text:
    (No. 76-CC-0856
    First Judicial Circuit, Claimant, v. State of Illinois, Respondent.

      Order filed January 29, 1979

   Per Curiam.

This matter comes before the Court on Respondent’s motion to dismiss.

This claim was filed by the County Treasurer, Union County Court House, Jonesboro, Illinois, and was based upon salaries allegedly due the various probation officers in the First Circuit Court District of the State of Illinois.

Section 6-7 of the “Juvenile Court Act” (Ill. Rev. Stats., Ch. 37, para. 706-7,1975) provides for reimbursement to counties for compensation paid by the counties to probation officers.

Under Section 2 of House Bill 2909 (Public Act 78-1287) $2,000,000.00 was appropriated during Fiscal Year 1975 for such reimbursements to counties, with said appropriation being assigned line item No. 001-36020-4453-0000. That appropriation was insufficient to make full reimbursement to all the counties concerned.

The office of the Comptroller honored each request for payment on the basis of first in first out, and as a result, the appropriation was depleted leaving some counties unpaid.

The Comptroller then prepared and submitted a bill for a supplemental appropriation which failed passage; therefore, there were no funds with which to pay the claim in question.

Motion to dismiss is hereby granted and said cause is dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    (No. 76-CC-0877
    Stuart Daiserman, Individually and as Administratrix of the Estate of Jeffrey Kaiserman, Deceased, Et al, Claimant, v. State of Illinois, Respondent.

      Order filed September 15, 1978.

   Per Curiam.

This matter comes before the Court on Claimant’s motion to vacate order of dismissal and Respondent’s objections to said motion.

On July 15,1976, this Court dismissed the original complaint because the complaint was filed over two years after the action accrued and was barred by the limitations imposed by the “Court of Claims Act” (Ill. Rev. Stat., Ch. 37, sec. 439.22, 1975).

The question is whether the new motion to file an amended complaint on August 25, 1976, comes within the two year limitation imposed by the “Court of Claims Act.”

It is the contention of Claimant that the new motion was filed within the two year limitation imposed by the “Court of Claims Act” and it is the contention of Respondent that it does not come within the two year limitation.

It is also Respondent’s contention “that the alleged rationale for filing the amended complaint under Ill. Rev. Stat., Ch. 83, Sec. 24 (a), 1975 has no relationship to the statute of limitations imposed by the Court of Claims, since Section 24 (a) sets out specific situations wherein that Section applies, none of which apply to this particular case; that the specific situations described in this Section are as follows:

a. “If judgment is given for the plaintiff but reversed on appeal;”
b. If there isa verdict for the plaintiff and upon matter alleged in arrest of judgment, the judgment is given against the plaintiff;
c. If the plaintiff is nonsuited, or the action is dismissed for want of prosecution, then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution;

that said action in the Circuit Court was not “reversed on appeal,” nor was the “verdict for plaintiff’ and “in arrest of judgment,” then rendered “against the plaintiff,” nor was the plaintiff “non-suited or dismissed for want of prosecution,” and thus this statute has no effect upon the two year limitation provided in the “Court of Claims Act;”

3. That even if the “nonsuited” provision of Ch. 83, Section 24 (a) could possibly be interpreted as applying to this particular cause of action, this Court would still lack jurisdiction to hear this matter due to the exclusive provisions of the “Court of Claims Act” and the limitations specifically provided in the Act “makes no provision by a savings clause” for persons filing beyond the two years, except through the Legislature, Truitt v. State of Illinois, 23 Ill. Ct. Cl. 58, 62 and that the maximum limitation for jurisdiction of the Court of Claims is absolute at two years, Munch v. State of Illinois, 25 Ill. Ct. Cl. 313, 316, and the general limitations provided in Chapter 83 have no application to special statutory actions like the “Court of Claims Act,” Robert N. Wilson, Administrator of Estate of Ruth Titzer Wilson v. Fred Tromly, Administrator of Estate of Nolen Stevens, 336 Ill. App. 403, 408, and Wilson v. Tromley, 404 Ill. 307, 312, and therefore the motion of Claimant must be denied for lack of jurisdiction of the Court of Claims.

4. “That the motion to vacate the Court of Claims order of dismissal was filed beyond the 30 days provided for in Rule 22 and Rule 24 of the Court of Claims and thus should be denied for a rehearing or a new trial as well as to file any further pleadings in this matter.”

It is the opinion of this Court that the Respondent’s motion is correct and the motion to vacate order of dismissal is therefore denied.


author: Holderman, J.

text:
    (No. 76-CC-0951
    L. S. Lowenthal, M.D., Claimant, v State Of Illinois, Respondent.

      Order filed January 29, 1979.

   Holderman, J.

This matter comes before the Court on a claim filed by Claimant who was a part-time physician two days per week at the Illinois Department of Corrections in Pontiac, Illinois and at the same time was lessor of office space to the Secretary of State’s office in Pontiac, Illinois.

Respondent’s motion to dismiss sets forth that the Comptroller refused payment of this claim on the grounds that the lease under which this claim is made was “void”, pursuant to Section 11.1 of the “Illinois Purchasing Act” (Ill. Rev. Stat., Ch. 127, para. 132.11-1)

The record discloses that Claimant had leased the office space in question to the Secretary of State for approximately seven years before he came to be employed by the Department of Corrections as a part-time physician. The Secretary of State began leasing Claimant’s office space on July 1,1967, at which time Claimant was not employed by the State. This lessor-lessee relationship continued through September 30,1975, at which time the Secretary of State vacated said office space. The Claimant did not become an employee of the State until September 19, 1974, seven years after the Secretary of State began leasing his office space.

Under date of December 5, 1974, the Secretary of State wrote a letter to Claimant stating that there could be a conflict of interest if a lease were entered into but that they desired to use the premises on a month-to-month basis with monthly payments being made for rent.

Claimant, in his objections to respondent’s motion to dismiss, cites the case of Mersinger v. State, 24 Ill.Ct.Cl., 312, which held that authorized work on a contract, originally illegal and later authorized by a State officer who had authority to do so, can be paid.

In the present case, we have the State of Illinois soliciting the owner of the property for the privilege of continuing in that office space until a new space could be found. It would be difficult to see how the part-time position of a prison doctor could in any manner, shape of form affect the rental of the premises in question.

Motion to dismiss is denied and an award entered in favor of Claimant in the amount of $600.00.


author: Polos, C.J.

text:
    (No. 76-CC-1140
    David L. Graves, Employers Insurance Company Of Wausau and William Sommers, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 18, 1978.

    Harold O. Werner, Attorney for Claimants.
    William J. Scott, Attorney General; George B. Gillespie, Special Assistant Attorney General, for Respondent.
   Polos, C.J.

On October 25, 1974, the State of Illinois Department of Transportation issued a permit to Claimant, William Sommers, granting him authority to move one “Drott 50 Backhoe mounted on 5 Axle Tractor Semitrailer” from Paxton, Illinois to a sewage plant located on U.S. 36 near Jacksonville, Illinois. The Drott 50 was owned by Claimant David Graves. The tractor and semitrailer were owned by Sommers.

By its terms, the permit was subj ect to provisions A and D-2 of Form BT991, which was attached to the permit. Provision A contained the following clause:

“The grantee assumes all responsibility for injury to persons or damage to public or private property, including his own, or the object being transported, caused directly or indirectly by the transportation of vehicles or vehicles and objects authorized under this permit. The grantee agrees to hold the State of Illinois harmless from all suits, claims, damages, or proceedings of any kind, and to indemnify the State of Illinois for any claim it may be required to pay arising from the movement.”

Provision D-2 provided:

“Check heights of structures prior to move to insure adequate clearance.”

The Department of Transportation prepared the route to be followed by Sommers. The permit recited that the tractor-trailer and Drott Crawler had an authorized height of 14 feet, six inches. The Department noted on the permit that an overpass on U.S. Highway 54, on the west side of Clinton, Illinois, was too low to permit passage of the load. The permit did not note any other overpasses along the route which were too low to accommodate the tractor-trailer. However, there was a second viaduct along the route which would not permit passage of the trailer.

On October 26,1974, Sommers and Graves loaded the Drott Crawler on Sommer’s tractor-trailer. David Meisenheimer, Sommers’ employee, drove the rig. Claimant Graves rode in a separate car, driven by one Richard Harrison, to show the driver where the Crawler was to be unloaded.

When Sommers and Graves reached the viaduct at Clinton, Illinois, which had been noted on the permit, they stopped and lowered the height of the load to enable it to pass under the viaduct. Proceeding along the route indicated on the permit, they came to a viaduct approximately three miles east of Jacksonville, Illinois, which would only permit a 14 foot high load to pass underneath. The 14 foot high viaduct was not noted on the permit issued to Sommers, and as the tractor-trailer proceeded under the viaduct, the load struck the viaduct, demolishing the Drott Crawler and damaging the trailer.

To the east of the Jacksonville viaduct signs were posted advising of the 14 foot clearance. Graves said traffic was heavy as he approached the viaduct ahead of the tractor-trailer. The approach was on a down grade 2000 to 3000 feet long. Graves said that several vehicles had pulled between his car and the tractor-trailer, and that both vehicles were traveling at about the speed limit of 45 m.p.h.

Graves said that about one-fourth of a mile before the viaduct he saw a sign indicating a 14 foot high clearance. Graves testified that he suggested to Harrison that they pull over and help the truck get under the viaduct. Graves said he and Harrison both knew that the viaduct was too low to accommodate the truck. However, they did not pull over and attempt to signal the driver of the truck. Graves said that when he suggested that they stop their escort car, Harrison replied, “Well, he’ll know to stop if he sees that sign.”

David Meisenheimer, the driver of the tractor-trailer, testified that he did not see the sign warning of the low viaduct. Meisenheimer said that when he saw that he was going to strike the viaduct he immediately applied his brakes. However, he feared the truck might jacknife, so he stopped braking and allowed the truck to hit the viaduct.

Claimant Graves alleges that the Drott Crawler had cost $68,000.00 and was a total loss. He received $50,000.00 in insurance proceeds from the Employers Insurance Company of Wausau, and recovered $10,000.00 by selling the damaged machine for salvage. He contends he was required to spend the sum of $4,500.00 to rent a similar machine to fulfill a contractual obligation, and thus claims total damages in the amount of $12,500.00.

Claimant Employers Insurance Company of Wausau seeks to recover the sum of $50,000.00 under it’s subrogation agreement with Graves.

Claimant Sommers seeks to recover the sum of $1,424.66 for damages to his trailer, and for his out of pocket expenses incurred in clearing the highway of debris after the accident.

Claimants contend that the State owed them the duty to use reasonable care in issuing the permit for the transport of the Drott Crawler, and that this duty was breached when the State failed to advise Claimants of the existence of the low viaduct at Jacksonville, Illinois. Claimants further contend that the failure of the State to utilize reasonable care in issuing the permit was the proximate cause of the losses they suffered.

Respondent contends that the State did not owe Claimants a duty to use reasonable care in issuing the permit and mapping the route. Respondent also argues that Claimants are barred from recovery by the contributory negligence of the driver of the tractor-trailer.

We agree with Claimant that the State of Illinois owed a duty to use reasonable care in issuing the permit for the passage of the oversize load, and in mapping a route for the transport of the load. This issue was decided in Parkhill v. State, 25 Ill.Ct.Cl. 172. There the State had issued a permit for the transport of an oversize load over a route which had been chosen by the Claimant. The load struck a viaduct, and Parkhill sued for damages. The State argued that it had no responsibility to provide Parkhill with a safe route, and that the damage to the load was proximately caused by Park-hill’s negligent failure to advise himself of the clearance of the overpass. This Court held, however, that Claimant had a right to expect that the State would not permit the load to be carried over a dangerous route, and that it was not reasonable to expect the driver of the truck to stop and examine each overpass along the route.

The State also argued in Parkhill that the permit, which stated that the grantee assumed all responsibility for damage resulting from the movement of the load, absolved the State of responsibility. In rejecting that contention the Court said:

is our conclusion that such a provision cannot be used by the State, as counsel for Respondent contends, to relieve itself of liability for negligence. We do not believe that an exculpatory clause is enforceable where, as here, the matter is one of public concern, and the party seeking exculpation is in a dominant position, (citing cases).”

We believe that Parkhill is determinative of the issue of the State’s negligence. The State had knowledge of the existence of the Jacksonville Bridge, and that the bridge was too low to accommodate the load for which it had issued a permit.

Once the State of Illinois undertook to map a route for the transport of the load, it had a duty to use reasonable care. The record establishes that the State had knowledge of the height of the Jacksonville viaduct, and we believe that in failing to so advise the grantee of the permit, it did not act in a reasonably prudent manner.

However, we find that David Meisenheimer, the driver of the tractor-trailer and Sommer’s employee, was negligent in failing to observe signs warning of the low viaduct. Witnesses estimated that the signs were placed from one quarter mile to 400 feet from the bridge. Graves and Harrison, driving the escort car ahead of the tractor-trailer, observed the signs and contemplated stopping to warn the truck. They did not do so because they assumed that the driver of the truck would see the sign and stop to adjust the load.

There was no evidence offered to excuse Meisenheimer’s failure to observe the sign. The fact that Graves and Harrison did see it, and assumed that Meisenheimer would also do so, is compelling evidence that Meisenheimer would have been reasonably expected to see and heed the warning. We must conclude that his failure to do so was negligence and that his negligence was a contributory cause of the accident.

As the State’s negligence was not the proximate cause of Claimants’ loss, we must deny this claim.


author: Poch, J.

text:
    (No. 76-CC-1144
    Robert Tolen, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 29, 1979.

      Terry J. Foster, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Poch, J.

The Claimant, Robert Tolen, seeks recovery of $2,825.00 as damages for the death of Claimant’s cattle and other expenses incurred allegedly caused by the negligence of employees of the Illinois Department of Agriculture in administering a test to his cattle for brucellosis disease.

The evidence was heard before a Commissioner of the Court. On September 2, 1975, the Claimant was a farmer who owned various types of cattle on his farm in Massac County, Illinois. The Claimant had been told to have his cattle ready for testing on the morning of September 2, 1975. At that time, a veterinarian employed by the State, Dr. William Prusaczyk, and James Walker, an animal health inspector from the Department of Agriculture, arrived at the Claimant’s farm. Twenty-seven head of cattle were tested out of a herd of 48 cattle owned by the Claimant. The cattle to be tested were placed in a barn and led into a chute where a blood sample was taken by Dr. Prusaczyk. As soon as the sample was taken each animal was released. The taking of a blood sample from each animal took only a few seconds. The Claimant testified that during the testing the animals became excited and frightened. This was contradicted by James Walker. Dr. Prusaczyk was not called as a witness by either the Claimant or the Respondent.

While it was apparently very hot and humid that day the testing was completed by 11:30 a.m. and took approximately one hour to complete.

Subsequently in the days following the testing procedure some of the animals tested died. Others that were not tested also died. Others lost weight. The Claimant did not call a veterinarian until September 12,1975, some ten days after the testing and after some of the herd became ill and/or died. Dr. Charles Diekroger, a veterinarian, in Massac County in private practice, was called to Claimant’s farm on September 12, 1975. He saw several cattle that had died and others which were ill. Antibiotics were administered to the cattle and thereafter only one more died. Dr. Diekroger performed an autopsy on one of the cattle that had died and was of the opinion its death was caused by pneumonia, which could be caused by a number of factors other than stress in hot, humid weather. Dr. Diekroger could not tell what caused the pneumonia. There was no lay or expert evidence presented that would prove that the pneumonia was caused in any way by the testing procedure of September 2,1975, or the weather on that day. There is no proof as to what caused the cattle to contract pneumonia. Dr. Diekroger testified that cattle could be infected with pneumonia and within 48 hours could cause them to fall down, (sic) The cause of the pneumonia infection was not established.

The Claimant alleges that the State was negligent in administering the brucellosis test to the cattle in that it was too hot and humid which caused the animals to be overexerted, over-excited and nervous.

This case is similar in some respects to Porter u. State, 25 Ill.Ct.Cl. 62 (1965). In Porter the Claimant sought recovery of damages for the death of a cow subsequent to the administration of a test for brucello— sis by the same Dr. William Prusaczyk. While there are factual dissimilarities in the instant case from those found in Porter, the law is well settled. In order for Claimant to recover he must prove by a preponderance of the evidence that the death or injury was caused by an unskilled or negligent act of an agent of the State. In Porter the claim was denied where the Claimant failed to prove the specific cause of death as well as any negligence on the part of the State.

In the instant case the Claimant has failed to prove that the State, acting through its agents, Dr. Prusaczyk or Mr. Walker, were negligent in handling the Claimant’s cattle. There has been no proof that either the testing itself or the manner in which it was administered was related to the death of the cattle. There is no proof that the cattle died as the result of the acts of State employees. The Claimant has failed to establish that the State had anything to do with the death or other claimed loss in value to the cattle. No negligence has been established. The Claimant did not prove by a preponderance of the evidence that the Respondent was negligent and that such negligence was the proximate cause of his loss. The cattle could have died from any number of causes. Some of the cattle that died were not even tested by Dr. Prusaczyk. This absence of proof requires that the claim be denied.

The claim of Robert Tolen is denied.


text:
    (No. 76-CC-1375
    Craig Romero, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 19, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record in this cause establishes that on or about September 20,1975, Claimant, an inmate at the Vienna Correctional Center, was notified that he was being released pending a new trial. When he left the Correctional Center he did not remove his clothing from his cell. Approximately two weeks later he was arrested on a federal warrant and returned to the Vienna Correctional Center, and found that the majority of his personal effects were missing. Claimant had been instructed to remove his items when he was released, but he did not do so.

In Bargas v. State, No. 32 Ill.Ct.Cl._, this Court held that the State does not have a duty to safeguard inmate’s property from pilferage by other inmates. Here Claimant voluntarily left his property in his cell when he was released from the Vienna Correctional Center, although he had been instructed to take his property with him. The State did not become a bailee of that property, and is not responsible for the loss of that property after it had been abandoned by Claimant.

It is therefore ordered that this claim be, and hereby is, denied.


text:
    (No. 76-CC-1405
    Joseph J. Duffy, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 7, 1978.

    Schiff, Hardin & Waite, Attorneys for Claimant.
    William J. Scott, Attorney General; Carl J. Klein, Assistant Attorney General, for Respondent.
   Holderman, J.

This matter comes before the Court on Claimant’s motion for partial summary judgment and Respondent’s objections to said motion.

This matter arises over bids for building a new Parker High School. The bids for said school were opened on October 30, 1975, and the two lowest bids were

Walsh $1,360,000.00
Duffy $1,544,863.00

On November 4,1975, Walsh’s bid was rejected due to an omission in a F.E.P.C. form regarding the entry of a miniority subcontractor who would do work having a value of not less than 30 percent of the awarded contract value.

Duffy received a notice of award, dated November 7, 1975, which he claims he received on November 6, 1975. This notice stated, in part:

“Do not commence any work until you have received notice to proceed...”

On November 7, 1975, a mailgram was sent to Duffy confirming the message of November 7, 1975, that the notice of award had been rescinded. On November 10, 1975, the Capital Development Board (CDB) confirmed its rescission notice of November 7, 1975. The reason for the rescission was based on a mistake as to the lowest responsible bidder.

Claimant’s motion is based upon an action for breach of contract. It is Claimant’s position that the contract had been accepted and that the attempted rescission is illegal.

The controversy arises primarily over the fact that one of the essential bidding requirements was that not less than 30 percent of the awarded contract value must be performed by a minority subcontractor. In order to implement the Minority Contractor Participation requirement, each bidder was required to complete Form R.P.M.C.-l, on or before October 30,1975, giving the name of the qualified minority subcontractor participant. This was not done in the Walsh bid.

On November 7, 1975, Duffy wrote to Mr. Moynihan, former Acting Executive Director of the Capital Development Board of the State of Illinois, acknowledging to the CDB its receipt of the notification of the pre-construction conference which was to be held on November 14,1975, and in accordance with the CDB’s request, Duffy returned to the CDB executed copies of the form of Owner-Contractor Agreement, Performance Bond, the Labor and Material Payment Bond, and the Certificate of Insurance. The CDB admittedly knew Duffy was ready, willing and able to perform the structural concrete work for the project but blocked the performance of the contract.

The Respondent’s position is that the CDB relied on a “mistake” to support its rescission of the contract — the mistake being that they rejected the Walsh bid in the first instance. This came as a result of not being aware that Walsh intended to perform the work without the use of a subcontractor which eliminated the need to enter the name of the minority subcontractor. The CDB had not made any provision for a bid similar to the one made by Walsh.

It is the State’s contention that the rescission was not even necessary in the present case — its position being that a contracting party cannot one day award to contractor A and on the next to contractor B so long as he has the discretion to award to another.

It is also the State’s contention that the mandates of the “Illinois Purchasing Act” (Ill. Rev. Stat., Ch. 127, sec. 132.1) does not give the Capital Development Board unfettered discretion to choose between the lowest responsible bidder and the next to low. It must award to the lowest bidder.

The statute being clear in matters of this kind, it was mandatory that the bid be given to the lowest bidder, which was the Walsh Construction Company.

Motion for Partial Summary Judgment is hereby denied and said cause is dismissed.


text:
    (No. 76-CC-1596
    Sunstrand Corporation, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 6,1978.

   This cause coming to be heard upon the stipulation of the Claimant and Respondent filed with the Court on September 19, 1977, and the parties waiving all further presentation of evidence and the Court being fully advised;

Finds that on the basis of the stipulated facts before the Court the Claimant has moved by a preponderance that it is entitled to an award of the amount sought in its complaint. The absence of any disputed facts justifies said award without the taking of evidence.

It is hereby ordered that the Claimant, Sunstrand Corporation, be awarded the sum of $245.77 as claimed for services rendered to the Department of General Services.


text:
    (No. 76-CC-1707
    Roy D. Spenard, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10, 1979.

   Polos, C.J.

This is an action by an inmate of an Illinois Correctional facility to recover the value of certain items of personal property, which he alleges were lost during the course of his transfer between the Pontiac Correctional Center and the Menard Correctional Center.

A hearing was held before a Commissioner of this Court on October 10, 1978. The Court has carefully considered the matters introduced into evidence, and finds that Claimant has failed to substantiate his claim by preponderance of the evidence.

It is therefore ordered that this claim be, and hereby is, denied.


text:
    (No. 76-CC-2009
    Daniel M. Rubino, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 26,1979.

    Richard E. Gorman, Attorney for Claimant.
    William J. Scott, Attorney General; James 0. Stola, Assistant Attorney General, for Respondent.
   Holderman, J.

This is a claim for back pay by a State employee who was unlawfully discharged for a period of time.

The facts are not in dispute. The Circuit Court of Cook County ruled, in an administrative review case, that the Claimant was unlawfully discharged from his position as a certified Deputy Boiler Inspector with the Illinois Department of Law Enforcement for a period of December 28, 1972, to July 16, 1975.

Claimant would have earned $33,454.50 during that period had he not been unlawfully discharged.

During the period of the discharge, Claimant tried but was unsuccessful in obtaining employment as a boiler inspector. He, therefore, took any job he could get and worked at various times as a boilermaker supervisor, common laborer, welder, rigger, ironworker, and boilermaker, much of which work was dirty, heavy, and hazardous, and some of which work was performed at night. All of the jobs taken by Claimant were in the boilermaker field.

During the period of discharge, Claimant earned from all emloyment, the total sum of $50,448.38.

Both sides concede the principal that it is the duty of an employee to mitigate damages from an unlawful discharge by seeking employment during the period of discharge but the parties disagree as to the applicability of that rule in two ways:

(1) Whether money earned by Claimant during the period of discharge, at night during night shifts may properly be used in mitigation; and

(2) Whether the work performed by Claimant during the day was of such a nature that the same should not be considered as mitigating.

As to the first question, the facts were that during the period in question, Claimant worked at various times at a night shift and past the normal five p.m. working hour. During this period, Claimant usually worked only one shift so that, it may be presumed, the night shift employment was the Claimant’s primary employment during those various times. However, sometimes he worked a day and night shift the same day. The night shift work amounted to $36,830.97 in total compensation during that period.

Prior to his discharge, Claimant earned, part-time in the evening, as a consultant, as much as $15,650.00 per year (1972).

Claimant argues that not all earnings during a period of wrongful discharge are to be used in mitigation but only those earnings which would have been incompatable with the prior employment and cites as authority People ex rel Bourne v. Johnson, 32 Ill. 2d 324, 205 N.E.2d 470 (1965).

The Bourne case involved a similar situation where the City of Chicago who wrongfully discharged an employee claimed a credit on a back pay award for subsequent earnings of the employee from a secondary job which was compatible with the principal employment. The Court quoted with approval the case of Sanders v. Schenley Products Co., 108 Fed. 2d 23, which states:

“On wrongful discharge from an employment of this character the damage to the employee is measured by the agreed wage during the remainder of the term, reduced by such part of his earnings during the same period as he could not have earned if he had continued in the same employment... The amount recoverable is to be reduced by his other earnings during the period of separation insofar as such income would have been incompatible with performance of his duties to his erring employer. But this does not necessitate mitigation of the recoverable salary by earnings compatible with and being received during the employment from which the employee is wrongfully discharged... As was aptly observed by the Appellate Court, the industrious holder of two compatible jobs who is wrongfully discharged from one should not be penalized by permitting the wrongdoer to deduct from the damages for which he is liable the earnings of the second job during the period of the wrongful discharge.”

We agree that the rules set out in the Bourne case are applicable here. In the case at bar, it is clear that the work performed by Claimant at night could have been earned by the Claimant during the time of his employment by the State. In fact, Claimant did earn substantial money part time during his State employment (although with a different employer and in a different capacity than after the discharge).

Respondent argues that the night shifts worked by the claimant during his discharge must be used as a set off because this was his only and primary job during that period. We agree that the night shift work, when performed, was Claimant’s primary source of income. But whether or not it was his primary source of income is not the test of whether the income should be used as mitigation. By the case law, the test is compatibility with the State employment. In view of the finding of this Court that the night shift work could have been worked concurrently with the State job, it is the opinion of this Court that the income from that night work should not be used as a set off.

As to the second issue, the employment during the day, Claimant argues that that employment was of a much more severe nature and is therefore not to be used in mitigation and cites, in support of this proposition, the case of Williams u. Chicago Coal Company, 60 Ill. 149 (1871). The Williams case is authority for the proposition that where employment is different in character and more severe in the performance, the same should not operate as mitigation of damages in a case of wrongful discharge by a private employer.

We need not comment on this proposition of law cited inasmuch as we believe that the facts in this case show that the labor was not so different in character that it should not operate as mitigation.

Claimant’s work during the period of discharge was mainly as a boilermaker. The capacities in which he worked, although more difficult physically, and hazardous, heavy and dirty, were in the same field as a boiler inspector, his State job. As an inspector, it is presumed by the Court that Claimant would have had to place himself in positions that were dirty and hazardous in order to perform his inspection role. The same or similar training and skill and experience was required. To operate as mitigation an employment need not be identical to the employment from which an employee was discharged. In this case, the day work, amounting to $13,617.41 should operate as a set off against the full claim of $33,454.50.

Claimant is hereby awarded the sum of $19,837.09, less deductions as determined by the Department of Personnel for State Employees Retirement, F.I.C.A., Federal Income Tax, and State Income Tax.


text:
    (No. 76-CC-2229
    Joseph Trotter, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant, has proven by a preponderance of the evidence that on January 27,1976, he ordered a stereo component set at the cost of $94.80. On February 2, 1976, the set was delivered to the Illinois State Penitentiary at Pontiac, Illinois, but Claimant was informed that while he could keep the stereo receiver, he could not keep the speakers. On July 1, 1975, a bulletin had been sent to all inmates advising that stereo component systems were not permitted.

Claimant thereafter filed a grievance, and it was ordered that all components were to be returned to him.

However, prison authorities were unable to locate his speakers.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1 deciding that the State has a duty to excercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d, 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has demonstrated that the State of Illinois took actual physical possession of his speakers. The State now acknowledges that they have lost the speakers, and has presented no evidence to rebut the presumption of negligence which arises under such circumstances.

It appears that the value of the lost speakers was $20.00.

It is therefore ordered that Claimant be, and hereby is, ordered the sum of $20.00 in satisfaction of his claim.


text:
    (No. 76-CC-2462
    Kenneth Anderson, Claimant, v. State of Illinois, Respondent.

      Order filed, October 23, 1978.

   Per Curiam.

This cause coming to be heard on the motion of the Respondent to dismiss due notice being given and the Court being fully advised;

Finds that the complaint for compensation for time unjustly served in prison is brought within the jurisdiction of the Court as set forth in Ill. Rev. Stat., Ch. 37, Sec. 439.8 (C), 1975 which requires as a prerequisite for recovery that the Claimant “receive a pardon from the Governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned.” Allegation and proof of the existence of such a pardon is a prerequisite to stating a cause of action under such statute. See, Mostafa v. State, 30 Ill.Ct.Cl. 567, 569 (1975) and Harpstreith v. State, 30 Ill.Ct.Cl. 546, 550 (1975). In the instant case the complaint fails to even allege the existence of any pardon being issued to the Claimant. Such failure to prove the existence of a pardon results in the failure of Claimant’s complaint to state a cause of action.

It is hereby ordered that the motion of the Respondent to dismiss be and the same is hereby granted and the complaint of Kenneth Anderson is hereby dismissed.


text:
    (No. 76-CC-2558
    Sanders Associates, Inc., Claimant, v. State of Illinois, Respondent.

      Order filed June 29, 1979.

   Holderman, J.

This matter was referred to a commissioner for hearing but the parties hereto entered into a stipulation of facts after Claimant waived its right to a hearing in said cause.

The facts, briefly, are as follows. Claimant entered into three lease contracts with the State of Illinois, dated November 3,1971, January 10,1974 and June 27, 1975, calling for the leasing of Claimant’s computer terminal equipment. Among the provisions of said lease was a clause providing that the State would pay the personal property taxes levied on the equipment leased.

During the years 1974 and 1975, personal property taxes in the amount of $11,376.83 and $20,726.95 were assessed against the equipment leased to the State. Claimant allegedly paid these taxes and invoiced the State for reimbursement. The State refused to pay these taxes because monies had not been appropriated for such payment. Claimant then filed this claim before the Court.

Both parties made motions for summary judgment which have previously been denied by this Court.

The record is silent as to whether or not Claimant paid these taxes under protest but it is clear that the State did not pay any of the taxes in question.

The question is made as to whether or not the agents who entered into the contract attempting to bind the State to pay these taxes had the authority to enter into such a contract.

Respondent raises the point that no appropriation has been made for payment of the taxes which is the basis for Claimant’s claim.

Since the record is clear that no appropriation was made for the monies claimed by Claimant,

It is hereby ordered that this claim be, and the same is, dismissed.


text:
    (No. 76-CC-2724
    State Emloyees’ Retirement System Of Illinois, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 11, 1978.

   Per Curiam.

This is a claim by the State Employees’ Retirement System of Illinois for the recovery of funds escheated into the Warrant Escheat Fund as a result of warrants being issued to deceased recipients during periods of time when the retirement system was unaware of the demise of the recipients involved and to recipients who had returned to work. The warrants were retained by the families of the deceased recipients without notice being given to the retirement system. Upon noticing that the warrants were going uncashed the retirement system investigated and found that the recipients were either deceased or had returned to work. The trust fund out of which the payments were made and into which replacement is sought is Trust Fund #479. Trust Fund #479 is held in trust by the treasurer of the State of Illinois and administered by the officers and employees of the State Employees’ Retirement System of Illinois for and on behalf of the State of Illinois employee members and recipients.

An agency of this State may not normally prosecute a claim in this Court for appropriated funds. However, this trust fund is comprised of unappropriated funds which come to the fund through withholdings from employees’ paychecks and contributions by the State. Although the money is initially appropriated for payrolls and agency contributions, once it is paid over to employees by being vouchers to the fund on behalf of the employees it vests in the employees as members of the retirement system and is no longer appropriated money. The fund at that point cannot lapse nor can it be expended for day to day operation expenses. It must be held for the benefit of the system members.

The right to participate in the retirement system and the right to expect the contributed proceeds to be correctly distributed is a contractual right incidental to the employees’ contract of employment. The officers and employees of the State Employees’ Retirement System of Illinois as administrators of the fund have, however unintentionally, breached their contractual duty to pay out these proceeds only to bonifide recipients.

It is encumbent upon the officers of the State Employees’ Retirement System to prosecute this claim on behalf of the thousands of employees and recipients for the preservation of the integrity of the fund and this Court so construes this complaint.

Section 22(a) of the “Court of Claims Act” provides that all claims founded in contract shall be brought within five years of its accrual.

Illinois Rev. Stat., Ch. 15, Para. 210.6 provides that limitations prescribed by Section 22 of the “Court of Claims Act” “shall begin to run one year from the date of issuance of the unpaid warrant.” It, therefore, follows that only those amounts represented by warrants issued more than six years prior to the filing of this action are barred. The only warrants, therefore, barred are #EA197939 for $80.88 issued September, 1970, and #EA206286 for $80.88 issued October, 1970, both payable to Lillian E. Wentworth.

The Attorney General expresses no opposition to the awarding of this claim except for the amount represented by the two previously noted warrants which are barred by the cited statutes of limitations.

The funds having escheated, as per Ill. Rev. Stat., Ch. 15, Paras. 10.07 and 10.14, the proceeds have now been placed into the Warrant Escheat Fund from which they, except those amounts barred as noted earlier, must now be returned to Trust Fund #479.

It is, therefore, ordered that the Illinois Retirement System be granted an award in the amount of $24,336.43 in payment of the above claims to be paid from the warrant Escheat Fund for the deposit into the State Employees’ Retirement System of Illinois Trust Fund #479.


text:
    (No. 76-CC-2836
    Granite City Trust And Savings Bank, Administratrix of the Estate of Ralph W. Skaggs, Jr., Deceased, Claimant, v. State of Illinois, Respondent.

      Order filed February 13, 1979.

   This cause is before the Court on the motion of Respondent to dismiss. The Claimant herein is the administrator of a deceased individual who was treated prior to his death by the Jewish Hospital of St. Louis. It appears that an application for payment for appropriate medical expenses was made to the Illinois Department of Public Aid on behalf of the deceased, and, following approval, some items were paid to the Jewish Hospital. Thereafter a dispute arose with respect to the remaining items.

It further appears that on November 17, 1977, a letter was written by the Illinois Department of Public Aid acknowledging the Department’s obligation to the Jewish Hospital to complete payment for services rendered to the deceased.

Respondent contends that Claimant does not have a cause of action for services rendered to the deceased, since the Illinois Department of Public Aid has acknowledged liability to the Jewish Hospital. Respondent relies upon Ill. Rev. Stat., Ch. 23, Paras. 11-13, which provides in pertinent part as follows:

“A cause of action does not accrue within the meaning of this paragraph for as long as there is an unrevoked acknowledgement in writing by a government unit or the Illinois Department that it accepts the liability, in whole or in part, for a vendor claim submitted to it...”

Respondent has established that there is an unrevoked acknowledgement by the Illinois Department of Public Aid that it accepts liability for the claim of the Jewish Hospital. The Claimant therefore does not have a cause of action for those medical expenses.

It is therefore ordered that this cause be, and hereby is dismissed.


text:
    (No. 76-CC-2863
    Karl Endress, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 1,1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes by the preponderance of the evidence that in 1974, while confined at Stateville Correctional Center, Claimant purchased from Goldblatt’s, in Joliet, Illinois, a Panasonic radio for the sum of $129.00.

On or about June 23,1976, prison authorities took possession of Claimant’s radio and it has never been returned to him.

Specifically on June 23, 1976, Claimant was stabbed while in the inmate’s kitchen. He was first taken to the institution hospital and then to St. Joseph’s Hospital in Joliet, Illinois, where he remained for approximately one month. Following the stabbing, prison officials removed Claimant’s property from his cell for safe keeping. Following his release from the hospital, Claimant found some of his property in the office of one of the wardens, but the radio was gone.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1 deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 N.E.2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So.2d 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant’s prima facie case therefore stands unrebutted.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $129.00.


text:
    (No. 76-CC-2952
    Lawrence T. Hartman, Claimant, v. State of Illinois, Respondent.

      Order filed November 6, 1978.

   On September 15,1978, Respondent filed a motion to dismiss this cause.

This claim is for legal fees by a private attorney hired by the adoptive parents of a child under the jurisdiction of the Department of Children and Family Services.

The Department of Children and Family Services agreed prior to the adoption to permit the adoptive parents to choose an attorney of their own choice and agreed to pay fees connected therewith in the amount of $642.90, which amount was paid in full.

The $70.00 additional being sought was submitted as a billing two days after the finalization of the adoption.

The payment of private counsel is discretionary with the Department of Children and Family Services and any amount agreed to and paid are benefits to which the adoptive parents have no legal right.

The Departmental Report submitted by the Department of Children and Family Services denied this claim.

Under Rule 14 of the Court of Claims, it appears that Claimant was employed not by the State of Illinois but by the adoptive parents and, consequently, the State is not responsible.

Motion to dismiss is granted and this cause dismissed.


text:
    (No. 76-CC-3116
    Cannal Randolph Corporation, Claimant, v. State of Illinois, Respondent.

      Opinion filed October 25,1978.

    H. Burton Schatz, Attorney for Claimant.
    William J. Scott, Attorney General; Paul M. Sengpiehl, Assistant Attorney General, for Respondent.
   This claim comes on to be heard on the joint stipulation of the parties.

Claimant, Canal Randolph Corporation, seeks to recover $118,272.25 in damages allegedly resulting from the excessive use of certain realty by the State of Illinois, Department of Labor during the lease period May, 1972, through May, 1975. The parties agree that the lease in question contemplated that the Illinois Department of Labor would utilize Claimant’s building during normal business hours, but that Respondent’s use of the building greatly exceeded that expectation.

In Canal Randolph Corporation v. State of Illinois, 31 Ill.Ct.Cl. 88, the identical parties and issues were before the Court. The Court there ruled that an ambiguity in the lease here in question favored the Claimant landlord, and therefore entered an award of $10,-215.00 to Claimant based upon 681 hours of excessive use at $15.00 per hour.

This Court has reviewed the settlement negotiations that have transpired between the Illinois Department of Labor and Claimant, based upon the Court’s opinion in 31 Ill.Ct.Cl. 88. The Court feels that the agreed upon settlement in the amount of $26,040.00 for excessive use of the building is reasonable, and is hereby approved.

The Court further finds that the State breached the lease in failing to provide proper maintenance services and that the Claimant expended the sum of $9,225.00 to provide those services which were the responsibility of Respondent under the contract.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $35,265.00, in full satisfaction if its claim against the State of Illinois.


text:
    (No. 76-CC-3164
    John L. Cain, Claimant, v. State of Illinois, Respondent.

      Order filed November 29,1978.

   This matter comes before the Court on a motion by Respondent to dismiss this cause.

In a recent case, Jewel Food Stores, Division of Jewel Companies, Inc. v. State of Illinois, this Court made a ruling in cases of this nature.

Based upon said decision, Respondent’s motion to dismiss is hereby denied and an award is entered in the amount of $3.00 in favor of Claimant.


text:
    (No. 76-CC-3165
    John L. Cain, Claimant, v. State of Illinois, Respondent.

      Order filed November 29, 1978.

   This matter comes before the Court on a motion of Respondent to dismiss this cause.

• In a recent case, Jewel Food Stores, Division of Jewel Companies, Inc. v. State of Illinois, this Court made a ruling in cases of this nature.

Based upon said decision, Respondent’s motion to dismiss is hereby denied and an award is entered in the amount of $8.00 in favor of Claimant.


text:
    (No. 77-CC-0124
    National Council Of Engineering Examiners, Claimant, v. State of Illinois, Respondent.

      Order filed January 31, 1979.

   This cause is before the Court on the motion of Respondent to withdraw a stipulation heretofore filed, in which Respondent agreed to entry of an award in the amount of $1,235.00.

On consideration thereof, it is hereby ordered that Respondent’s motion for leave to withdraw its stipulation be, and hereby is, denied.

It is further ordered that Claimant be, and hereby is, awarded the sum of $1,235.00.


text:
    (No. 77-CC-0578
    Theodore Gray, a minor by Fred Gray, Father, Claimant, v. State of Illinois, Respondent.

      Opinion filed June 28, 1979.

   Per Curiam.

This claim arises out of personal injuries sustained by Claimant Ted Gray, when he was accosted by an escaped mental patient and hit by a two inch by four inch board on October 24, 1975.

Ted Gray’s medical and hospital bills were in excess of $500.00. Upon authorization of the Department of Mental Health a settlement was negotiated for $1,000.00 by the Office of the Attorney General of the State of Illinois with Claimant’s attorneys.

An award is hereby granted to Claimant in the amount of $1,000.00.


text:
    (Nos. 77-CC-0588 & 77-CC-0587, Consolidated
    Solly S. Vaccaro and Fred Peters, Claimants, v. State of Illinois,Respondent.

      Opinion filed March 2, 1979.

    Michael J. Wallace, Attorney for Claimant.
    William J. Scott, Attorney General; Paul M. Sengpiehl, Assistant Attorney General, for Respondent.
   Polos, C.J.

These consolidated cases raise the issue of when a State employee may receive additional back pay, where he has been illegally laid off and assigned to a position at reduced pay.

The facts are essentially undisputed. On March 4, 1975, Claimants were employed by the State of Illinois, Department of Transportation, as Highway Maintenance Lead Workers. This was a supervisory position, and they had been so employed for several years. On March 4,1975, they were both given written notices of a layoff.

Approximately two weeks later, they were called to a meeting at the offices of the Department of Transportation and were given a choice of either accepting a lower classified job with a cut in pay, or being laid off. Both Claimants signed a form agreeing to a voluntary reduction in job classification.

Claimants immediately thereafter protested the layoffs, and upon investigation, it was determined that rules pertaining to layoffs had been violated by the Department of Transportation. Claimants filed complaints with the Civil Service Commission, alleging that the layoffs and their subsequent voluntary reductions were improper.

An investigation by the staff of the Civil Service Commission found that Claimants had been selected for layoffs on the basis of improperly prepared performance evaluations, and that if proper performance evaluations had been utilized, neither Claimant would have been laid off.

The Department of Transportation and the Department of Personnel then entered into a stipulation and agreement with the Claimants wherein the departments, “desiring to correct the erroneous selection of Mr. Peters and Mr. Vaccaro” agreed “to make Mr. Peters and Mr. Vaccaro whole for all loss suffered while the inequity existed.” The departments agreed to reinstate Claimants to their former positions with full retroactive seniority and agreed “that Mr. Peters and Mr. Vaccaro shall be entitled to the difference between the rates of pay of a Highway Maintenance Lead Worker at EPV and the titles they held from March 16, 1975, to August 31,1976.”

The Civil Service Commission formally ratified the stipulation and agreement between the parties and the Claimants were restored to their former positions on September 1, 1978, and were advised by the Department of Transportation to pursue back pay in the Court of Claims.

During the period March 16, 1975, to August 31, 1976, both Claimants worked as Highway Maintainers and were paid in full by the State for that work. While his complaint was pending before the Civil Service Commission, Claimant Peters passed a Civil Service examination for Heavy Equipment Operator and performed in that position until August 31,1976. The pay for the positions of Highway Maintainer and Heavy Equipment Operator is substantially less than that of Highway Maintenance Lead Workers.

In the case of Claimant Vaccaro, the difference in pay amounted to $2,905.00. For Claimant Peters, the difference in pay was $2,014.00.

It is the State’s position that payment of these sums is barred by Ill. Rev. Stat., Ch. 127, Sec. 145. Respondent argues that by virtue of that statute, there cannot be additional payment for work already performed, and as Claimants have been fully paid for their work during the period in question, they cannot receive additional compensation.

We cannot agree with the contention of the Respondent.

Ill. Rev. Stat., Ch. 127, Sec. 145 provides:

“Amounts paid from appropriations for personal services of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made...”

In our view, the claims in this case do not constitute “additional payment for work already performed and for which remuneration has already been made.”

The Claimants are not requesting additional payment for the work they performed. Rather they are requesting damages arising from the State’s threat of an improper layoff.

Respondent argues, in a generally well researched brief, that the Court of Claims has a long history of denying additional retroactive back salary claims by reason of Sec. 145. However, none of the cases cited by Respondent involved a claim for retroactive pay by one illegally reduced in j oh classification or by one illegally laid off and illegally obliged to take a State job with lower pay. The cases cited are therefore not applicable to the facts in this case.

It seems clear to us that the Claimants in this case were illegally separated from their jobs. Had they not agreed to take jobs at reduced pay, and been laid off, there is no question, given the Civil Service Commission ruling, but that they would have been entitled to retroactive pay for the period of the layoff. It is further clear that after the discharges, Claimants would have been required to mitigate their damages by attempting to obtain other employment. Claimant in effect mitigated their damages by taking lower paying jobs with the State, and they cannot be foreclosed from recovering the salary differential by virtue of that fact.

This Court has many times granted relief to Claimants who were found to have been unlawfully discharged, and this Court has many times granted retroactive pay in those instances. That the Civil Service Commission has the authority to reinstate persons unlawfully discharged cannot seriously be questioned.

The facts in this case are no different than in such cases, except for the use of a State job in mitigation rather than a job in the private sector. That difference does not subject the facts in this case to the rule of Section 145.

Therefore, Claimant, Fred Peters, is hereby awarded the sum of $2,014.00 and Claimant, Solly S. Vaccaro, is hereby awarded the sum of $2,905.00 as adjusted by the appropriate deductions and contributions for Federal and State taxes and F.I.C.A. and Retirement Fund.


text:
    (No. 77-CC-0598
    Market Place Currency Exchange, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 29,1978.

   This matter comes before the Court upon Respondent’s motion to dismiss and Claimant’s objections to said motion.

Motion to dismiss is hereby denied and an award is entered in the amount of $98.00 on behalf of Claimant.


text:
    (No. 77-CC-0808
    Werner F. Roupp, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes without contradiction that on March 2,1977, a Sony portable color television set, costing $387.45 was delivered to Stateville Correctional Center by Polk Brothers of Joliet, Illinois, for delivery to Claimant. The television set was received by one Sgt. Adams at the gate of the institution, but disappeared before it was delivered to Claimant.

Respondent has conceded liability for the loss of the set.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $387.45.


text:
    (No. 77-CC-0811
    The County Of Will, Claimant, v. State of Illinois, Respondent.

      Opinion filed November 30, 1978.

      Kenneth A. Grnacek, Attorney for Claimant.
    William J. Scott, Attorney General; James O. Stola, Assistant Attorney General, for Respondent.
   Per Curiam.

This claim coming on to be heard on the joint stipulation of the parties hereto, and the Court being fully advised in the premises;

This Court finds that this claim is for the appearance of the State’s Attorney for Will County on behalf of the State of Illinois in habeas corpus actions arising with regard to prisoners in Will County.

This claim is payable by this Court pursuant to Ill. Rev. Stat., ch. 65, paras. 37,38, and 39 which states as follows:

37. Reimbursement of counties having penal or charitable institutions for expenses incurred in habeas corpus proceedings by non residents.] §1. In all counties in Illinois wherein there may be situated a State penal or charitable institution, the State shall assume and pay to such county the necessary expenses incurred by it, and its officers, either by means of service rendered or otherwise, by reason of Court proceedings therein involving a petition for the writ of habeas corpus, by or on behalf of, an inmate of such institution who was not a resident of such county at the time of his commitment and was not committed by any Court therein.
38. Claim by county for reimbursement.] §2. In order to entitle a county to such payment, as provided by Section 1 of this Act, it shall be necessary that a verified claim be filed by the State’s Attorney of the County with the Court of Claims, setting forth the items for which the county claims the right to receive payment under the provisions of Section 1 of this Act. The Court of Claims shall proceedto consider such claim and enter such order as shall comply with the terms of this Act.
39. “Expenses” defined.] §3. The term “expenses” as used in Section 1 of this Act shall be construed to include all costs and fees of county officers as fixed by statute, including such expenses as may be incurred in providing juries, if any be made necessary by such proceedings. Provided, that all officers’ fees so received by the county, shall in all cases be treated and accounted for as the earnings of the office of the respective officers in said county.

It is hereby ordered that the sum of $1,760.00 be awarded to Claimant in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause.


text:
    (No. 77-CC-1012
    Charles Prucha, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 18, 1978.

   Polos,C.J.

Claimant, an inmate of Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record establishes that on December 20,1976, Claimant was a prisoner at the Joliet Correctional Center and was in possession of a General Electric radio which he had purchased for $21.97 on August 17, 1976. On that date he was taken to Silver Cross Hospital and prison authorities took possession of his personal property, including the radio. On his return from the hospital his property was returned to him, but the radio was missing.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to excercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows:

“An acutal contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disapperance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therfore ordered that Claimant be, and hereby is, awarded the sum of $21.97.


text:
    (No. 77-CC-1018
    Lance Bell, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 11, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

However, upon examination of the record in this cause, we find that Claimant’s property was lost during the course of a shake down conducted by an employee of the Illinois Department of Corrections in search of contraband.

This was not an instance where the State took actual physical possession of Claimant’s property, and this Court does not recognize a right to recovery under these circumstances. See, Bargas v. State, 32 Ill.Ct.Cl.__.

It is therefore ordered that this cause be, and hereby is, denied.


text:
    (No. 77-CC-1030
    Anthony Rock, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 11, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant contends that during the course of his transfer between cells at the Pontiac Correctional Center one Officer Zitnik collected his property, and that when it was delivered to his new cell three of Claimant’s own oil paintings, and certain other items, were missing.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical posession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 24 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant valued his oil paintings at $125.00, and his other items of property had a value of $21.93.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $146.93.


text:
    (No. 77-CC-1110
    Lamar Davis, Claimant, v. State of Illinois, Respondent.

      Opinion filed August 30, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

In particular, Claimant contends that a television set was sent to him while he was an inmate of the Pontiac Correctional Center, and that the Center receipted for the set, but failed to deliver it to him. Claimant has established that the value of that television set was $105.00.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App.2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $105.00.


text:
    (No. 77-CC-1164
    Perez Funches, Claimant, v. State of Illinois, Respondent.

      Opinion filed February 18, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois correctional institution, has brought this action to recover for the alleged loss of a gold wedding band, a pair of glasses, a three piece suit and some photographs. Claimant alleges that these items were lost during the course of his transfer from the Vienna Correctional Center to the Pontiac State Penitentiary.

It appears that at the time of his transfer his personal property was inventoried and packed, and shipped to his mother at an address furnished by Claimant. Claimant signed the inventory as presented to him, and alleges that the items issued were either not on the inventory, or they were on the inventory and not received by his mother.

Claimant acknowledged that his mother received some of his personal property, which was shipped via Greyhound bus. His property therefore could have disappeared anywhere in transit. Further, Claimant’s testimony was ambigous and inconsistent with respect to how he came into possession of certain of the property at issue, and the cost of that property.

For the foregoing reasons, the Court finds that Claimant has failed to establish by a preponderance of the evidence that the State came into actual possession of the items of property at issue, or that the property was lost due to negligence on the part of the State.

It is therefore ordered that this claim be, and hereby is denied.


text:
    (Nos. 77-CC-1186 & 77-CC-0726, Consolidated
    Kenneth J. Catenacci, Claimant, v. State of Illinois, Respondent. Elmer Karnuth and Lillian Karnuth, Claimants v. State of Illinois, Respondent.

      Opinion filed November 2, 1978.

   Polos, C.J.

Claimant, Kenneth J. Catenacci, an inmate of an Illinois penal institution, seeks an award of $98.70 for the loss of a Panasonic stereo radio and tape player from his cell at the Stateville Correctional Center. Claimants, Elmer Karnuth and Lillian Karnuth, seek an award of $106.93 for a cassette player, headphones, and cassettes purchased by them for Claimant Catenacci while he was an inmate at Stateville Correctional Center, but never delivered to him.

The State did not offer any rebuttal to Claimants’ testimony, and the record establishes the following facts without dispute.

Claimant Catenacci’s grandparents, Elmer Karnuth and Lillian Karnuth brought a Panasonic AM-FM eight track stereo radio for Claimant from the K-Mart Store in Joliet, Illinois, for $98.70. The radio was delivered to Claimant through the office of one Mr. Maxwell, the institution property officer, on May 9, 1977. The next day, May 10,1977, while Claimant was out of his cell for the noon meal, the radio was stolen from his cell. When Claimant returned to his cell from eating, he found that his cell, contrary to institution rules, was unlocked. Institution authorities have never been able to find the radio.

Claimant’s claim is founded on negligence. Contrary to institution rules, the guard in the tower, who controls the cell doors by means of an electric switch, failed to lock the cells while the gallery residents were in the dining room eating. It is Claimant’s contention that the guard in charge of the cell block could have anticipated that when he left the cell doors unlocked, contrary to institution rules, unauthorized persons would enter the unlocked cells and steal various items. Further, by virtue of the tower being in the center of the cellhouse, the tower guard can see persons going in and out of the various cells. Therefore, Claimant alleges that the tower guard was additionally negligent in failing to notice someone enter Claimant’s cell and carry away Claimant’s radio.

With respect to the claim of Claimants Mr. and Mrs. Karnuth, the record establishes that in February, 1977, they paid $106.93 for a cassette player, headphones, and five cassettes to be shipped to their grandson by the dealers from whom they were purchased. The items were signed for by one Sgt. Adams at State-ville, the employee who accepts incoming merchandise for the inmates, but they were never received by inmate Catenacci.

This Court held in Doubling v. State, 32 Ill.Ct.Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE 2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

Here the evidence shows that the State took physical possession of the cassette player, headphones and cassettes shipped to Catenacci by Mr. and Mrs. Karnuth, and as such became liable to them for the value of that property when it was lost.

However, this Court also held in Bargas v. State, 32 Ill.Ct.Cl.__, that the State does not owe a duty to inmates of its penal institutions to safeguard property which inmates keep in their cells from pilferage from other inmates. Claimant alleges that his stereo radio was stolen from his cell, and under the Court’s reasoning in Bargas, such loss is not compensable.

It is therefore ordered that Claimant Elmer Karnuth and Lillian Karnuth be, and hereby are, awarded the sum of $106.93.

It is further ordered that the claim of Kenneth J. Catenacci be, and hereby is, denied.


text:
    (No. 77-CC-1201
    Robert Hendricks, Claimant, v. State of Illinois, Respondent.

      Opinion filed January 10, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has established by a preponderance of the evidence that while an inmate at the Pontiac Penitentiary, he was placed in segregation and placed his personal property in the control of the State of Illinois. When he returned from segregation certain items of his property were damaged, and others were missing.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.__, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

The presumption that the State was negligent in caring for Claimant’s property therefore stands unrebutted.

Claimant has established that the value of the property lost by the State was $165.00.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $165.00.


text:
    (No. 77-CC-1218
    Jessie Owens, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 18, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

The record herein establishes by a preponderance of the evidence that in May, 1976, while confined at the Jdiet Correctional Center, Claimant purchased a radio at the inmate’s commissary for $39.00. On or about December 18, 1976, prison authorities took possession of that radio, and it has never been returned to Claimant.

This Court held in Doubling v. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App. 2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $39.00.


text:
    (No. 77-CC-1220
    William Albert Wiggins, Claimant, v. State of Illinois, Respondent.

      Opinion filed April 6, 1979.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

At the hearing herein, Claimant established by a preponderance of the evidence that one pair of gym shoes, one bar of soap, one wash cloth, and one bar of deodorant were taken from him during a shakedown of the Pontiac Correctional facility. These items were not contraband, and Respondent presented no evidence to justify the taking.

Claimant established the value of the property taken from him at $14.91.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $14.91.


text:
    (No. 77-CC-1238
    Charles Huddleston, Claimant, v. State of Illinois, Respondent.

      Opinion filed December 22, 1978.

   Polos, C.J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State is liable as a bailee for the return of that property.

Claimant has proved by preponderance of the evidence that in November, 1975, he purchased a Sanyo, 12 inch Solid State, black and white television set for $79.75, and that on December 15, 1975, he received a personal property permit for the television set from the Stateville Correctional Center. On or about January 13, 1977, the institution confiscated the television set for a 30 day period, and at the end of the period was unable to locate the television.

This Court held in Doubling u. State, 32 Ill.Ct.Cl.1, deciding that the State has a duty to exercise reasonable care to safeguard and return a inmate’s property when it takes actual physical possession of such property during the course of the transfer of an inmate between penal institutions.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” 4A Illinois Law and Practice 550, Bailments, citing Chesterfield Sewer & Water, Inc., v. Citizens Insurance Co. of New Jersey, et al., 57 Ill. App2d 90, 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So2d. 172, at 174, as follows;

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as baillee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence.

At the trial of this cause the State presented no testimony to explain the disappearance of Claimant’s property, and presented no testimony of its freedom from negligence.

Claimant has proven that the State, as bailee, took actual physical possession of his property. The State has failed to rebut the presumption of negligence which arises when a bailee loses property entrusted to its possession.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of $79.75.