text:
    (No. 5571
    Carnaghi Oil Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 17, 1968.

    Carnaghi Oil Company, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Carnaghi Oil Company, filed its complaint against respondent for the sum of $62.15 for materials furnished the Department of Conservation of the State of Illinois.

A stipulation was subsequently entered into by claimant and respondent, which in part is as follows:

“That claimant, Carnaghi Oil Company, had furnished material as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of Sixty Two Dollars and Fifteen Cents ($62.15).
“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, Carnaghi Oil Company, is, therefore, awarded the sum of $62.15.


source: Caselaw Access Project

author: Pezman, J.

license: Public Domain

text:
    (No. 5271
    Elgin Salvage and Supply Company, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    John P. Callahan, Jr., Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

On September 19, 1965, Paul Berdine, a patient at the Elgin State Hospital, Elgin, Illinois, escaped from that hospital, and broke into a retail store operated by claimant at 115 Kimball Street, Elgin, Illinois. Berdine removed from claimant’s store three radios having a total value of $139.65. In gaining entrance to claimant’s store Berdine broke a glass window in the store causing further damage in the amout of $9.79. Claimant seeks to recover from the State of Illinois the sum of $149.44.

The transcript of evidence in this case includes exhibits offered by claimant, and admitted from the files of the Elgin State Hospital showing that this particular patient had escaped on prior occasions, and on one or two occasions had been suspected of stealing property in the city of Elgin. These records also indicate that the patient, Berdine, escaped on the night in question by pushing out a screen window.

Claims filed for damages caused by an escaped inmate of a State institution in prior decisions of this Court indicate that the State is not an insurer, and is only liable for such damages if the State is negligent in allowing the inmate to escape. Malloy vs. State of Illinois, 18 C.C.R. 137; Fern L. Huff vs. State of Illinois, 22 C.C.R. 361.

In the instant case evidence was admitted, and testimony heard before Commissioner Simpson on April 20, 1967. Respondent, State of Illinois, did not attend the hearing before the Commissioner, nor did it provide any additional evidence, although the Commissioner granted respondent leave to do so. Respondent contends in its brief that the State was not negligent in exercising its custody over the inmate, Berdine, and was, therefore, not liable for damages.

It is the opinion of this Court that the evidence offered by claimant is sufficient to establish a prima facie case of negligence on the part of respondent. Berdine, in view of his past record, should have been kept under greater surveillance than the ordinary inmate. The evidence does not indicate that respondent took any special steps to prevent his escape, even though his record indicated prior escapes.

Respondent offered no testimony on the point. The facts pertaining to the surveillance and escape of the inmate were in the exclusive control of respondent, and leave the implication that said evidence would have been presented had the same been favorable to respondent.

In U. S. Fidelity and Guaranty Company, A Corporation, vs. State of Illinois, 23 C.C.R. 188, the Court held that it was incumbent upon the State to come forward with evidence to show that they were not negligent in a situation such as this. Without such showing it will be presumed that the State was negligent based upon the inferences to be drawn from the fact of the escape.

Claimant has borne the burden of proving that respondent was negligent in allowing the inmate to escape.

Claimant’s claim in the sum of $149.44 is hereby allowed.


text:
    (No. 5485
    Xerox Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    Xerox Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Xerox Corporation, filed its complaint against respondent for the sum of $700.00 for materials and services rendered the Department of Mental Health, State of Illinois.

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

“That claimant, Xerox Corporation, had completed the work as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of $700.00.
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennial 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 hereby awarded the sum of $700.00.


text:
    (No. 5493
    Hinsdale Sanitarium and Hospital 20, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    M. C. Elden, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Hinsdale Sanitarium and Hospital 20, a Corporation, filed its complaint against respondent for the sum of $1,543.74 for services rendered the State of Illinois.

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

“That services were rendered to respondent at the special instance and request of the Department of Public Aid.
“That the statements attached to the complaint as exhibit A are due and owing in the sum of $1,543.74.
“That no assignment or transfer of the claim has been made.
“That there is rightfully due to claimant the sum of $1,543.74.
“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 up 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, Hinsdale Sanitarium and Hospital 20, a Corporation, is hereby awarded the sum of $1,543.74.


text:
    (No. 5505
    G. Sierra, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    G. Sierra, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $1,000.00 for services rendered as a physician in performing certain autopsies at the direction of the Warren G. Murray Children’s Center.

On or about the 7th day of June, 1968, claimant and respondent entered into a stipulation, which reads as follows:

“The report of the Department of Mental Health, dated May 3, 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 he 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 $1,000.00.
“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.”

It appears that the reason for non-payment was the lapse of an appropriation. This Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed; (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, Gr. Sierra, is hereby awarded the sum of $1,000.00.


text:
    (No. 5506
    A. Currie Maimon, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    A. Currie Maimon, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks from respondent payment of the sum of $121.00 for services rendered to the Department of Children and Family Services of the State of Illinois. The complaint alleges that such demand was refused on the grounds that funds appropriated for such payment had lapsed. The parties have stipulated that claimant is entitled to the sum requested, and that, as a result of claimant’s delay in billing, payment was not made prior to the closing of the biennial appropriation.

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 $121.00.


text:
    (No. 5510
    Rockford Anesthesiologists Associated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    Rockford Anesthesiologists Associated, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks from respondent payment of the sum of $35.00 for anesthesia services rendered to the Department of Children and Family Services of the State of Illinois. The complaint alleges that such demand was refused on the grounds that funds appropriated for such payment had lapsed. The parties have stipulated that claimant is entitled to the sum requested, and that, as a result of claimant’s delay in billing, payment was not made prior to the closing of the biennial appropriation.

This Court has repeatedly held that, 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, it would 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 $35.00.


text:
    (No. 5516
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    Gulf Oil Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Gulf Oil Corporation, filed its complaint in the Court of Claims on May 8, 1968, in which it seeks the sum of $2,388.14, for materials furnished various departments, as follows: Department of Public Works and Buildings — $1,642.72; Department of Public Safety — $545.99; and Department of Conservation — $199.43.

Subsequently, a written stipulation was entered into by claimant and respondent, as follows:

“The reports of the Department of Public Works and Buildings and the Department of Public Safety (copies of which are attached hereto, marked exhibits A, B and C, respectively, and, by this reference, incorporated herein and made a part hereof), the report of the Department of Public Works and Buildings being dated August 5, 1968; the report of the Department of Public Safety dated August 28, 1968; and the report of the Department of Conservation being dated August 16, 1968, 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 $1,642.72, the amount owing by the Department of Public Works and Buildings and $545.99, the amount owing by the Department of Public Safety.
“The Department of Conservation denies the claim against it in the amount of $199.43.
“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 Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Gulf Oil Corporation, is, therefore, hereby awarded the sum of $2,188.71.


text:
    (No. 5523
    Gerald E. Fraser, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    Gerald E. Fraser, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks from respondent payment of the sum of $20.00 for services rendered to the Board of Vocational Education and Rehabilitation of the State of Illinois. The complaint alleges that such demand was refused on the grounds that funds appropriated for such payment had lapsed. The parties have stipulated that claimant is entitled to the sum requested, and that, as a result of claimant’s delay in billing, payment was not made prior to the closing of the biennial appropriation.

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 $20.00.


text:
    (No. 5526
    Chicago Wesley Memorial Hospital, An Illinois Not-For-Profit Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 14, 1969.

    Tenney, Bentley, Guthrie, Askow and Howell, Attorneys for Claimant.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Chicago Wesley Memorial Hospital, an Illinois Not-For-Profit Corporation, filed its complaint against respondent for the sum of $3,000.00 for professional and technical services rendered the Department of Public Health of the State of Illinois.

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

“That claimant, Chicago Wesley Memorial Hospital, an 111. Corp., had completed the services as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of $3,000.00.
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennial appropriation.
“That claimant continues to be the sole person interested in this claim, and that no assignment thereof has 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, Chicago Wesley Memorial Hospital, an Illinois Not-For-Profit Corporation, is hereby awarded the sum of $3,000.00.


author: Perlin, C.J.

text:
    (No. 4970
    Joseph Smith, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Rogers, Strayhorn and Harth, Attorneys for Claimant.

      William G. Clark, Attorney General; Daniel N. Kadjan and Philip J. Rock, Assistant Attorneys General, for Respondent.
   Perlin, C.J.

Claimant, Joseph C. Smith, seeks recovery of the sum of $15,000.00 for respondent’s deprivation of his liberty by his alleged unlawful incarceration for two years, eight months and twenty-seven days in the Illinois State Penitentiary, Menard, Illinois. The alleged wrongful deprivation of liberty extended from June 22, 1956 until March 19,1959 when claimant was discharged from the Menard State Penitentiary on a Writ of Habeas Corpus.

Claimant’s action is brought under the provisions of the Illinois Court of Claims Act, Sec. 8C, which reads in part as follows:

“The Court shall have jurisdiction to hear and determine the following matters. . . All claims against the State for time unjustly served in prisons in this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned. . . For imprisonment of 5 years or less, not more than $15,000.00.”

The record reveals the following sequence of events:

1. On October 5,1934, claimant was convicted of the crime of burglary in the District Court of Milwaukee, Wisconsin, and placed on probation. He left the State of Wisconsin.

2. On January 18, 1940, claimant was convicted of unarmed robbery in the Criminal Court of Cook County, and sentenced to a term of from one to twenty years to be served in the Illinois State prison located at Joliet, Illinois.

3. A warrant filed for claimant by the Chief of Police of Milwaukee, Wisconsin was dated April 1, 1940.

4. After claimant served five years of this sentence, the Illinois Pardon and Parole Board met in June, 1945, and ordered that claimant be released to Wisconsin authorities effective July 16, 1945.

5. A Parole Agreement, dated June 12, 1945, with the notation “Effective July 16, 1945. Wisconsin authorities to be notified before release” was signed by claimant. The Parole Agreement thus signed incorporated “Rules Governing Prisoners on Parole”, and a statement that read:

“I, Joseph Smith, an inmate of the above named Division of the Illinois State Penitentiary, hereby declare that I have carefully read or have had read to me, and do clearly understand the contents and conditions of the above rules regulating the parole of prisoners and the above parole agreement, and I hereby accept the same, and do hereby pledge myself to comply honestly with all said conditions, and further agree that, should I be arrested in another state and charged with a violation of my Illinois parole, I will waive extradition, and will not resist being returned to the Illinois State Penitentiary.”

The Parole Agreement further stated that Joseph Smith would be permitted to go outside the enclosure of the Penitentiary for the period of his maximum “temporarily and conditionally,” in accordance with the rules or until he had been discharged in pursuance of law.

6. A Waiver of Extradition, dated July 5, 1945, and signed by claimant, stated that Joseph Smith “freely and voluntarily” agreed to accompany Milwaukee, Wisconsin authorities as a prisoner from the Illinois State Penitentiary, Joliet, Illinois.

7. On July 16, 1945, claimant was released to the custody of Wisconsin authorities. Claimant testified that he observed papers of extradition signed by the Governor of Illinois at that time.

8. Claimant was found guilty of violation of probation under the original Wisconsin burglary conviction, but the court issued a two year stay of execution upon condition that claimant leave the State of Wisconsin for that period. Claimant then moved to California.

9. On October 13, 1947, the Illinois Pardon and Parole Board issued an order, which declared that claimant was declared a defaulter on out-of-state parole.

10. In January, 1951, claimant was arrested and convicted in Denver, Colorado of a misdemeanor, and upon completion of service of his sentence was notified by the Denver authorities of the outstanding Illinois warrant and held for its execution. The Denver authorities notified Illinois authorities that claimant was being held. Illinois, acting through its Pardon and Parole Board, cabled the Denver police authorities that claimant Smith was no longer wanted by Illinois anthorities, and he was then released from custody of the Denver authorities.

11. On April 9, 1953, claimant was sentenced by the Federal District Court of Detroit, Michigan to four years in the United States Penitentiary at Leavenworth, Kansas for violation of the National Motor Vehicle Theft Act. The warrant for violation of parole from the State of Illinois was filed against claimant at that institution on April 29, 1953.

12. After serving thirty-five months of a four year sentence claimant was released from Leavenworth, and told that Illinois had lodged a detainer for warrant of parole violation. He was then transferred to Illinois. He signed a waiver of extradition on June 20, 1956, and was returned to Illinois to the Menard Division of the Illinois State Penitentiary on June 22, 1956.

13. Claimant was given a hearing on the question of parole violation in August, 1956, and under date of September 12, 1956 the following order was entered by the Parole Board: “Declared a violator as of September 22, 1947. Maximum ‘X’ .”

14. On March 19,1959, a Writ of Habeas Corpus was signed by Judge Harold 0 ’Connell of the Criminal Court of Cook County, and claimant was ordered discharged from the custody of respondent.

Before claimant can recover under the provisions of the Illinois Court of Claims Act, Sec. 8C, he must prove the following elements by a preponderance of the evidence; (1) time unjustly served in prisons in the State of Illinois; and, (2) innocence of the crime for which he was imprisoned.

The first issue to be decided is whether claimant was illegally imprisoned from June 22, 1956 until March 19, 1959 at the Menard State Penitentiary.

If claimant was on parole at the time of release to Wisconsin authorities, it would appear that Illinois would have retained jurisdiction over claimant, and would have been able to imprison claimant at any time before the twenty year maximum sentence was served, in absence of final discharge from parole. (People ex rel Richardson vs. Ragen, 400 Ill. 191, 79 N.E. 2d 479; People ex rel Palmer vs. Ragen, 159 F 2d 356.)

In People vs. Bartley, 383 Ill. 437, 50 N.E. 2d 517, an almost identical fact situation was presented to the Supreme Court. As in the instant case, an Illinois prisoner, McLaughlin, was paroled in an ex parte proceeding for the period of his maximum sentence, but before the effective date of his parole he was delivered to an agent of the State of Wisconsin pursuant to a requisition of the State of Wisconsin. In Wisconsin, McLaughlin was tried, convicted upon the charge for which he was extradited, and served a term in the Wisconsin State prison. He later went to Ohio where he served a term in the Ohio State Penitentiary from which he was ex-tradicted to Illinois for an alleged violation of his parole agreement. McLaughlin was returned to Stateville Prison in Illinois where he was released on a Habeas Corpus petition.

In reviewing the above facts, the Supreme Court held that it was clear that McLaughlin was not released from Stateville on parole. The Court further held that the warrant of extradition issued by the Governor of Illinois, which resulted in the delivery of McLaughlin to Wisconsin authorities, constituted a waiver of jurisdiction by the State of Illinois over the person of McLaughlin, and operated as a pardon or commutation of the sentence, and relieved him from serving the balance of the sentence imposed upon him by the Winnebago, Illinois, County Court. The Court based its conclusions on the Habeas Corpus Act, which provides “Where, though the original imprisonment was lawful, yet, by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge.” The court stated:

“While the Board of Pardons and Paroles did enter an order on April 20, 1936, directing the release of McLaughlin on parole effective May 16, 1936, and, while McLaughlin did sign the statement (to comply with conditions of parole agreement) above quoted on the latter date, the circumstances do not seem to warrant the conclusion that his parole was ever completed. The order admitting him to parole was a conditional one, and the conditions were never complied wdth. There was no sponsor suggested or provided for him, and, when the release came through the warden, there was no mention of parole. He was released solely on the demand made by the State of Wisconsin and the Governor’s requisition warrant issued in obedience thereto. We believe the record shows that McLaughlin was never released at any time, but custody was simply transferred from the warden at the Illinois penitentiary to the authorities from the State of Wisconsin. Had McLaughlin been extradited while absent from prison and while on parole, it would have created a different situation.” (50 N.E., 2d 519, 520)

The Court further held that, in absence of agreement between the two Governors to return the prisoner, the waiver is effective. It reasoned that, when a fugitive is in the custody of the courts of the asylum state, the executive of the asylum state is not required to surrender the fugitive until after the judgment of the court of that state is satisfied. However, the executive of the asylum state may relinquish the prisoner by waiving jurisdiction, and when the requisition of the demanding state has been honored and the fugitive surrendered, such surrender will operate as a waiver of jurisdiction of the asylum state.

As in the Bartley case, the conditions of parole requiring sponsors and employment were never complied with in the instant case, as set forth in the following paragraphs of the parole agreement:

“Rules Governing Prisoners on Parole
1. The prisoner shall proceed at once to his place of employment and report to his employer whose name is given above.” (no name was given)
3. The prisoner must not change employment, nor leave employment, nor change his home address, unless granted permission by the State Superintendent of Supervision or his duly authorized agent. In the event of sickness or loss of position, the prisoner shall immediately report the fact to his Parole Agent...... The prisoner shall not leave the State of Illinois without a Division of Correction order and notice of the same shall be given the prisoner by the Superintendent of Supervision or his duly authorized agent. In the event the prisoner is granted an out-of-state parole, he shall not leave the State to which he is paroled without an order of the Division of Correction. Notice of the transfer shall be given by the Parole Officer at the Division of the Illinois State Penitentiary from which the prisoner was paroled.”

The June, 1945 document from the Department of Public Safety, Parole and Pardon Board, entitled “Action of the Parole and Pardon Board Property of the Inmate” stated: “At a meeting of the Parole and Pardon Board held this month, the following action was taken in your case: Paroled: To be turned over to Wisconsin authorities. Effective July 16, 1945.” The waiver of extradition was signed July 5, 1945 before the effective date of parole, leading to the conclusion that Smith was extradited before he was paroled.

A distinction between the fact situation in the instant case where the prisoner was released directly to authorities of the demanding state and in a case where the prisoner was actually out on parole was made in United States ex rel Hunke vs. Ragen, 158 F 2d 644. In that case the Governor of Illinois honored the application for extradition when the prisoner had been out on parole for more than two years, and, although the Illinois authorities relinquished him to Wisconsin, it was held that he was still subject to rearrest and imprisonment for completion of his sentence in Illinois for parole violation.

Therefore, the conclusion in the instant case must be that Smith was never released on parole, but that he was extradited to the state of Wisconsin. The rule, as summarized in United States ex rel Hunke vs. Ragen, is as follows: “Where a prisoner is actually confined in the penitentiary, the Governor’s relinquishment of the prisoner to another state operates as a pardon.” (158 F 2d 645)

While claimant Smith’s imprisonment for parole violation was not technically an imprisonment for a “crime”, as stated in the Court of Claims Act, it must be assumed that the word “crime” as used in the statute encompasses any offense for which a person is illegally imprisoned. Therefore, claimant has proved by a preponderance of the evidence that he was innocent of the parole violation offense for which he was illegally imprisoned, because he had never been on parole from the State of Illinois.

The following evidence was introduced on the question of damages incurred by claimant during his illegal imprisonment of two years from June 22, 1956 until March 19,1959. At the time of the hearing in May, 1963, he had been unemployed since January, 1962. Upon his discharge in 1959, he worked at a funeral home for room and board and $30.00 per week until August, 1959. He then obtained a job as a bartender and earned $50.00 per week, and tips averaging from $3.00 to $5.00 per night. In October, 1961, he earned $100.00 per week at the Twelfth Liberty Loan Corporation until January, 1962, at which time he resigned. His United States Federal tax return was submitted as evidence, and showed a gross earning of $1,019.19 for the year of 1961. Using this figure as a base, claimant apparently earned an average of $85.00 per month.

Claimant is hereby awarded the sum of $4,500.00.


text:
    (No. 5230
    Ruby Foreman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Harris, Holbrook, and Lambert, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

On November 9, 1964, at about 1:00 P.M., claimant, Ruby Foreman, was walking across the Lusk Creek bridge going to the town of Golconda, Illinois. The weather was fair, and the pavement was dry. Claimant was walking on the left or east side of the bridge where there was a raised concrete sidewalk, which ran parallel with the roadway. The sidewalk was elevated approximately 9 inches above the roadway, and was 22% inches wide. On the outside edge of this sidewalk there was a retaining wall, which was 18% inches high. Above the retaining wall there was a single pipe hand rail, which was 4 inches in diameter, and which was 11 inches above the retaining wall. Parallel with the sidewalk and in the east edge of the roadway were drain holes or weep holes. These holes were approximately 11% inches long and 3% inches wide. They were for draining water off the bridge into the creek below. At the time of the accident the weep holes were open, and were lined with aluminum.

On the date of this occurrence vehicular traffic and pedestrian traffic were both using the bridge. There were no signs of any kind on either end of the bridge warning pedestrians of the open weep holes in the roadway or the danger thereof.

Claimant was wearing low-heeled cloth shoes, and was carrying only a letter at the time of the accident. Claimant testified that, as she walked along the sidewalk on the east side of the bridge, she looked down at some workmen on the bank of the creek, and became somewhat dizzy. She then stepped off the sidewalk with her right foot to the right side of one of these weep holes. She had not seen the hole, as it was immediately beneath her. She then stepped with her left foot into one of the weep holes. Her foot went completely into the weep hole, and dropped down to a point where the aluminum siding struck her knee. As a result of the accident, claimant was treated by a doctor for contusions and abrasions to the leg, a hematoma and scarring. Claimant testified that she was unable to walk on her leg for some time.

As a result of this accident, claimant now seeks to recover for personal injuries sustained by her in the sum of $10,000.00.

The law in the State of Illinois is clear that, in order for a claimant in a tort action to recover against the State, he must prove that the State was negligent, that such negligence was the proximate cause of the injury, and that claimant was in the exercise of due care and caution for his own safety. McNary vs. State of Illinois, 22 C.C.R. 328, Bloom, et al, vs. State of Illinois, 22 C.C.R. 582, 585. It is also a well-known proposition of law that the State is not an insurer against accidents occurring on its streets and highways. Manus vs. State of Illinois, 22 C.C.R. 335; McNary vs. State of Illinois, 22 C.C.R. 328.

In this case, claimant is contending that the State was negligent in allowing the drain holes to be unguarded and open at and in close proximity to the east sidewalk, and that the State failed to give any warning to pedestrians of the existence of the drain holes in the floor of the bridge roadway. There is, however, a serious question as to the liability of respondent to maintain the roadway of the bridge in such a condition that it would be safe for pedestrians. The State is not obligated to maintain all public highways under its jurisdiction in the same manner as sidewalks and crosswalks should be maintained. To so require would place an impossible burden upon the State. Callen vs. State of Illinois, 23 C.C.R. 172.

Claimant did not fall as a result of any defect in the sidewalk, which ran parallel with the roadway. The accident occurred when claimant stepped off of the sidewalk, which was provided for pedestrian travel, and stepped into one of the drain holes in the roadway of the bridge.

The burden of proof is upon claimant to prove freedom from contributory negligence. In the cases of Doolittle, et al, vs. State of Illinois, 21 C.C.R. 112, and Mounce vs. State of Illinois, 20 C.C.R. 268, this Court held that to approach a place of known danger without care commensurate with such danger is contributory negligence. Similarly, the Court held that, where one has earlier the same evening driven over a certain stretch of highway, he is charged with a knowledge of its condition so long as the condition is unchanged on his return trip.

The facts in the instant case indicate that claimant walked approximately % of the way across the bridge before she stepped off the sidewalk and into one of the drain holes. In walking % of the way across the bridge, she passed a number of these open drain holes, and must have been aware of their existence. It was the duty of claimant in this case to use due care and caution for her own safety. From the record it is clear that the negligence of claimant in stepping off of the sidewalk area, which was provided for pedestrian travel, and onto the bridge roadway, which was provided for vehicular travel, and into one of the drain holes was the proximate cause of the accident.

It is the opinion of this Court that claimant has failed to sustain her burden of proof that the State was negligent, and that claimant was in the exercise of due care for her own safety at the time of the accident.

The claim is denied.


author: Dove, J.

text:
    (No. 5293
    Robert L. Conroy, Claimant, vs State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Arvey, Hodes and Mantynband, Attorneys for Claimant.
    William G. Clark, Attorney General; Sheldon K. Rachman, Special Assistant Attorney General, and Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Dove, J.

This is a cause of action against the 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 5 years or less, not more than $15,000.00; for imprisonment for 14 years or less but over 5 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, Robert L. Conroy, was convicted in October of 1937 in the Criminal Court of Cook County, Illinois after a jury trial for the crime of rape, and was sentenced to the Illinois State Penitentiary for a period of 199 years.

Claimant was thereafter confined in the Illinois State Penitentiary from October 23, 1937 until June 7, 1965. Claimant filed a petition for a Writ of Habeas Corpus in the United States District Court setting forth that he had been denied due process of law at the time of his arrest; that the Chicago police held him prisoner for 36 hours in an abandoned police station before he confessed to the alleged crime; and, that his confession was procured by physical abuse. The petition for Habeas Corpus further stated that there was a 15 day delay after his confession before he was brought before a magistrate or before he was examined by a doctor.

After a long and lengthy hearing on the petition for a Writ of Habeas Corpus, the Federal District Court ordered a new trial for claimant, but the State’s Attorney of Cook County, Illinois decided not to retry claimant, and he was released from custody.

Claimant called Anna Brasy, victim of the rape, as an adverse witness under Sec. 60 of the Illinois Civil Practice Act to testify on his behalf. She testified that on the morning of November 20, 1936, at approximately 3:00 o ’clock, she was awakened when she heard the door to her bedroom open, and saw a man bend over her. She screamed. The man put a knife at her throat, and said, “If you scream, I’ll kill you.” He then took the bed covers off, made her take off her pajamas, and raped her. At the time he entered the bedroom the light in the room was not on.

In addition to raping her, her assailant committed other acts of sexual assault upon the person of Anna Brasy, and also tortured her by cutting her on her arms and legs with the knife. The sexual attacks and the torturing lasted for about an hour. Anna Brasy testified that during this hour she remained conscious, but did not scream because she was paralyzed with fear.

Before her assailant left, he demanded money. Anna Brasy testified that she went into a closet where she had hidden a few dollars, and gave them to him. At that time she turned on the light in her bedroom, and for the first time saw her assailant. She further testified that her assailant spoke with a lisp, as if he were tongue-tied. After she gave her assailant the money, he struck her on the cheek with his fist, which rendered her unconscious.

Anna Brasy testified that, when she regained consciousness, she woke her mother and brother. Her brother called the police, and they took her to Bavenswood Hospital where she stayed for six weeks. During her stay in the hospital ten suspects were brought in for identification, but she did not identify any of them. She further testified that none of them looked like her assailant, and none spoke with a lisp.

On September 14, 1937, the police took Anna Brasy to the State’s Attorney’s office in the County Building where she met claimant. As soon as she saw him, she recognized him as her assailant. Later she identified him in a line-up. She also identified him at the time of his trial. On each occasion that she identified him she had no doubt that claimant was the man who had tortured and raped her on November 20, 1936.

Bobert L. Conroy, claimant, testified in his own behalf that between September, 1936 and April, 1937 he was not present in the State of Illinois. He testified that during this time he was working in the floral business of his wife’s uncle in Washington, and that on August 14, 1937 he was arrested by the police in his mother’s apartment on a theft charge. He was taken to the Canal-port Police Station from which he escaped when he found his cell door unlocked, and noticed nobody around.

Four weeks later, on September 12, 1937, he was arrested again by the police, taken to the Irving Park Police Station, and booked. From there he was taken to the Canalport Police Station where claimant was questioned concerning the rape of Anna Brasy. He stayed at the Canalport Station for two days, and then was taken to the Criminal Court Building, and questioned further. Claimant then testified that the police beat him with their fists while he was handcuffed, and that to stop the beating he promised to sign a confession.

Subsequently he was taken to the State’s Attorney’s Office in the County Building. Anna Brasy was present when he arrived, and identified claimant as her assailant. At this time a statement containing his confession to the rape of Anna Brasy was read to claimant. The statement was transcribed, and claimant signed it. Claimant was then returned to the scene of the crime where he participated in the re-enactment of the crime.

At his criminal trial in 1937, and at the hearing in the instant case, claimant produced no alibi witnesses to support his contention that he was in Washington at the time of the crime. He never requested his wife’s uncle, Philip Caruso, for whom claimant allegedly worked between September, 1936 and April, 1937, to testify on his behalf, although he considered him a good alibi witness. His wife was present at the criminal trial, but was not called to testify for him.

In two previously decided cases, Monroe vs. State of Illinois, Case No. 4913, and Jonnia Dirkans vs. State of Illinois, Case No. 4904, this Court held that one of the primary issues to be determined in a case brought under Section 8C of the Court of Claims Act is whether claimant was innocent of the crime for which he was imprisoned. The burden is on claimant to prove by a preponderance of the evidence that the act for which he was wrongfully imprisoned was not committed by him. Claimant must prove his innocence of the “fact” of the crime.

In this case claimant seeks to prove his innocence of the crime for which he was imprisoned by his own uncorroborated testimony that at the time the crime was committed he was not in the State of Illinois, but was in Washington working for his wife’s uncle. Claimant introduced no evidence at the original criminal trial, or in the hearings in the instant claim to support his alibi. Contradicting the testimony of claimant that he is innocent of the crime is the testimony of Anna Brasy, who was called as an adverse witness by claimant. Anna Brasy testified in detail as to the various acts committed upon her by claimant herein. At the conclusion of her testimony in the instant case claimant was brought into the hearing room with his brother, and the victim, Anna Brasy, positively and without hestitation identified claimant as her attacker.

It is the opinion of this Court that claimant has failed to prove by a preponderance of the evidence that he is innocent of the “fact” of the crime for which he was imprisoned.

It is the further opinion of this Court that the legislature of the State of Illinois did not intend, when it enacted Sec. 8C of the Court of Claims Act, that this Court make awards to claimants whose only proof of innocence of the “fact” of the crime is their own uncorroborated testimony. This is especially so in this case where there is testimony, which tends to incriminate claimant in the commission of the crime charged.

Claimant’s claim is hereby denied.


author: Perlin, C. J.

text:
    (No. 5298
    Donald Gilfand, A Mentally ill person, by Rebecca Di Giovanni, his Grandmother and next friend, and Rebecca Di Giovanni, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Louis M. March, Attorney for Claimants.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Etta J. Cole, Assistant Attorneys General, for Respondent.
   Perlin, C. J.

Donald Gilfand, a mentally ill person, is represented by Rebecca Di Giovanni, his grandmother and next friend, in this proceeding. Rebecca Di Giovanni was the mother of Donald Gilfand’s mother who died in 1962. Claimants seek recovery of $25,000.00 for personal injuries alleged to have been sustained by Donald Gilfand on August 20,1965, while he was a patient at the Dixon State Hospital. Claimants further allege that Donald Gilfand was without provocation physically assaulted by a Mr. Alan Sparks who was employed by respondent, and sustained permanent personal injuries with change in both his physical and mental state.

Claimants allege that respondent was negligent in the care, maintenance and control of Donald Gilfand, because it failed to provide a safe place for the patient; failed to properly interview and hire personnel charged with the care and attention of patients; failed to render proper medical care when Donald Gilfand was physically assaulted on August 20, 1965; and, failed to use due care and caution under the circumstances.

Rebecca Di Giovanni also claims the sum of $25,000.00 in her own behalf alleging that she has suffered permanent damages from mental anguish in seeing Donald Gilfand in the condition in which he has been subsequent to August 20,1965, and that she has had to make numerous trips to see Donald Gilfand at said hospital and to confer with the physicians, officials, and the State of Illinois in order to obtain medical and other care required by the condition of Donald Gilfand.

Mrs. Di Giovanni testified that, when she visited Donald on August 23rd or 24th, 1965, the left side of his head was full of blood, black and blue marks and cuts were on his throat and knee, and his arm was injured. When she. asked Donald who did it, he replied “Mr. Sparks.” She stated that she brought Donald to see Dr. Tillman on or about the 23rd or 24th of August, and that he looked at his head. She stated that the head at that time was full of blood. Pictures, which Mrs. Di Giovanni stated she had taken of Donald at that time, were admitted into evidence. Claimants presented no medical testimony to explain the significance of the pictures. Neither the photographer nor the State employee who allegedly saw the injury were called to testify. No conclusion of injury or of respondent’s negligence can be drawn from the pictures themselves.

Mrs. Di Giovanni testified that she had seen Alan Sparks several times in 1965, and that he himself told her he was an employee from cottage A-3.

She knew of no medical attention given to Donald Gilfand after she saw him on or about August 24, 1965. Donald told her that the date of the injury was August 20, and she stated that she came to visit him about August 23rd or 24th.

Institutional records of visits, which were presented on cross-examination, showed that Mrs. Di Giovanni had visited Donald on September 2, 1965, and that the prior visit was August 17,1965. Mrs. Di Giovanni agreed that the records were “undoubtedly correct.” She also stated that September 2 could have been the date on which she advised the authorities of the alleged incident.

Respondent’s witnesses established that there was no employee named Alan Sparks, but produced one Donald Spotts who was an employee at the time of the alleged injury. Mrs. Di Giovanni then said that he was the employee who assaulted Donald. Spotts denied that he had ever struck Donald Gilfand, and stated with regard to Donald’s conduct that: “He was into something all the time. He was always cracking other kids on the head, sodomy with the other residents, soiled on himself.”

Donald Gilfand was called as a witness by claimant, but was excused from testifying by the commissioner who described him as “ an extremely mentally incompetent person of about 20 years of age”, and “unable to testify lucidly as to the alleged occurrence or assault.”

Samuel Gilfand, Donald Gilfand’s father, testified that he was divorced from claimant’s mother in 1950, and that he was awarded sole custody of claimant herein, which he retained at the time of the hearing. He and his wife Rosalie, stepmother of claimant Donald Gilfand, testified that they visited Donald on September 12,1965; that there was nothing unusual in his appearance; and, that his son never made any complaints of injuries by or of any improper treatment by any of the employees of the Dixon State Hospital. He further testified that the 2% inch scar on Donald’s head was the result of a brain operation, which had been performed at the Michael Reese Hospital when he was two years old. Mr. Gilfand and his wife stated that they visited Donald every two months.

Dr. Paul Tillman, assistant medical superintendent at the Dixon State Hospital, testified that Mrs. Di Giovanni complained to him several times about employees, and that on August 1, 1965 his records showed that a long distance call was received from Mrs. Di Giovanni during which she accused an employee of hitting Donald two weeks previously. The grandmother subsequently brought Donald into Dr. Tillman’s office, and showed him a scar, which was 2% inches long, saying it was a recent injury. When Dr. Tillman said that in two weeks you cannot have this kind of scar tissue, she replied: “Yes, but he hit him anyway.”

Dr. Tillman testified that two weeks prior to August 1,1965 the grandmother came into his office. Dr. Tillman told her he would investigate the complaint. He then talked to the supervisor who reported to him that Donald had not been struck by any employee. Dr. Tillman did have reports of injuries to Donald’s head, dated 1962, 1964 and 1966, on which occasions he was apparently injured by other inmates. Dr. Tillman testified there was no record of an employee named Alan Sparks.

Dr. Hatzipanagiotis, a staff physician at the Dixon State Hospital, testified that, when Bebecca Di Giovanni claimed Donald Gilfand had suffered an injury from an employee named Alan Sparks in cottage 3 on August 20, 1965, he investigated, and found no employee with that name. Upon checking his records he found no injury on that special date.

Admitted into evidence were letters reflecting complaints on several occasions, dated June 18, 1959, August 25,1961, and February 14,1962, wherein claimant Bebecca Di Giovanni had charged staff members with assaulting Donald Gilfand. A letter, dated September 21,1965, from Lawrence A. Bussard, Assistant Director, Division of Mental Betardation Services, to Mrs. Di Giovanni stated that he had checked with Dr. Tillman, and that Donald had not been injured. The letter stated that Dr. Tillman could find no injury of recent origin to the head.

Before claimants may recover for damages they must prove by a preponderance of the evidence (1) injury proximately caused by the negligence of respondent; and, (2) damages.

The testimony of Rebecca Di Giovanni with regard to injury or damages was not corroborated by any other witness. It was rebutted by several witnesses including claimant Gilfand’s own father.

It is the opinion of the Court that claimants have failed to sustain the burden of proving their case by a preponderance of the evidence. Halloway vs. State of Illinois, 23 C.C.R. 195; Haynes vs. State of Illinois, 22 C.C.R 288; Ackley vs. State of Illinois, 22 C.C.R. 41; Daly vs. State of Illinois, 21 C.C.R. 610; Klimek vs. State of Illinois, 21 C.C.R. 145; Flint vs. State of Illinois, 21 C.C.R. 80; Houghton vs. State of Illinois, 18 C.C.R. 90.

The claims of Rebecca Di Giovanni and Donald Gilfand must hereby be denied.


text:
    (No. 5310
    Antenna Services, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

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

Claimant, Antenna Services, Inc., seeks recovery of $3,450.00 for damages to its antenna tower and other property, as well as lease monies alleged to have been lost from tenants when a dump truck belonging to the Department of Public Works and Buildings of respondent snapped off a set of wires to the antenna tower causing it to fall.

The evidence reveals the following undisputed facts:

On November 5, 1965, claimant owned a communications radio tower, 220 feet tall, in DuPage County, Illinois. Transmission lines were installed on the tower with electrical wiring, and a distribution service was located in the transmitter building adjacent to the tower at its base. The tower was triangular in shape, 24 inches on each side, with guy wires supporting it every forty feet. The base of the tower was on a concrete pad. The guy wires extended from the tower in three directions, each 120° apart with steel anchors to the guy wires in the concrete. Claimant had eight customers, who subscribed to the tower at the time of the accident.

On the day of the accident, respondent’s agents had been working on a highway approximately one mile from the tower. A truck owned by respondent drove onto claimant’s property without permission. It dumped its load, and in going out the body of the truck caught the lower set of guy wires at the thirty foot level and snapped them. The truck then lowered the dump body with the guy wires still between the chassis and the dump body and accelerated its speed pulling down the tower, which also struck a car on the adjacent property of a Chevrolet dealer.

Respondent was insured by the United States Fidelity and Guaranty Company in the amount of $10,000.00, of which $9,148.58 went to claimant and the remainder to the Chevrolet dealer.

Claimant alleges that it has sustained damages in the amount of $12,596.50, or $3,450.00 more than it was paid by respondent’s insurer.

A release, dated December 15,1965, which was signed by claimant’s agent, provides the following:

“That We Antenna Services Inc., by N. A. Philips, Secretary, for the sole consideration of Nine Thousand One Hundred and Forty-Eight Dollars and Fifty-Eight Cents ($9,148.58) to us in hand paid by Virden E. Staff, Payer, the receipt whereof is hereby acknowledged, have released and discharged, and by these presents do for ourselves, our heirs, executors, administrators, and assigns release and forever discharge the said Payer and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident, which occurred on or about the 2nd day of November, 1965, at Chicago, Illinois.
“We understand said Payer, by reason of agreeing to this compromise payment, neither admits nor denies liability of any sort, and said Payer has made no agreement or promise to do or omit to do any act or thing not herein set forth, and we further understand that this release is made as a compromise to avoid expense and to terminate all controversy and/or claims for injuries or damages of whatsoever nature, known or unknown, including future developments thereof, in any way growing out of or connected with said accident.
“We admit that no representation of fact or opinion has been made by the said Payer or anyone on her, his, or their behalf to induce this compromise with respect to the extent, nature or permanency of said injuries, or as to the likelihood of future complications or recovery therefrom, and that the sum paid is solely by way of compromise of a disputed claim, and that in determining said sum there has been taken into consideration the fact that serious or unexpected consequences might result from the present injuries, known or unknown, from said accident, and it is, therefore, specifically agreed that this release shall be a complete bar to all claims or suits for injuries or damages of whatsoever nature resulting or to result from said accident.
CAUTION: READ BEFORE SIGNING"
(Emphasis supplied.)

The sole question in the instant case is what was the legal effect of the execution of the release by claimant. Claimant contends that the release was signed only by mistake, and that, despite the signing of the release, Mr. Allen Tomlinson, Claims Supervisor of the Department of Public Works and Buildings, still continued to negotiate with claimant for the balance of claimant’s damages. Claimant further alleges that claimant’s officer who signed the release did not believe he was releasing the State of Illinois, but only the insurance company. Claimant alleges that, at the time its agent, Nicholas Philips, executed the release, he was mistaken as to the legal effect of his act. Mr. Philips testified that he was told by the United States Fidelity and Guaranty Company that, unless the release was signed, he would receive no proceeds to compensate him for any of his out-of-pocket losses. He further stated that he was without sufficient funds at the time of the loss to replace the damaged equipment without resorting to the insurance proceeds. Claimant alleges that Mr. Tomlinson was also mistaken as to the effect of the release, because he sent a letter to claimant, dated February 4, 1966, wherein he requested that Mr. Philips send him a full description of the damaged equipment, make, model, size, when it was installed, by whom, and when it was painted. It is this letter, which claimant contends apparently vitiates enforcement .of the release.

Mr. Philips testified that he read the release before he signed it, and that it did not say anything about the State of Illinois, but merely mentions Virden E. Staff whom Philips assumed was a person employed by the insurance company. The release was signed only by Mr. Philips for the “sole consideration of $9,148.58 paid by Virden E. Staff, Payer.” Nowhere is it contended that Mr. Tomlinson was a party to the release, or that he was present at the execution thereof. Neither party in the instant case called Mr. Tomlinson as a witness.

Respondent argues that a unilateral mistake of fact will not operate to set aside a clear and unequivocal release: In the case of Welsh vs. Centa, 75 Ill. App. 2d 305, 221 N.E. 2d 106, the court held that the burden of proving that a release should be set aside rests with the party urging invalidity of the release, and the evidence must be clear and convincing. The court further held that the parties must be mutually mistaken, and a unilateral or self-induced mistake of fact will be insufficient to void a release.

The court in Inter Insurance Exchange of Chicago Motor Club vs. Andersen and Kuntz, 331 Ill. App. 250, 73 N.E. 2d 12, held that a release acknowledging payment in full settlement of all claims on account of an automobile accident causing personal injury and property damage was a “general release”, and was not ambiguous, and, therefore, testimony, which tended to show the intention of the parties to effect a limited release, was inadmissible.

In Williams vs. East St. Louis Junction Railroad Co., 349 Ill. App. 296, 110 N.E. 2d 700, 702, the court stated:

“Inasmuch as the evidence showed that plaintiff could read and understand the English language and had opportunity to read the release before signing it, without any misrepresentations being made to him, to then set aside the effect of the release on the testimony of plaintiff that he actually did not read it would constitute an undesirable innovation in law so apparent that it seems to us to need no further discussion.”

The general rule as set forth in 45 Am. Jur., p. 685, is as follows:

“A mistake relating to the legal consequences of a release as to the effect of the release of one joint obligor upon the liability of his co-obligors is ordinarily immaterial.”

In Davis vs. Weatherly, 119 Ill. App. 238, 241, the court stated:

“Having signed, executed and delivered the release, appellee is presumed to have done so with knowledge of its contents and import, and may not even be heard to say that she did not understand it. It is a contract in writing, and in an action at law parol testimony is not permissible to vary its terms or meaning. The writing must speak for itself, and its legal effect as a release and a complete bar can be avoided in an action at law in only one way, and that is to prove that appellee’s signature to it was obtained by fraud or that it was without consideration. As already stated, the burden of such proof is upon the appeellee.”

It is the opinion of the Court that claimant has not sustained the burden of proving that the release is invalid in an action against respondent. Claimant’s agent had opportunity to read the clear and unambiguous terms of the release, and, in fact, testified that he did so. Although claimant was not represented by counsel at the time its agent signed the release, nothing would have prevented its hiring of an attorney to explain the legal effect of signing the release and receiving consideration therefor.

Therefore, claimant’s request for additional funds must be denied.


text:
    (No. 5341
    Gerald H. Witt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Goehl and Adams, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant seeks recovery for damages to his automobile in the sum of $669.13 incurred in an accident on November 30, 1965 on State Route No. 61. Claimant alleges that employees of respondent created a fire, which blanketed the highway on Route No. 61, and impaired the vision of the drivers of motor vehicles, and caused him to run into the rear of a truck, which was stopped on the highway, thus causing the alleged damages.

Claimant Witt testified that he was traveling on Route No. 61 at about 2:30 in the afternoon. The weather was clear, and the highway was dry. As he approached the site of the accident, he saw smoke on the highway. Witt stated: “Well, I seen the smoke there, and the highway men was right on this end of the smoke, and they didn’t appear to flag me down or anything like that, and I thought, well, it was just a little patch of smoke, and so I slowed up, and the farther in I got the worse it got.”

Claimant Witt identified three highway men: Junior Cantrell who was on the north side of the road, Harry Califf on the other side of the road, and Joe Schlipman on a tractor. They were near the road before he entered the smoke. Witt said that a “regular highway truck” was on the scene with no flasher running. Claimant entered the smoke and slowed down to 25 to 30 miles per hour. The shoulder on the right side of the road was “ablaze”. After he got into the smoke about two blocks he hit the back end of a truck. A State patrolman was called, and claimant received a ticket. Claimant stated that he never saw the truck, and was afraid to stop after he got into the smoke because someone might have hit him. Claimant testified that he had no personal knowledge of who started the fire.

Otis Miller testified that he had occasion to be on Route No. 61 on the day of the accident at about 3:00 P.M. He saw smoke and the highway truck parked off the road with Junior Cantrell, Joe Schlipman and Harry Califf “sitting on the bank watching the fire.” When he drove into the smoke he could not see, put on his brakes, and then saw claimant Witt running across the road. The smoke lifted right before Mr. Miller saw claimant. He stated that the fire came right up to the road. He had no conversation with the highway men, and did not see how the fire started.

Robert Shields testified that he was traveling on Route No. 61 on the day in question. The weather was clear, and the sun was shining. As he travelled along Route No. 61 he approached an area of heavy smoke, which got heavier as he proceeded. He slowed down, turned his lights on, and continued to drive west on the highway. He entered the smoke, and continued about a quarter of a mile until he noticed a vehicle stopped in front of him. He then stopped within twenty feet of the vehicle in front of him. The fire was burning within three to four feet of the right shoulder. Immediately before Mr. Shields was hit by the car, later identified as that belonging to claimant, Mr. Shields described the following:

“. . . I looked in the rear glass, and I noted a dim pair of headlights — I couldn’t tell how far or how fast • — ■ and I looked back, and noticed that the car was moving forward in front of me, and I was in low gear following this car in front of me when this impact hit. ’ ’

Mr. Shields further testified that, when he observed the vehicle in front of him, he began to pump the brake, and flash both rear flash lamps. After the impact, Shields stated, the officer on the scene observed that the lamps were still intact, and still operating. As Shields approached the smoke he saw some State Highway trucks with a crew of men working at a slight curve in the highway: “Apparently they were cleaning a highway or a ditch ...” The crew was about a quarter of a mile from where the smoke began. In Mr. Shield’s opinion the visibility could not have been “completely zero, or I wouldn’t have seen the tail lamps of the car in front of me.” Mr. Shield’s truck was described as being % ton in size.

Sherman Bragg testified that he was traveling on Highway No. 61 about 2:00 in the afternoon on the day in question. Mr. Bragg said that he saw a Highway Department road tractor on the south side of the highway. Mr. Bragg further testified that he saw a man get off the tractor, and light two or three fires. He did not know who the man was, but he did see Junior Cantrell sitting in a Highway Department truck. He described the fires as very small, “like that you could put out with your hands”, and he did not drive through any smoke.

Before claimant makes a recovery, it must be proved by a preponderance of evidence that he was free from contributory negligence, and that respondent’s negligence was the proximate cause of the damages suffered.

It should be noted that no Departmental Report was submitted, and that neither party called the men who were allegedly working on the highway crew to appear as witnesses.

Respondent contends that, although claimant could clearly see dense smoke enveloping the highway at a considerable distance, he proceeded through it at a speed of 25 to 30 miles when he “could not see the hood of his car” by his own testimony. Respondent further contends that, because he was aware of the condition, and the complete lack of visibility, claimant did not drive with the care and caution of an ordinarily prudent person under similar circumstances, and that the proximate cause of the accident was claimant's failure to proceed with caution.

In the case of Ames vs. Terminal R. Assn., 332 Ill. App. 187, the plaintiffs, passengers in a vehicle driven by Adams, brought suit for injuries sustained when Adams drove into dense smoke caused by a locomotive engine, and struck the rear end of a bus, which had stopped in the smoke. In holding the passenger plaintiffs guilty of contributory negligence, and denying their claim, the court said at pages 193-194:

“Persons approaching a place of danger have a duty to do so cautiously and with a proper degree of care for their own safety, the degree of care required being determined by the danger to which they are knowingly exposed. (Little vs. Illinois Terminal R. Co., 320 Ill. App. 163; Moore vs. Illinois Power & Light Corp., 286 Ill. App. 445.) A person has no right to knowingly expose himself to danger, and then recover damages for an injury, which he might have avoided by the use of care for his own safety. (Dee vs. City of Peru, 343 Ill. 36; Illinois Cent. R. Co. vs. Oswald, 338 Ill. 270; Little vs. Illinois Terminal R. Co., 320 Ill. App. 163.)
“The evidence presented on behalf of the plaintiffs shows that they first saw the smoke when their car was about 80 or 90 feet east of the place where the bus was stopped; that their car traveled about 40 feet in the first smoke that they came to which obstructed their view so that they could not see too well; that the driver of the car took his foot off of the accelerator, which automatically reduced the speed of the car, but at no time did he apply his brakes; that the car was driven a distance of 30 or 40 feet in the dense smoke, which was so dense that the driver could not see beyond the hood of the automobile, before it ran into the rear end of the bus. The automobile could have been stopped at the speed at which it was traveling within a distance of 30 feet. Yet the driver made no attempt to stop the automobile upon becoming apprehensive of the danger involved in driving in the dense smoke where he could not see beyond the hood of his car, nor did either of the plaintiffs warn the driver of the danger or request him to avoid the danger. . . .
“The question of contributory negligence is ordinarily a question of fact for the jury, yet when there is no conflict in the evidence, and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant. (Illinois Cent. R. Co. vs. Oswald, 338 Ill. 270; Dee vs. City of Peru, 343 Ill. 36; Wilson vs. Illinois Cent. R. Co., 210 Ill. 603; Beidler vs. Branshaw, 200 Ill. 425.)
“Upon consideration of the evidence produced by plaintiffs together with all reasonable inferences to be drawn therefrom in its aspect most favorable to plaintiffs, we find that plaintiffs, . . . were not in the exercise of due care and caution for their safety at the time and before the accident, and were guilty of contributory negligence.
“The judgment of the trial court of St. Clair County directing a verdict for the defendants is hereby affirmed.”

In Jones vs. State, 8 N.Y.S. 774, the Court of Claims of New York State denied a claim in a similar case. In that case the State was repairing a highway, and one of the State employees was burning a quantity of leaves, which had accumulated at the work site, with the result that the smoke drifted across the highway, and enveloped a tar tank and an automobile being used in the work. Claimant was driving on the highway in a truck, and saw the smoke about 500 feet away. He reduced his speed, and drove into the smoke until he collided with the tar tank. The Court of Claims held that the claimant was guilty of contributory negligence.

It does not appear that claimant acted with due care and caution in driving into dense smoke, which was clearly visible from a distance, and then proceeding at 25-30 miles per hour without being able to see what was in front of him.

Where the highway is of such condition that one can see nothing ahead, it is not reasonable to proceed at 25 to 30 miles per hour, if at all. The driver of the truck, which claimant struck, could see the tail lights of the car ahead of him, as well as claimant’s headlights, and did, in fact, have his blinking red lights on at the rear of his truck.

Claimant did not prove his freedom from contributory negligence, and recovery is hereby denied.


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    (No. 5408
    The Capital City Paper Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    The Capital City Paper Company, An Illinois Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, The Capital City Paper Company, an Illinois Corporation, filed its complaint against respondent for the sum of $626.73 for materials furnished to various departments of government of the State of Illinois.

Thereafter, a stipulation was entered into by claimant and respondent as follows:

“The report of the office of the Secretary of State, dated December 9, 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.
“It is agreed between the parties hereto that claimant’s claim will be reduced from the amount of $626.73 to $649.50, pursuant to the evidence presented by the departmental report hereto attached and marked exhibit A.
“Neither party objects to the entry of an order in favor of claimant and against respondent in the sum of $549.50.
“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, The Capital City Paper Company, an Illinois Corporation, is, therefore, awarded the sum of $549.50.


text:
    (No. 5515
    Gwendolyn I. White, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Gwendolyn I. White, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Gwendolyn I. White, filed her complaint against respondent for the sum of $110.00 for medical services rendered to the Department of Children and Family Services of the State of Illinois.

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

“The report of the Department of Children and Family Services, dated July 2, 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 $107.00.
“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, Gwendolyn I. White, is therefore, awarded the sum of $107.00.


text:
    (No. 5554
    Sinclair Refining Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 24, 1969.

    Sinclair Refining Company, Claimant, pro se.
    William G. Clark, Attorney General; Etta J. Cole, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Sinclair Refining Company, filed its complaint against respondent for the sum of $908.81 for materials furnished the Department of Conservation of the State of Illinois.

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

“That claimant, Sinclair Refining Company, had furnished materials as alleged in claimant’s statement of claim.
“That there is lawfully due claimant the sum of Seven Hundred Forty Eight Dollars and Fifty Nine Cents ($748.59).
“That, as a result of delay in billing by claimant herein, payment was not made prior to the closing of the biennial 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, Sinclair Refining Company, is, therefore, awarded the sum of $748.59.


text:
    (No. 5225
    Lester R. Borum and Emmco Insurance Company, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1969.

    Berman and Newman, Attorneys for Claimants.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, and John 0. Touhy, Special Assistant Attorney General, for Respondent.
   Dove, J.

This cause of action is brought by claimant, Lester B. Borum, seeking recovery for property damage and personal injuries suffered by him in an accident in North-lake, Illinois, at the North Avenue and Lake Street overpass. On May 21, 1964, at approximately 7:00 p.m., Claimant was riding as a passenger in a 1963 Mack tractor-trailer, which was owned by him, and driven by his employee, Buford Carter. Claimant testified that, as the truck in which he was riding as a passenger, which was traveling westbound on North Avenue, approached the Lake Street overpass, he saw a sign, which stated ‘ ‘ Clearance 13' 7", and that the height of his trailer was 13' 1"”. As the trnck was proceeding under the overpass, the trailer struck the top of the bridge, the truck tipped over on claimant’s side, and slid forward about 20 feet.

The evidence shows that the actual height of the overpass over a portion of the westbound traffic lane was only 12' 10", and that respondent had notice of the difference between the warning sign, which indicated an overpass clearance of 13' 7", and the actual overpass clearance of 12' 10".

After the truck tipped over, claimant was pulled from the tractor, and was taken by the police to Memorial Hospital where he remained for four days, during which time he suffered severe back pains. He was not able to urinate without medical assistance, and could not eat without vomiting. At the end of the four days claimant was placed in a brace, and allowed to return to his home in Colorado. He was advised to see his doctor immediately.

After returning home, claimant consulted Dr. Parkinson, his family physician, who ordered x-rays, and referred him to Dr. Starks. Claimant was then placed in The Eocky Mountain Hospital, where he remained for six days. Dr. Starks placed claimant in a plaster cast, which extended around his body from his chin to his tailbone. He remained in the cast for two months.

Claimant testified that prior to the accident he had no back trouble; that his general health was good; that since 1952 he had been employed as a tuckpointer; and, that prior to 1952 he worked as a scaffold painter. Claimant testified further that he had been unable to work as a painter or tuckpointer since the accident; that he was unable to lift a scaffold; and that he did make two attempts to work, but had not been employed since the accident.

Claimant’s special medical damages amounted to $583.44, and the total damage to the tractor and trailer amounted to $2,173.04, of which $1,923.04 was paid by Emmco Insurance Company.

Dr. Frank D. McGlone and Dr. C. Eobert Starks testified in an evidence deposition that as a result of the accident claimant received a compression fracture of the second lumbar vertebra.

Claimant was examined on behalf of respondent by Dr. John Gleason whose report states that there was a compression fracture of the second lumbar vertebra. Dr. Gleason concludes that, in determining whether claimant could return to work, much would depend upon the degree of pain he still has.

Claimant contends that the State of Illinois was negligent in placing a sign indicating clearance of 13' 7" at a point near the overpass, when in fact the actual clearance was 12' 10", and in allowing this condition to exist for some time prior to the accident in question. Claimant also contends that the State of Illinois had knowledge of the hazard at least five weeks prior to the accident in question.

The State of Illinois is not an insurer of every accident that occurs upon its public highways. Link vs. State of Illinois, 24 C. C. R. 69; Bloom vs. State of Illinois, 22 C. C. R. 582. The law in the State of Illinois is clear that, in order for a claimant in a tort action to recover against the State, he must prove that the State was negligent, that such negligence was the proximate cause of the injury, and that claimant was in the exercise of due care and caution for his own safety. Link vs. State of Illinois, 24 C. C. R. 69; McNary vs. State of Illinois, 22 C. C. R. 328; Bloom vs. State of Illinois, 22 C. C. R. 582. The State has a duty to exercise ordinary care to maintain its highways in a reasonably safe condition for public travel. Garrett vs. State of Illinois, 22 C. C. R. 343.

Contrary to respondent’s contention, the Court finds from the evidence that there was no indication of contributory negligence on the part of claimant or his employee, who was driving the truck. It is the opinion of this Court that respondent was negligent in the maintenance of the overpass, and in the posting of a warning sign indicating a clearance of 13' 7" when in fact the clearance was only 12' 10", and that this negligence was the proximate cause of the personal injuries and property damage herein complained of. This Court is further of the opinion that claimant herein had a right to rely upon the warning sign indicating an overpass clearance of 13' 7".

It appears from the evidence in this case that claimant has sustained a serious and permanent injury to his back, and that such injury has prevented claimant from being able to work at his customary trade.

For the foregoing reasons the Court finds that claimant, Lester R. Borum, is entitled to an award of $18,-000.00, said award being for medical expenses, loss of earnings, permanent disability and property damage. A further award is made to claimant, Emmco Insurance Company, subrogee of Lester R. Borum, the sum of $1,923.04 for property damage to claimant’s trailer.

It is, therefore, ordered that claimant, Lester R. Borum, recover the sum of $18,000.00, and that claimant, Emmco Insurance Company, recover the sum of $1,923.04.


text:
    (No. 5456
    Gulf Oil Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    Gulf Oil Corporation, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Gulf Oil Corporation, filed its complaint in the Court of Claims on January 19, 1968, in which it seeks the sum of $63.30 for materials furnished to the Department of Public Works and Buildings, Division of Highways.

A Departmental Report was filed, which stated in part:

“During the month of February, 1967, Gulf Oil Corporation supplied lubricating oils to the State of Illinois, Department of Public Works and Buildings, Division of Highways, at the Division’s request. The material had been contracted for by persons properly authorized, and it was received in good condition.
“The only reason that the bill of Gulf Oil Corporation in the amount of $63.30 cannot now be paid is that the appropriation therefor has lapsed.”

Subsequently a written stipulation was entered into by claimant and respondent as follows:

“The report of the Department of Public Works and Buildings, dated February 9, 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 $63.30.
“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 Court has repeatedly held that, where a contract has been (1) properly entered into; (2) services satisfactorily performed, and materials furnished in accordance with such contract; (3) proper charges made therefor; (4) adequate funds were available at the time the contracts were entered into; and, (5) the appropriation for the biennium from which such claim could have been paid had lapsed, it would enter an award for the amount due. St. Mary’s Hospital, Decatur, of the Hospital Sisters of the Third Order of St. Francis, an Illinois Corporation, vs. State of Illinois, Case No. 5261, opinion filed February 24, 1966. It appears that all qualifications for an award have been met in the instant case.

Claimant, Gulf Oil Corporation, is, therefore, hereby awarded the sum of $63.30.


text:
    (No. 5459
    McAlear Division of White Consolidated Industries, Incorporated, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    McAlear Division of White Consolidated Industries, Incorporated, Claimant, pro se.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant seeks payment of the sum of $115.16 for materials furnished the Secretary of State, Superintendent of Buildings and Grounds.

Exhibit A attached as a Departmental Report, and later admitted into evidence by virtue of a stipulation between claimant and respondent, states as follows:

“We acknowledge receipt of your letter, dated January 30, 1968, in which additional information is requested regarding the above transaction.
Our files fail to disclose wherein payment was made. However, the merchandise itemized on your enclosure was received, and we are, therefore, indebted for same.
Failure of the vendor to submit invoice vouchers covering these transactions within the appropriate biennium necessitates filing in the Court of Claims for payment.”

Subsequently, on February 28,1968, a stipulation was entered into between claimant and respondent admitting said exhibit A into evidence, and agreeing that no further oral or written evidence would be introduced by either party; that no briefs would be filed, or other pleadings; and, that the cause could be assigned in the same manner as if all hearings and pleadings had been closed.

This Court has held numerous times that, where the evidence shows the only reason the claim was not paid was because the appropriation for the biennium in which the service was performed had lapsed, this Court would make an award. Continental Oil Company vs. State of Illinois, 23 C.C.R. 70, and M. J. Holleran, Inc. vs. State of Illinois, 23 C.C.R. 17.

Claimant, McAlear Division of White Consolidated Industries, Inc., is hereby awarded the sum of $115.16.


text:
    (No. 5478
    Midstate College of Commerce, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 14, 1968.

    Midstate College of Commerce, Claimant, pro se.

      WiiíiIam G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant, Arline H. Bunch, d/b/a Midstate College of Commerce, filed her complaint against respondent for the sum of $67.43 for services and materials rendered the Board of Vocational Education and Rehabilitation.

A Departmental Report was filed by the Division of Vocational Education and Rehabilitation by Robert 0. Byerly, Deputy Director, which stated as follows:

“The claim entered by the above listed school is a legal claim as an encumbrance was made for training student, Gloris Buley. Monthly payments were made to the school. However, the student withdrew June 28, 1967. No payment was made for June 26 through June 28 until after the grace period of September 30, 1967 had ended. The billing received carried the two days, plus books and supplies, which amounted to $67.43. This is a legal claim. The encumbrance was set up, and no payment for this period has been made by the Division.”

Subsequent to the Departmental Report, a stipulation was entered into by claimant and respondent agreeing that no further oral or written evidence would be introduced, and that the case would be assigned on the basis of the Departmental Report. 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 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, Midstate College of Commerce, is thereby awarded the sum of $67.43.


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

      Opinion filed June 28, 1968.

    Gosnell, Benecki and Quindry, Attorneys for Claimant.
    William G. Clark, Attorney General; Lee D. Martin, Assistant Attorney General, for Respondent.
   Pezman, J.

Claimant filed her petition for reimbursement for monies expended for nursing care and help, medical services and expenses from January 1, 1967 to February 1, 1968 on the 12th day of March, 1968, praying for an award in the sum of $7,680.42.

Claimant was seriously injured in an accident on the 2nd day of February, 1936, while employed as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School, at Normal, Illinois. The complete details on this injury can be found in the original cause of action, Penwell vs. State of Illinois, 11 C.C.R. 365.

A joint motion of claimant and respondent was filed herein requesting leave to waive the filing of briefs and the making of arguments. This Court granted the motion for waiver. Thereafter, on the 10th day of May, 1968, a stipulation between claimant and respondent was filed with the Clerk of the Court of Claims, which reads as follows:

“The amended petition filed by claimant seeking an award in the sum of $6,938.42 reflects a reduction of $742.00 from the original amount claimed in accordance with exhibit A, which is hereto attached, and which 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 whom 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 enty of an order in favor of claimant and against respondent in the sum of $6,938.42.
“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.”

An award is made to claimant for the sum of $6,-938.42 for the period of time from the 1st day of January, 1967, to the 1st day of February, 1968.

The matter of claimant’s need for additional care is reserved by this Court for future determination.