text:
    (No. 5080
    Lincoln Chapter, Logan County Federation of Sportsmen’s Clubs, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

    Robert J. Woods and Roger W. Thompson, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant, Lincoln Chapter, Logan County Federation of Sportsmens Clubs, an Illinois Not-For-Profit Corporation, seeks recovery of $970.18 for damages caused to personal and real property, owned by claimant, on June 12, 1962 by Robert Bluemel, an inmate of the Lincoln State School, Lincoln, Logan County, Illinois.

The complaint alleges that the State of Illinois, by and through its agents and servants, failed to exercise reasonable care in preventing the escape of the inmate, Robert Bluemel, and that, as a proximate result of this negligence, he escaped and caused damage to claimant’s property.

The evidence shows that, on June 12, 1962, Robert Bluemel, aged 41, was a patient of the Lincoln State School, which was operated by the State of Illinois as an institution for mentally retarded persons. He had been a patient there since his admission in 1953. At about 3:00 P.M. on June 12, 1962, Bluemel, who was quartered in the town portion of the Lincoln State School, escaped from the institution, and, while absent, caused damage to the property, owned by claimant, by setting fire to its clubhouse, and smashing various items of personal property within the building. The patient was apprehended about 6:30 P.M. the same day by security officers from the Lincoln State School, and was returned to the institution.

Mr. Robert Endres, Chief of the Safety Protection Service at the Lincoln State School, testified that there were about 3,000 to 3,200 patients at the town unit of the school. Another unit of the school is located at a farm, approximately three miles north of the town unit. He stated that there were normally about two men from his department stationed at the town unit. The men in his department are charged with the safety and protection of the patients and property, and the public in general, and attempt to see that the patients are kept within their various units.

According to Endres, Lincoln State School is not a penal institution, and, although there is a fence around it, at least two of the four gates are open at all times. There were no guards or attendants at the gates or approaches.

Endres testified that, since Robert Bluemel was admitted to the institution, he had five previous unexcused absences or escapes, the last one occurring on June 4, 1962, when he escaped, and was returned on the same day. The other escapes occurred in 1953, 1955 and 1960.

In the town unit there is one maximum security building, called Smith Cottage, and a second designated as North Wing. The third floor of North Wing is a locked ward, and the remaining two floors are open. Bluemel escaped from the second floor of North Wing. On the second floor of North Wing there was at the time of the incident usually one attendant to supervise 70 or 80 patients. In the opinion of the witness, additional men or means were needed to prevent patients from wandering off the grounds, and doing damage to persons or property.

According to the report received by Endres, Robert Bluemel was working in the storeroom of the second floor of North Wing, and received permission from an employee to go to his quarters on the third floor of North Wing, but he proceeded, instead, to go out of the building and through the open gate. Had he been in his quarters on the third floor, he would have been locked in. Since Lincoln State School is an open institution, patients are permitted on the grounds, but not off the grounds without special permission, and then only when accompanied by an employee. The decision as to whether or not a patient be kept in a locked ward is made by the Superintendent, who is a medical doctor.

William Chambers, Chief Psychologist at the Lincoln State School, testified that to his knowledge a psychiatrist had not been employed at the Lincoln State School for two or three years preceding June 12, 1962, although possibly one might have come in on consultation. While Robert Bluemel was at the Lincoln State School, he was tested one time in June, 1953. Mr. Chambers saw Bluemel on May 14, 1958 to evaluate his mental condition, and concluded he was diagnostically inadequate, with paranoid symptoms, and was developing a psychosis.

Mr. Chambers summarized Bluemel’s history as follows: Robert Bluemel came to Lincoln State School from the Illinois Security Hospital on a transfer on June 1, 1953. He was a cooperative individual at the Security Hospital. He had originally been committed to the Dixon State School on March 25, 1930 by the Circuit Court of Cook County. His commitment was occasioned by frequent truancy from home, and failure to adjust in several foster home placements. At Dixon his over-all adjustment was very poor during his entire stay. He fought other patients, escaped frequently, repeatedly destroyed property, constantly engaged in malicious mischief, without known provocation, and was a chronic aggressive homosexual. He suffered gonorrhea in 1935, which developed into meningitis. He suffered gonorrhea again in 1938 and 1941 and infected many other patients. He also contracted syphilis about that time. Because of this behavior, he was transferred to the Illinois Security Hospital on January 1, 1950. The specific incident, which caused this transfer, was that he escaped from Dixon to Wisconsin, and, while on escape, burglarized a filling station, stole a car, and accosted a young girl in a restaurant. He also admitted that he had burglarized a fishing cabin, and had stolen articles of clothing, a gun, and a butcher knife. In June, 1955, he was given a trial on wage placement in a nursing home, and was returned in August of that year, because of an unauthorized absence from his job.

On June 4, 1962, he escaped, and was apprehended, and punished in Smith Cottage. On his release, he was angry, because he was to be placed on a locked floor of North Wing, instead of being returned to the second floor, and to his job in the storeroom. He escaped again on June 12, 1962, and entered the Sportsmen’s Club near the institution. There he destroyed articles of furniture, tore an American flag, and set it afire. He stole food and a large hunting knife, and threatened a woman and her daughter with this knife in an attempt to get them to drive him to Springfield. He bragged about his attempt to assault the security guards, who came to apprehend him, and admitted that he threatened them with the knife, which he stole from the premises. He made repeated homicidal threats against “American Schwein”, spoken in pseudo-German, and hinted about his private communications with Nazi leaders.

After the escape in question, Chambers conducted a full interview with Bluemel, and suggested that he be transferred to the Illinois Security Hospital for his protection and the protection of others.

In Chambers’ opinion, Lincoln State School lacks sufficient staff in several areas of functioning. He stated: “It turned out that Robert needed much more supervision than we gave him. Robert was in Smith Cottage, and participated in our rehabilitation, and he was released to work in connection with rehabilitation proceedings there. This meant that he was allowed to return to the second floor of North Wing and to his job, where he had undue freedom, and then he was, for one month, in solitary confinement in the night time. Then the decision was made to have him leave Smith Cottage, and be on the locked floor, which, on the face of it, I didn’t think he was capable to adjust to this freedom in the daytime, and then being locked up in the evening. What had happened was the decision of how Robert was to be handled was made at different places and according to different programs, and it is not like we would like it to be — in other words, the consistency of it.”

Chambers further testified that five psychologists are employed at Lincoln State School for 5,200 to 5,500 patients. When Chambers interviewed Bluemel in 1958, he did record a finding, which would indicate a disturbed personality, which might be damaging to people and property. In his opinion there was not sufficient personnel at the Lincoln State School, either before or during June, 1962, to study and evaluate the mental conditions of the patients at the institution.

Before recovery may be granted, claimant must prove by a preponderance of the evidence that the State, by and through its servants, was negligent in failing to exercise reasonable care to prevent the escape of the patient, and that the negligence of the State was the proximate cause of the damage inflicted upon claimant’s property.

Respondent presented no testimony in the proceedings, but joined in the offer of an exhibit.

In Redebaugh vs. State of Illinois, 22 C.C.R. 306, this Court said: “The Department of Public Welfare owes a duty to the public to see that inmates of a State School do not escape, and cause injury to others.” The Court further stated at page 308: “Since respondent did not offer any evidence in rebuttal that would show that reasonable efforts were made to prevent the escape of the inmates, or any other facts or circumstances surrounding their escape, the Court must conclude that there were no facts and circumstances.”

The Court has also held in similar factual situations that, if claimant makes a prima facie case, and respondent offers no evidence as to the circumstances surrounding the escape, it will conclude that claimant has sustained the burden of proof. Carl Paulus vs. State of Illinois, No. 4945; U.S.F. & G. vs. State of Illinois, 23 C.C.R. 188.

Both the official in charge of security at the Lincoln State School and the Chief Psychologist testified that the patients were not adequately supervised, and the psychologist stated that there was not sufficient personnel to evaluate the mental conditions of the approximately 5,000 patients in residence at the institution.

In view of the patient’s history: five escapes, one just eight days prior to the incident in question, his homosexual activities, his paranoid symptoms, and the findings of a disturbed personality, which might be damaging to people and property, it was reasonable to anticipate that allowing him freedom of the Lincoln State School, which is an open institution, might or could result in damage to persons or property.

It is the opinion of the Court that respondent was negligent in failing to exercise reasonable care to prevent the escape of Robert Bluemel, and that this negligence was the proximate cause of the damages inflicted upon the property of claimant by the inmate, Robert Bluemel.

The Departmental Report, submitted by Dr. Joseph Albaum, Superintendent of Lincoln State School, states that the estimate of damages caused by Robert Bluemel to claimant’s property is approximately $1,000.00, and that the figure of $970.18, listed by the bill of particulars, is correct. The Report states: “The claimant is justly entitled to the amount therein.”

The claimant, Lincoln Chapter, Logan County Federation of Sportsmen’s Clubs, an Illinois Not-For-Profit Corporation, is, therefore, awarded the sum of $970.18.


source: Caselaw Access Project

author: Pezman, J.

license: Public Domain

text:
    (No. 5166
    St. Francis Hospital, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

    Woodruff A. Burt, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On April 24, 1963, it was determined by the Illinois Public Aid Commission, by and through its office in Stephenson County, Illinois, that one Herman Blaser was eligible to participate in its Program of Assistance to the Medically Indigent Aged. Claimant in the instant case was so notified of the acceptance of the responsibility for payment of its charges by the Department of Public Aid, and proceeded accordingly.

A complaint in this matter was filed in the Court of Claims on June 19, 1964 in which request for payment of the sum of $601.45 was made, which sum represented charges for care and services, as well as for drugs and medical supplies, furnished one Herman Blaser for the periods of March 12, 1963 to March 29, 1963 and May 28, 1963 to June 30, 1963. Upon application to the Court, an order was entered granting claimant permission to strike the ad damnum clause of its complaint, and to insert in lieu thereof a request for payment of the sum of $467.12.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in essence, supports the position of claimant in this matter, and further indicates that the sum of $467.12 is still due and owing claimant. A further amendment to the complaint, as well as the Departmental Report filed on September 21, 1964, establish clearly the fact that the appropriation from which this claim could have been paid had lapsed on September 30, 1963.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, St. Francis Hospital, an Illinois Corporation, is, therefore, hereby awarded the sum of $467.12.


text:
    (No. 5167
    St. Francis Hospital, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

    Woodruff A. Burt, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On August 12, 1963, it was determined by the Illinois Public Aid Commission, by and through its office in Stephenson County, Illinois, that one Jacob Kraft was eligible to participate in its Program of Assistance to the Medically Indigent Aged. Claimant in the instant case was so notified of the acceptance of the responsibility of its charges by the Department of Public Aid, and proceeded accordingly.

A complaint in this matter was filed in the Court of Claims on June 19, 1964 in which request for payment of the sum of $532.35 was made, which sum represented charges for care and services, as well as for drugs and medical supplies, furnished one Jacob Kraft for the period of May 28, 1963 to June 28, 1963. Upon application to the Court, an order was entered granting claimant permission to strike the ad damnum clause of its complaint, and to insert in lieu thereof a request for payment of the sum of $528.04.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in essence, supports the position of claimant in this matter, and further indicates that the sum of $528.04 is still due and owing claimant. A further amendment to the complaint, as well as the Departmental Report filed on September 24, 1964, establish clearly the fact that the appropriation from which this claim could have been paid had lapsed.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, St. Francis Hospital, an Illinois Corporation, is, therefore, hereby awarded the sum of $528.04.


text:
    (No. 5179
    Cargill, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 10, 1964.

    Sorling, Catron and Hardin, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

The complaint in this case was predicated upon a written contract entered into on October 30, 1962 with the Department of Public Works and Buildings, Division of Highways, whereby claimant, Cargill, Incorporated, agreed to sell to respondent 96,000 pounds of snow and ice salt at a total price of $640.80.

The Report of the Division of Highways, dated September 17, 1964, and signed by A. R. Tomlinson, Supervisor of Claims, states that the rock salt was duly delivered, as ordered. It acknowledges that the amount due therefore was the usual and customary charge for rock salt in Whittington, Illinois, the community to which it was delivered; and, further, that the only reason that the bill was not paid was due to the fact that the invoice therefore was not received by the Division of Highways until the appropriation from which payment could have been made had lapsed.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in part, is as follows:

“The State of Illinois, Division of Highways, was unable to make payment pursuant to said agreement, because the appropriation for it had lapsed on September 30, 1963, and by that reason alone claimant has been denied payment.
“Claimant is justly entitled to the amount claimed, namely, $640.80, after allowing all just credits.”

This Court has repeatedly held that, where a contract has been (I) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964; The Pittsburg and Midway Coal Mining Company, A Corporation, vs. State of Illinois, Case No. 5147, opinion filed July 24, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Cargill, Incorporated, is, therefore, hereby awarded the sum of $640.80.


author: Dove, J.

text:
    (No. 5098
    Gino Ascani and Mary Ascani, Claimants, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1965.

    Knight, Ingrassia and Roszkowski, Attorneys for Claimants.
    William G. Clark, Attorney General; John C. Connery, Special Assistant Attorney General, for Respondent.
   Dove, J.

On March 25,1963, claimants filed their complaint, consisting of Two Counts, in this Court seeking damages for loss of value to claimants’ property arising from the construction of a bridge over the Rock River, and loss of business in claimants’ grocery store by reason of such construction.

The facts of the case are as follows:

In 1946, claimants purchased, and are still owners of the following described real estate:

Lot Two in Block Twenty-two of Dunbar Addition to the City of Rockford, situated in the City of Rockford, County of Winnebago and State of Illinois.

This property, known as 790 and 792 North First Street, Rockford, has a frontage of 66 feet facing easterly on the west side of North First Street, and runs westerly a distance of approximately 155.75 feet to an alley in the rear of the premises. It is improved with two separate dwellings, a grocery store building, and a building in the backyard. The property is situated in an area where there are many Class A residences occupied by one family, and a few multiple dwellings.

In 1961, the State of Illinois commenced the construction of a bridge across the Rock River and an easterly approach to the bridge, and completed the same in 1962. Prior to the construction of the public improvement in question, Caroline Street, an east-west street in the City of Rockford, intersected Nortih First Street one lot north of claimants’ property. The State of Illinois acquired Title to the lot immediately north of claimants’ property (purchasing other pieces of property in the area as well), and built the easterly approach to the bridge.

The approach is an embankment approximately fifteen feet higher than the original surface of Caroline and North First Streets. At the west end of the Ascanis’ property, where the new bridge abuts, the slope reaches a height of eighteen feet above the original surface of the ground. The embankment is so constructed that it occupies the whole width of Caroline Street and the lot immediately north of claimants’ property, Caroline Street is completely obstructed, and its use cut off from claimants’ property. North First Street now swings to the southeast, and ties in with North Second Street, one block east of North First Street.

The jurisdiction of the Court of Claims to hear and determine claims for consequential damages to property not taken arising out of the construction of a public improvement is affirmed in Tenboer vs. State of Illinois, 21 C.C.R. 353. The proper measure of damages, if any, is the difference between the fair cash market value of the property immediately before and after the improvement. Tipps vs. State of Illinois, 21 C.C.R. 581.

Two experienced realtors, Lee Nelson Daniels and Frank G. St. Angel, testified that the market value of claimants’ property before the construction of the improvement was $20,000.00, and that the market value of the property after the construction of the improvement was $15,000.00, the difference being a loss of $5,000.00 in market value. On cross-examination, each admitted that $3,000.00 of the loss might be attributable to a general decline in market values in the neighborhood independent of the construction of the bridge and the approach thereto, but that $2,000.00 of the loss was unmistakably attributable to the adverse effect of the construction on claimants’ property. It was stipulated by claimants and respondent that if one Clarendon Mower, Jr., a Rockford realtor and appraiser, whom the State proposed to call as a witness, but who was unavailable at the time of the hearing, was to testify, he would testify that “in his experience the damage attributable to the public improvement, based on before and after valuation of the Ascani property, would not exceed two thousand dollars.”

Photographs of the property and immediate area taken before and after the construction show dramatically and conclusively the adverse effect of the improvement on claimants’ property.

Considering the unanimity of testimony that $2,000.00 was the loss of market value to claimants’ property arising from the construction of the bridge over the Rock River and its eastern approach (this testimony being supported vividly by the photographs in evidence), claimants are entitled to an award of $2,000.00.

We find no merit to the claim for damages because of “permanent loss of business due directly to the obstruction of both Caroline and North First Streets, abutting and in front of claimants’ property.” Mr. Ascani closed his grocery store in July of 1961 before the construction started, and there is no evidence in the record of loss of business.

An award is, therefore, made to claimants in the sum of $2,000.00.


text:
    (No. 5181
    Arthur F. Weiskopf, d/b/a J. F. Weiskopf and Son, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1965.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

The complaint filed herein alleges that there is now due and owing claimant from respondent the sum of $1,050.00. Said amount represents charges for installing certain heating equipment at the State Museum Building, which is located at the northeast comer of Spring and Edwards Streets in the City of Springfield, Illinois. The work in question was covered by a contract entered into on June 27, 1963, and designated by respondent as authorization No. SA 2500.

Respondent’s Departmental Report, dated October 15, 1964, and signed by Francis S. Lorenz, Director of the Department of Public Works and Buildings, acknowledges that the installation of the heating equipment was completed by claimant in accordance with plans and specifications. It further states that claimant did not present a bill for the payment of said work until November 9, 1963, and that the funds from which it could and would have been paid had lapsed as of September 30,1963.

Respondent has stipulated in writing with claimant that the Report of the Department of Public Works and Buildings shall constitute the record in the case.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Arthur F. Weiskopf, doing business as J. F. Weiskopf and Son, is, therefore, hereby awarded the sum of $1,050.00.


text:
    (No. 5184
    Theodore Dirksen, George Dirksen, Ann Dirksen, Partners, d/b/a A. Dirksen and Sons, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1965.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

The complaint filed herein alleges that there is now due and owing claimant from respondent the sum of $2,371.26. Said amount represents charges for floor coverings and draperies, as well as the installation thereof, in a residence located on the State Fair Grounds, Springfield, Illinois.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“It is hereby stipulated and agreed by and between claimant, Theodore Dirksen, George Dirksen, Ann Dirksen, Partners, d/b/a A. Dirksen and Sons, by its attorneys, Giffin, Winning, Lindner and Newkirk, and respondent, State of Illinois, Department of Agriculture, by William G. Clark, its Attorney General, that the report of the Department of Agriculture, signed by H. E. Paxton, General Auditor, dated December 11, 1964, which has been filed in this cause pursuant to Rule 15, shall constitute the record in the case.
“It is further stipulated and agreed that this claim arises from four contracts duly entered into by claimant and an authorized employee of the said department, each contract calling for sale of the merchandise referred to in the said departmental report, and the installation of said merchandise, all of said contracts aggregating in total the sum of $2,371.26; the said sum was not paid by the department solely because of a lapse of available appropriations.”

The report of the Department of Agriculture, referred to in the stipulation, signed by H. E. Paxton, General Auditor, acknowledges that the goods were received and services rendered, and that the charges therefor were the usual and reasonable charges in the community where furnished. It further indicates that the invoices for such goods and services were received by the Department of Agriculture after the appropriation for the biennium had lapsed, and, further, that said invoices would have been vouchered and paid in the regular course of business, if they had been received at the appropriate time.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Theodore Dirksen, George Dirksen, Ann Dirksen, Partners, d/b/a A. Dirksen and Sons, is, therefore, hereby awarded the sum of $2,371.26.


text:
    (No. 5185
    R. L. Corty and Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1965.

    R. L. Corty and Company, Claimant, pro se.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

During the months of February and April, 1963 the State of Illinois, through its Department of Public Works and Buildings, Division of Highways, contracted with R. L. Corty and Company, a Corporation, claimant in the instant matter, for certain materials and rental equipment. The complaint filed herein alleges that such services and materials were furnished, and that there is now due and owing claimant from respondent the sum of $173.02.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

"R. L. Corty and Company and the State of Illinois, Department of Public Works and Buildings, Division of Highways, entered into an agreement at the special instance and request of said Division of Highways, which instructed R. L. Corty and Company to perform sales, service and rental of equipment, as set forth in the original complaint, marked exhibits Nos. 1 through 4, inclusive.
“The terms of the foregoing agreement and the acceptance thereof by the State are fully set forth in the complaint herein as exhibits Nos. 1 through 8, inclusive.
“R. L. Corty and Company, after fully performing its obligations under the said agreement, rendered and mailed a bill to the State for the sum of $173.26, a true copy of claimant’s office copy of which is attached to the complaint filed herein, and marked exhibits Nos. 1 through 4, inclusive.
“The Seventy-second biennium appropriation out of which the bill was payable had lapsed at the time the bill was mailed, and the funds to pay said bill were no longer available to the Division of Highways, and R. L. Corty and Company was so advised by letter, a true copy of which is attached to the complaint herein as exhibit No. 6.”

An amendment to the stipulation of facts was later filed in this case, in which it was agreed that the proper amount due claimant was the sum of $171.90. The difference of $1.12 represents sales tax, which the State of Illinois is not obliged to pay.

A report of the Department of Public Works and Buildings, Division of Highways, signed by A. R. Tomlinson, Supervisor of Claims, acknowledges that each of the items in question was purchased by persons having proper authority, and states that no part of the bills have been paid by the Division of Highways, or any other State agency, for the reason that the bills were not presented, scheduled, and processed until after the appropriation for the payment had lapsed. The Departmental Report further points out that, as of September 30, 1963, there was an unobligated balance of sufficient amount in the appropriation from which claimant’s invoice could and would have been paid.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, R. L. Corty and Company, a Corporation, is, therefore, hereby awarded the sum of $171.90.


text:
    (No. 5197
    Memorial Hospital of Du Page County, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1965.

    Erlenborn, Bauer and Hotte, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On May 6, 1964, claimant, Memorial Hospital of Du Page County, a Corporation, presented its statement to the Department of Public Aid for hospitalization services rendered one Bridget A. Herley. Although the Department had determined that the subject patient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, it denied the claim for services on the grounds that the appropriation for the biennium had lapsed at the time the statement was received by its office.

Thereafter, on November 10, 1964, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $2,624.61, representing charges for the hospitalization services furnished said Bridget A. Herley for the period of March 21, 1963 to June 15, 1963, inc.

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which, in essence, supports the position of claimant in this matter. It indicates that claimant did furnish the services to one Bridget A. Herley, and that the reasonable and equitable charge for such services was the sum of $2,624.61. The stipulation reflects the further fact that the appropriation from which payment could have been paid had lapsed prior to the time the statements were submitted. These facts are not refuted by the Department of Public Aid in the Departmental Report filed in this case on December 30, 1964.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital Association, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; American Oil Company, Inc., A Corporation, vs. State of Illinois, Case No. 5109, opinion filed June 26, 1964. It appears that all qualifications for an award have been met in the instant case.

Claimant, Memorial Hospital of Du Page County, a Corporation, is, therefore, hereby awarded the sum of $2,624.61.


text:
    (No. 4894
    George W. Main, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    Pree and Pree and Joe Crain, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Dove, J.

This claim was brought by George W. Main, a farmer of Johnson County, Illinois, for flooding damages to his farm land alleged to have been caused by certain constructions approved and made by the Division of Highways, Department of Public Works and Buildings of the State of Illinois.

Claimant owns a 1,500 acre farm on the north side of the Cache River in Johnson County. The farm is divided by Illinois State Bond Issue Route No. 147. During the early part of 1956, claimant entered into an agreement with the Department of Public Works and Buildings to lease a strip of ground twenty feet wide along the west side of Route No. 147. The Cache River bisected the leased property at midpoint.

By virtue of this agreement, the Division of Highways entered upon the land to construct a temporary detour bridge, while the original bridge on Route No. 147 was being replaced. From the testimony, it appears that the initial construction began on January 3, 1957. The testimony indicates that, after the clearing process and the construction of the detour bridge, two earthen dams were constructed across the Cache River on either side of the construction area. The purpose of the dams was to provide the workmen with a dry working area by pumping out the water between the two dams. It appears that the earthen dams were built in the Spring of 1957. At a later date the earthen dams were replaced by wooden coffer dams, which remained until November, 1959.

When the claimant noticed the construction of the dams, he complained that they would obstruct the drainage system of the area. But, his objections to the resident engineer, State Highway Department employees in Carbondale, and in Springfield to the Department of Public Works and Buildings, were to no avail.

During October, 1957, claimant’s farm land was partially flooded. In the Spring of 1958, the area was again flooded, and, after the crops were replanted, flooding occurred again in October, 1958, which destroyed the crops for the third time.

Claimant contends that the damming up of the Cache River caused depreciation of the value of the farm land, as well as crop damages.

Testimony was offered, which showed that, although the area has drainage problems, and through the years there has been occasional spotted flood damage, the farm had not experienced flooding of this nature during a crop season since 1928.

However, evidence was also introduced, which established that this particular drainage area experienced abnormally high rainfall during the crop seasons of 1957 and 1958. Such high rainfall had not been encountered since the 1928 crop season. It is difficult, however, to compare the drainage system of 1928 with that of 1957 and 1958, since, during the interim, the area had undergone many changes. These include new drainage ditches, and culverts laid by the State, the railroad, and private individuals, as well as levies and cut-offs between the rivers and streams. The consideration of the case must also include the fact that the coffer dams were not removed until November, 1959, and that no flooding occurred during the crop season of 1959.

The difficulty, of course, lies in establishing the causation of the flooding. Claimant alleges that it was caused by the dams constructed across the river. Respondent has answered that the cause was not the dams, but rather the heavy rainfall. Both parties have introduced into evidence a myriad of exhibits and data to establish their respective positions. We believe that the weight of tire evidence establishes that the construction of the dams was the primary cause of the flooding.

The determination of the amount recoverable by the claimant is more difficult. Although it is a well established maxim of law that damages, to be recoverable, must be actual, and not speculative or uncertain, a distinction has been drawn between uncertainty as to cause and uncertainty as to amount. Philadelphia and Reading Coal and Iron Co. vs. Calumet Shipyard and Dry Dock Co., 339 Ill. App. 142, 88 N.E. 2d 891 (1949).

In the present case, claimant has exercised great diligence to prove his loss. However, by the very nature of the facts, absolute certainty is impossible. In such cases, it has been held that difficulty in ascertaining the amount of damages is not fatal to claimant, once the causation has been established. Johnston vs. City of Galva, 316 Ill. 598, 147 N.E. 453 (1925).

The evidence shows that approximately 140 of the cultivated acreage was flooded in 1957 and 1958. It was also shown that in past years there has been crop damage to a portion of this 140 acres during periods of high rainfall. This lower area consists of approximately 20 acres. The weight of the evidence shows that the cause of the remaining damage can be attributed to the construction of the dams. We are of the opinion that the State of Illinois is liable for 120 acres of crop loss in both years, 1957 and 1958. This is a total crop loss of 240 acres for the two years.

Claimant testified that corn and soy beans were alternately planted on the farm. His testimony shows that the average yield would amount to $80.00 per acre, less the cost of planting and harvesting in the sum of $4,800.00, for a total amount of $14,400.00. To this must be added the cost of replanting during 1958 in the amount of $3,600.00.

Claimant also alleges that the fair market value of the farm was depreciated by the flooding. However, it was shown that no permanent damage resulted to the farm land, and we are of the opinion that claimant’s allegations are without merit.

An award is, therefore, entered in favor of claimant, George W. Main, in the sum of $18,000.00.


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    (No. 5000
    Joseph E. Walls, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    Lansden and Lansden, Attorneys for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $15,000.00 as damages for the traumatic amputation of the end of his left ring finger, and for injuries to other fingers on his left hand. The accident occurred while claimant, then an inmate at the Illinois State Farm, Vandalia, Illinois, was pushing a piece of wood through a jointer or buzz planer, as one of the operations in shaping it. The jointer-planer was a part of the equipment in the carpentry shop at the institution. Claimant contends that his injuries resulted from the negligence of respondent, and that he was not guilty of contributory negligence, nor did he assume the risk of injury.

Respondent contends that claimant, Joseph E. Walls, has not proved any acts or omissions of respondent, which were the proximate cause of the accident, and further contends that claimant has not proven his own freedom from contributory negligence.

The facts indicate that claimant was operating a jointerplaner in the carpentry shop of the institution. In pushing a piece of wood through the planer, his left hand slipped into the blades of the machine severing the entire distal phalanx of the left ring finger even with the base of the nail, and the tips of the left index, middle and little finger of the left hand were lacerated. Claimant was treated at the institution hospital on April 28, 1961, and was released to return to his duties at his own request on May 15, 1961. Claimant was alone in the carpentry shop at the time of the accident. There is considerable testimony indicating that there was never a guard over the blades of the jointerplaner.

Claimant introduced into evidence, subject to the objection of respondent, certain Health and Safety Rules of the Industrial Commission of Illinois. This Court will take judicial cognizance of these Rules as being in effect on the date of the accident, April 28, 1961. Part R, Chapter 3, Section 3, Rule 11, reads as follows: "Jointer or buzz planer: Class A — (a) A cylindrical cutting head shall be provided; (b) A guard which adjusts automatically over the cutting head shall be provided. All exposed parts of cutting head shall be guarded.”

Testimony developed throughout the hearing that claimant had worked in the carpentry shop since his arrival at the institution, and that there were numerous safety signs present in the room and close to the machine upon which claimant was working. Witnesses for respondent conceded that the jointer had not been equipped with a safety guard, but could have been so equipped. Respondent bases its entire case upon the alleged failure of claimant to establish that he was free and clear of contributory negligence. There was nothing in the testimony, disclosed by the transcript, indicating the presence of contributory negligence on the part of claimant, nor can we presume, through the absence of such evidence, that claimant has failed to establish his freedom from the same.

It is apparent that respondent has been guilty of violation of the Rules of the Health and Safety Act, and in this manner can be held to be negligent. The two major cases in the Court of Claims in recent years dealing with this specific problem were Moore vs. State of Illinois, 21 C.C.R. 282, and Morris vs. State of Illinois, 23 C.C.R. 91. This Court in the Moore case held as follows:

“Although we have held that claimant cannot sue for a violation of the Health and Safety Act, the fact that respondent itself, acting through the Industrial Commission, has determined that food grinders not mandatorily equipped with hoppers are dangerous to those using them is an express recognition by respondent that food grinders should be equipped with hoppers to be rendered safe.
“We will not create an anomaly by holding that a food grinder without a hopper used by private persons is dangerous, while a similar unequipped grinder used by respondent is not dangerous. Respondent should in this case be held to the same standards, as it by law compels others to abide by.”

The Morris case held that if claimant was assigned to work under unsafe conditions, was not guilty of contributory negligence, and was injured, then respondent would be guilty of negligence. The late Joseph J. Tolson, Chief Justice, in his opinion refers to the reasoning in the Moore case, and rules as follows:

“The Health and Safety Act makes specific mention of jointers or buzz planers, and requires that all exposed parts of the cutting head shall be guarded. It is difficult for this Court to justify two standards of conduct by the State, one for workers outside prison walls, and another for inmates.”

Claimant is awarded the sum of $800.00.


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    (No. 5022
    William F. Porter, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    Frank E. Trobaugh and Stephen E. Brondos, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, William F. Porter, seeks to recover the sum of $325.00 for the death of a Hereford cow, allegedly resulting from a test for “Bang’s Disease” by a State veterinarian. Respondent contends that claimant has failed to establish the cause of death of the cow, and, further, that malpractice cannot be proven without expert testimony. The amended complaint of claimant invokes the doctrine of res ipsa loquitur as applicable to the facts and circumstances in this case, and seeks damages for the death of the cow in the above amount.

Claimant was cooperating with the plan for tire eradication of bovine brucellosis, otherwise known as “Bang’s Disease”. Claimant’s cow weighed around 1,200 pounds, and was five years old. On January 22, 1962, Dr. William Prusaczyk, a veterinarian employed by the State of Illinois, administered tests for brucellosis and tuberculosis to claimant’s herd of cattle. In administering these tests he used a Silver King cattle chute, which was owned by the State of Illinois. The chute was known as a bleeding chute, and was approximately seven feet long, two and one-half feet wide, and six feet high. The cows or other animals to be tested were led into this chute, which had a horizontal bar that came down over the animal’s neck holding it in place, and with a yoke at the bottom to keep the animal as rigid as possible during the test.

On the date in question, one of claimant’s cows was led into the chute, and its head fastened in the head gate to enable the veterinarian to withdraw sample blood. At this time the veterinarian, Dr. William Prusaczyk, noticed the air intake of the cow was restricted, and both he and claimant testified that the tongue of the cow was protruding from its mouth. The veterinarian testified that he immediately released the cow to relieve the pressure, but the cow collapsed in the chute, and, when she went down, it looked to him like there was a considerable amount of pressure. He further testified that the cow started to recover with normal breathing, displayed bright eyes, and that he let her stay at the bottom of the chute for about five minutes. When they tried to get the cow up, she collapsed and died within a minute or two. Ten minutes elapsed from the time the cow entered the chute until the time it died. The veterinarian testified that, from the time the cow was driven into the chute, it was entirely under his control, and Mr. Porter, the claimant, had nothing to do with it. The veterinarian admitted the breathing of the cow was temporarily restricted, and he further testified that he noticed the cow had difficulty breathing when he withdrew the sample of blood, but could not remember whether the cow collapsed before he released it. Dr. Prusaczyk testified that in his opinion the cow did not suffocate. He stated that, in pneumonia or in a starvation of the lungs of an animal, it is customary for the tongue to protrude. He testified that the cow’s tongue was not out when she died, but she was gasping for air, and her breathing was labored just before she died.

Claimant contends that, the facts and circumstances show the death of the cow would not have happened in the ordinary course of events, had the veterinarian used ordinary care. Claimant states that the veterinarian had exclusive control of the cow, the chute, and the bar with which he positioned the cow’s head in the head gate, and that he supervised the entire operation on behalf of respondent, and that it was this operation, which resulted in the cow’s death. Claimant testified that it was a perfectly healthy cow prior to the tests for “Bang’s Disease”. He contends that the doctrine of res ipsa loquitur applies in this case, and that respondent is liable for the malpractice of its veterinarian. In behalf of these contentions, claimant cites Mertel vs. State of Illinois, 20 C.C.R. 285 at 287, and Carter vs. State of Illinois, 20 C.C.R. 213. The Mertel case attempts to define or explain res ipsa loquitur, but the facts are not at all consistent or even similar to those in the case at hand, so as to permit a fair comparison of the application of the doctrine. In the Carter case, claimant seeks to recover for the malpractice of a veterinarian employed by respondent to test claimant’s herd of cattle for Bovine Infectious Abortion, commonly known as “Bovine Brucellosis” or “Bang’s Disease”. In that case, claimant produced an expert witness, Dr. G. J. Krueger, who was also a veterinarian for respondent, and who testified at the hearing, without objection, that the death of the cow was due to a malignant edema, which resulted from the insertion of the blood needle without the taking of the proper sanitary precautions by Dr. Ruck, respondent’s veterinarian, and the Court held on behalf of claimant.

In O’Neil vs. State of Illinois, 21 C.C.R. 532, the Court of Claims held that the doctrine of res ipsa loquitur applies in medical malpractice cases only where a layman is able to see, as a matter of common knowledge and observation, or from the evidence can draw an inference, that the consequences of professional treatment were not such, as would have ordinarily followed, had due care been exercised. The Court in the O’Neil case stated:

“Res ipsa loquitur is a form of circumstantial evidence creating an inference of negligence, which may be utilized by claimant in establishing a prima facie case. As stated by the Supreme Court of Illinois in Chicago Union Traction Co. vs. Giese, 229 Ill. 260, ‘the circumstances surrounding a case, where the maxim, res ipsa loquitur, applies, amount to evidence from which the fact of negligence may be found.’
“In order for such doctrine to be available to a claimant, it is well established generally, and in Illinois specifically, that the injury must have been caused by a thing in the exclusive control or management of the defendant, and, further, that the accident must be such as in the ordinary course of events will not happen, if those who have such control and management use proper care."

The Supreme Court of the State of Illinois in Chicago and Eastern Illinois Railroad Company vs. Reilly, 212 Ill. 506 stated:

“The condition can be accounted for as readily on the hypothesis of pure accident and absence of negligence as upon the ground of negligence, and the rule is well settled that negligence cannot be presumed, where nothing is done out of the usual course of business, unless that course of business itself is improper."

Generally speaking, it is the law in Illinois, and generally throughout the country, that in a malpractice action the doctrine of res ipsa loquitur is not applicable, but the plaintiff, in order to recover, must offer affirmative evidence, and, as a general rule, expert testimony to show that the bad result or injury was caused by an alleged unskillful or negligent act. Olander vs. Johnson, 258 Ill. App. 89.

In the cause at hand, the proper test to determine whether the doctrine applies would be as follows: Do the facts and circumstances show that the alleged injury to claimant’s cow would not have happened in the ordinary course of events had the Defendant used ordinary care in conducting the test for “Bovine Brucellosis?” And, more specifically, was the treatment of such a nature that the only reasonable inference to be drawn from the occurrence of injury is that the treatment was improperly and negligently conducted? There is no testimony as to the specific cause of death of the animal, nor is there expert testimony as to the apparent malpractice on the part of the State veterinarian. Claimant admitted that he took control of the dead animal, and disposed of the carcass without causing a post-mortem to be held to determine the cause of death.

Claimant has failed to prove the necessary elements under the doctrine of res ipsa loquitur to establish medical malpractice on the part of Dr. Prusaczyk, the State veterinarian. The precedent was set by this Court, and cited hereinabove.

Claim for an award is denied.


author: Perlin, C.J.

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    (No. 5068
    Hazel Robinson, Executrix of the Estate of Lawrence Robinson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    Donald R. Mitchell, Attorney for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant asks damages of $25,000.00 for the death of her husband, Lawrence Robinson, on July 14, 1962, when he was allegedly shot and killed by Cecil Burns, a patient at the Anna State Hospital, a mental institution, owned and operated by respondent at Anna, Illinois.

To recover, claimant must prove by a preponderance of the evidence (1) that Lawrence Robinson used due care for his own safety; (2) that Cecil Bums killed Lawrence Robinson; and, (3) that respondent was negligent in failing to prevent the escape of Cecil Bums from the Anna State Hospital to which he was committed.

That Cecil Bums, an inmate of Anna State Hospital, escaped through the window of his dormitory on the night of July 13, 1962 about 10:00 P.M., and was absent until captured by police about 7:00 A.M. on Sunday, July 15, 1962, is undisputed.

Claimant Hazel Robinson, wife of the deceased, testified that Lawrence Robinson left his home on Saturday, July 14, 1962, at approximately 7:30 A.M. to work on his farm. He never returned. She stated that he kept a 12 gauge double-barreled shotgun at the farm, and was the kind of man, who would strive to guard his fife and safety.

John Paul Davis, State’s Attorney of Union County, testified that he, with other law enforcement officers, investigated the death of Robinson.

Cecil Bums was arrested and interrogated in the office of the State’s Attorney on Sunday, July 14th. Burns was then taken to the scene of the homicide, where the Sheriff of Union County took off Bums’ shoes, and fitted them into footprints at the Robinson farm. Bums thereupon volunteered to make a statement, which included the following information: He climbed out of a window at the Anna State Institution after dark on Friday, July 13, about 9:30 P.M. He stayed in the woods, and then left about 5:30 the next morning. He found an empty house, where he stole a rifle and a number of dimes. He walked along Illinois Highway No. 146 toward Vienna, and stopped at a home where he asked for coffee. He then walked along the highway, and approached Lawrence Robinson’s house.

Robinson was in the garden. Burns jumped over the fence, and he and Robinson sat and talked about the idea of Robinson getting a dog. Robinson then went back to plowing, and Burns left, and walked toward the highway. Bums then saw Robinson’s tmck, and decided to take it to go to Paducah. So, "I went around the house, and picked up his shotgun. He started around the tmck, and I shot him.” This was about 11:00 or 12:00 o’clock. Bums then went to Paducah in the truck, and stayed in it all night. He returned to Illinois the next day in the same truck. He purchased a can of paint to use over the letters “L. Robinson” on the truck.

Bums’ statement was witnessed by six persons.

Claude M. Stearns testified that he was the Sheriff of Union County at the time in question, and, in such capacity, investigated the death of Lawrence Robinson. He was notified of the occurrence about 8:30 P.M. on July 14th, and arrived on the scene of the slaying about 9:00 o’clock. Footprints were found in the area, and guarded until they could be examined by daylight.

About 9:30 P.M. it was ascertained that Cecil Burns had escaped from the Anna State Hospital; that a man answering his description had asked for a cup of coffee from Elijah Davis, who lived three-quarters of a mile from the Robinson farm; that he was carrying a 22 rifle; and, that he had then proceeded toward the Robinson farm.

The sheriff determined that the shooting occurred about 11:30 or 12:00 o’clock on Saturday, July 14, 1962. There was also a report of a break-in at the house of Winstead Tucker, which was located just west of the Elijah Davis’ farm. He reported that a large number of dimes and a 22 caliber rifle were missing. After Cecil Bums was apprehended, the sheriff learned that Bums had purchased paint at a store in Paducah, Kentucky, and had paid for it with dimes. When the pickup track was recovered, it was discovered that the name L. Robinson had been painted out with black paint. The sheriff found the can of paint and brash behind the seat. Burns was taken to the scene of the shooting. The sheriff asked Bums to give him one of his shoes, which he then fit into the footprint in the freshly plowed garden of the Robinson farm. The sheriff stated that it was an oxford type high heel, like that found on a cowboy shoe, and fit the tracks perfectly. Afterwards Burns said he would like to “tell us about the whole thing.” The sheriff then returned Bums to the State’s Attorney’s office where he gave his statement of confession to the murder. The statement was verified by the sheriff’s investigation.

Earl Wade, sergeant of the Cairo Police Department, and Fred Stilley, an Illinois State Police Trooper, testified that they participated in the chase and apprehension of Cecil Bums. Wade stated that the chase began when he received a call from the Cairo Police that a stolen truck belonging to Mr. Robinson had been sighted. He and Trooper Stilley chased the truck at speeds up to 105 miles per hour. The driver tried to force Wade off the highway, and in so doing turned the truck over. The driver resisted arrest by pointing a shotgun at Wade, but was eventually forced to drop his gun by Trooper Stilley, who was covering him from a high rock ledge. The driver of the track was Cecil Bums. The truck, which Bums was driving, belonged to Lawrence Robinson. The shotgun Bums used was a 12 gauge, loaded, double barreled L. C. Smith.

The Court concludes from the foregoing evidence that Cecil Bums shot and killed Lawrence Robinson after escaping from the Anna State Hospital.

The next question to be determined is whether respondent was negligent in permitting Cecil Bums to escape and inflict injury.

The following data concerning Cecil Burns was revealed:

1. October 2, 1941, in the County Court of Massac County, Illinois, Burns pleaded guilty to assault and battery upon his wife.

2. June 8, 1946, he became a voluntary patient at the Anna State Hospital.

3. July 23, 1946, he was discharged.

4. November 19, 1952, the Medical Commission of Massac County filed a report recommending that Cecil Bums be sent to the Security Hospital at Chester, Illinois. Its findings were: “No. 1, Cerebral Syphilis; No. 2, Multiple Sclerosis; No. 3, Persecution Complex; No. 4, Homicidal Tendencies, cut mothers throat.”

5. November 20, 1952, Bums was committed by the County Court of Massac County to the Illinois Security Hospital at Menard, Illinois.

6. January 14, 1953, he was indicted by the Grand Jury of Massac County for the crime of assault with intent to murder his mother. The policeman, who worked on the case, testified that Burns had cut his mother’s throat, and had then left her in a critical condition.

7. September 27, 1954, Bums was transferred from the Illinois Security Hospital to the Anna State Hospital.

8. March 23, 1955, he was discharged from the Anna State Hospital.

9. October 24, 1955, Bums was committed by the County Court of Massac County, Illinois to the Anna State Hospital.

10. November 12, 1955, Burns escaped from the Anna State Hospital, and was returned on January 27, 1956. During this time he pleaded guilty to burglary of a business place in Springfield, Ohio, while on escape.

11. September 6, 1956, he was discharged from the Anna State Hospital.

12. In November, 1956, the Superintendent of Anna State Hospital received a letter from the State’s Attorney advising that Cecil Bums had committed sodomy. The Superintendent testified that someone in the hospital had put a notation on the bottom of the letter saying: “Maybe we should send him to security?”

13. November 21, 1956, Burns was committed by the Massac County Court to the Anna State Hospital.

14. September 23, 1957, Cecil Burns and two other patients plotted to break out of the maximum security ward.

15. September 8, 1958, annual patient survey indicates that Bums is a constant escapee, judgment is poor, and he should be kept hospitalized because of his past history of aggressiveness.

16. June 11, 1958, Burns escaped, and was returned on July 15, 1958.

17. May 11, 1959, he escaped, and was captured by the Illinois State Police. Bums escaped from the police, but was eventually recaptured.

18. February 14, 1962, Bums offered money to female patient for cooperation in sexual activity. He was placed in maximum security until March 2, 1962, and was then transferred to the Veteran’s Building.

19. In April, 1962, Bums escaped from the Veteran’s Building, and stole a knife and drill from a barn. He assaulted and injured an employee, who found and returned him. The report states that the patient became combative, restless and disturbed, and he was thereafter placed in maximum security. He was returned from the maximum security ward on July 5, 1962 with a statement that “he should be in locked ward, but does not need maximum security, and should not be given a grounds’ pass.”

20. July 13, 1962, Bums pushed out an insect screen in the Veteran’s Building, and escaped to commit homicide.

The Deputy Sheriff of Union County testified that he had returned Cecil Burns from the City of Anna to the hospital about three or four times in the previous two years.

Wayne Isaacs, Assistant Superintendent at the hospital, testified that, when Cecil Bums escaped, he escaped deliberately, and was not the type of patient just to wander around the grounds.

Dr. Robert C. Steck, the Superintendent at Anna State Hospital, described the different ward classifications as follows: (1) Maximum security ward, which is kept locked, has detention security screens set in a metal frame, and has more employees than on a lesser security ward. (2) Security wards, which are locked with ordinary insect screens. (3) Open wards. The Veteran’s Building is a locked ward with ordinary insect screens. The Veteran’s Building, from which Bums made his escape on July 13, 1962, consists of a center room with two dormitories on either end, which house 50 patients each, and have two attendants. If the attendant left the ward, according to Dr. Steck, a patient could push out a screen, and go out the window. There is no fence around the hospital grounds to prevent a patient from walking away from the hospital.

The evidence further revealed that the escape of Bums was discovered at 10:05 P.M., but the Illinois State Police were not notified until 11:30 P.M. The Assistant Superintendent described the procedure concerning an escape as follows: The psychiatric aide, who first notices a patient missing, notifies his supervisor; the supervisor notifies the nurse in charge of the specific area; then the nurse notifies either the Superintendent or one of the two Assistant Superintendents. The Assistant Superintendent said that he was notified by the nurse shortly after 10:00 P.M., and told her to notify the authorities.

The attendants on duty in the Veteran’s Building testified that they were cleaning up the dining room in the center section of the building when Bums escaped. There were no attendants in the dormitory. Most of the dormitory windows were raised, and not locked. One of the witnesses testified that the screens could easily be removed, and that the windows were close to the ground. He said: “I don’t know why they kept the doors locked, and not the windows.” Bums’ escape was discovered about 10:00 P.M. during a bed check.

This Court has long held that it is the duty of respondent 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 of Illinois, 18 C.C.R. 137; Callbeck vs. State of Illinois, 22 C.C.R. 722; Redebaugh vs. State of Illinois, 22 C.C.R. 306; Clifton vs. State of Illinois, No. 5076.

The profile of Cecil Burns, which is detailed in his history, clearly indicates that Cecil Bums was a ruthless, dangerous man, whose constant escapes would preclude keeping him in a place, where he might easily push out an ordinary insect screen, and walk away undetected from unfenced grounds. There was a recent warning of his violent propensities in the fact that not less than eleven weeks before the homicide of Lawrence Robinson, Burns not only escaped, but also stole a knife and drill, and injured an institution employee after attacking him. His entire history would certainly suggest that “reasonable care” be substantially more than was manifested in the instant case. If he was to be kept in a locked ward, as prescribed, the windows should at least have been locked, or should have been equipped with security screens, as were used in other sections of the institution. Minimum standards of reasonable care were violated in this case. It is the conclusion of the Court that respondent was negligent in taking no precautions to prevent a reasonably anticipated escape of a dangerous inmate.

Claimant presented further evidence to show that she was wholly dependent upon her husband for support; that he had, at 51, a life expectancy of 22 years; and, that his income as an employee of the Vogler Motor Company averaged from $5,000.00 to over $6,000.00 per year for the years of 1957 through 1961.

It is the opinion of this Court that claimant be awarded the sum of $25,000.00.


text:
    (No. 5092
    James Hopkins, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    James Hopkins, Claimant, pro se.
    William G. Clark, Attorney General; John C. Connery, Special Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, James Hopkins, seeks to recover for loss of use of property damaged by escaped inmates of the Illinois State Training School for Boys. Respondent does not dispute the facts, but contends that claimant failed to establish and prove that the damage to his property arose out of the negligence of respondent.

On July 8, 1962, claimant was employed by the Illinois Youth Commission of the State of Illinois as a Cottage Parent I at the Illinois State Training School for Boys, St. Charles, Illinois. On the particular night in question, claimant’s duty was that of night custodian of the Security Building, commonly known as Roosevelt Cottage. He worked a shift from 10:00 P.M. to 6:00 A.M., and worked this same shift six and one-half nights per week, and had held this particular assignment for approximately two years. Roosevelt Cottage is a one-story building, which contains sixteen cells, where boys are confined for disciplinary purposes. The custodian on duty sits at a desk in a hallway at the front of the building. A wash room, a linen room, offices, a utility room, and a kitchen open off either side of this hallway. The hallway continues from the front of the building to the rear of the building, but a locked cage door bars access to the portion of corridor into which the cells open. In the portion of the building beyond the locked cage door there is a shower and eight cells on one side of the corridor, and a utility room and eight cells on the other side of the corridor. Each cell door is of solid metal, and contains a slot, approximately eight inches by ten inches, that goes up and down, and works with the same key that opens the cell door. One key unlocks the cage door, and a master key unlocks all of the cells.

On the night of July 8, 1962, claimant reported for work at his customary time, and relieved a Mr. Lowry, who had been on duty during the previous shift. After Mr. Lowry left there were no other State employees in the building, and claimant was alone with the inmates. At approximately 11:00 P.M., one of the inmates called out for some toilet paper. Each cell has its own toilet bowl, but the inmates are not permitted to keep paper in the cells, because the paper can be used to flood the toilets and create a disturbance. Claimant unlocked the cage door, proceeded down the corridor to the cell of the inmate, who had called, and, as he was handing the paper to the inmate through the slot of his door, one John Egan came from his unlocked cell across the corridor, and attacked claimant with a piece of metal eighteen inches long and one-quarter inch thick, which he had taken from his bed. Egan, weighing 150 pounds, knocked claimant, weighing about 90 pounds, to the floor, took his keys away from him, and unlocked the cell of his fellow escapee across the hall. The two escaping inmates beat claimant, shoved him into an office in the front portion of the building, and left the premises taking claimant’s 1956 Buick Super Sedan, using the keys that they had forcibly stolen from him. The two escapees drove in the direction of the gate, and the gateman, seeing them coming, opened the gate for them, and let them out upon the highway. After he had let them through the gate, the gateman realized that they were not employees. In the interim, claimant recovered sufficiently to telephone for help. About a mile and a half west from the entrance of the school, the escaping inmates struck a curbing, turned the car over, and demolished it.

Claimant must make sufficient showing of negligence on the part of respondent that the State of Illinois should have reasonably foreseen the consequences. The facts disclose that the guards on duty, prior to claimant’s arrival, failed to lock Egan’s cell after returning him to that cell from his shower; and, that they also failed to check the door of each cell before going off duty. It was not the practice of the incoming employee to make a check of the cells, nor was there an institution rule requiring him to do so. It does not appear from the testimony that claimant was guilty of contributory negligence in failing to check the cell doors. It is the opinion of this Court that claimant did not violate the rules of the institution.

This Court, therefore, holds that claimant should not be held to a degree of care for his own safety, which was not required by the rules of the institution at the time that he was employed, and also at the time that the escape occurred. Callbeck vs. State of Illinois, 22 C.C.R. 722.

Claimant’s ad damnum has been fixed by testimony in the transcript at approximately $545.00, that amount being a reasonable cost or market value of the vehicle.

Claimant is awarded the sum of $545.00.


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    (No. 5196
    Memorial Hospital of Du Page County, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 29, 1965.

    Erlenborn, Bauer and Hotte, Attorneys for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Pezman, J.

On January 14, 1963, claimant, Memorial Hospital of Du Page County, a Corporation, presented its statement to the Department of Public Aid for hospitalization services rendered one Elizabeth B. Grose. Although the Department had determined that the subject patient was eligible to receive aid under its program of Assistance to the Medically Indigent Aged, it denied the claim for services on January 13, 1964 on the basis that the claim was for services rendered prior to July 1, 1963, and that the appropriation for that biennium had lapsed.

Thereafter, on November 10, 1964, a complaint in this matter was filed in the Court of Claims. It contains a request for payment of the sum of $1,120.35, representing charges for the hospitalization services furnished said Elizabeth B. Grose for the periods of December 7, 1962 to December 31, 1962, and January 1, 1963 to January 8, 1963.

A Departmental Report was filed in this matter on December 30, 1964, paragraph four of which reads as follows:

“The Department has not been given credit for $38.15 against the sum that is alleged by claimant. Under the Rules and Regulations of the Department the recipient was to pay ten per cent of her income towards the bill, which income was $54.50 a month for seven months, or a total of $381.50. Therefore, the amount to be paid by the recipient and not by the Department towards the indebtedness was $38.15. The Department admits liability to $1,082.20, and further admits this is the amount properly due claimant.”

A written stipulation was entered into between claimant and respondent, by their respective attorneys, which in part is as follows:

“That claimant furnished services to one Elizabeth B. Grose, 227 South Miner Street, Bensenville, Illinois from December 7, 1962 to December 31, 1962, and from January 1, 1963 to January 8, 1963, during which time Elizabeth B. Grose was an in-patient of claimant.
“That the reasonable and equitable charges for the services so provided by claimant to the aforementioned Elizabeth B. Grose during the times aforementioned were $1,082.20.
“That the said Elizabeth B. Grose was determined by the Du Page County Department of Public Aid to be eligible to receive assistance under the program for Assistance to the Medically Indigent Aged, and, consequently, that claimant was entitled to be reimbursed in the amount aforementioned.
“That the biennial appropriation out of which these charges were payable had lapsed at the time the statements were submitted, and the funds to pay said charges were no longer available to the Du Page County Department of Public Aid.”

On January 6, 1965, claimant was given leave to file its amended complaint. It amends the ad damnum clause of the original complaint, and indicates an amount of $1,082.20 due and owing claimant. This conforms to both the sum determined by the Department to be due claimant, as well as that set forth in the stipulation of facts.

This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. Rockford Memorial Hospital, A Corporation, vs. State of Illinois, Case No. 5165, opinion filed September 25, 1964; Memorial Hospital of Du Page County, A Corporation, vs. State of Illinois, Case No. 5197, opinion filed January 12, 1965. It appears that all qualifications for an award have been met in the instant case.

Claimant, Memorial Hospital of Du Page County, a Corporation, is, therefore, hereby awarded the sum of $1,082.20.


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    (No. 4974
    Richard J. Knarr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1965.

    Fishman and Fishman, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman and Gerald S. Grobman, Assistant Attorneys General, for Respondent.
   Pezman, J.

Claimant, Richard J. Knarr, brings this action for injuries received while on active duty with the Illinois National Guard. The claim alleges an injury caused by the negligence of an employee of respondent, and bases recovery upon a common law theory asserting that claimant be compensated in accordance with all of the elements of damage, which are applicable in such common law actions.

Respondent denies the right of claimant to an option of either instituting this cause of action as in tort, or under the Military and Naval Code. Respondent urges that all previous decisions of the Court of Claims relating to injured National Guardsmen were based solely on the aforementioned Military and Naval Code of the State of Illinois.

On May 22, 1960, claimant, Richard J. Knarr, was a member of the Illinois National Guard, and was on active duty at a weekend meeting, which was held at 119th Street and Ridgeland Avenue in Cook County, Illinois. At about 2:30 P.M., James E. Getz, also a member of the National Guard, while in the line of duty, was operating a power lawn mower on the south side of a mess hall at the aforesaid National Guard site. According to Private Getz’s statement, which is set forth in the Departmental Report, as he came to the sidewalk, he was unable to control the mower due to a twisted belt. Other witnesses stated that he attempted to turn the mower on the sidewalk. As he reached the sidewalk, he noticed that claimant was walking along said sidewalk. He shouted a warning to him to prevent the mower from hitting him, but claimant fell, as he attempted to avoid the mower, and the power mower struck him on the right foot. Claimant’s right foot was caught in the blade of the power lawn mower, which cut through his army combat boot, and severely wounded his right foot. He was immediately taken to the orderly room where a tourniquet was placed upon his right leg. He was thence removed to St. Francis Hospital in Blue Island, where an emergency operation was performed by Drs. Norman S. Schwartz and Albert L. Sheetz. Claimant remained at St. Francis Hospital from May 22, 1960 to June 9, 1960, and was then transferred to the Great Lakes Naval Hospital, where he remained from June 9, 1960 until August 15, 1960. Following his release from said Great Lakes Naval Hospital, claimant was under continual medical treatment until he was again hospitalized at the Great Lakes Naval Hospital from February 6, 1962 until April 9, 1962.

Claimant suffered a deep wound of the dorsum, or top of the right foot. He had a severance of the numerous ex-tensor tendons and muscles, and there were fractures of the metatarsal bones. The first metatarsal bone had comminuted type fractures of the anterior portion of the entire length of its shaft, which was accompanied by considerable loss of bone substance. There was also a transverse fracture in the midshaft of the first metatarsal, and an oblique fracture of the second metatarsal. The medical testimony of Dr. Schwartz set the number of fractures or fragments to be from twenty-five to thirty. There were serious involvements of nerves, tendons, muscles, soft tissues and blood vessels of the right foot. The extensor tendons, digital artery and nerve of the first toe were severed. There was a contracture of the joint of the first metatarsophalangeal joint, and a dislocation of the metatarsal cuneiform joint. Claimant’s doctor testified that the injury to the right foot was permanent in nature, but was unable to specify the percentage of permanent disability. On August 21, 1962, the U.S. Army Physical Evaluation Board issued a report, which found claimant physically fit for duty.

At the time of his injury, claimant had a civilian job with the Illinois National Guard as a Supply Specialist, and was earning $4,940.00 per year. In addition to this, he was also an active military member of the Guard, which increased his earnings sufficiently to make a gross total of $5,200.00 per year. From the time of his injury until April of 1962, claimant was kept on an active duty disability status by the Illinois National Guard, and during that time he received compensation in the sum of $269.00 per month. After his release from the Guard, claimant started a completely new job with the Continental Casualty Company, and at the time of the hearing was earning $450.00 per month. Claimant asserts that he lost the difference between his gross salary of $5,200.00 a year, prior to the occurrence of the accident, and the $269.00 a month, or $3,552.00 a year, which he received while on a disability status, or the sum of $3,296.00.

The Supplemental Departmental Report, which was submitted by the Military and Naval Department of the State of Illinois, was admitted into evidence as respondent’s exhibit No. 2. It stated that claimant served continuously in the National Guard until September 7, 1962, when he was discharged by reason of his removal from the State of Illinois. It further indicates as follows:

"4. Under Public Law 108, 81st Congress, Specialist Knarr was entitled to and received medical treatment, hospital care, pay, allowances and travel reimbursement. The following payments were made from federal funds during the period of incapacitation:
Pay, allowances and travel reimbursement $6,573.76
Civilian medical and hospital bills 875.05
Civilian federal technician sick pay 570.00
Total: $8,018.81
“5. In addition to the payments made above, all expenses incurred during the periods of hospitalization at the U.S. Naval Hospital, Great Lakes, Illinois, (a federal facility) were paid from the Army Medical Services Activities Fund at Department of the Army level.”

Upon conclusion of oral argument by counsel for the parties before the Court of Claims, it was agreed that a further medical evaluation of the injuries of claimánt would be obtained, and filed with this Court. On August 7, 1964, a letter of Dr. Harry E. Barnett, 116 South Michigan Avenue, Chicago, Illinois, was filed with the Clerk of the Court, and admitted in evidence by agreement of the parties. Dr. Barnett’s diagnoses were as follows:

“1. Initial multiple lacerations of the right foot involving primarily the first metatarsophalangeal region.
' “2. Healed fracture with varus deformity of the right first metatarsal bone.
“3. Severance of extensor tendons of right great toe with residual flexion deformity at the metatarsophalangeal joint.
“4. Marked derangement of bony alignment with secondary arthritic changes at the right first metatarsophalangeal joint."

In this medical report, Dr. Barnett estimates a partial disability of 40% of the function of the right foot, and further states that it is his impression that the patient will require an arthrodesis of the first metatarsophalangeal joint of the right great toe.

The case at hand is clearly one in which claimant should be reimbursed for his injury. He is not entitled to the full measure of damages that he would receive in an ordinary common law action, nor has he any right to bring his action in this instance under Section 8D of the Court of Claims Act. All previous decisions of the Court relating to injuries suffered by Illinois National Guardsmen were based solely on the aforementioned Military and Naval Code of the State of Illinois. This Court has held that claimant may invoke the jurisdiction of the Court when the disability exceeds a period of six months, and he shows a need for financial help and assistance in addition to that provided under the Military and Naval Code. (Insalato vs. State of Illinois, 12 C.C.R. 27)

The Court of Claims in Durnham vs. State of Illinois, 23 C.C.R. 28, established a basis for determining the amount of financial help and assistance, which an injured National Guardsman would be entitled to, by using the Workmen’s Compensation Act as a guide. In that case, the Court considered claimant’s percentage of permanent disability, his loss of wages during the period of incapacitation, and the amount received by claimant from the Federal Government as compensation for the same injuries.

This Court changed its standards of recovery in Ward vs. State of Illinois, 24 C.C.R. 229, when it stated:

“We recognize that there have been a few instances where this Court did not follow its general practice of using the Workmen’s Compensation Act as a gauge to the amount of recovery allowed in personal injury and death cases under the Military and Naval Code, as in the Dudley case, cited above, and Roberts vs. State of Illinois, 21 C.C.R. 406. We find, however, that recovery based on established standards is essential to the dispensing of equal justice.
“We shall henceforth allow claimants in personal injury or death cases brought pursuant to the Military and Naval Code, Sec. 220.53, and similar provisions, to recover an amount no greater than the maximum prescribed for similar claims under the Workmen’s Compensation Act in effect in the State of Illinois at the time the injuries were incurred. We are cognizant that in most cases the Federal Government has made substantial payments to the injured person and his survivor. In determining the extent of aid to be contributed by the State, we will disregard any payments from the Federal Government or other sources.
“The ruling of the Court herein does not conflict with the decision of the Supreme Court in Hays vs. Illinois Transportation Co., 363 Ill. 397, which held that the Workmen’s Compensation Act does not apply to those in military service, since the Compensation Act is only being used as a guide in determining the extent of our awards, and the cases acknowledgedly arise under the Military and Naval Code.”

The Supplemental Departmental Report, set forth hereinabove, indicates that claimant received certain specific payments providing for medical treatment, hospital care, pay, allowances and travel reimbursement. We are, therefore, faced with considering only two elements in determining the ad damnum to which claimant is entitled.

1. Lost wages during the period of incapacitation in the form of the difference between the amount actually received by the injured person during that period when he was out of work as a result of the injury, and the amount received or granted under the Workmen’s Compensation Act as temporary total disability. In this cause of action the injured party actually received more compensation on active duty disability status from the Illinois National Guard than he would have received as temporary total disability under the Workmens Compensation Act.

2. Claimant’s percentage of permanent disability. In considering this element, the Court of Claims has previously accepted the Workmen’s Compensation Act as a guide in determining damages. Using the medical report of Dr. Harry E. Barnett, dated July 22, 1964, we find that claimant for all practical purposes has no function at all of the great toe of the right foot. Medically, the amputation or loss of the great toe is considered as 20% total impairment of the foot. The reason for this is that the main function of the great toe is to provide balance. Accordingly, a complete ankylosis of the great toe, without amputation, is usually medically rated at only about 15% of the foot, since much of the function of balance still remains after ankylosis. In addition, claimant has a mild limitation of motion of the second toe, which has relatively little functional ability, as well as some scarring on the top of the foot. This might be rated medically at about 5% of the foot, or a total impairment of 20% of the foot.

In converting “impairment” from a medical standpoint to the industrial “permanent disability”, other factors are usually considered. In this case, claimant is quite young, and was obviously in excellent physical condition before the accident. In addition, it appears that an arthrodesis, or fusion of the inner joint of the great toe, is probable. The evidence in the form of a medical report by Dr. Harry E. Barnett estimates a partial disability of 40% of the function of the right foot, and also indicates that the patient will require an arthrodesis of the first metatarsophalangeal joint of the great right toe. This evidence is not controverted. Claimant, Richard J. Knarr, at the time of the accident was married, and had one child. Under the rates established by the Illinois Industrial Commission, compensation for 40% of the loss of the right foot would be $3,286.00.

Claimant is, therefore, awarded the sum of $3,286.00.


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    (No. 5011
    Melvin E. Bryant, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 25, 1965.

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

Claimant, Melvin E. Bryant, seeks recovery for loss of wages for the period of February 20, 1961 to June 30, 1961 during his suspension and discharge from duties as Assistant Warden at the Industrial School for Boys, Sheridan, Illinois.

From the record it appears that claimant was certified and appointed to his present position as Assistant Warden on August 22, 1951. On February 20, 1961, written charges seeking a thirty day disciplinary suspension pending discharge were served on claimant, and, on March 1, 1961, notice of grievance concerning the disciplinary suspension pending discharge was filed with the Chairman of the Illinois Youth Commission. Written charges seeking the discharge of claimant, effective as of March 20, 1961, were served on claimant on March 19, 1961. Thereafter, claimant appealed by written notice to the Illinois Civil Service Commission, and requested a hearing. On April 25, 1961, a hearing was held before John Morrow, Hearings Referee, and, on October 9, 1961, his decision retaining claimant in his position as Assistant Warden at the Illinois Industrial School for Boys, Sheridan, Illinois, was handed down. The decision further found that claimant was entitled to full compensation. Subsequently, the Civil Service Commission of Illinois unanimously concurred in said decision.

Thereafter, claimant requested the Director of the Department of Personnel of the State of Illinois to review the thirty day disciplinary suspension in accordance with Rule 25 of the Department of Personnel. The Director, by letter, stated that the Department would be bound by the ruling of the Civil Service Commission as to the thirty day disciplinary suspension, insofar as the accrual of pay and other benefits were concerned. The Director of the Department of Personnel further recommended to the Chairman of the Illinois Youth Commission on November 7, 1961 that claimant be paid his regular salary at the rate of $785.00 per month from February 20, 1961 to March 20, 1961, the period of the disciplinary suspension.

Dr. Arthur E. Wright, Superintendent of the Illinois Industrial School for Boys at Sheridan, Illinois, testified that claimant’s position was filled by a Mr. Shockley after March 15, 1961. Mr. Shockley was Acting Assistant Warden from February 21, 1961 to March 15, 1961, and received $685.00 per month after his appointment on March 16, 1961. Dr. Wright further testified that both claimant and Mr. Shockley were paid a salary for the period from July 1, 1961 to October 21, 1961, and that claimant would have been paid his salary from February 20, 1961 to June 30, 1961, if the appropriation had not lapsed.

Claimant testified that he applied for employment elsewhere on a number of occasions, but was unable to obtain a position; that he was not employed, and earned no money during the time he was suspended and discharged; and, that he received no salary for the period of February 20, 1961 to June 30, 1961, but had been paid $2,624.64, his salary from July 1, 1961 to October 31, 1961.

This Court has long held that, where a Civil Service employee is illegally prevented from performing his duties, and is subsequently reinstated to his position by a Court of competent jurisdiction, he is entitled to the salary attached to said office for the period of his illegal removal, but that he must do all. in his power to mitigate damages. Snyder vs. State of Illinois, 22 C.C.R. 453; Poynter vs. State of Illinois, 21 C.C.R. 393; Smith vs. State of Illinois, 20 C.C.R. 202; Cordes vs. State of Illinois, 24 C.C.R. 491.

There is no evidence of failure to mitigate damages for the period involved in the instant case.

Claimant is hereby awarded the sum of $3,336.25.