text:
    (No. 4771
    University of Chicago, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

    Howard H. Moore and Walter V. Leen, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Wham, J.

This claim arises by reason of the lapse of an appropriation prior to the payment of an amount due the University of Chicago by the State of Illinois. At the time the appropriation lapsed, there were sufficient unexpended funds available to cover the amount of the claim.

There is no dispute that the amount is due and owing, and respondent’s Departmental Report filed herein supports claimant’s contentions.

The matter was heard by Commissioner George W. Presbrey, and, after studying the report, exhibits, and evidence, we concur with Commissioner Presbrey’s recommendation that the claim be allowed, and herewith adopt his report as our opinion in the cause:

“The evidence in the above cause was taken on June 4, 1957. Walter V. Leen represented claimant, and Richard F. Siman, Assistant Attorney General, represented respondent.»
The testimony of one witness, Ted A. Kula, Supervisor of the General Accounts Section of the Comptroller’s Office at the University of Chicago, was heard in this cause. Respondent did not present any testimony.
The testimony disclosed that the University of Chicago was making a claim against the State of Illinois for the sum of $14,964.98. On the 23rd of June, 1954, claimant made an application to the Mental Health Service of the Department of Public Welfare for a grant of $15,000.00. The funds were to be used by claimant for the purpose of conducting a research project, which involved the investigation of the problems of communication as related to the care of the mentally ill. The request for the grant was duly approved and authorized by respondent. The parties subsequently executed an informal agreement under which claimant agreed to conduct the research project, to report the results of the project to respondent, and to submit all bills for the project no later than September 15, 1955. Respondent agreed to reimburse claimant in an amount not to exceed $15,000.00 upon the presentation of quarterly bills on regular State of Illinois invoice forms. Pursuant to the contract, claimant conducted the research project during a period from July 1, 1954 through June 30, 1955, and incurred costs chargeable to the grant in the amount of $14,964.98. This amount was expended and incurred by claimant in the furtherance of the research work required by the project. Respondent acknowledged receipt on September 14, 1955 of a statement of costs, and informed claimant that this statement was not accepted as an invoice, because it was not presented on a regular State of Illinois voucher form, and that, since reimbursement for the costs of conducting the project was payable from funds for the 68th Biennium, which lapsed on September 30, 1955, the department would be unable to pay the amount claimed, even if it were then presented on the prescribed form.
It appears claimant was not paid this amount, because, through an oversight, it did not submit the quarterly statements on the project on the regular voucher forms, and because it subsequently did not submit the total amount due on the proper voucher form.
It appears that there is no question but what the sum of $14,964.98 is due and owing to claimant, and this Commissioner recommends that the amount be paid to claimant.”

The claim of the University of Chicago, An Illinois Corporation, is, therefore, allowed in the sum of $14, 964.98.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4793
    George Foley, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.
    Allen H. Meyer, Attorney for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On October 15,1957, George Foley filed his complaint in the Court of Claims seeking damages in the amount of $30,000.00. He alleges that he was unjustly convicted of burglary and larceny in the Circuit Court of Sangamon County in 1933, and was thereafter released and discharged upon the record by the same court in March, 1950. He further alleges that he can prove his innocence, and that he was not released on technical grounds.

The Attorney General filed a motion to strike on the grounds that it appears on the face of the complaint that the action is barred by the statute of limitations. Claimant thereafter filed objections to the motion with suggestions.

The pleadings raise a question of first impression, as it involves the construction of a recent amendment to the Court of Claims Act. Before considering the new law, it should be pointed out that, prior to June 19, 1957, this Court found itself without jurisdiction to consider eases of this kind.

Montgomery vs. State of Illinois, 21 C.C.R. 205.
Marcinkiewicz vs. State of Illinois, 21 C.C.R. 153.
Harrison vs. State of Illinois, 21 C.C.R. 245.

In the Montgomery case, the Court held that, in the absence of a constitutional provision or a specific statute, it was without jurisdiction to consider the matter, and a motion to strike the complaint was allowed. This ruling was followed in the other two cases mentioned above.

It is of equal importance to bear in mind that the Court of Claims is a creature of statute. The Constitution prohibits the filing of any suit against the state, and it is only by statute that claims against the state may be considered by this statutory Court. It necessarily follows that this Court may not alter or expand its jurisdiction by its rules or decisions.

The following is an extract from the two sections of the Court of Claims Act, as amended and approved on June 19, 1957:

Jurisdiction
“The Court shall have jurisdiction to hear and determine the following matters:
A. ________
B. _______________
C. All claims against the state for time unjustly served in prisons of this state where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $15,000; for imprisonment of 14 years or less but over 5 years, not more than $30,000; for imprisonment of over 14 years, not more than $35,000; and, provided further, the Court shall fix attorney’s fees not to exceed 25% of the awarded granted.
D.
E.
F.
Limitations
“Every claim cognizable by the Court arising under subsection C of Section 8 of this Act shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after the person asserting such claim is discharged from prison, or is granted a pardon by the Governor, whichever occurs later.”

The wording of the two sections must be construed together, as Section 80 creates a new remedy, and the limitations in Section 22 establishes the time limit within which the action must be brought.

In the instant case, we are not concerned with the construction of Section 80, as the sole question is confined to the matter of limitations. The language of the limitations in Section 22 is clear and positive. It spells out a time limit of two years within which a claim must be filed from the date of discharge or pardon, whichever occurs later. Any complaint filed in this Court must, on its face, fall within that limitation, or it will be stricken on motion.

Counsel, in his objections to the motion to strike, urges that the new remedy is merely a codification of the heretofore existing practice of presenting claims to the Legislature for redress, and, further, it would be an anomaly of procedure were the claimant precluded from appearing before this Court, in effect an arm of the Legislature, and still have a right to proceed before the Legislature.

As to the right of the claimant to proceed now before the Legislature, we express no opinion. However, it is patent that claimant had this right for more than seven years, and for reasons of his own did not see fit to avail himself of the opportunity.

For the reasons stated, the motion of the Attorney General is allowed.

It is, therefore, ordered that the said complaint be dismissed.


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

      Opinion filed March 7, 1958.
    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On November 6, 1957, claimant, Elva Jennings Pen-well, filed a supplemental petition for reimbursement for money expended by her for medical services and expenses from December 1, 1956 to October 1, 1957.

On January 14,1957,. claimant and respondent filed a joint motion for leave to waive the filing of briefs and arguments, and alleged that claimant’s receipts for payment of medical bills and services constituted the entire evidence in the case.

Claimant was injured in an accident while employed at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The accident occurred on February 2, 1936, and the original award is reported in 11 C.C.R. 365. This Court retained jurisdiction of the case, and successive awards have been made from time to time.

The petition before the Court at this time again discloses that claimant is permanently disabled, and is entitled to an additional award.

Original receipts, received in evidence, establish the following claim:

(1) Nurses
(a) Wapps _$1,081.63
(h) Rr>Ard And Room 532.00
(2) Drugs and. Supplies 385.28
(3) PhysícÍAn Sprvinps 1,144.45
Trtf-Al _____ ____ ______ _ ________ $3443.36

An award is, therefore, made to claimant for money expended from December 1, 1956 to October 1, 1957 in the amount of $3,143.36.

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


text:
    (Nos. 4590 and 4599
    Myra M. Meister, as Executor of the Last Will and Testament of Edwin F. Meister, Deceased, and William J. Hartman, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 7, 1958.
    Harry L. Pate and Manns and Shaw, Attorneys for Claimants.

      Latham Castue, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On December 4, 1953, Myra M. Meister, as Executor of the Estate of Edwin F. Meister, filed her complaint against the State of Illinois, seeking damages in the amount of $7,500.00 for the wrongful death of her husband, Edwin F. Meister.

On January 7, 1954, William J. Hartman, filed his complaint against the State of Illinois, seeking damages in the amount of $7,500.00 for permanent injuries received due to the alleged negligence of respondent.

As both cases arose out of the same transaction, they were consolidated for hearing.

There is little dispute as to the basic facts, which may be stated as follows:

John Sills and Elmer G. Wheatley are engineers. On November 25, 1952, they were employed by the Division of Highways, and were engaged in a straight edge operation on Route No. 37. Sills was driving a 1948 Pontiac, owned by the State of Illinois, and Wheatley was seated in the trunk of the car operating the straight edge device. This device consists of an “I” beam, ten feet long and about six inches wide, with wheels at each end. Between the wheels are a series of bolts set at a given level, and, when the device passes over a black top pavement, it will detect “high spots” in the pavement by making a scratching sound. When these sounds are heard, the driver stops the car, and they are noted on a record. These records are used in determining the final payment due the contractor. Apparently the smoothness of the road is a factor in the final settlement.

Edwin J. Meister, now deceased, William J. Hartman, A1 Weber and Father James Casey had driven to San-dusky, Illinois to go hunting. Due to the inclement weather, they left Sandusky on November 25, 1952 to return home. Meister was the driver of the car, Hartman was seated to his right in the front seat, and Weber and Father Casey were seated in the rear. About three miles north of Farina, Illinois, at about 1:30 P.M., they collided with a state vehicle, which was being driven by John Sills.

Using the language of claimants’ brief in describing the road condition, it appears as follows:

“That highway No. 37 at the point of collision was a blacktop, two-lane highway, recently resurfaced, approximately 22 to 24 feet wide. That at the time of impact it had been raining very hard, and had been raining since early morning. That it was a very dark, cloudy, foggy and rainy day, and visibility was bad. That just prior to the accident Mr. Meister had been driving approximately 50 miles per hour.”

Edwin Meister died as a result of the collision, and there can be no dispute but what William J. Hartman was seriously injured, and suffered permanent effects from such injuries.

The complaint filed alleges a violation of the Uniform Act Regulating Traffic On Highways. (Ill. Rev. Stats., Chap. 95½.) It also alleges common law negligence.

Upon oral argument, it appeared that the work being done on the highway fell within the provisions of Chap. 95½, Sec. 120D:

“The provisions of this Act shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of the highway, but shall apply to such persons and vehicles when traveling to or from such work."

Therefore, claimants have limited their case to a charge of negligence.

Respondent did not file an answer, but contended in its brief that Edwin Meister failed to overtake and pass the state vehicle, as is provided by law, citing Chap. 95½, Sec. 153A; and, as a result, was guilty of contributory negligence.

“Overtaking a vehicle on the left. The following rules shall govern the overtaking and passing of vehicles, proceeding in the same direction, subject to the limitations, exceptions, and special rules hereinafter stated: (a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle."

As to the claim of William Hartman, respondent contends that the state vehicle was not being driven in a negligent manner so that no liability would result from its operation.

Claimants presented the testimony of Louis A. Lush, a former employee of the Highway Department, who stated that he developed and thereafter manufactured a straight edge device. It was designed to be pushed by hand, and that he had never known of it to be pulled by a slow moving car, and, in his opinion, it would not do a satisfactory job unless pushed by hand. On cross-examination, he stated that, within reasonable limits, it would make no difference whether it was propelled by a man or a motor vehicle.

The Departmental Report stated that for short distances the smoothness tester device was pushed by an operator, and for longer distances the device was held by the operator while-riding at the rear of a motor propelled vehicle.

In searching the record for the alleged negligence of the state, we find that the state vehicle was being driven down the road at the rate of 15 miles per hour, and at the time was dragging the testing device from the rear of the trunk. This set of facts in no way constitutes negligence on the part of respondent. It may not be the most thorough and satisfactory method of determining the condition of the highway, but such conduct in no sense of the word constitutes negligence.

Claimants allege that this device should have been equipped with flags, lights or other warning devices, so as to warn oncoming traffic of the condition.

If there had been no other warning devices on the state vehicle, this point would be well taken, but it appears from the testimony of John Sills, the operator of the state vehicle, that the state car had tail lights on the sides of the car and not on the trunk, which were in operation, and that such lights were clearly visible from the rear.

On these facts, the Court concludes that respondent was not guilty of negligence in the operation of its vehicle at the time and place in question.

It appears from the testimony of Mr. Hartman that Mr. Meister did not attempt to turn out onto the left lane of travel, although that lane was open, and that the first time he was aware of the danger was from the squealing of the brakes and the almost simultaneous collision of the cars. This evidence leads to the inescapable conclusion that Mr. Meister was negligent in failing to note that the car ahead of him was being driven at a much slower speed than his own car. His failure to turn out, or to apply Ms brakes until he was within ten feet of the state vehicle, was such evidence of contributory negligence that no award can be made to his estate.

In the case of Porter vs. State, 21 C.C.R. 116, claimant ran into a state truck, wMch was moving slowly down the road scattering cinders. It was equipped with lights, wMch were burning at the time. However, claimant was unable to stop his car in time, and struck the back of the truck. The Court demed a recovery on the grounds that claimant was gmlty of contributory negligence, and, due to the similarity of the facts, we believe that the Porter case is authority for denying the claim of Edwin Meister.

Claimants argue that, if it be true that the facts disclose contributory negligence on the part of Edwin Meister, such negligence is not necessarily imputed to William Hartman, and cite the case of Thompson vs. Riemer, 283 Ill. App. 371. In that case, plaintiff’s intestate was riding in the back seat of a car, and had gone to sleep. The car collided with a truck, and Mr. Thompson was killed.

The court held that it was the province of the jury to determine the questions of negligence and contributory negligence. The court held that, if the jury found the truck driver was negligent, and that Mr. Thompson, even though asleep, was acting in a manner consistent with that of an ordinary prudent man under like circumstances, the verdict would not be disturbed.

In the instant case, Mr. Hartman was awake. He was sitting in the front seat, and was in a position to observe the traffic ahead. We do not believe that he was guilty of contributory negligence in failing to watch the road more closely, but, as we have stated before, we do not believe that respondent was guilty of negligence. Although the record shows that Mr. Hartman sustained painful and serious injuries, there is no way that this Court can make an award without first finding that respondent was guilty of negligence.

An award is, therefore, denied to Myra M. Meister, as Executor of the Estate of Edwin F. Meister, claimant in case No. 4590.

An award is, therefore, denied to William J. Hartman, claimant in case No. 4599.

(Judge Wham disqualified himself as a participant in the decision in this case.)


text:
    (No. 4668
    Sara Levy, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1958.

      Petition of claimant for rehearing denied March 7, 1958.

    Block and Solomon, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 17, 1955, Sara Levy filed her complaint against the state seeking damages in the amount of $7,500.00 as compensation for injuries, which she allegedly sustained by reason of the neglect of the state in failing to properly clear the walks of snow and ice at the Elgin State Hospital.

The facts of the case are as follows:

Sara Levy, claimant herein, resides in Chicago, Illinois. She has a son, Herbert Levy, who is an inmate or patient at Farm Colony No. 2, Elgin State Hospital, Elgin, Illinois. On January 31, 1954, Mrs. Levy and her husband, Abe Levy, drove out from Chicago to the City of Elgin for the purpose of visiting their son. They left Chicago at approximately 12:00 M., and arrived at Farm Colony No. 2 during the regular visiting hours at the hospital between 1:00 and 2:00 P.M. The building, known as Farm Colony No. 2, fronts on McLean Boulevard, which runs north and south, said building sets back approximately 61 feet in an easterly direction from McLean Boulevard. The sidewalk, which is located on hospital property, runs east and west, and joins the door of the building to the gravel shoulder of McLean Boulevard. The hedge marking the property line of the hospital, runs parallel to it. It appears that claimant left the automobile, which was parked by her husband on the gravel portion of McLean Boulevard, and walked to the west end of said sidewalk, and thence along said sidewalk toward the Farm Colony No. 2 building. Mr. Levy remained behind to lock the door, and then walked to catch up with his wife, who had in the meantime started to walk up the sidewalk. Claimant had walked approximately % of the distance from the end of the sidewalk to the building when she fell. As a result of the fall, she lost consciousness, and fractured her right ankle in three places. She subsequently received medical attention at the Elgin State Hospital, and on the following morning Mr. Levy and his son-in-law took her to the American Hospital in Chicago, Ilinois, where Dr. Allen Hirschtick attended her on Monday, February 1, 1954. A competent physician estimated that claimant has approximately a 25% loss of use of said foot.

At the time of the accident on January 31, 1954, the ground was covered with snow, and the temperature was below freezing. The United States Weather Observer report by W. O. Beckner, of Elgin, Illinois, was admitted in evidence, and indicated a heavy snowfall in Elgin, Dlinois on January 24, 1954, four days prior to Sunday, January 31, 1954, the day on which claimant received her injury. It appears that the employees of the State Hospital had attempted to clear the sidewalk, or, in fact, did clear it.

At the outset, it is necessary to determine the status of the complainant as a visitor at the state institution, and, while the definition of the word “invitee” connotes a business transaction in which both parties are mutually interested, it would appear from the decision of Ellguth vs. Blackstone Hotel, 408 Ill. 343, that there is no hard and fast rule.

The fact that the state institutions have visitors’ days and encourage visits with patients would indicate that claimant was more than a “licensee”, and should be treated as an “invitee”.

The importance of determining the status is reflected in the degree of care required to be used. Hence, the Court finds and determines that a visitor is an “invitee”, and, therefore, the state must use reasonable care and caution in keeping the premises reasonably safe for use by such “invitees”.

A difficult legal problem is presented in this case in determining the responsibility, if any, of the state to clear snow and ice from sidewalks with reference to an “invitee”. There are reported cases involving municipalities and landlord and tenant, hut there are no particular cases involving “invitees”, as such.

To determine such law, it will be necessary to examine the majority and minority rule covering the general proposition regarding liability for snow removal. Attention is directed to the case of Durkin vs. Lewitz, 3 Ill. App. (2d) 481123 N.E. (2d) 151, wherein the court discusses and reconciles the conflicting rules and apparent conflicts in the Illinois cases.

The Massachusetts, our common law rule, is the majority rule, and is followed in Illinois. It is stated as follows: “neither a municipality nor adjacent property owners are liable for injuries resulting from the natural accumulation of snow and ice”. This rule has also been extended to the law of landlord and tenant. Riccitelli vs. Sternfield, 1 Ill. (2d) 133.

Certain exceptions to this rule are as follows:

(1) Where laundry bags were dragged across a sidewalk creating a slippery condition. King vs. Swanson, 216 Ill. App. 294.

(2) Where a city pipe ejected water, which froze on the sidewalk. Hubbard vs. City of Wood River, 244 Ill. App. 414.

(3) Where abutting property owner maintained a discharging drain spout. Loyd vs. City of East St. Louis, 235 Ill. App. 353.

(4) Skating pond adjacent to a sidewalk. Graham vs. City of Chicago, 346 Ill. 636.

The Connecticut rule and minority rule, as it applies to the law of landlord and tenant, requires a landlord to use reasonable care in keeping the premises in a reasonably safe condition, cmd this duty includes the removal of snow and ice. Reardon vs. Shimmelman, 102 Conn. 383.

The facts of the Durkin case are of interest, as they involve an injury to an “invitee”, but the case was decided on the landlord and tenant law. Plaintiff was an employee of a tenant living on the second floor of the building. Ice had accumulated on the second floor landing, and plaintiff fell and was injured. A jury verdict in her favor was permitted to stand. The court found from the evidence that a leaky gutter had permitted ice to accumulate on the landing, and, further, that the landlord had been notified of this dangerous condition, but did nothing about it.

The court pointed out that Illinois differs from Massachusetts in its landlord and tenant law in that in Illinois a landlord must use reasonable care in maintaining such portions of the premises, which are used in common, i.e., stairs, corridors, etc. It would further appear that this Appellate District prefers the Connecticut rule over the Massachusetts rule.

The court finally pointed out that, even under the Massachusetts rule, the fact in this case, i.e., ice from a leaky gutter, and not snow and ice in its natural state, was the proximate cause, and was, therefore, a clear exception from the Massachusetts rule.

From this maze of law, this Court finds that the Massachusetts rule is the law of this state, and recovery can only be had if the facts in the particular case fall within any of the recognized exceptions.

Are there any unusual facts in the instant case that would place this case in the exceptional category, so that a recovery could be had? We find no such facts. Plaintiff alleges» that the walks were cleaned in an improper man- - ner, and bits of ice were left as a hazard.

In the case of McNeill vs. Home State Bank, 48 N.E. (2d) 695, a decision from Massachusetts, it appears that a janitor had cleaned certain walks, and thereafter ice formed in a pocket due to irregularities in the walks. The court reversed a verdict for the plaintiff by stating that the landlord was under no obligation to clear the walks in the first instance, and by clearing them he was performing a gratuitous service, and, hence, would not be liable, unless the dangerous condition was evidence of gross negligence.

Leaving bits of snow and ice are not evidence of gross negligence. Hence, the Court finds that the facts of this case do not fall within any exception of the rule.

Apart from the niceties and fine distinctions that appear in the cases, there is one fact alone in this case that would prevent a recovery. The weather report, claimant’s exhibit No. 6, indicates that five inches of snow fell on January 27, 1954. The Departmental Eeport indicates that it was removed from the walks on the same date. The weather report further indicates that there was no further snow and no further precipitation between January 27 and January 31.

Respondent’s exhibit No. 1, a picture of the walk and building, and respondent’s exhibit No. 3, a diagram of the road and walk, indicate that this walk is the main entry to the building. For four days, including Sunday the 31st, this 61 foot walk must have been used repeatedly by people going to and from the building. With such daily use, the only reasonable conclusion to be drawn is that the sidewalk was in a reasonably passable condition.

Since respondent was only required to use ordinary care in the maintenance of its premises, it would appear, without question, that it had discharged this duty.

An award is, therefore, denied.

On February 13, 1958, claimant filed a petition for rehearing, and, in support thereof, urges that the Court overlooked or misapprehended matters contained in the records.

We do not believe it will serve any purpose to reexamine the authorities submitted by claimant and respondent, as this Court, sitting as a jury and as a trier of the facts, does not believe that such facts tend to support the charge of negligence.

Petitioners allege the following:

“The Court overlooked the fact, however, that the sidewalk in question was only used for visitors to the building during regular visiting hours. The visiting hours during the period in qeustion occurred only for a few hours on Saturday, and a few hours on Sunday, and, therefore, the assumption by the Court that the sidewalk was in daily use by many people was erroneous.”

Nowhere in the record do we find that the sidewalk in question was “only used for visitors to the building during regular visiting hours ’ ’.

The building, undoubtedly had other doors for ingress and egress, as a public safety measure. However, the exhibits indicate that the sidewalk in question was the main entrance to the' building. It would be unreasonable to assume that only visitors used the walk, and more reasonable to assume that anyone connected with the hospital would use this walk in the ordinary routine of hospital care.

Eeasonable care and caution cannot be more precisely defined. It does not mean that the state is an insurer, so that, if any patches of snow or ice remained on the walk, that fact alone would establish liability.

This accident happened between one and two in the afternoon when there was sufficient visibility for claimant to observe and protect herself from any patches of snow or ice.

From a review of the facts, we again conclude that respondent used reasonable care in the clearing of its walks, and was, therefore, not guilty of any negligence.

The petition for rehearing must, therefore, be denied.


author: Fearer, J.

text:
    (No. 4747
    Dennis Hanchett by Clifford Hanchett, his Father and next Friend, and Clifford Hanchett, Individually, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1958.

    Cassidy, Sloan and Cassidy, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

This is an action brought by Clifford Hanchett, Father and next friend of Dennis Hanchett, for personal injuries sustained by Dennis, and by Clifford Hanchett, individually, for property damage to his 1949 four door Chevrolet. This claim, filed herein against respondent, grew out of an accident, which occurred on November 6, 1955, on R.R. No. 1, known as Garfield Hill, located outside of Bartonville, Illinois, in the vicinity of the Peoria State Hospital.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Transcript of evidence.
4. Motion of claimants for an extension of time to July 5, 1957 in which to file abstract and brief, together with proof of service of a copy of the motion on the office of the Attorney General.
5. Order of the Chief Justice granting the motion of claimants for an extension of time to and including July 5, 1957 in which to file abstract and brief.
6. Abstract of evidence.
7. Brief and argument of claimants.
8. Statement, brief and argument of respondent.
9. Reply brief of claimants.
10. Commissioner’s Report.

Respondent, by and through its agents and servants, is charged with:

A. Carelessly and negligently failing to provide an adequate enclosure on its property to restrain livestock (mules in this case) from straying along and across public lands and highways.

B. Negligently and carelessly permitting the fencing enclosing said animals to become in a state of disrepair, permitting the mules to escape.

C. Negligently and carelessly failing to provide adequate means to keep its said mules on its own property.

D. Negligently and carelessly permitting its mules to stray along and across said R.R. No. 1.

Shortly before midnight on the evening of November 5, 1955, Dennis Hanchett and a friend, William Warren Dempster, were driving Clifford Hanchett’s automobile in a westerly direction on Garfield Avenue near the Peoria State Hospital, which was under the jurisdiction and control of respondent. Just before the accident, Dennis Hanchettt was driving said automobile up Garfield Hill. James B. Gale at about said time was driving his automobile in an easterly direction across Garfield Road. As he came within 150 to 300 feet west of where the accident occurred, he saw three mules, which later were identified as belonging to respondent. The mules were walking in an easterly direction along Garfield Road in the westbound lane. Mr. Gale, seeing the Hanchett car approaching and coming around the corner, blinked his lights trying to warn Hanchett of the presence of the mules on the highway. It appears that at that time the Hanchett automobile was being driven not to exceed 25 miles per hour in a 35 mile per hour zone. There appears not to have been any overhead illumination, and the only lights in the immediate vicinity were the lights from the Gale automobile. It further appears that Hanchett did not see the mules until he was five feet from them, and that he struck the mules while in the westbound lane of traffic on Garfield Avenue.

There seems to be no question as to the identity and ownership of the mules, which were identified by witnesses testifying on behalf of both claimants and respondent. There was evidence that the mules were seen earlier on the day of November 5, 1955. One of respondent’s witnesses, a Mr. Wilkey, testified that the mules were loose as early as 7:30 P.M. on the evening in question, and hé had notified a Mr. Pearl McCormack that the mules were not on the state hospital grounds. Mr. Wilkey called a Mr. Clyde Pryor, one of the patients from his ward, and they went to the barnfe where the mules were generally kept. Mr. McCormack testified that he had no knowledge of how the mules escaped, and did not know whether or not they had been used on the date in question. It further appears in the record that the gates to the pasture were closed at the time Mr. McCormack made his inspection. No one testified that the pasture fence was in a good state of repair, nor had any inspection been made of the pasture fence, since the date of the accident.

When they were unable to locate the mules, Mr. McCormack returned Mr. Pryor to his ward at approximately 9:30 P.M. on said date, and Mr. McCormack then returned to'his home. Mr. McCormack testified that no one, other than he or Mr. Pryor, made any effort to locate the mules. The next Mr. McCormack knew was that he received a telephone call about 12:30 A.M. on November 6, 1955 in regard to the accident in question.

As has been earlier stated, the mules were identified as being the property of respondent. From the evidence, it appears that the pavement was dry, and visibility was good.

The statute involved is Chap. 8, Par. 1, 1955 Ill. Rev. Stats., which is as follows:

“Hereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese, to run at large in the State of Illinois; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.”

A proviso was added to the statute in 1931, and, as a consequence of the enactment of Sec. 1, as it now stands without the proviso, the law of the State of Illinois requires the owner or keeper of stock named in the statute to keep them from running at large on the public highways. The owner or keeper was liable in a civil action for damages from his stock being loose on the highway, even though he did not know the stock was so at large. It was not necessary for the plaintiffs in such an action to allege that the owner or keeper negligently and unlawfully permitted his stock to be at large. (Farrell vs. Crawford, 222 Ill. App. 499.)

Under the proviso, the owner or keeper of stock may show in a civil action against him for injury caused to a person or property, as a result of his stock running at large on the highway, that without his knowledge the stock was so at large, and that he used reasonable care to restrain the stock from being at large.

In the present case as well as in that of Fugett vs. Murray, 311 Ill. App. 323, claimants introduced evidence proving that the mules belonged to respondent; that the agents of respondent knew that the mules were at large; that they made no examination of the fences or enclosure to show that they were in a good state of repair; that they abandoned their search for the animals at 9:30 P.M. on the evening*- before the accident, and made no further inquiry or search as to the whereabouts of the animals after knowing they were at large; that claimants were in the exercise of due care and caution for their own safety, and that the mules running at large on the highway were the proximate cause of the accident. Claimants then rested their case.

The general rule is that, where an accident occurs as a result of the violation of the statute making it unlawful for stock to run at large on the highway, there is a presumption of negligence on the part of the owner or keeper of the stock, which is sufficient to carry the case to the jury (45 A.L.R. 507).

In the present case, as well as in the Fugett vs. Murray case, respondent claims the benefit of the proviso. We adopt thé rule in the Fugett vs. Murray case that the proof to be established under the proviso was within the knowledge of respondent and claimants. The burden of proof after claimants rested their case in chief was on respondent.

This Court passes not only on questions of the law, but is a trier of the facts of the case as well, and, as such, in considering the facts and the law of the case cannot help but find that respondent has failed to prove to our satisfaction that its fences were stock tight. We feel that respondent’s agents should have continued its search for the mules knowing that they were at large, and being aware of the probability that they might wander out onto the highway endangering the traveling public. Respondent has further failed to prove, under the proviso of the act in question, that the mules were not at large through its negligence, which, coupled with the failure of the agents to make a further search for the mules and the possibility of the avoidance of this accident, we believe is sufficient to find respondent guilty of negligence.

In regard to the contributory negligence of claimants, we have taken into consideration the topography where the accident occurred, the failure of the lack of lights within the vicinity, and the speed of claimant’s automobile, which was less than the posted speed in the vicinity where the accident occurred. From a finding from all these facts, it is our opinion that claimants were not guilty of contributory negligence, and that it was the negligence of respondent’s agents, which was the proximate cause of the accident in question.

As to the question of damages, it was proven that the cost of the repairs to the automobile was more than the value of the car, so that the measure of damages for Clifford Hanchett would be the difference between the fair cash market value of the automobile of $350.00, and its salvage value of $25.00, or a net claim of $325.00.

As to the claim of Clifford Hanchett, Father and next friend of Dennis Hanchett, it appears that the injury in question was to the right arm of Dermis Hanchett. He testified that he had received minor cuts and abrasions as a result of the accident, but had sustained no serious injuries other than that his chest was sore from coming into contact with the steering wheel. It appears that the Commissioner, George W. Presbrey, who heard this case, and had an opportunity of seeing and examining Dennis Hanchett’s arm, reported that his arm can be moved in all directions, his only complaint being that he doesn’t have strength in his right arm, and is unable to tell when he has a tight hold or grip.

The Commissioner found that on June 27, 1956, Dennis Hanchett went into the Navy. He passed the physical examination, and, after being in the service approximately six months, he received a medical discharge due to his arm. While he was in the service, and pulling on a line, he felt his right arm become extremely weak. He subsequently received treatment for his arm in a Naval Hospital. He then received a medical discharge, although the record shows he is not receiving any disability payments from the United States Government.

The Commissioner found on examination that the right middle, ring and little fingers have pronounced red splotches. The red discoloration is not on the surface of the hand, but appears to be in the hand itself, and the palm of said claimant’s hand is not discolored in any way.

Dr. Lawrence Holden, a specialist in neurology, and neurosurgery, testified on behalf of claimant, Dennis Hanchett. The first time Dr. Holden saw the patient was on January 10, 1956. His findings disclosed that there was some tenderness on the forehead and on the right side, and that there was also some redness of the fingers on the right hand. The doctor’s diagnosis was causalgia. The doctor was not able to make a diagnosis with absolute certainty, because the case in question had rather unusual findings. From the doctor’s testimony, it appears that causalgia is a condition of pain, usually in the extremities, following an injury to a nerve. The doctor again saw Dennis on February 20,1956. On March 19, 1956, he made arrangements for Dennis to go to the hospital, and he was admitted on March 29, 1956.

At the hospital he received some novocain injections to the stellate ganglion in the neck. The purpose of this was to determine whether or not the patient had causalgia, and whether it could be relieved by the novocain injections. At the time he was admitted to the hospital, he still complained of pain in his right arm. Dennis indicated that he felt some relief after the novocain injections, but the doctor was not convinced of sufficient relief to warrant surgical removal of the ganglion for more permanent effects. Since Dennis’ release from the hospital, the doctor has not seen him.

The doctor testified that, in his opinion, there could be a causal connection between the accident and his findings of suspect causalgia, and that the patient’s present complaints could be related to the accident. The doctor was unable to testify whether or not Dennis’ condition was permanent. On cross-examination, the doctor testified that the discoloration did not affect the use of the fingers. He further testified on cross-examination that he had no record of the patient complaining of any loss of sensation, although he did have a hypersensitivity of the arm, and did complain of pain.

The doctor further testified that causalgia is not too difficult to diagnose; that the patient has tenderness to a light touch to the extremity, depending upon which one is affected, there is a marked change in color; and, the hand may look waxy, or it may look red. The doctor diagnosed Dennis Hanchett as suspect causalgia, because his symptoms were not too severe at any time, and indicated in his testimony that causalgia could be aggravated by subsequent mechanical injuries, such as the stretching of the cervical plexus.

From the record, it does not appear that Dennis has lost any earning’s.

The following medical bills were submitted:

Dr. Holden ____________________________________________________________$ 50.00
St. Francis Hospital_________________________________________________________________ 88.05
Dr. Carroll____________________________________________________________________________________ 40.00

It is, therefore, the award of this Court that a claim be allowed for Clifford Hanchett, individually, in the amount of $325.00.

It is, therefore, the award of this Court that a claim be allowed for Clifford Hanchett, as Father and .next friend of Dennis Hanchett, in the amount of $1,000.00.


text:
    (No. 4751
    Edward Wisch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 11, 1958.

    Piacenti and Cifelli, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Edward Wisch, a former inmate of the Illinois State Penitentiary, Pontiac Branch, filed a complaint seeking damages in the amount of $7,500.00 for injuries sustained while working in said institution.

The complaint alleges, in substance, that claimant was ordered to operate a shaper, without proper instruction, that the machine was a dangerous instrument, and, as a result, he caught his right hand in the machine, and lost three fingers at the proximal phalanx.

The facts of the case are as follows:

Edward Wisch, age 19, was committed to the Pontiac Penitentiary in August of 1953. He was assigned to the wood shop, and was engaged in repairing and refinishing chairs and other prison furniture.

On February 24, 1954, a quantity of chairs arrived from the Dwight Reformatory, and the men assigned to the wood, shop were repairing and replacing parts of the chairs under the direction of Joseph Bolander, the guard in charge of the shop.

Claimant was cutting pieces of oak with a wooden mall and chisel. It would appear from the testimony that the pieces would split by this process, so he went to the wood shaper in order to do the job mechanically.

At this point, the testimony is sharply in conflict. Wisch stated that Mr. Bolander ordered him to use the machine, and at that time he demurred, and claimed that he told the guard that he knew nothing about .the machine. He further testified that Mr. Bolander insisted that he use the machine, as he had been wasting too much material doing it by hand.

Mr. Bolander testified that three men, Shoba, Lincoln and Olsen, were assigned to operate the machine, and that the other members of the shop, about 17 in number, were not permitted to operate the machine, because of the danger involved. He further stated that the accident happened after the men returned from lunch at about 12:30 P.M. At that time he was checking the cards of the men assigned to the wood shop, and did not see the occurrence. He stated that he had not instructed Wisch in the use of the machine, and denies that he ordered him to use the machine, under penalty of refusal.

Exhibits Nos. 1 and 2, admitted into evidence, show the machine was equipped with long wooden guards, which also acted as guides to cut straight pieces of wood.

Wisch was cutting a curved piece of hard wood, which necessitated that the guard be pushed back about a foot. Who altered the position of the guard must remain unanswered, as the record is silent in this regard. In any event, claimant used the machine in this position, and suffered serious injury. Mr. Bolander was interrogated by Commissioner Presbrey on this point, and Mr. Bolander stated that the shaper was only used on straight pieces of wood, as they had another machine for cutting curved surfaces.

Since the Court of Claims Act was amended in 1945, tort actions may be brought against the state in matters involving negligence of its officers and employees.

The following cases have been cited by counsel in support of claimant’s position:

1. Moore vs. State of Illinois — 21 C.C.R. 282
Claimant, a prisoner, operated a food grinder, not equipped with a safety hopper. Claim allowed.
2. Hroma vs. State of Illinois — 21 C.C.R. 291
Claimant, a prisoner, was assisting in slaughtering a cow. He was inexperienced, and was injured. Claim allowed.
3. Allen vs. State of Illinois — 21 C.C.R. 450
Claimant, a prisoner, was loading broken concrete in a truck. A piece fell off, and injured his foot. No showing of negligence. Claim denied.
4. Paulson vs. State of Illinois, No. 4649 (not reported)
Claimant, a prisoner, was operating a circular saw, and lost fingers. Evidence in conflict. Claim denied for failure to establish burden of proof.

The Paulson case is similar in many respects to the case at bar, and will be set out in more detail.

Paulson alleged that he was ordered, over Ms protest, to assist in the operation of a motor driven saw. He stated that he had never been instructed in its use, and that it was not equipped with a safety hood, as they were cutting a curve in a piece of plywood for a boat. Two witnesses, the guard and claimant, were the only persons testifying in the case.

In the instant case, many of the same circumstances are present: Wisch contends that he was ordered, over his protest, to operate a wood working machine. He claims that he was not instructed in its use, that he was cutting a curved piece of wood, and that it could not be done with the guard in place. His fingers were cut off as a result. Again we are confronted with the testimony of two witnesses, who tell accounts of the accident, diametrically opposed to each other.

In searching the record for any evidence that we may find, which would tend to support such claim, we must not overlook the fact that a prisoner is in an unfortunate bargaining position. He must do as he is told, or suffer discipline for his refusal.

To counter this, Mr. Bolander stated that he had been in charge of the wood shop for four years, that he knew of the dangers of the equipment and for that reason had assigned the three men, whose names he had submitted in the record, to be responsible for the use of the machines. He also said they had another machine, which was used for cutting curved surfaces.

In the face of conflicting testimony, this Court must infer reasonable conclusions from the evidence, and, taking it as a whole, it would, seem unlikely that Mr. Bolander would order, or knowingly permit an inexperienced man to push the guard on a wood shaper to one side, and thereafter cut a curved piece of oak.

In the Paulson case (supra), the Court held that claimant had the burden of proof of establishing his case by a preponderance of the evidence. The Court found that claimant had failed in this regard.

In this case, we have the identical problem. Claimant has failed to meet the burden of proof, and under Illinois law cannot prevail.

It is, therefore, ordered that the claim be denied.


author: Wham, J.

text:
    (No. 4596
    Nicola Bucciarelli, Administrator De Bonis Non with Will Annexed of the Estate of Mario (Mariano) Bucciarelli, deceased, and Nicola Bucciarelli, Executor of the Last Will of Maria Bucciarelli, deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 13, 1958.

    Dale G. Nicholson, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants seek recovery of $7,500.00 for alleged damages to certain real estate located in Joliet, Illinois, the description of which is as follows:

Lot One (1), Two (2), Three (3), and Four (4) in Block One (I) in Faust and Hammond’s Subdivision of the East half and the West half of Sub-Lot One (1) of Lot Seven (7), and Sub-Lot Two (2) of Lot Seven (7), and part of Sub-Lot Five (5) of Lot Six (6) in Stevens and Paige’s Subdivision of Lots Two (2), Three (3), Four (4), Five (5), Six (6), and Seven (7) of the Estate of Robert Stevens Subdivision of part of the Southwest quarter of Section Eleven (11), and part of the Southeast quarter of Section Ten (10) in Township thirty-five (35), North, Range Ten (10) East of the third Principal Meridian, situated in Will County, Illinois.

The complaint is based upon Section 13, Article 2 of the Constitution of Illinois, wherein it provides: “Private property shall not be taken or damaged for public use without just compensation”.

Claimants contend that the State of Illinois damaged the above described property, which fronted on East Cass Street in the City of Joliet, Illinois, when it widened and extended the Cass Street viaduct, thus narrowing the lower level of Cass Street from a width of approximately 12 feet to a width of approximately 7 feet.

Respondent, in its answer, denies that the widening of the viaduct caused any damage to claimants ’ property, and, as an affirmative defense, pleads a former award rendered by this Court to prior owners of the property, such award being reported in 5 C.C.R. 409 in the case of Peterson, Et Al, vs. State of Illinois. Respondent contends that the prior award is a bar to a recovery in the instant action on the theory that the prior owners of the property received full compensation for all present and future damages by the award rendered in the Peterson case, which was an action based upon the original construction of the Cass Street viaduct in 1927. The original construction of the viaduct in Cass Street occupied all of the 64 foot thoroughfare except 12 feet.

Claimant in his reply admits that the same property is involved in both actions, and admits that claimant is a party in privity with claimants in the Peterson case. Claimant denies, however, that the Peterson case award bars the instant action, wherein claimant seeks recovery for alleged damages sustained by widening and extending the viaduct an additional 5 feet beyond its original width.

The undisputed facts from the record of the Peterson case, of which we take judicial notice, disclose that the State of Illinois constructed the Cass Street viaduct in the year 1925. It was built on the Lincoln Highway on Bond Issue Route No. 22 at a point where the highway is intersected by the right-of-way of the Elgin, Joliet and Eastern Railway Company. The viaduct was built over the railroad tracks and right-of-way, and was approximately 1300 feet long, 50 feet in width and 40 feet in height.

The condition resulting from the original construction of the viaduct, as reflected from the record of the Peterson case, is as set forth in the statement of facts in the briefs filed by claimants, which were acknowledged by the state as correctly portraying the facts. These were the conditions upon which the Court in the Peterson case made the awards.

Quoting from the statement of facts there before the Court, the facts were as follows:

“The viaduct is a structure of enduring use and beauty. It is built of concrete and brick. It is 1300 feet long, 50.6 feet wide. It occupies the larger part of the roadway for five blocks. It is 39.54 feet high. (R. 25-35) The roadway on top is paved and furnished with sidewalks. Travel over it is smooth, safe and uninterrupted, but it is had at a heavy cost to the few, who have suffered loss for the benefit of the many.
It practically fills the street, but outside of each wall the state has left a lane seven feet wide for vehicles and five feet for sidewalks. As it is impossible to handle vehicles successfuly within the narrow limits of seven feet, the walks have been crushed by trucks and motor vehicles driven over them, and the balance of the road is cut to pieces. Access to the property fronting the wall is limited to these lanes. Foot passengers, including children, share them with süch delivery wagons, horses and motor vehicles as are compelled to use them in reaching adjacent stores and dwellings. In the summer they are mudholes. In the winter, they are deeply drifted in snow. It is dark in the shadow of the walls. A part of the structure near the tracks is supported on columns with an open space underneath. Being beyond the jurisdiction of the city police, the openings underneath are infested with the disorderly and dangerous persons, who usually seek shelter in such surroundings.
Before the viaduct was built, this property fronted Cass Street on the grade. Cass Street was the main avenue of travel into Joliet from the east. It had become the location of the Lincoln Highway. Because of its importance and convenience, it was selected as the location of Bond Issue Route No. 22. It was the principal east and west business street of Joliet, constantly growing in importance. Inside the city limits it constituted a part of the business district. In the neighborhood of the viaduct it was partly a business and partly a residential neighborhood; in that familiar condition of transition when business is supplanting residential úse. Before the viaduct was built, real estate values were good. They were advancing rapidly. Stores, garages, service stations, shops and offices were already built and occupied by businesses of some years establishment. The dwellings were of moderate size, mostly frame, owned and occupied by the better class of mechanics and artisans, and, in several instances, operated as rooming houses by widows, who supported themselves in that way for the present, and hoped to provide for future illness, poverty and old age by the growing value of their homes. Before the viaduct was built, business locations were worth an average price of $75 a front foot and residence locations $50 a front foot for the real estate without reference to the added value of improvements. It is obvious that these values have, and must have almost entirely disappeared.”

It is noted at page 410 of the opinion in the Peterson case that claimants alleged, “that said viaduct was built in such a manner as to occupy all of the street or roadway, and raised the roadbed thirty feet and upward fronting the properties of claimants, depriving claimants of light, air and practical access to the public thoroughfare of said claimants’ property fronts”.

It is apparent from the decision of the Court in the Peterson case, and from the record there before the Court, that the awards made to the then owners of the same property here involved were based upon the occupancy of Cass Street by the viaduct in such a manner and to such an extent that only a roadway- sufficient to accommodate one way vehicular traffic remained.

It is also apparent therefrom that the entire character of the neighborhood was altered, and that light and air rights were adversely affected.

Keeping in mind the basis upon which this former decision of the Court was made, it is for us to determine whether or not the present owners of the properties have shown that the properties have been appreciably damaged beyond that established in the Peterson case by reason of the widening of the viaduct a distance of five feet beyond the original construction.

The evidence offered in the instant case discloses that the state determined it was necessary to reconstruct the viaduct, since it had become hazardous to the traveling public. In December, 1951, the lower level of Cass Street was blocked off, because of the hazardous condition of the retaining walls of the viaduct.

During 1952 and 1953, the reconstruction, among other things, consisted of widening the roadway of the viaduct, which necessitated widening the piers on either side of the viaduct approximately 4 feet 10 inches.. Consequently, the lower level of Cass Street was narrowed approximately 5 feet. There now remains a 7 foot roadway in front of claimants’ properties, which is, according to the evidence, including photographic exhibits, sufficient to allow the passage of an automobile without difficulty. Prior to the reconstruction, the then 12 foot roadway was only sufficient for one automobile at a time to proceed along the lower level of Cass Street.

The distance between the piers supporting the viaduct is still sufficient to permit an automobile to be driven between them, so that other automobiles may pass along Cass Street, as they could prior to the widening of the viaduct.

The evidence further disclosed that the width after the widening operations was sufficient to allow the passage of a state truck equipped with a cinder spreader projecting approximately 2 feet beyond the hub of the truck wheels, although some difficulty was encountered.

Claimants’ property abutting Cass Street consists of the following:

A two story frame structure, consisting of two 4 room apartments and one 3 room apartment, located at 1000 East Cass Street. This property also abuts on Stevens Avenue, a public street, 66 feet in width.

A frame 4 room house, located at 1002 East Cass Street.

A brick store building, approximately 15 feet by 15 feet, with a 6 room apartment in the rear, located at 1004 East Cass Street. This property has access to Faust Avenue, a public street, 23 feet in width, by way of other property owned by claimants.

A combination brick and frame building, used as a. tavern, approximately 43 feet by 43 feet, with a 4 room apartment in the rear, located at 1006 East Cass Street. This property also abuts on Faust Avenue.

A frame structure, consisting of one 5 room and one 4 room apartment, located at 1008 East Cass Street, which also abuts on Faust Avenue.

A 4 room dwelling, without bath, located at 1010 East Cass Street. It is bounded on the east by the Elgin, Joliet & Eastern Railroad Company right-of-way. This property also has access to Faust Avenue by way of other property owned by claimants.

Nicola Bucciarelli, the present claimant, testified that he managed the entire group of properties. He stated that the 4 room house, located at 1010 East Cass Street was vacant, but acknowledged, on cross-examination, that he did not lose the tenants because of the reconstruction. This was admittedly poor property.

The only other specific properties referred to in his testimony were the grocery store building, located at 1004 East Cass Street, and the tavern, located at 1006 East Cass Street.

With respect to the grocery store, he stated that his father had ceased operating it in November of 1951, and that it had been vacant since that time. This was before any reconstruction work was done, and was at the time East Cass Street was blocked by reason of the hazardous condition of the retaining wall, a portion of which had fallen. Claimant, in his brief and argument, acknowledges that no claim is being made for any loss sustained by reason of the blocking of Cass Street prior to and during the reconstruction work.

As to the tavern building, the witness stated that, since July of 1953, it has been vacant, but that prior thereto he had managed a tavern located therein for several years. He testified to gross receipts of the tavern business for a number of years, being as follows:

1947____ —$17,362.45 1951— _____$16,508.45
1948— _____$17,651.00 1952— _____$13,798.00
1949— —$18,695.70 1953— ____(for 6 months)
1950— —$17,285.75 $ 4,835.25

He contended that the tavern business was ruined by reason of the narrowing of East Cass Street, and that he could not persuade his customers to use the other route available along Faust Avenue. He acknowledged that there was sufficient parking facilities along Faust Avenue, and a portion of claimants’ property used for that purpose. The route along Faust Avenue to the tavern was no more than a block or two longer than the route along East Cass Street.

We are not persuaded by this evidence that either the grocery business or the tavern business was affected by the narrowing of East Cass Street. The grocery business was non-existent at the time of the reconstruction. It is significant to note that, even during the period of the reconstruction when East Cass Street was completely closed, the gross receipts of the tavern for the year 1952 were well within the range of the gross receipts of the prior years, so that the difference could well have resulted from a general decline in the tavern business completely unrelated to the reconstruction. Apparently, from the gross receipts of 1952, a good number of customers found their way to the tavern along the Faust Avenue route, since East Cass Street was completely blocked at the time. It is also noted that the business was discontinued in July of 1953, while the reconstruction was still in progress.

What would have been the effect upon the'business after East Cass Street was once again open for travel is not shown by claimant.

Moreover, there was practical access to. these properties by the way of Faust Street. In the case of Calumet Federal Savings and Loan Ass’n. vs. City of Chicago, 306 Ill. App. 524, involving a similar situation, the court stated at page 530 :

“The only effect of the changes made is that to reach that portion of plaintiff’s property fronting on Torrence Avenue it is necessary to use a more circuitous route than that heretofore available. . . . Plaintiff contends that the inconvenience of this additional time destroys ingress and egress to its property. Manifestly, this can not be true.”

So in this case, even assuming for sake of argument that the tavern and grocery store customers had to use Faust Avenue to reach the tavern and store, it is not such an additional distance to travel that would constitute a material effect upon the access to these premises.

Actually, however, East Cass Street for all practical purposes still affords the same access to these properties and the others, as it had prior to the reconstruction. It could only handle one way traffic before the widening of the viaduct. It can still handle one way traffic after the widening of the viaduct. The slight increase in the degree of care to be used in passing through a 7 foot rather than a 12 foot roadway is, in our judgment, incapable of measurement in terms of dollars, and is, therefore, too speculative an item to consider.

When we compare the present condition with the condition before the Court in the Peterson case, we can not find any significant worsening by reason of the reconstruction of the viaduct. Neither the means of access nor the light and air rights of the properties have been substantially affected since the original condition was before this Court and made the subject of a monetary award to the then owners of the premises.

In arriving at this conclusion, we have not overlooked the testimony of the two real estate agents offered by claimant as to their opinions of the fair cash market value prior and subsequent to the reconstruction.

Before this type of testimony would be material to the issues, claimant must first bear the burden of proving that it was the reconstruction, which caused the properties to become depreciated in value, and not some other cause. This he failed to do to our satisfaction, and, therefore, the opinions of these witnesses as to value before and after the reconstruction are not material.

Also, we note that both witnesses based their opinions to a large extent on a capitalization basis from income produced by the properties. This method, under the evidence in this case, seems to us to be a speculative basis upon which to ground an opinion.

This need not be considered further, however, in view of our conclusion as to the other elements of the case, and we, therefore, deny this claim for the reasons hereinabove set forth.


text:
    (No. 4612
    Martha Callbeck, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

    G. Wallace Roth, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This is an action brought by claimant, Martha Call-beck, against respondent, the State of Illinois, to recover $7,500.00 in damages for personal injuries, which she sustained in the early morning hours of October 10, 1953, when she was awakened in her bedroom, attacked and assaulted by an insane patient at the Chicago State Hospital where she was employed in the capacity of housekeeper by the Illinois State School of Psychiatric Nursing, a branch of the Chicago State Hospital.

She charges in her complaint that this institution was operated by respondent for the purpose of caring for and treating mentally ill persons, and that, through its agents and servants, respondent negligently and carelessly permitted one Charles Bigalke, a dangerous mentally ill patient, to roam at large, gain entrance to the nurses dormitory building, and assault, beat and rape claimant, severely injuring her person, and causing her to suffer pain, humiliation, fear and mental anguish, and requiring the expenditure of large sums of money for medical attention in treating her injuries. She further alleged that she was in the exercise of ordinary, and reasonable care and caution for her own safety, and was free from any contributory negligence or provocative action.

Respondent proceeded to trial under a general denial of the facts set forth in the complaint pursuant to Rule 11 of this Court. In its brief and argument, respondent stated that claimant had no claim under the Workmen’s Compensation Act, and acknowledged that the claim was properly filed in this Court under the Court of Claims Act.

The evidence for the most part is not conflicting. Claimant, Martha Callbeck, at the time of the assault was a 65 year old widow, who had been employed since September of 1941 by respondent as housekeeper for the student- nurses dormitory at the Illinois State School of Psychiatric Nursing, located on the grounds of the Chicago State Hospital. Her hours of duty were from 8:00 A. M. to 4:00 P. M., and her duties consisted of supervising the cleaning of the dormitory, procuring the necessary supplies, and seeing to it that the necessary repairs were made. '

During the thirteen years she was employed, she resided in one of the private rooms in the dormitory. Her room was on the first floor of the three story dormitory building, being the last room on the west in the south wing. It had two windows, one on the west and one on the south.

There were three entrances to the dormitory building. The main entrance was never locked, but the south entrance was latched at night.

On the night of October 10, 1953, she went to bed at approximately 10:00 P. M., leaving her bedroom door open. She used a screen in her doorway wedged between two closet door knobs to afford her privacy. This had been her regular practice, and she had never kept her bedroom door locked.

After falling asleep, her next recollection was suddenly awakening and feeling a hand on her neck or chest. Bealizing there was another person in the room with her, she sat up and saw a man, whom she later identified as Charles Bigalke. She commanded him to leave. He struck and choked her into unconsciousness. When she regained consciousness she was on the floor, and he was standing between her and the door. The window was her only exit. She jumped out of the window, lost consciousness again, and then crawled, walked, and made her way to the nearby cottage ward No. 23, where she was administered first aid by Bertha Clark, a psychiatric aid, who had been called immediately. This was at approximately 4:30 A. M.

Mrs. Callbeck was then clad only in a summer nightgown, barefooted,, bloody, dirty, and in a state of severe shock. There was blood in her eyes, nose, mouth, ears, and on her neck and chest. Her nose was broken, her face bruised, her eye was black and blue, her jaw bruised and swollen, and she was suffering pain.

Bertha Clark washed the blood from her face, placed her on a cot, wrapped her in a blanket, and some forty minutes later she was taken to the hospital on a stretcher. During all of the time Mrs. Callbeck was attended by Bertha Clark, she was in shock and moaning. At the hospital she was first observed by Dr. Steponas Gestautas, emergency medical officer on night duty, to whom she related the details of the assault, and told him that she had been choked into unconsciousness, and did not know whether or not she had been raped. He examined her visually, and found no evidence indicating rape.

The doctor testified only from his notes, since it was necessary to refresh his recollection. He did not know whether or not her nose was broken, but stated that she was shaky, pale, shocked, excited, and that he noticed several bruises on her face, nose, neck, hands, knees and feet. He ordered her to bed, and administered sedatives.

Dr. Leo Goldman, who became her treating physician, was called to see her at the Infirmary of the Chicago State Hospital on October 10, 1953. He testified that a physical examination revealed multiple bruises and swelling about the nose, extreme bruises on her breast, both thighs, and pain and tenderness in the back and wrist. He found friction like burn marks on her neck. She complained to him of headaches, and was extremely nervous.

He hospitalized her at the Mt. Sinai Hospital, where an X-Ray examination revealed a fracture of the nasal bone. Her nose was tender and swollen. He then made a vaginal examination upon her complaint that she had been raped. This examination was negative. He splinted her nose, treated her with analgesic, administered sedatives, and ordered hot packs applied to the bruised area. She remained in the hospital one week, and Dr. Goldman saw her as a patient at his office on approximately nine occasions thereafter.

On cross-examination, he stated that there was no direct evidence of rape, that the black and blue marks and bruises cleared up, and the pain subsided.

He last saw her on March 5, 1954, at which time she complained of recurrent headaches, frequent nausea and nervousness. During the course of his treatment, she complained of tenderness in the lower back for which he prescribed a corset. His tentative diagnosis at that time was a post-concussion syndrome. His statement for services rendered" was $300.00, which he stated was a reasonable and customary charge for such services as he had performed. Her hospital bill was $125.00.

Dr. Isadore Spinka, a psychiatric consultant at the Chicago State Hospital, saw her in his capacity as Clinical Director the day following the occurrence. At that time he found her to be rational, but emotionally agitated and anxious. He noted bruises and swelling about the face. She told him she was not sure, but she thought she had been raped.

Martha Callbeck testified regarding her physical injuries, and stated over objection of respondent, and in response to leading questioning by her counsel, that Bigalke had intercourse with her. This answer was stricken by the Commissioner hearing the case on motion by the Attorney General, and properly so. She further stated that she had lost weight, and had become very nervous. However, she returned to work two weeks after the occurrence, and continued to work up to the date of the hearing, which was held on the 24th day of September, 1956. She resigned her position effective September 30,1956. Subsequent to the occurrence, she no longer lived on the grounds. She claims that this was caused by fear, which the assault caused her to have, and necessitated her incurring extra living expenses in the amount of approximately $1,900.00. We believe, however, this element of damage is too remote and speculative. We will not consider it.

With respect to the medical testimony regarding her physical injuries, we note the last doctor to examine and treat her was Dr. Goldman in March of 1954, some two and one-half years prior to the hearing date. His tentative diagnosis of a post-concussion syndrome was not confirmed by any other witness, and he stated, “I think it would have taken a further evaluation, another six months, to be absolutely positive of this”. Claimant made no effort to introduce further testimony regarding this element of the case, nor does it appear that she sought further treatment, and we presume, therefore, that there were no further symptoms of such condition.

From the evidence in this case, there has been no permanent injury established, nor can we say that the evidence establishes that claimant was raped.

Irrespective of this, however, she was brutally assaulted, did sustain painful injuries, including a broken nose, incurred medical and hospital expenses, and was subjected to a terrifying experience, for which compensatory but not punitive damages should be awarded in the event we find that she is entitled, under the law, to recover.

The state, in operating a mental institution and caring for mentally ill persons, is, of course, not an insurer of the safety of its employees. The state is, however, under the same duty as a private person or institution having custody of insane persons. It is required to exercise reasonable care in restraining and controlling dangerous insane persons committed to its custody, so that they will not have the opportunity to inflict a foreseeable injury upon others. Malloy vs. State, 18 C.C.R. 137; Fisher vs. Mutimer, 293 Ill. App. 201, 220; Restatement of the Law of Torts, Sec. 319; Smart vs. U. S., 111 F. Supp. 907, 909; Rossing vs. State, 47 N.Y. Supp. (2d) 262.

As was stated by the New York Court in the case of Rossing vs. State (supra), “The degree of care, which the law exacts from those in charge of institutions for the insane toward its patients, is such reasonable care and attention for their safety and the safety of others as their mental and physical condition, if known, may require, and should be in proportion to the physical or mental ailments of such patient.”

The facts, as we find them to be from the evidence in this case, establish negligence on the part of the state, through its employees charged with the care of the assailant, Charles Bigalke, in allowing him to be at large in the early morning hours.

This was a dangerous man, and the records of the hospital with reference to his previous, history leave no room for doubt that he should have been kept under close surveillance, especially so in the hours of darkness when women were sleeping within the confines of a building easily accessible to him when roaming at large.

He was, according to a report from Dr. D. D. Campbell, Acting Superintendent of the Hospital, which report was introduced by claimant as exhibit No. 5D, a 28 year old man with a diagnosis of a chronic brain syndrome, post-encephalitis with psychotic reaction. He was admitted to the Dixon State Hospital in July of 1935, remaining there until July of 1952, at which time he was committed to the Chicago State Hospital. During his stay at the Dixon State Hospital, he was a chronic behavior problem, and on many occasions had assaulted and attacked other patients and employees. He kicked them, and employed the use of his fists, shovels, razor blades, pieces of pipe and other objects in the attacks. His past record indicated perverted sexual acts, homosexual attacks on boys, and the commission of the act of sodomy. At the Chicago State Hospital he had made sexual assaults upon a female patient less than one month prior to the assault upon claimant. After he assaulted claimant, Dr. Campbell urgently requested in his report to the Department of Public Welfare, dated October 14, 1953, that Bigalke be transferred to the Illinois Security Hospital as soon as possible.

Another exhibit introduced by claimant, No. 5E, reflects that as early as July of 1952 Bigalke was classified by Dr. Klapman, a state doctor, as “homocidal — dangerous”.

In view of this history, it became the duty of the authorities to require their subordinates, and it became the duty of the employees in charge, to exercise the utmost vigilance in controlling the activities of this man. It also became the duty of the state hospital authorities to instruct'the attendants concerning the extent of control required to be exercised for such a dangerous patient.

In our judgment, this man should not have been permitted to be at large within the grounds, at least in the hours of darkness, without proper surveillance. All employees should have been fully apprised of this fact.

According to the testimony of Dr. Spinka, Clinical Director at the Hospital, Bigalke was kept in locked ward CW-13, in which a few of the inmates, whose conduct merited it, had been issued privilege cards, which they carried upon their person, and of which a record was kept in each ward. These privilege cards designated those who could be allowed to go about the grounds without an accompanying attendant. He stated, however, that it was not the routine practicó for even a privileged patient to leave the ward at 4:00 A. M. unattended. In some instances, it was customary to allow those patients, who worked early in the kitchen, to proceed there alone. This witness did not testify as to whether or not Bigalke had a privilege card.

On the occasion in question, Anthony Staszak, the attendant on duty at the time, allowed Bigalke to go alone from the ward to the hospital office for the purpose of carrying a report, and from there to the dining room to await the other inmates.

When he, Staszak, next saw him at approximately twenty minutes to six, Bigalke was in the dining room waiting for the other inmates. In the interim, however, Bigalke had taken the time, and seized the opportunity to perpetrate the brutal assault upon claimant.

The attendant testified that he had been employed at the hospital for 19 years, could read and write, had received a five year grammar school education, and had previously attended the ward on three or four occasions. His only explanation for allowing Bigalke to go from the ward alone was that he had been told by some other employees and inmates that Bigalke was a “pretty good trustee”, and that he is “one you can trust”. He further stated that he had not been given a history on the man, and did not know his history until after the assault on claimant. He testified that Bigalke had a pink card stating “Ground Parole”, which he saw before letting him out.

An explanation of this mistake appears from claimant’s exhibit No. 5F, a letter from Dr. D. D. Campbell, Superintendent, to the Department of Public Welfare, dated October 14, 1953, pertaining to the incident. It reads in part as follows: “The patient, Charles Bigalke, was housed in ward CW-13. On October 10,1953, at about 4:30 A. M., the night attendant in said ward, Mr. Anthony Staszak, allowed the patient to leave the ward to take the ward reports to the supervisor’s office. Apparently this attendant, who was working as a relief on the ward, was not well acquainted with the patients, and thought that the patient, Charles Bigalke, had a privilege card. Accordingly, he allowed him to leave the ward unescorted. From our investigation we got the impression that the attendant had mistakenly identified this patient with another patient, who did have a privilege card. ’ ’

It is, therefore, apparent that either the attendant was negligent in not taking proper precaution to determine the status of Bigalke, or respondent’s supervisory personnel were negligent in failing to properly instruct the attendant as to Bigalke’s status. In either event, Bigalke was allowed to go at large through respondent’s negligence, and, as a proximate result thereof, committed the injurious assault upon claimant.

Respondent contends that claimant, by failing to lock her bedroom door, was guilty of contributory negligence, which proximately contributed to cause her injuries, and consequently cannot recover. We do not agree with this contention.

She had lived upon the premises for thirteen years, during which time she had not locked her door, and no harm had befallen her. There were no rules of the institution requiring that she do so. Respondent’s witness, Sara Ahrahms, director of the Nurses Psychiatric Training School, who lived upon the premises, testified that, although she had a key to her own bedroom, she only occasionally locked her door at night. She further stated that it was optional whether or not the occupants of the building locked their doors.

The evidence reflects no like incidents, which would serve as notice to claimant of a danger in failing to lock her door. Mrs. Callbeck testified that she had never heard of such a happening prior to the occurrence.

Claimant’s witness, Anna G-ramann, employed as house mother of the nurses’ quarters in which claimant lived, testified that none of the nurses’ bedrooms were locked, since, in checking them in the course óf her duties, she was able to walk into the rooms.

Two witnesses for respondent, Anna Vaughn and Mary C. Martin, state employees, testified that they locked their doors at night.

The test of due care and caution, which claimant is required to establish as an element of her case, is simply stated. The only care and caution required of her was such conduct, care and caution for her own safety as a reasonably prudent and cautious person would have exercised under the same or like conditions and circumstances, which surrounded her before and at the time of the alleged occurrence. She was not required to exercise extraordinary care or diligence.

In view of the facts, as we understand them to be, claimant had no reason to believe that she would be attacked by a wandering insane man in the early hours of the morning. She had no reason to believe that such a man would be allowed to roam the grounds unattended and alone. She was not, in our judgment, guilty of contributory negligence. The facts establish that she was exercising due care and caution for her own safety, and did nothing to incur the injury or incite the assault.

Consequently, we hold that she is entitled under the law to recover damages in this action. We believe that, in view of the injuries heretofore narrated, $3,000.00 is a fair and just award.

It is, therefore, our order that the claim should be, and is hereby allowed in the sum of $3,000.00.


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    (No. 4755
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

    William A. Schuwerk, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, County of Randolph, Illinois, by the Chairman of the Board of County Commissioners, and its State’s Attorney, William A. Schuwerk, filed its complaint to recover from respondent the sum of $4,798.50.

This action is predicated on a specific statute, which confers jurisdiction on the Court of Claims to hear such cases, being Chap. 65, Secs. 37-39, 1953 Ill. Rev. Stats. The purpose of such statute is to reimburse certain counties in Illinois for expenses, costs and fees incurred because of the large volume of petitions for writs of habeas corpus in forma pauperis filed therein.

Previous awards have been given to the County of Randolph, and the cases have decided that certain fees, expenses and costs are reimbursable under such statute. (The County of Randolph, Claimant, vs. State of Illinois, Respondent, 21 C.C.R. 427.)

Because this Court has had occasion to pass on similar claims for the County of Randolph and other counties, an order was entered waiving the filing of briefs and arguments.

Attached to the complaint is claimant’s exhibit A, a list of the petitions for writs of habeas corpus in forma pauperis, which were filed in the Circuit Court of Randolph County between the dates of January 7, 1955 and October 4, 1956, inclusive. This list itemizes in detail the filing fees, Sheriff’s fees, State’s Attorney’s fees, and photostatic expenses, all set forth in accordance with the statutes of this state. It further shows the hearings, which were held before the Circuit Court of Randolph County, as well as the writs of habeas corpus, which were issued.

At the time of the hearing before the Commissioner a stipulation of facts was entered into, which conforms to the allegations set forth in the complaint, and the exhibt attached thereto. The stipulation of facts filed herein, in accordance with the record, has been checked by the Commissioner, who heard the case, and found it to be true and correct.

The stipulation discloses that divisions of the Illinois State Penitentiary, a penal institution of the State of Illinois, are situated in Randolph County, Illinois. Petitions for writs of habeas corpus in forma pauperis by inmates of the Illinois State Penitentiary, not residents of or committed from Randolph County, are frequently filed in the Circuit Court of Randolph County.

The statutory fee for the Clerk of the Circuit Court of Randolph County was $5.00 for each petition filed on or before July 1, 1955, and $10.00 for each such petition filed subsequent thereto, under the provisions of Senate Bill No. 335 of the 69th General Assembly, approved June 29,1955.

The complaint further sets forth that no claim has been presented to any State Department other than the filing of this case, and that there has been no assignment of any of the items herein claimed.

An award is, therefore, entered herein in favor of the County of Randolph for the sum of $4,798.50.


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    (No. 4789
    Material Service Corporation, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

      Schradzke, Gould and Ratner, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Material Service Corporation, An Illinois Corporation, filed its complaint in this Court against respondent on August 7, 1957. No answer was filed by respondent, and it is, therefore, being considered that a general traverse of the allegations set forth in the complaint is made by respondent under the rules of this Court.

In addition to the complaint, the record also consists of the Commissioner’s Report, stipulation, transcript of evidence, claimant’s exhibits Nos. A-2, 3 and 4, B-2, C-2 and D-2, respondent’s exhibits Nos. 1, 2 and 3, motion of claimant for leave to waive the filing of briefs, together with attached proof of service of a copy of the motion on the Attorney General, order of the Chief Justice granting the motion of claimant for leave to waive the filing of briefs, motion of respondent for leave to waive the filing of brief, proof of service of a copy of the motion of respondent on counsel for claimant, Departmental Report, and order of the Chief Justice granting the motion of respondent for leave to waive the filing of brief.

The matter was referred to Commissioner Herbert G. Immenhausen for hearing on October 25, 1957.

The stipulation filed herein is as follows:

“That claimant is a corporation existing and organized to do business under and by virtue of the laws of the State of Illinois.
That the claim o£ claimant is based upon contracts for work and materials furnished by claimant to the Division of Highways of the Department of Public Works and Buildings of the State of Illinois, true copies of which contracts and the bills for work and materials furnished thereunder are attached to the complaint filed in this matter, and are marked exhibits Nos. A-l, A-2, A-3, A-4, B-l, B-2, C-l, C-2, D-l and D-2; and that the total amount due for work and materials furnished thereunder is $1,318.61.
That claimant's exhibits Nos. A-l, A-2, A-3, A-4, B-l, B-2, C-l, C-2, D-l and D-2 are true and correct copies of the documents they purport to be, and that they should be accepted as and admitted into evidence in this matter without further proof.
That pursuant to the provisions of the above indicated contracts claimant was employed by respondent by and through the Division of Highways of the Department of Public Works and Buildings of the State of Illinois. Thereafter, on or about October 16, 1953, claimant commenced the performance of the delivery of the materials called for in said contracts, and completed said work on or about April 21, 1955.
That said work, labor and materials have been furnished, and all of claimant’s obligations under the terms of said contract have been fulfilled and completed, and accepted by respondent.
That claimant presented its claim to the Department of Public Works and Buildings of the State of Illinois, Division of Highways, after said project was completed. That thereafter, by letter dated September 25, 1956 (a copy of which letter is attached to the complaint herein, and marked as exhibit E), C. C. Waidelich, District Engineer of respondent, wrote to Mr. H. E. Diers, Engineer of Maintenance for respondent, stating that the invoices referred to above in paragraph 2 (exhibits Nos. A-2, A-3, A-4, B-2 and D-2) reflected legitimate charges against respondent covering material purchased by respondent under an appropriation for the 68th biennium, and delivered in full by claimant, and that such invoices had not been paid.
That claimant’s exhibit E is a true and correct copy of the document it purports to be, and that it should be accepted as and admitted into evidence in this matter without further proof.
That thereafter, by letter dated October 1, 1956 (a copy of which letter is attached to the complaint herein, and marked exhibit F), V. L. Glover, Engineer of Administrative Service, Division of Highways, Department of Public Works and Buildings, State of Illinois, wrote to claimant, and advised claimant that: ‘The materials represented by the invoices in question were received and used by the Division of Highways’, but that: ‘These accounts cannot be scheduled and vouchered for payment at this time, because the biennial appropriations from which they were payable have lapsed. Under these circumstances, the only agency authorized to consider your invoices for payment is the Court of Claims.’
That claimant’s exhibit F is a tme and correct copy of the document it purports to be, and that it should be accepted as and admitted into evidence in this matter without further proof.
That thereafter, by letter dated May 10, 1957 (a copy of which letter is attached to the complaint, and marked exhibit G), Robert L. Rietzler, Assistant Chief Accountant in the office of the Auditor of Public Accounts, State of Illinois, advised the attorney for claimant that the funds from which the invoices in question were to have been paid were provided by House Bill No. 718, 68th General Assembly; that the appropriation lapsed on September 30, 1955; that the lapsed amount in the commodities appropriation was $30,791.57, and the lapsed amount in the contingencies appropriation was $1,734,000.00.
That claimant’s exhibit G is a true and correct copy of the document it purports to be, and that it should be accepted as and admitted into evidence in this matter without further proof.
That the copies of invoices attached to the complaint herein as exhibits Nos. A-2, A-3 and A-4 have been corrected to charge a price of $6.90 per ton in accordance with the contract, and as pointed out by Mr. V. L. Glover in his letter to claimant dated October 1, 1956, and attached to said complaint as exhibit F; and, that these invoices, as corrected, are tme and accurate charges; and, that all the invoices attached to the complaint, and to which reference is made in paragraph 2 above (invoices attached as exhibits Nos. A-2, A-3, A-4, B-2, C-2 and D-2), are correct and tme in setting out the materials shipped by claimant and the charges therefor.
That claimant, Material Service Corporation, An Illinois Corporation, is the owner of all of the claim herein set forth; that no assignment or transfer of said claim or any part thereof has been made; that no other person, firm or corporation has an interest therein; that claimant is justly entitled to the amount herein claimed from the State of Illinois, after allowing all just credits; that no part of the amount due to claimant under said contract has been paid, but, to the contrary, there is yet due and owing to claimant from respondent the sum of $1,318.61.
That by reason of the lapse of the appropriation for the 68th Biennium, this amount due to claimant was unpaid, and, as stated in paragraph above, there were sufficient sums remaining in the lapsed appropriations to pay the amount due in full.”

The Commissioner reported that he examined the stipulation, and found it to be true and correct; and, also, after having examined the correspondence and the Departmental Report, found that ‘ ‘ The materials represented by invoices 'in question were received and used by the Division of Highways”, but that “their accounts cannot be scheduled and vouchered for payment, because the biennial appropriations from which they were payable have lapsed”.

This Court has had occasion to pass upon several matters of a similar nature. In these previous cases, we have held that an award would be entered where there were sufficient unexpended funds available in the appropriation to pay the claim had it been received in apt time. Funds were available in the present case at the time the services were performed. The materials were furnished, and the work satisfactorily performed and accepted by respondent. The only reason it was necessary for claimant to file the claim under consideration was due to the fact that the appropriations from which it could have been paid had lapsed.

In accordance with the recommendation of the Commissioner, who heard this case, an award is hereby made by this Court to claimant, Material Service Corporation, An Illinois Corporation, in a total amount of $1,318.61.