text:
    (No. 4914
    E. H. Marhoefer, Jr., Co., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 28, 1965.

    Healy, Newby, Barrett and Healy, Attorneys for Claimant.
    William G. Clark, Attorney General; Lester Shapiro and Erwin H. Greenberg, Special Assistant Attorneys General, for Respondent.
   Perlin, C.J.

This action was instituted by claimant, E. H. Marhoefer, Jr., Go., an Illinois corporation, for damages in the sum of $493,544.88 resulting from alleged unreasonable delays in completion of a construction contract, which was awarded to claimant by the State of Illinois. At hearing, claimant increased its ad damnum to $591,695.60.

At the conclusion of a lengthy hearing, during which the parties submitted a great number of exhibits, books and documents, the following stipulation was entered into by and between the attorneys for claimant and the Attorney General of Illinois representing respondent:

Stipulation of Fact

“It is hereby stipulated by and between the parties hereto, by their respective attorneys, after trial of the within cause before the Special Commissioner appointed to hear same, and upon presentation of all the evidence both oral and documentary, as follows:
“1. That the Court has jurisdiction of the parties to and the subject matter of this cause.
“2. That the complaint was brought under Chap. 37, Par. 439.8 of the Ill. Rev. Stats.
“3. That claimant is in the general contracting business, and has been so engaged for many years last past, and has offices at 2424 North 25th Avenue, Franklin Park, Illinois.
“4. That claimant is the sole owner of the claim herein alleged against the State of Illinois, and that no other person or corporation has any interest in said claim.
“5. That, on or about August 21, 1956, claimant as a general contractor submitted to the Department of Public Works and Buildings of the State of Illinois its proposal for the general work for the Illinois Psychiatric Institute State Hospital to be erected at 1601-1659 West Taylor Street, Chicago, Illinois.
“6. Prior to the submission of said proposal, the respondent required bidders to include in same certain allowances for hardware, which allowance was included in claimant’s proposal submitted August 21, 1956 to respondent.
“7. That claimant’s proposal was accepted, and a contract was entered into between claimant and respondent, dated September 18, 1956, pursuant to which contract claimant agreed to do the work described therein and in the plans and specifications and other contract documents for a total contract amount of $4,259,524.00 comprised as follows:
‘Scope of Wobk:
‘Proposal No. 1 for the General Work for the Illinois Psychiatric Institute State Hospital (Eleven Story Building), 1601-1659 West Taylor Street, Chicago, Illinois, as shown on the drawings, and as specified, the sum of. .$4,297,924.00
‘Proposal No. 9 for the General Work (Eleven Story Building) — in event that the electrically controlled locks for the Patients’ Rooms and Stairway Doors are not installed, thus changing the special shaped door frames for these doors to standard door frames, and changing the locks to standard locks, as shown on the drawings, and as specified, except that the electrically operated locks shall be provided for Door B to Stair W, Door B to Stair N, Door B to Stair S, and Door H2 from Corridor 500 W to Public Corridor 500, in all stories from the 5th to the 11th, inclusive, is accepted and authorized, deduct the sum of................................ 43,700.00
$4,254,224.00
‘Proposal No. 11 for the General Work — in event that the installation of ‘Detention Screens’ in lieu of ‘Protective Screens’ at all windows where the protective screens are indicated, as shown on the drawings, and as specified, is accepted and authorized, add the sum of.. 5,300.00
$4,259,524.00’
“8. That said contract originally provided a hardware allowance of $168,000.00, which said amount was modified by Addendum No. 2 in the amount of $38,000.00 from said hardware allowance by the elimination of certain locks and other hardware, all as is more particularly set out in Proposal No. 9, which contained a deductive hardware allowance of $38,000.00. That the final allowance for hardware provided for under the contract documents amounted to $168,000.00 less the $38,000.00 covering the change in locks and other hardware requirements bringing the net hardware allowance under the contract documents to $130,000.00. That said net hardware allowance of $130,000.00 was the true and correct amount of same, and is the amount used by respondent in computing the hardware allowance credits and debits with respect to claimant’s payments. That, claimant’s claim that it is entitled to $38,000.00 because of an error of the respondent in computing the correct amount of said allowances after giving consideration to the deductive Proposal No. 9 is not supported tire evidence, and, therefore, the Court finds in favor of respondent and against claimant with respect to said claim for $38,000.00 hardware allowance alleged credit.
“9. That claimant commenced construction of the building pursuant to the plans and specifications and other contract documents, and experienced certain small delays in pouring the first floor concrete slab, which said delays were caused by contractors of respondent, but that said delays were not unreasonable, and, therefore, claimant is not entitled to reimbursement from respondent for additional costs incurred by reason of these small delays.
“10. That respondent unreasonably delayed claimant in choosing a hardware supplier, and in approving the finished hardware schedules required by the metal door frame and metal door manufacturer in order to properly and promptly manufacture said door frames and doors. That because of this delay the metal door frames and doors could not be manufactured in time to meet the progress schedule of claimant, and that this in turn interfered with the sequence of claimant’s work on the interior masonry walls of the project, and in so doing decreased efficiency of performance of said work by claimant. That these delays were without fault on the part of claimant or its subcontractor, suppliers, employees or agents but solely the fault of respondent, and said delays were unreasonable in extent. That, as a result of said delays, claimant was obliged to incur additional costs for both direct and indirect labor, equipment rental expense, and overhead expenses in the total amount of $197,961.75, and is entitled to reimbursement from respondent for said amount.
“11. That during the course of the construction respondent changed the design of windows in the curtain wall of the building from center pivoted windows to double hung windows. That this change was not provided for in the plans and specifications or other contract documents on which claimant originally bid, and was not made a part of it until on or about April 26, 1957 after all the engineering and design of the curtain wall and its center pivoted windows, as originally required by the plans and specifications and other contract documents, had been completed. That because of this- change, which was required by respondent, all the engineering and detailed computations and drawings had to be re-cálculated and re-drafted, and claimant lost its place in the manufacturing schedule of its supplier. The delays entailed by all of the foregoing, which were due to no fault of claimant, but due solely to the fault of respondent, caused claimant additional costs in direct and indirect labor, equipment rental expense, and overhead, all of which would not have had to have been incurred by claimant had "not the change in window design from center pivoted to double hung windows been made by respondent. That these delays were unreasonable in extent, and caused change of sequence of work, and reduced efficiency in the performance thereof by claimant. That by reason of the foregoing claimant was further damaged in the amount of $125,332.57 for additional costs, which claimant had to incur because of said change of window design, which would not have had to have been incurred had there been no such change, and claimant is, therefore, entitled to be reimbursed for said additional costs in said amount by respondent.
“12. That claimant was further delayed by respondent because of several smaller changes in the plans and specifications from those provided for in the plans and specifications. That one of these delays involved the construction of an ambulance entrance canopy. That a further delay occurred when respondent decided to construct a basement passageway, and then later abandoned this proposed construction. An additional delay occurred when changes were made in the x-ray room design, which held up completion of other work in the area. A further delay occurred when respondent changed the original plans and specifications by requiring claimant to construct bases for nurses’ cabinets in the nurses’ stations throughout the eleven story hospital building, and a further delay was caused by respondent when it required claimant to install and construct lightweight concrete locker bases for 356 lockers made of metal. That all of the foregoing 5 delays were unreasonable, and because of same work was held up, which could have been finished earlier had not said delays occurred. That as a result claimant was obliged to incur additional expense for direct and indirect labor, equipment rental and overhead, and, since this was towards the end of the performance of the entire job, respondent was responsible for increased costs due to escalation of direct labor by reason of an increase in union rates required to be paid for same. That the work that was held up could have been performed before these rates went into effect had not such delays occurred. That none of these delays were the fault of claimant, its subcontractor, suppliers, employees or agents, but were solely caused by respondent, and said delays were unreasonable. That the additional costs incurred by claimant due to these 5 delays, which would not have had to have been incurred by it were it not for said delays, amounts to $31,210.57, and claimant is entitled to reimbursement for said amount from respondent.
“13. That, by reason of all of the above and foregoing delays, additional insurance premiums had to be paid for the total period of said delays. That the additional insurance premiums for this period of time, which had to be paid by claimant, but which would not have had to have been paid were it not for such delays, amounts to $5,495.11. That claimant is entitled to be reimbursed by respondent for said amount.
“14. That a flood occurred in a construction project known as the Pediatric Building, which was being constructed by Pathman Construction Company, a direct contractor of respondent. That an exceptionally heavy rainfall occurred on the night of April 27, 1959 and in the early morning of April 28, 1959. That, as a result of said rainfall, a flood occurred in the Pediatric Building, flowed into the Illinois State Psychiatric Hospital, and caused certain damage therein. That respondent is not responsible to claimant for said flooding or for the damage occasioned thereby, and claimant is, therefore, not entitled to any reimbursement from the State of Illinois for said flood damage.
“15. That claimant has included in its claim additional financing costs incurred by it because of respondent’s withholding of the claimant’s retention money, and further for additional financing costs due to the failure of respondent to pay the claims involved in this proceeding. That claimant is not entitled to any payment from respondent for either of these items of alleged damage.
“16. That claimant performed all construction work required under the terms and conditions of the plans and specifications and other contract documents, and that said work was accepted and approved by respondent. That claimant was not reimbursed for any of the above and foregoing claims asserted by it against respondent.
“17. That, in summary, claimant is entitled to be reimbursed from respondent for the following amounts, and only those amounts:
‘Expenses incurred by claimant because respondent failed to properly coordinate the approval of certain finished hardware schedules and the choosing of a supplier for such hardware, which expenses claimant would not have had to incur except for delays caused by such failure..........................................$197,961.75
‘Expenses incurred by claimant because respondent changed the design of windows from center pivoted windows to double hung windows, which claimant would not have had to incur except for delays caused by such change.................................... 125,332.57
‘Expenses incurred by claimant because of numerous changes and additions in the work to be done toward the end of the construction period, which would not have had to have been incurred except for the delay caused by such changes and additions....................... 31,210.57
Additional insurance premium expense due claimant caused by respondent’s delays........................ 5,495.11 Total............................$360,000.00’
“It is further stipulated by and between the parties by their respective attorneys that the filing of the briefs and abstracts; and all notices with respect thereto, be and the same are hereby waived, and that a Judgment Order be entered in the amount of . THREE HUNDRED SIXTY THOUSAND, AND NO/lOO ($360,000.00) DOLLARS in favor of claimant and against respondent."

Also submitted into the record by the Attorney General as a Report of the Department of Public Works and Buildings is a communication from the Director of said Department, dated May 21, 1965, which is as follows:

“Honorable William G. Clark Attorney General State of Illinois 160 North La Salle Street Chicago, Illinois
Re: Claim of E. H. Marhoefer, Jr., Co. vs. State of Illinois,
Illinois Court of Claims #4914
Dear Mr. Clark:
After thoroughly reviewing the above claim on an extensive examination of the facts and circumstances surrounding same and considering the evidence presented at the trial of the case involving said claim, it is hereby acknowledged that the Department of Public Works and Buildings owes the sum of $360,000.00. This amount is arrived at after eliminating all amounts claimed, except it is based on delays which we feel are actionable.
Very truly yours,
/s/ FRANCIS S. LORENZ Director"

In view of the stipulation of the parties hereinbefore in I toto set forth, supported by the Report of the Department 1 of Public Works and Buildings hereinabove cited, it is the I opinion of this Court that claimant be awarded damages in 1 the sum of $360,000.00. I


source: Caselaw Access Project

author: Pezman, J.

license: Public Domain

text:
    (No. 4923
    Burton Hosey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    McConnell, Kennedy, McConnell and Morris, Attorneys for Claimant.

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

This is an action by claimant, Burton Hosey, against respondent, the State of Illinois, under the Structural Work Act for personal injuries sustained by claimant when he fell from a scaffold under the Cedar Street Bridge owned by the State of Illinois on August 28, 1959. Claimant’s cause is based upon certain statutes, being Secs. 60, 63 and 69 of Chap. 48, 1959 Ill. Rev. Stats., which are set forth as follows:

“Sec. 60. Scaffolds, cranes, ladders, etc. — erection and construction. That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this state for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or any other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.
“Scaffold, or staging, swung or suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising a (at) least thirty-four inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure . . .
“Sec. 63. Inspection — Notice—Alteration and reconstruction — Free access — Devices regulated. Whenever it shall come to the notice of the Director of Labor or the local authority in any city, town or village in this State charged with the duty of enforcing the building laws, that the scaffolding or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons or ropes of any swinging or stationary scaffolding, platform, or other similar device used in the construction, alteration, repairing, removing, cleaning, or painting of buildings, bridges, or viaducts within this State are unsafe or liable to prove dangerous to the life or limb of any person, the Director of Labor or such local authority or authorities shall immediately cause an inspection to be made of such scaffolding, platform or device, or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons or other parts connected therewith. If, after examination, such scaffolding, platform or device or any of such parts is found to be dangerous to the life or limb of any- person, the Director of Labor or such local authority shall at once notify the person responsible for its erection or maintenance of such fact, and warn him against the use, maintenance or operation thereof, and prohibit the use thereof, and require the same to be altered and reconstructed so as to avoid such danger. Such notice may be served personally upon the person responsible for its erection or maintenance, or by conspicuously affixing it to the scaffolding, platform, or other such device, or the part thereof declared to be unsafe. After such notice has been so served or affixed, the person responsible therefor shall cease using and immediately remove such scaffolding, platform, or other device, or part thereof, and alter or strengthen it in such manner as to render it safe.
“The Director of Labor or such local authority, whose duty it is under the terms of this act to examine or test any scaffolding, platform, or other similar device, or part thereof, required to be erected and maintained by this section, shall have free access at all reasonable hours to any building, structure or premises containing such scaffolding, platform, or other similar device, or parts thereof, or where they may be in use. All swinging and stationary scaffolding, platforms, and other devices shall be so constructed as to bear four times the maximum weight required to be dependent therein, or placed thereon, when in use, and such swinging scaffolding, platform or other device shall not be so overloaded or overcrowded as to render the same unsafe or dangerous ...
“Section 69. Penalties — recovery of damages — attorneys fees. Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any buildings, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof, ... for any injury to person or property, occasioned by any wilful violation of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, ®r to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.”

Claimant contends that respondent knowingly or wilfully failed to comply with such statutes in one or more of the following respects:

(a) Failed to maintain the said scaffolding or staging in a reasonable and safe condition, when it knew or by the exercise of reasonable care ought to have known that the scaffolding or staging was unsafe and improper and dangerous to the life and limb of workmen employed on said scaffolding or staging as was this claimant.
(b) Neglected and failed to inspect the said scaffolding or staging when in the exercise of ordinary care this respondent knew or ought to have known that an inspection of said scaffolding or staging would reveal it to be in an unsafe condition for the purposes for which it was being used by this claimant.
(c) Neglected and failed to provide adequate safeguards in accordance with said statute.
(d) Neglected and failed to require the said Neumann and Co. to build and maintain the scaffold or staging in a safe and reasonable manner so as to prevent injury to persons such as this claimant.
(e) Knowingly permitted the erection and construction on its premises of a scaffold or staging that was not erected and constructed in a safe, suitable and proper manner, and was not so erected, constructed and placed as to give proper and adequate protection to tire life and limb of this claimant employed or engaged thereon in that it was constructed so that it swung from an overhead support more than twenty feet from the ground and no hand rails were provided therefor, contrary to the statute.

Respondent contends that, in order for the State of Illinois to be liable under the Structural Work Act, it must have been in charge of the work being performed at the time of the occurrence in question, and states that this is the question of fact to be decided by the Court or a jury. Respondent further contends in a second point that it should be allowed to offset against any award, which might be made by the Court of Claims, any money which the claimant may have received under the Workmens Compensation Act.

On August 28, 1959, claimant, then 34 years of age and weighing 230 pounds, was employed by the Neumann Company, a painting and sandblasting contractor. The company was employed to paint the Cedar Street Bridge in Peoria, Illinois. At the time of the accident, they were working on the Peoria side of said bridge. It is not disputed that the bridge was owned by the State of Illinois. The claimant had worked as a painter and sandblaster for about six years. At 8:00 A.M. on the day of the accident, the claimant was instructed by his Superintendent to go up on the scaffolding constructed by his employer to do some painting. The scaffold in question consisted of 3 needle beams, made of wood, 4 inches square and 20 or 24 feet in length, suspended from the bridge by cables. One needle beam was suspended from each side of the bridge and one from the center. Two picks (or platforms) ran from the needle beams to each side of the bridge, and rested on the outer needle beams. These picks were 36 inches wide and 24 feet long, constructed like a ladder, but with board coverings being attached to the rungs. The picks were laid across the needle beams, and from the evidence it does not appear that they were tightly lashed or tied to them. The entire scaffold was about 40 feet above the ground. Claimant had just stepped onto one of the picks, when one of the outside needle beams broke, causing him to fall about 40 feet onto hard compacted ground. The evidence indicates that each needle beam was hung by a steel cable, but with no reinforcing cable under the body of the beam. It was further developed that none of the wooden needle beams in use on this particular job were reinforced with a wire cable around the top and bottom and the ends of the beams to prevent their breaking. Claimant testified that he had worked on other jobs similarly rigged, but on those jobs, if wooden needle beams were used, they were reinforced by steel cable, or that needle beams made of steel pipe were used. It is further shown that the pick on which claimant was standing at the time of the accident was not equipped with guard rails, and there were no nets beneath the scaffold. Claimant also stated that on other jobs on which he had worked, safety belts had been provided, which could be attached to the structure on which they were working.

Paul Kjelshus, a resident engineer of the Division of Highways of the State of Illinois, was called as an adverse witness by claimant. He testified that, at the time of the accident on August 28, 1959, he was an Engineering Technician II of the State Division of Highways of the Department of Public Works and Buildings; that since June 17, 1957, he had been an inspector for the State of Illinois, and, that his duties were to see that the jobs were done in accordance with the contract provisions. He testified that the State of Illinois owned the Cedar Street Bridge on the date of the accident, and that he was an inspector at that time, and on that date that his other duties with reference to the Cedar Street Bridge were to see that the job and the working conditions proceeded in a safe and proper manner. He testified that it was his duty to inspect safety measures at the Cedar Street Bridge and on other bridge jobs being done for the State, and that one of his duties was to see that proper safety measures were taken for the welfare of the men on the job. Kjelshus testified that on August 28, 1959, he arrived at the Cedar Street Bridge at about 7:50 A.M., and that before that date he had inspected the operation almost every day since it had started. He further stated that his superiors were also at the job, and that his duties required him to get under and upon the bridge, and to report to his superiors from time to time about what was going on at the job. Kjelshus’ testimony included a statement by him that he was aware of the so-called Scaffolding Act, and knew that it was in force. He stated that he was responsible for the total conduct of the work of painting and sandblasting the Cedar Street Bridge on August 28, 1959. On that date, he was on the bridge, heard something break, and saw Mr. Hosey fall. He testified that he determined that the needle beam, which was made of wood, broke.

Subsequently, the same Paul Kjelshus was called as a witness for respondent. Upon such direct examination, he stated that he was the engineer on this job, and, as such, was responsible for its execution. He first saw the needle beam, which broke, at 8:00 A.M. on the morning of the accident. It was constructed of Douglas fir, 4 inches by 4 inches and 20 feet in length, and was apparently in a good and dry condition. He stated that he knew what the needle beam was to be used for, but did not know when the board arrived on the job. He asked the Superintendent on the job if he was sure the beam was in satisfactory condition, and told Mr. Doremus, Superintendent for the Neumann Company, that he did not like the looks of the board, and asked him not to use it. He stated that about three or four feet from the end there was a small indentation like a knot. He further testified that the board did not break at the point of the knot, but broke in a long slant or diagonal break, not in the small defect that he had noticed. Kjelshus testified that he had registered a complaint to the Superintendent about the particular board, but that the Superintendent used it anyway. He stated that he had seen picks with guard rails on single installations, but didn’t believe that guard rails on the pick would have prevented the fall, if the needle beam broke. He testified that claimant could have ridden the pick down, hanging on to the rail, but whether he could have prevented himself from being injured was another story. His testimony further disclosed that a loose strand of rope was wrapped around the pick and the needle beam, but not tightly lashed, and that the needle beam was attached to cables running through the ends, but not underneath the wood. He further stated that the custom and usage of the business is to use a needle beam of suitable material, if it has been determined by testing to be satisfactory — steel cable, a pipe needle beam, oak needle beam, or a fir beam with a cable support. Upon cross-examination by claimant’s counsel, Kjelshus testified that he had the authority to stop work on a job, call the whole group off for grounds that he considered proper, and that he had the authority to tell Mr. Hosey what to do. He also stated that he had the authority to tell the Superintendent what to do, and when to do it, but did not give orders to the workmen.

Upon redirect by the Attorney General, Kjelshus was asked, “Did you have the authority to direct details of the operation on this project? In other words, could you tell Mr. Hosey whether to go upon a paint ladder or not?” The witness answered, “I believe I have the authority to tell a man what to do, I believe.” He further stated that he didn’t actually give orders to the workmen, but could tell the Superintendent to tell the men what to do, and when to do it.

Clifford Doremus was called as a witness by respondent, and testified that he was Superintendent for the Neumann Company, and in charge of the operations on the job at the Cedar Street Bridge in Peoria; that he instructed Burton Hosey, claimant, to go to the area from which he fell. He stated that he saw the needle beam, which broke, before it was put up, that he had ordered it, and was there when it was tested, although he did not test it personally. Doremus further stated that he knew fifteen or twenty contractors who use them all the time, and that he had used them for twenty to twenty-five years, and this was tihe first one that he had seen break in twenty-five years. Upon further questioning, it was developed that he was using supporting wires for his wood needle beams. Doremus admitted that Paul Kjelshus, the State Inspector, had mentioned to him that there was a knot in the end of the needle beam. The witness stated that guard rails would not have prevented the accident, but the pick was still hanging and the needle beam was still hanging immediately thereafter by the ropes, which had supported them originally. Upon cross-examination, Doremus admitted that after the accident he put cables around all of his wood needle beams because that made them stronger, and, although they might crack, they would not break off, and that, even if they cracked or broke, it would give you enough warning to grab hold of something. He stated that he did not see the accident occur, and that the State Inspector did not tell him not to use the beam that broke.

Walter Jacobs was called as a witness for respondent, and testified that he was a bridge painter foreman for the Neumann Company, and, as such, was so engaged on August 28, 1959 at the Cedar Street Bridge project. He said that he saw Hosey on the job that morning, and was with him when he went over to the scaffold from one pier to the other. He said the needle beam, which broke, had been used a week, and was tested at the lumber yard by jumping on it on all four sides. Upon cross-examination by claimant’s counsel, Jacobs admitted that the particular beam had a small knot in it, and that he did not know whether the particular beam was tested or not. He also stated that the State Inspector, Paul Kjelshus, was on the Cedar Street Bridge job every day, and inspected all of the scaffolding that was rigged up.

This Court is charged with the responsibility of determining whether claimant has sustained his burden of proving that respondent was in charge of, and was in control of the work being performed on the Cedar Street Bridge job, and whether or not respondent was guilty of a wilful violation of the Structural Work Act. Sec. 60 of Chap. 48, as set forth hereinabove, requires that all scafholds for use in painting a bridge shall be erected and constructed in a safe, suitable, and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon. It further states, "Scaffold, or staging, swung or suspended from an overhead support more than twenty (20) feet from the ground or floor, shall have, where practicable, a safety rail properly bolted, secured and braced, rising at least thirty-four inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding, or staging, shall be so fastened as to prevent the same from swaying from the building or structure.” Sec. 69 of the same act provides that any owner shall comply with all the terms thereof, for any injury to persons or property, occasioned by any wilful violation of the act, or wilful failure to comply with any of its provisions, a right of action shall accue to the party injured. From the evidence submitted, as contained in the transcript and the exhibits, there can be no doubt that the scaffold from which claimant fell was not in compliance with the provisions of the Structural Work Act. Testimony clearly develops that the scaffold was over twenty feet above the ground, had no guard rail, and that there was some question as to the safety of the structure (needle beam) used.

Ownership of the Cedar Street Bridge was established by the admission of respondent and the testimony of witnesses, and, as such an owner, respondent is bound by the provisions of the Structural Work Act. (Chap. 48, Ill. Rev. Stats. Sec. 69). See Kennerly vs. Shell Oil Co., 13 Ill. 2d 431. The testimony of witness Paul Kjelshus, State Inspector, and Clifford Doremus, Superintendent of the Neumann Company established that respondent was in charge of the project and the work being performed at the time of the accident, which is the basis for the cause of action. Respondent made no attempt to refute or even impeach the testimony of its own employee, and did not introduce into evidence its contract with the Neumann Company to establish its independence from supervision of the project. By the evidence contained in the transcript, it is clear that respondent had full and complete knowledge of the scaffold being used, its nature, and its potential for safety. This same evidence indicates that the State Inspector, Paul Kjelshus, had objected to the use of the needle beam, which broke, and further had the authority (from his own testimony) aiid control of the project to stop the use of the scaffold. This is enough knowledge to create “wilful” disregard of the provisions of the Structural Work Act. Kennedy vs. Shell Oil Co., 13 111. 2d 431. Schultz vs. Henry Ericsson Co., 264 111. 156. It was the duty of the State Inspector to see that proper safety measures were taken for the welfare of the men working on the job. He was responsible for the conduct of the work, including the method in which it was done, and he had the authority to stop the job by his own testimony. He had knowledge that the needle beam, which ultimately broke, was being used, and he even inquired of the contractor’s Superintendent to determine if the same was in satisfactory condition. He testified that he didn’t want the Superintendent to use the beam, but it was used anyway; and further testified that he had the authority to stop the use of the same.

The argument of respondent touches upon fire question of contributory negligence or assumption of the risk. These defenses are not available under the Structural Work Act. Thomas vs. Carroll, 14 Ill. App. 2d 205; Fetterman vs. Pro duction Steel Company of Illinois, 4 Ill. App. 2d 403, and Kennedy vs. Shell Oil Co., 13 Ill. 2d 431. The Fetterman case states that the Structural Work Act imposes a statutory liability in case of wilful failure to comply with the act upon the owner, contractor and sub-contractors. The object of the act is to prevent injuries to persons employed in dangerous and extra hazardous occupations, so that negligence on their part in the manner of doing their work might not prove fatal.

Respondent urges the Court to adopt a policy, which would allow the State of Illinois a credit or set-off of amounts received by claimant under the Workmens Compensation Act. In effect, respondent is asking this Court to grant to the State of Illinois special privileges under the law, which would not be available to the private owner who might be a defendant in a cause under the Structural Work Act in the Circuit Court of any County in this State. In nearly every instance where a cause of action is brought under the Structural Work Act against an owner, Plaintiff has also been entitled to and has probably obtained an award under the Workmen’s Compensation Act of the State of Illinois. This point was precisely settled in the case of Bryntesen vs. Carroll Construction Co., 36 Ill. App. 2d 167, decided on June 19, 1962. In the Bryntesen case, defendants asserted that the Workmen’s Compensation payments to the plaintiff should have been admitted into evidence. This was also a case that arose under the Structural Work Act. In its opinion at page 182, The Court stated: “We do not find any case in this State permitting the receipt of a Workmen’s Compensation award paid by the employer to dimmish the damages recoverable against a third party tort feasor for his wrong-doing.” The Appellate Court in the Bryntesen case cited with approval the case of O’Brien vs. Chicago City Railway Co., 305 Ill. 244, in which the Supreme Court said: “No injustice is done to a person negligently injuring another in requiring him to pay the full amount of damages for which he is legally liable without deduction for compensation which the injured person may receive from another source, which has no connection with the negligence, whether that source is a claim for compensation against his employer, a policy of insurance against accidents, a life insurance policy, a benefit from a fraternal organization or a gift from a friend.” Affirmed in 27 Ill. 2d 566 at 568.

The injuries to the Claimant were of such a serious nature that they can best be described by extracting from the record the language of Dr. James J. Flaherty, the orthopedic surgeon who treated claimant on August 28, 1959, and on many occasions thereafter until he left St. Francis Hospital in Peoria. Dr. Flaherty testified that the x-ray exhibits showed a fracture and dislocation of the left ankle with fusion of the joint at the ankle level, surgically done; that there was some distortion about the lower end of the tibia. He stated that claimant’s exhibit No. 19 shows the right ankle with distortion of the lower end of the tibia, and some backward displacement of the tibia with relation to the foot; that there may not be complete union at the side of the fusion, and that the x-ray also shows a healed fracture through the calcaneous. Claimant’s exhibit No. 20 shows the left wrist and a portion of the hand, with a healed fracture of the distal end of the radius with some shortening of the radius, some dorsal displacement of the wrist joint, and some irregularity of the joint fine. Dr. Flaherty stated that the fractures shown in exhibits Nos. 18 and 19 would interfere with the normal function of these members, and would also interfere with the normal function of the left wrist. He stated that claimant’s exhibit No. 21 is a side view of the claimant’s left femur, and that it shows a fracture of the upper middle third with three screws securing the fragments and the intramedullary pin in place. The doctor testified that this injury would interfere with the normal function of the leg. He stated that claimant’s exhibit No. 22 was a front to back view of claimant’s left femur showing the three screws, the intramedullary pin and the united fracture. He stated that exhibit No. 23 is an AP view of claimant’s pelvis and hip joints, and that it shows a healed fracture of the transverse process of the fifth lumbar vertebra, and a completely healed fracture of the pubis and pelvis with normal contour.

Dr. Flaherty testified as to the general treatment of all of claimant’s injuries on August 28, 1959, and thereafter until the said patient was transferred to another hospital. He stated that he examined the patient again on September 28, 1960, and examined him clinically and by x-ray, and at that time he had some shortening of the right radius with obvious deformity of the wrist; that he had 30° flexion of the wrist compared to a normal of 70° to 90°; that he had 10° extension of the wrist compared to a normal of 70° to 90°; and, that there was deformity of the contour of the wrist, and that the pathology he found would interfere with the normal function of the hand, wrist, and arm, including his ability to fife and do manual labor. The doctor stated that all of these conditions were permanent.

Dr. Flaherty further testified that an examination of the left leg showed a one and one-half inch shortening, and further, that, when the leg was held in external rotation, the foot could not be brought back past the neutral position. There was distortion of the left ankle, and there was distortion with healed scars, which were also over the buttocks and outer aspects of the left thigh. He stated that these findings would interfere with the normal use of the left leg and foot, and interfere with his ability to walk or climb, do manual labor, and were all permanent. He further testified that there was a healed scar over the anterior aspect of the right ankle, and there was perhaps some motion at the ankle, but no rotation of the right foot. He stated that claimant needed a cane to assist him in walking, and that this condition was also permanent. Stipulation by counsel indicates that the medical and hospital expenses of claimant amounted to $9,177.12.

Claimant testified that prior to the accident he was in good health, and had never sustained any fractures; that his job with Neumann Company paid him $3.50 per hour, and that he could work a 40 hour week. Claimant testified that he had an eighth grade education, and no trade except that of a common laborer; that he did not work from the date of the accident on August 28, 1959, until January 1, 1961, when he opened up a service station in Tullahoma, Tennessee. He further testified that he was not able to do much at the station, because he could not be on his feet, but was able to pump some gas and make change. He stated further that he earned about $40.00 per week, net, from the operation of the station, as compared with $140.00 per week, which he earned prior to the accident.

The Court finds that claimant has sustained the burden of proving that respondent was guilty of a wilful violation of the Structural Work Act, and grants him an award of $25,000.00.


text:
    (No. 4939
    Robert N. McCormick, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Melvin O. Moehle, Attorney for Claimant.
    William G. Clark, Attorney General; Lawrence W. Reisch, Jr., Assistant Attorney General, for Respondent.
   Pezman, J.

This is an action by claimant, Robert N. McCormick, against the State of Illinois, respondent, under the Structural Work Act for personal injuries sustained by claimant when he fell from a scaffold while working on a highway overpass in East Peoria, Illinois. On August 10, 1959, Robert N. McCormick, then approximately thirty-three years of age, was employed as a laborer by The McDougal Hartmann Co. of Peoria, Illinois. Claimant and another workman were working on a scaffold underneath a highway overpass, which was known as Industrial Spur No. 10 in East Peoria, Illinois. Both men were working on the scaffold some twenty-five to thirty feet above the ground. The scaffold was suspended from the overpass by means of dollies riding on steel rails, which were suspended by cables attached to the bannisters on the overpass. The dolly wheels rode on the small I-beams at each end of the scaffold, and the scaffold moved in two directions, both the width and the length of the bridge. The rails upon which the dolly wheels rode were twenty to thirty feet long and in sections, which were apparently moved as the work progressed. Claimant and his fellow workman had transferred one end of the scaffold to a new rail, and, as Mr. McCormick was walking across the scaffold to the opposite end to assist in moving it to the next rail, one end of the scaffold came off of the I-beam, and dropped down. This movement threw claimant off of the scaffold to the ground some twenty-five or thirty feet below, and he sustained serious and permanent injuries.

Claimant contends that the State of Illinois, as respondent, was the owner of the premises, and was guilty of a wilful violation of the Structural Work Act, and that, therefore, claimant is entitled to an award in the sum of $25,-000.00. Claimant seeks to establish such responsibility under the Structural Work Act. He alleges and seeks to prove that respondent had charge of the work at the time of the accident, and was guilty of a wilful violation of the act or wilful failure to comply with any of its provisions.

Respondent contends that the State must be found to have been “in charge of” the work at the time of the accident, and argues that evidence introduced by the State tends to show that the State was not in charge of or responsible for safety control, but admittedly had control of the quality of the work and the materials used. Respondent further contends that, although the contract for the construction gave the State specific control, such control is limited to quality and not safety. Respondent claims that, in the event an award is made to claimant, it should be allowed to off-set the amount of Workmens Compensation coverage from the award granted.

Claimant’s own testimony and exhibits Nos. 3 and 4 clearly indicate that the scaffold in use at the tune of the accident traveled on dolly wheels suspended from I-beams, and that it was necessary that these wheels be transferred to adjacent I-beams when they reached the end of a section of such beam. The accident in question occurred when claimant and the other man on the scaffold were moving the scaffold ahead at the end of such a section of I-beam. From such testimony it appears that the dolly wheels on one corner of the scaffold lost contact with the I-beam, which caused claimant to lose his balance and fall to the ground from a heighth of about twenty-five to thirty feet.

The evidence clearly establishes that the scaffold in question had a ten inch high piece of tubing or railing on each side to keep material from dropping off of the scaffold, with no protection on the ends. It further discloses that the scaffold had no safety hooks or safety cables attached to its structure, and that the scaffolding was about 8 feet wide and about 20 feet long and made of steel tubing. The scaffolding did not fall, but was hanging with one corner down immediately after the accident. The testimony establishes that the scaffold in use from which claimant fell was hung in a different manner than were othere scaffolds used on the same job. The I-beam to which the scaffold was attached by dolly rails was hung from the top rail of the bridge structure by steel cables, which swayed with the wind or upon movement by the parties using the scaffold.

Claimant called, as an adverse witness under Section 60 of the Civil Practice Act, A. F. Burnham, District Construction Engineer for District 4 of the Division of Highways at Peoria. Mr. Burnham testified that all plans and specifications of the structure were prepared by the Division of Highways; that engineers and technicians under his supervision did the staking work for the bridge, and that the contract was let on March 25, 1958, and awarded on April 3, 1958 to the McDougal Hartmann Company of Peoria. Burn-ham stated that he was on the job weekly throughout the entire construction period, and that he had representatives or employees under his jurisdiction on the job at the same time. He testified that Henry C. Bankie, Jr. was under his supervision on this particular job, and was the Project Engineer, and had a number of men working under him.' He stated that his job was to inspect the work of the engineers under him, and that Bankie was required to report the progress to him weekly, and had an office approximately 1% miles from the construction site.

Burnham stated that the word “engineer,” as used in the specifications for road and bridge construction of the State of Illinois, refers to the Chief Highway Engineer and his delegated authority. He stated that he was a part of the delegated authority of said Chief Highway Engineer, as was Mr. Bankie on the date of August 10, 1959. He also testified that Article 5.1, of the Standard Specifications For Road And Bridge Construction, entitled “Authority of Engineer,” adopted January 2, 1952, applied to the contract for construction of the overpass on which the accident happened. Burnham further testified that Article 5.11 entitled “Inspection” applied to the contract in question in this cause, as well as Article 8.8, entitled “Suspension of Work,” and Article 8.7, entitled “Character of Workmen and Equipment.” Burnham stated that he had noticed the scaffolding on the bridge construction in question some weeks after they had finished the pouring of the deck. He said he saw the men working on the scaffolding and that the appearance of the scaffolding was the same as that shown in claimant’s exhibits Nos. 1, 2, and 3 with the exception that the scaffolding in use at the time of the accident was not secured by the hook fastened to the lower plank of the I-beam on each end, as is shown in the exhibits. Burnham stated that he did not observe any handrails on the scaffolding itself, and further testified that the suspension of the railing on which the scaffolding ran was suspended to a cable attached to the handrail attached to the structure above, which would allow the scaffold to sway.

Henry C. Bankie, Jr. was called as an adverse witness under Section 60 of the Civil Practice Act, and testified that he was an engineer with the Division of Highways, State of Illinois; that on August 10, 1959, he was Project Engineer under the immediate supervision of A. F. Burnham, Construction Engineer, on Contract No. 13529 for the building of an overpass on Route No. 10 Spur at East Peoria, Illinois. He testified that he was the Project Engineer on the overpass bridge in question during its entire period of cons traction, and visited the construction site approximately daily. He stated that he had free access to see and inspect any part of the premises, and frequently spent from fifteen minutes up to two hours each day at the site of the overpass bridge upon which the accident occurred. He testified that he was not at the site on August 10, 1959, but did know that an accident occurred on that date. His testimony included statements verifying claimant’s exhibits as to the type of scaffolding that was being used on August 10, 1959 when the accident occurred. He stated that the scaffolding did not have any side or end rails, and was suspended from the structure above it in such a manner that it would sway. He testified that the scaffolding was supported by dollies, which ran on I-beams attached to the cables hung from the top side of the bridge, and that there was nothing to prevent the scaffold from falling if the dollies came off of the rails.

Respondent called as a witness, Jack C. Tomlinson, Superintendent for McDougal Hartmann Company on the project in question in this cause of action. He testified that he was a graduate engineer, had been in the construction business for ten years, and had never seen safety nets used under the type of scaffold in use when the accident occurred. He stated that he was not on the job at the time of the accident, but arrived at the scene afterwards, and saw the scaffolding from which claimant fell. He testified that one comer of the scaffold was down about six feet from the rail, but the other three comers were connected to the rails from which the scaffolding was suspended. He stated that apparently the trolley came through the joints, between the two rails. He also indicated that there were no handrails on the scaffold. Tomlinson admitted upon cross-examination that the scaffolding did not have safety rails properly bolted, secured, and braced rising at least thirty-four inches above the floor, extending along the entire length of the outside of the ends of the scaffolding. He stated that, in fact, the scaffolding did not have any safety rails at all, and was not fastened to the structure, so as to prevent it from swaying. Mr. Tomlinson testified that he saw Mr. Bankie and Mr. Burnham at the project site, prior to August 10, 1959, and that he conferred with both of them regarding the construction of the highway overpass bridge, and that they both gave him instructions as to the nature of the project, and particularly as to quality control. He stated that in his supervisory position he followed the instructions given by Mr. Burnham and Mr. Bankie.

Respondent called as a witness, Robert A. Duncanson, a graduate civil engineer, who had been in the construction business for fifteen years, and who testified that he had worked on sixty bridges during the past five years, and was very familiar with scaffolding being used in the business. He stated that from hearing the testimony in the case, observing the exhibits and that the scaffolding, as shown in the exhibits, was the usual and customary type of scaffolding used in this type of work. He also stated that it was not the custom and usage generally to use safety belts or safety hooks on this type of scaffolding.

Respondent called for direct testimony, A. F. Burnham, and among other things Mr. Burnham stated that his Project Engineer, Mr. Bankie, had no responsibilities regarding safety for the type of work being done. He also testified that it was not customary to use handrails upon scaffolds in this type of operation. Upon cross-examination by claimant’s. counsel, Mr. Burnham testified as follows: “There is no — according to my interpretation of the Standard Specifications, there are no provisions for the engineer to instruct the safety of the work.” Upon further questioning, he indicated that it was his interpretation of the Standard Specifications that there was no responsibility on the part of his men or himself to make safety inspections.

Counsel for parties hereto stipulated and agreed as to the following facts:

1. That at the time of the occurrence herein, on August 10, 1959, the State of Illinois was the owner of a certain structure, known as a highway bridge, located over Route U.S. No. 150, Toledo, Peoria and Western Railroad tracks, and had an easement over the railroad tracks and Farm Creek.

2. That, on August 10, 1959, respondent, State of Illinois, was constructing a new highway bridge on the said premises, and had as one of its contractors on said job The McDougal Hartmann Co.

3. That at said time and place the scaffold on which claimant was working had been constructed by employees of the McDougal Hartmann Company other than himself.

4. That notice of intention to commence suit in the Court of Claims was given to Grenville Beardsley, Attorney General of the State of Illinois, on or about February 1, 1960, and, further, that notice of intention to commence suit in the Court of Claims was given to Charles F. Carpentier, Secretary of State and Ex Officio Clerk of the Court of Claims, on or about February 1, 1960.

5. That no assignment or transfer of the claim, or any part thereof, or interest therein, has been made to any person or persons.

In the case at hand, respondent is charged with wilful violation of Section 60, Chap. 46, Ill. Rev. Stats., which provides as follows:

“Scaffolds, cranes, ladders, etc. — Erection and construction.
“. . . That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for use in the erection, repairing, alteration, removal, or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.
“Scaffold, or staging, swung or suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising a (at) least thirty-four (34) inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.”

Claimant seeks to recover under Section 69 of the same Act, and is attempting to prove that respondent was guilty of wilful violation of the Act, or wilful failure to comply with any of its provisions. Ownership of the premises has been established by the stipulation entered into between claimant and respondent. In order to make an award, this Court must find that respondent not only wilfully violated or wilfully failed to comply with the provisions of the Act, but also was in control or had charge of the work being performed. Gannon vs. Chicago, Milwaukee, St. Paul and Pacific Railway Co., 22 Ill. (2d) 305. Prior to the language of the Supreme Court in the Gannon case, the words “having charge of” were of no legal consequence in determining the liability of the owner of any building or other structure under the Act. In the Gannon case, the Court held that the statute did not intend liability where there was no control, stating:

“The Act specifies, ‘Any owner, contractor, subcontractor, foreman, or other person having charge of (emphasis supplied) the erection, construction, repairing, alteration, removal, or painting of any building, bridge, viaduct or other structure within the provisions of the Act, shall comply with all the.terms thereof. . . .’. It is inescapable from these words that the Legislature intended to hold liable those named persons who are in charge of the work, and the words ‘or other person’ were included to cover the situation where someone other than the named persons was in charge of the work, in order to prevent such person from escaping liability.”

The Supreme Court also noted that Section 9 of the Act imposes civil liability only for “willful violations,” which means knowing violations, and that tírese can only be perpetrated by persons directly connected with the operations, and not by virtue of mere ownership of the premises.

Respondent’s exhibits Nos. 5, 6, and 6a were admitted in evidence. Exhibit No. 5 is identified as contract No. 13529. It contains The Notice to Bidders, Specifications, Proposal, Contract, and Contract Bond. Exhibits Nos. 6 and 6a are identified as being The Standard Specifications For Road And Bridge Construction and Supplemental Specifications. The State of Illinois awarded contract No. 13529 for the construction of the highway overpass in question to McDougal Hartmann Company of Peoria, Illinois on April 3, 1958. Article 5.1 of the Standard Specifications For Road And Bridge Construction, which is entitled “Authority of Engineer,” reads as follows:

“All work shall be done under the supervision of the Engineer, and to his satisfaction. He shall decide all questions which arise as to the quality and acceptability of material furnished, work performed, manner of performance, rate of progress of the work, interpretation of the plans and specifications, acceptable fulfillment of the contract, compensation and disputes, and mutual rights between contractors under the specifications. He shall determine the amount and quality of work performed and materials furnished, and his decision and estimate shall be final. His estimate shall be a condition precedent to the right of the contractor to receive money due him under the contract. In case of failure on the part of the contractor to execute work ordered by the Engineer, the Engineer may, at the expiration of a period of forty-eight (48) hours after giving notice in writing to the contractor, proceed to execute such work as may be deemed necessary, and the cost thereof shall be deducted from compensation due or which may become due the contractor under the contract."

Article 5.11, entitled, “Inspection,” reads as follows:

“All materials and each part of detail of the work shall be subject at all times to inspection by the Engineer or his authorized representatives, and the contractor will be held strictly to the true intent of the specifications in regard to quality of materials, workmanship, and the diligent execution of the contract. Such inspection may include mill, plant, or shop inspection, and any material furnished under the specifications is subject to such inspection. The engineer or his representatives shall be allowed access to all parts of the work, and shall be furnished with such information and assistance by the contractor as is required to make a complete and detailed inspection.”

Article 8.7, entitled, “Character of Workmen and Equipment,” reads as follows:

“The contractor shall employ only competent and efficient laborers, mechanics, or artisans, and whenever, in the opinion of the engineers, any employee is careless, incompetent, obstructs the progress of the work, acts contrary to instructions or conducts himself improperly, the contractor shall, upon request of the engineer, discharge or otherwise remove him from the work and shall not employ him again, except with the written consent of the engineer.”

Article 8.8, entitled, “Suspension of Work” reads as follows:

“The engineer shall have authority to suspend the work wholly or in part, for such period of time as he may deem necessary, due to conditions unfavorable for the satisfactory prosecution of the work, or to conditions which in his opinion warrant such action; or for such time as is necessary by reason of failure on the part of the contractor to carry out orders given; or to perform any or all provisions of the contract. No additional compensation will be paid the contractor because of any costs caused by such suspension, except when the suspension is ordered for reasons not resulting from any act- or omission on the part of the contractor, and not related to weather conditions. If it becomes necessary to stop work for an indefinite period of time, the contractor shall store all materials in such manner that they will not obstruct or impede the traveling public unnecessarily or become damaged in any way, take every precaution to prevent damage or deterioration of the work performed, provide suitable drainage of the roadway, and erect temporary structures where necessary. The contractor shall not suspend work without written auhority from the Engineer.”

These Articles from the Standard Specifications are incorporated in the contract by reference, and are an essential part thereof. They indicate without doubt the imposition of authority upon the Engineer (Chief Highway Engineer and those Engineers delegated thereunder) to control and take charge of the project on behalf of respondent. The Construction Engineer, Mr. Burnham, and the Project Engineer, Mr. Bankie, were admittedly in charge of the project involved herein, discussed the same with the Superintendent on behalf of the contractor, and gave orders to the Superintendent, which he followed. The testimony of Messrs. Burnham and Banlde that they were not responsible for the safety of the workmen and were only concerned with quality control is overtly contrary to the language of the contract and the Standard Specifications, and against the best interest of the public and the State of Illinois. Absence of proper safety precaution and inspection would add to the cost of the project, as well as obstruct the progress of the same. This Court does not deny that the major interest of the Department of Public Works and Buildings in supervising construction is to control the quality under the contract, but it will not accept the premise that the Department assumes no responsibility for safety in its supervision of the same projects. It is the opinion of this Court that the State of Illinois, through its Division of Highways and Chief Highway Engineer, and any delegated authority thereunder, did assume control of and take charge of the particular project involved in this case. Both the Construction Engineer, A. F. Burnham, and the Project Engineer, Henry C. Banlde, Jr., testified to knowing in advance of August 10, 1959, when the accident happened, that the scaffold in question had neither safety rails, nor was so attached that it would not sway, as provided for in Section 60 of Chap. 48, Ill. Rev. Stats.

Irregardless of the customary usage in the construction trade in the Peoria area, the Structural Work Act proposed a duty that such scaffold “suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising at least thirty-four (34) inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.” We find that respondent was not only guilty of a “knowing violation” of the Structural Work Act, but also had charge of the structural activities in and about the project.

Respondent seeks to set off any Workmens Compensation award against any award made herein to claimant, and argues that the Court of Claims has heretofore taken into consideration amounts, which have been paid to a claimant under a covenant not to sue, and has also allowed a set-off of amounts paid by a joint wrongdoer as against an award made to claimant. The case at hand does not involve joint tort feasors.

In the Workmens Compensation claim, claimant, Robert N. McCormick, was the petitioner, and McDougal Hartmann Co. was the respondent. The relief afforded was statutory, and did not arise as a right out of the commission of a tort. In the case at hand, claimant seeks to recover from respondent, the State of Illinois, in the Court of Claims under another statute, the Structural Work Act. We find no analogy in these two situations. The Appellate Court in the case of Anna L. Bryntensen vs. Carroll Construction Company, 36 Ill. App. 2d 167, and affirmed in 27 Ill. 2d 566 at 568, held that evidence of the receipt of Workmen’s Compensation payments was properly excluded from the jury. In the Bryntensen case, a widow who had received Workmen’s Compensation payments from her deceased husband’s employer, a subcontractor, for loss of support, sued the general contractor also for loss of support, alleging wilful violation of the Structural Work Act. The Court cited the O’Brien case (O’Brien vs. Chicago City Railway Co., 305 Ill. 244), where the Supreme Court said: “No injustice is done to a person negligently injuring another in requiring him to pay the full amount of damages for which he is legally liable without deduction for compensation which the injured person may receive from another source, which has no connection with the negligence, whether that source is a claim for compensation against his employer, a policy of insurance against accidents, a life insurance policy, a benefit from a fraternal organization, or a gift from a friend.”

From the testimony of claimant and medical witnesses, it is apparent that the injuries to claimant were extensive. The accident occurred on August 10, 1959, and he was hospitalized from that date until September 14, 1959 at St. Francis Hospital, Peoria, Illinois, from whence he was transferred successively to the Forest Park Rehabilitation Center and Massachusetts Memorial Hospital in Boston, Massachusetts. On October 11, 1960, he was discharged from the Massachusetts Memorial Hospital and took up residence at 617 East Virginia Avenue in Peoria, Illinois. Claimant was again hospitalized on December 4, 1960 for a bladder operation, and again on June 7, 1961. He was subsequently discharged on December 13, 1961. From the evidence, it is apparent that, as a result of the accident on August 10, 1959, claimant was paralyzed from the chest down. His right elbow and wrist were shattered, and he lost the rotation in the right wrist. There are a few degrees of movement in the elbow. He has no movement in his legs, and cannot stand or walk. He uses crutches or a wheelchair. He does not have any bladder control, and urine elimination is by permanent catheter. Claimant also has no control of his bowel movements. At the time of the hearing he was not employed, and had not been employed since the date of the accident. He requires daily assistance, which his mother was performing, although he had had a male attendant in the past. Through the use of hand controls, claimant is able to get in and out of his car. It is apparent that he has lost his ability to work and care for himself or his family.

Claimant is awarded the sum of $25,000.00.


text:
    (No. 4996
    Parkhill Truck Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Wham and Wham and Caruthers and Montrey, Attorneys for Claimant.
    William G. Clark, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Pezman, J.

On January 10, 1961, claimant, Parkhill Truck Company, filed a written application with the Illinois Division of Highways, Bureau of Traffic, for permission to transport a load (vessel) weighing 22,000 pounds with an overall width of 11 feet and a height of 14 feet, 6 inches on a 5-axle tractor semi-trailer from the Missouri-Illinois line south of St. Louis to Champaign, Illinois over the following highways: By-Pass U.S. 50, Illinois 157, U.S. 66, 16, 127, 48, 47, and 10. On the same day the Division of Highways sent the following telegram to Union, Missouri:

“Parkhill Truck Co.
Will Call Union, Missouri
Permit 710 authorizes movement vehicle weighing 22,000 pounds, mounted on 5-axle tractor semi-trailer, overall width 11 feet, overall height 14 feet 6 inches, from Missouri line U.S. Bypass 50, 157, U.S. 66, 16, 127, 48, 47, 10 to Champaign. Expires sunset January 25. Flagman shall be furnished by grantee to insure safety to all other traffic and any projecting loads shall be clearly marked with flags. Movement shall be made during daytime any day except Saturday, Sunday or holiday. Grantee is responsible for any accident or damages resulting from this movement. Permit granted insofar as Department has authority. In accepting permit, grantee certifies that movement will be made in accordance with limitations stated herein. Speed limit 30 miles per hour. Movement shall be made only when pavements are free from ice and snow.”

The permit was granted pursuant to the pertinent portions of Pars. 222a and 230, Chap. 95%, Ill. Rev. Stats. (1959):

Par. 222a: “The height of a vehicle from the underside of the tire to the top of the vehicle, inclusive of load, shall not exceed thirteen feet, six inches . . .”
Par 280: “(a) The Department with respect to highways under its jurisdiction and local authorities with respect to highways under their jurisdiction may, in their discretion, upon application in writing or by telegram and good cause being shown therefor, issue a special permit in writing or by telegram authorizing the applicant to operate or move a vehicle or combination of vehicles of a size and weight of vehicle or load exceeding the maximum specified in this Act or otherwise not in conformity with the provisions of this Act upon any highway under the jurisdiction of the party granting such permit and for the maintenance of which said party is responsible. Where a permit is sought for overweight the application shall show that the load to be moved by such vehicle or combination of vehicles cannot reasonably be dismantled or disassembled.
(b) The application for any such permit shall specifically describe the vehicle or vehicles and load to be operated or moved and whether such permit is requested for a single trip or for limited continuous operation. The application shall state, also, the points of origin and destination of overweight vehicles or loads and of oversize vehicles or loads when specifically requested by the Department or local authority.
(c) The Department or local authority is authorized to issue or withhold such permit at its discretion; or, if such permit is issued at its discretion to prescribe the route or routes to be traveled, to limit the number of trips, to establish seasonal or other time limitations within which the vehicles described may be operated on the highways indicated, or otherwise to limit or prescribe conditions of operation of such vehicle or vehicles, when necessary to assure against undue damages to the road foundations, surfaces or structures, and may require such undertaking or other security as may be deemed necessary to compensate for any injury to any roadway or road structure.
(d) Every such permit shall be carried in the vehicle or combination of vehicles to which it refers and shall be open to inspection by any police officer or authorized agent of any authority granting such permit, and no person shall violate any of the terms or conditions of such special permit.”

ParkhiU’s driver, William Beggs, picked up his load, which consisted of a prefabricated sewage pumping station, at Leavenworth, Kansas at about 7:30 on the morning of January 10, 1961, and, preceded by his wife, Elaine, who was driving a 1961 Ford Fairlane displaying a warning flag, drove to Washington, Missouri where he spent the night. He picked up the telegram at Union, Missouri on the way.

The load, which was owned by the firm of Zimmer & Francescon of Moline, Illinois, was 14 feet, 4 inches above the ground at its highest point at the time Beggs started his trip, and was being carried by Parkhill as bailee of Zimmer and Francescon, and as lessee of Beggs, the owner of the tractor, and one Robert Nesmith who owned the trailer.

Early the next morning Beggs, again preceded by his wife in the Ford, resumed his trip and at about 11:40 A.M., while traveling north on U.S. 66 about 3 miles east of Edwardsville, Illinois, came to the intersection of U.S. 66 and Illinois 143. Route 143, running east and west, passes over U.S. 66 with a clearance of 14 feet, 2Vi inches. There were no clearance signs (because of the Highway Division’s policy of not marking bridge clearances that are more than 14 feet), and Beggs, maintaining his speed of about 30 miles an hour, headed under the overpass. The top of the pumping station struck the I-beam on the underside of the overpass, slid off the back of the trailer on to the road beneath the bridge, and was irreparably damaged. According to the testimony there had been no change in tire pressure, nor had anything else been done, which would have caused a change in the height of the load between the starting point of the trip and the point of impact with the bridge, so we can assume that at the time of impact the highest point of the load was still 14 feet, 4 inches above the ground.

Respondent does not dispute Parkhill’s claim that the cargo was damaged in the amount of $12,059.26, and that its remaining salvage value was $300.00. Thus Parkhill, which brings this action under a subrogation agreement with Carriers Insurance Exchange, the insurance carrier for Zimmer and Francescon, is entitled to an award of either $11,759.26 or nothing.

Claimant contends, in essence, that (a) Respondent breached its duty to claimant in allowing claimant, without warning, to proceed over a route, which respondent knew, or, in the exercise of ordinary care, should have known, was unsafe under the circumstances; (b) that claimant was in the exercise of ordinary care for the safety of its vehicle and the load; and, (c) that respondent’s negligence proximately caused the collision and resultant damage.

Respondent, on the other hand, contends (a) that the accident was proximately caused by the driver’s negligent failure to advise himself that the clearance of the overpass at 66-143 was insufficient for his load; and, (b) that by accepting the permit Parkhill accepted responsibility for damages incurred in moving the overheight vehicle.

The issue then is whether the duty to be certain that the load would clear the overpass was on claimant or respondent.

It is true, as contended by respondent, that the bridge merely created a condition, and was not the proximate cause of the collision, and that the State is not an insurer against accidents on its highways. We believe, however, that claimant has proven by a preponderance of the evidence that respondent could have, and should have taken steps to prevent this accident. It either knew, or, in the exercise of ordinary care, should have known that by traveling the prescribed route with the load, which he had on, Beggs would have trouble at the intersection in question. Respondent’s failure to either re-route Beggs, or refuse the permit was, in our opinion, the proximate cause of the accident.

We are aware of the fact that Parkhill asked for this particular route, and that, as shown by the evidence, a booklet was available showing the insufficient clearance at this intersection. It is clear from the evidence, however, that the booklet contained certain errors, and was not very reliable, and that Beggs had never seen the booklet, and never had any reason to know of its existence. Moreover, Parkhill had in the past received 30 overheight permits under which its drivers had traversed Illinois highways without mishap. Under these circumstances, it is our opinion that Beggs and his superiors in the Parkhill Company had a right to expect that respondent would not allow this load to be carried over a clearly dangerous route. We do not believe that Beggs could reasonably be expected to stop and examine each overpass as he came to it. Nor was he under any duty, as suggested by respondent, to take the ramp up over 143 instead of trying to go underneath the overpass, as he did. To do so would have been a departure, however slight, from the prescribed route.

The clear mandate of the statute is that the Department shall examine each application as it comes in, and use its discretion as to whether to issue the permit as requested, issue a different one, or refuse altogether. This may create practical difficulties in view of the large number of applications received daily by the Department, but the automatic issuance of permits would render the statute wholly meaningless.

Without attempting a precise definition of the provision in the pérmit, which states that the grantee assumes all responsibility for any accidents or damages resulting from the movement, it is our conclusion that such a provision cannot be used by the State, as counsel for respondent contends, to relieve itself of liability for negligence. We do not believe that an exculpatory clause is enforceable where, as here, the matter is one of public concern, and the party seeking exculpation is in a dominant position. Willis Jackson vs. First National Bank of Lake Forest, 415 Ill. 453; Cerny-Pickas and Co. vs. C. R. Jahn Co., 7 Ill. 2d 393; O’Callaghan vs. Waller and Beckwith, 15 Ill. 2d 436; Gulf Transit Co. vs. United States, 43 Ct. Cl. (F) 83; Kenna vs. Calumet, Ham- and Southeastern R. Co., 206 Ill. App. 17; Campbell vs. Chicago, R. I. and P. Ry Co., 243 Ill. 620.

It is our judgment that an award be made to claimant in the amount of $11,759.26.


author: Dove, J.

text:
    (No. 5018
    Alvin McGee, A Minor, By Minnie McGee, his next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    McCoy and Ming, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Dove, J.

Claimant, Alvin McGee, A Minor, by Minnie McGee, his mother and next of kin, filed his complaint in this Court on January 3, 1962. Claimant seeks financial help or assistance, as provided by the Military and Naval Code of Illinois, Chap. 129, Sec. 202.53, 1961 Ill. Rev. Stats., for personal injuries, which he suffered while a member of the Illinois National Guard, and in performance of duty pursuant to competent orders.

From the record it would appear that Alvin McGee, now an adult, at the age of 18 enlisted in the Illinois National Guard, and was assigned to Battery A, 1st Automatic Weapons Battalion, 184th Artillery, at Chicago, Illinois. At the time he executed his enlistment documents on March 27, 1960, he signed an “Enlistment Agreement,” which required that he enter upon “six months of active duty for training.” On May 14, 1960, and pursuant to written orders, he entered into such training duty at Fort Leonard Wood, Missouri. While at Camp Leonard Wood, all of his superior officers were U.S. Army personnel on full time active duty. Claimant would have been released from such training duty on November 13, 1960 but for an accidental injury, which occurred on October 29, 1960, while on the post at Fort Leonard Wood, Missouri.

He was hospitalized for said injury, a fractured leg, at the Fort Leonard Wood Army Hospital, and there he remained until on or about May 1, 1961. His accident and injury were stipulated to have been “in line of duty.”

Upon his release from the hospital on May 1, 1961, claimant was wearing an ischial weight-bearing brace on the leg, which had been fractured in the accident. Following his return to Chicago, he reported to his Illinois National Guard unit, and attended all armory drill assemblies and the annual field training at Camp Perry, Ohio. While at Camp Perry, Ohio, his Illinois National Guard Battalion Commander noticed the leg brace, while claimant was standing in ranks on July 7, 1961. Immediately he ordered that claimant be given a medical examination and care while at field training. X-rays showed a complete fracture of the tibia and fibula in the middle third of the lower left leg; the segments of the fibula were completely separated; and, the segments of the tibia were in poor alignment with soft tissues interposed.

From Camp Perry, Ohio, claimant was transferred to the U.S. Naval Hospital at Great Lakes, Illinois, for further hospitalization, treatment and disposition. He was returned to “full duty” on January 10, 1962 after a medical board proceeding, which was held at the said hospital.

From the time claimant went on active duty on May 14, 1960, and until he was discharged from the hospital at Fort Leonard Wood, he received military pay as a private first class, or $83.00 per month. After his discharge from the hospital, and until he was returned to “full duty” on January 10, 1962, the Departmental Report shows that he received but $392.14 as military pay. Claimant still has a non-union of the fibula, and still suffers swelling of the leg, associated with pain and discomfort, which is caused by the gravitational flow of cellular fluid from the soft tissue over the tibia surface. Dr. Allen Wright, a Major in the U.S. Medical Corps, and an orthopedic surgeon, estimated that claimant had sustained a 20 per cent permanent loss of the use of his leg.

There appears to be no dispute as to the facts; nor is there any dispute that claimant might recover under the said statute, if the written authority, or written orders, under which claimant entered upon such training duty had issued from the office of Leo M. Boyle as Adjutant General of the State of Illinois, by order of the Governor of the State of Illinois; or that if all of claimant’s superior officers had been Illinois National Guardsmen at the time of the injury.

The State of Illinois has, since 1909, provided, through awards of this Court, financial help or assistance to guardsmen, who have been injured while performing their duties in the Illinois National Guard under competent orders. Dudley vs. State of Illinois, 21 C.C.R. 255; Dunham vs. State of Illinois, 23 C.C.R. 28; and, Sypniewski vs. State of Illinois, 21 C.C.R. 586. In the latter case, claimant was allowed an award, even though respondent argued that claimant was “on a frolic of his own” where the facts showed that claimant left his kitchen police duties between meals, went for a hike in the woods, and touched a grenade, which he saw partly imbedded in the dirt, and which exploded and caused him serious injuries.

Respondent in this case argues that, because claimant’s orders, which directed him to report for training duty at Fort Leonard Wood, were signed by Leo M. Boyle as Major General of the United States Army rather than as Adjutant General of the State of Illinois, claimant was not performing his duties at the time of his injuries in pursuance of orders issued by the Commander-in-Chief, the Governor of the State of Illinois.

There was admitted into evidence in this case, by agreement, a true copy of the written order placing claimant on active duty for a six months training period at Fort Leonard Wood. Said exhibit is upon the letterhead of the Department of the Army, National Guard Bureau, Washington, D.C., and reads in part as follows:

“. . . Each of the following enlisted with . . . the consent of the governor (emphasis supplied) of the State of Illinois is ordered to (active duty for training) for a period of six months.”
Said order ends as follows:
“. . . By order of Wilbur N. Brucker, Secretary of the Army: /s/ Leo M. Boyle, Major General, U.S.A. (Adjutant General of Illinois)."

Respondent argues further that, because claimant’s activities were supervised by military personnel other than officers of the Illinois National Guard, claimant was not performing duties under orders from the Commander-in-Chief, the Governor of the State of Illinois, but was performing duties pursuant to orders from the U.S. Department of the Army.

In Dudley vs. State of Illinois, 21 C.C.R. 255 at 256, we said: “officers and enlisted men of the Illinois National Guard are members of both the National Guard of the United States and the federally recognized National Guard of the several states.” We hold that, when an Illinois National Guardsman is injured while in the performance of duties pursuant to orders of the Governor, or of the U.S. Department of Defense with the consent of the Governor, such are competent orders, which allow an injured National Guardsman to make claim for financial aid and assistance.

In considering the amount of financial help and assistance claimant is entitled to under the statute, we have held that awards are made as the merits of each case may demand. This Court has often used the Workmens Compensation Act as a guide. In doing so, however, it has not considered the Workmens Compensation Act to be either a ceiling over or a floor under the awards. Dunham vs. State of Illinois, 23 C.C.R. 32.

In the instant case, claimant’s earning capacity was, and is, unquestionably affected. For the 20 per cent permanent loss of the use of his leg, we are of the opinion that an award of $2,040.00 would be proper.

An award is hereby made to claimant, Alvin McGee, A Minor, by Minnie McGee, his next friend, in the sum of $2,040.00.


text:
    (No. 5054
    Pearl L. Ware, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1965.

    Gunn, Davidson and Brantman, Attorneys for Claimant.
    William G. Clark, Attorney General; Edward A. Warman and Samuel I. Neiberg, Assistant Attorneys General, for Respondent.
   Pezman, J.

Claimant seeks to recover the sum of $25,000.00 from the State of Illinois for injuries received while visiting the office of the Department of Labor, Division of Unemployment Compensation, at 106 South Ashland Avenue, Chicago, Illinois. Pearl Ware seeks to recover such damages from respondent under the doctrine of Res Ipsa Loquitur.

Respondent alleges that claimant waited approximately one month before seeking medical attention at Cook County Hospital, and further contends that the injuries were not of the nature alleged by claimant in her cause.

On December 21, 1961, claimant, Pearl Ware, visited the office of the Division of Unemployment Compensation of the Department of Labor of the State of Illinois at 106 South Ashland Avenue, Chicago, Illinois, for the purpose of applying for unemployment compensation. Claimant was directed to sit down and wait her turn, and upon being so directed she went to the east side of the building, sat down on a wooden folding chair there provided, and, after sitting on it for a minute, the chair collapsed under her. Claimant was thrown to the floor with her left arm under her to catch her fall, and, in so doing, she jammed her left elbow and shoulder. Pearl Ware reported the injury to the personnel at the Division office, who told her to go home, and wait until someone came to see her.

Claimant testified that she began feeling severe pain in her left arm and shoulder immediately after the fall, and even stated at the hearing in October of 1963 that she still suffered some pain. Claimant’s testimony indicates that she waited for a visit or a call from the Division of Unemployment Compensation of the Department of Labor, and upon receiving none finally went to the Cook County Hospital on January 22, 1962, where she was x-rayed. Her arm was placed in a sling, and she was instructed to return in about a month. The x-ray, which was taken at the Cook County Hospital within approximately one month after the accident, was admitted into evidence. It was examined by Dr. Leonard Smith who stated that the x-ray showed a comminuted fracture of the acromion with a slight displacement of the fragments. Claimant returned to Cook County Hospital for treatment in February and March of 1962, and on March 8, 1962 was discharged. On April 30, 1962, Pearl Ware went to see Dr. Leonard Smith, an orthopedic surgeon, who x-rayed her, and told her that she would need another treatment. For this treatment he sent her to the Chicago Physical Therapy Center. Claimant was given forty-one separate treatments under the direction and supervision of Dr. Virginia L. Winkler, a licensed physician and therapist, during the period from May 11, 1962 to and including October 18, 1962. Dr. Leonard Smith saw and treated claimant on numerous occasions between April 30, 1962 and August 19, 1963.

Dr. Smith testified at the hearing that “there appeared to be a separation of the acromioclavicular joint on claimant’s left side with a considerable degree of proliferic changes, which may have been a fracture of the acromion process.” He also testified that in his opinion surgery would be necessary to reheve the pain, that as a result claimant would be further disabled for a period of four to six weeks, and that the total charges in connection with such surgery would be approximately $750.00.

From the transcript it appears that claimant was not gainfully employed after her injury for approximately six months. Prior to that time she had been doing domestic work in and around Chicago, for which she was paid $20.00 a week, plus her meals and carfare.

Pearl Ware never received a bill from the Cook County Hospital. Her bill with Dr. Leonard Smith is $390.00, and remains unpaid. Also unpaid is a statement from Dr. Virginia Winkler for $624.00. From claimant’s own testimony, unrefuted, she has had a loss of wages amounting to $480.00.

Respondent made no allegation of contributory negligence on the part of claimant, and the issue was not presented. Respondent merely contends that the doctrine of Res Ipsa Loquitur is not applicable to a public authority. No witnesses were presented, but respondent did introduce into evidence photostatic copies of certain departmental records having to do with claimant’s visits to the office, both before and after her accident. Respondent states in its brief that by stipulation of the parties claimant was examined by one Dr. John F. Gleason in 1963. There is no evidence of any such stipulation in the record by testimony or agreement, and respondent’s exhibit No. 2 does not show on the record as having been admitted or agreed to, nor is there any record of the same having been requested by the Court or on motion of either party. A letter constituting a medical report of the said Dr. John F. Gleason is included in the transcript as respondent’s exhibit No. 2 without any further comment. Rule 16A of the Court of Claims Rules provides,

“In any case in which the physical condition of a claimant or claimants is in controversy, the Court may order him, or them, to submit to a physical examination by a physician. The order may be made by the Court on its own motion or on motion for good cause shown, and upon notice to the claimant to be examined, or his attorney, and to all other claimants, or their attorneys, if any, and shall specify the time, place, manner, conditions and scope of the examination, and the person or persons by whom it is to be made.”

There is nothing in the Court file or the transcript of testimony to indicate that this rule was relied upon or used. Regardless, the examination by Dr. John F. Gleason, made on December 23, 1963, could not be given the same weight, as that made by an attending physician within thirty days after the injury.

This Court is of the opinion that the doctrine of Res Ipsa Loquitur is applicable to a public authority in Illinois. (See Roberts vs. City of Sterling, 22 Ill. App. 2d 337; Kenney vs. State of Illinois, 22 C.C.R. 247; and Finch vs. State of Illinois, 22 C.C.R. 376.) The testimony clearly shows that the chair in question was under the control and management of the Unemployment Compensation Division of the Department of Labor of the State of Illinois, and that the occurrence was such as in the ordinary course of events would not have happened if due care had been exercised by respondent. Claimant has established a prima facie case of negligence on the part of respondent, thereby shifting the burden of proof to respondent. Respondent produced no evidence on the question of negligence, and has failed to rebut the presumption raised by claimant’s testimony. There is testimony in the record by claimant that after the fall she noticed there was an old place in the chair where the chair had cracked, and that there was a crack on the back part of the chair where the seat goes into the leg. Under the doctrine of Res Ipsa Loquitur it becomes the obligation of respondent to show by aErmative proof that respondent was not guilty of negligence in the incident in question, namely, the collapsing of the chair on which claimant sat. Respondent has failed to do so, and the Court finds that respondent was guilty of negligence in the maintenance of the chair, and that said negligence caused the injury to claimant. Claimant’s "out of pocket” expenses are clearly established at $1,494.00, and, in addition, she seeks to recover for miscellaneous expenses, pain and suffering, future medical expenses, and compensation for permanent injury. This Court does not find it necessary to deal with each of these individually.

Claimant is awarded the sum of $2,000.00.