text:
    (No. 4761
    Lillie Finn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1961.

      Petition of claimant for rehearing denied January 9, 1962.

    Joseph Cohn, Attorney for Claimant.
    William L. Guild, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Fearer, J.

This is an action commenced and maintained by claimant, Lillie Finn, to recover damages for personal injuries, which she sustained on July 22, 1956, when she stepped into a hole in the playground area where there were swings, teeter-totters and slides, which area was located approximately 500 feet from the Lodge in the Pere Marquette State Park near Grafton, Illinois. At said time she was watching her small granddaughter play on the swings.

The complaint charged that respondent, through its agents and servants, negligently, carelessly and unlawfully maintained said park in one or more of the following respects:

a. Failed to inspect the grounds in said park so as to ascertain the existence of any holes in the grounds, which may have endangered the public and this claimant in particular.

b. Created, or allowed to be created, a large and dangerous hole in the playground area of said park, which hole became and was covered with grass and foliage, so as to render it difficult to discern by the public and this claimant.

c. Neglected and failed to post notices of warning of the existence of said hole, thus endangering the safety of the public and this claimant.

d. Allowed said hole to remain in such a condition as to be concealed from the public and this claimant, and thus created a dangerous trap.

The complaint states that said hole was located in an area comprised by or immediately adjacent to the area commonly known as the children’s playground; further, that respondent knew, or, by the use of reasonable care and diligence, could have known, and was under a duty to learn of the existence of such hole.

As a proximate result of the negligence of respondent. by and through its agents and servants, claimant fell, or was caused to fall to1 the ground; that she sustained serious permanent and painful injuries to her body and limbs. She sustained a fracture of the ankle, which is permanent in nature, for which she has become liable to spend sums of money for the services of doctors and other medical treatment. Said injuries have permanently disabled claimant, and have prevented her from transacting her usual business.

On July 22,1956, claimant, Lillie Finn, together with other members of her family, drove to Pere Marquette State Park near Grafton, Illinois, in two cars. Upon arrival, each person, including claimant, paid the admission charge of ten cents, and, after using the Lodge facilities for luncheon, the children in the group, accompanied by claimant, went to the playground area, which was located about 500 feet from the Lodge.

The playground area is approximately fifty feet square, does not contain sidewalks, and the swings, teeter-totters and slides were located on the grass. After claimant had been in the playground for about a half an hour she stepped in a hole, which she did not see prior to he: fall. The position of the hole in reference to the playground equipment was estimated to be about ten feet from the swings.

The hole has been described as being 12 to 13 inches in width, 4 to 5 inches deep, with a sloping gradual indentation with grass growing in the hole, which was not noticed by agents of respondent in mowing the area, or by claimant. In fact, no one testified that they had ever noticed this hole previously. There was grass growing in the hole, which also covered the top of the hole. There was no loose sod or grass in the hole or fresh earth.

It appears from the testimony of the custodian of the park, Mr. Studebaker, that “It was just about like the way they said. ’ ’

Immediately after the fall the custodian was called to render first aid, and a rock was placed in the hole. Later on dirt was used in filling the hole to correct the condition, which existed at the time claimant fell.

Claimant’s ankle became painful and swollen to such an extent that she could not walk on her right foot. She consulted Dr. Carl Vohs, a physician of St. Louis, Missouri, who, after x-raying her ankle, applied a plaster cast covering the right foot extending to the knee joint, and had her remain in bed for a month. After a period of six or seven weeks the cast was shortened. Claimant was required to move from an upstairs apartment to one downstairs, and to use a wheelchair and then crutches. She continued under the care of Dr. Vohs until July 30, 1957, and she was required to hire domestic help for a period of four months at $20.00 a week.

Exhibits were admitted in evidence reflecting the following expenses incurred as the result of the accident in question:

Rental of bed and crutches $13.00
Rental of wheel chair 11.00
Delivery of bed and wheel chair 5.00
X-ray examinations 42.50
Dr. Carl Vohs, medical bill 75.00
X-ray examination 1O.00
Domestic help 320.00
Total $476.50

It was stipulated that the medical report of Dr. Carl F. Vohs be admitted in evidence, which set forth the nature and extent of the injuries sustained.

Claimant contends that:

1. Inasmuch as she paid admission to the State Park, she became a business invitee.

2. Respondent owed towards claimant a duty to keep the premises in a reasonably safe condition.

3. The operator of a place of public amusement impliedly warrants the safe condition of the premises.

4. The land owner is under a constant duty to inspect the premises to discover defects.

We have previously held that the State of Illinois is not an insurer of all persons, who use and enjoy State parks. Stedman vs. State of Illinois, 22 C.C.R. 446, 448.

“While it is true that respondent is under a duty to exercise reasonable care in maintaining its parks, it is likewise the law that respondent is not an insurer against accidents occurring to patrons while using the park facilities.” Kamin vs. State of Illinois, 21 C.C.R. 467; Penwell vs. State of Illinois, 22 C.C.R. 477.

It has been the law of this State that, before the State can be held liable for an injury on property maintained by it, it must have actual or constructive notice of the dangerous or hazardous condition. Penwell vs. State of Illinois, 22 C.C.R. 477, 485. Weygandt vs. State of Illinois, 22 C.C.R. 478. In these opinions the following-cases were cited: Delaney vs. State of Illinois, 21 C.C.R. 191; DiOrio vs. State of Illinois, 20 C.C.R. 53; and, Arnett vs. City of Roodhouse, 330 Ill. App. 524.

We have previously held that the State of Illinois, in maintaining a nature park, is not obligated to warn of every dangerous place within it. It is, however, obligated to warn of a danger that exists along- a trail, which it knows is being used by the public, who would have no knowledge of the existing- danger. Alberta Hansen, Administrator of the Estate of Edward Boegen, deceased, vs. State of Illinois, No. 4843.

It is our opinion that the State cannot be held responsible for every depressed area or hole into which someone might step and turn their ankle, or otherwise injure themselves throughout the State parks. To require constant inspection in a park of some size, where the State maintains several thousand acres for the benefit of the public, would place an undue hardship and extraordinary burden on the State, by and through its agents and servants.

Furthermore, before the State can be held liable for an accident, it must have, and we have so previously held, actual or constructive notice of the dangerous condition.

Previously we have denied recovery in the following cases: Stedman vs. State of Illinois, 22 C.C.R. 446; Kamin vs. State of Illinois, 21 C.C.R. 467.

We further denied recovery in the case of Weygandt vs. State of Illinois, 22 C.C.R. 478, based upon the fact that the State did not have either actual or constructive notice of the defect, which allegedly caused the injury to claimant.

No answer having been filed by respondent, a general traverse or denial of the facts set forth in the complaint shall be considered as filed under Rule 11 of this Court.

Claimant admits that no actual notice was given to respondent, and we believe that it can be conceded that it did not have constructive notice of the depressed area referred to. However, in the reply brief claimant is distinguishing this case from the Kamin case on the fact that claimant in the present case was not in a remote area of the park, but was within an area comparatively close to the Lodge where the swings and play area were located, and that the State should inspect such an area for any hazards, which could cause injuries to those enjoying said park.

From the testimony, the depressed area was covered with grass, which was not apparent to claimant, and did not appear to be apparent to the agents or servants of respondent in mowing the area about once a week. Because of the grass growing in and on top of the depressed area, it was not visible to the employees working within the area. There was no evidence that anyone ever noticed this depression, as described, before, or ever called it to the attention of the caretaker or anyone else, so that it could be repaired.

If we are going to adhere strictly to the rule that the State is not liable unless it has actual or constructive notice of a dangerous or hazardous condition, this claim must he denied.

Claimant has the burden of proving, first, that she was free from contributory negligence, and from the record we cannot find that she was guilty of any negligence, which contributed to her own injury; second, that the State had actual or constructive notice of the condition, which amounted to negligence and the proximate cause; and, third, damages.

In practically all of the State parks there are certain areas for picnicking, play areas for baseball, swings, and areas of recreation where the ground might be depressed, and where someone might turn their ankle, which would result in injuries, such as were sustained by claimant. If a recovery were had in all these cases, the State could be considered an insurer of everyone using the park facilities and playground areas, which would place an undue burden on the State to make careful inspection of every playground area as to any depression, which might be covered by grass, such as the one in question.

It is, therefore, very important that claimants, in cases of this kind, prove first the hazardous and dangerous condition, and, second, that the State had actual or constructive notice before the State can be held liable.

The claim of Lillie Finn is hereby denied.


source: Caselaw Access Project

author: Tolson, C. J. Wham, J.

license: Public Domain

text:
    (No. 4828
    Jacob G. Gossar, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 24, 1961, Judge Wham dissenting.

      Petition of claimant for rehearing denied January 9, 1962.

    Pyle and McCallister, and Rice, Cheatham and Vanstone, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Jacob G-. Gossar, sustained injuries in a wreck of a motorcycle, which he was riding on September 11, 1957. A complaint was filed in June, 1958 on his behalf in this Court seeking recovery for these injuries from respondent, State of Illinois.

On the 3rd day of March, 1959, respondent, State of Illinois, through its Attorney General, filed a motion to dismiss the complaint on the grounds that claimant had not filed a notice of his claim with the Attorney General, as set out in Section 22-1 of the Court of Claims Act.

Sections 22-1 and 22-2 were enacted by House Bill No. 552 of the 70th General Assembly of the State of Illinois. It was passed by the General Assembly on June 28, 1957, and approved by the Governor of Illinois on July 10, 1957.

Subsequently, claimant filed with this Court objections to the motion to dismiss and amended objections to the motion to dismiss raising several questions as to the motion, but primarily challenging the constitutionality of said House Bill No. 552 for the reason that it violates Section 13 of Article IV of the Illinois Constitution of 1870.

The pleadings in this case have presented the following issues:

1. Is House Bill No. 552 of the 70th General Assembly an amendatory act?

2. If House Bill No. 552 is an amendatory act, does it comply with Section 13 of Article IV of the Illinois Constitution of 1870, which provides, “No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act”?

3. Is House Bill No. 552 of the 70th General Assembly an act complete within itself?

4. If House Bill No. 552 is a complete act within itself, does it comply with Section 13 of Article IV of the Illinois Constitution of 1870, which provides, “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title”?

The Statutes and Article IV, Section 13 of the Constitution, involved in this case, are hereinafter set forth:

“Section 22 of the Court of Claims Act provides:
“Except as provided in subsection F of Section 8 of this Act, every claim, other than a claim arising out of a contract or a claim arising under subsection C of Section 8 of this Act, cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrues 2 years from the time the disability ceases.
“Every claim cognizable by the Court, arising out of a contract and not otherwise sooner barred by law, shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 5 years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accrues 5 years from the time the disability ceases. Every claim cognizable by the Court arising under subsection C of Section 8 of this Act shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after the person asserting such claim is discharged from prison, or is granted a pardon by the Governor, whichever occurs later.”
“House Bill No. 552:
“An Act to add Sections 22-1 and 22-2 to an Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named, filed July 17, 1945, as amended.
“Be it enacted by the People of the State of Illinois, represented in the General Assembly;
“Section 1. Sections 22-1 and 22-2 are added to an Act to create the Court of Claims, to prescribe its powers and duties, and to repeal an Act herein named, filed July 17, 1945, as amended, to read as follows:
“22-1. Within six months from the date that such injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any.
“22-2.. If the notice provided for by Section 22-1 is not filed as provided in that Section, any such action commenced against the State of Illinois shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further action in the Court of Claims for such personal injury.
2. This amendatory Act shall apply only to causes of action accruing after the effective date of this amendatory act.
Passed in General Assembly June 28, 1957.
Approved July 10, 1957.”

The Illinois Constitution of 1870, Article IV, Section 13, provides as follows:

“Every bill shall be read at large on three different days, in each house; and the bill and all amendments thereto shall be printed before the vote is taken on its final passage; and every bill, having passed both houses, shall be signed by the speakers thereof. No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed; and no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act. And no act of the General Assembly shall take effect until the first day of July next after its passage, unless, in case of emergency, (which emergency shall be expressed in the preamble or body of the act), the General Assembly shall, by a vote of two-thirds of all members elected to each house, otherwise direct.”

It is apparent from the reading of House Bill No. 552 that, if it is to be considered as an amendment to Section 22 of the Court of Claims Act, it would violate Section 13 of Article IV of the Illinois Constitution of 1870, as it was not inserted at length in the new act. Giebelhausen vs. Daley, 407 Ill. 25.

While respondent does not concede this point, it is apparent from its brief that it takes the position that House Bill No. 552 is an act complete within itself, and that it does not violate Section 13 of Article IV of the Constitution with reference to the requirement “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.”

That Section 22 of the Court of Claims Act is anything other than a limitation statute cannot be argued. It provides a time limit for the filing of a claim, and thereafter provides for additional time for persons under disability.

Section 22-1 of the Court of Claims Act presents an entirely different subject matter, i.e., the requirement of ■notice of injury to the person within six months as a condition precedent to the right to file a complaint. This is a new requirement involving notice, and in no way is related to the time when a complaint must be filed.

The fact that the Legislature made no provision in House Bill No. 552 for persons under disability is evidence that it was enacting a new and different statute without any reference or consideration to the limitation statute (Section 22).

Sections 22-1 and 22-2 of House Bill No. 552 set forth with particularity the necessity of notice, where to file it, when to file it, what it should contain, and the effect of failure to file a notice. This Bill is clearly an amendment to the Court of Claims Act, which is complete in itself, and requires no reference to any other section of the Court of Claims Act.

Claimant and respondent have submitted excellent briefs, and, from the many cases submitted and reviewed, one case, People vs. City of Peoria, 374 Ill. 313, sets forth with clarity the rule of law to determine whether an amendment to an act of the Legislature violates the Constitution.

The court in its opinion laid down the following test:

“Whether the amendatory act amends prior acts is to be determined not alone by the title, or whether the act purports to be an amendment of existing laws, but by its effect upon prior laws and an examination and comparison of its provisions with the prior law left in force. People vs. Knopf, 183 Ill. 410, 56 N.E. 155; Badenoch vs. City of Chicago, 222 Ill. 71, 78, N.E. 31; Michaels vs. Hill, 328 Ill. 11, 159 N.E. 278. This same principle is applicable whether the amendatory act purports to be an independent act or to be an act to amend another act by the adding of a new section, Lyons vs. Police Pension Board, 255 Ill. 139, 99 N.E. 337. If the amendatory act is complete in itself, constituting an entire act of legislation on the subject with which it purports to deal, it is to be deemed good and is not subject to the constitutional provision notwithstanding it may repeal by implication or modify the provisions of the prior law. If the amendatory act merely amends the old law by intermingling new and different provisions or by adding new provisions so as to create out of the old act and the new, when taken together, a complete act, and leaves it in such condition that the old act must be read with the new to determine its provisions and meaning, then the act is amendatory of the old law, and the constitutional provision requires that the law so amended be inserted at length in the new act. Bishop vs. Chicago Railways Co., 303 Ill. 273, 135 N.E. 439; Board of Education vs. Haworth, 274 Ill. 538, 113 N.E. 939.”

In applying the rule to the present case several distinctions are quite apparent. Section 22 is purely a limitation statute. Sections 22-1 and 22-2 relate solely to notice as a condition precedent to the right to maintain a suit.

It is not necessary to examine and compare Sections 22-1 and 22-2 with Section 22 to give meaning to them as amendatory acts. If there was no Section 22 in the Court of Claims Act, with reference to limitations, Sections 22-1 and 22-2, standing alone, would require a claimant in a personal injury case to give notice, as therein stated, as a condition precedent to the right to maintain a suit.

This Court, therefore, concludes that Sections 22-1 and 22-2 of the Court of Claims Act are amendatory acts, complete in themselves, and not subject to the constitutional objection urged by claimant.

House Bill No. 552 was signed by the Governor on July 10, 1957, and became effective on that date. People vs. Kramer, 328 Ill. 512. The accident complained of occurred on September 11, 1957, and it is admitted that no notice was served as required by law. Claimant filed its complaint on June 20, 1958, and thereafter respondent filed its motion to strike for failure to give the notice as required by statute.

The Court, therefore, finds that the motion by respondent to strike the complaint should be allowed.

Dissenting Opinion

Wham, J.

I do not agree with the result of the majority, and, therefore, respectfully dissent.

In my judgment, House Bill No. 552 is an amendatory act, and does not comply with Section 13 of Article IV of the Illinois Constitution of 1870.

From a reading of the House Bill and the Court of Claims law, it is apparent that it is intended to amend Section 22 of the Court of Claims law, and the above Constitutional provision, therefore, requires that said section be inserted at length in the new act, which was not done.

Section 22 is more than a Statute of Limitations. It is jurisdictional in scope, and provides, as a condition precedent to the bringing of an action, that a complaint must be filed within a certain length of time in order to prevent the barring of the claim. We have interpreted this section as being a jurisdictional provision and a condition of liability. Brown vs. State of Illinois, 17 C.C.R. 79; Rexdall vs. State of Illinois, 19 C.C.R. 171. In fact, we have applied this section even in the absence of respondent raising it. Atkinson vs. State of Illinois, 21 C.C.R. 429.

Prior to the enactment of House Bill No. 552, it was the only section of the Court of Claims law setting forth a condition precedent of a jurisdictional nature for the institution of an action in the Court of Claims. House Bill No. 552 imposed an additional condition precedent to the bringing of an action in certain cases.

In order to determine what conditions must be complied with in order to prevent an automatic barring of a claim, a party must refer to both Section 22 and House Bill No. 552. Therefore, this Bill is not complete in itself, and does not constitute an entire act of legislation on the subject with which it purports to deal, namely, the law prescribing the conditions precedent, which must be complied with in order to prevent the automatic barring of a claim.

People vs. City of Peoria, 374 Ill. 313, cited in the majority opinion, referred to Nelson vs. Hoffman, 314 Ill. 616, which involved a similar question to that presented in the instant case. In the Nelson case, the act under consideration purported to amend the Mortgage Act by adding a section. The prior law provided that a chattel mortgage acknowledged and recorded in accordance with the provisions of the Act would, if bona fide, become good and valid against everyone from the time of filing for record. The amendatory section provided that such mortgage was good and valid from the time of filing for record against everyone, subject, however, that it was not good against the creditors of the mortgagor unless filed for record within ten days after its execution. The court declared the section added to be amendatory to the previous law and unconstitutional. The court stated at pages 618-619:

“This amendatory act is exactly the kind of legislation against which Section 13 of Article IV of the Constitution is aimed. It amends Section 4 by reference, only. The subject with which both sections deal is the filing for record of chattel mortgages. No one can tell what is required in that regard except by reading together the two sections, whose intermingled provisions declare the law. The whole subject was covered by Section 4, and the only purpose of Section 4a was to add to Section 4 the requirement that such mortgage should not be valid as against creditors of the mortgagor unless filed for record within ten days of its execution. The constitutional provision in question provides that such amendment shall not be made by reference to the title, only, but the section amended shall be inserted at length in the new act.”

I believe that the scope of the word “subject”, referred to in Nelson vs. Hoffman and in People vs. City of Peoria, must be given a broader meaning than applied in the majority opinion. To me, the requirement that a notice of intention to file a claim must be filed within six months after an injury in order to prevent a barring of the claim pertains to the same subject of the prior provision, namely, Section 22, requiring the filing of the claim within a certain length of time after its accrual in order to prevent a barring of the claim. True, one provision provides for filing a notice and the other for filing a complaint. They both, however, are jurisdictional requirements dealing with the subject matter of instituting actions in the Court of Claims in such a manner as to prevent those actions from being automatically barred.

It is also significant to note that, when House Bill No. 552 was enacted, the Court of Claims Law consisted of sections numbered 1 to 24, inclusive. Bather than designating the new matter set forth in House Bill No. 552 as Section 25 of the Court of Claims Law, it was designated in said Bill as Sections 22-1 and 22-2. This would seem to indicate that the bill was intended as an amendment to Section 22 rather than as a separate independent provision of the law.

Then, too, the wording of the Bill itself also indicates that it is an amendatory act. Section 2 of the act reads as follows:

“The amendatory act shall apply only to causes of action accruing after the effective date of this amendatory act.”

Taking all of the above matters together, I believe that House Bill No. 552 does not comply with the constitutional provisions above quoted, and that respondent’s motion to strike the complaint for failure to give the notice, as required by the statute, should be overruled.

Opinion on Reheabistg-

On May 31, 1961, claimant filed Ms petition for rehearing and reversal of an opinion handed down by this Court on March 24,1961.

The petition alleges that on March 3, 1959 respondent filed a motion to dismiss the complaint on the grounds that claimant had not filed a notice of Ms claim as reqMred by Section 22-1 of the Court of Claims Law, which Section was enacted by House Bill No. 552 of the 70th General Assembly of the State of Illinois. Claimant thereafter filed objections to the motion, and alleged that House Bill No. 522 violates Section 13 of Article IV of the Illinois Constitution of 1870.

The opiMon of March 24, 1961 sustained the motion of respondent to strike the complaint, and found that House Bill No. 522 did not violate Section 13 of Article IV of the Constitution. However, a minority opiMon, filed in this case, found that the objections to the motion were well taken, and that House Bill No. 522 was unconstitutional.

It is apparent that this Court, consisting of three members, was gravely concerned by the issues raised by the pleadings, in that House Bill No. 522 was sustained by a bare majority.

What is not apparent by the reading of either the majority or the minority opiMon is a fundamental question, wMch may be stated as follows:

“Does the Court of Claims, under our Constitution, have the jurisdiction, power or authority to inquire into the constitutionality of any of the provisions of the Court of Claims Law as enacted by the Legislature?”

The members of the Court were in disagreement as to the answer to this question. However, the Court saw fit to take jurisdiction, and thereafter filed a majority and a minority opiMon in this case.

The petition for rehearing has reopened this case for the consideration by the Court, and, although the petition limits the inquiry to the matters therein contained, the Court, on its own motion and before turning to the petition, believes that it must resolve the question of its jurisdiction to approve or strike down an act of the Legislature.

At the outset, three sections of the Constitution of 1870 should be considered:

Article IV, Section 26
“The State of Illinois shall never be made defendant in any court of law or equity.”
JUDICIAL DEPARTMENT
Article VI, Section 1
“Judicial Power, where vested.
“The judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, Circuit Courts, County Courts, Justices of the Peace, Police Magistrates and such courts as may be created by law in and for cities and incorporated towns.”
Article III — Distribution of Powers.
“The powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.”

At the beginning of its statehood, Illinois took a surprisingly liberal and progressive attitude regarding claims against the sovereign. Its Constitution of 1818 made no provision for the adjustment of claims against the State, but the following year the General Assembly passed an act, which provided that the Auditor of Public Accounts might sue and be sued on behalf of the State. When a judgment of a court of general jurisdiction was rendered against the Auditor, he was authorized to draw a warrant on the State Treasurer for the amount of the judgment, and the warrant was payable out of moneys not otherwise appropriated.

This act was repealed in 1829 by an act, which provided that the Auditor might be sued, but that the judgment would not be conclusive upon the State until examined by the General Assembly, and an appropriation made to satisfy the judgment, or so much of it as the General Assembly might deem just. The suit could be brought only in the county where the Capital was located; express provision was made for appeal to the Supreme Court. The act was replaced in 1845 by another act, which was, however, substantially the same.

The Constitution adopted in 1848 provided that the General Assembly should direct by law the manner in which suits might be brought against the State. Apparently, the General Assembly failed to act, and between 1848 and 1870 the only applicable law was a special act covering unliquidated claims arising from canal construction.

A proposed Constitution in 1862 provided that suits against the State might be brought in the Circuit Court of the county where the seat of government was situated, but permitted a change of venue in proper cases.

The Constitution adopted in 1870, however, and still in force in Illinois, reverted to the earlier and narrower conception of sovereign immunity from suit. Only in the Legislature itself could any relief be had for claims against the State until 1877 when an act was passed creating a Commission of Claims.

From 1877 to the present time legislative changes were enacted altering the form for the presentment of claims, but, in general, the concept of a commission to hear and pass upon claims has been maintained.

The present Court of Claims Law is set forth in Chap. 37, Section 439 of the Illinois Revised Statutes. A few of the pertinent sections are noted in brief.

Section 439.1. The Court of Claims, hereinafter called the Court, is created.

Section 439.8. The Court shall have jurisdiction to hear and determine the following matters:

(a) All claims against the State founded upon any law.. .

(b) All claims against the State founded upon any contract . . .

(c) All claims against the State for time unjustly served in prison . . .

(d) All claims against the State for damages sounding in tort . . .

(e) All claims for recoupment made by the State

(f) All claims for recovery of overpayment of premium taxes by insurance companies . . .

Section 439.20. At every regular session of the General Assembly, the Clerk of the Court shall transmit to the General Assembly a complete statement of all decisions in favor of claimants rendered by the Court during the preceding two years, stating the amounts thereof, the person in whose favor they were rendered, and a synopsis of the nature of the claims upon which they were based

In addition to the provisions of the Constitution and the Court of Claims Law, it may be well at this time to define the word jurisdiction. Jurisdiction includes not only the power to hear and determine the cause, but to enter and enforce a judgment. (Williams vs. Hawkins, 75 Colo. 136. Words and Phrases, Vol. 23, P. 366.)

Turning now to the basic question of jurisdiction, we note that, in the absence of the Court of Claims Law, it would be impossible to recover any claim against the State due to the prohibition of Section 26 of Article IV of the Constitution. Section 1 of Article VI enumerates the courts created by the Constitution, and it is readily apparent that, although the Legislature describes the Court of Claims as a Court, it is not a constitutional court.

The text “Preparing and Trying Cases in the Court of Claims” (Nebel and Eckert) defines the Court of Claims as follows:

“The Illinois Court of Claims is a statutory body as distinguished from a constitutional body, and, as such, in reality, is not a court but is a legislative commission. The power to pay claims against the State is in the Legislature, and the Court of Claims can neither extend nor limit this power. (Fergus vs. Brady, 270 Ill. 201.)

If then it be admitted that the Court of Claims is in fact a commission or fact finding body for the convenience of the Legislature in sifting out and reporting back to the Legislature meritorious claims, so that, in turn, the Legislature may make the necessary appropriations, then it is crystal clear that any opinion of this Court purporting to find House Bill No. 522 either constitutional or unconstitutional would be in complete violation of Article III and Article VI, Section 1, of the Constitution.

Many statutory bodies, in the performance of their duties, exercise quasi-judicial functions, and at times it is difficult to define the precise line where quasi-judicial functions and judicial functions overlap. Owners of Land vs. Stookey, 113 Ill. 296.

Board of Appeals under Section 46 of the Drainage Act was attacked as an illegal tribunal exercising judicial powers. The court held that the Board action was purely ministerial, and did not violate the Constitution. People, ex rel Kern, vs. Chase, 165 Ill. 527.

Section 38 of the Torrens Act purported to clothe the Recorder of Deeds with authority to hear and determine adverse claims over land, and thereafter issue a certificate of title to one of the parties. This was challenged as being unconstitutional.

The court held that the power conferred upon the Recorder was a judicial function. His decision affected the rights of the parties claiming ownership, and, therefore, contravenes Article VI, Section 1, as this power is limited to the courts.

When the Court of Claims hears and determines the merits of a claim, and thereafter files its report with the Legislature, it is clearly exercising a quasi-judicial function.

When it is called upon to pass on the constitutionality of an act of the Legislature, it is manifestly clear that it is attempting to perform a judicial function of the highest order, and, being a commission of the Legislature, rather than a component part of the judicial department, it would violate Article VT, Section 1, of the Constitution.

In addition to the foregoing, there is another reason why this Court should not attempt to invalidate an act of the Legislature as expressed in the Court of Claims Law. No claimant has a constitutional right to reimbursement from the State for a claim, regardless of its merits. The Legislature can create or abolish the Court of Claims at its pleasure. Having created the Court, it may also establish rules, regulations and procedures for the consideration of such claims, and such rules, regulations and procedures may not be questioned by anyone, including the Court, which has the responsibility of administering the law.

For the foregoing reasons, this Court finds that it does not have the jurisdiction, power or authority to rule on the constitutionality of the Court of Claims Law.

It is, therefore, ordered that the majority and minority opinions, heretofore filed on March 24, 1961, be expunged from the records.

It is further ordered that the motion of respondent to strike the complaint for failure of claimant to comply with Section 22-1 of the Court of Claims be allowed.


author: T OLSON, C. J.

text:
    (No. 4930
    Consolidated Foods Corporation, A Corporation, SpragueWarner Division, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 9, 1962.

    Allen, Darlington and Elliott, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward Marsalek, Assistant Attorney General, for Respondent.
   T OLSON, C. J.

On August 10, 1961, claimant filed its petition seeking an award in the amount of $712.00, the same being the balance due it for the sale of food and supplies to the Mississippi Palisades State Camp at Savanna, Illinois.

An order was entered granting the joint motion of claimant and respondent to waive the filing of briefs, and the matter was referred to Commissioner Immenhausen for the taking of evidence.

The case was heard on September 6,1961, and thereafter the Commissioner filed his report, which is hereinafter set forth:

“Claimant, Consolidated Foods Corporation, A Corporation, Sprague-Wamer Division, by its attorneys, Allen, Darlington and Elliott, filed a complaint in the Court of Claims for a $712.00 balance due on amount stated for goods, wares and merchandise sold and delivered to respondent, State of Illinois, at the Mississippi Palisades State Camp, Savanna, Illinois, in accordance with purchase order No. 323248, attached to complaint as claimant’s exhibit A.
“It was stated that the total price of said goods was $1,342.29; that respondent paid $630.29 in November, 1958, leaving a balance of $712.00 unpaid. Respondent did not file an answer to the complaint. Therefore, a general traverse or denial of the facts set forth in the complaint shall be considered as filed.
“The case was set for hearing on September 6, 1961, in Court Building, 160 N. LaSalle Street, Chicago, Illinois.
“Claimant introduced photostatic copies of purchase order No. 323248, proof of delivery, and acknowledgment from office of the State that goods were delivered in good order.
“Claimant called Mr. Schmidt, who said he was familiar with the bookkeeping procedure used by Consolidated Foods. The order was admitted as exhibit No. 1. It bore the signature of M. M. Hollingsworth. There was no objection by respondent. Claimant then introduced exhibits Nos. 2 and 3. Exhibit No. 2, dated July 15, 1958, shows shipment made to the Mississippi Palisades Camp, Savanna, Illinois, by truck, and the driver’s receipt. Claimant then offered claimant's exhibit No. 4, a statement of shipments and payments received from the State of Illinois. The total amount of the purchase order was $1,342.29, and received $630.29, leaving a balance of $712.00 unpaid. The balance was not paid because the appropriation had expired. Exhibits Nos. 1, 2, 3. 4 and 5 were admitted into evidence. Exhibit No. 5 was a letter from Mr. Munday testifying that' all were true and correct copies.
“The next witness was Mr. Erales, Franklin Park, a truck driver employed by claimant. He identified receipt of delivery to the Mississippi Palisades Park; and stated that he obtained signature and signed delivery receipt for merchandise actually delivered by him to the Camp kitchen. All deliveries were checked in off the bill of lading — the agent, who checked goods, was employed by the State of Illinois. He was the superintendent.
“On September 11, 1961, the attorneys for claimant and respondent stipulated that the requirement for briefs and arguments be waived.
“After careful consideration of the testimony offered, claimant has proven its case by a preponderance of the evidence; that the goods were ordered, delivered in good order, and that $712.00 was not paid, because the appropriation had expired.
“It is my recommendation that claimant, Consolidated Foods Corporation, a corporation, Sprague-Wamer Division, be awarded $712.00.”

This Court has held on previous occasions that, where the evidence shows claimant has fully complied with the terms of a contract, and payment was not made on the contract due to the fact that the appropriation had lapsed, an award will be made. (Boss vs. State of Illinois, 22 C.C.R. 51; Walsh Oil Co. vs. State of Illinois, 22 C.C.R. 154.)

It is, therefore, ordered that the report of the Commissioner be adopted by the Court.

An award is made to claimant in the amount of $712.00.


author: Tolson, C. J.

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

      Opinion filed February 23, 1962.

    Gosnell and Benecki, and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on February 2, 1936, in an accident, which arose 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 award of $5,500.00 was made to claimant for total permanent disability, $8,215.95 for necessary medical, surgical and hospital services, expended or incurred to and including October 22,1940, and an annual life pension of $660.00.

Successive awards have been made by the Court from 1942 to and including May 1, 1961, and the matter is now before the Court for an award to and including October 31,1961.

The record consists of a verified petition, supported by original receipts, and joint motion of claimant and respondent for leave to waive the filing of briefs and arguments, which has been allowed.

The petition alleges that claimant is still bedfast, and requires daily medical and nursing care. It further discloses that claimant has incurred expenses in the following amounts:

1. Nursing and practical help_______________________________________$877.05
2. Room and board for nurse________________________320.25
3. Drags and supplies___’_______________________275.51
4. Physician and professional services_____________■______711.00
5. Miscellaneous expenses __________________________________________29.00
Total _______________________________________________$2,212.81

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

An award is, therefore, made to claimant for medical, nursing and other expenses from May 1, 1961 to October 31, 1961 in the amount of $2,212.81.

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


author: Perlin, J.

text:
    (No. 4918
    R. E. Crim, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 23, 1962.

    James E. Bales, Attorney for Claimant.
    William G. Clark, Attorney General; William H. South, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimant, R. E. Crim, "brings this action to recover damages caused when three inmates escaped from the Dixon State School, entered upon claimant’s real estate, and set fire to his barn, totally destroying the barn and most of its contents. Neither the facts nor the amount of damages are in dispute.

The parties have stipulated to the following:

1. On April 21,1960, the State of Illinois owned and operated the Dixon State School at Dixon, Illinois, an institution for the mentally deficient.

2. On that date, John Fleury, Robert Mays and Charles Clark left the Dixon State School grounds on an unauthorized absence, and made their way to the farm of one R. E. Crim, which was located approximately one and one-half miles from the school grounds.

3. They acquired some matches from the Crim automobile parked in the barn lot of the farm, and, after making their way to the hay loft of the Crim barn, they started several small fires, one of which they could not put out, and which destroyed the barn and much of its contents.

4. The records of the Dixon State School show that John Fleury was committed to the school as a mentally deficient person on June 8, 1955; Robert Mays was committed to the school as a mentally deficient person on December 4, 1959; Charles Clark was committed to the school as a mentally deficient person on February 16, 1960; and, all were residents of the school on April 21, 1960.

5. The records of the school further show that John Fleury had a history of delinquency prior to his commitment to the Dixon State School, and that he had been known to set small fires prior to his commitment. During his residency at the Dixon State School, he had left it without authority on at least one occasion prior to April 21, 1960, and, on or about December 8, 1959, a small fire was discovered beneath one of the institution buildings at the school, in which incident Fleury “was strongly implicated. ’ ’

6. The records also show that both Bobert Mays and Charles Clark had a history of delinquency prior to their commitment to the Dixon State School, and that each of them was committed after having been in custody of the St. Charles School for Boys as delinquent children.

7. The Dixon State School is operated as an institution for the mentally deficient in accordance with accepted standards and practices of institutions of similar type located in the United States. The residents of the school are housed in cottages containing from fifty to one hundred and fifty persons. The school is operated on the “open cottage” principle, that is, the doors of the cottages are not locked during the daylight hours, and the inmates of the cottages are permitted to go to and from their assigned school, therapy or recreation areas "without adult supervision.

8. The institution grounds are not fenced or regularly patrolled, and the inmate checks are made by persons in charge of the cottages, school, therapy and recreation ■ areas at the times the inmates are performing functions under the supervision of such persons.

Respondent contends that the State was not negligent in permitting the inmates to leave without permission. This contention is based on the fact that the Dixon State School was conducted in accordance with accepted standards for the operation of institutions for the mentally deficient, and that it is not fenced in accordance with such operating principles. Therefore, respondent claims that there can be no inference from the evidence that any act or omission on the part of respondent caused or materially contributed to the absenting of the inmates from the school.

The case of Dixon Fruit Company, Et Al, vs. State of Illinois, 22 C.C.R. 271, presented facts almost identical to those in the instant case. The Court held that a finding of negligence is preliminary to an award in a case involving damage by an escaped inmate, since the State is not an insurer. In that case, an inmate of the Dixon State School was allowed to wander at will, although he had a record disclosing that he was a mental defective, and possessed a history of previous escapes and of incendiarism. He was kept in a cottage, which was not a maximum security cottage, escaped from the school grounds, and burned a truck. In holding that the State was negligent, the Court declared:

“It appears to us that respondent should have exercised more restrictive control over the movements of this particular patient. It does not seem reasonable to us that a known mental defective, with an exhibited tendency toward incendiarism, should have been allowed to wander at will without supervision in an institution wherein there were no restraining walls or other means of controlling his movements. This is especially so in view of the institution’s location with respect to the City of Dixon, wherein the property of many persons would be jeopardized by the activities of such a patient.
“It is, therefore, our finding that respondent was negligent in failing to take further measures in controlling the activities of this particular patient, and should, therefore, respond in damages. Mallpy vs. State, 18 C. C. R. 137.”

The negligence of the State of Illinois in allowing John Fleury to roam the grounds without supervision is even more evident than in the Dixon Fruit case in view of the fact that Fleury had not only previously escaped, but had manifested a propensity for incendiarism, and that respondent strongly suspected that Fleury had attempted to set fire to the buildings of the institution itself.

Because the State was clearly negligent as to lack of proper supervision over John Fleury, it appears not necessary to determine whether it should have similarly restricted Robert Mays and Charles Clark, although both had histories of delinquency prior to their commitment to the Dixon State School, and both had been committed to St. Charles School for Boys as delinquent children.

It was stipulated that the damage to the contents of the barn amounted to $500.00. An expert witness testified that the fair, reasonable market value of the barn as of April 21, 1960 was $6,750.00, which amount was not disputed by respondent. We must assume, therefore, that respondent was in agreement with this valuation.

It is, therefore, the judgment of this Court that claimant he awarded the sum of $7,250.00.


text:
    (No. 4942
    Central Y. M. C. A. High Schools, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 23, 1962.
    August A. Grundei, Attorney for Claimant.
    William G. Clark, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimant, Shirley Briggs, through her assignee, the Central Y.M.C.A. High Schools, submitted a claim for tuition and school materials. Claimant is a blind girl, and is entitled to vocational rehabilitation as a disabled person under Chap. 23, Secs. 3431 to 3439 of the Ill. Rev. Stats.

The Central Y.M.C.A. High Schools provided tuition and school materials for claimant, and now claims the amount of $229.60 therefor. This amount was substantiated by invoice vouchers attached to the complaint, which showed that $217.00 for tuition and $12.60 for school materials were due and owing for the period of January 23,1959 through June 20,1959. The only reason for nonpayment of this claim by respondent was lapse of the appropriation. At the time the appropriation lapsed there were sufficient unexpended funds available to cover the amount of the claim in the Vocational Rehabilitation Fund.

Claimant is hereby awarded the sum of $229.60.


text:
    (No. 4961
    Montgomery Elevator Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 23, 1962.

    Montgomery Elevator Company, A Corporation, Claimant, pro se.
    William G. Clark, Attorney General; C. Arthur jSTebel, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimant has, for many years, furnished elevator service to the East Moline State Hospital at East Moline, Illinois at the agreed rate of $110.00 per month.

Through inadvertence, mistake, and oversight in the billing department, claimant failed to submit a regulation invoice voucher form for services rendered by it during the month of March, 1959. This error was discovered on or about March 15, 1960, by which date the biennial appropriation had lapsed. Claimant subsequently filed this claim.

Respondent has adopted the Departmental Report, and has stipulated to the amount of the claim herein and to the facts accounting for its non-payment.

There being no question of law or fact in controversy, an award is hereby made to claimant in the sum of $110.00.


text:
    (No. 4979
    Daniel F. Ring, Sheriff of the County of St. Clair, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 13, 1962.

    John M. Karns, Jr., Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimant, Daniel F. Ring, Sheriff of the County of St. Clair, asks the sum of $93.60 as mileage fees for conveying persons to the Illinois State Prison, Menard Branch. The claim was submitted to the Department of Public Safety, but was not paid for the reason that the charges were payable from the appropriation for the 70th Biennium, which lapsed September 30, 1959.

It has been stipulated that the Departmental Report, dated May 18, 1961, which was filed in this cause under Rule 16, shall constitute the record in this case.

Chap. 53, Sec. 37, 1961 Ill. Rev. Stats., provides for payment of the sum of twenty cents per mile out of the State Treasury to Sheriffs for conveying persons in going only to the penitentiary.

When a claim would have been paid in due course, if the appropriation had not lapsed, this Court will make an award. It is agreed that the claim herein would have been so paid, if the appropriation had not lapsed.

An award is, therefore, made to Daniel F. Ring, Sheriff of the County of St. Clair, in the amount of $93.60.


text:
    (No. 4782
    Gustav Engelke and Leola Engelke, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1962.

    Eldon M. Durr and Ralph T. Smith, Attorneys for Claimants.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimants seek to recover for damages allegedly resulting from the failure of the State to keep unobstructed an underpass or culvert, which runs under Highway-No. 66 and bisects claimant’s property. Claimants allege that it was the duty of the State of Illinois to keep the culvert clear of silt and water, and that respondent’s neglect of this duty gave rise to damages, because claimants’ seventy head of cattle could not cross the highway to use the pasture land on the other side, and that partial closure of the underpass caused water to stand on such, pasturage.

Claimants are owners of a dairy farm, which consists of 180.2 acres west of U. S. Route No. 66, and 34 acres east of Route No. 66. Most of the 34 acres east of the roadway were devoted to pasturing cattle, and access to this area required use of the culvert in question.

In about 1953 negotiations were undertaken between claimants and respondent to acquire access rights and some 12.17 acres of this farm. On April 2, 1955, documents were executed with the State, whereby claimants dedicated the land and access rights to the State for a consideration of approximately $28,000.00.

During the negotiations, claimants allege the State agreed to construct a culvert, which would enable claimants’ cattle to pass under the road. A letter from the Department of Public Works and Buildings, Division of Highways, dated April 6, 1955, signed by the District Engineer, refers to the proposed use of the culvert as a cattle pass, and states an intention to maintain the waterway channel in such a manner that erosion or ponding at the ends of the culvert will not be excessive. The State constructed the new cattle pass or culvert sometime in 1955, and evidence shows that this underpass was cleaned out by respondent once after the construction of the highway.

Claimants allege that, after the completion of the construction, the cows could not pass through to the pasture for the reason that silt and water accumulated to such a depth that the cattle could not wade through. Also, the culvert did not provide a proper drainage, and, as a result, the water from the west side of the highway ran off onto the claimants ’ farm, and stood in an area of one-half to one acre. Claimants contend that their entire pasture land on the east side of the highway was rendered useless, because the cows could not get from the west side through the underpass to the pasture, and that there was no alternative method of crossing the road. Because of this, they had to buy tons of hay to feed the cattle, and were required to hire extra help. Claimants also claim that three trees were removed by respondent to provide entrance to the highway from the farm, but that such entrance way was never built. Respondent alleges said tree removal was done with claimants’ permission, so that better access to the property would result.

The principal issue herein presented is whether or not respondent’s payment of $27,930.00 to claimants for the land in question relieves respondent of any liability for subsequent damages.

Respondent contends that it did not assume responsibility of guaranteeing the continuous passage of claimants’ cattle. Respondent further claims that the 12.17 acres of claimant’s land, which was dedicated for the freeway, including access rights, was valued at $810.00 per acre or $9,857.70, and that the balance of the $27,930.00 was for consequential damages to the remainder.

It is noted that the Deed of Dedication herein makes no reference to providing or maintaining an underpass by respondent for the benefit of claimants. The Deed provides in part as follows:

. .And the Grantors further, as a part of this dedication, on behalf of himself, his heirs, executors, administrators, and assigns, does hereby release, quit-claim and extinguish any and all rights or easements of access and crossing under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of the grantors. . .”

The letters of the Department of Public Works and .Buildings, introduced by claimants, are dated subsequent to the date of the Deed of Dedication, and cannot be deemed a part thereof.

A deed, which is unambiguous, and which has a settled meaning in law, cannot be changed or added to by parol evidence. Morton vs. Babb, 251 Ill. 488.

In Cole, Et Al, vs. State of Illinois, 23 C.C.R. 74, this Court, in denying the claim therein, stated that “a decree in condemnation includes damages both to lands taken and lands not taken, and includes all damages, past, present and future.” The Court, citing the case of C., R.I. S P. Ry. Co. vs. Smith, 111 Ill. 363, states that ”. . .it would appear that a deed of dedication is all inclusive, and of the same effect as a condemnation proceeding. ’ ’ It must be concluded, therefore, that the payment for the deed herein includes past, present and future damages.

Claimants’ complaint for damages resulting from the removal by respondent of three trees was neither clear nor proved, a fact conceded by claimants’ counsel.

An award is, therefore, denied.


text:
    (No. 4875
    Virgil Kidd, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1962.

    Besse and Besse, Attorneys for Claimant.
    Grenville Beardsley, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Perlin, J.

Claimant seeks to recover damages incurred to his leasehold when the State of Illinois appropriated land for a highway improvement.

Claimant, Virgil Kidd, was the lessee of a bowling alley and parking lot from Mr. and Mrs. E. 0. Holbrook, who owned the property. Claimant entered into a lease on February 1, 1954 for a term of five years and five months at a rental of $500.00 per month with a five-year option to renew, which was not exercised. The leasehold consisted of two adjoining lots, one of which was improved by a building used by claimant as a bowling alley, and the other which was used by him as a parking area. The parking area had a capacity of about 45 to 50 cars. Each lot had a 125 foot frontage along U. S. Alternate Route No. 30.

The State of Illinois, Department of Public Works and Buildings, made an improvement on U. S. Alternate Route No. 30 in May, 1957. In making this improvement, the State appropriated a strip of land from both lots, 27 feet wide and 250 feet long. As a result, twelve to fifteen parking places were lost to claimant from May, 1957 to July 1, 1959, the end of the lease term — a period of twenty-six months.

It appears that there was no condemnation proceeding between the State of Illinois and the Holbrooks, as owners, or the claimant, as lessee. The record shows that the owners received from the State compensation for the land taken in an amount not set forth in this proceeding.

The lessee continued to pay the $500.00 per month rental for the twenty-six months remaining on the term of his lease at the time the land in question was taken.

Respondent does not question that the leasehold interest of claimant was damaged by respondent without just compensation. That a lessee may recover from the State for damages resulting from any taking of his leasehold has been recognized by the courts of Illinois. Department of Public Works cmd Buildings vs. Bohne, 415 Ill. 253,113 N.E. (2d) 319. Illinois Power Co. vs. Miller, 11 Ill. App. (2d) 296,137 N.E. (2d) 78. The only issue presented is one of determination of the amount of damages.

An expert witness testified for claimant that the parking lot in question had a fair and reasonable rental value of $150.00 per month. Such value was determined by him in ratio to the total rental of $500.00 per month paid by claimant for the bowling alley and parking lot. Claimant testified that the loss of the appropriated parking area resulted in a reduction in the amount of his weekly gross business, especially during the open bowling season. Another bowling alley operator testified that a parking lot is a valuable asset to any bowling alley, a fact which is not controverted.

Claimant contends that, inasmuch as approximately one-third of the parking lot was taken by the land acquisition, he was damaged to the extent of $50.00 per month for twenty-six months.

Respondent agrees that the measure of damages in a partial taking of a leasehold should be the value of the leasehold interest at the time of the taking, less the value of the premises not taken. The lessee is, according to respondent, entitled to compensation only, not to a profit, and that to award the lessee compensation measured by Ms obligation to pay rent rather than by the property value would render him a profit. Respondent further claims that claimant’s damages were speculative and not proven, since the testimony relating to the valuation of the leasehold was predicated on its value at the time of the hearing, and not as of the time of the taking three years prior.

Respondent submitted no evidence as to the value of the property in question. Respondent made no effort to show that the value of the leasehold interest is less than the $500.00 per month rental upon which claimant’s request for damages is based, nor does respondent claim that the rental price, as contracted for in the lease, is unreasonable. In view of the fact that the land value had probably risen from 1954, when the lease was drawn, to 1957, when the land was taken, it would seem the valuation, as advocated by claimant, is not excessive.

In the recent case of County Board of School Trustees vs. Elliott, 14 Ill. (2d) 440, 152 N.E. (2d) 873, the Court held that the law of eminent domain contemplates that, where private property is taken for a public use, the owner is entitled to the amount of money necessary to put Mm in as good financial condition as he was with the ownership of his property at the time the petition is filed.

The Court finds that, since all of the parking space was valued fairly at $150.00 per month, and, since the parking space was reduced by one-tMrd, the loss of value to the leasehold estate was $50.00 per month from the time of the improvement to the expiration of the lease.

Claimant, Virgil Kidd, is hereby awarded damages at the rate of $50.00 per month for a period of twenty-six months, during wMch he suffered loss, for a total amount of $1,300.00.


text:
    (No. 4945
    Carl Paulus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1962.

    Robert J. Woods, Attorney for Claimant.
    William G. Clark, Attorney General; Barry Jay Freeman and Lawrence W. Reisch, Jr., Assistant Attorneys General, for Respondent.
   Tolson, C. J.

On November 2, 1960, Carl Panins filed a complaint seeking an award for damages to bis property, caused by Francis Wasson, a patient at the Lincoln State School, Lincoln, Illinois.

Apparently claimant and the Department of Public Welfare were of the opinion that the case should be tried on the basis of the provisions of Chapter 23, Sec. 4041, 1959 Ill. Rev. Stats.

“Claims for damages caused by escaped inmates of charitable, penal, reformatory, ¡or other institutions. Whenever a claim is filed with the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission for damages resulting from property being stolen, heretofore or hereafter caused by an inmate, who has escaped from a charitable, penal, reformatory, or other institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission, as the case may be, shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Departments or Commission may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claims. 1935, June 21, Laws 1935, p. 255, Sec. 1; 1951, Aug. 2, Laws 1951, p. 1892, Sec. 1; 1953, June 30, Laws 1953, p. 631, Sec. 1.”

The testimony in the case does not indicate that any property was stolen. To the contrary, the evidence discloses that many acts of vandalism were committed by the escaped patient in and upon the property of claimant.

A review of the cases decided by this Court, involving escaped inmates point out that mere proof of an escape, followed by subsequent damages, will not sustain an award.

Dixon Fruit Company, A Corporation, Et Al, vs. State of Illinois, 22 C.C.R. 271.

Charles Finch vs. State of Illinois, 22 C.C.R. 376.

American States Insurance Company, Et Al, vs. State of Illinois, 23 C.C.R. 47.

United States Fidelity and Guaranty Company, A Corporation, vs. State of Illinois, 23 C.C.R. 188.

If claimant makes a prima facie case, and respondent offers no evidence as to the circumstance surrounding the escape, we will conclude that claimant has sustained the burden of proof. United States Fidelity and Guaranty Company, A Corporation, vs. State of Illinois, 23 C.C.R. 188. In the instant case, respondent offered the testimony of Robert Endres, Chief of Safety and Protection, and William Chambers, a psychologist employed by the Lincoln State School. The gist of their testimony was to the effect that the Lincoln State School is not a penal institution with walls and fences, and that the institution is so understaffed that it is impossible to afford adequate security.

The Departmental Report discloses that Francis Wasson had absented himself five times without leave during the past seven years, and that he became disturbed several times a year, during which he was prone to inflict damages on himself, as well as on property.

While this is not what might be termed a bad record, yet it does disclose a tendency on the part of the inmate to leave the grounds and cause damage at irregular intervals. We believe that, under the circumstances, the State was negligent in not providing better security for a potential risk.

This case was heard by Commissioner George W. Presbrey, and bis report in the following words and figures is hereby adopted by the Court:

COMMISSIONER'S REPORT
“The above entitled cause was heard on March 13, 1961, in the City of Lincoln, Illinois. Robert J. Woods represented claimant, Carl Paulus, and Barry J. Freeman represented respondent, the State of Illinois.
“It was stipulated that on July 12, 1959 the State of Illinois, through the Department of Public Welfare, operated the Lincoln State School at Lincoln, Illinois, as a State institution for the mentally deficient.
“It was further stipulated that Francis Wasson entered upon the premises owned by claimant, Carl Paulus, on July 12, 1959, and caused certain damage to said premises. The facts surrounding this matter are substantially agreed to by the parties. It appears that Francis Wasson, 34 years of age, was a patient at the Lincoln State School on July 12, 1959. He had been an inmate since his admission on February 3, 1928, having the intelligence of an imbecile or an idiot. He could be trained but not educated. Wasson was quartered in the farm portion of the Lincoln State School, an area which is not fenced in any manner.
“On July 12, 1959, Wasson escaped from the Lincoln State School, and, while absent, caused damage to the electrical system, walls, windows, window glass, woodwork, water system, and the screens of a house owned by claimant, Carl Paulus, and situated in West Lincoln Township, Logan County, Illinois. The patient was apprehended at 6:30 P.M. on July 12, 1959 by the Lincoln police, and was returned to the institution.
“Claimant reported the damage to the officials of the Lincoln State School. He subsequently repaired the damage at a cost of $441.84. Officials of the Lincoln State School inspected the premises. On December 22, 1959, claimant presented his claim to respondent.
“Claimant contends that the State of Illinois was negligent in allowing the aforesaid patient to escape from the Lincoln State School, and that, therefore, claimant is entitled to a judgment in the amount of $441.84.
“It appears from the report of the Department of Public Welfare that Wasson showed a tendency to become disturbed once or twice in a year, at which times he damaged property. He had a record of five brief unauthorized absences in a seven year period, all without property damage. The Lincoln State School has a population of about 5,261 patients. It is not a security institution, and is not fenced. The patient Wasson had been determined medically eligible for privileges, and on July 12, 1959 was under supervision, but was not under detention. It appears that the patient was absent from his cottage at the time of the check at 5:50 A.M. on July 12, 1959, A search was made for him on the grounds of the institution by the personnel of the institution. When he could not be found on the grounds, the institution notified the local police in Lincoln, and the State Police, who apprehended Wasson on Route No. 121, and returned him to the institution at 6:30 P.M. on the same date.
“Mr. Robert Endres, Chief of Safety and Protection at the Lincoln State School, testified that the patient in question had a known record of being absent from the Lincoln State School twice in 1954 and three times in 1959. It was further testifed that there was one attendant for each 125 to 150 patients, and that there were no guards at the gates of the approaches to the farm property. It appears that 11 men were responsible for the safety and security of all the patients of the Lincoln State School at both the town and farm units, and that the institution was understaEed. Endres testified on page 27 of the transcript that in his opinion there was insufficient supervision over the patient in question.
“In the opinion of this Commissioner, claimant should be awarded the sum of $441.84 for the damages to his property. Claimant has established that respondent was guilty of negligence in permitting the patient in question to escape. Therefore, respondent should reply in damages.”

An award is, therefore, made to Carl Paulus in the amount of $441.84.


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    (No. 5012
    Harry L. McCabe, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1962.
    Harry L. McCabe, Claimant, pro se.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On December 6,1961, Harry L. McCabe, Judge of the City Court of Harrisburg, Illinois, filed a complaint seeking an award for the balance due him for services rendered the State of Illinois as a sitting Judge in the Superior Court of Cook County.

A stipulation filed discloses that Judge McCabe served in the Superior Court of Cook County from June 19,1961 through June 23,1961, and a second period from June 25, 1961 through June 30, 1961.

Exhibit A, attached to the complaint, is a statement from the office of the Auditor of Public Accounts, which discloses that there is a balance due Judge McCabe in the amount of $408.33.

The complaint alleges that, through inadvertence or mistake, only a portion of his statement was paid, which left a balance of $408.33 due him, after allowing all just credits.

The Court, after examining the pleadings and exhibits, finds that Judge McCabe performed the services in the Superior Court of Cook County, as set forth in the complaint, and that there is due him for such services the sum of $408.33.

An award is, therefore, made to complainant in the sum of $408.33.


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    (Nos. 4779 and 4780—Consolidated
    Vernon Thompson and Doris Green, Administratrix of the Estate of Ernest R. Green, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed July 27, 1962.
    George J. Moran and Gordon Burroughs, Attorneys for Claimants.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, J.

This case is a consolidation of two separate claims arising from an automobile accident, which occurred on June 10, 1955, on Illinois State Boute No. 3, at a point about three miles west of Bed Bud, Illinois. In said accident the driver of the car, Ernest Green, was killed, and a passenger, Vernon Thompson, was injured. Doris Green seeks $7,500.00 recovery as Administratrix of the Estate of Ernest B. Green. Vernon Thompson seeks $7,-500.00 for the injuries he allegedly received in the accident.

The evidence indicates that at the time of the accident Ernest Green, the driver of the car, was proceeding in a southerly direction on said Boute No. 3, and heading into a long curve bending in an easterly direction to his left. As the driver rounded the curve, the car failed to continue in the arc, and veered or swerved to the right, leaving the highway, smashing into a tree, killing the driver, Ernest B. Green, and injuring the passenger, Vernon Thompson.

For either claimant to recover damages from the State, he must prove that the State of Illinois was negligent as charged in the complaint, and that such negligence was the proximate cause of the accident. It must further be established that claimants were in the exercise of due care and caution for their own safety. (McNary vs. State of Illinois, 22 C.C.R. 323, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585; Link vs. State of Illinois, Case No. 4719.)

Claimants’ amended petitions charged several specific acts of negligence to respondent including the following:

(a) It failed to erect proper warning signs to warn people of the proximity of the curve.

(b) It suffered and permitted said highway to be and remain in an unsafe condition in that the curve on said highway where the accident occurred was not constructed in accordance with good engineering practice; it did not comply with the original specifications for the construction of said road; and, that the highway was not constructed in accordance with the engineering rules, regulations, specifications and standards promulgated by the State of Illinois through its Division of Highways.

(c) It suffered and permitted the curve on said highway to have two sets of super-elevations, both of which were insufficient for the posted speed set for said curve.

To substantiate their allegations, claimants offered the testimony of Clarence J. Trankle, a member of the Illinois State Police, who was one of the investigating officers. He testified that this curve had been part of his patrol for several years; that he had told a member of the State Engineering Department prior to the accident that the curve needed more markings; and, that there had been a number of accidents on the curve.

Claimants also presented Willard Flagg, a civil structural engineer, who testified that he had previously worked for the Illinois Division of Highways, and that there were formulae established for determining the pitch and degree of curves for highways at particular speeds. He further testified that the southbound lane of the road in question did not have an appropriate super-elevation for a curve on which the State had posted a speed limit of 50 miles per hour. In his opinion, the super-elevation in the southbound lane at the time of the accident justified only a speed of from 35 to 38 miles per hour.

Respondent presented the testimony of Jack Day, a highway engineer for the State of Illinois and a maintenance field engineer for the area of highway in question, who stated that the curve was properly marked by signs measuring 2 feet by 2 feet, and that their subsequent replacement by signs measuring 3 feet by 3 feet resulted in the curve being substantially overmarked. He further testified that the designated speed of 50 miles per hour was properly determined, and was correct for the curve in question.

The only witness to the accident, Vernon Thompson, testified that he did not remember anything about the incident, since his last recollection was at a point 3 or 4 miles before the occurrence. Officer Trankle stated that the automobile traveled approximately 80 yards after leaving the highway. Mrs. Green testified that her husband was a careful driver, and had had no previous automobile accident experience.

It is the function of the Court of Claims to pass upon questions of fact as well as questions of law, and the Court must determine the weight that should be given to the testimony of witnesses. (Joyner vs. State of Illinois, 22 C.C.R. 213; Flint vs. State of Illinois, 21 C.C.R. 80.) Despite the divergence of opinion of the witnesses as to the critical speed of the road segment in question, the evidence reflects that the State computed such critical speed pursuant to a generally accepted method of using a ball bank indicator, while actually negotiating the curve with a motor vehicle. This Court concludes that the State was not negligent in the designation and marking of the road area in question.

It is also the opinion of this Court that claimants have failed to prove by a preponderance of the evidence that any act of respondent was the proximate cause of this occurrence. In fact, no evidence as to proximate cause was established, because the sole witness remembers nothing about the accident, nor does the evidence tend to show what actually caused the accident. Claimants were unable to prove that Ernest G-reen was in the exercise of due care and caution for his own safety. Indeed, the fact that there were skid marks on the highway, and the fact that the automobile traveled about 80 yards after leaving the highway, tend to show that Ernest Green was probably driving at a high speed.

It is an established rule that the State is not an insurer of all those traveling upon the highway, the extent of its duty being to use reasonable care to keep the highways in a reasonably safe condition for persons exercising due care for their own safety. (Bloom vs. State of Illinois, 22 C.C.R. 582.)

In the opinion of this Court, claimants have not proved by a preponderance of the evidence the elements necessary to a recovery.

An award to claimants, Vernon Thompson and Doris Green, Administratrix of the Estate of Ernest R. Green, deceased, is, therefore, denied.


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    (Nos. 4967 and 4968—Consolidated
    Douglas Drugs, Division of Del-Kar Drugs, Inc., David Karger, Claimants, vs State of Illinois, Respondent.

      Opinion filed July 27, 1962.

    Rose, Burt and Pierce, and Victor H. Goulding, Attorneys for Claimants.
    William G. Clark, Attorney General; Edward War-man, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 14, 1961, David Karger, M.D., and Douglas Drugs, Division of Del-Kar Drugs, Inc., filed their complaints, and, upon order of this Court, the cases were consolidated.

The complaint of David Karger, M.D., alleged that he had furnished professional services to the Illinois Public Aid Commission from June 5, 1959 to July 8, 1960, and that there was due him for such services the sum of $33,850.77. It was dismissed on motion of respondent, and, thereafter, on April 5, 1961, claimant filed an amended complaint seeking an award in the amount of $14,015.80.

It appears from the testimony in this case that claimant made application to the Cook County Department of Welfare for authority to participate in the medical program. On July 8, 1959, Raymond M. Hilliard, Director, advised Dr. Karger that he had been accepted, and that he was authorized to treat A.D.C. patients in conformity with the rules and price schedule of the department.

On July 8, 1960, Dr. Karger was notified by Peter W. Cahill, Executive Director of the Public Aid Commission, that he was suspended. The reason for the suspension does not appear in the proceedings, but it would appear that a dispute existed as to the nature and the amount of the charges.

Prior to the hearing of this case, the bills submitted by Dr. Karger were re-examined by the Illinois Public Aid Commission, and from this examination it was determined the Commission was indebted to claimant in the amount of $11,212.64, rather than the sum of $14,015.80 set forth in the amended complaint. A stipulation of facts was thereafter entered into by complainant and respondent as to the correctness of the amount due.

The matter was heard by Commissioner Herbert Gr. Immenhausen on March 7,1962. At that time Dr. Karger testified that exhibit No. 2 was a true and correct copy of statements sent to the Illinois Public Aid Commission, and that the amounts stated therein were due and owing to him, after allowing all just credits.

The complaint of Douglas Drugs, Division of DelKar Drugs, Inc., alleged that it had furnished pharmaceutical supplies to recipients of Illinois Public Aid for a number of years, and that, until they were suspended on July 8, 1960, there was due them from previous billings the sum of $25,194.44. It was dismissed upon motion of respondent, and, thereafter, claimant filed an amended complaint seeking an award of $17,214.26.

Claimant’s statements for supplies were re-examined by the Illinois Public Aid Commission, and from this examination it was determined that claimant was only entitled to $13,771.43 for the reason that it had not complied with the rules of the department. A stipulation of facts was thereafter entered into by claimant and respondent as to the correctness of the amount.

The matter was heard by Commissioner Herbert Gr. Immenhausen on March 7, 1962. At that time Harry Simon, a druggist, who was the secretary of Douglas Drugs, Inc., identified claimant’s exhibit No. 1, and testified that it was a true and correct copy of statements sent to the Illinois Public Aid Commission, and that the amounts stated therein were due and owing to claimant, after allowing all just credits.

The Court, after examining the transcripts, exhibits, and Beport of the Commissioner, finds that claimant, David Karger, is entitled to an award in the amount of $11,212.64.

The Court further finds that claimant, Douglas Drugs, Division of Del-Kar Drugs, Inc., is entitled to an award of $13,771.43.

An award is, therefore, made to David Karger in the amount of $11,212.64.

An award is, therefore, made to Douglas Drugs, Division of Del-Kar Drugs, Inc., in the amount of $13,771.43.


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

      Opinion filed October 4, 1962.

    Gosnell and Benecki, and John W. Preihs, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 30,1962, claimant filed her petition for reimbursement for monies expended for nursing care and help, medical services and expenses from October 31, 1961 to June 1,1962.

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 nurses.

Attached to the complaint is a bill of particulars, supported by receipts, which discloses the following-amounts expended by the petitioner to May 31, 1962:

1. Nursing and practical help__________________________________________$1,078.90
2. Board and room_____________________________________________________ 367.50
3. Drugs and supplies ________________________________________ 427.56
4. Physicians and professional services___________________________ 908.50
$2,782.46

From an examination of the petition and 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 $2,782.46 for the period of October 31, 1961 to June 1,1962.

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


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    (No. 4895
    Rosemary P. Jones, for herself, and as next friend of Margaret Mary Jones, a Minor; and Timothy Daniel Jones, a Minor, Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 13, 1962.

    Earl R. Bice, Attorney for Claimants.
    William G. Clark, Attorney General; Madalyn Maxwell, Assistant Attorney General, for Respondent.
   Perlin, J.

On September 1, 1958, Howard D. Jones, who was a First Lieutenant in the Illinois National Guard, was killed while on a flight from Luke Air Force Base, Arizona via El Toro Marine Base, California to his home-base in Springfield, Illinois. The parties have stipulated that he was “killed in the line of duty”, and while performing his duty as an officer of the 170th Fighter Interceptor Squadron of the Illinois National Guard under orders of his commanding officer.

Claimants in this proceeding are Rosemary P. Jones, the widow of Howard Jones; Mary Margaret Jones, 17 months old at the time of the accident; and, Timothy Daniel Jones, 3 months old at the time of the accident, both minor children and dependents of Howard D. Jones.

Said claimants seek recovery under Chap. 129, Sec. 220.53,1957 Ill. Rev. Stats., which provides as follows:

“When officers, warrant officers or enlisted personnel of the Illinois National Guard or Illinois Naval Militia are injured, wounded or killed while performing duty in pursuance of orders from the Commander-in-Chief, said personnel, or their heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

The parties have stipulated that from January 1, 1957 through August 9, 1957, Howard Jones, while on active duty with the United States Air Force, received a total monthly rate of pay of $627.48. During the period of August 9, 1957 to January 8, 1958, he was a student in Parks College, and was unemployed during that period. From January 8, 1958 to September 1, 1958 he earned $1,280.59 for 54 days active duty as a member of the Illinois National Guard.

The parties have further stipulated that Rosemary P. Jones was paid $3,000.00, representing gratuity pay for six months from the United States Air Force. She receives monthly from the United States Veteran’s Administration, as Dependency and Indemnity Compensation, the sum of $158.00 for herself and her two minor children, and a payment of Old Age and Survivor’s Insurance of $100.00 monthly for herself and her two minor children.

Under the policy of the Court of Claims enunciated in Ward vs. State of Illinois, No. 4897, this Court will allow, in addition to benefits being received from the Federal Government and other sources, a recovery equivalent to the maximum amount prescribed by the Illinois Workmen’s Compensation Act in effect at the time the accident occurred. According to the provisions of the Workmen’s Compensation Act, Ill. Rev. Stats., Chap. 48, Sec. 138.7 (1957), the maximum death benefits allowable to a widow and two minor children on September 1, 1958 were $12,000.00.

It is the opinion of this Court, therefore, that claimants shall be awarded the sum of $12,000.00.