibit ‘A’, wherein amounts are itemized as Sheriff’s fees and State’s Attorney's fees, Writs of Habeas Corpus were issued and hearings held before the Circuit Court of Randolph County;
“Fifth: That claimant, County of Randolph, claims in this action all amounts to which it is entitled in the cases listed in exhibit ‘A’ for filing fees, Sheriff’s fees and State’s Attorney’s fees, and, further, that a similar claim based upon similar items of expenses, but arising out of other cases, was presented by the County of Randolph, and determined by this Court in Claim No. 4854, 23 C.C.R. 136, and again in Claim No. 4959, opinion filed May 9, 1961;
“Sixth: That none of the petitioners set forth in exhibit ‘A’, attached to the complaint herein, were residents of or committed from Randolph County, Illinois;
“Seventh: That no claim has been presented to any State Department other than the filing of the complaint herein, and that there has been no assignment of any of the items herein claimed;
“Eighth: That the Board of County Commissioners of Randolph County adopted a resolution on February 15, 1962 imposing an additional fee of $1.00 upon all cases filed in the Circuit Court of Randolph County for library purposes as authorized by Ill. Rev. Stats., 1961, Chap. 81, Par. 81;
“Ninth: That this stipulation is entered into solely as a stipulation of fact for the purpose of avoiding the necessity of presenting testimony, and, if conclusions are included herein, they are not to be binding upon either the parties or the Court.”

The Commissioner’s Report stated that the Commissioner, the State’s Attorney of Randolph County, and an Assistant Attorney General of the State of Illinois appeared in the Circuit Court of Randolph County, and examined the entries in the court docket. The Commissioner found that the amounts prayed for in the complaint are true and accurate, and that claimant is entitled to be paid the total sum of $12,903.00.

We, therefore, award the County of Randolph the sum of $12,903.00.


text:
    (No. 4722
    Joanne Kavalauskas, A Minor, and Patricia Kavalauskas, A Minor, By Emily Kavalauskas, Their Mother and Next Friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1963.

    Perlin and Lee, Attorneys for Claimants.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Pezman, J.

Joanne Kavalauskas, a minor, and Patricia Kavalauskas, a minor, by Emily Kavalauskas, their mother and next friend, claimants, by their attorneys, Perlin and Lee, filed their complaint herein against the State of Illinois, on May 21, 1956, based on injuries received by claimants growing out of an automobile collision, which occurred on November 23, 1951 at 6535 S. California Avenue, Chicago, Illinois. Claimants, Joanne Kavalauskas, then age 15, and Patricia Kavalauskas, then age 6, were passengers in an automobile, which was being driven on California Avenue by one Franciska Zeruolis. It is alleged that the automobile struck an opening in the street, which had been made for the installation of a sewer, which opening was approximately 3 feet by 5 feet and approximately 1 to 1% feet deep. Claimants contend that they were seriously injured as the direct result of the automobile running into said hole, which caused the driver to swerve the car out of control and into a parked automobile. They further contend that, because of the negligence of the State of Illinois in allowing the street to remain unrepaired and failure to provide proper maintenance, said claimants were seriously injured.

Respondent did not file an answer, but made a general denial. A subsequent Departmental Report was made a part of the record. In it the State clearly admits that it has the exclusive right and responsibility to issue permits for cutting openings into or through the pavements under its jurisdiction. The same Report further indicates that the opening referred to in this cause was made by one certain Peter Loye of 5735 S. Peoria Street, Chicago, Illinois, in accordance with Permit No. 7736, issued by the City of Chicago, through its Department of Streets and Sanitation, Bureau of Streets. It was substantially proved that the City of Chicago had no authority to issue such a permit, or to grant the right to cut an opening into the street.

The State of Illinois is not an absolute insurer of any accident, which occurs upon its public highways. Claimants herein must prove that the negligence of respondent was the proximate and direct cause of the accident, and must do so by a preponderance of the evidence. We find that the evidence herein does not reveal such negligent acts on the part of respondent. The opening was apparently made by a contractor, Peter Loye, in the course of his business, and in accordance with the permit, which he had obtained from the City of Chicago. The State of Illinois was never notified that he was going to make the opening, and there was no evidence in the transcript that the opening was in the street for any-sustained period of time before the accident, nor any proof that the State of Illinois had knowledge of the opening.

We find that claimants have failed to prove their case by a preponderance of the evidence, and have not established the negligence of respondent as the proximate cause of the injuries.

An award to claimants is, therefore, denied.

Judge Perlin did not participate in the consideration and determination of this case.


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    (No. 5102
    Andrew J. Lindeen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 20, 1963.

    Van Meter and Oxtoby, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Andrew J. Lindeen, was suspended from duty as an officer of the Division of State Highway Police of the Department of Public Safety, State of Illinois, on February 16, 1961, pending disposition of charges to be filed with the State Police Merit Board. At that time claimant held the rank of Captain in the State Highway Police. On March 17, 1961, a hearing before the Illinois State Police Merit Board found claimant guilty as charged, and the Superintendent was ordered to discharge him from the Illinois State Police Force.

Claimant thereafter sought a judicial review of the order of discharge. The Circuit Court of Sangamon County upon trial reversed the decision of the State Police Merit Board, and ordered claimant reinstated to his former position as Captain with back salary from the date of his suspension. The Merit Board subsequently appealed said decision to the Illinois Supreme Court. On September 28,1962, the Supreme Court remanded the case to the Board for further hearing.

However, no further proceedings were conducted by the State Police Merit Board, because an agreement was effected by the parties. The charges filed against claimant were withdrawn, and the matter dismissed without prejudice.

On January 10, 1963, claimant was restored to the Force, and accepted a demotion to the rank of Corporal effective February 16, 1961.

Claimant has received back pay from July 1, 1961. He has received no salary from the State of Illinois from February 16,1961 to June 30,1961, and claims salary for such period in the amount of $2,385.00 less a set-off of his earnings for such period of $1,261.09. The biennial appropriation had lapsed for said period.

A stipulation of the parties in this case provides in part as follows:

. . that the record in this case shall consist of the Report of the Department of Public Safety, dated May 7, 1963, signed by Robert Davlin, Technical Advisor, together with copies of correspondence attached thereto and by reference made a part thereof. .

An order was entered by this Court granting leave to waive the filing of briefs and arguments.

The report of the Department of Public Safety, dated May 7, 1963, states that the base pay for a Corporal during the period of time in question was $505.00 per month. The following statement also appears therein: “Accordingly, deducting the earnings during the period of suspension of $1,261.09, there would be due the sum of $997.37 rather than $1,123.91 as alleged.” There appears to be no subsequent correspondence in the record, and we assume that the figure of $997.37 is the agreed sum involved.

Claimant is hereby awarded the sum of $997.37.


author: Tolson, J.

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    (No. 4887
    Russell F. Schoeneich, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

      Petition of Claimant for Rehearing denied July 26, 1963.
    John R Shively, Attorney for Claimant.
    William G. Clark, Attorney General; Edward G. Finnegan, Assistant Attorney General, for Respondent.
   Tolson, J.

On October 16, 1959, claimant filed his complaint seeking an award in the amount of $25,000.00 for the loss of the distal phalanx of the second finger of his left hand.

Claimant alleges that the State was negligent in not providing proper safeguards on the punch press, which he operated while an inmate at the Joliet Branch of the Illinois State Penitentiary.

The case was heard by Commissioner George W. Presbrey, and his report is set forth as follows:

“The evidence was heard in the above entitled cause on February 23, 1962. John R. Snively represented claimant, Russell F. Schoeneich, and Edward Finnegan, Assistant Attorney General, represented respondent, State of Illinois. This is a claim by Russell F. Schoeneich, an inmate of the Illinois State Penitentiary, against the State of Illinois to recover damages for personal injuries sustained by him while an inmate in the Illinois State Penitentiary.
“On March 23, 1959, while claimant was operating a punch press, his hand was caught in the die of the machine, crushing the distal phalanx of the middle finger of the left hand. The first joint or distal phalanx of said middle finger was amputated.
“The facts in this case are not particularly unique. There is a difference of opinion between claimant and respondent as to whether claimant was assigned to work at the metal shop, or whether he was directed to do so by the prison authorities. Respondent contends that work at the metal shop is sought by the prisoners, and they are only assigned to the work in said shop upon receiving a request by the inmate in question. A worker in the metal shop is paid approximately $12.00 per month. Claimant contends that he was directed to work in the metal shop.
“It appears that claimant was first assigned to work in the power house. He was subsequently transferred to the metal shop, and was assigned to operate a grinder, and thereafter a punch press. The claimant was familiar with the operation of a punch press. He had operated the punch press in question for a period in excess of nine months prior to the date of the alleged accident.
“The machine in question is operated by a foot pedal. Claimant contends that the punch press ‘double punched’. In other words, the machine punched the first time when the pedal was operated by claimant, and again operated without the foot pedal being depressed. Claimant stated the machine had never double punched before.
“Clinton Vaught, Superintendent of the Sheet Metal Shop, testified that a prisoner is first placed on a non-pay job, and then goes to a waiting list. Subsequently, when their turn comes, they are placed on the pay job. They are usually given some choice as to the type of job upon which they are placed.
“It appears that the machine in question was approximately five years old at the time of the accident. He testified that they had had no trouble with this machine prior to or subsequent to said accident. The foot lever is covered, so that a person other than the operator could not trip said machine. The operator of the machine must slip his foot into a covered slot to operate the machine. The only safety device on the machine was the trip lever in question.
“Claimant contends that the Health and Safety Rules of the State of Illinois, as adopted by the Industrial Commission, provide that toggles, or a device to pull back the arms of the operator when the machine is tripped, should have been installed on the machine in question. The machine in question did not have such a device. On cross-examination, Vaught stated that the only repairs to the machine were made approximately one year ago.
“If the press double punched, then respondent could be liable for the injuries, for an inference of negligence would certainly be present on the part of respondent. If, however, the machine in question did not double punch, but the plaintiff had merely negligently caught his hand in the die of said machine, then claimant would be guilty of contributory negligence, and would not be entitled to recover.
“There is evidence in the record that respondent installed a different type of switch on the machine after the accident. Vaught testified this was merely for additional protection, and that there has (never been any trouble with the machine double punching. Claimant had operated the machine for a period of approximately nine months prior to the accident. There is no evidence in the record that there had ever been any trouble with the machine in question oh a prior occasion.
“In the opinion of this Commissioner, it appears that claimant inadvertently stepped on the operating lever without removing his hand completely from the hazardous area. He would, therefore, be guilty of contributory negligence.
“There is some testimony that the Health and Safety Act, passed by the Industrial Commission, required that a device be placed on a punch press, which would remove the operator’s arm when the machine is in operation. This machine did not have such a device. There is no evidence, however, that the violation of the statute was the proximate cause of claimant’s injuries.
“It would, therefore, appear that claimant has failed to affirmatively prove that respondent was guilty of negligence, and his claim should be denied.”

From a review of the report and the evidence, it appears that the machine was in proper working order, and that claimant was familiar with the machine from previous use. Since the only way that the machine can be operated is by means of placing the foot into a covered slot, which action thereby activates the machine, it would appear that claimant tripped the press without first removing his hand.

Claimant has the burden of proving that he was free from contributory negligence. The record does not support this proof.

An award is, therefore, denied.


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    (No. 4969
    Arthur Hammond, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1963.

      Petition of Claimant for Rehearing denied July 26, 1963.

    Robert P. Shonkwiler, and Appleman, Zimmerly and McKnelly, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Tolson, J.

This action was brought to recover damages for injuries to claimant occasioned by the alleged negligence of the State in failing to place a warning post or sign, where it had removed the headwall or protruding abutment of a culvert, "on the shoulder of a public highway, which resulted in the remaining portion of the culvert and ditch being invisible to users of the shoulders. No questions were raised on the pleadings.

Plaintiff’s theory is that respondent is liable for damages resulting from its failure to install adequate warning posts or signs indicating the presence of the concealed culvert. The State had adequate notice of the defect, and its plans called for a warning post to be in place at the scene of the injury, since at least the preceding April. The injury herein complained of occurred on October 2, 1959. Respondent admitted there were no warning devices present on the date of the injury.

This case was heard by Commissioner George W. Presbrey on May 18, 1961, and on November 9, 1962 he filed an exhaustive report, the first seven and one-half pages of which are in the following words and figures:

“The evidence was heard in the above entitled cause on May 18, 1961 at Monticello, Illinois. Phillip C. Zimmerly and Robert Shonkwiler represented claimant, Arthur Hammond, and Lawrence W. Reisch, Assistant Attorney General, represented respondent, State of Illinois.
“This action was brought by claimant, Arthur Hammond, to recover damages for injuries to him by the alleged negligence of the State of Illinois in failing to place a warning post or sign where it had removed the headwall or protruding abutment of a culvert on the should’er of a public highway. The claimant contends that, as a result of the removal of this headwall, the remaining portion of the culvert and ditch became invisible to users of the shoulder of the highway. Tire claimant was driving a tractor, without lights, on the shoulder of the road. He did not notice the culvert and ditch. His tractor overturned, causing serious injuries. The accident occurred at 6:35 A.M. on October 2, 1959. It is admitted that there was no warning post or sign present on the day of the accident.
“The accident in question occurred on Illinois State Highway No. 10, at a point between 1 and IY2 miles east of DeLand, Piatt County, Illinois. Route No. 10 is a conventional, two lane concrete highway, 18 feet wide, centered on a right of way 40 feet wide. The shoulders on each side are approximately 11 feet wide. The highway is flat and level, and runs directly east and west. The weather on the day of the accident was clear. Usually at this hour at this time of year the sun had been up, but there had been an eclipse of the sun on the morning in question, so that it was still dark at the time of the accident, and the vehicles using the highway had lights on.
“The culvert in question is located about 400 feet east of the farmhouse known as the Clifton Home. It had originally been a conventional box culvert with a protruding headwall or abutment above the shoulder. There is a conflict as to whether the abutment or headwall protruded 10 inches or 18 to 24 inches before it was removed. Sometime between April 21 and May 17, 1959, respondent had removed the headwalls either 6 or 8 inches below the ground level.
“At the time of the accident, claimant was driving east on a tractor owned by his employer. He had taken feed to the tenant house where he lived, and he had been instructed to return the tractor and wagon on the morning he was injured. The claimant was late for work, his usual hours of employment being from 6:00 A.M. to 6:00 P.M., six days a week. He had waited for the sun to rise and for it to get light, because there were no lights on either the front or rear of the tractor, or on the wagon he was pulling. The head lamp of the tractor had been removed by the employer, and the tail light was not working. As previously stated, there had been an eclipse of the sun on the morning in question. There were no rays of the sun visible nor any land marks, as he was driving, and, in the words of claimant, ‘It was light enough that I could see objects. It was light enough to have seen a stick there at the culvert.’
“Claimant lived on a 24 acre farm owned by his employer. He worked primarily on the employer’s 640 acre main farm. The main farm was 3V2 miles north and east of the tenant place. The tenant place was south of Route No. 10, and the section line road going north did not go beyond Route No. 10. It was a dead end pavement. Claimant had to take Route No. 10 to the east for at least one mile, and then he could turn north on another section line at the Clifton house. On the south side of Route No. 10 and the mile he had to traverse, there were two culverts with headwalls broken off. The first was about 1/10 of a mile from where he turned onto Route No. 10. He thought he had passed the second culvert at the time of the accident. He could not see it from the pavement. On the same mile on Route No. 10 there were three other field entrance culverts on the right of way, which remained with their full headwalls. Claimant stated that they were visible to him, as he drove along.
“Claimant normally drove to work in his 1952 Ford, which had conventional lights. He had never before driven between the places in the dark on a tractor.
“Claimant stated that he kept watching for traffic approaching from either direction. When he saw headlights behind him, he drove off onto the shoulder, so that he would not be hit, because he didn't have any lights on the tractor or the wagon. He stated that he kept looking directly ahead of him, and got far enough off, so that the oncoming traffic would not sideswipe him. He continued driving forward until he dropped off into the hole. The rear wheel of the tractor fell off the edge. The front wheels of the tractor passed the concealed culvert. He was not struck by another car. The right rear tire tread of the tractor could be traced straight west of the culvert 40 feet, and the marks of its lugs clearly appeared on the remaining portion of the headwall after the accident, which showed where they had slipped off of the southern declining edge.
“The tractor in question was six feet wide. Riding on the center of the tractor, claimant was about eight feet south of the edge of the pavement. The seat of the tractor was five feet off the ground. The rear wheels of the tractor were 6 feet 4 inches from the outside to outside. They were large, shoulder height wheels.
“A westbound driver, driving a tractor trailer with dim lights, saw what he thought was a big piece of tar paper blown across the road. The driver stated, ‘As I approached it, it turned out to be a tractor lying in the ditch, upside down.’
“Following the accident, claimant blacked out, but was unconscious only momentarily. Persons arriving at the scene tried to move him, but he was in too much pain. He was subsequently removed, and taken by ambulance to the hospital in Monticello. After the X-Rays he was taken to St. Mary’s Hospital in Decatur.
“He had a comminuted inter-trochanteric fracture of the right hip, with marked displacement. There was a fracture of the acetabulum on the left side, a fractured pelvis, a fracture of the left scapula, contusions of the abdomen, abrasions of the right leg and extensive perineal contusions. The fractured right hip was held in place with a Jewett 4Vz inch nail, which is permanently imbedded in the hip of claimant. He had a delayed union of the femur, which has delayed his recovery. A pressure sore on the groin developed from being on the operating table, where he had to have extension on both legs pulling against the post of the groin. The post pressed against cords, which became infected. The testicle became inflamed, which could, and did, affect his potency. He is now impotent.
“Following the accident, claimant was in bed for two weeks, was ambulatory in a walking device, and was then trained in the use of crutches. Dr. Ciney Rich testified that it would be at least a year before claimant could throw away the crutches, and, at the time of his testimony, the patient was totally disabled. How long he would remain in this condition depended upon the union he had in the area of his main fracture. The doctor hoped this would be within a year’s time. Tire patient lost approximately 15 lbs. following the accident. He has considerable atrophy of the right leg from the hip to the ankle. However, the doctor stated that a lot of the muscular strength should return when he can use the leg. Claimant has some loss of motion in the hip joint. The right thigh measured 37 centimeters in circumference compared to 43 centimeters in the left. The right calf is 28 centimeters as compared with 30 centimeters. The doctor stated that he would suffer a permanent impairment in the use of his right leg in the amount of 30 to 35%.
Claimant's medical expenses, totalling $1,642.35, were as follows:
Dr. A. D. Furry__________________________________________________$ 20.00
Kirby Hospital, Monticello_______________________ 20.50
Trigg Funeral Home, ambulance services__________________25.00
Dr. J. F. Allman, Jr_________________________________ 5.00
Dr. Ciney Rich ______________________________________ 600.00
St. Mary’s Hospital, Decatur______________________________________68.75
Raycraft Drug Co., Decatur________________________________________6.85
St. Mary’s Hospital, Decatur, for care from October 2 to November 4, 1959, inc___________________896.25
“In addition to the above medical expenses, claimant has been unemployed since the day of the accident, October 2, 1959. He worked for his employers for six or seven years. Each month he received $210.00 in cash; house rent free, worth $30.00 a month; a cow, its feed, and the milk therefrom, worth approximately $20.00 to $30.00 a month; the cost of gasoline going back and forth, about 20 gallons a month at 31c a gallon. Since the accident the wife has been tire sole support of the family, although before the accident she was not employed.
“Claimant cannot dress or bathe himself. His wife must do this for him. He cannot sit long. He was using crutches at the time of the hearing, and he cannot get around without them. It was stated that he is nervous, easily upset, moody, short tempered, and is unable to drive a car. He is despondent over not being able to make a living, nor having worked since October 2, 1959. He is unable to tie his shoes, or put on his socks. The claimant is 47, and has been married to his wife, who is 40 years old, since November, 1938. They have two boys, age 8 and 16. He has a life expectancy of 24.41 years.
“John C. Mulgrew, a Civil Engineer, employed by the Illinois Division of Highways, District No. 5, testified that he was Assistant Maintenance Engineer in the area of the accident on October 2, 1959. In 1959, he stated that he had issued instructions to the Field Engineer that all roads leading to Champaign be mowed by October 3rd in preparation for the Illinois-Army Football game. The engineer stated that the purpose of the shoulder of the road is to be used as a transition from the edge of the pavement to a ditch and also for emergency stopping. The State usually cuts the grass of the shoulder three times a year to the ditch line. Fence mowing takes place twice a year. The time of the mowing depends upon the seasonal growth of the grass. The first mowing would be about the latter part of May, and the second around the first part of July. After Labor Day in September would be the beginning of the final mowing.
“The part of the headwalls above ground were removed by the labor unit, which operates over the State out of the Springfield Bureau of Maintenance. The engineer testified that, in his opinion, headwalls protruding above the ground on culverts are an unsafe condition.
“On cross-examination, the engineer stated that the mowing takes place by the use of a sickle bar, which is approximately three feet thick, and the mower itself rides on little skids. The State does not rake any grass or debris that is cut, but the debris remains where it falls. There were no records to show when the mowing actually took place in the area involved in the accident. The engineer further stated that there was no regulation against farm vehicles using the shoulder as they saw fit.
“He further testified that they had a program started of putting safety posts at all headwalls, which were broken off. The safety program was part of the general program of knocking the headwalls off. It was not an after thought. The designs and intentions were that knocking out the headwalls and putting up the safety posts would go hand in hand. Unfortunately, District No. 5 ran out of a supply of posts. It was intended to have a post at the culvert before October 2. They did not do so before that date; however, they did get their supply of posts in September.
“Len Parrish testified on behalf of respondent. He was a regular maintenance man, employed by the Highway Department. He stated that he probably mowed the grass and cut weeds on the shoulder of highway No. 10 sometime prior to October 2, although he could not say any special date when he mowed the weeds near the culvert in question. He had no independent memory as to when the actual mowing took place, nor were there any records.
“Robert Norton, a maintenance man for the Highway Department, stated that he did mowing along highway No. 10 east of DeLand, although he had no independent recollection of mowing the specific area. He did not know the condition of the grass or weeds as to this particular culvert.
“In the opinion of this Commissioner, the State of Illinois was guilty of negligence. Claimant’s exhibit No. 1 includes the area of the culvert in question. The culvert is not visible in this photograph. Exhibit No. 2 is a photograph of the area showing the relationship of the grass, weeds, shoulder and the culvert. The grass stood about ten inches above the remaining headwall, and the grass was allowed to remain where it fell after mowing. The headwall of the culvert in question should not have been removed, unless some sort of warning could have been put in place immediately upon the removal of the headwall.
“It would appear that the major issue to be determined in this case by the Court is whether claimant was guilty of contributory negligence. There is no question but what claimant has been seriously and permanently injured, and, if the Court determines that he is free of contributory negligence, he should be awarded the maximum amount of $25,000.00.”

The crux of this case is whether or not claimant is guilty of contributory negligence, as the negligence of the State is beyond dispute. Since the burden of proving that he was not guilty of contributory negligence is squarely upon claimant, a review of his testimony is pertinent. He stated that he left his home about 6:30 A.M., and that he was driving a tractor, which did not have lights, front or rear. He stated that on the south side of Route No. 10 there were' two culverts with the head-walls broken off. One of them was a tenth of a mile from where he turned onto the road. He stated there were no rays of sun visible. There were no landmarks visible.

He further stated that, when he looked back, and saw a car approaching from the rear, “I did not know exactly where I was with reference to the second culvert on the south side. I thought I was by it. I knew such a culvert existed. After I looked back, I pulled off on the shoulder, and kept looking directly in front of me. I went about 400 feet after I pulled off.” (Abstract of record, page 29.)

This, in essence, is the testimony offered by claimant to satisfy his burden of proof. Claimant was not a stranger in the vicinity. He had driven between the two places every working day since 1954. (Abstract of record, page 33.) He knew of the two culverts with the head-walls knocked off, yet he drove his tractor, without lights, into the area -where the culverts were located.

“A person may not knowingly expose himself to danger, and then recover damages for an injury, which he might have avoided by the exercise of care for his own safety.”

Ames vs. Terminal R.R., 332 Ill. App. 187

Claimant knowingly exposed himself to danger by driving his tractor in this area without adequate lights. He did not exercise ordinary care for his own safety, and was thereby guilty of contributory negligence.

An award is, therefore, denied.


author: Fearer, J.

text:
    (No. 4907
    James McAbee, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

      Petition of Claimant for Rehearing denied August 30, 1963.

    Anna R. Langford and Thaddeus B. Rowe, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward Warman, Assistant Attorney General, for Respondent.
   Fearer, J.

James McAbee, Jr., has filed his complaint in this Court seeking to recover damages against respondent, charging respondent with certain acts of negligence in its failure to maintain a street, which was under its control, and for which it had a duty to maintain on the date of the accident. It is also alleged that the State failed to give warning by the posting of signs as to the disrepair of the street, after it had either actual or constructive notice.

The accident occurred on June 9, 1959, at approximately 11 A.M. At said time and place, claimant was riding his bicycle in a southerly direction upon South Park Avenue, having just crossed the intersection of Marquette Avenue (67th Street) on the approach of the New York Central viaduct in the City of Chicago, Illinois.

Claimant contends that, while riding said bicycle, he ran into a hole in the street. He was hurled from said bicycle with such force that he sustained certain injuries, namely, laceration to his tongue, several teeth knocked out, abrasions and contusions.

No answer was filed by respondent. Therefore, a general traverse or denial of the facts set forth in the complaint shall be considered as filed.

Respondent filed a Departmental Report on March 24, 1961. Commissioner Immenhausen, who heard this case, has ably summarized the testimony of respective witnesses testifying for and on behalf of claimant and respondent. He summarized claimant’s testimony as follows:

On the day of the accident, he was 23 years old, and resided at 7845 South Indiana Avenue, Chicago, Illinois. He was riding his bicycle in the southbound lane approximately two to three feet from the west curb. The day was clear, visibility was good, and traffic at said time was normal. Just prior to the accident, there was a car directly in back of him and one to his left. There were two lanes of traffic at that point, and he was keeping a lookout ahead. He had never ridden a bicycle in this area before. The bicycle he was riding was in good mechanical condition. Just prior to the accident, he passed over a manhole, and, in looking ahead, noticed traffic. All of a sudden everything stopped, and he was on the ground, dazed and hurt. He described the hole, which he had hit, as being two feet in length, about six to eight inches in depth, and about four inches in width; and stated that it wasn’t even, one part being a little bit lower than the other. After he fell, he heard the screeching of the tires of cars behind him. The area south of the pavement was patched and broken, but there had been some patch work done with asphalt. Two weeks after the accident, he went back, and the hole was fixed. He was assisted at the scene of the accident by a man by the name of Charles Akins, who took him to the hospital.

On cross-examination, he testified that there were no vehicles in front of him, but that there were vehicles in back and to his left. Upon being asked how far the hole was in front of him when he first saw it, he answered “Actually I didn’t see it. Not before I hit it.” He also answered on cross-examination that there was nothing to obstruct his view. The commissioner interrogated claimant as to why he couldn’t see the hole when he noticed the manhole, which was approximately four or 5 feet from the hole. His answer was “I just didn’t see it.”

The witness, who took him from the scene of the accident, was a policeman. Claimant testified that he could not locate him at the time of the trial, nor could he secure his address.

Claimant’s next witness was Anna R. Langford, an attorney, who had represented claimant and identified certain exhibits, being photographs, and testified that the photographs of the area in question were true photographs and true representations of the area. After she received the photographs, she stated she notified the Highway Department of the condition of the street on June 30, 1959, and three days later the pavement was repaired. Later she took claimant to the spot where the accident occurred and talked to him, asking him to point out the place in the pavement, which was in disrepair, and so indicated on claimant’s exhibits Nos. 8 and 9. She examined the hole, which was a few feet south of the manhole cover, and was approximately two feet in length,, six or seven inches in depth, and irregular as to lines.

Respondent called, as one of its -witnesses, Robert C. Washburn, who was employed as a maintenance field engineer in June and July of 1959, and was assigned to the area wherein this particular street was located. He stated he had occasion to personally examine South Park Avenue on July 20,1959, and was unable to find any holes in the pavement, but it was wavy.

The next witness for respondent was Walter Raeghowski, who formerly was employed by respondent between the periods of May, 1958 and August 1, 1959, as a section truck driver. His duty was to inspect the area to see if any repairs were necessary to the streets including South Park Avenue on which the accident occurred.

Prior to the accident, he inspected this particular street, and did not discover any holes, bumps or depressions, but did find the pavement to be wavy. At the time of the trial, he was not employed by respondent. He stated that, to the best of his knowledge, he did not make any repairs on this particular street in June or July in the year 1959.

Judge Immenhausen, in his commisioner’s report, has recommended that the claim be denied, basing his decision primarily on the fact that it is a little hard to believe that on a clear day, when the pavement was dry, and there were no obstructions to claimant’s visibility, that, if there was a hole in the street in the area, which claimant testified to, he should have seen the hole, and thereby avoided the accident. In not so doing, claimant was thereby guilty of contributory negligence.

He also found that it was very questionable that such a hole existed, which caused claimant to fall, based upon the testimony produced at the time of the trial. He was in a better position to pass upon the testimony offered, the demeanor of the witnesses, and the manner in which they answered questions to arrive at his conclusion as to the facts presented by the evidence.

Because of our findings in this case, we do not believe it necessary to prolong the opinion in citing or commenting on the various authorities cited by claimant and respondent in their briefs. As we have held many times, and as have other courts, this Court will not tolerate one testifying that they looked and did not see something, which appeared from their testimony would be very apparent. Also, this Court has held that respondent is not an insurer, any more than a municipality is, of everyone who travels upon its streets or highways. There is a responsibility placed upon the traveling public to operate vehicles in a manner commensurate to conditions claimed, if they do actually exist. If they fail to do so, respondent should not be held liable for damages.

We hereby deny the claim of claimant, James Mc-Abee, Jr.


author: Dove, J.

text:
    (No. 5035
    Joliet Motor Sales, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 26, 1963.

    Gray, Thomas, Wallace and O' Brien, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

This is a claim by the Joliet Motor Sales, Inc., for work performed and parts supplied for motor vehicles assigned to District No. 5, Division of State Highway Police.

Upon the stipulation of facts by the parties and the recommendation of the Attorney General, and it further appearing that the appropriation has lapsed, an award is entered in favor of claimant, Joliet Motor Sales, Inc., in the amount of Three Hundred Eighteen Dollars and Eighty-six Cents ($318.86).


text:
    (No. 5103
    Willie Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 26, 1963.

    Peterson, Johnson and Guy, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

On April 29, 1963, claimant, Willie Taylor, filed a claim seeking refund of a responsibility security bond deposited with the Secretary of State of the State of Illinois, as required by Section 42-12 of the Motor Vehicle Laws of the State of Illinois.

From the stipulation of facts by the parties, it appears :

1. That on or about the 13th day of November, 1958, claimant, Willie Taylor, was involved in an automobile accident with Maizie Fate.

2. That on or about March 2, 1959, claimant, Willie Taylor, deposited with the Secretary of State of the State of Illinois, a Two Hundred Dollar ($200.00) responsibility security bond, as required by Section 42-12 of the Motor Vehicle Laws of the State of Illinois.

3. That on or about June 7, 1959, the said Maizie Fate filed a civil suit for damages arising out of said automobile accident against said Willie Taylor in the Municipal Court of Chicago, Case Number 59 M 15312; that claimant, Willie Taylor, was found not guilty.

4. That on August 1, 1962, the Secretary of State transferred the sum of Two Hundred Dollars ($200.00), so deposited by claimant, to the General Revenue Fund in the State Treasury. (Chap. 95½, Sec. 7-503, Ill. Rev. Stats.)

5. That on January 15, 1963, a demand was made upon the Secretary of State of the State of Illinois for a refund of the said security in accordance with the Motor Vehicle Laws.

6. That to date claimant has not received a refund of the responsibility security bond from the Secretary of State of the State of Illinois, or the State of Illinois, as required by said Motor Vehicle Laws.

Section 7-503, Chap. 95½, Ill. Rev. Stats., provides that any person having a legal claim against such deposit may enforce it by appropriate proceedings in the Court of Claims.

The Court is of the opinion that claimant has complied with the statute, and is justly entitled to a refund.

An award is accordingly made by this Court to claimant, Willie Taylor, in the amount of Two Hundred Dollars ($200.00).


text:
    (No. 3025
    Elva Jennings Penwell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1963.
    Gosnell and Benecki and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebbl, Assistant Attorney General, for Respondent.
   Pezman, J.

On April 22, 1963, claimant filed her petition for reimbursement of monies expended for nursing care and help, medical services, and expenses for a period of time from June 1, 1962 to February 1, 1963.

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State of Illinois, 11 C.C.R. 365, in which an initial award was made, and at which time jurisdiction was retained to make successive awards in the future.

The present petition alleges that there has been no improvement in her physical condition, as she is bedridden, and requires constant care by physicians and practical nurses.

Attached to the complaint is a bill of particulars, supported by receipts. It discloses the amounts expended by the petitioner for the period of time claimed, i.e., June 1, 1962 to February 1, 1963, as follows:

1. Nursing and practical help_____________________________________________$860.20
2. Room and board_____________________________________________________________.428.75
3. Drugs and supplies______________________________________________________________479.28
4. Physicians and professional services_________________________________909.54
Total _________________________________________________________________________$2,677.77

From an examination of the petition and the supporting exhibits, it appears that the expenditure of such sums of money was necessary for the care of claimant.

An award is, therefore, made to claimant in the amount of $2,677,77 for the period of time from June 1, 1962 to February 1, 1963.

The Court reserves jurisdiction for further determination of claimant’s needs for additional care.


text:
    (No. 4821
    Fred L. Walden, as Administrator of the Estate of Julia Walden Valentine, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 18, 1963.

      Petition of Claimant for Rehearing denied November 12, 1963.

    Appleman, Zimmerly and McKnelly, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Fearer, J.

A complaint has been filed in this Court by Fred L. Walden, Administrator of the Estate of Julia Walden Valentine, deceased, for the wrongful death of Julia Walden Valentine.

The accident in question, resulting in the death of Julia Walden Valentine, occurred on May 18, 1957, at or about the hour of 4:00 A.M., when decedent was riding as a passenger in an automobile, owned and driven by Ames Chester, which automobile was being driven in a westerly direction on Illinois Highway No. 150. The accident occurred on a curve in said highway, immediately east of the Village of Ogden, Champaign County, Illinois. The highway in question ran in a generally easterly and westerly direction, being a two lane macadam highway with a dividing line down the center thereof, which separated traffic traveling in an easterly and westerly direction.

The visibility at the time of the accident was very poor. This was a dark, foggy morning.

Decedent, at the time of the occurrence in question, was riding in the back seat, and, from the evidence, was asleep at the time.

The owner and driver of the vehicle, Ames Chester, was also killed in the accident. The only survivor was Ira Valentine, who was riding in the front seat, and was also asleep at the time of the accident in question.

Claimant was appointed Administrator of the Estate of Julia Walden Valentine by the County Court of Champaign County, Illinois on June 24, 1957. At the time of filing the complaint, he was the duly qualified Administrator of said Estate. Decedent left surviving her, as her only heirs at law, two sons, Ira Peyton Valentine, Jr., and Walden Valentine, and one daughter, Emily Dyer.

It is alleged that decedent, at all times, was in the exercise of due care and caution for her own safety; and, further, that the next of kin were in the exercise of due care and caution for the safety of decedent.

The acts of negligence, with which respondent is charged as being the proximate causes of the accident resulting in the death of Julia Walden Valentine, are as follows:

A. That said curve was negligently designed or planned so that it was not reasonably safe for public travel, and said defective design or plan was obviously and palpably dangerous;

B. That the existence of said sharp curve, the illusion of continuity of said highway, and the absence of adequate and well lighted warning devices were breaches of duty of employees of the State to maintain said right of way in a safe condition;

C. That said employees negligently failed to post sufficient signs or signalling devices indicating and warning of said curve, although said devices were reasonably necessary to make said right of way safe for public use;

D. That said employees negligently failed to properly construct and maintain said roadway at said point;

E. That said employees negligently failed to abate a known nuisance, consisting of a public right-of-way unsafe for use in the absence of adequate signs and warning devices;

F. That employees of the State responsible for the proper maintenance of said roadway negligently permitted said conditions to continue after actual and constructive notice of their existence;

Gr. That employees of the State were otherwise negligent in and about the performance of their duties to maintain said roadway at said point in a safe condition for use by the general public at any hour and under all weather conditions.

Ira Peyton Valentine, Jr., the only survivor in this accident, testified that they had been in Indianapolis attending an organ concert by the Youth Branch of the National Association of Negro Musicians of which decedent was National Youth Director; and, further, that she also was giving piano lessons, and was very active in many associations.

He further stated that they left Indianapolis at approximately 1:15 A.M., and that decedent had gone to sleep immediately after leaving Indianapolis, and she did not awaken before the accident. That he went to sleep at Fithian, Illinois, which is about five or six miles east of Ogden, where the accident occurred. The last he remembers was that the weather was foggy, there being intermittent fog, and it had been that way most of the way back, and the last speed he remembered of the car was about sixty miles per hour. The next thing he remembered was being awakened in the hospital, where he was questioned by the coroner.

He further testified concerning his mother’s earnings, the associations and organizations that she belonged to, and her contribution to the support of her children.

On cross-examination, he testified that he and the driver of the car, before leaving Indianapolis, went to a bar, and each had two drinks. That other than stopping for gas, they made no other stops. That they started running into patches of fog thirty minutes out of Indianapolis, and there was intermittent fog all the way back. That neither he nor his mother said anything to Mr. Chester about the way he was driving the automobile. That neither he nor Mr. Chester were intoxicated, and his mother did not know that they had had anything intoxicating to drink.

In addition to the allegation in the complaint as to other occurrences at this particular curve, which is paragraph 13 in the complaint, which, in our opinion, would not be a proper pleading, there was testimony offered by other witnesses for claimant as to previous accidents, which, of course, is not competent, unless it can be shown that all of the surrounding conditions were the same at the time of the other accidents as at the time of the occurrence in question, and that the conditions then existing were the proximate cause of the accident in question, resulting in the death of claimant’s intestate. In order for this evidence to be competent, there would have to be a showing of prior accidents occurring at the same place and under similar circumstances. This would be for the purpose of showing that the unsafe thing or condition causing the accident was the condition or cause common to such independent accident, and that the frequency of such accidents tended to show respondent’s knowledge of such a condition.

Welter vs. Bowman Dairy Co., 318 Ill. App. 305 at 363

Budek vs. City of Chicago, 279 Ill. App. 410 at 422

Gerrard vs. Porcheddu, 243 Ill. App. 562 at 567

In the Departmental Report filed in this case, it appears that there were numerous signs, some of which were reflectorized, bearing the notation, “SLOW 30 M.P.H.” There were also signs characterizing the curve by an arrow. In fact, we can find nothing in the record wherein this curve was not properly marked as a warning to traffic traveling thereon.

This Court has held numerous times that the State of Illinois is not an insurer of all persons traveling upon its highways.

Grant vs. State of Illinois, 21 C.C.R., 563, 568

Stanley vs. State of Illinois, 22 C.C.R., 438 at page 440

In reading the transcript and in an examination of authorities, this Court is of the opinion that it is very apparent that the proximate cause of the accident, resulting in the death of Julia Walden Valentine, was the negligent operation of the car in which she was riding, which was being driven by Ames Chester. It appears from the testimony and from the record that, just prior to the time of reaching this curve, Ames Chester was driving this automobile at a fast and dangerous rate of speed, taking into consideration the weather, conditions and lack of visibility.

It is, therefore, the order of this Court that the claim of Fred L. Walden, as Administrator of the Estate of Julia Walden Valentine, be and the same is hereby denied.