text:
    (No. 3089
    Patrick H. Dignan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1939.

    N. Terry and Hovey & Ely, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollebich

delivered the opinion of the court:

Claimant filed his complaint herein, on April 2, 1937, and alleges therein in substance that he is the owner in fee of a tract of vacant and unimproved land containing 44.5 acres located in Section 7, Township 37, North Range 13 East of the Third Principal Meridian, in the Town of Worth, in the County of Cook and State of Illinois; that said tract is bounded on the north by 99th Street, on the east by Ridge-land Avenue, and abuts- the right-of-way of the Chicago Terminal Railway Co. on the southwest, and is traversed by a public highway known as the Southwest Highway, which is 100 feet in width and traverses the southeast portion of said property for a distance of approximately 825 feet; that on or about August 18th, 1930 the County of Cook entered into a contract with one James P. O’Keefe, whereby said Southwest Highway was to be extended to traverse the land of the claimant at grade level; that on November 23d, 1931, said County of Cook filed a condemnation proceeding in the Superior Court of Cook County to condemn a right-of-way for a public highway (said Southwest Highway) through claimant’s land; that thereafter, to wit, on October 15th, 1932, claimant accepted the sum of $6,791.10 “in full payment from the County of Cook for any compensation or award due to him under the aforesaid condemnation suit;” that said sum was accepted by claimant, “based on the plans, surveys and proposals of the County of Cook and its existing contract with James P. O’Keefe as aforesaid that the said highway would cross and traverse the land of the plaintiff at grade level;” that thereby the County of Cook acquired the right-of-way across the land of the claimant to construct a grade level highway; that said suit was dismissed on January 16th, 1933; that on March 1st, 1934 the Illinois Commerce Commission entered an order allowing the County of Cook to construct an over-crossing for the Southwest Highway, said over-crossing to be a 27-span structure having a roadway width of 44 feet, with a sidewalk width of five feet on the easterly side thereof, said over-crossing to traverse the property of the claimant for a length of 825 feet, more or less; that on or about March 1st, 1934 the respondent started the construction of the over-crossing and highway across the land of the claimant and completed same in October, 1934; that by reason of the construction of such over-crossing over the land of the claimant, his land has been divided, and direct access to said land from the Southwest Highway has been cut off, and his property has been damaged to the extent of $100,000.00, in violation of his constitutional rights.

Testimony was taken on behalf of the claimant. The claimant and one Harry L. Emerson were permitted to testify as to their respective understanding of certain court proceedings, contracts, etc., pursuant to a stipulation that claimant would thereafter produce certified photostatic copies of such documents.

Claimant having failed to produce the same in accordance with the stipulation, a rule was entered herein on the 1.4th day of February, A. D. 1939, requiring him to produce the same within twenty days thereafter. Upon his failure to comply with the rule, all testimony of the claimant and of Harry L. Emerson relative to the contents of the documents embraced in the aforementioned stipulation, was stricken from the record.

Upon the close of claimant’s case, the Attorney General moved to dismiss, the case upon the following grounds:

1. The acceptance by claimant of the sum of $6,791.10 under the facts in the record constituted a release of any and all claims for compensation for land taken, as well as for land damaged but not taken.

2. Even if claimant were entitled to damages, there is no competent evidence in the record to establish the same.

The case now comes before the court for consideration upon that part of the testimony offered on the part of the claimant which remains in the record, the report of the Division of Highways, copy of which was forwarded by respondent to claimant pursuant to the rules of this court; and the motion of the respondent to dismiss the case.

Claimant takes the position that the sum of $6,791.10 so paid to him by the County of Cook as aforesaid, was accepted by him with the understanding that the highway in question would cross his land at grade level and not by way of an over-crossing; and that the plans for the construction of the improvement pursuant to which he was paid the sum of $6,791.10 provided for a grade crossing.

The law applicable to cases of this kind is set forth in the case of Otis Elevator Co. vs. City of Chicago, 263 Ill. 419, as follows:

“In a condemnation proceeding the law permits the petitioner to exhibit its plans for the construction of the improvement, and the damages are assessed on the basis that the plans will be carried out, and only such damáge will accrue to adjoining lands as will result from the construction of the improvement according to the plans. If, after such an assessment, there is a change affecting the adjoining lands more unfavorably and depreciating their market value, there is a right of action for the increased damage and the measure is the additional injury caused by the alteration.”

It is admitted that the highway was actually constructed as an over-crossing*, consequently it devolved upon claimant to show that the plans for the improvement in accordance with which he was compensated, provided for a grade level highway. The best evidence of such facts was the original plans. If such plans, or properly authenticated copies thereof, could not be obtained, secondary evidence of the contents thereof should have been offered. However, claimant not only failed to produce the original plans or properly authenticated copies thereof, but also failed to produce any competent secondary evidence of the contents of the same. He testified personally as to such plans, and produced the testimony of another witness with reference thereto, .upon an agreement with opposing counsel to produce the original documents later. The original documents, however, were not produced, and the verbal testimony relative thereto’ was stricken from the record.

The report of the Division of Highways, copy of which was forwarded to claimant, and which under Bule 21 of this court is prima facie evidence of the facts set forth therein, contains, among other things, the following:

“The settlement Mr. Dignan made with the county mentioned in paragraph 7 was a settlement for land taken and release of damage to land not taken to build the Southwest Highway over the Belt Railroad on the southeasterly line of the Dignan property.”

There' was included in such report of the Division of Highways as a part thereof, a portion of an appraisal of claimant’s property prepared by Barrett Bros, showing, among other things, the following* items:

VALUATION
Land (exclusive of improvements) 1.676 acres @ $1,200.00
per acre .............................................$2,011.20
Improvements ............................................ None
Consequential Damages ................................... None
Damages to remainder (see remarks)..................... 4,785.90
Total ................................................$6,797.10
In our opinion ti,ie highest and best use of the unit of land containing 44.54 acres, of which the tract to be acquired for highway is now a part, is for utilization for industrial purposes. The proposed highway which will intersect this unit of 44.54 acres of'land will leave approximately 9.946 acres lying on the southeasterly side of the new highway. The construction of a bridge over this portion of the area to be acquired for highway will, in our opinion, interfere with the light and uir of any industrial building to be constructed within the area of 50 feet on either side of the proposed highway. The amount which we have allowed in this appraisal as damages to the remainder in the sum of $4,785.90, due to the taking of the above tract for highway purposes and the construction of a bridge on this area to be acquired, was derived as follows:
(1) Valuation of a 50 ft. strip of land on each side of the Proposed Highway extending from Ridgeland Avenue to the railroad right of way, a total of 1.690 acres @ $1,200.00 per acre.............$2,028.00
(2) The proposed highway will isolate approximately 9.946 acres lying southeasterly of the new highway. Of this 9.946 acres, we have allowed 100% damage to the first 50 ft. abutting on the new highway on the southeast, which is equivalent to 0.753 acres. Deducting 0.753 acres from 9.946 acres leaves an area remaining of 9.193 acres. In our opinion this remaining area of 9.193 acres will be damaged to the extent of 25% of its valuation. The total valuation of this area of 9.193 acres at $1,200.00 per acre makes a total sum of $11,031.60 — 25% of this amount equals $2,757.90. .$2,757.90
Total Damage ...........................................$4,785.90

The aforementioned report of the Division of Highways contains the further statement:

“Mr. Dignan was shown this appraisal at the time he dedicated the right of way and waived any damage that might be caused to his property by the construction of this road.”

The aforementioned report of the Division of Highways also has attached thereto a blue print which purports to show the following dedication over the signature of the claimant, to wit:

“We the undersigned being the owners of premises described in the caption hereon and shown as public highway on the plat hereon drawn, hereby grant to the public a perpetual easement over same for use for highway purposes and hereby forever release any and all claims for damages sustained by us or either of us by reason of the opening, improving and using of said premises for highway purposes.”

It is true that claimant stated that he did not sign such dedication, and that the signature thereto purporting to be his signature is a forgery, but there is no evidence in the record to corroborate his testimony. The execution of the dedication appears to be duly acknowledged before a Notary Public and the same has. been duly recorded.

Our Supreme Court has held in numerous cases that where a deed has been acknowledged and contains the certificate of an officer authorized by law to take acknowledgments, the certificate of the officer showing that the deed was executed and acknowledged by the grantor, cannot be overcome or impeached by the testimony of the grantor alone. Jaworski vs. Sujewicz, 334 Ill. 19; Holmes vs. First Union Tr. & Svg. Bank, 362 Ill. 44; Dombro vs. Hugo, 370 Ill. 381.

Furthermore, there is other evidence in the record to indicate that the signature in question is the. genuine signature of the claimant.

The evidence in the record fails to establish the right of the claimant to an award, and the motion of the Attorney General must therefore be sustained.

In the view we take of the case, it becomes unnecessary to consider the second point raised by the Attorney General.

The motion of the Attorney General to dismiss is allowed. Case dismissed.


source: Caselaw Access Project

author: Me. Chief Justice Hollebioh

license: Public Domain

text:
    (No. 3331
    A. L. Potts, M. D., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 9, 1939.

    Claimant, pro se.
    John E. Cassidy, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Me. Chief Justice Hollebioh

delivered the opinion of the court:

The claimant, A. L. Potts, M. D., who is a practicing physician and surgeon residing at Gibson City, Illinois, filed his complaint herein on November 16th, 1938, and therein asks for an award of $97.00 for medical and surgical services rendered between December 26, 1934 and June 21, 1935, to one Louis F. Thompson, maintenance patrolman for the Division of Highways of the respondent.

It appears from the report of the Division of Highways filed herein on March 18th, 1939, that on December 26th, 1934 Thompson sustained accidental injuries which arose out of and in the course of his employment; that he was removed to Paxton Community Hospital at Paxton, Illinois, for treatment; that he was attended by the claimant while at the hospital, and thereafter at his home; that the services rendered by the claimant were authorized by the District Engineer of the respondent; that on August 1, 1935 claimant submitted a bill for his services in the amount of $84.00; that same was returned with the request that the charge of $50.00 for an operation on December 26,1934 be reduced, and that no reply was made to such request.

On November 16th, 1938 claimant filed his complaint herein, and on March 23d, 1939 he filed a voluntary reduction of his claim and agreed to accept the sum of $75.00 in full settlement thereof. Settlement for such amount has been approved by the Examining Committee of the Department of Finance which passes upon the reasonableness of fees in claims of this kind.

It is admitted that the services in question were authorized by the proper authorities of the respondent; that they were rendered as claimed, and that they are reasonably worth the sum of $75.00.

There was no unreasonable delay in filing the claim, and there is no reason why the claim should not be allowed.

An award is therefore entered in favor of the claimant for the sum of Seventy-five Dollars ($75.00).


author: Mr. Chief Justice Hollerich

text:
    (No. 3109
    George F. Kramer and Louise Kramer, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1939.

    J. E. Bairstow, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

In May, 1927, claimants purchased a tract of land within the corporate limits of the Village of Fox Lake, having a frontage of 220 feet on the public highway which is now known as S. B. I. Route No. 60, and extending westerly to Pistakee Lake a distance varying from ninety (90) feet at the north end to One Hundred Thirty (130) feet at the south end of the property. Such tract is located about two blocks from the railway station and the main business block in Fox Lake, and at the time of the purchase thereof by claimants, and continuously since that time, has been used for the purposes of a boathouse and boat works.

The land is situated on what is known as the Chain of Lakes, which furnishes a waterway from Wilmot, Wisconsin, to McHenry, Illinois, by way of the Fox Biver from Wilmot, through Long Lake, Petite Lake, Bluff Lake, Lake Catherine, Channel Lake, Lake Marie, Grass Lake, Fox Lake, Nipper-sink Lake, Pistakee Lake, Pistakee Bay, and Fox Biver, as far as the dam below McHenry.

On account of its location, claimants’ property is peculiarly suited to boat works and boat house purposes, and is one of the four pieces of property in that vicinity which has a frontage on both the State highway and the lake. S. B. I. Boute No. 60 is the only hard-surfaced highway connecting that entire lake district.

The use of motor boats in the vicinity of Fox Lake and the Chain of Lakes region has increased very materially since claimants purchased said property. Although the population in the immediate vicinity of Fox Lake is normally about 1,000, it is increased to 18,000 or 20,000 during the summer season.

Claimants paid $20,000.00 for the property, which at that time had several buildings thereon. In the fall of the year in which the property was purchased, claimants constructed another building thereon, at a cost of approximately $3,000.00, constructed a retaining wall at a cost of $600.00, and installed certain machinery at a further cost of $1,000.00 to $1,200.00. The land is now improved by the following buildings, to wit: the North Building, which is a metal building 89.5 feet by 56 feet; — adjoining such building on the south is a covered shed 55 feet by 23 feet, and immediately south of such covered shed is a metal building 55 feet by 32 feet. A short distance south of the latter building is a concrete building, the main portion of which is 90.5 feet by 48.2 feet, with an extension on the south approximately 27 feet by 29 feet. At the southeast corner of such concrete building is a small frame building 24.3 feet by 20.3 feet.

The large concrete building has a concrete floor; the small frame building has a wooden floor, and the other buildings have no floors. The two large buildings, to wit, the most northerly building and the most southerly building, are located practically on the west right-of-way line of S. B. I. Boute No. 60.

Claimants’ property is bounded on the north by other private property, on the east by S. B. I. Boute No. 60, on the south by the channel connecting Pistakee Lake with Nipper-sink Lake, and on the west by Pistakee Lake.

One of the witnesses for the respondent stated that claimants’ property is the finest boat works property on the whole Chain of Lakes; that there isn’t anything to compare with it, situated as it is at the gateway to the lakes and to the channel.

Prior to the month of January, 1935, the highway which is now known as S. B. I. Route No. 60 was a gravel-surfaced road, and was on substantially the same level as the property of the claimants, the north property line being practically level with the roadway, and the south property line being about eighteen (18) inches below the level of such roadway.

Prior to said date (January, 1935) claimants maintained a filling station adjoining their south building, but within the limits of such highway, and also used for storage purposes the portion of such highway adjoining their buildings, which was not used by the public for travel.

In the month of January, 1935, the respondent commenced the construction of a new bridge across the aforementioned channel connecting Pistakee Lake with Nippersink Lake, the elevation of which bridge was considerably higher than that of the old bridge, and therefore necessitated the raising of said State highway above its previous level. The work of construction was commenced on January 21,1935, and completed on June 24th of the same year. The entire improvement consisted of a concrete bridge and a concrete pavement forty (40) feet in width, extending in both directions from such bridge.

A comparison of the elevation of the present concrete highway with that of the original highway shows that at the north line of claimants ’ property the concrete highway is five (5) feet above the level of the original highway; at a point One Hundred (100) feet south of the north line of the property, the concrete highway is six (6) feet above the level of the-original highway, and at claimants’ south property line the concrete highway is about four and one-half (4%) to five (5) feet above the level of the original highway.

In constructing the hard-surfaced roadway, the center line thereof was moved approximately twenty (20) feet closer to the claimants’ property than it previously had been. By reason of the elevation of the bridge and highway, it has become impossible to pass directly from the highway to claimants ’ property, and in order to afford a means of access thereto, a ramp was constructed immediately adjoining claimants’ east property line and within the highway right-of-way, so that the only means of access to claimants’ property by vehicle is from the north and extending in a southerly direction along the east side of claimants’ buildings. A set of concrete steps has been constructed at the north end of the bridge, thereby affording access from claimants’ property to the sidewalk across the bridge.

Claimants’ property was used as a boathouse and boat-works for many years prior to the time they purchased the same, and it is conceded that its use for such purposes is the highest and best use to which the property was and is adaptable. Prior to the elevation of the roadway, the door to the most southerly building was on the east side of the building, adjoining the highway, and an overhead hoist had been constructed in the rear of the building. A large number of boats were launched from claimants’ property, being transported thereto by truck or trailer. It was possible to back the trucks directly from the highway into the building, and under the hoist. The boats were then attached to the hoist and conveyed directly from the truck to the Lake. The elevation of the highway has made this procedure impossible. Claimants were required to change the entrance to their building from the east to the north side thereof, and although it is still possible to use the building, the means of access thereto is much less convenient than it previously was, and there is also considerable difficulty in the use of the aforementioned hoist.

Instead of backing directly from the highway into the east door of claimants ’ building, as heretofore, it is now necessary to proceed to the north end of the property, then down the ramp to claimants’ most southerly building, enter the same from the north, and get'under the hoist in the best manner possible under the circumstances.

The evidence also shows that on account of the change in the entrance to the south building, claimants were deprived of the use of a certain amount of space within the building, and also between the south building and the adjoining building, which had theretofore been used for storage purposes.

Prior to the elevation of the highway, claimants had not been bothered in any way by water in their buildings. Since the elevation of the highway, and particularly during wet seasons, surface water from the highway comes down the ramp, and also over the shoulder of the highway, onto claimants’ property and into their buildings, causing considerable difficulty, particularly in those buildings which have no floors. There was also evidence to the effect that the presence of water in the buildings caused the rusting of metal parts.

The improvement in question was confined within the limits of the pre-existing highway, and none of claimants’ property was taken in the making of the improvement. Claimants contend, however, that their property has been damaged for public use, and that under the provisions of Section 13 of Article II of the Constitution, they are entitled to just compensation therefor.

Where private property is not taken but is damaged for public use, the property owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such case is the difference between the fair cash market value of the property unaffected by the improvement, and its fair cash market value as affected by it. Dept. of Public Works vs. McBride, 338 Ill. 347; Dept. of Public Works vs. Caldwell, 301 Ill. 242; Brand vs. Union Elevated Co., 258 Ill. 133; Grassle vs. State, 8 C. C. R. 150; Stein, et al. vs. State, 8 C. C. R. 251; Moore, et al. vs. State, 8 C. C. R. 686.

However, depreciation in market value will not sustain a claim for damages to land not taken, unless it is from a cause which the law regards as a basis for damages. Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538; Rockford Electric Co. vs. Browman, 339 Ill. 212; Moore, et al. vs. State, 8 C. C. R. 686.

The proper elements of damage which may be considered in determining whether there has been a depreciation in the market value of property were reviewed by our Supreme Court in the case of Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538. In that case the court, on page 547, said:

“It is clear that the provision in the constitution of 1870 was not intended to reach every possible injury that might be occasioned by a public improvement, and that to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives it an additional value, and by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. The physical disturbance need not be a physical disturbance or direct injury of the tangible object of property rights, but must be a disturbance of a right which the owner enjoys in connection with his ownership of the tangible object.”

This statement of the law has been approved in numerous cases since decided. Illinois Power and Light Corporation vs. Wieland, 324 Ill. 411; Illinois Power and Light Corporation vs. Barnett, 338 Ill. 499; Rockford Electric Co. vs. Browman, 339 Ill. 212.

The evidence abundantly shows that as the result of the improvement there is a material interference with claimants ’ right of access to their property; a lessening of rental value; a loss of storage space in buildings and on claimants’ vacant property; and also that at certain times there is a flow of surface water onto the premises and in the buildings, which interferes with operations and causes metal parts to rust, which conditions did not exist prior to the making of the improvement.

Five witnesses besides George F. Kramer testified for the claimants on the question of values, and only one witness testified on behalf of respondent. The five disinterested witnesses for the claimants variously fixed the fair cash market value of the property prior to the making of the improvement from $22,000.00 to $30,000.00, and all but one stated that in his opinion the property had been depreciated fifty per cent (50%) as the result of the making of the improvement;— the other disinterested witness fixed the depreciation at 66 2/3%. The claimant, George F. Kramer, fixed the fair cash market value of the property prior to the making of the improvement at $25,000.00 to $30,000.00, and stated that in his opinion the value had depreciated two-thirds as the result of the making of the improvement.

Only one witness testified for the respondent on the question of damages. Such witness stated that in his opinion the property was benefitted as the result of the improvement in question. He also stated, however, that the benefits accruing to the claimants’ property as the result of the construction of the highway were such benefits as accrued to the public at large.

Among the items which were considered by the claimants ’ witnesses in estimating the damage to the property, was the loss of business arising on account of the fact that claimants were no longer able to maintain their oil pump and therefore had to remove the same. It appears, however, that such pump was located upon the public highway, and consequently any loss of business resulting from the removal thereof is not an item of damage for which the claimants are entitled to recover in this proceeding.

Another element of damage considered by some of claimants ’ witnesses was the loss of storage space between the claimants’ building and the traveled portion of the highway, which space was eliminated by the change in, and elevation of the roadway. Claimants’ buildings are constructed practically upon their east property line, and inasmuch as this storage space was located upon the public highway, claimants have no right to recover any damages as the result of their inability to use the same.

Under all of the testimony in the record,, we feel that the damage to the claimants’ property, based upon the elements which are properly considered in determining such damage, is Six Thousand Five Hundred ($6,500.00) Dollars.

It appears from the record that the claimants ’ property is encumbered by two mortgages, but the amount now due thereon does not appear of record.

Award is therefore entered in favor of the claimants, George F. Kramer and Louis Kramer, for the sum of Six Thousand Five Hundred Dollars; to be paid only upon delivery by claimants to the proper authorities of the respondent, of a release or releases duly executed by all persons, firms or corporations holding liens on said property on January 21st, 1935, the date of the commencement of work on the improvement, releasing the respondent of and from all claims and demands of every kind and nature arising out of or as the result of the construction of the aforementioned improvement.


author:
      Mb,. Chief Justice Hollerich
      Per Curiam:

text:
    (No. 2590
    Angeline Goodman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 15, 1937.

      Rehearing denied, May 10, 1939.

    Lyle K. Wheadon, for claimant.
    John E. Cassidy, Attorney General; Glenn A. Tbevob, ' Assistant Attorney General, for respondent.
   Mb,. Chief Justice Hollerich

delivered the opinion of the court:

On February 5th, 1935 Angeline Goodman, then eighty-two years of age, filed her complaint herein for the recovery of damages which she claimed resulted to her property by reason of the construction of S. B. I. Route No. 95. On December 15th, 1936 Angeline Goodman departed this life testate, and letters testamentary on her estate were duly issued to Edith Nolan by the County Court of Fulton County, and thereafter, on motion duly made, said executrix was substituted as claimant herein.

The property claimed to have been damaged is situated in the eastern portion of Lewiston, in Fulton County; consists of approximately four acres, having a frontage of about two hundred yards on the south side of S. B. I. Route No. 95, and is improved by a five-room bungalow which is situated on the northwest corner of the property. S. B. I. Route 95 extends in an easterly direction from the City of Lewiston, and prior to the time it became a part of the hard road system of this State, was a dirt road and was known as Avenue E.

The Goodman property is located at the crest of a hill, and the highest point of said property is directly in front of the house. The dirt road had previously been excavated to such an extent that the surface thereof was approximately fourteen feet below the crest of the hill. Before the construction of the hard road the occupants of said property had access thereto by means of a road which extended in a southerly direction from Avenue E just west of the house.

In the work of the construction of such hard road, a further excavation was made, and the crest of the property in question is now approximately twenty feet above the surface of said roadway. The cut was so deep that the private roadway just west of the house had to be abandoned, and the State constructed another entrance to the property, approximately two hundred fifty feet east of the house, extending in a southerly and southeasterly direction to the rear of the house. Prior to the construction of the hard road, the occupants of such property had mail delivery from the local post-office, but after the construction of sucia road, mail delivery was abandoned by the postoffice authorities on account of the inaccessability of the property.

Claimant contends that by reason of the construction of the hard road, the property has been materially damaged by reason of interference with the means of ingress and egress, by erosion, loss of free mail delivery, and the destruction of several trees.

Prior to the time the hard road was constructed, another location therefor was under consideration by the highway department. The public-spirited citizens of Lewiston were anxious to have the road laid out on Avenue E, and at a mass meeting of property owners held in the court house, a committee of local men was selected for the purpose of obtaining the necessary rights-of-way and releases of damages from abutting property owners. On account of her advanced age, Mrs. Goodman did not personally look after her interests in connection with the construction of the roadway, but was represented by her son-in-law, John Thorn.

The contour of the ground on the Goodman property slopes abruptly to the north, and on account of the depth of the cut, and the resulting slope of the embankment, it became necessary to acquire additional right-of-way in front of the Goodman residence.

Before the work of construction was commenced, Angeline Goodman signed a deed of dedication of right-of-way for public road purposes, conveying the additional land required by the respondent as aforesaid, and also signed a release of all damages of every kind and nature which might be occasioned to her said property by reason of the construction and maintenance of said S. B. I. Route 95. Both instruments were in the form prepared by the highway department, were under seal, and signed by Angeline Goodman by her mark, and were witnessed by her son-in-law, John Thorn.

The Attorney General contends that the plaintiff is not entitled to. an award on account of the fact that any damages she may have sustained are barred or released by the deed of dedication and the release agreement executed by her as hereinbefore set forth.

In answer to such contention, the claimant says that after said contract and release of damages had been signed, the plans were either changed, or the cut in front of the Goodman property was made to a greater depth than was provided in such plans, and that therefore the said deed and release do not bar the claimant from an award.

Claimant’s right of recovery is based upon the following:

1. The property in question was damaged as the result of the carelessness and negligence of the representatives of the State connected with the highway department.

2. On the grounds of equity and good conscience.

3. Upon the constitutional provisions that private property shall not be taken or damaged for public use without just compensation.

These contentions will he considered in the order above set forth:

1. This court has repeatedly held that in the construction of its hard-surfaced roads, the State is engaged in a gov-. ernmental function. Goldie Ryan vs. State, 8 C. C. R. 361; Elsie Baumgart vs. State, 8 C. C. R. 220; Chumbler vs. State, 6 C. C. R. 138; Bucholz vs. State, 7 C. C. R. 241; Braun vs. State, 6 C. C. R. 104; Loges vs. State, 8 C. C. R. 53; Johnson vs. State, 8 C. C. R. 67; Trompeter vs. State, 8 C. C. R. 141; Lester Royal vs. State, decided at the September 1935 term of this court.

Our Supreme Court has consistently held that the State, as well as counties and other political subdivisions of the State, in the exercise of their governmental functions, are not liable for the negligence of their servants and agents, in the absence of a statute making them so liable. Minear vs. State Board of Agriculture, 259 Ill. 549; Hollenbeck vs. County of Winnebago, 95 Ill. 148; City of Chicago vs. Williams, 182 Ill. 135; Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

2. The question of the liability of the State on the grounds of equity and good conscience alone was fully considered by this court in the case of Crabtree vs. State, 7 C. C. R. 207, where, after reviewing the previous authorities on the subject, we held that this court has no jurisdiction to allow an award in any case unless there would be a legal liability on the part of the State, if the State were suable. The decision in the Crabtree case has been approved by this court in so many cases since that time that the citation thereof is superfluous.

3. Under the provisions of Section 13 of Article 2 of the constitution, however, if private property is taken or damaged by the State for public use, the property owner is entitled to be compensated therefor, and in this case the claimant is entitled to an award unless the right thereto has been barred by the aforementioned deed of dedication and the aforementioned release of damages.

D. M. Costello, State Highway Engineer, engineer of design for the district in question, testified that although there had been some change made in the plans during the design of the road, yet when the final plans were prepared, no change was thereafter made therein, and that such plans as finally prepared, were the plans which were presented to the local committee which was. in charge of securing the rights-of-way and release of damages. The testimony for the respondent also showed that there was no change in the grades or alignment in front of the Goodman property during the work of construction, and that the road was graded exactly according to the plans.

The witnesses for the claimant did not agree among themselves in their understanding of what the plans provided. This probably arose from the fact that the several members of the Citizens Committee were not all present at the various meetings with the representatives of the highway department, some being present at one time and some at another. However, ■one question .upon which they, seemed to agree was that the ■cut in front of the Goodman property as actually made, was .greater than they anticipated it would be. Mr. Groat, a member of the Citizens Committee, testified that he was under the impression that the cut was to be about eight feet. Mr. J. T. Holmes, another member of the committee, testified that he was under the impression that the cut was to be about six or .seven feet; Mr. Pouts, another member of the committee, testified that his idea was that the cut was to be about four to six feet. Mr. Dobson, another member of the committee, testified that his idea was that the cut was to be about three to .four feet. As a matter of fact, the cut as actually made at the deepest point, was approximately seven feet; that is to say, no greater than two of the members of the committee understood it was to be, although it afterwards appeared to them to be considerably deeper.

No one connected with the State Highway Department talked to Mrs. Goodman regarding this matter, or made any representations to her, and consequently if she was misinformed regarding the provisions of the plans, it must have been by some member or members of the Citizens Committee. It may be that the members of the committee did not properly understand the plans, and apparently the cut when completed was deeper than they anticipated it would be, but nevertheless, the weight of the evidence indicates that there was no change in the final plans for the work, and that the improvement was constructed and completed strictly in accordance with the final plans which were prepared and presented to the Citizens Committee prior to the execution of the deed of ■dedication and release of damages by Mrs. Goodman.

The deed of dedication and release in question were offered" in evidence by the respondent, and if they were not binding upon the claimant by reason of any misrepresentations made to Mrs. Goodman, or if the improvement was not constructed in accordance with such plans, the burden was upon the claimant to establish such facts.

From a careful reading of all of the evidence, we are of the opinion that the claimant has failed to establish either of such propositions, and that therefore the claimant is bound by such deed and release of damages.

The release in question was objected to by the claimant for the reason that the same was not dated. It appears, however, that same was acknowledged before a Notary Public on August 13th, 1932. The grantor Angeline Goodman apparently signed by her mark, which was witnessed by her son-in-law, John Thorn. Under the evidence in the record, the release was properly admitted.

This court has heretofore held that where there is a deed of dedication, the legal effect of such deed is the same as a judgment in condemnation; that the consideration for the conveyance constitutes a release of all damages, including damages to property not conveyed, which results from the proper construction of the road in question. Fred Baber vs. State, No. 2221, decided at the November 1935 term of this court; Lampp vs. State, 6 C. C. R. 349.

This holding is in accordance with the decisions of our Supreme Court. C. R. I. & P. Ry. Co. vs. Smith, 111 Ill. 363; Atterbury vs. C. I. & St. L. Ry. Co., 134 Ill. App. 330. See also 2 Lewis Eminent Domain, 2d Edition, page 702, Section 293.

Under the provisions of such release, said Angeline Goodman, for herself, her heirs, executors, administrators and assigns, forever released the respondent from all damages of every nature and description that might be occasioned upon or to the Goodman property by reason of the construction and maintenance of said S. B. I. Route 95. Under the terms of such release, the claimant is barred from any right to an award by this court.

Award denied. Case dismissed.

Supplemental Opinion on Petition foe Reheaeing.

Per Curiam:

This cause again comes before the court upon claimant’s petition for rehearing, in which she sets forth eleven particulars wherein the court is alleged to have erred.

The first, second, fifth, eighth and eleventh grounds for rehearing are to the effect that the court failed to give adequate consideration to the testimony of certain witnesses for the claimant.

The third ground is based upon the statement that since the claimant’s case was closed, new evidence had been discovered, to wit, the testimony of the physician in charge of said Angeline Goodman at the time the deed of dedication and release in question were signed by her, to the effect that said Angeline Goodman was then so ill and bedfast to such an extent that she could have had no knowledge of such instruments or the purport thereof.

The fourth ground consists of an offer to show that no one ever had any power of attorney or authority to act for said Angeline Goodman, and that the dedication and release in question were never personally notarized in the presence of the claimant, nor did the Notary Public ever personally take her acknowledgment.

The seventh and tenth grounds are that the acknowledgments of the deed of dedication and the release were false and fictitious; that said Angeline Goodman never appeared before the Notary Public, nor he before her; and that such deed and release were improperly admitted in evidence over claimant’s objection, without proof of the execution thereof.

The sixth ground is as follows:

“That the law is clear that where the grade and alignment of a road is changed compensation should be paid.”

The ninth ground is that the claimant is entitled to an award on the grounds of social justice and equity.

All of the testimony in the record was carefully considered by the court upon the original hearing, and upon a further consideration thereof, the court fails to find therein anything which would cause it to alter its previous opinion as to the probative effect of the testimony of the several witnesses.

The matter of the mental condition of Angeline Goodman at the time of the execution of the deed and release in question, was first suggested by the claimant in her petition for rehearing, which was filed herein more than five years after the execution of such instruments, and almost a year after the death of said Angeline Goodman.

The deed of dedication was dated and acknowledged on August 13th, 1932; the release was not dated but was acknowledged on August 13th, 1932; both documents were recorded in the office of the Recorder of Deeds of Fulton County, Illinois on August 27th, 1932; Angeline Goodman filed her claim herein on February 5th, 1935; the taking of testimony was concluded on September 30th, 1935; Angeline Goodman died on December 15th, 1936; claimant’s Brief and Argument was filed on September 12th, 1936; respondent’s Brief and Argument was filed on June 1st, 1937; and claimant’s petition for rehearing was filed on October 15th, 1937.

It is well settled in this State that an application for new trial on the ground of newly discovered evidence is not looked upon with favor, and should always be subjected to the closest scrutiny; also that a motion for new trial on the ground of newly discovered evidence should not be granted where the newly discovered evidence could have been discovered before the trial, by the exercise of due diligence. People vs. Buzan, 351 Ill. 610; Graham vs. Hagman, 270 Ill. 252-261; Metz vs. Yellow Cab Co., 248 Ill. App. 609; Miller vs. Miller, 315 Ill. 600; Nesbit vs. Streak, 259 Ill. App. 48; People ex rel Oemke vs. Schuring, 288 Ill. App. 451.

No facts are alleged from which it appears that the newly discovered evidence could not have been discovered before the trial, and no reason is suggested why such evidence was not produced at that time; consequently, on the showing made, claimant is not entitled to a rehearing on account of any newly discovered evidence.

The same rule applies to the. offer to show that no one had a power of attorney, or authority to act for Angeline Goodman; that the instruments in question were not personally notarized, and that the notary did not personally take the acknowledgments. Furthermore, even if such instruments had) not been notarized at all, in the absence of any other showing, they would still be good and valid as between the parties. McNichols vs. McNichols, 299 Ill. 362-368; Callaghan vs. Callaghan, 359 Ill. 52-59; Doane vs. Baker, 120 Ill. 308.

Upon the original hearing on July 2d, 1935, the documents in question were offered in evidence and the following objection was made to their admission, to wit:

“Enter the objection of the claimant to the offer of the exhibits on the ground that such are incompetent, not properly notarized, and no one familiar with the signing of same has proven the signatures either of the notary or the party thereto, and that there is no proof by the witnesses to the mark of the claimant regarding same'. One more objection that the respondent’s exhibit No. 2 (the release) is not dated as to time of signing.”

Both documents purported to be signed by Angeline Goodman by her mark; both were properly witnessed; both were in regular form and duly acknowledged, and no suggestion was made at the time they were offered in evidence that said Angeline Goodman did not sign the same, or that she was not of sufficient mental capacity to execute the same.

There is no basis in law for the claim which was made on the trial and which is now made, to the effect that the documents were not admissible in evidence without proof of the execution thereof by Angeline Goodman. The statute provides (Ill. Rev. Stat. 1937, chap. 30, sec. 35):

“Every deed, mortgage, power of attorney, conveyance, or other writing, of or concerning any lands, tenements, or hereditaments which, by virtue of this Act, shall be required or entitled to be recorded as aforesaid, being acknowledged or approved according to the provisions of this Act, whether the same be recorded or not, may be read in evidence without any further proof of the execution thereof”; etc.

Claimant seems to take the position that the release in question is not a “deed” and therefore not entitled to be recorded under the foregoing provisions. Such a construction is not warranted by the decisions. The term “deeds” is not limited to deeds of conveyance, but includes all instruments under seal. 2 Words and Phrases, page 1920; 18 Corpus Juris 146; 1 Pope’s Legal Definitions, 356, and cases there cited.

On the original hearing there was no denial of the execution of either of the instruments; they purported to be property signed and acknowledged, and were therefore property admitted in evidence.

The sixth ground relied upon is a general statement, which, under the facts in the record, is entirety without merit.

The right of the claimant to recover on the grounds of social justice and equity was fully considered on the original hearing.

There is nothing in the petition for rehearing which entitled the claimant to the further consideration of the case by the court, and nothing which would cause the court to change the views expressed in its original opinion; — consequently the petition for rehearing is denied.


author: Mb. Justice Yantis

text:
    (No. 3080
    H. G. Goelitz Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1939.

    Markman, Donovan & Sullivan, for claimant.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mb. Justice Yantis

delivered the opinion of the court:

On February 8, 1934 a contract was entered into between respondent through its Department of Public Works and Buildings and the claimant, whereby the latter in consideration of the recitals therein, agreed to furnish the materials and labor necessary to construct a section of asphalt pavement on a portland cement concrete base forty (40) feet wide on S. B. I. Route No. 18 in the City of Chicago, in accordance with the specifications and proposal previously signed by the respective parties. The improvement in question began near the intersection of North Clark Street and Lincoln Park west, and extended in a northerly direction for a total distance of two thousand three hundred eighty-five (2,385) feet. The work under this original contract was entirely completed by the claimant and no question arises as to the work done thereunder. This claim is for additional work that was not included in the original plans.

On May 10, 1934 the claimant was authorized and directed to remove existing concrete safety island at the intersection of Clark Street and Ogden Avenue, and to construct new islands according to revised plans which were submitted with the authorization by the Division of Highways. This extension did not adjoin the improvement covered by the original contract but was located approximately four hundred fifty (450) feet south of the southern end of the original proposed improvement. This additional work involved a different type of machinery and labor to that necessitated by the work in the original contract. This additional work was in a comparatively new pavement, consisting substantially of three and one-half (3%) to four (4) inches of sheet asphaltic wearing course laid on approximately * eight (8) to ten (10) inches of exceedingly good concrete base, whereas the excavation work included in the original proposal was of a considerably lighter character. Such excavation work on the additional project could not be done by the use of any power shovel without first loosening the pavement that was to be removed. The Board of Underground Work of Public Utilities of Chicago objected to the use of heavy breaking machinery for breaking up the pavement at this site because of the possibility of destroying underground utilities thereunder. Claimant used air compressors and air hammers to remove the concrete. The cost of excavating covered by such extension or additional work was considerably more than for the original type of excavation contained in the proposal and specifications originally made.

At the time claimant was requested to do this additional work he protested to the engineer in charge, Mr. Arnold, that the work was so materially different from that contemplated in the original contract, claimant did not believe that such work should be paid for under the item of ‘ ‘ Special Excavation,” appearing in the specifications. No definite agreement was made as to the terms of payment and claimant continued to perform the work as requested. The contractor and the State were both to keep an accurate record of the work done for such additional work. Claimant’s record of such work is taken from his time-books and pay-roll records. The Division of Highways Engineers kept an accurate time and equipment record for the work in question and their report varies somewhat from that of the claimant. This is explained by the fact that part of the additional work was being done at the same time claimant was engaged in the work under the original contract, and some of the men worked back and forth between the two jobs. It would of course be more difficult to figure out their division of time from a pay-roll record than it was for the highway engineers to keep a time sheet on the one job alone. Claimant has also charged time against the supplemental work for certain foremen, but as these foremen were necessarily employed by claimant in the course of the general work which they were doing, there is no justification for allowing additional credit for any supervision which they gave to this portion of the work. In addition thereto, the record discloses that it was not necessary for these foremen to put in their time on the extension work for the reason that the air hammers and compressors were operated by an air compressor engineer and his operators which did not need a foreman to supervise the work other than such supervision as the State Hig’hway Engineer might give; further, that under the specification and conditions existing, no cause appeared for the additional service of such foreman. The claimant was paid at the contract unit rate for all the work done, including the additional work called for under the extension or supplemental plans. A final estimate was made and claimant accepted the warrant issued as a result of same. Such acceptance was conditional however and claimant notified the highway department under date of November 5, 1934 as follows:

“In checking over the final estimate on the above mentioned route and section, please be advised that we accept final measurements and amounts due on the various extra items as satisfactory, with the reservation that this final estimate be re-opened to allow payment of a claim by the State of Illinois for additional expense incurred by us in constructing Safety Islands and in revising intersection of Ogden Avenue and Clark Street. Also, to allow the State of Illinois a credit for the difference in price of asphalt used in the binder course of the wearing surface.”

In a letter under date of November 19th District Engineer Harger notified his superior Mr. G. M. Hathaway, Construction Engineer of the Division of Highways, in regard to allowing extra compensation, as follows:

“The work involved is entirely outside of the limits of the contractor’s original contract. In fact, it lies approximately four or five hundred feet south of the south end of the original contract * ® ®. When he started to work he found out that the class of work was entirely different than what the original contract called for * * «. At the time, the contractor protested verbally with our Department and insisted that he should be allowed cost-plus for the work as it was not comparable to the excavation he bid on.”

Mr. Harger further stated that this work should not be confused with special excavation work on the original contract.

The Attorney General contends that because of the provisions of Article 9.7 of the standard specifications for road and bridge construction, the acceptance of the final payment for work performed under the original contract should act as a bar to any further payment to the contractor for the work in question. We do not believe that the supplemental or additional work for which claim is here being made was a part of the original contract, and can see no reason why claimant should have found it necessary to decline acceptance of payment for the work which it had fully completed under the original contract, in order to preserve its claim for compensation for the additional work performed under a separate contract. The work for which a claim is here being urged was not contemplated in the original contract, was at some distance from the work originally contracted and of a character demanding a different manner of handling. The engineers for respondent have stated that this work should not be classed as special excavation under the original contract but should be paid for under a cost-plus basis.

The cases of Urech vs. State, 8 C. C. R. 212 and Illinois Steel Bridge Company vs. State, 7 C. C. R. 76 do not, we believe, apply to the present situation. Section 4.4 of the standard specifications provides, that

“The Department reserves the' right to claim such changes in the plans and. the character of work under the contract; as may he desirable * * * provided such changes do not materially alter the original plans and specifications.”

The court finds that the work upon which the present claim is predicated was a material change in the original plans and specifications, and that the respondent is liable for the additional costs incurred by claimant in performing the work, and that such work should be considered as of the nature of “Force Account Work” as referred to in Article 9.4 of the standard specifications.

Without reviewing in detail the evidence as to the amount of work and the hours of labor for which claimant should be compensated, we find from the evidence that the figures of One Thousand Five Hundred Forty-four and 20/100 ($1,544.20) Dollars, as compiled from the record of respondent’s witness Arnold, present a correct total of the amount to which claimant should be entitled on this claim. The deductions from claimant’s computation of Two Thousand Two Hundred Seventy-one and 50/100 ($2,271.50) Dollars are apparently in accord with the facts disclosed by the record of the manner in which the work was actually carried on and in conformity with the rules pertaining to the allowance of compensation for extra labor, and amount to a total of Seven Hundred Twenty-seven and 30/100 ($727.30) Dollars, leaving the above balance of One Thousand Five Hundred Forty-four and 20/100 ($1,544.20) Dollars.

An award is therefore hereby allowed in favor of claimant in the sum of One Thousand Five Hundred Forty-four and 20/100 ($1,544.20) Dollars.


author: Mr. Justice Linsoott

text:
    (Nos. 2531, 2532, consolidated,
    Steve Casky, Administrator of the Estate of Frank Casky, Deceased, No. 2531 and Peter Todoroff and Mamie Todoroff, No. 2532, Claimants, vs. State of Illinois, Respondent.

      Opinion filed, May 10, 1939.

    H. Grady Vien, for claimants.
    John E. Cassidy, Attorney General; Glenn Trevor, Assistant Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

Frank Casky, by his attorney, filed his complaint herein on October 31, 1934, and later amended it. He avers that he is a resident of the County of Madison and State of Illinois, and the owner of the following described property, to-wit:

Lots numbered Twenty-one (21), Twenty-two (22), Twenty-three (23) and Twenty-four (24), in Block numbered Two (2) Amended Plat of Clover Leaf Addition to Madison, Illinois, as the same appears of record in Plat Book 7 at page 43 in the Office of the Recorder of Deeds of Madison County, Illinois, situated in the County of Madison and State of Illinois,

and that he was the sole occupant of the property which had certain improvements thereon consisting of a, one story frame building with saloon, three living rooms, outbuildings containing three garages and four sheds; that prior to the construction work hereinafter referred to, and since the year 1925, the claimant has occupied the said premises and operated a confectionery and a lunch room thereon, and claimant avers that he did a very lucrative business, making a comfortable living for himself.

Claimant also charges that the State of Illinois, Department of Public Works and Buildings, Division of Highways, was then engaged in the construction of a concrete overhead bridge spanning the tracks of the Litchfield and Madison Railroad and the Nickelplate Railroad on U. S. Highway No. 67 (being also Illinois Highways Nos. 3 and 4) in the County of Madison and State of Illinois, being immediately in front of the property of the claimant; that such construction entails a span of considerable length, together with a fill several hundred feet in length, resulting in an entire obstruction of the view from the property of claimant, and as a result all of said property is on a level thirty feet (30') lower than the usual travel on the overhead bridge; that the United States Highway No. 67 provides a main artery of travel through the State of Illinois, and particularly between many cities in Madison County and in St. Clair County; that hundreds of automobiles, trucks and other vehicles use it daily, many of the drivers and occupants thereof patronizing the business of said claimant; that, after the completion of said project, the traffic on and along said highway will not pass immediately in front of the property of the claimant, but at an elevation of some thirty feet (30') above it; and that it will be impossible for traffic to reach the property of claimant without using the overhead bridge, and that it will be very inconvenient and impracticable for them to do so.

It is also averred that the property was purchased and the improvements thereon erected and constructed at a great cost of money, and that the present value of the property, prior to the commencement of the construction of sáid overhead bridge, was the sum of $14,000.00; that the average annual net income from said business, was approximately $1,500.00; that the value of the property and the income therefrom have been greatly reduced since the construction of said overhead bridge; that during and on account of the construction complained of, the walls and ceilings of the improve-merits on the above described premises have cracked, the doors have jammed, the floors- have become warped, and the property has become damaged in other respects.

Claimant further avers that this- matter was taken up with Mr. Wilson, who is in charge of the East St. Louis office of the Division of Highways, State of Illinois, who informed the attorney or representative for the claimant that the matter could only be presented to this court; that it was the policy of the Division of Highways not to consider the question of damages to land not taken in such cases, unless part of the land was actually taken. Claimant also charges that he has not received any payment on account of this claim and that no part of the claim has- been satisfied.

Claimant further avers that because of the construction of the concrete overhead bridge by the State of Illinois, the claimant will be greatly damaged, on account of reduction in the value of the property, and that he will suffer a severe loss in business, and that he will in many other respects- sustain damages, and damages in the sum of $20,000.00 are asked.

In Number 2532, Peter Todoroff and his- wife, as joint tenants, are seeking damages. They are represented by the same counsel and aver that they are the owners of the following described property, to-wit:

Lots numbered Twenty-eight (28), Twenty-nine (29) and Thirty (30) in Block numbered Three' (3), Clover Leaf Addition to Madison, as per amended plat thereof, recorded in Plat Book 7 at page 43 in the Office of the Recorder of Deeds of Madison County, Illinois, (except that part thereof heretofore conveyed to the said County of Madison); situated in the County of Madison and State of Illinois;

that said property has- certain improvements thereon, consisting of a one story brick building, forty-eight feet long by twenty-four feet wide, containing a lunchroom, a filling station, three living rooms, with a finished basement under the entire structure, and furnace therefor; a one story frame double garage and a one story building adjoining the brick building, being twenty-three feet long by sixteen feet wide and used for saloon purposes; that the brick building was erected in 1929,' the garage in 1930 and the saloon building in 1932.

Claimant, Peter Todoroff, further avers that since the year of 1929, he and his wife have operated the filling station and lunchroom on the premises hereinabove described; and it is claimed that they did a very lucrative business, making a very comfortable living for themselves; that since 1932 they have likewise operated the saloon.

It is charged that the State of Illinois, through the Department of Public Works and Buildings, Division of Highways, was engaged in the construction of a concrete overhead bridge over the same railroad as described in the Casky complaint and over the same highway and immediately in front of the property of the claimants. Pacts showing similar damages to those in the Casky case are also averred.

It is charged that the value of the property prior to the commencement of the overhead bridge, was $17,000.00; that the average annual net income from said business was approximately $3,000.00; that the value of the property and the income therefrom have been greatly reduced by virtue of the construction of the overhead bridge; that during and on account of the construction of the overhead bridge, the walls and ceilings of the improvements on the premises hereinabove described have cracked, the doors have jammed, the floors have become warped, and the property has become damaged in other respects.

A similar allegation was made as to presentation of this matter to Mr. Wilson, who is in charge of the East St. Louis office of the Division of Hig’hways, State of Illinois.

Claimants further charge that because of the construction of the concrete overhead bridge, the claimants will be greatly damaged, the property will be greatly reduced in value and they will suffer a severe loss in business, and sustain damages in many other respects, and damages in the sum of $25,000.00 are asked.

In the bill of particulars attached to the complaint in the Casky case, the damage to walls, ceilings and buildings, caused by driving of piles, is placed at $1,000.00, depreciation in value of property at $10,000.00, and loss to business at $9,000.00, or a total of $20,000.00.

In a bill of particulars attached to the complaint in the Todoroff case, the damage to walls, ceilings and building, caused by driving of piles, is placed at $2,000.00, depreciation in value of property at $13,000.00 and loss to business at $10,000.00, or a total of $25,000.00.

Both of these claims, founded upon the same facts, have by motion, been consolidated, and we will consider them together.

There is a stipulation to the effect that the State is building a concrete overhead bridge in front of the property of these claims. By an order of the Illinois Commerce Commission, under date of March 27, 1934, it is so stipulated. This order provided that the existing grade crossing of State Bond Issue 3 with the tracks and rights of way of the interested respondent railroad companies at the aforesaid overcrossing location be abolished.

Evidence was offered on behalf of the cost price of the properties and this was objected to. It is the contention of the Attorney General that the damages, if any, are the difference between the fair cash market value of the property immediately prior to the construction of the bridge and immediately thereafter.

In the Todoroff case, Mrs. Todoroff testified that she did not remember when they bought the lots, but apparently it was on October 27, 1926; that they paid $950.00 for the lots. She testified to several different amounts that they paid for the improvements thereon. She could not say which way the lots faced. She was of the opinion that there was a 50 foot front on Lots 28 and 29, and that they paid $950.00 for the three lots; that they held them for awhile and then sold 2 of them to the State for $800.00 (Abst. 6). She further testified that when they built the building they knew that the bridge was going to be built. Her testimony in part is abstracted as follows: “At the time the State bought these lots from me, the hard road was going to be built across the railroad tracks, right across to Madison, just the road, no bridge at all, on the surface, the same level as the tracks. The State said that that was why they bought these lots, for the road. That was what put the idea in my head to build a filling station. They said I would have an independent living. Then they got permission to put that fill in there. They had to get permission to fill that part in there with cinders, after that you couldn’t get to our place. We had to fill up the hole before we built our buildings, in order to bring it up to a level with the road in front.”

It is not clear from the evidence which lots were sold. It is quite apparent from the evidence that the building of the road was what prompted the claimant, Todoroff, to put in a filling station.

We think, as a general rule that the price which the owner gave for the property may be put in evidence. Lewis on Eminent Domain, Section 444; Mills on Eminent Domain, Section 168. But it must appear that the owner has purchased the property within a time so recent, that its cost will afford a fair indication of its present value. Lanquist vs. City of Chicago, 200 Ill. 69, 72.

The difference between the fair cash market value at the time the improvement is made and at the time of the completion of the improvement, is the sum which the owner is entitled to recover as damages. In order to determine such value, evidence may be introduced of sales of similar property in the same neighborhood, but it must appear that such sales were made at or about the time that the improvement was made. This rule was deducted from the rule that in a condemnation suit, in order to determine such value, evidence may be introduced of sales of similar property in the same neighborhood, but it must appear that such sales were made at or about the time of the filing of the petition. Peoria Gas Light Co. vs. Peoria Terminal Railway Co. 146 Ill. 372; Lewis on Eminent Domain, sec. 444.

It is quite apparent in this case that the property was purchased in October, 1926, and the claim for damages was not filed until 1934. It cannot be said that evidence as to the cost of the property eight years before necessarily shows the present market value thereof. In the lapse of the intervening years, the value may have risen or fallen to such an extent as to be higher or lower than the purchase price. In 1926 there was evidence of great prosperity in this country and that period of time is frequently referred to as the “peak of prosperity. ’ ’

Claimant sold two lots to the State for the sum of $850.00, but she cannot determine exactly by guess work how much of the purchase price was paid for each individual lot, and it is quite apparent that the State bought these lots for the very purpose for which they were used.

In the case of The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company vs. Gage, et al., 286 Ill. 213, it was held that proof of price paid for property pending condemnation is not admissible. There is no evidence in the record as to the rental value of the property for the reason that the property never was rented.

In the condemnation of vacant property, proof of the amount of rents derived from improved property in the neighborhood which had been recently sold, and of the income that could be derived from other vacant property in the vicinity if buildings were erected thereon, is too remote and collateral to be admissible. Pullman Co. vs. City of Chicago, 224 Ill. 248.

We, therefore, hold that the profits derived from the sale of gasoline in a filling station and of liquors and luncheons at a lunchroom and saloon are too vague, indefinite and uncertain to be received in evidence.

Peter Todoroff, claimant, further testified (Abst. 9) as to the value of the property and the sale of the two lots to the State for $850.00. His testimony is quite similar to that of his wife. He testified that he closed up business there because there was no business after the bridge was built. The business came principally from the highways, that is, people travelling along* the highway. He testified that when the road was open before the building of the bridge, he did a business of $20.00 or $30.00 per day, and that he was doing no other work; that he was just watching* the business. He had a saloon, filling station and lunch room. His wife took care of the kitchen and living rooms, and Perigo was watching the saloon. He also testified that as soon as they commenced driving the piling, their walls and ceilings cracked — two inches in some places; that there was a crack 48 feet long* on a concrete floor, rig’ht in the middle of the building*, extending from one room to the other; that the doors did not close and before the building of the bridge there weren’t any such cracks. Claimant figured that this damage was caused by shaking the ground when they drove the piles. The bridge is about 50 feet away from claimant’s property line and the dirt fill is about 30 feet away from it. The bridge is about 30 or 40 feet high at the fill at the closest point to claimant’s property is about 30 to 40 feet.

Neither of these claimants testified as to the value of the property before building the bridge or after the bridge was completed.

Prank Casky testified that he is also a claimant and the owner of lots 21, 22, 23 and 24 in Block 2 Amended Plat of Clover Leaf Addition to Madison County, Illinois; that he bought this land in 1923 and built in 1925; that he paid $800.00 for the lots, and in 1925 put a frame building* on the premises consisting of five rooms, two bedrooms, and a kitchen, two back rooms for business, a saloon, and a few chairs and tables; that the building cost $3,000.00; that when he purchased the property, it was not on a level with the road; that he paid $2,000.00 to fill it in with cinders and he testified to many other improvements, such as sidewalks of $40.00; outside toilets of $25.00, fence around the property at a cost of $150.00, and a summer kitchen at $135.00. The claimant further testified that he spent money for water and that he put on a new roof, and right after he got through, it leaked rain water; that he paid $60.00 for papering. There were many other items testified to which we cannot consider because we must take this property as a whole, and the value must be determined as hereinbefore announced at the time the improvement was made, and then again when the improvement was completed. The claimant also testified to considerable amount of damages caused by loss of business, and on cross examination he stated that the damages testified to resulted from driving of the piles. On re-direct examination, claimant testified concerning dust storms “when they were putting that dirt in” and said that when the wind was favorable they would have dust storms four or five days of the week. He also testified to great noises at the time of the construction of the bridge to the effect that one could hardly hear anybody talking and that went on from morning to evening.

That since the filing of his claim, Frank Casky has died and his death has been suggested to the court and Steve Casky, as administrator' of the estate of Frank Casky, deceased, has been substituted as party claimant.

Lowell Perigo, another witness testified for claimants, that he lived with Todoroff and his wife for about twelve years; that he had always been in the jewelry business except during the time he worked for Todoroff running a saloon. His testimony in the main concerns the physical conditions of the property and loss of business.

This point in the record contains a stipulation that the distance from the ground floor to> the main floor of the bridge is 25 feet; that the length of the steel bridge is 610 feet; that the length of the west approach to the bridge is 800 feet, and the height of the fill up to the bridge is 20 feet; that the bridge is constructed of steel girders, a skeleton, with concrete piers, and that the purpose of the project is to abolish- and eliminate the grade crossing at this location.

E. W. Sitting, another witness testified for claimants. He testified that he is in the real estate business in East St. Louis and vicinity and has been so engaged for 40 years; that he has made many appraisals in Madison and St. Clair counties for the Federal Housing Administration, which estimates the values of the properties with the Federal Housing Administration in the counties just mentioned; that he has also made many appraisals in other counties. He testified that the Frank Casky property was best adapted for business purposes, and stated he had an opinion that the fair cash value for that property in 1934 was $3,800.00, and that the fair cash market value of the same property after the improvement was completed was $1,800.00. He also testified that he had an opinion as to the fair cash market value of the Todoroff property as of September 1, 1934, and assuming it to be best adapted for business purposes, he was of the opinion it was worth $7,000.00, and that the fair cash market value of the same property after the improvement was completed was $2,500.00. He further testified that he had stopped at this property a number of times on the way to a farm that he owned north of Granite City. He testified that in the neighborhood of this property there were twelve or fifteen other houses. He stated that in fixing the value of the property he had taken into consideration all the elements that he could think of, the first element indicating that it would support a business. He also considered the size of the building and examined it and arrived as near as possible at its replacement value, taking into consideration the depreciation and the kind of building it was, and the structure itself. He testified that he took many things into consideration and could not remember all the things he had taken into consideration.

In the case of Chicago Flour Co. vs. Chicago, 243 Illinois, 268, at page 271, the Supreme Court of Illinois held:

“It is well settled that inconvenience, expense or loss of business occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the construction of a public improvement, gives no cause of action against the municipality. The Constitution provides no remedy for the property owner under such circumstances. Such claim is not damage to property not taken, within the meaning of the Constitution.” Citing authorities.

The State of Illinois had power to make this improvement. While the law of Illinois is as above announced, we cannot disregard the entire testimony of the-witness, Sikking; neither can we give it full credit, because he took into consideration, improper elements. His testimony applied to both claimants and we will take it for what we deem it to be worth.

Witness, Sikking, also testified on cross-examination that from a real estate man’s standpoint use was the determining value, and not the possibility of selling, and that for the purpose of a residence, the Todoroff property was just as good as it was before the construction of the bridge, but he would not say that was quite true of the Casky property.

O. E. Hodge another witness for the claimants, testified that he was in the real business in Granite City; that he had offices in Mount Vernon and Cairo, but that most of his business was done in Granite City. The witness testified that he was familiar with the property of the claimants; that he made appraisals of real estate; had been secretary of the Building and Loan Association for nine years, and he estimated that he had made 350 or 400 appraisals. He also testified that his company was the real estate agent for the Prudential Insurance Company of America and made appraisals for them, and had for several years. He placed the value of the Casky property as of September 1, 1934 at $2,950.00, and after the completion of the improvement at $1,000.00. He placed the value of the Todoroff property as of September 1, 1934, based upon the use for business purposes, at $7,200.00, and after the completion of the improvement at $2,000.00. He stated that the property was rather remotely located but was an ideal location for a saloon. What is said of the Sikking testimony, applies to this testimony.

Robert M. Smith, another witness for the claimants, tesr tilled that he lived in East St. Louis and has been in the real estate business for over thirty years in that city. He testified that within the last year and one half he had made appraisals for the Hottes estate, embracing over 90 pieces, and in the last five months for the First National Bank, embracing over 200 pieces; that most of these were city properties. The witness further testified that he was acquainted with the Casky and Todoroff property, and that the best use for which this property was adapted was for a saloon and the attending features that go with such places. He was of the opinion that before the improvement the value of the Casky property was $2,500.00, and after the completion of the improvement, $1,000.00; that the best use of the property would be for residence purposes. He further testified that the walls were cracked, the roof leaked, and the floors and doors were warped. It is very apparent that business was also in his mind as one of the determining factors in fixing the value. He fixed the value of the Todoroff property before the improvement at $6,500.00, and for business purposes he figured it at a rental of $50.00 per month. He did not agree with witness Sikking as to depreciation in value, and he fixed the value after the completion of the improvement at $2,500.00.

C. I. Bergraf, another witness for the claimants, testified that he was Assistant Engineer for the State Division of Highways, located in East St. Louis; that he knew the location of the bridge, and he testified as to local conditions.

C. G-. Rogers, another witness for the claimants, testified that he was the Trust Officer for the Illinois State Trust Company and had been for many years, and that he managed the real estate in the course of his employment. He testified that he was familiar with the values of real estate in St. Clair and Madison Counties, and fixed the fair cash market value of the Casky property before the improvement at $2,500.00, and after the improvement at $1,000.00; and fixed the fair cash market value of the Todoroff property before the improvement at $7,200.00, and after the improvement at $2,000.00 for residential purposes.

Philip H. Cohn, another witness for the claimants, testified that he was a realtor, and had had much experience in the vicinity of this property fixing the value of property. He testified that the Casky property was worth about $2,950.00 before the construction of the overhead bridge and $1,000.00 after the improvement was made; that the Todoroff property Avas worth $7,000.00 before the construction of the overhead bridge and $2,000.00 after the construction of the bridge.

Alex S. Vien, another witness for the claimants, testified that he was a resident of East St. Louis and had been for 42 years; that he was engaged in real estate, insurance and loans, and had been in that business for 35 years. He fixed the fair cash market value of the Casky property before the improvement at $3,000.00 and' after the improvement at $1,000.00, and the fair cash market value of the Todoroff property before the improvement at $7,200.00, and after the improvement at $2,200.00.

P. M. Davidson, testified for the respondent. He testified that he had lived in Granite City for the past eight years, and that he had been engaged in the real estate and insurance business for about twelve years; that prior to moving to Granite City, he lived in Troy and went back and forth. In his opinion, the Casky property was worth, immediately prior to the commencement of the construction of the improvement, $2,500.00, and was of the same value when the construction was completed. Claimant fixed the value of the Todoroff property at $4,850.00 at the time of the commencement of the improvement, and of the same value after the commencement of the improvement. He said the Casky property was put to the same use after the improvement as it was before. He took into consideration the cost of construction, its age, and location. In other words, its replacement value. It is apparent that he had given this subject much consideration and study.

J. W. Senoff, testified for the respondent. He testified that he lived at Granite City and had lived there for fourteen years, and had been engaged in real estate and insurance business for eleven years. He also had had much experience in this business. He stated that neither the Casky nor the Todoroff properties are within the corporate limits of Granite City. In his opinion the highest and best use of the Casky property, prior to the construction of the overhead bridge was for a roadside tavern and dwelling, and its fair cash market value for such use, was $2,500.00, and was of the same value after the improvement. As to the Todoroff property, the highest and best use, would make the fair cash market value $4,850.00 prior to the construction of the overhead bridge, and after the completion of the overhead bridge, considering the highest and best use, it would have the same value thereafter. He went over this property with Mr. P. M. Davidson and George H. Mueller. They also were real estate men.

Mrs. A. A. Anson also testified for the respondent. She lives at Granite City, Illinois, and has been engaged in the real estate business in Granite City for ten years. She is also acquainted with this property. In her opinion, the Casky property, before the improvement, was worth $2,200.00 and after the improvement, $1,400.00. She testified that the value of the Todoroif property before the improvement, was $6,000.00 and after the improvement, $5,400.00.

It will, therefore, be seen that the values placed upon these properties by these witnesses greatly differed. There is much variance in the testimony. The court itself viewed the premises and the surrounding neighborhood.

It has always been held that the State is not liable in the exercise of its governmental functions, for the acts of its servants and agents in the absence of a statute making it so liable, and we have repeatedly held that the State is not liable for the acts of an independent contractor.

We are, however, of the opinion that there has been some damage and we fix the value of the damage done to the Casky property, after careful consideration of all the testimony, and of our own view of the property, and of the law pertaining to the admissibility of evidence, at the sum of $1,000.00, One Thousand Dollars, and to the Todoroff property in the sum of One Thousand Seven Hundred Fifty ($1,750.00) Dollars. Therefore an award is made accordingly.


author: Mr. Justice Yantis

text:
    (No. 2288
    John Walker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 10, 1939.

    Harry S. Greenstein, for claimant; Harry F. Brewer, of counsel.
    John E. Cassidy, Attorney General; Murray F. Milne, Assistant Attorney General, for respondent.
   Mr. Justice Yantis

delivered the opinion of the court:

Claimant herein was a member of the Illinois National Guard and seeks an award in the sum of Four Thousand ($4,000.00) Dollars under the provisions of the Illinois Military & Naval Code, for injuries alleged to have been suffered while in the performance of his duties as such member.

The record discloses that he enlisted about June 27,1930, and on February 8, 1933 was a member of the Combat Battery in the 122nd Field Artillery, 33rd Division of the Illinois National Guard; that the training and drilling exercises of the battery were conducted in an Armory maintained by the State of Illinois; that the roof was in bad repair and rain and melting snow would leak through and fall on the floor of the Armory building. While engaged in drill duties the horse which claimant was riding and which had been furnished to Trim by his commanding officer, slipped on the wet floor and fell in such manner that the horse’s weight was on claimant’s leg and foot. Claimant suffered four fractures of the left foot. He was taken to the hospital where his injured foot was placed in a cast, in which it remained for about six weeks. Claimant thereafter required the aid of a crutch or cane in walking for a period of four months, and there is now a fixed limitation of motion of the foot and ankle which the evidence shows is probably a permanent condition, and in addition thereto there is a deformity that is commonly known as “flatfoot.” Plaintiff’s testimony shows that he suffered a great deal of pain during the course of the healing of said injuries, and that he wore an elastic stocking around his ankle and foot for a period of two years, on advice of the attending doctor. Dr. Frank V. Theiss, a member of the National Guard, examined claimant at the time he was injured and attended him at that time. He testified that he saw claimant from time to time after he was discharged from the hospital; that a month or two after claimant left the hospital he attended drill and did not have a cane or crutch but walked with a limp; that he, Dr. Theiss, examined claimant on April 17, 1937 at which time claimant’s attorney was present, and that he did not observe any limp upon claimant’s part when the latter entered the room. This examination, according to the doctor, disclosed that there was no limitation in the movement of the ankle, and circulation in the foot was normal; that flatfoot is not an infrequent occurrence following injuries of this type. The doctor further testified that he found no limitation in flexion, extension or lateral movement of the left ankle compared with the right ankle; that he caused additional X-rays to be taken and on comparison with the X-rays made four years previously, excellent healing of the fractures was disclosed with no lipping or any abnormal pathological exastosis. Dr. Theiss explained conflicting opinions as disclosed in the testimony of another surgeon, Dr. Ricardo, by explaining that certain bony enlargements referred to in the latter’s testimony involved bones other than those where the fractures occurred, and were merely normal anatomical parts of the structure of claimant’s foot. In the doctor’s opinion claimant has not lost any part of the use of his left leg. Dr. Theiss saw claimant on the street a number of times and at the Armory frequently. The doctor further testified that flatness of the foot is often due to the laceration of ligaments, tendons and muscles resulting from broken bones of the foot; that if no improvement takes place in the strengthening of such flatfoot within a year no improvement can be expected thereafter; that every precaution was taken in Mr. Walker’s case to avoid flatfoot but that it was impossible to avoid some weakening of the arch; that the condition existing would be permanent and would possibly render claimant less able to do heavy work.

Dr. Ricardo testified that he examined claimant in his office on October 9,1933 not as a treating physician but for the purpose of making a diagnosis; that at that time there was some interference with the blood supply of the lower left leg, a bony outgrowth on the top of his foot on the instep where the fracture of the two bones existed, and a limitation of motion of the ankle joint upon flexion, extension and lateral movement; also a difference of about fifty degrees in the arch of the left and right feet. He next saw claimant four years later on March 7,1936, at which time he found a slight decrease in the bony outgrowth on the top of the foot; that an atrophy of the muscles of the calf of the left leg existed and the latter was about three-fourths of an inch less in circumference than the calf of the right leg; that he again examined claimant on March 7, 1936, the date of the hearing; that in his opinion the limitation of motion in the ankle and foot, and the condition of flatfoot are all permanent, and that claimant has lost fifty (50) per cent of the use of his foot and leg.

The X-ray examination report of February 9, 1933 at St. Joseph’s Hospital in Chicago shows the following fractures:

A fracture involving the internal malleolus of the left tibia.

A comminuted fracture involving the external malleolus of the left fibula.

A comminuted fracture involving the proximal end of the second metatarsal of the left foot, extending into the joint, with fragment displacement.

A fracture involving the proximal end of the third metatarsal of the left foot.

Dr. Theiss further testified that a year after the injury he saw claimant taking an active part in the regimental drills and that the condition of claimant as he, Dr. Theiss, found it in April, 1937, was not such as in his opinion would cause a loss of any part of the use of claimant’s leg, ankle or foot. On cross-examination Dr. Theiss qualified this statement however by stating that anyone with a degree of flatfoot will suffer some weakness and fatigue, and that claimant would possibly be less able to do heavy work as a result thereof. Both Dr. Theiss and Dr. W. E. Anspach certified under date of April 10, 1937 to the X-ray examination of claimant, and stated that apparently perfect apposition and alignment have been maintained in the healing of the left ankle, and that good bony union has occurred at the fracture sites with approximately one-half cm. prominence of the proximal end which overlaps the second metatarsal.

With respect to claimant’s occupation and work, his testimony shows that prior to the time of the injury in question he was employed as a solderer for the Grigsby-Grrunow Refrigeration Company, but had been laid off about a week previously because of slack business. That he earned an average of Forty ($40.00) Dollars to Forty-five ($45.00) Dollars per week; that his next work, about a year after his injury, was with the Kraft Cheese Company loading freight cars; that the weight on his foot was too great and he was given a job operating the freight elevator. He held this job for about a month and his salary averaged Eighteen ($18.00) Dollars per week. He next became employed in December, 1934 by the Belke Manufacturing Company where he was still employed at the time he gave testimony herein. At present he is employed as a machinist on line work with wages of Twenty-two ($22.00) Dollars per week. He is required to stand while doing this work and at times requires help in doing heavy lifting, because of the pain in his foot.

The Military & Naval Code of Illinois contains the following provision:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the commander-in-chief, said officer or enlisted man or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.” Sec. US (Ch. 129 Ill. Rev. Statutes).

Claimant was injured February 8, 1933. As above stated, he was not then working but had been employed at Forty-five ($45.00) Dollars per week in his last employment. His enlistment in the National Guard expired in June, 1933 and he then re-enlisted. He was discharged in May, 1934 and again re-enlisted in July, 1934 and attended camp in August of that year. When first employed after his accident in May, 1934 his average earnings were Eighteen ($18.00) Dollars per week. His highest earnings since the accident have been Twenty-two ($22.00) Dollars per week. The employment which he has done since his injury has apparently necessitated more heavy labor than that which he was doing before his injury, and the record does not .support a finding that he is not able to earn as substantial wages now as prior to the accident, by reason of the results of such accident, and the record does not support a conclusion and an award of such permanent disability as would entitle claimant to an award for permanent disability.

The claimant was treated by doctors furnished by the Illinois National Guard and no claim is made for medical or hospital bills.

Claimant did however as a result of the accident lose a substantial amount of time because of his inability to work while convalescing. While the evidence indicates that he took some interest in the work of his Military Company before May 1, 1934, he was not able to engage in any remunerative employment until the latter date. If he had been injured while working as an employee for either the State or for a private industrial employer he would, under the provisions of the Workmen’s Compensation Act of Illinois, have been entitled to fifty (50) per cent of his average weekly wage for the period of his temporary total incapacity at a rate not to exceed Fifteen ($15.00) Dollars per week. This would have extended from February 8, 1933 to May 1, 1934 and would have amounted to Nine Hundred Sixty-seven ($967.00) Dollars. In the absence of a definite rule by which the court can be guided, it is difficult to determine how closely one should follow the awards made in industrial cases. In many cases of injuries suffered by men in the service of the National Guard, temporary financial aid is given by orders of the Commander-in-Chief. No such temporary aid is shown by the record to have been given in this case. From all the facts and circumstances we believe that an award of One Thousand ($1,000.00) Dollars is within the proper exercise of discretion given to the court herein. An award of One Thousand ($1,000.00) Dollars is hereby accordingly made in favor of claimant by reason of the accident in question.