text:
    (No. 5299
    Rockford Memorial Hospital Association, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Pedderson, Menzimer, Conde and Stoner, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Arthur L. Berman, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery of $1,225.40, which it claims is owed to it by the Illinois Public Aid Commission under its program of Assistance to the Medically Indigent Aged, on behalf of Vera Stroup, deceased.

The facts show that on March 8, 1963, Vera Stroup, aged 77, was admitted to claimant’s hospital where claimant furnished room, food, nursing, drugs, medical supplies, laboratory services, and other services until March 19, 1963 when Mrs. Stroup died. A balance of $1,225.40 remains unpaid for these services.

The parties stipulated that application was made by claimant to respondent for the amount claimed herein under the program of Assistance to the Medically Indigent Aged. On August 10,1965, notification was received by claimant from the Winnebago County Department of Public Aid that said Vera Stroup had been found not to be eligible for assistance. The notification consisted of a letter to Attorney Dale Conde, which stated:

“Dear Mr. Conde:
We received your letter of August 2, 1965. According to our findings there were adequate resources to meet Mrs. Stroup’s medical expenses at that time, assistance was denied.
Yours very truly,
(Mrs.) Alice M. Gleason, Superintendent
Winnebago County Department of Public Aid”

The complaint filed in the instant case on April 6, 1966 appears to be the next action taken by claimant.

Respondent alleges that the Court of Claims does not have jurisdiction to hear this action since the proceeding is in the nature of a claim under the program of Assistance to the Medically Indigent Aged. Respondent claims that proceedings of this nature are governed by Article V of the Public Assistance Code, (Chap. 23, Sec. 561, et seq., Ill. Rev. Stats.) and the Administrative Review Act.

The procedure for obtaining assistance granted to or in behalf of a medically indigent aged person is clearly set forth in the Illinois Public Assistance Code, Chap. 23, 1965 111. Rev. Stats.

The pertinent provisions of this Act are as follows:

Sec. 564 states that the “amount and nature of the assistance granted to or in behalf of a medically indigent aged person under this Article shall be determined by the County Department in accordance with the standards, rules and regulations of the State Department. . .”

Secs. 802 through 805 provide that an application for assistance shall be filed with the County Department of the County in which the applicant resides, and that the County Department shall decide whether the applicant is eligible for assistance. The County Department must notify the applicant of its decision within ten days after it is rendered. In the event the assistance is denied, the County Department shall also notify the applicant of his right to appeal to the State Department within sixty days after the decision. The State Department shall review the case upon receipt of the application, and shall permit the applicant or recipient to appear in person and to be represented by counsel. A fair hearing must be held. The appeal is heard in the County where the applicant or recipient resides. The decision shall be rendered within 60 days from the date of the filing of the appeal.

Sec. 816 states that “The provisions of the ‘Administrative Review Act,’ approved May 8, 1945, and all amendments and modifications thereof . . . shall apply to and govern all proceedings for the judicial review of final administrative decisions of the State Department under this Article.”

The Administrative Review Act, 1965 111. Rev. Stats., Chap. 110, Sec. 268, provides that jurisdiction to review final administrative decisions is vested in the Circuit Courts, and that the action may be “commenced in the Circuit Court of any county in which (1) any part of the hearing or proceeding culminating in the decision of the administrative agency was held, or (2) any part of the subject matter involved is situated, or (3) any part of the transaction, which gave rise to the proceedings before the agency occurred. The court first acquiring jurisdiction of any action to review a final administrative decision shall have and retain jurisdiction of the action until final disposition thereof . . .”

There is no evidence that the remedies set out in the above statutory provisions were ever pursued. Not only has claimant failed to exhaust its administrative remedies, but the Act specifically provides for final review by the Circuit Court. It has been an established rule of this Court that, where the claimant has an adequate remedy in a court of general jurisdiction, the Court of Claims has no jurisdiction. (B & F Hi-Line Construction Corporation vs. State of Illinois, 21 C.C.R. 189; Denton vs. State of Illinois, 22 C.C.R. 83).

In Barrett vs. State of Illinois, 13 C.C.R. 13, 17, the Court stated:

“The Legislature in creating the Court of Claims did not intend that it should usurp the powers of, contradict, or compete with courts of general jurisdiction. Moline Plow Company vs. State of Illinois, 5 C.C.R. 277.”

Since the question of the Court’s jurisdiction may be raised at any time (Atkinson vs. State of Illinois, 21 C.C.R. 429), the claim is hereby denied.


source: Caselaw Access Project

author: Perlin, C.J.

license: Public Domain

text:
    (No. 5335
    Marie B. Bachmeier. Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Howard R. Weiss, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Etta J. Cole, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimant, Marie Bachmeier, seeks judgment in the sum of $7,500.00 for injuries suffered on August 16,1964, when she stepped into a hole in a parkway, which was owned, controlled and maintained by respondent, fracturing her foot and injuring her leg.

Claimant contends that respondent so negligently, carelessly and unlawfully maintained the area or parkway where she fell that it permitted or constructed a deep, narrow hole or sewer to be on the premises for a considerable time without any barricade or warning, and that the hole was for all practical purposes invisible in the night time when the accident occurred.

Before claimant may recover, she must prove (1) her freedom from contributory negligence, (2) respondent’s negligence, and (3) that respondent’s negligence was proximate cause of the injuries suffered.

Claimant testified as follows: that at the time of the occurrence she was 51 years old, and that she worked then as she had for 16 years as a bakery saleslady at a salary of $65.00 per week; that on the evening in question, at about 9:30 P.M., after it was dark, she and her husband arrived'in the vicinity of the occurrence to attend a Schwaben picnic, an annual affair in the local German community; that the picnic was held in a private picnic grove, known as Erhart’s Grove, then located several blocks west on Talcott Road, from where her car was parked on Dee Road, just south of Talcott. There was no closer parking place, according to the claimant, since there were between 10,000 and 15,000 people attending the picnic.

There was no sidewalk at the place where the car was parked. Claimant testified that pedestrians had to walk on the parkway. When claimant returned to her car about 12:30 A.M., she walked in the parkway, and her leg went into a deep hole about up to her knee causing the injury in the instant case. Claimant testified that it was dark, and there was no artificial lighting in the area, the only light being a traffic light. She stated that she had never seen the hole before. The next morning she was taken to Illinois Masonic Hospital. Her right leg was put into a cast for four weeks, and she was unable to work for nine weeks.

George Penge, a witness called in behalf of claimant, testified that he was familiar with the conditions at the spot in question, having visited the Park Ridge Animal Hospital at the corner of the intersection. He testified that many pedestrians used the area in question, including people going to the animal hospital and the picnic grove, and people living in the area. He stated that the pedestrians must use the parkway, or else they would have to walk on the road and take a chance of getting hit. Mr. Penge identified photographs of the hole submitted by claimant, and he further testified that the hole had been in the parkway for a least a year prior to August 16,1964. He described the hole as being about seven to nine inches in diameter and about one to two feet deep. Mr. Penge further testified that he had never reported the existence of the hole to the authorities. He had driven by the parkway in the evening, and had observed people walking there late at night especially when the picnic grove was open.

Respondent presented no witnesses, and submitted no exhibits or Departmental Report to rebut claimant’s testimony. Respondent’s failure to offer any evidence in rebuttal to claimant’s proof, including respondent’s failure to offer even the Departmental Report referred to by respondent in its brief, leaves the Court no alternative but to conclude that respondent has, in fact, no such rebutting evidence. The Court must conclude, therefore, that claimant has proved the negligence of respondent by a preponderance of evidence.

Respondent has not shown that it exercised reasonable care in maintaining its property. Photographs of the area submitted by claimant reveal that the hole was located in a grassy area, which had to be regularly mowed by respondent’s employees. The existence of the hole for at least a year prior to the accident in an area, which is regularly covered by employees of respondent in their maintenance duties, establishes that respondent knew or should have known of the dangerous condition, which threatened pedestrians who regularly walked on the parkway in question.

Claimant’s injury was diagnosed as a fracture of the right foot, and she has not yet been discharged from medical care. As above stated, she was unable to work for a period of nine weeks, and still suffers pain and discomfort.

Claimant is hereby awarded the sum of $2,400.00.


author: Dove, J.

text:
    (No. 5347
    Thomas Perkins and Bertha Vaughn, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Meyer and Meyer, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

This cause of action arises out of a single-car accident on August 9, 1966 on U. S. Route No. 460 near the Cahokia Downs Race Track in St. Clair County, Illinois. The complaint consists of two counts, one on behalf of Thomas Perkins, the driver of the car, and one on behalf of his passenger, Bertha Vaughn. The negligence alleged consists of failure to give proper and adequate warning of the presence of barricades at the construction site. Bach count seeks Ten Thousand Dollars ($10,-000.00) for personal injuries, medical and hospital expenses.

Both claimants were employees of Jefferson Barracks Veterans Administration Hospital in St. Louis, Missouri, and at 8:30 A.M. on the morning of August 9, 1966 had gone to Centralia, Illinois, taking an automobile owned by Bertha Vaughn there to be repaired. Centralia was also the home of the mother of claimant, Thomas Perkins. They stayed in his mother’s home visiting her until around 8:00 P.M. when they left Centralia.

At the time of the accident there was repair work being carried out on Route No. 460. The point at issue is whether or not there was proper and sufficient warning of the presence of the barricades to the traveling public. Both claimants testified that there were no signs flashing. Claimant, Thomas Perkins, testified that he came upon them suddenly, and there were “a lot of barricades”, but he didn’t have any idea how many. He did not strike the barricade, but was forced to turn off the highway to avoid striking it, rolling his car over. The force of the impact dazed him, rendering him temporarily unconscious, and he testified further that a Volkswagen is hard to handle once control is lost, and when he swerved to avoid hitting the barricade it started to roll over and he tried to bring it back straight. This happened at 10:30 P.M. in the evening, and claimant Perkins had his headlights on. Bertha Vaughn supported Mr. Perkins in his testimony. They both sustained injuries, and were treated by Dr. Weeks who also testified as to the injuries.

The first witness testifying for respondent was Charles Reynolds, a highway construction foreman for the day labor employed by respondent, having been employed by respondent for fourteen years. He testified that construction on Route No. 460 had been taking place about five weeks prior to August 9, 1966, and consisted of repair work of expansion joints at each end of a bridge, that there were barricades all along the area, which would have been all • along the lane nearest the center median at the east end of the bridge. There were nine barricades before the bridge was reached, and on the bridge itself five barricades. These were fence barricades made of two by sixes, twelve feet long, with flasher lights fastened on the two by six timbers. The flasher lights along the top of the barricade and the end barricade had eleven flasher lights, the one after that three, the third one two, and the next one three, following that sequence. In diameter the flasher lights were eight inches with a six and one-half volt battery. He testified further that these were the regular standard flashing lights used for construction work, and that, as a driver approached the construction area, he would have encountered a sign advising of the road construction ahead about 1200 feet from the barricaded area. This is a four by four sign, white with black two-inch lettering with a flashing signal. The next sign claimant would have encountered was one advising that the left lane, the one nearest the center median, was closed. This was a four by four sign, yellow with black letters and with a flashing signal. Reynolds stated further that a third sign would have been encountered by claimant advising of a single lane ahead. This sign was the same size, not reflectorized, but with a flashing light on it. There was a “35 m.p.h.’’ sign under each of the three signs described. The signs were 400 feet apart, and the barricades were eighty feet apart. Eonte No. 460 consisted of four lanes, two lanes each for east and westbound traffic. Reynolds further stated that, when he left the construction site at 5:30 P.M. on August 9, 1966, the signs and barricades were in place, and the flashing-lights were working. Reynolds:/ testimony was supported by Lowell Hewlett, a maintenance laborer for respondent. He also left the construction site at approximately 5:30 P.M.

At the time of the accident James Sinnet was employed as a filling station attendant on Route No. 157, which is a highway running generally north and south under the bridge, and was able to see from the filling station the construction area and the scene of the accident. He testified that on the night of the accident and at the time of the accident the lights in the barricades were clearly visible from his station. He was on his way back into the station when he heard the crash, and he looked in the direction of the construction area, and the lights were clearly visible to him. He did not see any cars after he heard the crash, but someone came to the station looking for flares who thought there was a car over the embankment. He did not go to the scene of the accident.

Respondent, State of Illinois, is not an insurer of the safety of persons using its highways. It is only required to maintain adequate signs warning of the particular danger, Grant vs. State of Illinois, 21 C.C.R. 563; Williams vs. State of Illinois, 21 C.C.R. 597; Bloom vs. State of Illinois, 22 C.C.R. 582. In the case of Williams vs. State of Illinois, 21 C.C.R. 603, the Court in denying the claim said:

“It is difficult for us to understand why they did not see any signs of the construction work being done in and around the approach to the bridge for a reasonable distance, which should have been visible to them in time to bring their car under control, and thus enabled them to avoid striking the hole in the pavement. Furthermore, in deciding the question of contributory negligence, whether one of law or fact, we cannot ignore the Departmental Report as to the extensiveness of the construction of said highway and approaches to the bridges; * * *” (Emphasis added)
“It is, therefore, our opinion that if claimants ignored the signs of warning, did not follow the detour as posted, and drove on the pavement, which had not cured, and in the vicinity where the approach to the bridge was being repaired, they did so at their peril, and assumed all the risks and hazards incident thereto. The record is silent as to anything being said, or any warning or protest being offered by Inez Williams who was riding as a passenger with her husband. Furthermore, we are of the opinion that, as to her injuries, and the injuries and property damage suffered by her husband, Erwin Williams, it was his negligence, which was the proximate cause of their personal injuries and property damage.”

From the evidence it is clear that the accident resulted solely from the negligence of claimant, Thomas Perkins. There is nothing in the record that would indicate that the passenger, Bertha Vaughn, said anything or offered any protest in the way the car was being driven.

The claims of Thomas Perkins and Bertha Vaughn are, therefore, denied.


text:
    (No. 5521
    Charles M. Kenney, Administrator of the Estate of Jerry Dean Seipel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Charles M. Kenny, Administrator of the Estate of Jerry Dean Seipel, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks payment of the sum of $340.64 for services rendered the Department of Public Health.

The parties have stipulated that the report of the Department of Public Health be admitted into evidence in the proceeding without objection by either party. It includes the following statements: ■

“Jerry Dean Seipel, deceased, was employed by the Department of Public Health at the time of his death on October 11, 1966. He had 11% days of accumulated vacation, which calculated on the basis of his monthly salary entitles his estate to the sum of $340.64. Payment for this accumulated vacation has not been made, since no one furnished this Department with a properly executed small estates affidavit, letters of administration, or letters testamentary prior to May 16, 1968.
“The files of the Department do not contain any information relating to an assignment of this claim or any portion thereof, or any instance therein, to any person. It appears from the files of this Department that claimant is entitled to payment as set forth in his complaint.”

The stipulation further states that neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $340.64.

It appears that the sole reason for nonpayment of the claim herein is because of a lapsed appropriation.

Claimant is hereby awarded the sum of $340.64.


text:
    (No. 5537
    Punch Brown Garage, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Punch Brown Garage, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Punch Brown Garage, claimant, seeks judgment in the sum of $71.94 for materials furnished to the Department of Public Works and Buildings, State Highway Building, Paris, Illinois.

A stipulation was entered into by claimant and respondent as follows:

“The report of the Department of Public Works and Buildings, dated August 19, 1968, (a copy of which is attached hereto, marked exhibit A, and, by this reference, incorporated herein and made a part hereof), shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $65.31.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services are satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contract was 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.

Claimant, Punch Brown Garage, is, therefore, awarded the sum of $65.31.


text:
    (No. 5546
    Xerox Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    Xerox Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Xerox Corporation, filed its complaint against respondent for the sum of $1,800.00 for services rendered the Division of Highways.

A stipulation was subsequently entered into by claimant and respondent as follows:

“That claimant, Xerox Corporation, had completed the services as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of One Thousand Eight Hundred Dollars ($1,800.00).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennium appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof had occurred.
“That upon the foregoing agreed case filed herein the Court shall decide thereon, and render judgment herein according to the rights of the parties in the same manner as if the facts aforesaid were proved upon the trial of said issue.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is 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.

Claimant, Xerox Corporation, is, therefore, awarded the sum of $1,800.00.


text:
    (No. 5556
    St. Joseph's College, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 10, 1968.

    St. Joseph's College, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks payment of $300.00 from respondent for tuition owed on behalf of Robert S. Berkowicz. The request for the funds was made from the Board of Vocational Education and Rehabilitation, Division of Vocational Rehabilitation, and was refused on the grounds that funds appropriated for such payments had lapsed.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears that all of the requirements have been met in the instant case.

Claimant is hereby awarded the sum of $300.00.


text:
    (Nos. 5085-5089, Consolidated
    William Tyler, an emancipated male of the age of nineteen years, and William Tyler, a minor, by Andrew Smith, his Father and Next Friend; John T. White; Irene Jacobs; Cheryl Johnson, a minor, by Irene Jacobs, her Mother and Next Friend; Andrew J. Smith, Administrator of the Estate of L. C. Tyler, Deceased; Claimants, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    R. W. Harris and Wham and Wham, Attorneys for Claimants.
    William G. Clark, Attorney General; C. Arthur Nebel and Lee D. Martin, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Five claimants seek recovery of money damages arising out of an automobile accident on December 3, 1961. They allege that respondent was negligent in the maintenance of a public highway, and failed properly to warn the traveling public of a rock wall at the end of a “T” intersection of Routes Nos. 37 and 57 in Williamson County, Illinois, a few miles south of Marion, Illinois.

Claimants, William Tyler, John T. White, Irene Jacobs, and Cheryl Johnson, sustained personal injuries, and L. C. Tyler, the wife of William Tyler, was killed while riding in an automobile driven by John T. White. They had been traveling in a southerly direction along Route No. 37 at approximately 6:00 A.M. in foggy weather, when the car crashed into a rock wall.

The complaints in the consolidated cases charge that during the year of 1960 a new highway, designated Interstate Route No. 57, was constructed, which ran generally parallel and to the west of State Route No. 37 in Williamson County. At a point about eight miles south of Marion, Illinois, an access highway to Interstate Route No. 57 was constructed, which ran in a southeasterly direction connecting State Route No. 37 and Interstate Route No. 57. After the construction of the access road the course of Route No. 37 was changed so that it intersected the access route at a right angle, or in a “T” intersection.

The new portion of State Route No. 37 and the access road at the “T” intersection were cut through a hill. The complaints charge this left high banks on either side, and a bank of solid rock at the end of the “T” intersection directly facing the southbound traffic on State Route No. 37. As a result of the new construction, according to claimants, State Route No. 37 was changed to make a sharp turn to the right a short distance before it came to the dead end bank of solid rock.

Claimants contend that, on December 3, 1961 at approximately 6:30 A.M. and before daylight, John T. White was driving his 1959 Ford vehicle in a southerly direction along State Route No. 37 at a reasonable rate of speed unknowingly approaching the “ T ” intersection, and that by reason of the sharp turn, lack of proper warning devices, fog, and nearness of the dead end intersection, he was unable to stop prior to crashing into the rock wall at the “T” intersection.

Claimants further contend that prior to this collision respondent had had actual notice of the hazardous condition created by the construction and maintenance of the highway without adequate warning devices by reason of occurrence of at least 35 accidents from the date the highway opened for public use in November, 1960 until the date of the accident involved in the instant case. The previous accidents at this location resulted in injury to numerous persons and property, and the death of three other persons, according to claimants.

Specific acts of negligence alleged are that respondent failed to give sufficient warning of the sharp right turn, and the fact that the road came to a dead end only 300 feet beyond said curve; that it permitted, said curve and dead end road to exist and remain in such condition when it knew of the many accidents causing injury and death to the users prior to December 3, 1961; that it failed to establish and maintain adequate and proper warning signs or devices at a sufficient distance north of the sharp curve and dead end intersection to provide advance warning to southbound traffic of its approach; that it negligently and carelessly constructed said highway and the Route No. 57 approach when it knew, or should have known in the exercise of ordinary care, that the highway, as constructed, created an undue hazard for the traffic, which had to use it.

The damages sought are as follows: Case No. 5085, William Tyler, for personal injuries, loss of earnings and medical expenses, $20,000.00; Case No. 5086, John T. .White, for personal injuries, medical expenses and loss of earnings, $10,000.00; Case No. 5087, Irene Jacobs, personal injuries and medical expenses, $20,000.00; Case No. 5088, Cheryl Johnson, a Minor, by Irene Jacobs her Mother and Next Friend, personal injuries and medical expenses, $20,000.00; and, Case No. 5089, Andrew J. Smith, Administrator of the Estate of L. C. Tyler, deceased, and for wrongful death on behalf of her husband and minor daughter, $25,000.00.

In order to recover, each claimant must prove by a preponderance of the evidence (1) his or her freedom from constributory negligence; (2) the negligence of respondent; and, (3) that respondent’s negligence was the proximate cause of the injuries claimed herein.

The evidence established that the “T” intersection was backed by a rock wall, approximately 10 to 15. feet high, which faced traffic traveling southbound on Route No. 37. The wall was located approximately 21 feet from the edge of the pavement. At the approach to the intersection was a “Stop Ahead” sign with “1,000 feet” beneath it, a flashing yellow light mounted on top of another “Stop Ahead” sign on the left side of the road, a “37” sign backed by a directional arrow, and “Stop” signs on each side of the road at the intersection itself, all controlling southbound traffic. Immediately in front of the rock wall was a guard rail, and a rectangular sign with directional arrow and the number “37” on a backing of black and white stripes. An overhead red signal, which was supposed to flash at the interesction for southbound traffic, was also installed.

The driver of the car, John T. White, testified that he was enroute from Benton Harbor, Michigan to Arkansas. He had been over Route No. 37 about a year before the accident, but the intersection had not been in existence at that time. The weather was foggy and wet He was driving at a speed of 40 or 45 miles per hour. His headlights were on dim, White stated, because that way the light was on the ground. When they were on bright, according to White, he could not see because of the fog. As he approached the scene of the accident, he saw no signs, but did see a blinking yellow light as he started around the curve. He stated that he expected to find a crossroad. When he saw the blinking light he slowed down, but he saw nothing as he rounded the curve, and went back to his normal speed. Suddenly he saw the embankment across the road, but could not stop. He applied his brakes, and skidded into the wall. He was able to get help at a nearby house, and returned to the scene of the accident. White testified that at no time did he see a red light flashing overhead.

William Tyler testified that he was riding in the rear seat of the car with his wife, L.C., and daughter, 18 months old. Because of the waist-high fog he saw no signs until they reached the sign, which said “37”, after the brakes were applied. The fog was not thick close to the pavement, and they could see the road.

The other two passengers, Irene Jacobs and her daughter, were riding in the front seat.

Larry Marvin Kimmel, a farmer who lived near the intersection, testified that one of the occupants of the ear called at his house for help immediately after the accident. He went to the car, and described the scene as right after daylight and foggy. He did not remember whether the red light was flashing. He estimated that about 39 to 40 cars had driven into the wall since the opening of the intersection in November, 1960. According to Kimmel, the curve leading to the intersection is gradual, but it still “comes up on you awful fast.” He further testified that, since the installation of rumble strips (corrugated gravel in the road) subsequent to the accident in the instant case, there have been no more similar accidents. The strips were placed about 1,000 feet from the stop sign.

William Carlton, Jr., a Marion city policeman, testified that he went to the scene of the accident just as the last ambulance was leaving, and noticed that the red flasher light at the intersection was not operating. He recalled making a statement to a boy standing there that “It is a damn shame this light isn’t working. This might have been avoided.” He described the light as red facing the southbound traffic, and amber in the other two directions. None of the lights were working.

James Wilson, who operated a Funeral Home in Marion, testified that his ambulance picked up the occupants of the car in the instant case, and later prepared L. C. Tyler’s body for burial in Arkansas. He further testified that his funeral home had been called to prior collisions on several occasions where drivers had gone into the rock wall.

The evidence further revealed that three deaths had occurred at the intersection prior to the accident in the instant case, one in February, 1961, and two on July 21, 1961. Although evidence of prior accidents is not competent to show negligence, it is admissible to establish that respondent had actual or constructive notice of the dangerous conditions, which existed. (Budek vs. Chicago, 279 Ill. App. 410; Sheppard vs. City of Aurora, 5 Ill. App. 2d 12; Wells vs. Kenilworth, 228 Ill. App. 332.)

Testimony concerning the inquest into the accident on July 21,1961 revealed that the red light was not flashing at the intersection when that accident occurred, yet started working as an operator of a wrecker, Robert J. Parks, was retrieving the car. At that time witnesses called the attention of the State Patrolman to the fact that the light was not working. Parks and his companion, O. L. Norris, testified that the light flashed for about 20 to 25 minutes, but, as they left, they noticed it had stopped working again. Witnesses Park, Norris, and State Trooper Gardner also testified at the July inquest that the light was not working at the time of the accident.

Williamson County Coroner, Paul Litton, stated that on July 25, 1961 he conducted an inquest on the bodies of the two people killed in the accident on said date. The verdict of the Coroner’s Jury admitted in evidence reads as follows:

“In the matter of the Inquisition of the body of W. J. Pryor and Nora Kemp, deceased, held at Marion, Illinois on the 25th day of July, 1961.
We the undersigned jurors sworn to inquire into the deaths of W. J. Pryor and Nora Kemp, on oath do find that they came to their death by injuries received in an automobile wreck at the intersection of State Routes Nos. 37 and 57. The jury recommends that the proper authorities check the lighting system to see that it is in working order, and that this hazard be eliminated immediately.” (Emphasis supplied.)

The Coroner then notified Paul Powell, Speaker of the Illinois House of Representatives of the verdict. Speaker Powell then sent a letter, dated October 31, 1961, to Mr. Ralph Bartlesmeyer, Chief Highway Engineer of the Division of Highways, which stated:

“Dear Ralph:
I am enclosing a copy of a Coroner’s Inquest mailed to me by Paul C. Litton, Coroner of Williamson County. You will note that W. J. Pryor and Nora Kemp came to their death by injuries received in an automobile wreck at the intersection of State Routes Nos. 37 and 57. I am sure you will not want this to happen again, and will check the lighting system, if this has not already been done.
Sincerely yours,
Paul Powell”

A letter, dated November 9, 1961, addressed to Paul Powell, states as follows:

“My dear Mr. Speaker:
This will acknowledge receipt of your letter of October 31 to which was attached a copy of Williamson County Coroner Paul C. Litton’s report on a fatal accident, which occurred at the intersection of Illinois Route No. 37 with Interstate Route No. 57 on July 21.
A complete investigation was made at this location by representatives of our Carbondale District Highway Office. Théy have informed me that, to the best of their knowledge, the overhead flashing signal was in operation at the time of the accident. They have based this statement on a report made by a State Trooper who investigated the accident in which he indicated that the red flashing light was operating, and that the unit on Route No. 37 drove past the stop signs and flashing red signal, striking a rock embankment with the front end of his vehicle. My report states that representatives of our Carhondale District are constantly on the alert checking traffic control devices. The District Office and State Highway Police are immediately notified when either a stop sign or other control is knocked down, or a traffic signal is out of operation, and replacements are made at once.
I wish to thank you for calling this situation to my attention.
Very truly yours,
R. R. Bartelsmeyer
Chief Highway Engineer”

Mr. Vernon Kupel, Engineer in charge of traffic operations for the district where the accident occurred, testified that he had received a copy of the letter from Paul Powell to Mr. Bartelsmeyer, and made an investigation. His investigation consisted solely of looking at the police accident report of the July 21st accident. The policeman's statement in the report noted: “Unit 1 drove past stop signs and flashing red signal, and struck rock embankment with right front end." The State Trooper who wrote the report was not called to testify in the instant case.

Kupel further testified that, prior to the accident in the instant case, his division was concerned with accidents involving vehicles going into the wall, and that they had given consideration to additional warning devices at the intersection approach. He stated that his department had received complaints by persons concerning the frequency of accidents at that location, and that he had reports of nine accidents involving running into the wall or the ditch in his files from the State Highway Police.

According to Kupel, before construction of this intersection, Route No. 37 extended straight south where it would have intersected with Route No. 57 in the form of a “Y”. He testified that the Manual of Uniform Traffic Control Devices for Streets and Highways, published by the Department of Public Works and Buildings, Division of Highways, and placed in the hands of the Districts for use in erecting signs, did not call for the use of a “T” road intersection sign. He stated that they were bound to follow the manual for all general instances, but that signs have been designed to meet special conditions with the approval of the Springfield office. At the intersection in question, according to Kupel, they considered only standard signs. His testimony established that pavement markings would have been permissible.

Keith Mahan, Engineering Technician for the Division of Highways, testified that in August, 1961 he was sent by Mr. Kupel to draw a sketch of the signs approaching the intersection. He further testified that the signs approaching the wall were changed after the accident, because they could possibly lose their reflectorization.

Carol Sorgen, who made photographs of the scene of the accident for claimants, testified that, on Decem5, 1961, two days after the accident, he took pictures of the scene, and did not think that the “Stop Ahead” signs were reflectorized. Sorgen also noticed that the “Stop Ahead” signs had “10/58” on them, which he thought were dates. The numbers were never explained by respondent.

Louis Yon Behren, Traffic Field Engineer for the Division of Highways, testified that no individual was responsible for the operation of the red light flashing signal, but that all of the technical employees were collectively responsible. He further stated that he was once called when the overhead light was out, and went to fix it. It had needed a new bulb. According to Von Behren, the Department requires reflectorization of all ‘ ‘ Stop Ahead” signs, but that reflectorization deteriorates over a period of time. He remembers discussing the fact that “35 accidents” had occurred at the wall, although he did not think there was evidence of that many. He also stated that, since the installation of rumble strips, they have noticed a decrease in accidents.

Assistant District Engineer, Thomas 0. Cromeenes, stated that the location in question was the only place in the District, which had a rock wall at the end of a “T” intersection.

Jessie W. Childers, Group Superintendent of the Central Illinois Public Service Company, testified that his company furnished electricity to the State of Illinois for the red flasher signal. He further stated that an examination of his records on December 3, 1961 showed no interruption of service. There was no record of interruption of operation of electrical energy during July 20, 21 and 22, 1961. Respondent failed to offer any testimony as to whether or not the light was in fact working at the time of either the accident in question or the one in July. It was not established that the sole criterion of whether the light was operating was one of electrical energy. In fact, respondent’s own witness testified that on one occasion the bulb was burned out. There was no rebuttal to claimants’ witnesses who testified that the light was not working.

Respondent cites the case of Shirar, Admr., Etc. vs. State of Illinois, Case No. 5124, to the effect that a red light was not required by statute at the intersection. The question is not whether a specific sign is required, but whether respondent exercised reasonable care in warning the public of the danger on the highway. It is the conclusion of the Court that reasonable care was not exercised in this instance.

The evidence adduced is, in the Court’s opinion, insufficient to rebut the direct testimony establishing the fact that the overhanging red light was not, in fact, operating at the time of the accident, and that it had had a history of sporadic inoperation.

Respondent contends that the sole proximate cause of the accident was that the driver proceeded past six signs warning him of his duty to stop at the intersection, and that his failure to heed the signs caused the accident and resulting injuries to himself and his passengers.

The State of Illinois owes a duty to the traveling public to maintain adequate and proper warning signs or devices alerting the public to the unusual and dangerous conditions ahead. (Mammen vs. State of Illinois, 23 C.C.R. 130; Bovey vs. State of Illinois, 22 C.C.R. 95). There is no question but that respondent had ample notice that the signs, which were posted, were woefully inadequate in apprising the motoring public that a “T” intersection, backed by a lethal 10 foot high rock wall, stood beyond the curve, which was marked only by “Stop Ahead” and the usual curve signs. Although claimant’s photographer testified that the “Stop Ahead” signs were not reflectorized two days after the accident, respondent never established that the signs were, in fact, adequately reflectorized to be visible to the motorist traving in darkness or fog. In fact, respondent’s witnesses testified that signs do tend to lose their reflectorization after a period of time, and that from all indications these signs might have been standing since October, 1958.

In Mammen vs. State of Illinois, 23 C.C.R. 130, recovery was granted because the State did not give adequate warning of a discontinued roadway. The Court stated at page 135:

“From all the evidence in this case, we find that respondent was negligent in failing to properly inform the motoring public of the barricade’s existence and the dead end of the road. Regardless of whether Mr. Mammen saw the ‘No Outlet’ sign or whether he did not, that sign was clearly inadequate as a warning that he would be confronted with a low barricade, which blended into the landscape, and could not be readily seen in time to avoid colliding with it. The evidence clearly reflects that no warning of any kind was given by respondent as to the existence of this barricade.
“This situation comes within the purview of Bovey vs. State of Illinois, 22 C.C.R. 95, wherein we allowed a recovery based upon the insufficiency of the signs to warn the motoring public of a particularly dangerous condition. The rule there announced is that, although the State is not an insurer of the safety of persons in the lawful use of its highways, it is nevertheless under a duty to give warning by the erection of proper and adequate signs at a reasonable distance of a dangerous condition of which the State had notice either actual or constructive. We hold that, under the conditions involved in this case, a sign stating “No Outlet” is wholly insufficient to advise the motoring public of the barricade involved and the abrupt ending of a State highway. Respondent was negligent in failing to maintain adequate signs warning of this particular danger, which obviously was known by it to exist long prior to the happening of this occurrence.”

In the instant case, it was established that there were no signs to warn the motorist of the particular danger of the rock wall. The only sign, which might have warned a motorist traveling in darkness or heavy fog that he must stop, a flashing red light, was not in operation at the time of the accident. The failure of the red light to operate at all times had been forcefully brought to the attention of respondent’s agents as early as July, 1961, over four months before the accident in question, yet no action was taken by respondent. Even personal intervention of the Speaker of the Illinois House of Representatives requesting a check of the lighting system and a specific recommendation by a Coroner’s Jury to this effect brought no reasonable attempt to remedy the undisputed fact of the erratic operations of the flashing red light. Not one investigator was dispatched to examine the light. Not one employee was specifically assigned to-keep the light in operation, and, after “35 accidents and three deaths” in less than a year, not one step was taken to change the obviously inadequate warning system, or the obviously dangerous rock wall intersection. Reasonable care was in no way exercised by respondent.

Although the rumble strips, which have now decreased the accident rate at the intersection, may not have been available, there were many alternative precautions such as flares, operating red lights, luminous pavement markings, and warnings of the specific danger, which should have been utilized as a result of respondent’s actual notice of the dangerous trap it had created.

It is the conclusion of the Court that claimant, John T. White, has not adequately proved his freedom from contributory negligence in that the speed of 40 to 45 miles per hour under the visibility conditions described by the witnesses herein would appear excessive. Although he expected to find a crossroad after seeing the yellow light, he did not decrease his speed for any appreciable time. This fact, however, does not detract from respondent’s negligence, which also contributed to the accident. Therefore, recovery by the innocent injured passengers shall be allowed. (Hargrave vs. State of Illinois, Case No. 4992). In such a situation, liability is joint and several, and recovery may be had against either negligent party.

L. C. Tyler, 23 years old, died from injuries suffered in the accident 37 hours after she was admitted at the Marion Memorial Hospital. .She was pregnant at the time. Her surviving husband, William Tyler, was 18 years old at the time of the accident, and her daughter, Sandra Marie Tyler, was 18 months old. L. 0. Tyler did not work for wages, but kept house for her husband and child. Claimant for the benefit of the survivors of L. C. Tyler is Andrew J. Smith, the Administrator of her Estate. Since substantial damages must be presumed where the surviving spouse and lineal kindred survive, Andrew J. Smith, as Administrator of the Estate of L, 0. Tyler is awarded the sum of $20,000.00.

Claimant, Irene Jacobs, suffered a fracture of the acetabulum without displacement, and the latest x-ray showed a complete healing of this fracture with full normal range of motion. She had aching in the hip after walking four or five blocks. She also suffered a fracture of the left forearm involving both bones with displacement, and open reduction had to be performed. An intramedullary nail was passed through the ulna and a radius plate was used for fixation. The fixation devices were removed, and x-rays taken in September, 1963 showed good alignment. Her doctor concluded that there was full range of motion with no muscle atrophy in both the wrist and arm. She also suffered a laceration resulting in a disfiguring scar running across both eyelids and over the bridge of her nose, described as “moderately severe” by the doctor. She had a fractured rib, which caused her difficulty in breathing during treatment. There is no question but that she had extensive pain and suffering while recovering from the injuries, that she had to use crutches, that she was bed-fast in the hospital for three weeks and at home for a month and a half, and that her residual permanent condition consists of the disfiguring scar and pain after walking a long distance. The sum of $7,000.00 is hereby-awarded to Irene Jacobs.

Claimant, Cheryl Johnson, 18 months old at the time of the accident, had a dislocation fracture of her left ankle from which she fully recovered. She was in a cast, and also had lacerations, which resulted in disfiguring scars still visible in September, 1963. There was a scar on the upper lip near the angle of the mouth, one-half inch long extending diagonally toward the cheek. Cheryl Johnson is hereby awarded $3,300.00.

Claimant, William Tyler, had a skull fracture and swelling over the right eye, although he was conscious when first seen by the doctor. There was no injury to the brain. There was a fracture to the ends of the radius and ulna. It was reduced, and a plaster cast applied. In September, 1963, he had a 15° limitation of flexion in his wrist, and a small amount of loss of rotation of the forearm. The pronation, which is with the palm down, was diminished by 15°, and the supination, which is with the palm up, was diminished by about 30°. The doctor described these injuries as permanent. William Tyler is hereby awarded the sum of $7,000.00.


author: Pezman, J.

text:
    (No. 5182
    Herman Parham, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Norman Nelson, Jr., Attorney for Claimant.

      William G. Clark, Attorney General; Philip J. Rock, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover from the respondent, State of Illinois, for damages under Sec. 8C of the Act creating the Court of Claims, which provides that the Court of Claims shall have jurisdiction to hear and determine:

All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: For imprisonment of five years or less, not more than $15,000.00; for imprisonment of 14 years or less but over five years, not more than $30,000.00; for imprisonment of over 14 years, not more than $35,000.00; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

Claimant, Herman Parham, was arrested on February 6, 1959, and indicted on March 13, 1959 on the charge of armed robbery. Claimant was tried for this crime on October 20, 1959, and a jury found him guilty, and sentenced him to serve from twenty to forty years in the Illinois State Penitentiary. Claimant subsequently prosecuted a timely writ of error to the Supreme Court of Illinois, and the Attorney General of the State of Illinois, on his motion, confessed error of the Criminal Court of Cook County.

On May 28, 1964, Parham was retried on the original indictment, and, on June 1, 1964, a jury, after hearing all the evidence, found him not guilty. It was stipulated by the parties hereto that the time claimant served in the Penitentiary of the State of Illinois was from November 20, 1959 until October 8, 1963.

Otto Rossner, the victim of the crime for which claimant was tried and found not guilty, testified that Parham robbed him of money on February 5, 1959 at about 4:15 P.M., while keeping him captive in his home, and that, when he saw his assailant for the first time, he had four pieces of tape on different parts of his face. Mr. Rossner testified that his assailant remained in his house and kept him captive until about 6:30 P.M., and that during the period of his captivity he saw the face of his assailant without the tape on one occasion for a very short space of time.

Otto Rossner further testified that he identified claimant as his assailant from a lineup in the Robbins Police Station the following day. He further stated that he testified at both of claimant’s criminal trials, and at both trials identified Parham as his assailant. At the hearing before the Commissioner of this Court, Otto Rossner positively identified claimant as the man who assaulted and robbed him.

Claimant, Herman Parham, denied his guilt of this crime of armed robbery at both trials, at a preliminary hearing, and also at the hearing before the Commissioner for the Court of Claims. Claimant testified that he was at a club in the earlier hours of the day in question in the company of other persons. He left this club in the company of a William Moore and an Aaron Stout at about 5:30 P.M., and went home. He left home between 5:30 and 6:00 P.M. after seeing and talking to his landlady, and then he went back to the club where he again saw Mr. Moore. He left the club in the company of Mr. Moore at about 7:00 P.M., and was with Mr. Moore until about midnight in various villages in Illinois and Indiana.

Claimant’s landlady, Bessie Moran, testified that she talked to Parham on the day of the crime at about 5:00 P.M., and that she saw him leave his apartment at about 5:30 or 6:00 P.M. Bessie Moran further stated that she testified at both of claimant’s criminal trials.

Charles Drake appeared as a witness for claimant, and testified that on the day of the crime he was across the street from the home of the victim, and at about 4:00 P.M., or thereafter, he saw a man, known to him to be named Trotter, coming out of the victim’s house. Mr. Drake further testified that he did not see claimant at the house. Drake testified that he later talked to Lieutenant Pennix, informed him of this incident, and named Trotter.

William Hargrave was called as a witness by claimant, and he testified that he was in the police line-up with the claimant on February 6, 1959. Hargrave testified that, when the victim was asked if he could identify anyone in the line-up, he answered, “No.” He further testified that claimant was then singled out by the police, and, when Bossner was asked if he could recognize claimant as his assailant, he answered that he could not identify claimant as his assailant, and stated that the man who committed the crime was taller and had a scar. Hargrave also testified at both trials.

William Moore, who did not testify at the first criminal trial in 1959, but who did testify in the second criminal trial in 1964, was called as a witness by claimant. Moore testified that he was at a card club with claimant and a Mr. Stout in the afternoon hours of the day in question, and left the club at about 4:35 P.M. with claimant and Stout in Moore’s car. Moore testified that Stout was let out of the car first, and claimant was let out at or near his house. Moore testified that he saw claimant again at the club at about 5:50 P.M., and that they remained together until approximately 1:30 A.M. the next morning. Claimant was out of Moore’s sight for approximately 50 minutes. Moore stated that he testified at claimant’s second criminal trial.

Claimant, Herman Parham, testified as a witness in his own behalf, and stated that he did not commit a robbery and an assault against Otto Rossner on February 5, 1959, the crime for which he was arrested, tried, and convicted, and for which he was later retried and found to be innocent of. He testified that at the time of the robbery he was in his room at 13820 Central Park Avenue, Robbins, Illinois, which is some distance from where the- robbery and assault is alleged to have occurred. He further testified that, prior to his imprisonment, he was a construction worker earning approximately $20.00 a day. He was imprisoned in the State Penitentiary for approximately four years as a result of the conviction for which he has filed this claim.

In order that claimant be entitled to an award from the State of Illinois for time unjustly served in prison, it is well settled that claimant must prove by a preponderance of the evidence (1) that the time served in prison was unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him; and (3i the amount of damages to which he is entitled. Jonnia Dirkans vs. State of Illinois, Case No. 4904; Munroe vs. State of Illinois, Case No. 4913; Henry Napue vs. State of Illinois, Case No. 4912.

In the Dirkans case, this Court held that a claimant attempting to recover an award for unjust imprisonment must prove his innocence of the “fact” of the crime for which he was imprisoned.

Otto Bossner testified that his assailant was in his house from about 4:15 until 6:30 P.M. William Moore testified on behalf of claimant that he drove claimant to or near his rooming house at about 4:35 P.M. on the day in question, that he later saw claimant at the card club at about 6:00 P.M., and, that they remained together until about 1:30 A.M. the following morning. Claimant’s landlady, Bessie Moran, testified that she talked to claimant at about 5:00 P.M., and that she saw him leave his apartment at about 5:30 P.M. on the day in question. William Hargrave, who testified on behalf of claimant, stated that Otto Bossner could not identify claimant in the police line-up, and that when claimant was singled out by the police Bossner stated that he could not identify claimant as the man who committed the crime, and that his assailant had been taller and had a scar. Charles Drake testified that on the day in question he saw a man, known to him to be named Trotter, coming out of the victim’s house at about 4:00 P.M., but that he did not see claimant with whom he was acquainted at the house of the victim.

To rebut the testimony of claimant and his witnesses, respondent relies on the testimony of the victim of the crime, namely, Otto Bossner. Otto Bossner admits that when he saw his assailant for the first time he had pieces of tape on his-face, and that he caught only a very quick glance of his assailant’s face without the tape on. There is no substantiation of Rossner’s testimony that he identified claimant as his assailant from the police line-up.

It is the opinion of the Court that claimant has satisfied his burden of proof, and has proved by a preponderance of the evidence that he is innocent of th< “fact” of the crime for which he was imprisoned. Claim ant has proved by a preponderance of the evidence that the time served in prison was unjust, that the act for which he was wrongfully imprisoned was not committed by him, and the amount of damages to which he is entitled.

It is the opinion of this Court that claimant be granted an award pursuant to Sec. 8C of the Act creating the Court of Claims in the sum of $10,000.00.


text:
    (No. 5217
    Mary Frances Thomas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Joseph M. Taussig, Attorney for Claimant.
    William G. Clark, Attorney General; Gerald S. Grobman and Morton L. Zaslavsky, Assistant Attorneys General, for Respondent.
   Dove, J.

Mary Frances Thomas, claimant, is seeking judgment against the State of Illinois in the amount of $8,470.00 for services allegedly performed by her as a clerk-typist, while she was a patient at the Chicago State Hospital.

The Departmental Report, which was filed in this case, gives a short history of claimant as follows:

“According to our records, the patient was first admitted to the Chicago State Hospital on October 31, 1953. She was committed as mentally ill on October 29, 1953 to the Psychopathic Hospital of Cook County. Her diagnosis upon admission at the Chicago State Hospital was Schizophrenic Reaction, Chronic Undifferentiated Type with Paranoid Tendencies.
“On August 20, 1956, patient worked in the Public Health Officer’s Office as an Industrial Assignment.
“On May 23, 1958, patient was transferred to the Tinley Park State Hospital. Records from the Tinley Park State Hospital state that on April 21, 1959 patient worked in the office of the Volunteer Service as a clerk-typist, an Industrial Assignment, part of patient’s treatment.
“On April 22, 1959, patient was transferred back to the Chicago State Hospital. Records dated January 23, 1962 stated that Miss Thomas has worked in ‘the Chaplain’s office for about six months.’ The kind of work performed included ‘typing, filing, taking messages, and miscellaneous work around the office.’ On the same date John H. Reynolds, Chaplain Coordinator of Protestant Services, wrote to Miss Ruth Espe, Industrial Therapist, recommending that Miss Thomas be hired as an ‘Institutional Helper’ in a secretarial capacity for the Chaplain’s office. This recommendation was considered and discussed. However, it is not customary for Chicago State Hospital to employ former patients, but rather encourage, help, and support them toward finding a place in the community once they have gained enough stability within the hospital setting. This was the case with Miss Thomas, so exploratory steps were initiated toward this aim.
“In March, 1963, Miss Thomas was referred to the Rehabilitation Department. ‘It was felt that she could benefit from an intermediate work situation, i.e., as a period for increasing her self-confidence, and as a test of her stability to work outside.’ Thus she was referred to Civil Defense for a period of approximately four months. In September, 1963, an evaluation of Miss Thomas’ performance at Civil Defense was made. It was stated that the patient ‘did quite well working in clerical skills. She terminated at Civil Defense on this date, a discharge planning was pending.’ On September 16, 1963, Miss Thomas was granted a Conditional Discharge to Self, as Improved. On January 15,1964, Miss Thomas’ Conditional Discharge was changed to Absolute Discharge as Recovered.”

The issues in this case are framed by three paragraphs in claimant’s complaint, which are denied by respondent:

“Between to-wit the first day of August, 1961, and to-wit the first day of June, 1963, inclusive, and while claimant was a patient at the Chicago State Hospital, the claimant at the instance and request of the Department of Mental Health of the State of Illinois performed certain services.
“The value of the services performed for and at the request of the Department of Mental Health of the State of Illinois is $385.00 per month, or a total of $8,470.00, as detailed in the attached Bill of Particulars.
“Claimant is justly entitled to the amount herein claimed from the State of Illinois or the appropriate State Agency after allowing all just credits.”

Dr. Albert Kunschner, the physician in claimant’s ward, testified that he went on various occasions to the personnel office of the hospital to see about putting Miss Thomas on the payroll. On numerous occasions he talked to Mr. Hurd, the Director of Personnel, and recommended employment as a part of her treatment, but that Mr. Hurd advised bim that there were no funds available for such employment. Chaplain Paul N. Mun-son at the hospital also testified that claimant was very depressed and despondent because she was not being paid for her work; that he had discussed the matter of claimant’s employment with Dr. Kunschner. and Mr. Hurd, and that Mr. Hurd advised him that claimant would have to receive an Unconditional Discharge before she could be put on the payroll.

Claimant contends that in Illinois there are statutory provisions, which indicate a legislative intent and history that the Director of the Department of Mental Health had the power to employ claimant or other persons in a similar status, and thereby become liable for payment for such services rendered. “Each department is empowered to obtain necessary employees, and, if the rate of compensation is not otherwise fixed by law, to fix their compensation subject prior to July 1, 1956 to Civil Service Laws in force at such time, and on or after July 1, 1956 subject to the provisions of the ‘Personnel Code’, enacted by the 69th General Assembly.” (Chap. 127, Sec. 20, Ill. Rev. Stats.)

The record is clear that, in spite of repeated efforts made by the doctors and the chaplain on claimant’s behalf, she was not put on the payroll either as a patronage or a merit system employee. The record further discloses that claimant worked as a clerk-typist in the chaplain’s office during the period from August 1, 1961 through June 1, 1963.

In the case of Maibauer vs. State of Illinois, 4 C.C.R. 115, the Court, in denying a former patient of a State institution any compensation for services rendered during the period of confinement, said:

“We do not think there is any force to the argument that claimant is entitled to recover for services he claims to have rendered while an inmate of the State Hospital. There is no authority in law for payment for such employment.”

And in the case of Kough vs. Hoehler, 413 Ill. 409, the court stated:

“The Mental Health Code makes no provisions for allowing any credit for the labor of patients against the charges assessed. It has been generally held that, where a statute requires that the patient, his estate or his relatives pay the cost of his maintenance in the State Hospital, and there is no express statutory provision for deducting the value of any labor performed by the patient, no deduction can be allowed.”

The claimant further contends that she may be entitled to recover in quantum meruit, for the reasonable value of services rendered by her to the chaplain. This contention was considered in the case of Dutton vs. State of Illinois, 16 C.C.R. 64, and the Court there held that, where claimant furnished services and labor for an agency of the State, and admitted he was not an employee of the State, the Court recognizes that the law will raise an implied contract, that the recipient of labor or materials will pay the fair reasonable value of the same, but where the defendant is the sovereign State, this doctrine does not apply.

We are of the opinion that claimant’s services should be considered as incidental to her commitment to the hospital, and not as a basis for compensation.

It is, therefore, the order of the Court that claimant’s claim be denied.


text:
    (No. 5221
    Darlene Marts, a Minor, by Alexena Marts, her Mother and Next Friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Davidson, Pavalon and Schultz, Attorneys for Claimant.

      William G. Clark, Attorney General; Gerald S. Grobman and Sheldon Bachman, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimant Darlene Marts, a Minor, represented by Alexena Marts, her mother, seeks recovery of $25,000.00 for injuries suffered when the claimant fell into a pit of burning leaves at the Stephen A. Douglas Memorial Park at 35th and Leif Erickson Drive in Chicago, Illinois.

The evidence presented establishes the following facts:

On Sunday, October 13, 1963, at about 3:00 P.M., claimant, Darlene Marts, aged 6% years, went with her uncle, Gordon Widlund, her sister, Marie, aged 8 years, and her brother, Jerry, aged 10 years, to the Stephen A. Douglas Memorial Park. While the children were playing in the park Darlene slipped into a hole of hot ashes, and was seriously burned on her legs.

Darlene, who was 9 years old at the time of the hearing, testified that she saw ashes in the hole but no flames. There was nothing around the hole, no barricades or logs, and the custodian, Herman Williams, employed by the State of Illinois Department of Conservation said nothing to them while they were in the park. Darlene further testified that there was water coming from a hose near the hole, which made the grass near the hole slippery, and caused her to slip into the hole. She was pulled out of the hole by her uncle who poured water on her, and she was subsequently taken to Michael Reese and Children's Memorial Hospitals. She stayed in Children’s Memorial Hospital for five weeks. She was in first grade at the time of the accident, and had to repeat the first grade. She further stated that she had been to the park three or four times before the day she was hurt, and had never seen the hole before, although she had played in the area where the hole was located.

Interrogatories established that the hole in question was dug by Herman Williams around October 10th or 11th, and a fire was lit in the hole on October 12, 1963.

Herman Williams testified as follows: His duties were to take care of the park grounds, and assist and lecture the visitors. The park is open from 9:00 A.M. to 5:00 P.M., and during that time he does not do maintenance work. Maintenance work performed after working hours includes the raking and burning of leaves. He dug the hole in question after 5:00 P.M. on October 10, 1963. Williams described the hole as five feet in diameter, and about six or seven inches deep. He put up a barrier around the hole, which consisted of dead logs about two feet high with six baskets around the hole, and a sign, which read, “Leaves Burning, Keep Away.” The sign had a green background with orange letters, was about two feet high, and was nailed to a plank about five feet high. The sign was not removed between October 10 and October 13. After burning leaves on October 12, 1963, he raked the hole to see that there were no leaves burning or smoking. He further stated that George Harper, the man who installed the sprinkler systern, helped him put up the barrier. The day of the accident he had reprimanded the children for jumping in the flowers, and had told the man accompanying them that there was a trash hole where leaves were burned. On cross examination, Williams stated that the park is open to the public, and, when people are in the park, they are allowed to wander around the grounds. After he raked the leaves on October 12, 1963 he did not put any water into the hole, but there was water running from a hose, which was placed 50 feet from the hole. The circle of logs were two and a half feet from the edge of the hole, and the baskets were up against the logs. He did not have to move the baskets to put leaves in the hole, but just threw the leaves over the baskets and logs. He further testified that, after the child was burned, the logs were in the same position.

His deposition stated that he knew that there were smoldering hot ashes in the hole on the morning of Sunday, October 13, 1963, when he checked the fire. The report filled out by Mr. Williams the day of the occurrence did n.ot mention a warning sign or a verbal warning.

George Harper testified that he assisted Mr. Williams in erecting a barricade around the hole in question on October 10, 1963, but that on Sunday, October 13, 1963, he did not notice the sign or the logs, and did not have occasion to observe the hole. He further stated that the baskets did not completely surround the hole, and the logs were only in front of the hole.

Gordon Widlund testified that he had driven claimant, claimant’s mother, sister and brother to the park, and that claimant’s mother went to visit her oldest son at St. Joseph’s Home for the Friendless across from the park while he took the children to the park. He made paper airplanes for the children, which they were sailing. He was about 25 feet from Darlene when he saw her go into the hole. He described the hole as about 4 or 5 feet in diameter, and about three or four feet deep. Widlund further testified that there was nothing around the hole but a bush and a tree. There was a wastebasket further away from the hole, but no barricades or signs. He stated that he did not converse with the caretaker at any time prior to seeing Darlene in the hole, except that he warned him to keep off the flowers, and that no one in the park told him about the hole, the ashes, or fire in the hole. The wet area around the hole extended to the hole from about twenty feet away.

Claimant charges that respondent breached its duty to exercise ordinary care for the safety of claimant by negligently creating a dangerous condition upon its premises, which foreseeably exposed children of tender years to serious injury. Claimant further contends that a minor under the age of seven years cannot, under law, be found to be contributorily negligent.

In the opinion of this Court, claimant has proved by a preponderance of the evidence that respondent’s negligence caused the injuries suffered in the instant case. The State owes a duty to the public to exercise reasonable care in maintaining and supervising its parks. Murray vs. State of Illinois, 24 C.C.R. 399; Kamin vs. State of Illinois, 21 C.C.R. 467; Stedman vs. State of Illinois, 22 C.C.R. 446.

Respondent did not dispute that the accident occurred in an area of the park open to the public during the hours the public was invited. That the precautions allegedly taken to prevent a child from falling into the trap of smoldering leaves were insufficient was proved by the fact that a child did indeed fall into the hole. The verbal warning, which the caretaker testified he gave, was uncorroborated by the facts of the case, and was contradicted by the other witnesses. He did not mention a warning in the report of the accident, which was written on the day of the occurrence.

The remaining question concerns the extent of damages suffered by claimant as a result of her injuries. Dr. B. Harold Griffith, a plastic and reconstructive surgeon, testified that he treated claimant, and first examined her. after her admission to Children’s Memorial Hospital in October, 1963. She had “burns of the hands, legs and the left foot, which appeared at the timé to be deep second-degree areas of third-degree.” The hands had a superficial second degree burn. The doctor explained that a third degree burn is a full-thickness destruction of the skin, and, in some instances, tissue beneath the skin. Fifteen days after her admission to the hospital the dead tissue was cut away, and subsequently a skin grafting operation was performed on both legs whereby “under general anesthesia the full thickness burns of the lower extremities were covered with skin grafts taken from the left thigh.” Dr. Griffith further testified that he last examined claimant on December 4, 1965, and at that time she had scars on both lower ex-tremitiés, which were permanent. The doctor also explained that injury to scar tissue may cause difficulty because a wound would heal slowly and be an ulcer. He testified that a child may at times outgrow the scars resulting in a limitation of the growth of the subcutaneous tissue and muscle bone. Claimant was examined on behalf of respondent by Dr. John A. Boswick of the Cook County Hospital. His report, admitted into evidence as respondent’s exhibit, stated that “the cosmetic or functional results could not be improved by further surgery at this time.”

The evidence further shows that claimant was released after five weeks at Children’s Memorial Hospital, but remained an out-patient of the Plastic Surgery Clinic until September 9, 1964. The hospital bill was $1,923.61, and was paid by the County of Cook, Department of Public Aid, of which $1,907.47 has been paid. Photographs admitted into evidence show claimant’s legs as covered with extensive scar tissue. The prognosis is that there is little which can be done to relieve this condition. The child was also set back one year in school as a result of the accident.

Claimant, Darlene Marts, is hereby awarded the sum of $12,000.00.


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    (No. 5283
    Richard Pigott, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Dusenbury and Lucas, Attorneys for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Etta J. Cole, Assistant Attorneys General, for Respondent.
   Pezman, J.

Claimant is seeking recovery for property damage and personal injuries suffered by him resulting from negligence on the part of respondent, State of Illinois.

Claimant alleges that the State negligently allowed and permitted a certain portion of U. S. Route No. 45, approximately four to six miles north of Kankakee, Illinois, to remain in such a state of disrepair as to create a hazard, and further alleges that this hazardous condition remained uncorrected after the State had actual notice of the existence of the hazardous condition. Claimant further alleges that the hazardous condition in question was the proximate cause of an accident in which he was involved, resulting in personal injury to himself and damage to his property.

The transcript of evidence discloses that on April 12, 1965, at approximately 3:30 A.M., Trooper William James, while on duty as an Illinois State Policeman, was patroling U. S. Route No. 45 when he observed a large piece of concrete, broken and jutting slightly upwards, at a location about one and three-fourths miles south of the Manteno Road on Route No. 45, approximately four to six miles north of Kankakee, Illinois. Trooper James called the Kankakee Sheriff’s office, and advised them to contact the State Highway Maintenance Department. The Sheriff’s office subsequently advised Trooper James that they had contacted one of the highway foremen, and the highway condition would be repaired immediately.

On the same date at approximately 4:00 A.M., claimant, a resident of Bourbonnais, Illinois, in the County of Kankakee, State of Illinois, was traveling north on U. S. Route No. 45 at a speed of 45 m.p.h. with his headlights on. At a point four to six miles north of Kankakee, or one and three-fourths miles south of the Manteno Road on said U. S. Route No. 45, claimant saw a semitrailer truck approaching in the opposite lane heading south on U. S. Route No. 45. Claimant dimmed his headlights because of the oncoming truck, and suddenly, without warning, he noticed something loose on the highway, and then observed a large hole in the pavement. Claimant hit the hole in the road while going at approximately 45 m.p.h., which caused him to lose control of his vehicle. Claimant’s car finally came to rest in a plowed field, approximately fifty feet north of the hole, with the rear end of the car against a utility pole, and his car facing south. As a result of the accident, claimant’s car was damaged, and claimant suffered injury to his person.

The testimony herein showed that claimant had been traveling this portion of U. S. Route No. 45 five days a week for about a period of five years going to and from work, the last time being on April 9, 1965, three days before the accident, at which time he observed no defects in the highway.

After the accident, claimant went over to look at the hole in the highway, and observed a loose slab of concrete about six to eight inches in width lying on top of the highway near where it previously had been lodged, and he saw a hole at that point about eight to ten inches deep from which the concrete slab had been dislodged.

At approximately 5:03 A.M. on the date of the accident, Trooper William James received a call of an accident at the location one and three-fourths miles south of the Manteno Road on U. S. Route No. 45, and observed a large piece of concrete that had been knocked out of the hole. Trooper James indicated that the broken piece of concrete measured about two feet by two feet by six inches in width.

Claimant contends that the State of Illinois was negligent in allowing the hazard, which was created by a piece of the concrete roadway erupting, and thereby causing a hole in the highway, to exist, and by failing to warn of such hazard. Claimant further contends that the State of Illinois had actual knowledge of the hazard.

The State of Illinois is not an insurer of every accident that occurs on its public highways. Riggins vs. State of Illinois, 21 C.C.R. 434; Gray vs. State of Illinois, 21 C.C.R. 521; Terracino vs. State of Illinois, 21 C.C.R. 177. Respondent, State of Illinois, does have the duty to exercise reasonable care in the maintenance and care of its highways in order that defective and dangerous conditions likely to injure persons lawfully on the highway shall not exist. Couchot vs. State of Illinois, 21 C.C.R. 157; Thompson, et al, vs. State of Illinois, 24 C.C.R. 219.

In Di Orio, et al, vs. State of Illinois, 20 C.C.R. 53, this Court applied the same rules of law pertaining to notice in suits against the State involving defects in the highways as pertained to suits against municipalities involving injuries caused by defective conditions in sidewalks. The law in Illinois is clear that, before a municipality can be held liable for injuries caused by the defective condition of a sidewalk, it is necessary that there be evidence showing that the city had actual or construe Uve notice of the alleged unsafe condition. Arnett vs. City of Roodhouse, 330 Ill. App. 524; Coffin vs. City of Chicago, 254 Ill. App. 29.

Respondent introduced into evidence a Report of the Division of Highways, which stated in part as follows:

“On Friday, April 9, 1965, a maintenance section crew had spent the entire day patching Route No. 45 in this area, and there were no holes or humps remaining when the patching crew completed its work on the late afternoon of April 9.”

The Departmental Report indicates that this section of the highway, where the accident occurred, is patroled daily Monday through Friday by a Division of Highways Maintenance Patrol. The accident in question occurred at 4:00 A.M. on Monday, April 12, 1965, several hours before the daily maintenance patrol would begin its inspection of the highway. Claimant’s own testimony substantiates the Departmental Report that the highway was in good condition as late as Friday, April 9, 1965.

The crucial questions in determining the responsibility of the State for the accident in this instance is whether or not the State of Illinois had sufficient notice of the defect, and was negligent in allowing said defect to remain uncorrected. The evidence discloses that as late as Friday evening the highway was in good repair, and respondent had met its duty of reasonable care in maintaining the highway where the accident occurred. The very first indication of a defect in the highway occurred at 3:30 A.M. on Monday, April 12, 1965, when Hlinois State Trooper, William James, reported that a large piece of concrete was broken and jutting slightly upwards in a location approximately one and three-fourths miles south of Manteno Road on U. S. Route No. 45. Claimant testified that the accident in question occurred at approximately 4:00 A.M. the same morning, or about one-half hour later. It appears from the evidence that, at the time Trooper James observed the defect in the highway, it was not a dangerous hole in the highway eight to ten inches deep, but rather was a broken portion of concrete jutting slightly upwards.

It is the opinion of this Court that the lapse of time between the actual discovery of the defect and the accident itself was only one-half to one hour. Therefore, respondent did not have sufficient actual or constructive notice of the defect so as to be held responsible for failing to correct the same. To hold the State of Illinois responsible for accidents resulting from defects in the highways of which it had such short actual or constructive notice would have the effect of making the State of Illinois an insurer of all those using its highways, and this clearly is not the law in the State of Illinois. The lapse of time between the discovery of the defect and the accident did not afford respondent adequate time to reach the site and commence repairs, or erect proper warning signs in order to prevent the accident in question.

Claimant’s claim is hereby denied.


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    (No. 5467
    Martha Alice Burke and Blanche F. Hunt, surviving heirs of Madge Clark, Deceased, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    George B. Lee and W. Clifton Banta, Attorneys for Claimants.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimants, Martha Alice Burke and Blanche F. Hunt surviving heirs of Madge Clark, deceased, filed their claim against respondent for the sum of $377.93.

A Departmental Report was filed herein, which provides in substance that Madge Clark was employed as a Cottage Parent I at the Illinois State Training School for Girls at Geneva, Illinois on the day of her death, June 13, 1966, at a salary of $425.00 per month. Time keeping records at the Training School show that Mrs. Clark had 16% work days of vacation time due and 10% work days of accumulated time due at the time of her death. This computes to the following amounts of calendar payroll time and salary according to the method used in June and July, 1966:

17/30 of $425.00 = $240.83

10/31 of $425.00 = $137.10

$377.93

A stipulation was entered into by claimants and respondent as follows:

“The report of the Youth Commission, dated March 4, 1968, (a copy of which is attached hereto, marked exhibit A, and, by this reference, incorporated herein and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimants and against respondent in the sum of $377.93.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

We are of the opinion that the claimants are justly-entitled to the amount claimed from the Youth Commission.

Claimants, Martha Alice Burke and Blanche F. Hunt, surviving heirs of Madge Clark, deceased, are awarded the sum of $377.93.


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    (No. 5502
    City of Highwood, A Municipal Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Theodore A. Pasquesi, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant, City of Highwood, seeks payment of $234.75 for services rendered under a contract with the State of Illinois, Department of Public Works and Buildings, Division of Highways. The agreement in which respondent undertook to pay to claimant for maintenance of city streets provided for repairs, snow removal, and all other items of maintenance expense except street cleaning. Pursuant to said agreement, claimant presented statements of account in the sum requested, hut was refused because of the closing of the Biennium Appropriation. The parties have stipulated that the sum requested is lawfully due claimant.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. Gilbert-Hodgman, Inc., a Corporation, vs. State of Illinois, 24 C.C.R. 509. It appears that all the requirements have been met in the instant case.

Claimant is hereby awarded the sum of $234.75.


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    (No. 5519
    Jackson Welding School, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 12, 1968.

    Jackson Welding School, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Jackson Welding School, seeks to recover the sum of $630.00 for tuition furnished to one Leonard Herbert Bess, 1630 Watch, Springfield, Illinois.

A stipulation was entered into by claimant and respondent as follows:

“The report of the Board of Vocational Education and Rehabilitation, Division of Vocational Rehabilitation, dated August 13, 1968, (a copy of which is attached hereto, marked exhibit A, and, by this reference, incorporated herein and made a part hereof) shall be admitted into evidence in this proceeding without objection by either party.
“No other oral or written evidence will be introduced by either party.
“The Commissioner to which this case has been assigned and the Court may make and file their reports, recommendations, orders and decisions based upon the pleadings heretofore filed, and the evidence herein stipulated.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $630.00.
“Neither party desires to file briefs in this proceeding.
“Both parties waive notice of any hearing, and agree that the aforesaid order may be entered without either party being present.”

This is a matter of a lapsed appropriation, and this Court has repeatedly held that, where a contract has been (1) properly entered into; (2) service is 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.

Claimant, Jackson Welding School, is, therefore, awarded the sum of $630.00.


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    (No. 5350
    Ernest Valerio, Claimant vs. State of Illinois, Respondent.

      Opinion filed December 17, 1968.

    S. J. Holderman, Attorney of Claimant.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Pezman, J.

This cause of action is brought by claimant, Ernest Valerio, a dealer in bait fish, against respondent, State of Illinois, for damages occasioned by the escape of water from the Illinois and Michigan Canal on May 12, 1966. The complaint charges that respondent negligently failed to maintain the banks of the Illinois and Michigan Canal in a good state of repair; and that, as a result of the improperly kept banks, they broke, and allowed the water from the Illinois and Michigan Canal, which was contaminated and polluted with various items of pollution, to flow into the pond rented by claimant for storage of his bait fish, washing out the northwest wall of said pond, and allowing all of claimant’s bait fish to escape. Claimant also charges that the resulting pollution of the pond prevented him from continuing his business as a bait fish dealer.

The evidence indicates that claimant rented a spring-fed pond from one Arthur Steffes in Aux Sable Township, Grundy County, Illinois. The pond in question is located approximately 300 to 400 feet south of the lilinois and Michigan Canal, which is owned and maintained by the State of Illinois. The pond is approximately one-half mile north of the Illinois Biver. On the date in question, claimant was engaged in the business of supplying bait fish to fishermen and other bait dealers. Claimant testified that at the time of the flooding of the pond he had approximately 1,320 pounds of bait fish in the pond.

On May 11 and 12, 1966, there was a rainfall of 3.41 inches, which caused the Illinois and Michigan Canal to overflow, break the south bank of the canal, and wash out the northwest bank of the pond rented by claimant, with the resulting destruction and loss of all the bait fish of claimant, and the depositing of slime, mud and oily matter in the pond, which made it unfit for further use as a storage pond for bait fish.

Arthur Steffes testified that on May 12, 1966 the south bank of the Illinois and Michigan Canal broke in three separate places, flooding the pond, and causing the northwest wall of said pond to wash out; that, when the water finally receded, the pond was slimy and oily, and was unfit for the storage of bait fish; and, that at no time did the Illinois Biver back up to a sufficient height to flood the pond rented by claimant.

Arthur Steffes further testified that, during the last two years immediately preceding the incident in question, he had observed a great many trees lying along the canal bank. He also saw muskrat holes, as well as woodchuck holes, all along the canal banks, and stated that nothing had been done in the way of maintenance during that time.

Phillip M. Zink testified that on May 12, 1966 he witnessed the flooding of the fish pond by water from, the Illinois and Michigan Canal flowing from a break in the south bank of the canal, and that the river water from the Illinois Eiver did not reach the fish pond.

James W. Hughes also testified that the pond was about four feet higher than the Illinois River water, which never approached closer than 150 feet to the pond.

Claimant testified that the retail value of the bait fish in the pond at the time of the flooding was $2,110.00, and that the cost of the fish was approximately $565.00. He testified that, as a result of the flooding, all of his bait fish were destroyed, and the pond was rendered unfit for future use as a storage pond for bait fish, thereby forcing him to discontinue his business as a supplier of bait fish. This resulted in an additional loss of $200.00 a week income from May 13, 1966 to September, 1966.

The only evidence submitted by respondent in this cause was an engineering report of investigation prepared by the Department of Public Works and Buildings, Division of Waterways, State of Illinois. This report states that it is the opinion of the Division of Waterways that the Illinois and Michigan Canal was maintained in a reasonable condition prior to the alleged canal breaks. The report also states that the damage suffered by claimant was caused by flood waters of the Illinois River, and that the damage to the ponds caused by the water from the Illinois and Michigan Canal was negligible. The same report admitted that this reach of the canal had been plagued by breaks in the canal banks caused by flashflooding, seepage, and by animal activity, especially muskrats, since the canal was constructed. It indicated that there had not been any inspection of the canal or its banks at the location in question from November, 1965 until after the break in May, 1966, or for some six months.

It is the opinion of this Court that there is sufficient testimony in the record to find that the bank of the Illinois and Michigan Canal was negligently maintained; that the water in the canal was kept at a dangerously high level; that the rainfall was not unprecedented; and, that the State could and should have anticipated that the defective bank of the Illinois and Michigan Canal would wash out and give away and that damage would result to adjacent properties, including claimant’s fish pond. This Court feels that claimant is entitled to compensation for the loss of his bait fish. The measure of damages to which claimant is entitled is his cost of the fish, or the sum of $565.00.

It is the further opinion of this Court that claimant’s testimony as to his loss of future profits by reason of the fact that the pond was rendered unfit for the future storage of bait fish was too vague and uncertain to entitle him to any award for loss of future profits.

Claimant is hereby awarded the sum of $565.00.


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    (No. 5508
    The Ray Graham Rehabilitation Center, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 17, 1968.

    The Ray Graham Rehabilitation Center, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks payment of $280.00 for services rendered to the Division of Vocational Rehabilitation from November 21, 1966 through January 13, 1967. Both parties have stipulated that, as a result of delay in billing, payment was not made prior to the closing of the Biennium Appropriation, and that the requested sum is lawfully due the claimant.

Where a contract with the State has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; and, (4) adequate funds were available at the time the contract was entered into, this Court will enter an award for the amount due. Gilbert-Hodgman, Inc. vs. State of Illinois, 24 C.C.R. 509. It appears that all the requirements have been met in the instant case.

Claimant, Ray Graham Rehabilitation Center, is hereby awarded the sum of $280.00.