text:
    (No. 4536
    Jack M. Visco, Rose Visco and La Salle Casualty Company, A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 30, 1953.

    Snyder, Clarke and Dalziel, Attorneys for Claimants.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Jack M. Visco, Rose Visco and LaSalle Casualty Company filed their complaint on December 16, 1952 seeking to recover for their respective damages based on alleged negligence of the State in maintaining State Highway No. 45, north of Milburn, Illinois.

The record consists of a verified complaint, original transcript of evidence, abstract of evidence, brief and argument of claimants, brief and argument of respondent, and reply brief of claimants.

The facts are as follows:

On April* 8, 1951, at about 11:30 A.M., claimant, Jack M. Visco, was driving his 1950 Lincoln Sedan about 40 to 45 m.p.h. in a northerly direction in the north bound lane of State Highway No. 45, a two-lane concrete road, approximately one-half mile north of Milburn, Lake County, Illinois, when he ran into a hole, which was about 18 inches wide, 30 inches long, and 10 inches deep at the center, with the right front wheel and right rear wheel of the car. The impact caused the automobile to swerve to the left, cross the road, travel a distance of about 70 feet, and then collide with a large tree, causing great damage to the vehicle, and physical injuries to Rose Visco, also claimant herein, who was seated beside the driver, her husband. Their eight year old son, Raymond, was seated at her right, and Jack Maslow and Mrs. Maslow occupied the rear seat.

The claimant, Rose Visco, testified substantially to the above facts. Jack M. Visco corroborated his wife’s testimony, and stated that his car was in a good mechanical condition at the time of the accident; that the brakes were in good shape; and, that the windshield was clear. He testified he first saw the hole from a distance of about 20 feet, applied his brakes, and slowed down the speed of the car to about 20 to 25 m.p.h. He further stated there was clay or dirt around the hole; that the highway was divided in the center by a black line, and was dry; that the weather during the morning was on the hazy side; and, that there was no other traffic at the time of the accident at the place in question.

Rose Visco, claimant, was- rendered unconscious by the impact, .but gained consciousness shortly after the accident. She was taken in an ambulance to the Victory Memorial Hospital in Waukegan, Illinois. She testified that, when she entered the hospital, she had pain at the back of her neck, a bump on her forehead, and a terrific headache. She also stated she was very upset and nervous.

Two disinterested witnesses, Jessie Miller and Elizabeth Otto, testifying in behalf of claimants, stated they had driven their cars over said roadway a few days before the accident, and had seen the hole, which caused the accident. They identified the location of the hole as being in the north bound lane, and near a farm house where they had been visiting the day of the accident. They further stated the hole had been there for about a week. Jessie Miller stated that it was about 12 inches from the east edge of the pavement, and was a rather large sized hole. Elizabeth Otto stated the hole was round, about 18 inches in diameter, and about 10 inches deep, and that it contained some loose gravel.

Dr. Irving Breakstone, called as a medical expert for claimant, Rose Visco, testified he first treated her at the Victory Memorial Hospital on April 8, 1951. At that time she was complaining of pain in the neck and lower portion of the head, and was in a state of shock. She also had a headache, and a little pain in her right eye. She was hospitalized, and given daily diathermy treatments to the muscles around the neck. She was also given tablets for pain, and sedation with some codeine as a pain relieving agent. Dr. Breakstone further stated she was discharged from the hospital on April 11, 1951, at which time she was still complaining of pain in the muscles of her neck and right eye, and that the X-Rays taken of her cervical spine at the hospital were negative of fracture or bony pathology.

Dr. J. R. Fitzgerald called as a medical expert for claimant, Rose Visco, testified he first treated her in June of 1950. At that time she had a cataract in the right eye which had become over-ripe, and was producing a condition called glaucoma. The eye was slightly crossed, and her sight was reduced to perception of light. Not long after that, sometime in June of 1950, the cataract was removed, and for a period of time the glaucoma was relieved, and the sight was improved in the eye. On February 27, 1951, when he treated her, he found the operation removing the cataract had been successful, glaucoma was under control, and, the visual acuity of the eye with correction lenses was 20/40. He further stated he treated Rose Visco on April 14, 1951, and the visual acuity in the right eye was identical to his previous examination, 20/40. The right eye looked perfectly clear, but, the eye which had been slightly crossed before, was definitely more crossed, although there was no evidence of paralysis of the muscle. However, the pressure had gone up, and was definitely above normal. He further testified she had a stiff neck, and that, while her eyes weren’t bothering her particularly, she was dizzy. X-Rays taken were negative. There was no complaint of pain in the right eye. He saw her later on quite a few occasions, and her treatment resolved itself to the problem of combating the glaucoma. The pressure continued to rise, and various medications were tried to reduce the pressure. They were completely unsuccessful, and on July 8, 1951 an operation was necessitated, and at the same time the crossed eye was also operated on for the improvement of its appearance. The operation was performed at St. Anne’s Hospital, where she remained for five or six days. It improved the crossing of the eye, but apparently had practically no effect on the glaucoma. Again on March 7, 1952, an operation for glaucoma (technical name cyclodialysis) was performed, and following that the pressure became normalized, and has remained so ever since. On February 17, 1953, when he last exámined her, Dr. Fitzgerald stated the vision in the right eye was limited to counting fingers several feet in front of the eye, and that it was maximally corrected. The vision of the right eye, as compared with February, 1951, constituted considerable deterioration due to glaucoma. He further testified in response to a hypothetical question, incorporating the facts involved in the accident, as well as his personal experience as a treating physician and surgeon, that he found no evidence of direct injury to the eye, to the muscles of the eye, or to the nerves that control the muscles of the eye, and that the nervous. and emotional shock of the accident may have precipitated and aggravated the pre-existing condition. He stated that nervous and emotional shock can definitely induce certain types of glaucoma, or aggravate pre-existing types of glaucoma. The eye was slightly crossed when he first saw her, but it was not sufficiently crossed to be considered a cosmetic blemish. After the accident it was a cosmetic blemish, which required surgery. He stated the emotional and nervous shock had aggravated that condition, for the reason that there was no direct injury to the muscle or the nerve.

Henry L. Somers, called as a witness for respondent, testified he was employed by respondent as a foreman of the State Highway Maintenance Division in Lake County, and in such capacity he had supervision of the highways. He stated he had been engaged in such work for four years in the same area, which included the highway known as State Highway No. 45. He further stated repairs were being made to the pavement on Route No. 45 from Highway No. 120 north to approximately Route No. 73, or the State line, and that he had travelled over this roadway three or four times a week for the purpose of inspecting and supervising the crews, which were working on the road. He inspected Highway No. 45, approximately one-half mile north of Milburn on April 6, 1951, found no breaks, holes, or excavated openings in the pavement, and travelled both ways several times on said date. Mr. Somers testified he travelled over the area again on April 9th or 10th after the accident, and he did not see a hole in the pavement in the area of the roadway, approximately one-half mile north of Milburn on Highway No. 45; he further testified he had no occasion to cut into the pavement at the point where the accident in question occurred. Upon interrogation, he stated that coldmix, an asphalt substance, was used for temporary fillings, and removed when permanent repairs were made; that it was strictly against the rules of the State Highway Department to leave any excavation or holes overnight, and especially over a week end. If there was a bump in the roadway, a “bump” sign was set up; and, if there were imperfections or the pavement was rough, a “rough pavement” or “danger” sign was erected. These signs were placed 200 or 300 feet before the imperfection in the pavement. He further stated the road was curved at the point, approximately one-half mile north of Milburn, and that there were several imperfections, not holes, in the northbound lane.

In considering the question of negligence, the Court will take judicial notice of the following:

During World War II, the highways of the State were subjected to extraordinary wear, and, due to shortages of strategic material, repair work was postponed, so that nearly all of the highway system was in poor condition. Since the war, enormous sums have been spent to restore the highways, but there has been insufficient time and money to completely rebuild the entire system, and the travelling public cannot but be aware of these facts. Consequently, all, who use the highways, must drive their vehicles in accordance with road conditions.

Since July 1, 1945, numerous “highway cases” have been filed in the Court of Claims, and the negligence complained of falls roughly into three classifications.

1. Positive acts of negligence.

a. Toler vs. State, 16 C.C.R. 315, wherein State excavated pavement, and thereafter did not place barricades or warning devices.

b. Pomprowitz vs. State, 16 C.C.R. 230, wherein State excavated pavement, and thereafter did not place flares in front of barricade.

2. Knowledge of a dangerous condition in the highway, and failure to repair, or give adequate warning.

a. Rickelman vs. State, 19 C.C.R. 54, wherein State cut pavement to install a tile line, the asphalt patch thereafter applied subsided due to poor sub-grade, and the State, with knowledge of this condition, failed to repair, or post warning signs.

3. Constructive knowledge of a dangerous condition, and failure to repair or give adequate warning.

a. Herrin vs. State, 20 C.C.R. 110, wherein complainant stepped out of a car on the shoulder of the road, and fell into a broken concrete drop box inlet - - hazardous condition had existed for a long time, and the State should have known of this condition, had the proper inspections been made.

The complainants in the instant case must prevail, if at all, on the basis of constructive knowledge of a dangerous condition, and failure to repair or warn.

In reviewing the evidence, two disinterested witnesses testified that the hole in the pavement existed for a week, and that they could hear cars, travelling along said highway, hit the hole from their home, which was located away from the highway.

The size of the hole was 16 inches wide, 30 inches long, and 10 inches deep. It is unthinkable that the foreman of the State maintenance crew, who stated that he had made regular inspections, could have overlooked this hole, if he was performing his duties as he should, and the only reasonable inference is that he was negligent.

There cannot be any hard or fast rule in determining when it can be said that the State had “constructive notice” of a dangerous condition, and each case must be decided on its own particular facts. In the instant case, the enormous size of the hole, and the fact that it had existed for at least a week, leads us to the conclusion that the State had constructive knowledge of the dangerous condition, and failed to either repair, or erect warning signs.

The Court, in arriving at this conclusion, has not overlooked its previous decisions, in which it was held that the State was not an insurer of all accidents, which occurred by reason of the condition of its highways. Beenes vs. State, No. 4377, filed on October 5, 1951.

In the case of Dominic Di Orio vs. State, 20 C.C.R. 53, it was stated:

“It would establish a dangerous precedent for this Court to hold that the State would be liable for all defects on a highway, which it was under a duty to maintain. There is no evidence in this record of the nature of the hole, its size, how long it had been there, how it had been created, or of any notice to the State of its existence, either actual or constructive. There is, therefore, nothing in the record to show that the respondent was guilty of any negligence. To hold that the State would be liable without notice, actual or constructive, would be making the State an insurer.
This Court, by prior decision, is committed to the rule that the evidence must show that the State had actual or constructive notice of the defect, and negligently failed to take precaution to protect the traveling public. (Dockery vs. State, 18 C.C.R. 177.)”

The Court, therefore, finds from a preponderance of the evidence that the State was guilty of negligence in the present case. It further finds from a preponderance of the evidence that complainants were free from contributory negligence.

The evidence discloses that the damage to the automobile amounted to $1,063.31; that Jack M. Visco was charged with $80.00 as his share of the deductible amount on the insurance policy; and, that LaSalle Casualty Company paid the balance of the repair bill in the amount of $983.31.

The claim of Rose Visco is for $2,500.00, based on doctor and hospital bills in the amount of $845.20, and the balance for pain and suffering, as well as diminished sight in her right eye.

Without repeating the facts heretofore set forth, it is true that Dr. Fitzgerald stated, in his opinion, the emotional shock, resulting from the accident, aggravated the pre-existing glaucoma, and that two additional operations were necessitated to relieve this condition. He also stated on cross-examination (Abstract, page 17):

“You never discharge them as cured, because glaucoma itself is never cured in the sense that the condition can never recur. It is like diabetes; it is under control. It can recur of its own volition. It doesn’t necessarily take a shock to cause it to recur.”

There can be no argument but what Mrs. Visco suffered painful injuries, and suffered shock from this unpleasant experience. However, the testimony of Dr. Breakstone, together with the negative X-Ray reports, leads the Court to the conclusion that the injuries were relatively superficial, and that the most serious consequence was emotional shock.

It is to be noticed that the first operation for glaucoma was in June of 1950. The accident occurred on April 8, 1951. The second operation for glaucoma was in July of 1951, three months after the accident, which apparently did not relieve the condition. The third operation for glaucoma was in March of 1952, eleven months after the accident.

The courts of Illinois have held that a negligent injury, which aggravates a pre-existing tendency to disease, is deemed in law to be the proximate cause of the disease. Chicago City Railway Company vs. Sazby, 213 Ill. 274.

If the operation in July of 1951, three months after the accident, had cleared up the condition of glaucoma, claimant would have been able to present a much stronger case. However, it required a second operation, eleven months after the accident, to attain the desired result.

This Court, sitting as a Jury, is confronted with two possibilities of the cause of the recurrence of the glaucoma, both of which are entirely logical, i.e., emotional shock, or recurrence of its own volition. Since the claimant must establish her case by a preponderance of the evidence, the Court finds that she has failed to establish that the negligence of the State was the proximate cause of the recurrence of her glaucoma.

Claimant has submitted nine statements showing payment in full for doctor, hospital and. related charges. This Court, having decided that the recurrence of glaucoma was not attributable to the negligence of the State, must consequently disallow seven of such charges.

The Court, therefore, makes the following awards:

1. To Jack M. Visco, the sum of............................ $80.00

2. To LaSalle Casualty Company, A Corporation, the sum of... $983.31

3. To Rose Visco, as follows:

a. Dr. Breakstone.............................. $30.00

b. Victory Memorial Hospital................... 70.35

c. Rose Visco, for pain and suffering............. 750.00

- $850.35


source: Caselaw Access Project

author: Farthing, J.

license: Public Domain

text:
    (No. 4543
    Jack Stewart, doing business as Jack Stewart and Associates, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 26, 1953.

      Petitions of Claimant and Respondent for rehearing denied October 30, 1953.

    Little, Clausen and Presbrey, Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Farthing, J.

We have for our consideration the following: Complaint, respondent’s exhibit No. 3, purporting to be a Departmental Report, objection to which was sustained by the Commissioner, transcript of evidence, respondent’s exhibits Nos. 1, 2, 4 and 5, claimant’s exhibits Nos. 1 - 18, inc., abstract of evidence, and the Commissioner’s Report.

Claimant bases his suit on the fact that the prices of goods furnished, particularly cotton fabrics, increased after his bids were accepted. He stated he then had conversations with the State Purchasing Agent, in which the latter agreed to allow claimant to increase his selling prices, so long as they did not exceed the prices quoted by the next lowest bidder. These increased the total to $9,343.95. The other branch of his claim is that, although the State was entitled to a 7% discount, if payment was made within 20 days from the delivery and acceptance of the goods, or the date of invoice, whichever was the later date, while no payments were made within the discount period, the State nevertheless took a 7% discount on all purchases.

Although no briefs have been furnished us, and no statute has been called to this Court’s attention, we must take judicial notice of the Illinois statutes. Except in cases of emergency, we find that Ill. Rev. Stat., 1949, Chap. 127, Par. 28, requires advertising for bids for supplies for the various departments of the State, and, further, quality considered, that purchases be made from the lowest bidders. Pars. 6 and 9 of Chap. 127 cover the State Purchasing Agent. None of these paragraphs authorize the Purchasing Agent to increase the amounts payable beyond the price contained in the accepted bid.

Claimant’s counsel makes no reference to the rules as to bids the Department of Finance is authorized to make by Chap. 127, Sec. 36.6, prescribing uniform procedure in purchasing supplies. He has not shown that any authority was delegated the Purchasing Agent to make increases in prices after claimant’s bids were accepted.

The State was not entitled to the discount. There is due to the claimant on that branch of his case the sum of $3,408.35.

There is no proof, and there is no statutory authority that would permit the Purchasing Agent to increase the purchase price beyond the amount of the bid. The claimant could not in any way vary the forms for bidding submitted to him by the State. His attempts to do so are mere surplussage, for the bids must of necessity be upon the same terms, and, by submitting a bid in competition with other bidders, he could not be awarded a contract on any other terms than those upon which his competitors made their bids. The Purchasing Agent had no authority to make subsequent increases in price.

An award is made to the claimant, Jack Stewart, in the amount of $3,408.35 against the respondent, the State of Illinois.

The Commissioner ruled correctly when he sustained the objection to respondent’s exhibit No. 3, purporting to be a “Departmental Report”, admissible under Rule 16 of this Court. It was in fact an answer to the complaint. Such Reports may properly include copies of records of State Departments and official documents. This Court has been subjected to much criticism by reason of the delays incident to the obtaining of information by the Attorney General, as counsel for the State. It is suggested that more prompt service may be obtained, if, instead of submitting to these unconscionable delays, the heads of Departments are called as witnesses, and, they, or the persons in charge of the particular records, are required to appear before the hearing officer of this Court. Claimants, who have honest claims, must of necessity await the action of this Court, the Governor, and the General Assembly, before payment of their claims can be had. The claimant, and this Court itself, are entitled to reasonably prompt cooperation from the various Departments of State government.


author: Fearer, J.

text:
    (No. 4547
    Ray Sergent, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, October 30, 1953.

    Jenkins, Olsen and Cantrill, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, in his written complaint filed on March 20, 1953, alleged in substance that on August 4, 1952 he was riding in the right front seat of an automobile being driven by Doris Sergent; and that the automobile was proceeding in a southerly direction on U. S. Highway No. 66, approximately one mile south of Springfield, Illinois. After stopping at the sign at the intersection of U. S. Highway No. 66 with the road, which by-passes the City of Springfield, and while proceeding slowly across the intersection, a direction sign located about 25 feet south of said stop sign fell, or was blown upon the automobile in which the claimant was riding. Claimant’s right arm was resting upon the window frame of the automobile, and the sign fell upon his right elbow causing a wound, which required medical attention. Claimant further alleges that respondent was negligent in constructing said sign with an inadequate base, and in erecting it so close to the traveled portion of the highway as to endanger persons rightfully using the highway.

A stipulation was filed waiving briefs and arguments of both claimant and respondent.

The evidence produced, consisting of the testimony of the claimant and a report of the Division of Highways, fairly tended to show' that the direction sign had been placed immediately adjacent to the traveled portion of the highway, and it fell, or was blown upon the claimant and the automobile in which he was riding, at the instant said automobile was passing the sign. No explanation as to why the sign fell was offered by respondent. From the testimony of claimant, it would appear that the sign was blown over by a gust of wind. Obviously, the State of Illinois has a duty to-the motoring public to so place and erect State highway signs in such a manner that they will not, because of their own weight and instability, fall upon persons using the public highways. While the evidence as to whether the respondent, or the contractor, who was then working upon the highway, placed the sign is extremely meager, in our opinion this is immaterial, in view of the fact that respondent provided the sign, and the portable “A” frame barricade horse to which the sign was affixed. Also, respondent failed to introduce any evidence indicating that it was not responsible for the placing of the sign. Naturally this fact was not, and of necessity could not be, within the knowledge of claimant. Such a defense is in the nature of an affirmative defense, which would rest upon respondent to prove by a preponderance of the evidence.

The claimant demanded the sum of Five Thousand Dollars ($5,000.00). His evidence proved expenditures for medical treatment in the sum of Twenty Dollars ($20.00), and loss of earnings in the amount of One Hundred and Fifty-Five Dollars and Twenty Cents ($155.20). In addition, the claimant is entitled to the sum of One Hundred and Seventy-Five Dollars ($175.00) for pain and suffering, or a total of Three Hundred and Fifty Dollars and Twenty Cents ($350.20).

The Court, therefore, awards to claimant, Ray Sergent, the sum of Three Hundred and Fifty Dollars and Twenty-Cents ($350.20).


author: .Tolson, C. J.

text:
    (No. 4550
    Mable Hubbard and Roy Hubbard, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 30, 1953.

    R. W. Harris, Attorney for Claimants.
    ■ Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   .Tolson, C. J.

Mable Hubbard and Roy Hubbard, her husband, have filed their complaint, seeking damages for personal injuries sustained by the said Mable Hubbard, and damages to Roy Hubbard’s 1948 Oldsmobile, by reason of an accident, which occurred on State Route No. 37 on July 8, 1952.

The record consists of a verified complaint, transcript of the evidence, brief and argument of claimant, and brief and argument of respondent.

The facts in the case are as follows: On July 8, 1952 about 9:00 P.M., claimant, Mable Hubbard, left her home in Marion, Illinois driving her husband’s 1948 Oldsmobile to Cairo, Illinois. She drove over State Route No. 37, which was being resurfaced in certain areas. The weather was rainy, and, a road crew, which was working about one and one-half miles south of Grand Chain, the scene of the accident, was obliged at noon to cease its operations for the day, because of the downpour.

Mrs. Hubbard left Cairo about 12:30 P.M., and reached the area under repair about 2:30 in the afternoon. She stated that, when she reached this rough area, she slowed down from a speed of 40 to 45 miles per hour, which she had been maintaining, and almost immediately a car, travelling in the same direction, passed her, and, in so doing, threw mud, water and an oily substance upon her windshield, so that her view of the road was impaired.

She stated at about that moment her car struck a hole in the road, which caused the front end of the car to bounce up and down, and she lost control of the car. Whether the car went off on the right shoulder is not too clear from the evidence, but, in any event, the car ended on the left shoulder. Mrs. Hubbard struck her chin on the steering wheel, and was rendered unconscious. Of a more serious nature, she suffered a dislocation and fracture of her left humerus, and required hospitalization. The front and left sides of Roy Hubbard’s car were damaged in the amount of $327.82.

The evidence discloses that State Route No. 37 was under construction, and, at the area complained of, a portion of the highway had been removed more than a year before, and had been replaced with gravel.

On July 7, 1952, the day before the accident, this particular strip had been graded, and thereafter coated with a “primer” of cut asphalt. Finally stone chips to the depth of one-half inch were spread to prevent traffic from picking up the primer.

The evidence further discloses that a series of warning signs had been erected by the contractors some distance from the particular area, bearing the following inscriptions: “Road under construction”, “Resurfacing, please drive carefully”, “State of Illinois, Division of Highways”.

Near the particular area, two additional signs were in place — “Slow” and “Low shoulder”.

Mrs. Hubbard stated that she did not see the signs, possibly because of the heavy rainfall, but, in any event, there is no dispute but what the signs were actually in place. It is also significant to note that claimant was fully aware of the rough area, because she had driven across it just a few hours earlier on her way to Cairo.

This Court has heretofore held that the State of Illinois is not an insurer against all accidents, which occur by reason of the condition of its highways. Terracino vs. State, No. 4420, filed on January 8, 1952; Beenes vs. State, No. 4377, filed on October 5, 1951.

This Court has also held that, if the State has knowledge, actual or constructive, of a dangerous condition on its highways, and fails to warn the public of the condition, with resultant injury, it must respond with damages for its negligence. Pomprowitz vs. State, 16 C.C.R. 230; Rickelman vs. State, 19 C.C.R. 54.

The Court of Claims, as does all of the Courts of the State of Rlinois, requires a claimant to establish by a preponderance of the evidence that he or she is free from contributory negligence. Stephens vs. State, 19 C.C.R. 207.

Applying these rules of law to the facts in evidence, it is patent that the State, by erecting a series of warning sings indicating that road construction was in progress, and by also placing two additional warning signs in the immediate vicinity of the rough area, has completely discharged its duty to the public.

In addition to the above, complainant has not established by a preponderance of the evidence that she was free from contributory negligence, in that she admitted knowledge of this rough area by reason of having travelled over it a few hours earlier, and must, therefore, be charged with knowledge of its condition —good or bad.

For the reasons above stated, an award will be denied.


text:
    (No. 4554
    Standard Oil Company, Indiana, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 30, 1953.

    Standard Oil Company, Indiana, Inc., Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant has filed a complaint herein based upon purchases of gasoline, oils, grease, tires, tubes, etc., by various Departments of the State of Illinois. It is alleged that these purchases were made during the years of 1950 and 1951.

The evidence consists of a Report of the Division of Highways, which was introduced by stipulation, and an affidavit executed by claimant’s credit manager. The affidavit sets forth facts to explain why the complaint was not filed within the two year limitation period, imposed by the statutes of the State of Illinois, and the rules of this Court.

The total amount claimed is the sum of $757.56. However, we find that the various purchases, upon which the claim is based, were separate and distinct transactions; that 45 of the purchases were made prior to April 22, 1951; and, the remaining 51 purchases in the amount of $434.21, were made on or after that date. We hold that the affidavit is not legally sufficient to bar the running of the Statute of Limitations on the purchases made prior to April 22, 1951. As to the balance of the purchases, it appears that they were made in the regular course of business by the State of Illinois, and the materials, services, and prices were as represented.

The Court, therefore, awards to claimant, Standard Oil Company of Indiana, the sum of $434.21.


text:
    (No. 4494
    Fredrick Hyson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1953.

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

On February 15, 1950, between the hours of seven and eight A.M., the claimant, Fredrick Hyson, who was self-employed, owned, and was operating his 1949 Ford Tractor and Kingham Trailer in a northerly direction on Route No. 66, a concrete public highway in the State of Illinois, at or about two miles north of Chenoa, Illinois in Livingston County. On said day, Richard Duffy (who at the time of the hearing was in the military service stationed in Japan) was an employee of the State of Illinois, and was in charge of, and driving a truck of the Division of Highways of the Department of Public Works and Buildings of the State of Illinois; and, there was working for him, as an agent of the State of Illinois, Andes W. Johnson. These men were employed for maintenance work by the respondent, and assigned to the area in question for general maintenance operations.

On the morning in question, Duffy and Johnson left Pontiac, Illinois in a State truck loaded with cinders at or about the hour of seven-thirty, and drove from the garage in Pontiac, Illinois on Route No. 116 to Route No. 66, and thence south on Route No. 66 to the line between Livingston and McLean Counties. Their duty on the morning in question was to spread cinders on icy spots, bridges, intersections and approaches to bridges. Upon reaching the end of their area, they turned around, and headed north. Before . spreading cinders on the approach to the bridge where the accident in question occurred, Mr. Duffy pulled the State truck onto the east shoulder to permit Mr. Johnson to get in the back of the truck for the purpose of spreading cinders, which he was doing at the time the accident occurred. The tractor and trailer, which claimant was driving, skidded on an icy spot on the approach to the bridge, causing claimant’s tractor to strike a guard post located along said highway. The tractor then proceeded in the traffic lane provided for south bound traffic, and struck a truck traveling in a southerly direction, as the result of which claimant suffered personal injuries, damage to his tractor and trailer, and loss of earnings.

There is no question but what the respondent, through its agents, was spreading cinders on the approaches to the bridge, and on the bridge just prior to and at the time of the accident; and that the claimant’s tractor did not come into contact with the State highway truck, but drove on and into the truck traveling in a southerly direction. Claimant testified that the State truck was not moving when he first saw it, and at that time he was within 25 to 30 feet of the State truck. Johnson testified that the State truck was moving at a slow speed, so that he could properly spread the cinders on the north bound traffic lane. Claimant testified that he did not see any lights on the State truck. Johnson testified that the blue revolving light on the top of the cab was working just prior to and at the time of the accident in question.

Claimant charges a violation of Chap. 95%, Sec. 218 (b), Bar Association Edition, which prohibits the parking of a vehicle on a State highway unless an emergency exists, and it is impossible to drive said vehicle onto the shoulder, without warning traffic traveling on said highway; and, also charges a violation of Chap. 95%, Sec. 148,1.R.S., Bar Association Edition, which makes it a violation to operate a motor vehicle at a slow rate of speed on a State highway, so as to impede, or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation, or compliance with the law.

It is our opinion from the testimony offered that Mr. Duffy was driving the State truck, Mr. Johnson was shoveling cinders at the time of the accident in question, and that the State truck was visible td’ traffic traveling upon said highway at the time of and just prior to the accident in question. Had claimant been looking, he would have seen the truck on the highway, and noted that cinders were being spread on the bridge, and approaches thereto. Furthermore, had claimant had his truck under control, and been driving at a speed, which took into consideration the condition of the highway, the bridge, and the approaches thereto, his tractor would not have skidded, and gone from its proper traffic lane to the south bound traffic lane, and struck the truck traveling in a southerly direction.

The burden is upon the claimant to prove by a preponderance or greater weight of the evidence that just before and at the time of the accident in question he was driving and operating his tractor with due care and caution for his own safety, and the safety of others traveling upon such highway; and that it was the negligence of respondent’s agents, which was the proximate cause of the accident. In this respect, we think the claimant has failed. It is our opinion that, just prior to and at the time of the accident in question, Duffy and Johnson, employees of respondent, were performing their duty in the area assigned to them for the protection of the traveling public.

For the reasons above set forth, the claimant is not entitled to recover.


author: Tolson, C. J.

text:
    (No. 4514
    J. L. Simmons Company, Inc., A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed, December 18, 1953.

    Walter Day, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On May 16, 1952, J. L. Simmons Company, Inc., filed its complaint against the State of Illinois for the sum of $48,224.34, said sum being the balance claimed due it under a contract for the construction of the Mt. Vernon State Tuberculosis Sanitarium at Mt. Vernon, Illinois.

The prayer for relief requested a summary judgment in the amount of $22,334.64, which amount was not in dispute, and an award of $25,889.70 for the balance claimed under the contract.

The record consists of a complaint, motion of claimant for summary judgment, transcript of evidence, abstract of evidence, statement, brief and argument of claimant, and statement, brief and argument of respondent.

On March 20, 1953, this Court granted the motion for summary judgment in the amount of $22,334.64, which leaves the remaining claim of $25,889.70 for determination.

The facts of the case are as follows:

On October 8, 1948, the claimant was awarded a contract to construct the Mt. Vernon State Tuberculosis Sanitarium. (Reference will be made at a later time in this opinion to the contract, correspondence and architectural drawings.)

After the top soil was stripped from the building site, a “substance” was encountered that could not be removed with power equipment, and the contractor was obliged to use air hammers and dynamite to complete the excavation.

On March 5, 1949, the Simmons Company notified Philip B. Maher, the architect for the State, of this condition, and requested a meeting of all interested parties at the site of operations to determine the amount of additional compensation that Simmons Company would be entitled to under its contract, and for the State to consider revising its drawings to take advantage of this newly discovered condition by raising the elevations of the bottom of the pier footings, thereby saving certain costs for materials.

Thereafter, a series of letters were written between the parties, which resulted in a change order, wherein the State received a credit of $587.50 for the savings in material.

The claim of the Simmons Company for extra compensation for “rock excavation” was carefully skirted by the State Architect in the correspondence heretofore referred to, but, in the letter of May 1, 1950, between Philip B. Maher, State Architect, and C. Herrick Hammond, Supervising Architect for the State, Mr. Maher recommended the settlement of the claim in the amount of $25,889.70 on the basis that the substance encountered was not known to exist by either party, and was properly compensable under Article XXII of the general contract.

On June 30, 1951, C. Herrick Hammond, Supervising Architect, accepted the proposal of the Simmons Company on behalf of the State, and ordered the necessary changes.

The building was completed and accepted by the State, and, when final payment was requested by the Simmons Company, the Department of Finance, before executing the voucher, requested an opinion from the Attorney General covering this payment, and, on receiving an adverse ruling, declined to issue a voucher for the disputed item.

Two questions are presented to this Court for consideration:

1. Can the Supervising Architect effect a change in the contract, which would increase the amount of the contract?

2. If the Supervising Architect can amend the contract, was the “substance” rock within the meaning of the contract?

The contract, specifications and drawings cover hundreds of pages, and by the terms are construed together as one document. The one architectural drawing introduced in evidence is a plot plan of the site, which details the elevations of the land involved, discloses locations of certain borings, as well as the nature of the sub-soil encountered. The drawing states that there is no rock or quick sand on the site, but also states that the test borings are not to be used by the contractor in the preparation of estimates, and is not a part of the contract.

The “substance” that caused this difficulty was broken up in granules by the auger when the borings were made, and, when examined by the bidders, in no way represented its true character when the top soil was removed. It is conceded by all parties that the nature of this “substance” was unknown when the contract was let, and that additional borings by the contractor would not have revealed its true character.

The following portions of the contract appear to be controlling in the matter of its interpretation:

AGREEMENT
ARTICLE IV: UNIT PRICES FOR CHANGES: The following unit prices will apply in the event additions to or deductions from the work to be performed under this contract are required:
Unit Prices Add Deduct
No. 1 — 1:2½:4 concrete per yard....................... $25.00 $22.00
No. 2 — 1:2:3½ concrete per yard....................... 26.00 23.00
No. 3 — Reinforcing steel per 100#..................... 14.00 12.00
No. 4 — Forms per square foot.......................... .60 .50
No. 5 — Barth excavation per yard (hand)................ 3.50 3.00
No. 6 — Earth excavation per yard (machine)............. 1.25 1.05
No. 7 — Rock excavation per yard (if encountered)........ 40.00 35.00
ARTICLE V. The Contractor and the Owner agree that the General Conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and are as fully a part of the Contract as if hereto attached or herein repeated.
ARTICLE VI: It is understood and agreed by and between the Parties hereto that this Contract is the entire agreement between the Parties, and that no alterations, changes or additions therein shall be made, except in writing approved by the Parties hereto.
General Conditions op the Contract
ARTICLE 1.
PRINCIPLES AND DEFINITIONS:
(b) The Owner, the Contractor, and the Supervising Architect are those named as such in the Agreement. They are treated throughout the Contract Documents as if each were of the singular number and masculine gender.
ARTICLE 2.
EXECUTION, CORRELATION AND INTENT OF DOCUMENTS:
The Contract Documents shall be signed in triplicate by the Owner and Contractor. In case of failure to sign the General Conditions, Drawings, or Specifications, the Supervising Architect shall identify them.
The Contract Documents are complementary and what is called for by any one shall be as binding as if called for by all. The intention of the documents is to include all labor and material reasonably necessary for the proper execution of the work. It is not intended, however, that materials or work not covered by, or properly inferable from, any heading, branch, class or trade of the specifications shall be supplied, unless distinctly so noted on the drawings. Materials or work described in words which so applied have a well known technical or trade meaning shall be held to refer to such recognized standards. When the specifications and drawings conflict, the specifications shall govern.
ARTICLE 8:
THE SUPERVISING ARCHITECT’S STATUS:
The Supervising Architect shall have general supervision and direction of the work. He is the Agent of the Owner only to the extent provided in the Contract Documents. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.
ARTICLE 9:
THE SUPERVISING ARCHITECT’S DECISIONS:
The Supervising Architect shall, within a-reasonable time, make decisions on all claims of the Owner or Contractor and on all other matters relating to the execution and progress of the work or the interpretation of the Contract Documents.
ARTICLE 10:
FOREMAN, SUPERVISION:
The Contractor shall give sufficient supervising to the work using his best skill and attention. He shall carefully study and compare all drawings, specifications and other instructions and shall at once report to the Supervising Architect any error, inconsistency or omission which he may discover.
ARTICLE 22:
CHANGES IN THE WORK:
The Owner, without invalidating the Contract, may make changes by altering, adding to or deducting from the work, the Contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract, except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.
No change shall be made, unless in pursuance of a written order from the Supervising Architect, stating that the owner has authorized the change, and no claim for an addition to the Contract sum shall be valid unless so ordered.
The value of any such change shall be determined in one or more of the following ways:
(a) By estimate and acceptance in a lump sum.
(b) By unit prices named in the contract or subsequently agreed on.
ARTICLE 23:
CLAIM FOR PAYMENT:
If the Contractor claims that any instructions, by drawings or otherwise, involve extra cost under this Contract, he shall give the Supervising Architect written notice thereof before proceeding to execute the work, and, in any event, within two weeks of receiving such instructions. No such claims shall be valid unless so made.
ARTICLE 25:
CERTIFICATES AND PAYMENTS:
If the Contractor has made application as above, the Supervising Architect shall, not later than the date when each payment falls due, issue to the Contractor a certificate of such amount as he decides to be properly due.

The following correspondence reflects the interpretation placed on the contract by the Simmons Company and the architects for the State:

J. L. SIMMONS CONPANY, INC.
5 March, 1949
Philip B. Maher, Architect 157 Bast Brie St.
Chicago, 11, Illinois
Gentlemen:
SUBJECT: Mt. Vernon State Tuberculosis Sanitarium, Mt. Vernon,
Illinois — Eock Excavation.
The writer visited the above subject job on February 16, 1949, and inspected the excavation at the request of our superintendent, Mr. Carl Stephens, who the day before had taken some snapshots showing the various parts of the excavation. We are enclosing one print of eight different pictures, as we were at the time in a very hard rock like shale.
When in the office of the Division of Architecture and Engineering the following week on another matter, the writer mentioned to Mr. C. W. Macardell the fact that we had hit this very hard material, and were having considerable trouble in dislodging it, having to use a backhoe in the bottom of the excavation, crosscutting in one way, and then using a dragline bucket from a crane on the bank to pick up the crumbs on the excavation.
The writer has kept in touch with Mr. Stephens, and this condition has steadily grown worse, until on Saturday, 26 February, our superintendent called my office in Springfield, and advised that this shale strata had become so hard that it was necessary to dynamite in order to dislodge any of this material. The State superintendent on the job, Mr. Clifford Jones, is fully advised of the existing condition, and the writer understands that he has submitted samples of this material to his office in Springfield, together with a report concerning the nature of the excavation.
It is requested that either a representative of your firm, or the State of Illinois, or both, visit the site of the operations, and determine with our superintendent the amount of rock excavation involved, so that we may be compensated according to the terms of our contract.
It is further requested that consideration be given to raising the elevation of the bottom of the pier footings Nos. 10, 11, 12, 22, 23, 24, 42, 41, and 40, that is, if the same material is encountered in those pier footings as was encountered in the rest of the excavation.
Very truly yours,
J. L. SIMMONS COMPANY, INC.
J. L. SIMMONS COMPANY, INC.
Springfield, Illinois 6 May, 1949
Philip B. Maher, Architect 157 East Erie Street Chicago, 11, Illinois
SUBJECT: Mt. Vernon State Tuberculosis Sanitarium,
Mt. Vernon, Illinois — Rock Excavation
Gentlemen:
We enclose three prints each of drawing marked Rock Excavation, Mt. Vernon Tuberculosis Sanitarium, Mt. Vernon, Illinois, dated 4/20/49, together with three photostats each showing footing numbers, and the amount of hand rock excavation in each footing, and section numbers on general rock excavation, as identified on previously mentioned drawing.
You will note that the total rock excavation constitutes 2,746 cubic yards. These prints are for your information and study, and for presentation to the State of Illinois for payment at the cubic yard price as set out in our contract.
Very truly yours,
J. L. SIMMONS COMPANY, INC.
PHILIP B. MAHER ARCHITECT June 30, 1949
J. L. Simmons Company, Inc.
2146 North Woodford Street Decatur, 60, Illinois
Attention: Mr. Fred A. Berndt
Gentlemen:
Mt. Vernon State Tuberculosis Sanitarium
We have checked your allowances for certain columns because of their shorter length due to soil conditions at the site, and arrive at a figure of $587.50 credit instead of $507.00, which you submit.
In regard to the extra claimed for rock excavation, we have discussed this matter with our engineers, and our representative on the job, McCoy & Wilson, and neither recognize the material excavated to be "rock” as mentioned under the term of your contract calling for a removal price of $40.00 per cubic yard.
Very truly yours,
/a/ W.T.S.
Walter T. Stockton
PHILIP B. MAHER ARCHITECT May 1, 1950
To: C. Herrick Hammond, Supervising Architect Springfield, Illinois
The J. L. Simmons Company has submitted to us a request for extra compensation for removal of so-called rock formation encountered by them during the excavating work for the Mt. Vernon State Tuberculosis Sanitarium. The net extra requested is $25,889.70, and the quantity involved is 2,958 cu. yds. out of a total of 7,475 cu. yds. taken from the excavation.
The above amount is the result of checking by your representative, Mr. Clifford Jones, and has been agreed upon by all concerned as being correct. The area under consideration is at the south central and southeast portion of the building.
We have asked the J. L. Simmons Company to submit expense records to substantiate their statement, and we have on file copies of weekly labor and material costs for excavation work from December 5,1948, thru May 8,1949. The following figures and facts are presented herewith as a matter of record:
Actual Cost
Bulk, Trench, and Hand Excavation..............$25,322.60
Superintendent and Time Keeper................. 4,950.00
- $30,272.60
Less Estimated Cost
Bulk Excavation 6080 Cu. Yds. @ $1.00........ $6,080.00
Trench Excavation 785 Cu. Yds. @ 1.50........ 1,178.00
Hand Excavation 610 Cu. Yds. @ 3.00........ 1,830.00
- 9,088.00 7
7 *
Net Extra Cost....................................... $21,184.60
Overhead and Profit, 21%............................. 4,448.77
Bond, 1%........................................... 256.33
Total Extra Cost............................. $25,889.70
As to the actual material encountered, our engineer, Mr. Syberen Frank Nydam, has had samples of it in his office for some months. It does not have the properties of genuine rock, but seems to be a kind of shale, which becomes rock-like on exposure to air, and disintegrates when placed in water. Our representative on the job, Mr. Harry Throgmorton of McCoy & Wilson, has stated on two occasions that the material is not "rock”, and our own observations lead us to the same conclusion in the light of the unit prices set up in the General Contract, wherein rock is implied as being a material of sufficient hardness and density to demand the payment of $40.00 per cubic yard for its removal "if encountered”. The cost of removing this material was about $8.30 per yard.
Since the specifications do not provide for any material other than “earth” and “rock”, and it is generally agreed that the material under discussion is not “rock”, it is, therefore, technically impossible to approve the extra compensation requested by the contractor.
However, as you are aware, there is shown on the first sheet of the architectural drawings a complete record of all borings taken on the site. While this is distinctly labeled as not being a part of the drawings, and the State is in no way obligated therefor, it is nevertheless an accurate record of the borings, and, they do not, and, in our opinion, no amount of additional borings would disclose the conditions, which developed as the excavating progressed. In other words, there is nothing the general contractor could have done to warn him of the situation encountered. Furthermore, you will recall he has submitted a credit of $587.50 because of the fact that certain columns were not required to be extended to the depths shown on the drawings due to the hardness of the bearing surface.
Therefore, because of the fact that the State recognized by the words “if encountered” that they are willing to compensate a contractor for removal of a certain type of material not known to exist on the site at the time of awarding the contract, and, since a similar condition exists at the Mt. Vernon State Tuberculosis Sanitarium, we will be pleased to be a party to further discussion, if you agree with us that the J. L. Simmons Company is entitled to a hearing.
Very truly yours,
W.T.S.
Walter T. Stockton
DIVISION OF ARCHITECTURE AND ENGINEERING
June 30, 1951
To: J. L. Simmons Company, Inc.
From: Supervising Architect
I have been directed to notify you of the acceptance of your proposal, dated June 8, 1951, in the amount of Twenty Five Thousand Eight Hundred Eighty Nine and 70/100 Dollars ($25,889.70) for the following additional work:
Because rock was unexpectedly encountered in the excavations, as outlined in proposal, dated June 8, 1951, to which is attached breakdown.
A formal order will be forwarded you for signature coincident with its execution by the officers so authorized to execute the order for the State.
Pending receipt of the above order, it is requested that this letter be taken as authority to proceed with the work.
Yours very truly,
DEPARTMENT OF PUBLIC WORKS AND BUILDINGS.
DIVISION OF ARCHITECTURE AND ENGINEERING October 11, 1951
To: J. L. Simmons Company, Inc.
From: Supervising Architect
Under date of June 8, 1951, you submitted a proposal to this office covering the cost to you of rock excavation in connection with the above project, and you were notified, under date of June 30, 1951, of its acceptance.
Our letter of acceptance was based on advice from the Director of the Department of Public Health that its acceptance met with his approval; however, he so informed this office, without awaiting the advice of the Department of Finance, to whom the matter had been referred, and, who, in turn, referred it to the Attorney General.
You have been informally advised of the action taken by the Attorney General, as well as the Departments of Finance and Public Health, and we quote from the Attorney General’s letter to the Department of Finance, expressing his opinion, that the Director of Finance should not approve such a payment, as follows:
“It is therefore apparent that this contract contains an express stipulation as to the compensation to be paid. The contract contains no provision, which can be construed to authorize payment of an additional amount due to the fact that excavation at the site proved more onerous and costly than originally contemplated by the contractor.
I am therefore of the opinion that the Director of Finance should not approve an invoice voucher for payment of this additional amount of $25,889.70 to the J. L. Simmons Company, Inc. under contract 66546.”
Yours very truly,
DEPARTMENT OF PUBLIC WORKS AND BUILDINGS.

The State contends that the contract price was a flat bid, and, if the work became more onerous than was contemplated, the contractor was nevertheless obliged to complete it according to the terms thereof.

Complainant contends that the contract price is a general figure, subject to change by additions or subtractions, all under the direction of the Supervising Architect, that changes in fact were made, which were both beneficial and detrimental to the State.

This Court recognizes that contracts for public works involving the expenditure of hundreds of thousands of dollars are by their very nature complex, and that it is virtually impossible to anticipate every contingency that may develop. Some latitúde and discretion must be placed with someone to handle these matters on behalf of the State, and by the terms of this contract the Supervising Architect was delegated to effect these changes. .

Article V of the agreement states affirmatively that all of the documents pertaining to the contract form the “contract”, and Article II of the general conditions states that all of the documents are complementary, and what is called for in one shall be as binding as if called for by all.

The Court, therefore, concludes that the restrictive interpretation suggested by respondent cannot be followed, but that the contract must. be construed in the light of all documents in evidence.

Considering first the plot plan of the site — the document shows the location of 15 test borings, the sub-soil data chart is a positive representation of the nature of the sub-soil.

The appendix contains a positive statement that no rock or quick sand will be encountered. Also in positive terms is a precautionary note advising contractors not to use test boring data in the preparation of estimates, as it is not a part of the general contract.

The leading case construing such contracts is Hollerback vs. United States, 233 U. S. 165, in which plaintiff filed a suit in the United States Court of Claims to recover on a contract for extras for the repair of a dam on Green River, Kentucky. Plaintiff alleges certain representations in the contract prepared by the Government stated that the present dam was backed with broken stone, sawdust and sediment to a given depth, when, in fact, such statement was in error. The contract included the usual statements that a bidder was to visit the site, and make his own investigation to enable him to make an intelligent proposal.

The Court of Claims ruled that the contractor was at fault for not making the required investigation, and denied the claim. On appeal the Supreme Court held to the contrary.

“A government contract should be interpreted, as are contracts between individuals, with a view to ascertaining the intention of the parties, and to give it effect accordingly, if that can be done consistently with the terms of the instrument. In Paragraph 33 the specifications spoke with certainty as to a part of the conditions to be encountered by the claimants. True, the claimants might have penetrated the seven feet of soft slushy sediment by means of which they would have discovered the log crib work filled with stones, which was concealed below, but the specifications assured them of the'character of the material, . . a matter concerning which the government might be presumed to speak with knowledge and authority. We think the positive statement of the specifications must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts, which the specifications furnished by the government as a basis of the contract left in no doubt. If the government wished to leave the matter open to the independent investigation of the claimants, it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work, it made a representation upon which the claimant had a right to rely without an investigation to prove its falsity.”

The Court of Claims of Illinois in the case of Arcole Construction Company vs. State, 11 C.C.R. 423, followed the rule laid down in the Hollerback case, and the facts of that case are as follows:

Claimant, Arcóle Construction Company, was awarded a contract to repave Roosevelt Avenue in the City of Chicago. Plans and specifications were prepared by the State, and through oversight no reference was made to that portion of the road bed containing abandoned street rail ties, which were embedded in concrete, and not visible through ordinary examination. The contractor was unable to remove this portion of the highway with power shovels, but had to resort to air hammers to chip it out. The extra expense amounted to $24,944.85, and a claim was made for this amount. The Court ruled that where plans and specifications are prepared by the owner, and there is a material misrepresentation therein, and, as a result of such misrepresentation, the contractor is misled to his damage, he is entitled to recover the damage so sustained. An award of $23,092.09 was granted.

The present case might well be decided on the basis of a material misrepresentation, as set forth in the Arcóle case, supra. However, the claimant and Supervising Architect have placed their own construction on the contract to arrive at the same conclusion.

This was probably brought about in that the State amended the contract to. effect a savings in the amount of $587.50, and, since the claimant did not press his claim for removal of “rock” at the rate of $40.00 per cubic yard, as provided by Article IV of the agreement, Article XXII of the general conditions of the contract was used as the medium in determining the amount of the extra costs encountered by claimant.

The courts of this State have held that the interpretation of a contract made by the parties themselves will be given great weight. In the case of Lehmann vs. Revel, 254 Ill. 262, the court ruled that the Park Commissioners, who had accepted the benefits of a contract, which was in part illegal, in that it exceeded the powers of the municipality, were estoppeled to defend on the theory of lack of powers.

This Court, therefore, concludes that claimant is entitled to recover on either the theory of material misrepresentation, or the contract as interpreted by the parties themselves, providing the removal of the “substance” was not part of the contract, which claimant was obliged to perform according to its terms.

Claimant has introduced into evidence a sample of the “substance” encountered at the building site. It is about 3 inches by 4 inches, and one inch thick. In its present condition, it is extremely hard and heavy, and gives the typical appearance of a paper weight. It is conceded that when first taken from the ground it presents a different character, and thereafter hardens. Carl M. Bays, a recognized geologist, testified that the “substance” was a true rock, coming from the Pennsylvania strata. Respondent contends that the “substance” was not a true rock, but admitted that the material was dense, compact, indurated and stratified.

It is interesting to note that the Department of Public Works and Buildings, through its Division of Highways, has defined the word “rock” as follows:

STANDARD SPECIFICATIONS FOR ROAD AND BRIDGE CONSTRUCTION
SECTION 11. ROADWAY EXCAVATION
Construction Methods
Earth Excavation. All roadway excavation shall be classified as earth excavation, except those materials provided for in rock excavation.
Rock excavation. Rock excavation shall include:
(a) All boulders and rocks measuring % cubic yard or more.
(b) Solid or ledge rock that cannot be excavated without resorting to continuous drilling and blasting.
(c) Slate, shale, sandstone, and other hard material that cannot be excavated with a modern power shovel of M cubic yard capacity, adequately powered, and in good mechanical condition, without continuous drilling and blasting. The Contractor shall prove by demonstration that slate, shale, sandstone, or other hard material encountered cannot be moved with heavy equipment without continuous drilling and blasting.

The last edition of Words and Phrases at pages 572 and 573 has the following definition:

ROCK
“Rock is meant the stratum or formation of stone, or other fixed, hard material underlying and supporting the loose material of which the surface of the earth is ordinarily composed, and includes a rock known as soapstone.” Okey vs. Mayers 91 N.W. 771; 117 Iowa 514.
ROCK EXCAVATION
“All conglomerate deposits so firmly cemented as to present characteristics of solid rock and which it is not practicable to excavate with a power shovel, except after drilling and blasting . . . may be classified as "Rock Excavation”, which may include “hardpan” which is a cemented or compact deposit.” Lathers vs. State, 229 N.W. 50; 238 Wisconsin 291.

In the light of this evidence, it is apparent that the “substance” encountered was true “rock” within the meaning of the contract, and is, therefore, compensable as an extra.

An award of $25,889.70 is hereby granted to the complainant, J. L. Simmons Company, Inc., A Delaware Corporation.


text:
    (No. 4555
    G. W. Gladders Towing Company, Inc., A Missouri Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1953.

    Everett Prosser, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

G. W. Gladders Towing Company, Inc., a Missouri Corporation, filed its complaint on June 19, 1953, seeking compensation for a certain barge tow that was damaged by the alleged neglect of a bridge tender, who was an employee of respondent.

The record consists of a verified complaint, Departmental Report, transcript of the evidence, petition asking leave to waive briefs and arguments, and order granting the petition.

The facts of the case are as follows:

On June 20, 1951, the Emily Jean tow barge, owned by the complainant, was pushing four barge tows up the Illinois River toward Chicago, its ultimate destination. The barges were tied together two abreast, and were loaded with furnace oil. The Emily Jean was at the rear, pushing the barges at a speed of % miles per hour, just enough speed to maintain steerage. The overall length of the tow was about 598 feet.

As the tow approached the 9th Street Bridge, the Captain of the Emily Jean gave a single whistle blast, which was the signal to open the bridge. This blast was answered by the bridge tender with a blast from a siren.

The 9th Street Bridge was the pivot type, and, in this instance, it swung downstream, so that the tow could proceed between the concrete abutments on either side. The tow started through the opening, and the front two barges had passed under the bridge area, when the bridge tender, for some unknown reason, started to return the bridge to a closed position, and, in so doing, crashed the bridge upon the rear tow boats, causing substantial damage to tow boat No. N.B.C. 752, and minor damage to tow boat Martin No. 1.

The Captain of the Emily Jean interrogated the bridge tender about closing the bridge prematurely, but could get no explanation. The bridge tender did not testify in this proceeding, so the reason, or excuse, for his action remains unanswered.

The tow, after minor repair's, continued to Chicago, and on its return trip was examined by an independent Marine Surveyor at St. Louis. The two barges were repaired by the St. Louis Shipbuilding and Steel Company at a cost of $3,237.10. The amount of the bill, and the reasonableness of the charge are not in dispute.

It was stipulated between the parties at the hearing before the Commissioner that the 9th Street Bridge near Lockport, Illinois is under the control and management of the Division of Waterways of the Department of Public Works and Buildings of the State of Illinois, and that, at the time and place of the accident, Ludwig S. Sonce, the bridge tender, was an employee of the Division of Waterways.

The evidence in this case discloses with clarity, the consequences of man power failure. The negligence of the bridge tender in closing the bridge prematurely was the sole and proximate cause of the damage.

In the case of Joseph A. Mertel vs. State, 20 C.C.R. 285, a barrier gate on the Shippingsport Bridge at La Salle, Illinois fell on the truck of claimant causing damage. The Court applied the doctrine of Res Ipsa Loquitor, and allowed an award:

In the instant case, the negligence is apparent, and stands without contradiction.

An award is, therefore, made to the complainant, G. W. Gladders Towing Company, Inc., a Missouri Corporation, in the amount of $3,273.10.


text:
    (Nos. 4457, 4458, 4459, 4460,4461, 4462, 4463—Consolidated
    Rose Minnie Gray, Et Al, Minnie P. Aydt, Donald Linton, Et Al, Carolyn Sue Linton, Et Al, Rose Minnie Gray, Minnie P. Aydt, Et Al, Diana Gray, Et Al, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1954.

    R. Vance Hartke and Pyle and McCallister, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

The cases involved in this opinion were consolidated by order of the Court, as they involve claims for damages resulting from a common disaster.

In Case No. 4457 the complaint, as amended, seeks damages in the amount of $15,000.00 for the wrongful death of Malcolm B. Gray for the benefit of his widow, Rose Minnie Gray, and daughter, Diana Gray.

In Case No. 4458 the complaint seeks damages in the amount of $2,500.00 for injuries received by Minnie P. Aydt, a passenger in the car. The claim for damages was later increased to $7,500.00.

In Case No. 4459 the complaint seeks damages in the amount of $2,500.00 for injuries received by Donald Linton, a minor, who was a passenger in the car.

In Case No. 4460 the complaint seeks damages in the amount of $2,500.00 for injuries received by Carolyn Sue Linton, a minor, who was a passenger in the car.

In Case No. 4461 the complaint seeks damages in the amount of $2,500.00 for injuries received by Rose Minnie Gray, who was a passenger in the car. The claim was later increased to $7,500.00.

In Case No. 4462 the complaint seeks damages in the amount of $15,000.00 for the wrongful death of Violet Hengstenberg for the benefit of Minnie P. Aydt, her mother, and Rose Minnie Gray, her sister.

Case No. 4463 was dismissed by agreement of the parties.

The record consists of the several complaints, as amended, answer of respondent, transcript of evidence, numerous motions and orders, brief of claimants, brief of respondent, and commissioner’s report.

The complaints in substance allege the following:

1. That the State of Illinois failed to erect flasher- signal lights on the temporary bridge;

2. That the State of Illinois failed to erect reflector warning sighs;

3. That the State of Illinois failed to provide a watchman to warn automobiles of the dangers of the bridge;

4. That the State of Illinois negligently installed wooden runways on the bridge;

5. That the State of Illinois negligently failed to prevent the bridge road bed from becoming slick and slippery;

6. That the State of Illinois negligently permitted plaintiffs to use said bridge with knowledge that the bridge was unsafe and unfit for travel;

7. That the State of Illinois negligently constructed said bridge;

8. That the State of Illinois was negligent in inspecting said bridge.

The respondent interposed several defenses, which may be summarized as follows:

1. That the State was not negligent in any manner, as charged;

2. That all passengers in the car were engaged in a joint adventure, and that the driver of the car was negligent, thereby barring all claims.

3. That in Cases Nos. 4457 and 4462 the claims are barred by the Statute of Limitations, as the original complaint did not state a cause of action, and the amended complaint was not filed within a year of the date of death.

4. That the insurance company of the general contractor has paid the sum of $4,500.00 for a covenant not to sue, and that such payment inures to the respondent in the event any award is made.

The facts in these cases are as follows:

On June 30, 1950, Arnold Hengstenberg, Violet Hengstenberg, Donald Linton, Malcolm Gray, Rose Minnie Gray, Minnie Aydt and Carolyn Sue Linton left their home in Evansville, Indiana to drive to Bloomington, California to visit a relative. All in the party were closely related to one another. It is significant to note at this point that they crossed the bridge in question on their way going west.

On their return trip, they left an undisclosed point in the State of Kansas at 3 A.M. Arnold Hengstenberg and Malcolm Gray alternated at the wheel, and they arrived at a truck stop in Carmi, Illinois shortly before midnight. They had been driving constantly for twenty-one hours.

Three of the seven stopped for coffee, and, upon returning to the car, Arnold, also known as Bill, Hengstenberg took the wheel. His wife, Violet, sat at his right, and Donald Linton sat next to the right front door. In the back seat, the passengers were seated left to right as follows: Malcolm Gray, Rose Minnie Gray, Minnie Aydt and Carolyn Sue Linton. As the car was crossing the bridge, it went out of control, crashed through the guard rail, and fell 35 to 40 feet into the Little Wabash River. Arnold Hengstenberg, Violet Hengstenberg and Malcolm Gray were killed, and the- other four passengers received serious injuries.

Since the temporary bridge is the focal point of the alleged negligence, the Court believes it necessary to set out in length the nature of its construction. The Little Wabash River flows through the City of Carmi, Illinois in a southerly direction. In September of 1949 construction of a new bridge was started to carry the travel of Routes Nos. 1 and 460. A temporary bridge was built one block south of the regular bridge site. The temporary bridge was 493 feet in length, 24 feet in width, accommodating two lanes of vehicular travel; and, in addition, had a sidewalk 4 feet 4 inches wide on the north side for pedestrians. There were four runways extending the length of the bridge, each 30 inches wide, and built, of two by tens, with the edges beveled down to one eighth of an inch. At the extremities of the roadway portion of the bridge were hub-guards built of 8 inch timbers. The guard rail was built of 2 by 6 lumber bolted to 4 by 6 posts set 6 feet apart. The bridge had 3 lights, one at each end, and one in the middle.

The approaches to the bridge on the land side had received an application of calcium chloride to hold down the dust, which caused moisture to collect, and thereby made the wooden bridge floor slippery. To counteract this, the State applied a coating of hot asphalt and coarse sand to the runways to prevent the surface from becoming slippery, and it appears from the evidence that from tests made it was possible to stop a car travelling 30 miles per hour without skidding.

In the city of Carmi, Illinois, the State erected a series of 7 signs re-routing travel on Routes Nos. 1 and 460 across the temporary bridge. The last two signs are worthy of special mention. A 2 foot by 2 foot “slow” sign was erected 365 feet west of the approach to the west end of the bridge, and a 2 foot by 2 foot reflectorized sign “speed limit 15 miles per hour” was erected 85 feet from the west end of the bridge. Both of these signs were lighted by flares placed in front of them.

The final road condition that may well have been the proximate cause of the accident was the slippery surface of the roadway. The accident occurred at about 12:05 A.M. on the morning of July 14, 1950. At certain times of the summer “willow bugs” hatch at night, and live for just a few hours. The bridge was covered with countless thousands of them, and their bodies created such a slippery condition that State Police Officers found it difficult to walk across the bridge without slipping. By the same token, it is understandable that the roadway was similarly as slippery.

Returning to the record, the speed of the car driven by Arnold Hengstenberg is in dispute. Mrs. Aydt, who was seated in the middle of the back seat, testified that he was driving “not very fast, he was driving very slow”. She also stated that she was not in a position to see the road, and did not observe any of the signs heretofore mentioned.

Clarence Robinson, a State Police Officer, in answer to a hypothetical question, testified that in his opinion the car was being driven at a speed of not less than 30 miles per hour.

The evidence itself discloses the following: The car was driven in an easterly direction in the south lane of travel. It began to zig-zag, and crossed over the north lane. It jumped a hub rail of 3 inches, a water pipe of 3 inches; it crossed the 4 foot sidewalk, knocked down at least one 4 by 6 post, and thereafter fell in the river. This mute evidence establishes beyond doubt that the car was being driven faster than the posted speed limit of 15 miles per hour.

Complainants have not established by the evidence, or the authorities, that it is the duty of the State to erect flasher lights, or provide watchmen; nor have complainants shown that the State was negligent in the construction, operation or inspection of the said bridge.

To the contrary, the State has shown by the testimony of several engineers that the temporary bridge was constructed according to standard engineering principles, and was built to sustain two twenty ton highway trucks passing on the opposite lanes at the same time; and, in fact, the bridge had been inspected by State Engineers the day before the accident in question.

The law in Illinois is well settled regarding the duty of the State in the maintenance of its highways.

“The State is not an insurer of all accidents that may occur by reason of the condition of its highways. Beenes vs. State, No. 4377, opinion filed on October 5, 1951.

However, the State is negligent, if, having knowledge of dangerous conditions on its highways, it fails to warn users of the highways of such dangerous conditions. Pomprowitz vs. State, 16 C.C.R. 230; Rickelman vs. State, 19 C.C.R. 54; Rommel vs. State, No. 4306, opinion filed on February 9, 1951; Cruger vs. State, No. 4271, opinion filed on October 13, 1950, Cf: Mowery vs. City of Mounds, 245 Ill. App. 338.”

By posting warning signs that were adequately lighted, and treating the roadbed to prevent it from becoming slippery, the State has completely discharged its duty to build and maintain the roadbed in a reasonably safe condition.

The charge that the State failed to keep the roadbed from becoming slippery presents an unusual fact situation. As has been pointed out, the State coated the roadbed with hot asphalt and coarse sand for the particular purpose of furnishing a rough driving surface. However, the benefits were lost due to the phenomena of nature when the hatch of “willow bugs” coated the bridge in such quantities that it was impossible to walk on the bridge without slipping.

An “Act of God” is defined as follows: Words and Phrases, page 170:

“Act of God”. “Extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great draughts, lightning, earth quakes, sudden death and illness, have been held “Acts of God”, citing American Locomotive Co. vs. Hoffman.
An “Act of God” is in an event which could not happen by the intervention of man. Indiana I. & I. Railroad vs. Hawkins, 81 Ill. App. 570.”

In the instant case, the bug hatch was an “Act of God”. It came in the night time without warning, and lasted for but a few hours. The State did not have knowledge, actual or constructive, of this condition. To hold that the State should have anticipated this danger, and prepared for this short lived emergency, would be to hold the State a virtual insurer of all accidents.

The remaining charge that the State failed to build guard rails of sufficient strength is contrary to established law.

“Where an automobile has gotten out of control of the driver, and goes through a barrier, it is usually held that such accidents are so unusual that there is no duty imposed to erect such a barrier as would have prevented the automobile from leaving the highway.” 27 A.L.R. 342, Brigla vs. St. Paul, 134 Minn. 99.

Summarizing the evidence, the Court finds that the claimants were aware of the temporary bridge, as they had driven over it but a short while before the tragedy. The bridge was constructed according to sound engineering principles, and was maintained and inspected in a reasonable manner. The bridge was lighted. Warning signs were in place, and were lighted. The slippery condition of the roadbed was caused by a phenomena, which could not reasonably have been anticipated by the State. The automobile was being driven at a speed in excess of 15 miles per hour.

For the reasons set forth, all claims must be denied.


text:
    (No. 4503
    Olive A. Johnson, as Administrator of the Estate of Hayward Hailey Johnson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1954.

    Robert J. Harding and Middleton and Waters, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

The claimant, Olive A. Johnson, widow, brings this action as Administrator of the Estate of Hayward Hailey Johnson, deceased, for the wrongful death of plaintiff’s intestate (Chap. 70, Pars. 1 and 2, Ill. Rev. Stat., 1949). Her complaint was filed on March 10, 1952.

The accident, which resulted in the death of Hayward Hailey Johnson, occurred on March 12, 1951 at approximately the hour of . 10:40 P.M. on Route No. 157 and Belt Line 40, about % mile south of the northern junction of said Routes in the County of Madison and. State of Illinois. Route No. 157 is described as a 40 foot concrete highway, with four lanes running generally from north to south, with grass shoulders located on both sides.

Plaintiff’s intestate at the time and place aforesaid was driving and operating his 1950 Oldsmobile in a southerly direction along and upon said highway. He was engaged in educational work for the Methodist Church. On the evening of March 12, 1951, after conducting services at the Methodist Church in Gillespie, Illinois, he left Gillespie at about 9:15 P.M., and traveled a distance of between 35 to 40 miles before the collision occurred, which resulted in his death.

On March 12, 1951, Eugene A. Fritts and John Wolf were employed by the State of Illinois, Division of Highways of the Department of Public Works and Buildings, and assigned for maintenance work on Route No. 157 and Belt Line 40, the location where the accident occurred. Both of the State employees had worked on the highway in question on March 12, 1951. Due to the fact that it was misting and snowing on that evening, they were ordered to take the State truck, which was involved in the accident, and transport cinders for the purpose of cindering bridges, intersections and any slippery areas on said highway. However, in this regard, there was no evidence in the record as to the highway in. question being slippery. There was evidence that it was merely wet. It was not snowing at the time of the accident. The night in question was dark, but there was no fog or precipitation. It is evident that vehicles traveling upon the highway with proper lights were visible within a safe driving range, and could readily have been observed.

At the time of the accident, the State truck was loaded with cinders, and was equipped with a spreader attachment located on the back portion of the truck, which was operated by a chain and sprocket. A short time prior to the accident the chain, which ran off of the sprocket, became loose and fell upon the highway. Mr. Fritts and Mr. Wolf had located the chain, and stopped the truck facing in a southerly direction in the outside traffic lane, being on the extreme west side thereof. While affixing the chain to the sprocket, they saw plaintiff’s intestate’s car traveling in the same traffic lane in which the truck was parked.

Prior thereto, and at said time, the State truck was equipped with the following lights: A blue revolving light located on the top of the cab, three lights on the rear portion of the cab, two clearance lights on the body, one tail light, and two head lights; and, in addition thereto, fluorescent adhesive strips were affixed to the rear portion of the truck.

The middle of the front portion of claimant’s intestate’s automobile was damaged, as was the middle of the rear portion of the State Highway truck. There was no evidence of skid marks made by plaintiff’s intestate's automobile, or any evidence of turning, or attempting to avoid striking the State truck. There was offered, however, the testimony of William War-field, who was in the ambulance with plaintiff's intestate. When asked how the accident happened, Mr. Johnson stated that he must have fallen asleep.

The respondent first contends an exemption under the provisions of the Uniform Act Regulating Traffic on Highways, being Chap. 95½ Par. 120, Ill. Rev. Stat., 1949.

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

Respondent further contends that claimant failed to prove that plaintiff’s intestate was in the exercise of due care and caution just prior to and at the time of the accident in which he was injured, and which ultimately resulted in his death.

Claimant, on the other hand, contends that, at the time of the accident in question, the State employees were not engaged in performing services, which would exempt them from the provisions of the Uniform Act Regulating Traffic on Highways. We are of the opinion that the Uniform Act Regulating Traffic on Highways would apply to the State employees just prior to and at the time of the accident.

In considering all of the competent testimony introduced by claimant, we are of the opinion that claimant has failed to prove by a preponderance or greater weight of the evidence that Hayward Hailey Johnson was free from contributory negligence. The only.testimony offered by claimant as to freedom from contributory negligence on the part of plaintiff’s intestate was her testimony as to his careful habits in the operation of motor vehicles, and the length of time that it took for him to drive from Gillespie to the scene of the accident.

Our Courts have repeatedly held that even though respondent violated a State statute, that that in itself would not entitle claimant to recover damages where claimant’s intestate was guilty of negligence, which contributed to his injuries and resulting death. Before claimant could recover in this case, there would have to be some showing that he did something to avoid striking the truck. Inasmuch as the highway was not slippery, but merely wet, and the truck was visible for a distance within a safe- driving range by reason of the lights burning thereon, which seemed to be sufficient in number, had claimant’s intestate been looking, he would have seen the truck on the highway, and could have avoided the accident.

“The manifest purpose of the Wrongful Death Act is to grant an action for the exclusive benefit of the widow, or next of kin of the deceased person. An action cannot be maintained under our Wrongful Death Act, except in cases where the injured party himself could have maintained the action had death not ensued, the cause of action being created in favor of the personal representative of the deceased against anyone causing the death by wrongful act, and contributory negligence of the deceased is a bar to recovery under the Act.” Howlett vs. Doglio, 402 Ill. 311, 319.

We, therefore, deny claimant’s claim for an award under the Wrongful Death Act.