text:
    (No. 6214
    John M. Nagle, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 1, 1975.

    Vogel & Vogel, by David F. Holland, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, John M. Nagle, seeks to recover his salary from the State of Illinois for the periods of May 2, 3, and 4 of 1966, and from May 13, 1966, to May 31, 1970.

Claimant was separated from the payroll of the State of Illinois on May 13, 1966, and remained separated until June 1, 1970. On June 1, 1970, Claimant was reinstated to his previous position as Hearings Referee in the Division of Unemployment Compensation, Department of Labor, State of Illinois.

It was stipulated between the parties hereto that the Claimant should have been earning $1,309.00 per month. This was part of the stipulation entered into by and between the parties in a case in the Circuit Court of Cook County, Cause No. 70L17874.

The issue here is whether the State is entitled to a reduction in the amount due the Claimant by reason of Claimant’s failure to conscientiously and adequately mitigate the damages for the period that he was not employed by the State.

Claimant testified extensively concerning his activities in attempting to find other employment as an attorney and the results of his full-time pursuit of a private practice. His testimony indicated that during this period he applied to numerous firms for employment without success. The evidence also shows that he resumed his private practice full-time during this four-year period at which time his gross receipts from his practice totalled only $8,000.00. The evidence further reflects that in 1971, after Claimant resumed working for the State, his part-time practice grossed $4,866.66. Claimant alleges that he used his savings and $29,000.00, which he obtained from the sale of stocks, to support himself while he was not working. The evidence indicates that he was active in the stock market while this claim was pending.

Evidence also indicates that Claimant spent $475.00 on a seminar trip to Las Vegas.

The law in this State concerning a wrongfully discharged State employee is summarized in the case of Schneider v. State, 22 Ill.Ct.Cl. 453, wherein the Court stated that:

He is entitled to the salary attached to said office for the period of his illegal removal.

In the same case, at pages 463 and 464, the Court noted:

. . . that a Claimant must do all in his power to mitigate damages, . . . and, in that regard, sitting as a jury, we have the right to fix the damages, and make an award, which we believe would be fair to all concerned. We are, however, not bound by the bill of particulars, stipulation, or answer to interrogatories, and can arrive at a figure in addition to the deductions made for other earnings . . .

In the case of William R. Otto, Donald W. Houston and Edmond J. McShane v. State of Illinois, 24 Ill.Ct.Cl. 72, this Court laid down the rule that in a claim for back salaries:

The burden is upon Claimants to mitigate damages, and that all monies earned during the period of time from employment, but not investments, should be considered as a set-off against wages claimed because of unlawful dismissal from State employment.

In the case of Nicholas Mellas v. State of Illinois, 24 Ill.Ct.Cl. 350, the Court laid down the rule that it is the duty of every suspended State employee to mitigate damages incurred through loss of salary due to suspension and discharge. This Court, in discussing this principle, stated the following:

The principle that it is the duty of every suspended State employee to mitigate damages incurred through loss of salary due to suspension and discharge, and to do all in their power to seek, find, and accept other employment during the period following discharge is well established.

In the case of R. Corydon Finch v. State of Illinois, 26 Ill.Ct.Cl. 14, this Court laid down the following rule:

This Court has long followed the principle of 'avoidable consequences’ which holds that a Claimant must use such means as are reasonable under the circumstances to avoid, mitigate, reduce or minimize the damages, which he has incurred as a result of a wrongful act.

This Court, in the case of Axel Gilbert Anderson v. State of Illinois, 25 Ill.Ct.Cl. 198, laid down the rule that this Court has the right to independently determine Claimant’s damages, both with respect to mitigation of damages and set-offs of outside earnings during the period of unlawful dismissal.

The sole question, therefore, before this Court is whether or not the Claimant did everything in his power to mitigate the damages during the period of time that he is seeking to recover for lost wages from the State.

It is difficult to reconcile the earnings testified to by the Claimant during this period, particularly compared to the immediate increase in earnings when he was put back upon the State payroll. It is also rather difficult to reconcile the fact that an individual would spend $475.00 on a seminar trip to Las Vegas when he is earning practically nothing.

It is the opinion of this Court that this Claimant did not in fact do everything in his power to mitigate the losses incurred by himself during the period that he was suspended from the State payroll.

It is the opinion of this Court that if Claimant had diligently applied himself to his law practice during this period of time, the damages would be considerably less than those claimed by him.

It is the opinion of this Court that an award in the amount of $20,000.00 is fitting and proper, which amount is to be full and complete compensation for any and all damages, as well as salary, incurred by the Claimant as a result of this discharge, and which award shall be subject to the following deductions:

Employee’s State Employees’
Retirement System Contribution .........................$3,372.10
Federal Income Tax to be withheld ..........................2,668.00
State Income Tax to be withheld ..............................104.25
TOTAL DEDUCTIONS ............................$6,144.35

The above deduction to the State Employees’ Retirement System is based upon the amount that would have been deducted had Claimant not been suspended from the payroll of the State of Illinois, which amount was $47,741.47.

An award is hereby made to Claimant in the amount of $20,000.00, minus deductions in the amount of $6,144.35, or a total award of Thirteen Thousand Eight Hundred Fifty-five and 65/100 Dollars ($13,855.65).

A further award of $3,235.60 is hereby made to the State Employees’ Retirement System as the State’s contribution to equal Claimant’s contribution.


source: Caselaw Access Project

author: Burks, J.

license: Public Domain

text:
    (No. 6287
    P. K. Kurson, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 18, 1975.

    Sorling, Catron and Hardin, by Stephen A. Tagge, Attorneys for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Burks, J.

This claim arises out of a contract entered into with the State by P. K. Kurson, Inc., a Springfield construction contractor (hereafter referred to as Kurson). The contract was to expand the existing parking facilities at the Division of Highway Building located on By-Pass 66 in Springfield. (Contract No. H.B.-1739; Sangamon County; Administration Bldg. Parking Lot.)

The site of the new parking lot was an area covered with trees. Kurson had to remove and dispose of the trees as part of his contract, and this was the first portion of the work that had to be completed. The contract authorized him to burn the trees and brush on the job site. The State later refused to allow the burning. To comply with the State’s order, Kurson was forced to employ a subcontractor with a "chipper” to chip and mulch the trees on the job site. This work was done by James M. Canfield Contracting and Trucking, Inc., and Kurson paid this subcontractor $2,336 for this extra work.

The contract provided that the trees were to be removed in accordance with Section 201 of the Standard Specifications for Road and Bridge Construction, adopted August 1, 1968. Section 201 is titled "Clearing, Tree Removal, Hedge Removal.” Section 201.08 is as follows:

Section 201.08 Disposal of Materials. This work shall be done in accordance with Article 202.03.

The pertinent portion of Section 202.03 is as follows:

All trees and materials that can be. destroyed by burning shall be disposed of within the right-of-way at locations designated by the Engineer in such a manner that public or private property will not be damaged or endangered. No burning of surplus materials will be permitted in or near areas designated as natural scenic areas that are to remain undisturbed.

Kurson claimed that the chipping and mulching, in place of burning, was an extra expense for which he should be compensated in the amount of the actual cost, $2,336.

In discussions and correspondence with Respondent’s engineer, the State said it would allow Kurson to burn the material if he could get permission from the Illinois Pollution Control Board to do so. Kurson was unable to do this. The State also tried unsuccessfully to obtain said permit. Respondent felt obliged to decline payment of this extra cost since Section 107.04 of the Standard Specifications made it Kurson’s responsibility to obtain this permit. The said Section 107.04 reads as follows:

Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work.

Respondent concedes the merits of this claim and apparently would have recommended payment of the extra expense incurred if the contractor had submitted a written denial from the Pollution Control Board of his request for a permit to burn the material. This is confirmed in the following quotations from a letter to the Claimant dated June 10, 1970, from Respondent’s District Engineer, C. E. Johnson:

Tree Removal. It is my understanding that you were advised on June 3, 1970, at a jobsite meeting that burning of trees would not be permitted on the property. Again on June 5, 1970, you were instructed that the tree and brush removal must be trucked away from the property unless you provide some method of chipping or composting. The resulting material could be incorporated with the earth.
The Department has tried without success to obtain a permit to burn the material on the jobsite. You may on your own initiative make an attempt to obtain a similar permit to allow burning. If you have a written denial from the proper authorities for this request, we would recommend for approval by the Bureau of Construction that the chipping or composting be allowed as an extra expense to this section.

Respondent concedes that Claimant’s brief has accurately stated the applicable law in this cause, and we granted Respondent’s motion to waive filing a brief.

We find that Claimant’s failure to obtain a permit to burn the trees from another State agency, making it impossible to perform this phase of the contract as contemplated by the parties, is not sufficient grounds to deny payment of Claimant’s extra expense thereby necessarily incurred.

The intention of the parties to a contract should be determined from the language employed in the contract. Schek v. Chicago Transit Authority, 247 N.E.2d 886, 42 Ill.2d 362; I.L.P. Contracts $213. The language in this contract shows specifically that the parties intended the trees to be burned.

There was uncontroverted evidence in the record that the construction practice in Sangamon County in May and June of 1970 was to burn the trees at the job site.

The State prepared the contract including the special provisions and the Standard Specifications. Any ambiguity in a contract should be construed against the party preparing the contract. Suess v. Jousma, 259 N.E.2d 349, 122 Ill.App. 415; I.L.P. Contracts §222. The specific provisions of a contract will prevail over general provisions of the contract. Olson v. Rossetter, 71 N.E. 2d 556, 330 Ill.App. 304; I.L.P. Contracts §222. The specific agreement between these parties was to burn the trees. Since this method of disposal could not be used, the contract was changed. The chipping process required was different and more expensive than the contract specified. This was a change, an extra, for which Claimant is entitled to be paid, as contemplated by the contract itself.

The amount of the extra expense incurred by the Claimant is not in dispute, and Claimant is entitled to an award of $2,336.

In response to the Court’s recent inquiry, we were advised by the Secretary of State’s Corporation Division that the Claimant, a Delaware corporation, was authorized to do business in Illinois, June 16, 1969, and that its authority was revoked November 15, 1972. (File No. 494-8; Box #4951 in the archives.) The parties to this claim have stipulated that the Springfield Marine Bank will receive all sums recovered in this action, as it has a security agreement covering Claimant’s accounts receivable. Counsel for the Claimant has advised the Court that an award made to the Claimant can be properly negotiated.

Claimant is hereby awarded, as an amount due under a contract, the sum of Two Thousand Three Hundred Thirty-Six Dollars ($2,336).


author: Perlin, C. J.

text:
    (No. 6505
    Louis Pirovolos, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 29, 1976.

   Perlin, C. J.

This is a claim for compensation for time unjustly served in prison, brought pursuant to Section 8(c) of the Court of Claims Act, Ill.Rev.Stat., Ch. 37, 439.8(c), which grants this Court jurisdiction over:

All claims against the State for time unjustly served in prisons of the State where the persons imprisoned shall receive a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more that $15,000; for imprisonment of 14 years or less but not over 5 years, not more than $30,000; for imprisonment of over 14 years, not more than $35,000; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.

This matter comes before the Court on the motion of the Claimant for judgment on the pleadings.

On consideration of the amended complaint, the answer to the amended complaint, and Claimant’s motion for judgment on the pleadings, the Court finds:

1. That from September 9, 1967, to June 18, 1970, Claimant was unjustly imprisoned in a penal institution of the State of Illinois.

2. That on October 21, 1974, Claimant was issued a pardon on grounds of innocence by the Honorable Daniel Walker, Governor of the State of Illinois.

3. That as a result of his unjust imprisonment, Claimant incurred substantial legal expenses, and suffered a loss of income.

It is therefore ordered that Claimant’s motion for judgment on the pleadings be, and hereby is, granted.

It is further ordered that Claimant be, and hereby is, awarded the sum of Twelve Thousand Five Hundréd Dollars ($12,500), and that Claimant’s attorneys fees are fixed at 20% of said amount.


author: Holderman, J.

text:
    (No. 6667
    Gregory Cler, Claimant, vs. State of Illinois, Department of Children and Family Services, and Board of Trustees of University of Illinois, Respondent.

      Opinion filed April 7, 1976.

    Phillips, Phebus, Tummelson & Bryan, by Joseph W. Phebus, Attorney for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant, a 13 year old boy, was a guest staying at the 4-H Memorial Camp located at Allerton Park in the County of Piatt, State of Illinois, in the summer of 1971. Claimant had been enrolled in this camp on previous occasions.

This summer camp is owned by the Board of Trustees of the University of Illinois.

Claimant was one of 177 minor campers whose ages ranged from 9 to 16 who were in attendance, along with 35 to 40 adult supervisory personnel. The campers were at the camp for a five-day stay.

The rules of the camp provided that every morning at a certain time the inmates of the various cabins were required to clean up their cabins and prepare them for inspection. This was done on a competitive basis; and for a period of perhaps 20 minutes each day during this cleanup, the supervisors of the various cabins were in an executive session discussing the programs for the day.

On the day in question, a disturbance developed between the boys staying in Claimant’s cabin and some boys staying in an adjacent cabin. Aerosol spray cans were used by the inmates of the two cabins in the action that followed.

In the midst of the horseplay, a boy from a cabin other than Claimant’s cabin picked up a broom and threw it into the Claimant’s cabin. Unfortunately, the blunt end of the broom struck the Claimant in the left eye, resulting in the permanent loss of the central vision in the left eye. The boy who threw the broom, Gary Leon Prosser, had attended the camp for several previous sessions.

The evidence is clear and uncontradicted that with the exception of approximately 20 minutes in a 24-hour period, the boys were under the direct supervision of adults who were in charge of the cabins.

Claimant alleges that failure to supervise during the 24-hour period was a "breakdown of supervision” and a "gross disregard” of responsibility by the supervisors.

Claimant also charges that the State was negligent and careless in allowing Gary Leon Prosser to attend the camp because it should have known that he was a dangerous youth. The evidence indicates that Prosser had been at the camp on at least three previous occasions, and one of the counselors testified that he had been a member of 4-H for approximately three years. There was no evidence or information indicating that he was anything but a normal child. School records were introduced showing that he had never been sent home for disciplinary purposes.

The camp director, who had been with the camp for approximately 15 years, stated that he had never been advised to pay particular attention to Gary Leon Prosser as being a problem child.

It appears from the evidence that Claimant, Gregory Cler, had attended 4-H camp prior to the year he was injured and that on no occasion had he or his mother ever made any objections to the manner in which the camp was operated.

Claimant also testified that in the years he had been at the camp before the incident in question, there had been no fights or horseplay with insecticide sprays.

The evidence is clear that a routine camp schedule was being followed on the day in question which was basically the same routine that had been followed for approximately 14 or 15 years previously.

The sole question involved is the responsibility of the State of Illinois in relation to the supervision of the activities of the campers at the 4-H Camp at Allerton Park. The deciding question is whether or not the action of the Respondent in allowing the campers to engage in a 20 minute cleanup period without adult supervision is such negligence as may charge the State with the responsibility for the unfortunate injury sustained by Claimant, Gregory Cler.

The first issue before the Court is whether or not the legal obligation was breached by the State of IIlinois, and the second issue is whether the breach of that obligation was the proximate cause of Claimant’s injury.

The Claimant would place a burden of supervision upon the State that would be practically impossible to fulfill. Twenty-four hour a day supervision is not exercised by parents, and to place a greater burden upon the State than is placed upon parents would seem entirely unreasonable and unjustified.

In Stanley v. Board of Education, 293 N.E.2d 417, the First District Appellate Court held that, under the particular facts in that case, it could not be said as a matter of law that the Board of Education was not negligent in an alleged "failure to supervise” situation. It is clear that the law of Illinois places a duty of care upon those in charge of children to exercise reasonable supervision so as to avoid injury to the children or third parties. Kita v. YMCA of Metropolitan Chicago, 47 Ill.App.2d 409; Stanley v. Board of Education, 9 Ill.App.3rd 962; Miller v. Veterans of Foreign Wars, 56 Ill.App.2d 343. However, it is not the obligation of school authorities, or others in charge of children, to stand guard over them at all times to protect them against the mischievous acts of other students. Lucille Kos v. Catholic Bishop of Chicago, 317 Ill.App. 248, 253.

The present case does not involve a situation where the children alleged to be unsupervised were engaged in a hazardous or potentially hazardous activity. The duty of care upon Respondent, State of Illinois, in the present case is different and less than the duty of care which might be imposed in the event the children were engaged in hazardous activities at the time of an injury. Harring v. Mathas, 126 S.E.2d 863.

We fail to find Illinois authorities for the proposition that camp authorities, or those in charge of children on a "live-in” basis, are obliged to maintain a constant vigil over children in order to protect against potential injuries.

Applying the facts of the instant case to the above cited authorities, and those numerous authorities cited and discussed in the respective briefs of the parties hereto, we cannot conclude that the Respondent was negligent in the present case. In order to so hold, the Court would have to decide that the teachings of 15 years of experience in the operation of the 4-H Camp at Allerton, and the program for a 20 minute period of time in which the campers were required to clean their cabins and perform personal acts of hygiene, without direct supervision, would be such as to naturally and probably result in an injury to a camper. Such a decision seems contrary to logic. Indeed, it would seem that such a limited program of self-reliance in the performance of routine chores, without the direct supervision of adults, would be a meaningful and necessary part of any program for the development of a degree of responsibility in young people.

In conclusion, we are not unmindful of the nature and extent of the injuries and misfortunes which the Claimant has suffered as a result of this unfortunate occurrence; however, we are unable to conclude, based upon the evidence in this cause, that the camp counselors and administrative personnel were negligent in the present case.

It is the opinion of this Court that the responsibility placed upon the Respondent in conducting the camp was fully carried out and that lack of adult supervision for a 20 minute period is not such a lack of supervision as to make it liable for the unfortunate incident which occurred.

An award is hereby denied.


text:
    (No. 6755
    The Canal Randolph Corporation, Claimant, vs. State of Illinois, Department of Labor, Bureau of Employment Security, Respondent.

      Opinion filed December 3, 1975.

   Holderman, J.

In February of 1955, the State of Illinois, through its Departments of Finance and Labor, entered into a lease with Butler Brothers, Claimant’s predecessors, for office and warehouse space in a building at Randolph, Canal and Lake Streets, Chicago, Illinois. The lease was to take effect on July 1, 1955, and the original term was for two years. The lessee was given the option to renew for nine successive two-year terms. Rent was stipulated at $2.50 per year per square foot of office space and $1.50 per year per square foot of warehouse space. Thereafter, under the option periods, the amount of office space was to be computed at a $1.60 per annum per square foot.

Butler Brothers conveyed the premises to Claimant, along with an assignment of the lease, and Respondent started paying rent to the Claimant October 1, 1956.

The options to renew the lease were exercised.

In June of 1970, Claimant began billing Respondent for alleged excessive air conditioning and heating charges incurred as the result of Respondent’s usage of the premises in double and triple shifts.

Count I of the complaint seeks damages in the sum of $75,000 on the theory that when the premises were leased it was understood that Respondent would use the premises only from 8:00 a.m. to 6:00 p.m., Monday through Friday, and from 8:00 a.m. to 2:00 p.m., on Saturdays, but that contrary to the understanding, the Respondent had for several years been using part of the premises for 24 hours Mondays through Saturdays. The basis of the complaint is that the use of the premises by the lessee was in excess of the original contemplated use and, because of that, Claimant had to furnish additional heat, air conditioning, electrical services and maintenance.

Count II of the complaint requested reformation of the lease so that Claimant could continue to collect for the alleged excessive use in future years.

The Claimant contends that it is entitled to $120,031 for the period from June, 1970, to October, 1972, based on a charge of $15 per hour for the off hours. The $15 charge purports to be only for heating and air conditioning during the off hours. Any claim for other uses, such as elevators, additional water, additional supplies and the like, are apparently being waived.

Respondent contends that the original lease was negotiated at a level below the prevailing loop charges due to the condition of the building. It was a warehouse originally and not suitable for office usage. The costs of remodeling were paid by the Respondent. Also, Respondent was the first tenant in the former warehouse. Respondent admits that when the lease was executed, the employees were not required to work double and triple shifts. The multiple shifts were first used at least two years prior to 1970. But it was not until 1970 that Claimant began its billing for these charges.

The lease provides as follows:

(2) The lessor agrees:
D. To operate air conditioning equipment installed in accordance with the plans and specifications above mentioned.
E. To furnish between the hours of 8:00 a.m. to 6:00 p.m. daily, Monday through Friday and 8:00 a.m. to 2:00 p.m. on Saturday, not less than 72 degrees Fahrenheit of heat throughout the entire area; in the event lessee has a night crew working, heat shall be furnished in the area which the crew is working.
Paragraph G of the Outline Specifications, attached to the complaint as Exhibit A, provided that the lessor would:
G. Install year-around climatic controlled air conditioning system . ..

Respondent argues that this proves that the lease contemplated the use of night crews. There was no provision in the lease requiring Respondent to pay for the heating and air conditioning, even though later tenants did have leases which contained such provisions. Respondent further argues that the damages are uncertain and speculative and cannot be made a basis of recovery.

Claimant produced as a witness one Thomas F. Croke as a real estate expert in the management field. He testified that from his analysis he arrived at a charge of $30 per hour for 60,000 sq. ft.; that, in checking with others, he found that the charges ranged from $35 per hour for heating and $50 per hour for cooling after the normal operating hours; and that $15 per hour charged by the Claimant in this case was fair and reasonable. Other departments of the State and Federal government as well as other corporations paid this rate when they occupied the same building.

This claim is really one for additional rent based on use of heat and air conditioning not contemplated under the terms of the original lease.

The issue is whether or not the lease is ambiguous in regards to heating and cooling and, if so, can the circumstances existing at the time of the lease be considered. 24 I.L.P. Landlord and Tenant Sec. 43 states:

There is no necessity to resort to extrinsic facts or circumstances in order to determine the intent of parties in executing a lease where such intent is clearly ascertainable from the lease itself.

In the case of Launtz v. Kinlock Telephone Co., 239 Ill.App. 604, the lessor agreed to furnish electrical current necessary to charge the lessee’s electrical machines. The Court held that the lessor was not entitled to an increase rental on the ground that he had to run his generator seven hours a day longer than usual in order to charge lessee’s machines due to their badly worn condition. Thus, a landlord doesn’t necessarily have a right to increase rent when his burden is increased due to the use made by a tenant unless the lease so specifies or unless the lease is ambiguous.

The record is far from satisfactory in supplying proof that Claimant is entitled to the recovery which it seeks. The lease provides in Paragraph (2) E, Page 4, for the hours that heat will be furnished. While the lease does not state the number of hours that air conditioning will be furnished, it would seem to be a natural assumption that the air conditioning hours would be the same as those requiring heat.

A computation of the period in which air conditioning was used for over ten (10) hours per day beginning in June, 1970, is as follows:

June 60 hours July 64 August 80 September 64 May 44 June 80 July 102 August 94 September 93 Total ... 681 hours

It is the Court’s conclusion, based on the record, that the Claimant should be compensated only for the air conditioning hours as set forth above, and at $15.00 per hour for 681 hours, making a total of $10,215.00.

We therefore enter an award for Claimant in the amount of Ten Thousand Two Hundred Fifteen Dollars ($10,215.00).


text:
    (No. 6768
    Roy R. Taeger, Father of Sharon Taeger, deceased, Et AL., Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 25, 1975.

    Kenneth E. Baughman, Attorney for Claimants.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This wrongful death action arises out of an automobile accident which occurred on June 15, 1970, on Highway 34 in Henderson County, Illinois. The State of Illinois is responsible for the construction, repair and maintenance of Highway 34, and Claimant contends that the accident was proximately caused by the negligent failure of Respondent to provide adequate warnings that Highway 34 terminated at the accident site.

On June 15, 1970, Roy Taeger, his wife Dianne, his son Lyle, and his infant daughter Sharon were proceeding westbound on Highway 34 to Burlington, Iowa, from Clinton, Illinois. They were unfamiliar with the highway. Roy Taeger was driving a 1966 Ford station wagon. The weather was clear and road conditions and visibility were excellent.

Highway 34 is a four lane, divided road with two lanes in each direction separated by a median approximately 40 feet wide. Just east of the accident site Highway 34 traverses a grade as it passes over Route 150. The speed limit on the road was 65 miles per hour.

At the accident site Highway 34 ended with a tapered barricade which directed traffic off the westbound lanes and onto an exit ramp located on the west incline of the overpass over Highway 150. The barricade consisted of a series of weighted barrels from which hazard markers extend to a height of about seven feet above the road surface. The barrels extended from the south edge of the westbound lanes and angled in a northwesterly direction across both westbound lanes to the intersection of the west edge of the exit ramp and the north edge of Highway 34.

At the mouth of the exit ramp there was a speed control sign stating "Ramp Speed 30.”

Approximately 680 feet east of the gore of the exit ramp, four foot by four foot orange signs were placed on either side of the highway stating "Expressway Ends.” Mounted just below these signs on the same signposts were smaller signs stating "Form Single Lane to Right.”

Approximately 2,600 feet east of the gore was an informational sign along the right hand side of the road indicating to drivers the direction they were to travel.

Roy Taeger testified that he was proceeding westbound on Highway 34 in the right lane when the car and truck he was following began slowing down. He estimated that when he was about one mile from the bridge over Route 150 he pulled into the left hand lane to pass the slower vehicles. He passed the car that had. been immediately in front of him and had pulled approximately even with the truck when, near the top of the grade over 150, he saw the barrels across the westbound lanes of the highway. Taeger said that at the same time he noticed that there was traffic in front of the truck in the right lane which would prevent him from entering the right lane and exit ramp. He said he applied his brakes at this point, which he estimated to be about 500 feet from the barrels, and tried to negotiate the exit ramp curve at about 45 miles per hour. However his car struck the guard rail along the left side of the road, blew a tire, and rolled down an embankment along the side of the highway. Sharon Taeger, the 11-month old daughter of Claimant, was thrown from the car and killed.

Taeger testified that prior to the accident he had not observed any signs or traffic control devices indicating that Highway 34 was ending.

Jack Chick, an investigator hired by Claimant, testified that in the course of investigating this accident he traveled over Route 34 at the accident site three times. He said that he did not observe the barrels across the road until he was about half way across the bridge over Route 150, or about 500 feet from the barrels.

Harriett Knepp, the driver of the automobile which Claimant passed just before the accident, testified that she was traveling 50 to 55 miles per hour when passed by the Taeger vehicle. She said that she had driven past the accident site several times and that a driver could not see the barrels at the end of the highway until he had almost cleared the crest of the bridge over Route 150.

Claimant introduced into evidence Standard 2316-2 of the State of Illinois Manual of Uniform Traffic Control Devices relating to application of traffic control devices for highway construction and maintenance. The Standard provides, in essence, that where a four-lane, divided highway is undergoing maintenance or construction which requires a lane closure specified warning signs must be placed along both sides of the road at specified intervals. The Standard requires warning signs 500 feet from the gore of the road, 1000 feet from the gore, and 1,500 feet from the gore. In addition, a directional sign is required 2,000 feet from the gore, and additional warning signs are specified at points 2,600 feet and 5,000 feet from the gore.

Claimant also introduced into evidence the introductory portion of the Manual relating to Standard 2316-2, which provides in part:

This section sets forth basic principles and prescribes minimum standards to be followed in the design, application, installation and maintenance of all types of temporary traffic control devices required for road construction and maintenance operations.
The prescribed standards were developed primarily as the minimum desirable application for State maintained highways.

Charles Dykeman was the driver of the truck that Taeger passed immediately prior to the accident. The written statement of Dykeman was admitted into evidence by stipulation, and provided, in part:

I observed the Taeger vehicle come up behind me in my outside rearview mirror and pass me while I was on the bridge over U.S. Route 150. I wondered why he was passing me and at such a high rate of speed, which I would estimate at somewhere between 65 to 70 miles per hour. I honked my horn at him to get him to slow down as he approached the curve, however, when he did apply his brakes, it was much too late to avoid the accident. The car was not weaving or bobbing, but it had just passed me on the bridge and prior to the curve. I feel the car was already into the curve (exit ramp) before the driver attempted to slow down. The vehicle struck the end of the guard rail and appeared to go straight up into the air and possibly land on the top, although I could not see because it dropped into a ditch, which blocked my view .... I was under the impression that the driver may have dozed off momentarily before the curve. There was no other vehicle between me and the Taeger vehicle. I thought that when he passed me on the bridge that if he didn’t slow down, he would hit the rear of the brown 1960 Oldsmobile that was previously in front of me.

Respondent introduced into evidence photographs of Highway 34 taken at various distances east of the barricade. These photographs show that the very tops of the hazard markers atop the barrels became faintly visible to westbound motorists about 1,900 feet east of the gore of the highway. At a point about 950 feet east of the gore, the barrels and markers are plainly visible to westbound traffic.

Carroll Holloway, an employee of the Illinois Department of Transportation, was an Assistant Field Traffic Engineer responsible for the signing along Highway 34 at the time of the accident. He testified that Route 34 was not under construction or maintenance on June 15, 1970, and that the barrel barricade had been in place since December, 1965. He also stated that the "Expressway Ends” signs located approximately 650 feet from the gore of the highway were within the normal range of placement for such signs.

Robert Campbell, the Illinois State Trooper who investigated the accident, testified that as he approached the accident scene from the east the barrels became visible as he approached the eastern edge of the bridge over Highway 150.

Claimant contends that the State did not provide adequate warning devices at approaching the end of Highway 34. Claimant urges strongly that the failure of Respondent to comply with Standard 2316-2 of the State of Illinois Manual of Uniform Traffic Control Devices is evidence of negligence. Respondent replies that that Standard is not applicable to the instant situation, that the warning signs provided along Highway 34 were adequate, and that the proximate cause of the accident was the negligent failure of Roy Taeger to observe and heed the signs indicating the end of the highway.

In Emm v. State, 25 Ill.Ct.Cl. 213, this Court held that the State must keep roadways under its jurisdiction and control in a reasonably safe condition for the purpose to which the portion in question is devoted. The Court added, ". . . the placing of adequate signs warning of the conditions to be met fulfills the obligation of the State to the users of the highway.” The burden rests upon Claimants to prove by a prepondernace of the evidence that the signs erected by Respondent were inadequate to warn of the termination of Highway 34; that Claimants were free of contributory negligence; and that the negligence of the Respondent was the proximate cause of the accident.

Standard 2316-2 of the Illinois Manual of Uniform Traffic Control devices is not conclusive of either the type or placement of the signs which should have been erected at the termination of Highway 34. The Standard is, by its own terms, applicable to the erection of temporary traffic control devices where a road is under maintenance or construction. Carroll Holloway, a traffic engineer employed by Respondent, testified that the Standard was not applicable to the instant situation. However, even if the Standard is considered as indicative of what does constitute adequate warning of the termination of Highway 34, see Merchant's National Bank of Aurora v. Elgin, Joliet and Eastern Railway Co., 49 Ill.2d 118, 273 N.E.2d 809, 812, we find that the State did not so deviate from the Standard as to be chargeable with negligence.

Standard 2316-2 calls for placement of signs warning of a lane closure at 500-foot intervals, beginning at a point 1,500 feet from the gore of the road; a directional sign 2,000 feet from the gore; and warning signs at points 2,600 feet and 5,000 feet from the gore.

At the termination of Route 34, Respondent placed hazard markers which were clearly visible at a point 950 feet east of the barricade. Photographs introduced into evidence show that these hazard markers began becoming visible to westbound traffic approximately 1,900 feet from the barricade. Further, 680 feet east of the gore, four foot square orange warning signs were placed on each side of the highway stating, "Expressway Ends.” Under these signs were smaller signs stating, "Form Single Lane to Right.” Finally, 2,600 feet east of the gore was an informational sign along the right side of the road which indicated to drivers the direction westbound traffic was to take.

These signs and hazard markers substantially complied with the requirements of Standard 2316-2 and provided adequate warning of the termination of the highway.

Further, Roy Taeger testified that he did not see any of the informational or warning signs along Highway 34, and that he first became aware of the existence of the barricade when he was about 500 feet from the end of the highway.

The Court is convinced that it was his failure to observe and heed these clearly visible signs which was the proximate cause of this accident.

The Court regrets this tragic occurrence, but the evidence shows that Respondent did provide adequate warning signs indicating the termination of Highway 34, and that the negligence of Roy Taeger proximately caused the accident.

This claim is therefore denied.


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    (No. 6832
    Connie J. Parkinson, Executrix of the Estate of Harry C. Parkinson, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 29, 1976.

    Katz, McAndrews, Durkee & Tellen, Attorneys for Claimant.
    William J. Scott, Attorney General; Douglas G. Olson, Assistant Attorney General, for Respondent.
   Perlin, C. J.

Claimant is the executrix of the estate of her late husband, Harry C. Parkinson. In that capacity she seeks damages for the wrongful death of her decedent, who was killed in an automobile accident on October 21, 1971. The accident occurred on Illinois Highway 67, which was under the jurisdiction and control of Respondent at the time of the occurrence. Claimant contends that the death of Harry C. Parkinson was proximately caused by the failure of Respondent to properly maintain the road and the adjoining shoulder at the accident site.

Illinois Highway 67 is a two-lane, undivided blacktop road which runs in a generally northerly and southerly direction. The accident took place just over the crest of a hill, about one and one-quarter miles south of Preemption, Illinois. The road had been paved in such a fashion that immediately over the crest of this hill the highway narrowed abruptly from a width of 24 feet to a width of 21 feet, eight inches. This appeared to represent a pattern in the paving of the highway for some distance in either direction. That is, at the crest of each hill the pavement narrowed, and then widened as it went up the succeeding hill. Further, where the pavement narrowed at the accident site the shoulder of the road had eroded, so that there was a trench approximately eight inches deep running along the west edge of the narrowed pavement.

The eroded condition of the shoulder was shown to have existed for over one year prior to the date of the accident and had been reported to the State of Illinois on at least two occasions after cars had gone off the highway and into the trench. There were no signs posted to warn southbound motorists of the narrowing of the pavement or of the drop-off at the shoulder of the road.

The deceased was southbound on Route 67 at about 4:30 p.m. The road was clear and dry, and visibility was unobstructed. The speed limit at the accident site was 65 miles per hour. The Court must assume that the deceased was familiar with the condition of the road, as he had resided in the general vicinity for a number of years.

As the Parkinson car cleared the crest of the grade about one and one-quarter miles south of Preemption, the right wheels of his car went off the narrowed road and into the trench formed by the eroded shoulder. Based upon the expert testimony and photographic evidence introduced at trial, it appears that his vehicle traveled approximately 57 feet in the trench, came back onto the road and traveled about 225 feet in the southbound lane, and then crossed into the northbound lane and traveled about 135 feet before striking head on a car driven by one Barbara Zeigler. Both Parkinson and Ms. Zeigler were killed instantly in the collision.

James L. Esters, an Illinois State Trooper who conducted an investigation at the accident scene, testified that he had observed that the western edge of the pavement was chipped for some distance where Parkinson’s car left the road. Esters said that he believed that this was caused by the right wheels of Parkinson’s car striking the edge of the road as Parkinson tried to bring the car back on the pavement.

The deceased was 32 years old at the time of his death and left surviving a wife and three small children. He was a farmer and had earned $22,000 in 1970.

Parkinson’s widow, his father-in-law, and his sister, all of whom had driven with the deceased on numerous occasions prior to the accident, testified that he was a cautious, safe driver who typically exercised reasonable caution while driving.

James Baker, a traffic engineer, testified on behalf of Respondent. Baker said that based upon his examination of photographs of skid marks left by Parkinson’s car, and the known weight, direction and speed of the vehicles involved in the collision, he believed that Parkinson’s car was travelling about 60 miles per hour when it struck the Zeigler car. He also estimated that Parkinson had been travelling approximately 73 miles per hour when he first applied his brakes after getting his car back on the pavement.

The State owes a duty to those using its streets and highways to keep those roads in a reasonably safe condition. Schuck v. State, 25 Ill.Ct.Cl. 209. This duty extends to properly maintaining the shoulders of a highway for the uses for which they are reasonably intended. Lee v. State, 25 Ill.Ct.Cl. 29; Welch v. State, 25 Ill.Ct.Cl. 270. To recover in this action Claimant bears the burden of proving by a preponderance of the evidence that Respondent has breached its duty of reasonable care; that the breach of duty was the proximate cause of the death of her decedent; and that her decedent was in exercise of reasonable care for his own safety at the time of the accident.

The record does tend to establish that the State of Illinois did not utilize reasonable care in maintaining Highway 67 at the accident site. Not only did the pavement narrow at the crest of a hill, but an eight inch deep trench was permitted to form at the edge of the pavement where the shoulder had eroded. We have previously ruled that the State is not bound to maintain a shoulder in the same condition as the paved surface of a highway, and that a difference of a few inches between the height of the pavement and the shoulder is not negligence per se. See e.g. Sommer, et al. v. State, 21 Ill.Ct.Cl. 259; Howell v. State, 23 Ill.Ct.Cl. 141. Here however the combination of the narrowed pavement and the extreme difference in the height of the pavement as compared to that of the shoulder constituted a dangerous condition. See Mallory v. State, 24 Ill.Ct.Cl. 236.

Claimant has further proven that the State had actual notice of this condition for over one year prior to the accident, and that the State neither corrected the situation nor placed warning signs in the area. In failing to correct a dangerous condition on its highway, of which it had actual notice for a substantial period, the State appears to have breached its duty of reasonable care in maintaining the road.

We further find that the State’s breach of duty was a proximate cause of the death of Harry Parkinson.

The more difficult issue is whether Claimant has proven that Harry Parkinson was in the exercise of reasonable care for his own safety at the time of the accident. Testimony was introduced by Claimant as to the careful driving habits of her decedent which is probative of the issue of whether he used due care in the instant situation.

However, Respondent urges strongly that Harry Parkinson was contributorily negligent, and after a careful review of the record, the Court must agree.

We first note that Highway 67 in the area of the accident scene narrows repeatedly at the crests of hills, and it is not unreasonable to assume that Parkinson, who lived in the locality for a number of years, was aware of this fact.

Moreover James Baker, a highway engineer who testified on behalf of Respondent, stated that after Parkinson brought his car back on the pavement, it traveled approximately 225 feet in the southbound lane, crossed over into the northbound lane, and traveled an additional 135 feet in that lane before striking the Zeigler car at 60 miles per hour. There does not appear to be any reasonable explanation for Parkinson’s failure to stop, or at least slow his car, after he had gotten it out of the trench.

We have carefully examined photographs of Parkinson’s car taken after the collision which show that both his right front and right rear tires were inflated. Thus, they were not blown when his car went off the road and could not have caused Parkinson’s car to go out of control once it was back on the pavement. Clearly Parkinson had time to stop or significantly slow his car once it was back on the road, yet he continued for approximately 360 feet before striking the Ziegler car. In failing to stop or slow his car, we think he failed to act as would a reasonably prudent person under the circumstances. In this connection we also note the testimony of James Baker that photographs of the skid marks left by Parkinson’s car indicated that he was travelling in excess of the speed limit when he first applied his brakes.

The contributory negligence rule is often harsh in application, but it is a rule which this Court is bound to recognize. The Court regrets this unfortunate occurence but is of the opinion that this claim must be denied.


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    (No. 6840
    Charles E. Brewer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 24, 1975.

    Pefferle, Maddox & Gramlich, by Charles J. Gramlich, Attorneys for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Burks, J.

Claimant brought this suit against the State for the value of a coin collection which he exhibited at the 1971 Illinois State Fair and which was stolen or disappeared from the exhibit area. The value of the lost collection was $3,929.30, according to the complaint.

Claimant argues that a mutual benefit bailment was created, and that it was the duty of the State to protect the exhibit against theft. Respondent argues that the State cannot be held responsible as an insurer of exhibits at the State Fair, and cites the rules and regulations pertaining to exhibitions at the State Fair which purport to contain an express denial of responsibility for loss or damage to exhibits or any part thereof. The following is a brief summary of the facts:

The Claimant, Charles Brewer, is an elderly man whose hobby was coin collecting. He had exhibited his coin collections at the Illinois State Fair for a number of years prior to 1971 and won several awards.

Brewer set up his exhibit on August 10,1971, in the Exhibition Building on the Illinois State Fairgounds at a spot designated for coin exhibitions by the State Fair Agency. Between 9:00 p.m. Sunday, August 22, 1971, and 8:15 a.m. Monday, August 23, 1971, certain portions of Mr. Brewer’s collection disappeared.

Claimant arranged the exhibit as he had desired it, "to make it look attractive,” and then observed while an employee of the Respondent locked the case. The Claimant never had a key to his exhibit. He testified that he could not even go behind the showcase unless he was accompanied by an authorized employee of the State. The aisle behind the showcase was "off limits,” Claimant said, and all exhibitors were treated the same.

There was no evidence in this case as to what happened to Mr. Brewer’s coin collection other than it disappeared over the weekend. Yet, it seemed clear to the manager of the State Fair, Bob Park, that Claimant’s property was stolen. Mr. Park’s letter to the Claimant, dated October 14, 1971, reads in part, "Certainly all of us at the Fair regret this theft very sincerely and I will be glad to talk to you further about the problem since it seems that our guard system left much to be desired.”

Again on January 26, 1972, the manager of the State Fair, Mr. Park, wrote the Claimant acknowledging that Claimant’s loss was due to theft, a fact confirmed by the testimony of Mrs. Vera Marvel, superintendent of the hobbies displays. She said the back of Claimant’s display case was broken into and the lock was pried off. Both Mrs. Marvel and Mr. Denton who was manager of competitive events at the Fair "corroborated Mr. Brewer’s statement that security was extremely weak in this particular building at the Fair that year,” as Mr. Park acknowledged in his testimony at the hearing.

The manager of the Fair also testified that, in his opinion, the State Fair Agency had some responsibility for Claimant’s loss under Ill.Rev.Stat., Ch. 127, §405, which reads as follows:

The State Fair agency is empowered to police the State Fair Grounds, maintain and preserve order thereon, and protect exhibits from theft, injury or destruction.

Mr. Park’s second letter to the Claimant expressed his regret that there was no item in his budget to handle a reimbursement for Claimant’s loss and advised Mr. Brewer to file his claim in this Court. Mr. Park added, "I feel there is merit in your case.”

This Court cannot predicate liability of the State upon the generous remorse felt by representatives of the State Fair Agency toward Claimant’s loss. However, we do regard their testimony and letters as tantamount to a Departmental Report as contemplated by our Rule 14. From this prima facie evidence, which was not effectively refuted, we conclude that Claimant’s coin collection was stolen from its showcase in the Exposition Building due to the State’s negligence in admittedly failing to provide "reasonable protection” for Claimant’s exhibit in 1971. As Mr. Park testified, "Evidently that reasonable protection was lacking that year.”

We accept the definition of the term "bailment” as stated in Respondent’s brief and as quoted in I.L.P. Bailments §2.

The term 'bailment’ has been defined as the delivery of goods for some purpose under a contract, express or implied, that after the purpose has been fulfilled they shall be redelivered to the bailor or otherwise dealt with according to his directions or kept until he reclaims them.

We do not accept Respondent’s novel theory that, in the case at bar, there was no contract of bailment, either express or implied, since there certainly was a transfer of possession of Claimant’s personal property to the Respondent without transfer of ownership. There was also considerably more than the implication of a contract of bailment between the parties, so we need not dwell on the two cases cited by the Respondent supporting the general rule that the State cannot be held liable for breach of an implied contract. That rule as applied in Dutton v. State, 16 Ill.Ct.Cl. 64, was on a claim for personal services performed and in no way analogous to the case at bar. Nor do we believe it was appropriately relied on in Schwemer v. State, 19 Ill.Ct.Cl. 149, wherein the Claimant, an insane person, lacked the capacity to enter into a bailment contract.

In the case at bar, Claimant received a written invitation from the Respondent to display his exhibit at the 1971 State Fair. The invitation was clearly stated in the “General Managers Foreward” of the booklet Claimant received through the mail (Claimant’s Exhibit 5) which contained the rules and regulations for exhibitors adopted and promulgated by the State Fair Agency pursuant to Ill.Rev.Stat., Ch. 127, §403.

Claimant accepted the State’s invitation, together with its rules and regulations, by entering his coin collection in the “Hobby Division” of the State Fair as he had done in prior years. The specific category covering Mr. Brewer’s collection is described as “Antiques and Numismatics, Lot 135.”

Claimant was charged a registration fee of $2.50 as required by the rules. Exhibits such as Mr. Brewer’s were accepted for their educational purposes. In return for the fee paid and for the benefits derived for the fairgoers, the State Fair Agency awarded prizes to various exhibitors if their exhibits merited an award. Persons exhibiting at the fair were thus given the opportunity to have their collection compared with those of others, the publication of their ownership of such collections, and the possible esteem of their fellow citizens and hobby enthusiasts. As the booklet states, the exhibitors "provide the color and taste so vital and such an integral part of a successful fair.”

From the above facts, we find that a contract of bailment was created for the mutual benefit of the parties. The fact that the contract was not expressed in a single written document is immaterial, although such a document might have removed all doubts as to the rights, duties, and obligations of the parties.

Here, those rights and obligations must be governed by the State’s rules and regulations for exhibitors, accepted by the Claimant, interpreted in the light of the following general rule applicable to mutual benefit bailments found in I.L.P. Bailment $14:

In the absence of special contract, where the bailment is for mutual benefit, the bailee [the State] must exercise ordinary care or diligence with respect to the subject matter of the bailment, or, in other words, the State must exercise such care as an ordinarily or reasonably prudent man would take of his own goods of like character under similar circumstances. In determining what constitutes proper care of property by a bailee for mutual benefit, the nature and value of the property, the means of protection possessed by the bailee, the relationship of the parties, and other circumstances must be considered.

Applying the above rule to the case at bar, we believe that the "nature and value” of a coin collection merits a higher degree of care by the bailee than many other types of exhibits having less intrinsic value or, because of their size or weight, are not so likely to be stolen. Moreover, we cannot excuse the bailee on the grounds that it did not possess adequate "means of protection.”

We have previously concluded, from the testimony of Respondent’s agents, that reasonable protection for Claimant’s exhibit was lacking. We must turn then to the rules and regulations if Respondent is to be saved from liability for Claimant’s loss. The pertinent rules are 7 and 13, which read:

7. No responsibility shall be attached to the State of Illinois, State Fair Agency or employees thereof for loss or damage to exhibits or any part thereof.
Every precaution will be used in care of handling of exhibits including continuous police protection.
13. All entries must be removed from building Monday, August 23rd. The State Fair will not be responsible for articles not picked up Monday, August 23rd.

The disclaimer of responsibility in the first part of Rule 7, standing alone, would appear to dispose of this controversy summarily in favor of the Respondent. But it does not stand alone, and such disclaimers of liability in a bailee’s contract must be strictly construed against the bailee. I.L.P. Bailments §13.

The second part of Rule 7 and the implication to be drawn from Rule 13 are not compatible with the disclaimer of liability. The State’s promise of "continuous police protection” and that "every precaution will be used in the care of exhibits” obviously were not fulfilled in Claimant’s case.

The statement in Rule 13 that "the State Fair will not be responsible for articles not picked up Monday, August 23rd,” implies that it would be responsible for loss prior thereto. This implication contradicts the disclaimer of responsibility in Rule 7 and creates an ambiguity in Respondent’s rules.

Even if we could in good conscience find that there is more than one reasonable interpretation of the inconsistent language in question, the doubt must be resolved against the Respondent, since the Respondent prepared the rules and regulations and chose the language. This venerable rule of contract construction, firmly established in Illinois, is restated in I.L.P Contracts §221 as follows:

Words which are ambiguous or of doubtful construction are to be construed most strongly against the party who prepared the contract, for the reason that he chose the language and is responsible for the ambiguities in his own expression.
This rule obtains not only in grants, but extends in principle to all other engagements and undertakings; and in construing reservations or conditions inserted in a contract for the benefit of the party who makes them, where there are clauses which are doubtful or ambiguous, that construction will be adopted which is least favorable to the party making them.

We note, parenthetically, that the State’s promise of "continuous police protection” for exhibits was deleted from its rule book for the following year, 1972, according to the testimony of the manager of the fair.

Based on the above stated "resolve doubts against the draftsman” rule, and upon the preponderance of evidence that Respondent failed in its promise to provide "continuous police protection” for Claimant’s exhibit, we find the Respondent liable for the theft of Claimant’s coin collection over which the State assumed exclusive custody and control and kept the only keys. These facts distinguish the State’s duty in the case at bar from, for example, the duty of a local police department in undertaking to protect private homes within its jurisdiction. Certainly the police are not insurers of such homes nor of the safety of individual citizens.

The facts also distinguish this case from Wall v. Airport Parking Co., 41 Ill.2d 506, holding that a bailment is not created where an automobile is self-parked in a lot and the owner retains the keys. Here the State retained the keys.

We do not believe that the State Fair intended to be, or should be, an insurer of all exhibits. We merely hold that the facts in this particular case justify a finding that the State Fair Agency negligently failed in its assumed obligation to protect Claimant’s coin collection from theft.

The question of determining the exact value of Claimant’s loss is more difficult for the Court than in finding liability. The only witnesses who testified supported Claimant’s Bill of Particulars showing that the value of his lost coins was $3,929.30.

In addition to the testimony of the Claimant and his wife, the claimed value of Claimant’s loss was supported by the testimony of Ronald M. Murphy, a full time coin and art dealer in Springfield, an expert in coin collection, who had exhibited his own coin collections at the State Fair for the last 18 years. Mr. Murphy, a life long resident of Springfield, testified that he was familiar with Claimant’s coin collection, had examined it in prior years, and saw it on display next to his own exhibit at the 1971 fair. Mr. Murphy knew that the Claimant had certain sets of coins in there. Although he didn’t study Claimant’s exhibit coin by coin to know the condition of each individual coin, Mr. Murphy said he would swear that Claimant had each and every one of the sets listed. Mr. Murphy added, "I do know that, from reading the list of items taken, that there was no doubt other items taken that were not on the list.” Claimant left out several rare coins he did not purport to own.

The weakness in Claimant’s evidence as to value of his lost coins is that he did not have an inventory of his collection prior to his loss and had to compile a list of his coins from memory with the aid of his wife. As Chief Justice Perlin said in Giedraitis v. State, 26 Ill.Ct.Cl. 419, 425, "This Court has held that it is fundamental that the burden of proving the element of damages is upon Claimants.” We said in Frega v. State, 22 Ill.Ct.Cl. 399, 400: "The proof required to establish damages must not be remote, speculative, nor uncertain.” We do not interpret these rules to mean that a Claimant is entitled to nothing unless he can prove the amount of his loss down to the exact dollar. Many insureds do not have an inventory of their household contents prior to a fire loss, and their records of purchase may also be lost in the fire. Reputable insurers will honor their claim on the best evidence available, as we must do in the case at bar. In Giedraitis we denied a portion of the claim relating to the value of a boat and its accessories. Claimant had paid $500 for the boat plus a promise of medical services to the seller. Claimant had recovered $500 for loss of the boat from his insurance company but could not remember how much medical service he had since rendered the seller. Obviously, such faulty memory could not be regarded as admissible evidence sufficient to support an additional award.

Fortunately, the Claimant here was very familiar with his coin collection, and his expert witness, Ronald Murphy, a long established coin dealer in Springfield, had a general knowledge of the coins in Claimant’s collection.

Each of Claimant’s lost coins, 199 in all, were listed in his Bill of Particulars with the value of each coin as shown in Claimant’s Exhibit 5, A Guidebook of United States Coins, 25th Edition, 1972, a book which Mr. Murphy had testified was "the bible” of the coin collection hobbyist. Respondent does not dispute the authority of this book, but points out the extreme variance in the listed values of each coin, depending on their condition. The guidebook "bible” lists different values for the same coin under its condition described as "fair, good, very good, fine, very fine, extremely fine, or uncirculated.”

A small group of Claimant’s coins were shown as "uncirculated” or of uncirculated quality. A few were listed as "good” and most were priced as being "very fine” or "extremely fine.” Although the exact condition of each coin was exclusively within Claimant’s knowledge, we believe his evaluations are generally supported by the fact that his collection won three blue ribbons at the 1971 State Fair before his coins were stolen.

We take notice that long experienced coin collectors, as Claimant was, pride themselves on the condition of their coins; that Claimant’s collection exhibited at the State Fair was in competition with other coin collectors throughout the State; and that Claimant’s collection was regarded as best in three categories by the judges at the fair.

While we also know that coin collections tend to increase rather than depreciate in value, we have taken into account that there was some degree of uncertainty in Claimant’s proof of loss based on his memory. He was, as Respondent points out, somewhat confused in his testimony under cross-examination. Considering Claimant’s age, his confusion could be attributed to excitement under the unusual circumstances of a trial. In any event, it is the judgment of this Court that Claimant is entitled to an award in the sum of $3,500, an amount approximately 10% less than the amount claimed, due to the degree of uncertainty we find in his proof of loss.

Claimant is hereby awarded the sum of Three Thousand Five Hundred Dollars ($3,500) for his loss of personal property.


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    (No. 6898
    Savin Business Machines, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 24, 1975.

    Arthur Spiro, Attorney for Claimant.
    William J. Scott, Attorney General; for Respondent.
   Burks, J.

This matter is now before the Court for a ruling on Claimant’s petition for rehearing on the Court’s opinion filed June 5, 1975, in which we denied this claim by a summary judgment. 30 Ill.Ct.Cl. 612. We have carefully considered Claimant’s petition with Respondent’s answer, and Claimant’s further reply filed September 29, 1975.

In Claimant’s well drafted petition and its reply to Respondent’s objections, we fail to find any significant facts or authorities cited that we previously overlooked or misapprehended which would alter the conclusion in our opinion as filed.

Recognizing, as we do, the unfortunate financial loss to the Claimant, it is not within the province of this Court to alter the tax laws of this State, the remedies prescribed by our statutes, nor the interpretations placed upon such statutes by our reviewing courts. The same, of course, is true of any executive officer charged with the duty of assessing and collecting franchise taxes payable by foreign corporations.

The fact that John W. Lewis, Secretary of State, suggested that Claimant file for a refund in this Court, or that Mr. J. Mills of the Secretary’s office advised Claimant of the consequences of failure to pay the franchise tax in the amount erroneously assessed, did not create any new rights or remedies for the Claimant which were not provided by statute. "Everyone is presumed to know the law.” I.L.P. Evidence §24. This rule applies to foreign corporations doing business in a sister state, as our courts have held in numerous cases. Hence, Claimant’s alleged reliance upon instructions received from the office of the Secretary of State can have no legal effect on this claim.

Claimant’s argument that it paid the tax involuntarily and under "legal duress” is without merit, as we pointed out in our opinion analogizing the two cases cited by the Claimant in support of this contention, Snyderman v. Isaacs, 31 Ill.2d 193, and Alton Light & Traction Co. v. Rose, Ill.App. 83, 86.

In both of the above cases cited by the Claimant, the tax refund was denied. In Snyderman the tax had been paid under the 1961 amendments to the Retailers’ Occupation Tax and the Use Tax Act, which were subsequently held invalid. Yet, the taxpayer was denied a refund because the tax erroneously paid was not paid under protest in accordance with the procedure for recovering such tax prescribed in these Acts. Referring to the said proper procedure, our Supreme Court said at page 196:

In these provisions there is recognition of the possibility that the State may be unjustly enriched through the retention of taxes erroneously paid, and a remedy has been provided.

The above statement justifies the State’s retention of the $9,060.53 which it was overpaid on Claimant’s 1970 franchise tax, and was thus "unjustly” enriched by Claimant’s failure to know and follow the legal procedures for obtaining a refund as prescribed by law.

The Alton case on which Claimant relied was decided in 1904, before our "protest statute” first became law in 1911, as we stated in our opinion. Even so, the Court denied a refund, saying at page 85, "The mere fact that a tax was paid unwillingly, or with complaint, is of no legal importance.” The reference in Alton to a notification "equivalent to a reservation of rights” not only fails to apply to the fact before us, but is no longer controlling in the light of existing statutes.

Finally, we are not impressed with the contention that Claimant is being made to suffer by the fault of the Respondent, and due to no fault of the Claimant. It was Claimant’s long delay in filing its 1970 Annual Report, eight months after the statutory deadline, that set in motion the chain of events which resulted in Claimant’s overpayment of taxes. Even then, the statute provided a remedy which Claimant failed to follow.

For the reasons stated above and in our prior opinion, Claimant’s petition for rehearing is denied and this claim is dismissed.


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    (No. 7015
    J. T. Blankenship and Associates, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 22, 1975.

    Hoult, House, Demoss & Johnson, by Jerry B. Smith, Attorneys for Claimant.
    William J. Scott, Attorney General; Howard W. Feldman, Assistant Attorney General, for Respondent.
   Perlin, C. J.

This is an action to recover the sum of $14,250.00 for engineering services performed by Claimant in connection with several construction contracts at the Giant City State Park.

The facts are not in dispute. On August 8, 1968, Claimant entered into an engineering services agreement with the Department of Conservation of the State of Illinois. Under the terms of that contract, Claimant was to provide engineering services required for the construction of water mains, pumping stations and an elevated storage facility serving the Giant City State Park. The pertinent provisions of the contract are as follows:

Compensation of Associate Engineer:
It is agreed that our commission shall be based either upon 5% of an estimated cost of $255,278.00, which is $12,762.00, or 5 % of the actual cost of construction, whichever is lesser. It is agreed that the Supervising Architect be given a revised final estimate upon completion of drawings and specifications and prior to advertising for bids. If this estimate is greater than the original estimate, the associate fee will be adjusted as approved by the Supervising Architect and paid on the basis of the foregoing percentage applied to this approved revised estimate, or to the actual cost of construction, whichever is the lesser.
Special Duties of Associate Engineers:
In addition to the services above to be compensated for as a percentage of the construction cost, we as associate agree to provide such additional services, as may be needed or required and/or requested by the Supervising Architect on a cost reimbursable basis (reimbursable expense over base fee). .. . These services shall include as necessary for design, detailed surveys, subsurface explorations and soil investigations, aerial photography, full-time resident supervision, and construction layout work ... In the event that full-time resident supervision and/or construction layout work shall be required, this work shall be handled under a separate contract.
Payment for Special Duties:
The total fees for Special Duties outlined above shall not exceed $7650.00, provided that if it appears, after the services have begun, the cost of needed special duties will be greater than the sum specified, we will not proceed with services costing more than this sum without approval of the Supervising Architect.

Subsequent to the execution of this agreement, the Department of Conservation acquired a tract of property adjoining the park, on which Claimant was asked to provide additional water lines. Various other changes were ordered in the scope and nature of the work, including the addition of an observation deck under the elevated storage facility. In addition, Claimant was requested by the Department of Conservation to provide full-time resident supervision services under the "Special Duties” provision of the contract.

At a pre-construction conference held on August 7, 1970, it was orally agreed between Claimant and representatives of Respondent that Claimant would receive additional compensation for these additional services either through change orders or additional contracts. However, Respondent never prepared additional contracts as promised, and no change orders of sufficient magnitude to cover the additional costs were ever processed.

Due to the foregoing changes the total construction cost of the project was $343,220.00, and Claimant’s fee for engineering services was $31,338.06.

Claimant has been paid the sum of $17,087.26, and claims a balance due of $14,250.80. Of this sum, $7,356.10 is a charge for resident engineering supervision services. Bills for the balance were presented to the Respondent on June 13, 1972, and again on October 17, 1972, but were not paid.

Funds for this project were appropriated to the Department of Conservation in a lump sum, and all have been expended except the sum of $4,850.00, which lapsed on September 1, 1972.

John Blankenship, the Senior Partner in the firm of J. T. Blankenship and Associates, testified that following the pre-construction conference on August 7, 1970, he made several requests of Russell Brotherson of the Supervising Architect’s Office for a separate contract to cover his duties and compensation under the Special Duties section of the original contract, but that no new contract was ever submitted to his firm.

Roy Geiselman, an employee of the Department of Conservation of the State of Illinois, testified that it had always been the intent of the Department of Conservation and the Office of the Supervising Architect that Claimant be paid for the services provided. Geiselman further stated that the work performed by Claimant was satisfactory, and that the charges therefor were proper and reasonable in all respects.

Geiselman said that it was not the fault of the Claimant that a change order was never processed. He said that the Office of the Supervising Architect "possibly could have been delinquent in processing the change order.” Russell Brotherson agreed that delay in the Office of the Supervising Architect resulted in change orders not being processed. Brotherson further indicated that had change orders been processed in a timely manner, monies to pay for the change orders could have been released from the general fund for the project, through "shifting around” of the funds.

It thus appears that Claimant performed substantial services for Respondent not contemplated in the original contract between the parties, for which Claimant has not been paid because the Office of the Supervising Architect neglected to promptly process change orders, and to supply Claimant with an additional contract as called for in the original contract. All but the sum of $4,850 of the original appropriation for the project has been expended, and the balance of the appropriation has since lapsed.

The issues thus raised is whether, where an appropriation for a project has lapsed and funds in excess of the amount of the lapsed appropriation are owed for services properly performed on the project, an award may be made against the State in excess of the lapsed appropriation.

Respondent does not contest an award to Claimant of $4,850.00, the lapsed unexpended portion of the appropriation, but argues that the State is without authority to pay the balance of the claim as the full appropriation has been expended. Respondent contends that the evidence shows that had appropriate change orders or an additional contract been properly processed by the Office of the Supervising Architect, the full fee claimed could have been paid before the funds were expended for other purposes.

The Illinois Constitution of 1970, as did its predecessors, vests the power to authorize the expenditure of State funds exclusively in the General Assembly. Article 8, Section 2, provides:

The General Assembly by law shall make appropriations for all expenditures of public funds by the State .. . appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.

Further, Ill.Rev.Stat., Ch. 127, §166, states:

No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.

These constitutional and statutory provisions are designed to protect the State Treasury from unreviewable expenses. It is clear that the Court of Claims is without authority to make an award in violation of the foregoing constitutional and statutory provisions. In Fergus v. Russell, 277 Ill. 20, 25, the Supreme Court said:

The Court of Claims is a statutory body not provided for in the Constitution, and its action can have no effect upon the power of the legislature to pay claims against the State. If the legislature has no such power in any case, favorable action by the Court of Claims would not give the legislature power to pay such claim by making appropriations therefor. If it has the power to pay claims, it cannot be deprived of it by unfavorable action on such claims by the Court of Claims. The power or lack of power to appropriate money to pay claims depends upon the Constitution and not upon the action of the Court of Claims.

We have thus consistently denied claims for monies due from the State which are in excess of funds appropriated for the project. Schutte and Koerting Co., et al., v. State, Ill.Ct.Cl. 591, 621-2, and cases cited therein. The only exception whereby a contract exceeding an appropriation may be valid is where it is expressly authorized by law, as where authorities in charge of a penitentiary are required by law to feed, clothe and guard prisoners. Fergus v. Brady, 115 N.E. 393, 396. This is clearly not the situation before the Court.

Claimant has referred the Court to numerous cases wherein we have made awards where appropriations have lapsed, but in no case cited did the claim exceed the unexpended portion of the appropriation.

Were the Court to enter an award in the full amount of Claimant’s claim, it would be usurping the exclusive power of the Legislature to determine the limits on the amounts of public funds which can be expended.

The Court is without power to make an award in excess of $4,850.00, the unexpended, lapsed portion of the appropriation. As we have heretofore stated, only an act of the legislature could grant Claimant’s claim in its entirety.

Claimant is hereby awarded the sum of Four Thousand Eight Hundred Fifty Dollars ($4,850.00).


text:
    (No. 73-142
    Bernard J. Wessel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 4, 1975.

    Paul M. Storment, Jr., Attorney for Claimant.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

Claimant seeks recovery for personal injuries he allegedly suffered as a result of an accident on January 2, 1973, while he was operating a motor vehicle in a southwesterly direction between Belleville and Millstadt on Illinois Highway 158.

It is Claimant’s contention that he struck a patch of ice which caused his car to go out of control and roll down an embankment into a small valley, causing him to sustain serious and permanent injuries.

Claimant alleges that the State, which had control over State Highway 158, allowed ice to accumulate on said highway, causing the condition that resulted in the accident.

Claimant further alleges that the State failed to maintain, clear off, salt, throw cinders, and to remove said ice from the highway and that, as a result thereof, the accident occurred.

Claimant further alleges that this condition had existed for a long time due to the fact that the highway was lower than the surrounding embankment and that water and ice constantly accumulated on said pavement.

Before the Claimant can recover, he must establish: (1) that the State was negligent in the operation of the highway; (2) that Claimant was free from contributory negligence and did not contribute to the accident; and (3) that the negligence of the State was the proximate cause of the accident.

The record is clear that for a considerable period of time at the area in question there was an ice accumulation caused by the highway being constructed lower than the surrounding land and that rain or melting snow flowed off and down an embankment and onto the highway, causing ice to form as evening approached.

An engineer for the State testified that a few hours before the accident, he drove by the scene of the accident, noticed the highway was wet with water running across the highway, but there was not ice formed at that time since it was still afternoon and the weather not yet at the freezing stage. The same engineer testified that he had observed the same icy condition over the past few years and, since it was under his jurisdiction, he usually ordered salt put on the area, but not warning signs or devices, which in this instance were installed after the accident.

It is interesting to note that after the accident, the highway department also excavated the side of the hill next to the scene of the accident by digging a drainage ditch to keep any further water from going onto the highway and freezing.

It is abundantly clear from the testimony of the employees of the Respondent that a dangerous condition did exist at the scene of the accident, and that Respondent should have known that it constituted a hazard for the travelling public.

The position of the Claimant is further strengthened by the testimony of State Trooper Richard W. Kohler who stated that on the day prior to the accident he had noticed water and ice accumulation on the highway at the bottom of the embankment where the accident occurred and reported this to the Highway Department as a hazardous condition. He further testified he saw a patch of ice on the pavement in the same place on the night of the accident and stated that the accumulation was caused by water running down an adjacent hillside. He also testified that he noticed a patch of ice prior to the accident on the evening Claimant was injured, and that on the previous evening when he noticed the situation, he put out flares, but on the night of the accident, he did not do this.

The Respondent raises the question as to whether or not there was contributory negligence, and uses as the basis for its argument that the car of Claimant went a very considerable distance over the embankment before it struck anything. It is the State’s contention that Claimant was driving at such a high rate of speed that when he struck the ice and lost control of his car, the excessive speed, and not the ice, was the cause of the accident in question.

There is not any other evidence tending to support the position of Respondent that the Claimant was guilty of contributory negligence.

The evidence indicates that after the Claimant struck the ice, he travelled for a distance of 80 to 90 feet and then went over the embankment. Claimant’s testimony was that he was travelling between 45 and 50 miles per hour and that he had seen no ice on the highway between Belleville and the place where the accident occurred and, that being the case, he did not expect any ice.

This Court, in the case of Clifton W. Burgener, Adm. of the Estate of Myra J. Burgener v. State of Illinois, 25 Ill.Ct.Cl. 6, passed upon a situation nearly identical with the present case. In that case, the evidence indicated that the State had knowledge of an area that tended to accumulate ice and that, in fact, the Respondent had known of several accidents the previous night. The evidence in that case further showed there were not any signs erected to warn the travelling public. In the opinion in that case, in discussing the liability of the State, the following was cited:

While the State is not liable for injuries from the natural accumulation of ice and snow Levy vs. State of Illinois, 22 Ill.Ct.Cl. 694, it may be held liable for failure to warn the travelling public of the dangerous condition of a highway caused by an unusual accumulation of ice, where it has had notice of such condition. (Bovey, et al. vs. State of Illinois, 22 Ill.Ct.CL 95.)

This Court has repeatedly held that it is the duty of the State to warn motorists using public highways, to exercise ordinary care to keep them reasonably safe for such use, and to warn of unsafe conditions. Rickelman vs. State of Illinois, 19 Ill.Ct.Cl. 54.

This Court has also held the following:

The State is not an insurer against all accidents upon its highways but is required only to keep them in a reasonably safe condition for the purpose to which the portion in question is devoted, and the placing of adequate signs warning of the conditions to be met fulfills the obligations of the State to the users of the highways. Donald Emm and John Vanda vs. State of Illinois, 25 Ill.Ct.Cl. 213.

In the present case, it is clear that the State did have knowledge of this situation and that such knowledge had existed for a considerable period of time. Despite the fact, warning signs had not been placed to warn the travelling public, and even though salt and cinders had been spread which did not remedy the situation, the State was responsible.

It is the opinion of this Court that the Claimant was in the exercise of ordinary care and was not guilty of contributory negligence.

It appears from the record that the Claimant was obligated to spend $375.00 for the hospital bill, $96.00 for the doctor’s bill, and $10.00 for the ambulance bill. Claimant also makes a claim for lost wages in the amount of $1,600.00 although there is evidence to the effect that he was discharged by his physician several weeks prior to the time he went back to work.

We believe an award of $800.00 for lost wages, $2500.00 for pain and suffering, and $1500.00 for permanent scars is a just and fair award, along with the amounts set forth above for the hospital bill, doctor’s bill and ambulance bill.

Claimant is hereby awarded the sum of Five Thousand Two Hundred Eighty-One Dollars ($5,281.00).


text:
    (No. 74-194
    Lawrence Stone, Claimant, vs. State of Illinois, Illinois Junior College Board, Respondent.

      Opinion filed September 22, 1975.

    STATE EMPLOYEES’ BACK SALARY

      Renewal of contract of employment

   Burks, J.

This matter is now before the Court for a ruling on Respondent’s motion for a summary judgment. As prologue to our ruling, we briefly summarize the facts as follows:

This claim is based on an alleged breach of a contract of employment.

The alleged contract consisted of a letter dated October 29, 1971, from Respondent’s Executive Secretary notifying the Claimant that "the Illinois Junior College Board at its meeting on October 15 authorized your appointment to a position on the staff of the Illinois Junior College Board at an annual salary rate of $20,000.” The said letter of appointment consisted of two paragraphs; it stated that he could use the title of "Construction Engineer.” It made no reference to any specific term or period of Claimant’s employment.

Respondent’s letter dated September 19, 1972, confirming earlier discussions with the Claimant in July and August, notified the Claimant that his position and employment would be terminated as of October 1; that arrangements had been made to keep him on the payroll of a different agency, the Capital Development Board, through the month of October; that Claimant should take the leave time he had coming during the remainder of September; and that the I.J.C. Board would not have any funds left in its budget after October 1 to pay Claimant any salary or leave time.

On November 1, 1973, 13 months after Claimant’s termination, Claimant filed his complaint in the Court. It states that after the date his employment was terminated, Respondent failed to pay Claimant any salary and alleges that this was contrary to his "annual salary agreement.” The complaint seeks $21,945 for salary allegedly due and $1,771 for 23 days of accumulated leave allegedly due him.

Respondent’s answer admitted hiring the Claimant for a period from October 21, 1971, through September 30, 1972, but denied that the Claimant is liable for more than a one year contractual relationship. As an affirmative defense, Respondent contends there is no expectancy of reemployment after the expiration of a one year contract.

On May 13, 1975, Respondent filed a motion for summary judgment with supporting affidavits pursuant to §56 of the Civil Practice Act, and its Memorandum of Law in support of said motion was filed June 3.

On May 19, 1975, Claimant filed objections to Respondent’s motion, stating that "there are substantial questions of fact to be resolved through trial” without any suggestion as to what the issues of fact might be. Claimant’s previous reply to Respondent’s affirmative defense, denying that his employment was only for a period of one year, raises a question for legal interpretation and not a question of fact. Claimant indicated his intention to file a Memorandum of Law within 21 days after receipt of Respondent’s memorandum, but no such document nor counter-affidavits have been filed by Claimant.

We find from the pleadings, affidavits, and admissions on file that the only issues in this cause are questions of law. Moreover, since Claimant has filed no counter-affidavits, we must be guided by the following rule stated in Leon v. Miller, 23 Ill.App.3d 694, 699:

Where properly alleged facts in affidavits in support of motion for summary judgment are not contradicted by counter-affidavits, facts so averted must be taken as true, notwithstanding existence of contrary averments in pleadings of adverse party which purport to raise issues of fact.

Claimant’s assumption that his employment was for a term of more than one year, in the absence of any statement in the contract to that effect, is without merit. The words in his letter of appointment, "at an annual salary rate of $20,000,” means the rate of payment and not a contract for a fixed term. It was certainly not a tenure for life or during good behavior.

Claimant understood that he was just employed for a term of one year according to the following admission of his attorney in a letter to the Respondent dated November 1, 1972:

Mr. Stone was employed by the Board for one year from approximately the middle of September, 1971 to September 30, 1972.

Such admission of fact by Claimant’s attorney is admissible against his client, I.L.P. Evidence Attorneys, §175.

The U.S. Supreme Court struck down the right of expectancy of renewal of a contract of employment, stating that the Claimant "was not constitutionally entitled to a statement of reason or to a hearing on the decision not to rehire him.” Roth v. Board of Regents of State Colleges, 408 U.S. 564, 33 L.Ed.2d 548.

Claimant does not deny that he was properly paid for a full year’s service, nor that he was not properly advised by the Respondent to take his accumulated leave time off before his employment pay period terminated.

Respondent’s motion for a summary judgment is hereby granted, and this claim is denied and dismissed.


text:
    (No. 74-216
    Illinois Belli & Belli Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed October 9, 1975.

   Holderman, J.

Claimant, Illinois Belli & Belli Company, is a corporation engaged in architectural design and engineering. On January 6, 1971, after successful bidding, it entered into a contract with the Department of General Services for professional architectural and engineering services for the Mental Retardation Facility in Waukegan, Illinois.

On April 15, 1971, Claimant entered into a supplementary agreement, this time with the Department of Mental Health, under which agreement Claimant agreed to prepare for the Department’s inspection and approval, design drawings and specifications for the Mental Retardation Facility at Waukegan which would detail each item of furniture and furnishings, assignments by item number, completely unit priced, with specifications providing for delivery, uncrating and set-up in place within the Facility and including supervision of the services. This agreement provided further that the Claimant would solicit and take bids on all items of furniture, which bids could be accepted or rejected by the Department. The Claimant was to be paid not to exceed $50,000 or 5% of the actual cost of the furnishings whichever was less. Claimant was to be paid as the work progressed. On June 4, 1971, Claimant forwarded a voucher to the Department based on completion of 25% of the work. The voucher was in the sum of $12,500 and was paid by the State. Later, on September 14, 1971, a voucher was sent for another payment. Claimant had then arrived at 50% completion stage. This voucher was never paid, nor has any other amount been paid to the Claimant under this second contract.

There is no claim being made here under the original contract, just under the subsequent contract covering the furnishings with the Department of Mental Health.

After the second contract was entered into, the Department of Mental Health advised the Claimant that solicitation of bids would be taken over by the Department of General Services, and this amendment to the contract was acceptable by the Claimant. The Department of Mental Health had requested and obtained from Attorney General an opinion which stated that the contract sued hereunder was illegal.

Since the Claimant did not have to solicit bids, it did not have to perform fully under the contract. It alleges, however, that all other work other than processing the bidding was performed by it. It contends that 90% of the original work contracted for has been completed. It therefore makes claim here for the sum of $32,500, being the balance of the contract, based on a 90% completion of the work originally contracted for.

The Respondent denies any liability on the grounds that there was no competitive bidding in the first instance and that the "purported” contract between Claimant and the Department of Mental Health was an improper delegation of authority. The State contends that the contract was illegal because it violated the State Purchasing Act which provides for competitive bidding. Claimant takes the position that this second contract was an off-shoot of the original architectural contract, that this contract was for professional services, and, as such, was an exception under the Purchasing Act. See Ill.Rev.Stat., Ch. 127, $132.6(a)(2).

No evidence was taken but the parties entered into a stipulation of facts. Further, the deposition of Edo J. Belli, President of Claimant corporation, taken September 16, 1974, was attached to the stipulation and incorporated by reference as part of the stipulation.

It appears from the whole record that Claimant had met often with members of the Department of General Services, the Department of Mental Health, State Architect, and attorneys for said Departments. It further appears that the modification of the contract, eliminating the taking of bids, was undertaken with the agreement of said Departments. There was no question in the record that the services were not satisfactory. It further appears from the record that 90% of the contract was properly performed..

It is the Court’s opinion that the contract between the Claimant and the Department of Mental Health was a contract for professional services and, therefore, was not required to be put out for bids under Ill.Rev.Stat., Ch. 127,§132.6.

Claimant is awarded Thirty-Two Thousand Five Hundred Dollars ($32,500).