text:
    (No. 4695
    A. L. Mechling Barge Lines, Inc., A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    Bradley, Pipin, Vetter and Baton, Attorneys for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

Claimant, A. L. Mechling Barge Lines, Inc., brings this action to recover the sum of $493.88 from the State of Illinois, contending that on August 9, 1955, its tow boat, Roy Mechling, was damaged in that amount while passing under the Jefferson Street' draw bridge, which crosses the Illinois Waterway in the City of Joliet, due to the negligent lowering of the bridge onto a portion of the tow boat by the state employed bridge tender.

The facts established by the evidence are as follows:

Roy L. Graffis, Captain and Pilot of the tow boat, testified on behalf of claimant that at 1:50 A. M., on August 9, 1955, the boat, 110 feet long, was proceeding upstream in the Illinois Waterway in Joliet, Illinois, pushing a tow of barges 575 feet in length; that, when he was approximately one-half mile from the Jefferson Street bridge, he gave the customary signal used in notifying the bridge tender to open the drawbridge, and received a response, consisting of flashing green lights, authorizing him to proceed. The bridge was raised, and the tow boat and barges proceeded under the bridge at one and one-half miles per hour; when the tow boat was directly under the bridge, it began lowering, and, despite danger signal blasts sounded by the boat’s whistle, continued its descent, striking the boat.

The boat’s radio antenna, stern mast, signal light, canvass awning, framework, and the boom, which was used to lift and lower small boats, were damaged.

After this incident, the tow boat continued on 100 to 150 feet beyond the bridge, and stopped. Mr. G-raffis testified that this was the first time the vessel stopped, and that it did not stop under the bridge.

The next morning the vessel was taken to the Mechling Dock at Joliet where John G-rodzicki, Superintendent of the Joliet Marine Supply and Eepair Company, and Harold Mechling, Manager of claimant company, and a Mr. H. B. Belfort, Assistant Engineer of the Illinois Division of Waterways, inspected the damaged vessel. An estimate as to the cost of repair was prepared at that time.

The respondent offered as an occurence witness, the bridge tender, John Brown, 73 years of age, who was employed by the State of Illinois. He testified that he opened the bridge on the morning in question for claimant’s boat to pass, and, when the rear of the boat was approximately one-half through, he started lowering the bridge, and lost sight of the boat. He testified he heard no blasts from the boat after starting to lower the bridge. On cross-examination, he testified that the regulations or rules received from his supervisors stated that “it should be clear of the barge . .. when you lower the bridge”. He first heard about the bridge striking the boat when one of the boat’s crew members came to the bridge, and told him about it shortly after the occurrence.

These two witnesses were the only occurrence witnesses offered by either side, and, from their testimony, it appears to us that the bridge tender should have made more of an effort to determine that the boat had cleared before lowering the bridge. We do not believe that the evidence establishes any fact or circumstance, which would indicate any lack of due care upon the part of claimant. Respondent’s brief and argument is silent upon the question of liability.

After considering the record in this case, we find that respondent negligently caused damage to claimant’s boat, that claimant was in the exercise of due care for the safety of its property, and should recover in this case the amount of its damages.

The only evidence on the question of damages were the depositions of Donald D.aoust, office manager of the A. L. Mechling Barge Lines, and John Grodzicki, Superintendent of the Joliet Marine Supply and Repair Service. Their testimony contained in the deposition established that the boat damage was repaired by the Joliet Marine Supply and Repair Service; that an invoice was rendered for such service to claimant in the amount of $493.88, and was paid by claimant; and that the charge for such repair services was reasonable and proper.

The only objection raised by respondent in its brief is that the notice of the taking of the depositions, which was served upon the Attorney General, did not specify that the depositions were to be offered in evidence, and, therefore, under Supreme Court Rule 19, they were presumed to be discovery depositions, and could not be admitted into evidence.

We believe respondent’s position is not well taken. The notice of the taking of the depositions was received by respondent on March 28, 1956. The depositions were taken April 3,1956, over two months prior to the hearing, which was held on June 9, 1956. The Attorney General saw fit not to appear at the taking of the depositions. These depositions were duly filed with the Clerk of the Court on the 20th day of April, 1956.

ft apeared from the face of the depositions filed that they were taken “pursuant to Section 58 of the Civil Practice Act, and Bule 19 of the Supreme Court Buies pertaining to the taking of depositions for use in evidence”, and, that “notice of the taking of the depositions was given and acknowledged by respondent’s attorney, Bernard Genis, on March 28, 1956, in accordance with the Buies of the Civil Practice Act and the Supreme Court. Claimant was advised by respondent’s attorney, Bernard Genis, of his intention not to be present at the taking of the deposition.”

The sworn statement of the Commissioner before whom the depositions were taken also stated “that the deposition has been signed and sealed by me for the purpose of sending same to the Clerk of the Court of Claims, and to remain for use in evidence”.

On April 25, 1956, copies of the depositions were forwarded to the Attorney General by the Clerk of the Court of Claims, which date was approximately forty days prior to the hearing in the cause. No objection to, nor motion to suppress these depositions were filed, or called to the attention of the Court prior to the hearing of the cause. The only objection appearing in the record was made at the time the depositions were offered by claimant. This objection was as follows:

“Mr. Genis: To which I object.
The Commissioner: Upon what ground?
Mr. Genis: That neither the notice, nor the taking of the depositions, nor the filing of same were pursuant to the statutes and decisions of the State of Illinois.”

Upon being requested by claimant’s attorney to specify the ground of the objection, the Attorney General replied as follows:

“Mr. Genis: The grounds of the objection, if any, I will file in my brief.”

The objection was then overruled, and the depositions admitted into evidence by the Commissioner. It is obvious that respondent knew at least forty days prior to the hearing that the depositions were to be taken for evidential purposes. If respondent wished to question any error or irregularity in the notice served upon it, objections in writing should have been promptly served upon claimant pursuant to Buie 19-9(1) of the Buies of the Supreme Court, which reads as follows:

“(1) As to Notice.
All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.”

If respondent wished to question any error or irregularity in the taking or filing of the depositions, a motion to suppress should have been filed pursuant to Supreme Court Buie 19-9(4), which reads as follows:

“(4) As to Completion and Return of Deposition.
Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.”

It has long been and still is the rule in this state that if an objection to a deposition could have been obviated by issuing a new commission and re-examining the deponent, a motion to suppress must be made prior to trial in order to preserve the question. (See Joint Committee Comments on Supreme Court Rule 19-9, Smith-Hurd Ill. Ann. Stats., Chap. 110, Sec. 101.19-9.

In our judgment, respondent should have moved to suppress these depositions when it became apprised of the fact that they were taken for use as evidence and not merely for discovery.

Furthermore, the very nature of the objection itself is not sufficient under the law to properly preserve the point respondent now relies upon. The objection was so general in nature that under the law it raised only the question of relevancy.

In Buntain vs. Bailey, 27 Ill. 409, Justice Breese set forth the then well established rule, which is still followed, on the effect of a general objection. At page 410, the court stated:

“This court has so frequently decided that general objections to the instrument of evidence will not be entertained, that it is unnecessary, in this case, to do more than refer to the decisions. To go no further back, the case of Sargeant vs. Kellogg, Et Al, 5 Gilm. 281, is understood to hold, that a general objection to the introduction of a certain instrument of evidence simply raises the question of its relevancy. But if it is obnoxious to a special objection, that objection must be stated. When various objections may be made to evidence, some of which may be removed by other proof, the party making the objection ought to point out specifically those he insists on, and thereby put the adverse party on his guard, and afford him an opportunity to obviate them. He ought not to be permitted, after interposing a general objection, to insist on particular objections in this court, which, if ever suggested in the court below, might have been instantly removed.”

See also C. & E.I. Railroad Company vs. Wallis, 202 Ill. 129 at 132 and 133.

The question of the competency of the depositions was never properly raised. Obviously, the evidence contained in the depositions was relevant to the question of damages.

Respondent chose not to specify the ground of his objection, even though requested to do so, until the briefs were filed.

Therefore, no opportunity was given claimant to either call other witnesses, or request a continuance for re-taking of depositions.

We, therefore, hold that respondent waived all questions regarding the sufficiency of the notice, the taking and filing of the depositions, and the depositions were properly admitted into evidence.

The claim should, therefore, be allowed in the sum of $493.88.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4703
    Ernest Bruzzichesi, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    S. W. Narusis, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

A claim has been filed for damages in the amount of $402.85 against the State of Illinois growing out of an accident, which occurred on September 19, 1955.

A hearing was had before Commissioner Immenhausen on September 19, 1956.

A motion to dismiss was filed on November 29, 1956, and a notice was served upon counsel for claimant. No other pleading having been filed by claimant, this matter comes on before the Court on the motion, supported by affidavit of Bernard Genis, asking for dismissal of this cause, with prejudice.

The basis for the motion is that, upon conclusion of the hearing before the Commissioner, claimant failed to file a transcript of the testimony, abstract, brief and argument, which are provided for by the rules of this Court. Furthermore, there has been no motion filed by claimant for an extension of time for the filing of the transcript of the evidence, exhibits, abstract, brief and argument.

Because of the failure of claimant to follow the rules of the Court in this reg’ard, and, because of the failure of claimant to come into Court after serving notice upon respondent asking for an extension of time to file the transcript and obtain a waiver for filing of abstract, brief and argument; and because of the failure of claimant to take any positive action upon being served with notice of the filing of the foregoing motion, it is the ruling of this Court that the motion to dismiss with prejudice be, and the same is hereby sustained.


text:
    (No. 4736
    Cecil M. Sargeant, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

    John J. Blake, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Cecil M. Sargeant, claimant, filed Ms claim in tMs Court on August 2,1956, alleging:

1. That he was inducted into the Armed Services of the United States on September 4, 1942, and served until January 26, 1944;
2. That for more than six months prior to his induction into the Armed Forces he was a resident! of the State of Illinois;
3. That in March of 1951, as provided by the statute of this state, he made application to the Service Recognition Board for a veteran’s bonus; that his application was denied on the ground that he was discharged under the provisions of Section VIII, AR615360;
4. That application for a corrected discharge was made on December 12, 1955, and that the discharge was corrected showing claimant was entitled to an honorable discharge; that this honorable discharge was filed in the office of the Circuit Clerk and Recorder of Knox County on April 30, 1956.

On October 22, 1956, tMs Court granted leave to respondent, upon motion duly made, and upon giving notice to claimant, to file a motion to strike the claim. No objections were filed to the motion, so that tMs case now comes on for hearing upon the complaint and motion filed by respondent thereto.

. The question presented concerns Chap. 126½, Sec. 65, Par. 3, 1955 Ill. Rev. Stats., which is as follows:

“Any person who had a claim, which would have been compensable by the Service Recognition Board except that during the period for filing claims such person was ineligible by reason of a dishonorable discharge from service, who prior to July 1, 1953, has or shall have such discharge reviewed and has obtained or shall obtain an honorable discharge, and any person who had an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953, but had not by that date submitted sufficient evidence upon which the Service Recognition Board could pay the amended or supplemental claim, shall be entitled to have such claim considered by the Court of Claims, and to have an award on the same basis' as if his claim had been fully considered by the Service Recognition Board."

Inasmuch as the Service Recognition Board denied the claim, because of the dishonorable discharge, and inasmuch as claimant did not, prior to July 1, 1953, have such discharge reviewed, and obtain an honorable discharge, nor did he have on file an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953, this Court would not have jurisdiction by reason of said statute to allow said claim.

It is, therefore, the opinion of this Court that the motion to strike the complaint filed herein should be, and the same is hereby allowed, and the complaint filed herein dismissed.


author: Tolson, C. J.

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

      Opinion filed February 21, 1957.
    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On December 13, 1956, claimant, Elva Jennings Penwell, filed a supplemental petition for reimbursement for monies expended by her for medical services and expenses from February 1, 1956 to December 1, 1956.

Claimant was injured in an accident, while employed at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The accident occurred on February 2, 1936, and the original award is reported in 11 C.C.R. 365. This Court retained jurisdiction of the case, and additional awards have been made from time to time.

The petition before the Court at this time again discloses that claimant is permanently disabled, and is entitled to an additional award. Original receipts, received in evidence, establish the following claim:

(1) Nurses
(a) Wages _______________________________________________________________________$1,373.15
(b) Board and Room________________________________________________________ 533.75
$1,906.90
(2) Drugs and Supplies___________________________________________________ 74.75
(3) Physician ----------------------------------------------------- 1,056.07
(4) Miscellaneous ______________________________________________________________________ 122.61
Total ______________________________________________________________________________$3,160.33

An award is, therefore, made to claimant for monies expended from February 1, 1956 to December 1, 1956 in the amount of $3,160.33.

The Court reserves jurisdiction for further determination of claimant’s need for additional medical care.


text:
    (No. 4607
    Marie Weygandt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 21, 1957.
    Gilbert Rosch, Edward W. Garnholz and Floyd D. Stewart, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claim was made by Marie Weygandt against respondent for personal injuries sustained by her on August' 18, 1953, while she was a guest at the Illinois State Fair at Springfield, Illinois, for which a demand has been made for $7,500.00.

The doctor and hospital bills amounted to approximately $250.00. Claimant contends that she has been unable to follow her usual occupation, and, as a result, has suffered loss of wages in an undetermined amount.

The record consists of the following:

Complaint.
Answer in the nature of a Departmental Report.
Reply filed by claimant.
Transcript of testimony taken before Commissioner Jones on September 21, 1954.
Claimant’s and respondent’s briefs and arguments.
Reply brief and argument filed by claimant.

Claimant, her sister, Mrs. Ehrhold, her sister and brother-in-law, Mr. and Mrs. Hegele, and the Hegele’s two small children arrived at the State Fairgrounds at about 1:00 P.M. They paid admission, and, after visiting numerous exhibits, were preparing to board a bus, which was near the Administration Building.

Within the immediate vicinity of the location where they were going to board the bus was a concession stand, which sold sandwiches, drinks, etc. Near the concession stand was some debris, and, as claimant stepped from the curbing with her right foot, which was at about 3:30 P.M., she felt something slippery under her heel. Her left foot slipped causing her to lose balance, and she fell on her arm. She was assisted by policemen in attendance at the First Aid Station. Her arm started to swell. Dr. Farney gave her a hypo, and recommended that she be taken to St. John’s Hospital in Springfield. From X-rays taken there, it was discovered that she had a broken wrist. A cast was applied. While the break has now knitted, she is still bothered by the wrist due to the fact that a piece of the bone is still lodged in it. This fact was testified to by other doctors as to the cause of her pain. They stated it would necessitate surgery to remove the bone fragment, and that the wrist was weak. Claimant also testified that she was experiencing some pain in her knee. Her claim is for medical bills and loss of earnings.

There is testimony that there was debris, presumably in the street, near the concession stand, and apparently some papers or substance on the sidewalk, from which claimant stepped, were sticky, but no one was able to identify what she stepped on, or just how she happened to slip and fall, other than that her left foot slipped, as she stepped into the street preparatory to boarding a sight-seeing bus. We are unable to determine from the record the amount of debris, which had accumulated or the condition of the grounds in the vicinity of the stand. Furthermore, apparently no one saw her fall, other than her relatives, nor was anyone able to testify why she fell, other than from stepping on a gummy or sticky substance.

There was no testimony offered by respondent. However, in the Departmental Report, which is in the nature of an answer to the complaint, it is admitted that the fair was being held on the date of the accident, namely August 18, 1953, and that during the fair the state employed a maintenance crew for the purpose of keeping the streets and sidewalks on the said fairgrounds and the buildings thereon in a neat, safe and husbandlike manner, and that the maintenance crew carefully and faithfully performed their duties, having in mind the safety, welfare and protection of the guests and persons attending said fair. Particular reference was made to the area in the vicinity of the Administration Building. Furthermore, during the fair in 1953, respondent, through its agents, did not have any knowledge or information as to any unsafe and dangerous conditions, which existed on said fairgrounds during the holding of said fair, as alleged in this complaint.

Claimant relies, first, upon the fact that she was an invitee, as distinguished from licensee, and there is no question but what she was an invitee. There is no dispute as to the law in regard to invitees, in that more responsibility is placed on respondent than if claimant was a licensee, requiring the owner of the premises tc use reasonable care and caution in keeping the premises reasonably safe for use by such invitee.

Second, the negligence charged is permitting debris to be on the sidewalk near the concession stand, or in the street, upon which claimant slipped and fell.

Third, claimant contends that in regard to notice the evidence offered was sufficient to make a prima facie ease even though respondent did not have actual notice, (which is absent from the record). Further, claimant contends the state had constructive notice of the condition of the place where the accident occurred, and the Court should take into consideration not only the character of the place involved, but also the surrounding elements and circumstances, which are present in a gathering such as existed at the Illinois State Fair on the day in question. Claimant further contends the Court should bear in mind the great number of people, and the likelihood of various elements of waste being thrown about the streets and sidewalks in and near where the concession stands were located, so as to cause a duty to be placed upon respondent to see that sufficient means were at hand to keep that area clear.

Claimant is also relying upon the fact that respondent offered no- evidence, and, that that in itself strengthens the claimant’s case, for it is an established principle of evidence, recognized everywhere, that where evidence chiefly in control of the adverse party is not produced, failure to so produce that evidence tends to strengthen the probative force of the evidence given to establish such claimed fact or facts.

Respondent is relying upon the material and pertinent portions of its answer, which is in the nature of a Departmental Report, to the effect that it did have maintenance crews throughout the grounds during the entire fair, and on the day of the accident in question, and denied the existence of a large amount of debris as was alleged in the complaint and testified to by claimant’s witnesses. It was further apparent that none of respondent’s employees were in the immediate vicinity when claimant fell and sustained her injuries; and, secondly, the state had no knowledge of any excessive or dangerous condition, as alleged by claimant, and it had no knowledge or information as to the particular injury until the complaint was filed in this Court.

Respondent is also relying upon the fact that claimant attempted to cross the street near the Administration Building, but not at the sidewalk or crosswalk. She stepped in the street with her right foot, and, when she put her left foot down, she slipped and fell. She was looking down as she left the curb, because of the amount of debris in the street to dodge, and she did not know what she stepped on, but after the fall there was some soft or sticky substance on her left heel. Her sister did not see her fall, but saw her after she fell, and verified the injury to her right arm.

The first point of respondent’s brief has to do with actual or constructive notice of the defect alleged to have caused the injury, and contends that, unless claimant proves either actual or constructive notice of the defect, recovery should be denied, citing:

Delaney vs. State of Illinois, 21 C.C.R. 191.
Di Orio vs. State of Illinois, 20 C.C.R. 53.
Arnett vs. City of Roodhouse, 330 Ill. App. 524.

The Delaney case was one where this Court sustained a motion to dismiss the claim on the ground that the complaint was insufficient, because it failed to allege respondent to have had actual or constructive notice of the defect alleged in the complaint; and, furthermore, that said defect was dangerous and unsafe for ordinary travel.

In the Di Orio case, it was held that it would be a dangerous precedent for this Court to hold that the state would be liable for all defects on a highway, which it was under duty to maintain; that there was nothing in the record to show respondent was guilty of any negligence, and to hold that the state would be liable without notice, actual or constructive, would be making the state an insurer.

The Arnett case involved a situation where a manhole cover tilted when plaintiff walked across it, and, as a result of which, he fell into the hole in the sidewalk up to his hip, and sustained personal injuries.

The Court said in that case, and we quote:

“As a matter of fact the structural condition of such hole and cover may have been perfect, and yet the cover may have been lessened but a few moments before the accident by some child or adult for some unexplained reason. While the evidence does show 'ill adjustment' of the cover at the time of the accident, there is no evidence showing or tending to show any notice or knowledge, actual or constructive, on the part of defendant of such improper adjustment of the cover.”

Numerous cases are cited by respondent to the effect that the state, like a municipal corporation, is not an insurer against accidents upon streets and sidewalks. We do not believe it necessary to comment on all of the decisions cited, since this Court and other courts have held many times that the state is not an insurer of all those traveling upon highways or being upon property owned by respondent. Furthermore, claimant must allege and prove the exercise of due care and caution, which, of course, is the law in all tort eases.

Next, claimant is required to exercise a degree of care commensurate with the circumstances, and will not be heard to say that she did not see that which she must have seen, if she properly exercised her faculty of sight.

Duffie and Hukill vs. State of Illinois, 19 C.C.R. 40.
Dee vs. City of Peru, 343 Ill. 36.
Briske vs. Village of Burnham, 379 Ill. 193.

And, lastly, the burden of proof is upon claimant to establish her claim by a preponderance of the evidence.

It is a well known fact that the Illinois State Fair is a largely attended exposition. It would have been an impossibility for the state to keep the entire grounds free from all debris, which in the instant case could have accumulated within a matter of minutes before claimant slipped and fell. The only duty upon respondent is to have maintenance crews available to keep the premises as clean and safe as possible, taking all matters into consideration.

Before the state conld be held liable, it would have to have either actual or constructive notice of a dangerous or hazardous condition. This is not established by the record. It could be assumed that just prior to the accident some child might have dropped gum or some other sticky substance on a piece of paper, which claimant failed to see, and stepped on, causing her to fall. We do not believe that in a case of this kind the state is required to maintain a staff large enough to keep every piece of paper, candy or gum off of the streets, which accumulate in a short period of time, and certainly could not be expected to remove every substance, which some child might throw upon the ground. To hold otherwise wonld practically make respondent an insurer of every individual attending the fair, which, in our opinion, would be unreasonable.

To recover in cases of this kind it is a prerequisite that claimant prove, first, freedom from contributory negligence; second, negligence of respondent, which was the proximate canse of the accident; and, third, injuries or damages as the result thereof. In this regard, we are also mindful of the fact that claimant was not crossing the street at a crosswalk. There was some responsibility on her part in stepping from a curb into debris, as she testified, and she certainly could anticipate that there might be something underneath the paper, which would cause her to slip, thereby placing the responsibility on her, which she has not assumed in this case.

This is not the sole reason for denying liability. We are basing our denial of this claim primarily on failure to show that respondent’s agents were derelict in their duty to maintain the fairgrounds, or lack of evidence as to actual or constructive notice of the hazardous condition, and, lastly, due to the fact that the state is not an insurer of all persons upon the grounds. We are of the opinion that claimant has not assumed and proven by a preponderance, or greater weight of the evidence the elements, which she is required to prove before recovery can he had.

Claimant’s demand for damages for personal injuries is, therefore, denied.


author: Wham, J.

text:
    (No. 4687
    The L. F. Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 28, 1956.

      Supplemental Opinion filed February 21, 1957.

    Aaron, Aaron, Schimberg and Hess and Herbert L. Hart, Attorneys for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

This cause comes before the Court on the motion of respondent to dismiss the complaint filed herein, which, together with the Departmental Report filed by respondent, suggestions in support of the motion, likewise filed by respondent, and the objections to said motion filed by claimant, establish undisputed and pertinent facts, thus presenting a question of law for the Court, which will be determinative of this cause.

Claimant, The L. F. Corporation, on October 28, 1954, under its then name of Lincoln Fields Racing Association, Inc., filed with the Illinois Racing Board an application for a license to conduct a horse racing meeting during the calendar year of 1955 at its race track located near Crete, Will County, Illinois. Claimant on that date paid to the Board $2,250.00, being an amount equal to 5% of the $45,000.00 fee for this license, in accordance with Sec. 37b of the Illinois Horse Racing Act, Chap. 8, Sec. 37b, Ill. Rev. Stats., (1955 State Bar Association Edition).

The Board on November 16, 1954 advised claimant that 30 days of racing, beginning* May 16, 1955 and ending June 18, 1955, had been allotted to claimant. On November 22, 1954, in accordance with the above quoted statutes, claimant filed its acceptance with the Board, and paid the further sum of $4,500.00, being 10% of the license fee due the State of Illinois.

The Treasurer of the Racing Board, upon receipt of each of the above sums of money, immediately deposited such sums with the Treasurer of the State' of Illinois, as required by the law of Illinois.

Thereafter, on March 24, 1956, claimant advised the Board that it had agreed on March 18 of that year to sell its race track to the Balmoral J ockey Club, and that Lincoln Fields had, so far as legally possible, assigned its rights to conduct its 1955 racing meet to the purchaser, and further agreed that, in the event the purchaser was subsequently granted a racing license, and received credit for the amount previously paid to the Board by claimant, the purchaser was to pay claimant the amount so credited; or, if the amount was refundable to claimant, then claimant was to retain the refund.

On April 26, 1955, claimant further advised the Board by letter that it had assigned to the Balmoral Jockey Club, Inc., all rights to the “1955 racing license deposit of $6,750.00” made by claimant, and requested that the “deposit be applied toward the payment of the balance due from Balmoral Jockey Club, Inc., on account of the racing license to be issued to Balmoral Jockey Club, Inc., for its 1955 racing meet”. This letter of April 26, 1955 was delivered to the Board by the Balmoral Jockey Club, Inc. On the same date and at the same time, the Jockey Club paid its license fee, and requested credit for the $6,750.00 previously paid by claimant.

The Board, thereafter, on May 10, 1955, by letter advised the Attorney General of the State of Illinois of the above state of facts, and, in addition, that the Balmoral Jockey Club had applied for its allocation of the 30 days, theretofore allotted to claimant, said meet to be held at Washington Park instead of Lincoln Fields; that the application had been approved, and 15% of the license fee paid by Balmoral Jockey Club as required by law; that said Jockey Club had'requested the sum of $6,750.00, heretofore paid by claimant, to be credited iipon the balance due on the Jockey Club’s license fee. The Board then requested advice as to whether or not it could give the requested credit. The Attorney General, on June 8,1955, advised the Board in writing that, in his opinion, the Board could not allow the credit. Thereafter, the Balmoral Jockey Club paid the Board the balance of its license fee without being allowed the requested credit, and received its license.

Claimant, on August 23, 1955, demanded in writing that the Board immediately return the $6,750.00 theretofore paid by claimant to the Board. By letter, dated August 24, 1955, the Board, in answer to claimant, refused to comply with the demand on two grounds: namely, the opinion of the Attorney General to the effect that no credit could be paid to the Balmoral Jockey Club, Inc., of said amount, and, further, that the $6,750.00 so paid by claimant had theretofore been deposited with the Treasurer of the State of Illinois.

Claimant’s position, as set forth in its complaint, and its objections to respondent’s motion, is not based upon any claim that the Board wrongfully refused to credit the claimant’s $6,750.00 payment to the Balmoral Jockey Club, Inc., in accordance with the terms of the conditional assignment and claimant’s request; nor does claimant contend that the Attorney General erroneously advised the Board with respect to the question of making this credit. We will, therefore, not consider this question, since it has not been placed in issue by claimant.

It appears to be the position of claimant that the assignment to Balmoral of the amount paid the Board by claimant never became operative, that claimant retained all of its rights, title and interest to the amount paid, and that the $6,750.00 so paid by claimant was merely a deposit, which must be returned to claimant, inasmuch as no license was issued to claimant.

The Racing Board correctly advised claimant that it conld not refund the amount paid by claimant to the Board. At the time the request was made by claimant, the amount had been turned over to the Treasurer of the State of Illinois by the Board.

The law is firmly established that a valid license fee, correct in amount, voluntarily paid to a governmental body, cannot be recovered in the absence of a statute authorizing such recovery.

There can be no question but what claimant voluntarily paid the $6,750.00, and, in fact, initiated the procedure by filing its application for a racing license before the Board.

The fact that the license was not issued is in no way determinative, since the only apparent reason for the non-issuance of the license applied for was the voluntary abandonment by claimant of its right to such license. It is apparent that claimant no longer desired to obtain such a license. There is no statute providing for the refund of the amount so paid by claimant.

The authority relied upon by claimant in support of its position is an abstract statement appearing in 53 C. J. 701, to-wit: “A sum deposited with an application for a license may be recovered on the failure or refusal to issue a license, without any fault on the part of applicant”. This is not controlling, since the only reason such license was not issued was because of claimant’s own actions and wishes, and not by reason of any failure or refusal on the part of the Board.

If claimant’s view of the law on the subject is correct, then all persons or organizations applying for a license can, for any reason and at any time prior to the actual issuance thereof, change their minds, demand a refund, and be entitled to recover from the state all amounts voluntarily paid. This would not be desirable from an administrative standpoint, nor is it the law.

Similar cases have been before this Court, and we have consistently held that no recovery can be had. George S. Warren, Et Al vs. State of Illinois, 14 C.C.R. 84; Johnson, Assignee of Bud’s Shoe Store, Inc. vs. State of Illinois, 12 C.C.R. 157; Wright and Wagner Dairy Corporation vs. State of Illinois, 12 C.C.R. 149; Orchard Theatre Corporation vs. State of Illinois, 11 C.C.R. 271; Chicago Cold Storage Warehouse Company vs. State of Illinois, 13 C.C.R. 111.

We are of the opinion that the record in this case does not establish the right of claimant to a refund of the amount claimed, and, therefore, the motion of respondent is allowed, the complaint is dismissed, and the claim denied.

Supplemental Opinion

Claimant has filed a petition for rehearing and an amended complaint. Respondent has filed objections to the petition for rehearing, and a motion to dismiss the amended complaint.

As to the petition for rehearing, claimant has made no contention sufficient in our judgment to require a different conclusion than that expressed in our original opinion. We do not deem it necessary to detail our reasons for denying the petition, since they are obvious from a reading of the original opinion. The petition for rehearing is denied.

As to the amended complaint, we will consider it filed by leave of Court, and will pass upon its legal sufficiency, which has been called into question by respondent’s motion to dismiss.

The only issue raised by the amended complaint, which was not raised by the original complaint, is claimant’s contention that- the Illinois Racing Board failed and refused to credit claimant’s $6,750.00 payment to the Balmoral Jockey Club, Inc., thereby wrongfully depriving claimant of said amount, inasmuch as Balmoral would have been required by the terms of the agreement between claimant and Balmoral to make payment of said amount to claimant upon allowance of the credit. Claimant prays that this Court enter an award of $6,750.00 in its favor “as the amount due to claimant by virtue of the error of the Board in refusing to credit the amount of said deposits to Balmoral”.

This theory of claimant raises fundamental questions regarding the jurisdiction and power of both the Illinois Racing Board and the Court of Claims.

With respect to the Racing Board, the questions are these:

First, does the Board have the power and authority to grant credit in such a situation?
Second, if the Board does have such power and authority, is it a discretionary power, or, was the Board under an absolute duty to grant the credit requested?

With respect to the question involving the jurisdiction of the Court of Claims, assuming that the Board had the power and authority to consider the question of the requested credit, and, in its discretion, grant the request, does this Court have the jurisdiction to determine whether the Racing Board erred in not doing so?

It is obvious from a reading of the statute creating the Board and prescribing its duties that the Board is an administrative body exercising both ministerial and quasi judicial powers. Chap. 8, Pars. 37(a) and 37 (r), Ill. Rev. Stats., (1953 State Bar Association Edition).

With respect to the Board’s powers in connection with the issuance or non-issuance of licenses authorizing the holding of a horse racing meeting and matters related thereto, the statute provides for hearings by the Board and judicial review of the Board’s decisions.

Paragraph 37 (c) of the Act provides in part as follows:

“In case any license is refused or revoked by said Board or in case any applicant is aggrieved at the action of the Board, the party or parties affected by said refusal, revocation or action shall be entitled to a hearing in the manner hereinafter provided.”

The statute then sets forth the mechanics for holding such a hearing, and provides that the Board shall thereafter make its findings, which shall be final, subject, however, to administrative review.

Again, assuming that the Board had the power to exercise its discretion in considering the question of granting the requested credit, it is apparent that any decision by the Board on that question would be within its quasi judicial powers.

The decision of the Board in refusing to allow the credit was predicated upon the opinion of the Attorney, General, which opinion the Board sought. The decision was based upon a declaration that the Board had no authority to allow such a credit in the absence of specific statutory authority.

Thus, the effect of the decision was that the Board, acting in its quasi judicial capacity, interpreted the statute, which created it, and determined, whether rightly or wrongly, that it had no power to exercise discretion in considering the request for allowing such a credit.

If the Board misconstrued its powers, and by reason thereof failed to exercise its discretion, then there is nothing this Court can do, inasmuch as the discretion to be exercised, if any, was that of the Board as a quasi judicial function, and not that of the Court of Claims.

It would be highly irregular and improper for one judicial body to speculate upon what action another judicial body would have taken had it seen fit to accept jurisdiction and exercise its judicial discretion.

It would likewise be completely without the jurisdiction of this Court to sit in review of the action or inaction of a quasi judicial body, and we, therefore, make no finding as to whether the Board erred in refusing to exercise its quasi judicial discretion, if any, in the matter.

There is one remaining question for us to determine, namely, was the Board under an absolute duty to grant the credit requested?

We have carefully studied the briefs, heard extensive oral argument, and conducted considerable research into the law on this question, and have neither found nor been referred to a decision or statute, which establishes such a duty.

From the pleadings, taken in connection with the Departmental Report, it cannot be said that the Board-entered into a contract with claimant, nor was it bound by the terms of the agreement between claimant and Balmoral. Neither can it be said that the Board induced or misled claimant through any improper action to place itself in its present position.

It was clearly stated by claimant in its letter of March 24, 1955 to the Board that the consumation of the sale of its track to Balmoral was not contingent upon obtaining the consent of the Board to transfer claimant’s racing dates to Balmoral. The only reference in that letter with respect to the monies theretofore paid by claimant to the Board for its racing license was that, “if” Balmoral is granted a license and receives credit, they “will pay it” to claimant, and, “if the deposit is refundable to Lincoln Fields by the Board, Lincoln Fields will retain said refund”. Its letter, dated April 26, 1955, simply requested that Balmoral be given credit for the amount theretofore paid by claimant.

Nothing contained in any communication addressed to the Board indicated any intention of claimant to reassert an interest to a racing license at Lincoln Fields or any other track in the event no credit or refund was made.

Sec. 37 (b) of the Horse Racing Act provides that: “The Board may, in its discretion, refuse racing dates and license to any applicant, who does not at the time possess a finished race track ready for racing and for the accommodation of the public”.

Claimant had, prior to requesting that a credit be allowed to Balmoral, conveyed Lincoln Fields and “the right to conduct a race meeting” upon Lincoln Fields during the dates theretofore allotted claimant by the Board.

The allotting to Balmoral for racing at Washington Park of the dates, which claimant abandoned, in no way made the Board a party to the agreement, which was already completed, and it is obvious that such allocation had nothing whatsoever to do with claimant’s decision to part with its property, and- abandon its tentative rights to a license.

We conclude the facts appearing in the pleadings and the record before us fail, in our judgment, to raise in law or equity an absolute duty on the Board to allow the requested credit.

Consequently, in view of the foregoing, the amended complaint fails to state a cause of action against respondent within the jurisdiction of this Court, and the motion to dismiss the amended complaint is granted, and the claim denied.


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    (No. 4721
    International Business Machines Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 21, 1957.

    Beamish, Edwards and Brunnemeyer, Attorneys for Claimant.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Fearer, J.

A claim was filed herein on May 7,1956 in the amount of $1,668.00, in accordance with a contract between claimant and the Northern Illinois State College, DeKalb, Illinois, for the rental of certain machines set forth in said contract, and invoice voucher attached to the complaint and made a part thereof.

The record consists of the following:

Complaint.
Commissioner’s Report.
Transcript of evidence.
Motion of claimant for leave to waive the filing of brief.
Order of the Chief Justice granting the motion of claimant for leave to waive the filing of brief.

The evidence offered conforms to the complaint, and the Commissioner’s Report so found that the claim was based upon a contract dated March 30, 1950, which was claimant’s exhibit No. 1, and the rental period covered was from January 1, 1955 through March 30, 1955, and involved the sum of $1,668.00. The aforesaid rental claim was made by claimant on August 31, 1955, and claimant was informed by letter from the Senior Accountant of Northern Illinois State College, dated January 27, 1956, (a copy of said letter being claimant’s exhibit No. 3) to the effect that the billings occurred after the appropriation for the biennium had lapsed, which in this case had occurred on June 30, 1955. The rentals for the machines set forth in the voucher did not cover the same machines as were set forth in the contract, due to changes in the machines by agreement of both parties, as provided for in the contract.

Respondent did not introduce any testimony. Claimant’s exhibit No. 3, herein referred to, written by the Senior Accountant, Mr. Hayden, assigns as the only reason for failure to pay the rental provided for was the lapse of the appropriation, referring to the last bienium covering the period from July 1, 1953 through June 30, 1955. In the letter Mr. Hayden states that, in order for all bills and invoices to be paid covering services or merchandise received between those two dates, it is necessary by state law that invoices be in the College’s office prior to June 30,1955.

There is no question but what the funds were on hand at the time the contract was entered into. Therefore, this Court has held many times that the mere lapse of the appropriation, as long as the funds were available at the time the contract was made, would not defeat claimant’s right to recover, there being no other dispute involved.

It is, therefore, the order of this Court that claimant be awarded the sum of $1,668.00.


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    (No. 4731
    Richard Green, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 21, 1957.

    Butz, Blanke and Stith, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claim was made by Richard Green against respondent for the sum of $1,342.47. Claimant is a farmer residing in the Town of Otto, County of Kankakee, and owns a parcel of land situated in the Southwest Quarter of Section 19, Township 30 North, Range 13, West of the Second Principal Meridian, partially bounded by Routes Nos. 45 and 54.

The complaint alleges that, in the spring of 1954, claimant planted approximately two-thirds of one acre in Rosa Multiflora Japónica, commonly called Multiflora roses, on the parcel of land above mentioned, and near the highway right-of-way, for the purpose of harvesting the roots thereof for sale in the fall of 1955. There were forty rows of seed, each row being 600 feet in length. In the month of June, 1955, there were approximately 75,000 Multiflora rose plants growing on said parcel of land, above described.

In the last week of June, 1955, respondent’s agents, while cutting grass and weeds along and upon the highway right-of-way adjacent to claimant’s land, trespassed upon the land of claimant with mowing machines, and mowed the entire parcel upon which the Multiflora roses were growing. The entry into the field of claimant and the mowing thereof were done without the knowledge or consent of claimant.

As a consequence thereof, the rose plants were destroyed entirely, and all were retarded in growth, so as to render the entire crop insufficient and inadequate to fulfill the deliveries, which claimant had contracted to make therefrom.

Claimant sets forth in particular the various numbers of roots with their respective prices, totalling $1,484.97. In mitigation of damages he stated he did actually harvest and sell from said parcel plants valued at $142.50, making a net sum due of $1,342.47.

A Departmental Report was filed by respondent, as was a statement, brief and argument by claimant. An oral motion was made by respondent to waive the filing of a brief in this case, which motion was granted by the Court.

This case was heard by Commissioner Presbrey, and his report has been filed herein.

In the Departmental Report it appears that U.S. marked Routes Nos. 45 and 54 were a part of the statutory system of state highways, and the maintenance thereof included the mowing of vegetation within the limits of the established right-of-way. The right-of-way at the place in question lies adjacent to claimant’s property, and the right-of-way line is marked by concrete posts set at long intervals bordering claimant’s property, there being no fence or other structure to mark the line.

On June 30, 1955, the right-of-way adjacent to claimant’s property was covered by a dense growth of rye grass, and claimant’s property was overgrown with weeds. This dense growth of vegetation obscured any intervening right-of-way marker, and also any planting below the top of the grass and weeds.

Employees of respondent were* assigned to mow the particular right-of-way in the area under consideration, and tandem mowers were used. Inadvertently the mowing operations encroached upon claimant’s property in the area in question, which was about two-thirds of one acre in size.

The testimony consisted of that of claimant, together with four related exhibits. There is little dispute as to the pertinent facts, all of which are set forth in claimant’s testimony and the Departmental Report.

Respondent’s case consisted of the testimony of Roy Hemp and Edward Willems. Mr. Hemp testified to the effect that he mowed the aforesaid roses inadvertently in the month of June, 1955, and the roses in question were not infringing upon the state right-of-way. Mr. Willems, a certified nurseryman, who was the District Landscape Architect, testified as to the number of roses lost, and the price per thousand.

The testimony of claimant corresponds to the allegations made in the complaint as to the number of plants lost, and the price that would have been received therefor had they been sold by claimant.

The Commissioner also found that it was necessary for claimant to purchase plants in order to satisfy and retain his customers. Claimant purchased approximately 70,000 plants from one nursery, and one-tenth of an acre of plants from a neighbor, as is represented by exhibits Nos. 3 and 3-A. There was a duty upon respondent’s agents to only mow along the right-of-way. By inadvertently mowing the row bushes, as well as the weeds, the state became liable for all damages suffered by claimant.

It is, therefore, the opinion of this Court that claimant should be allowed an award in the amount of $1,342.47.


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    (No. 4665
    Walter Brewton, a minor by his father and next friend, Ogean Brewton, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 22, 1957.

    Braden, Hall, Barnes and Moss and Lymus Wallace, Attorneys for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Fearer, J.

Walter Brewton, a minor, 14 years of age, has filed his verified complaint against the State of Illinois, by his father and next friend, Ogean Brewton.

The record consists of:

1. Amended complaint.
2. Answer to amended complaint.
3. Transcript of evidence.
4. Claimant’s and respondent’s exhibits.
5. Briefs and arguments of claimant and respondent, and reply brief of claimant.
6. Commissioner’s Report.

Walter Brewton, having met all of the requirements for admission to the Jacksonville School, which is operated by the State of Illinois for the deaf, was admitted on September 21, 1946.

At 8:15 A.M. on September 6, 1954, he was readmitted into the regular school program, which included a beginning class of woodworking in the vocational department from 8:55 to 10:15 A.M. The class assignment on the first day was to clean up the benches and tools, and to receive tools and preliminary instructions for future work in the class.

This was further found in the Departmental Report of John T. Tyler, vocational supervisor, in a letter dated September 9, 1954 to Thomas K. Kline, Superintendent of the Illinois School for the Deaf, a part of which is the school assignment for the day of the accident, which was to clean up the shop in preparation for the school year.

It was stipulated by the parties at the time of the trial that no power tools of any kind were operated by the students in this class. The beginning classes in woodworking are not permitted to have the use of power tools until they have one or more semesters of experience in the shop, and then only under supervision. It was further stipulated that, at approximately 9:30 A.M. on September 8, 1954, Walter Brewton sustained injuries to his thumb and index finger, when they were severely lacerated by a woodworking machine called a jointer. The jointer was one of the machines located in the woodworking class room at the Jacksonville School for the Deaf.

The vocational woodworking space in question was one large room, as shown by claimant’s exhibit No. 3. At one end of the room were work benches, and at the other end were located the power tools. While the instructor of the beginning woodworking class was carrying out the program outlined for the day, Walter Brewton lost his forefinger and thumb as aforesaid.

The class consisted of approximately eleven boys, who were under the instruction of Mr. John T. Boat-wright, vocational teacher of the deaf at the institution.

The evidence offered by the state and claimant varies as to certain instructions given to Walter and the rest of the boys pertaining to their duties on the day in question. Respondent contends that the boys were instructed to clean the tools, place them in the racks, and dust the benches; and were warned not to go near the power machinery. Walter testified that he was given a cloth with which to clean within the vicinity of the machinery, including the jointer.

It is apparent that previous classes had been shown pictures, and had been given preliminary instructions as to the hazards of the machinery located within the room. They were instructed in the methods of the use of the machinery to eliminate accidents, and were shown methods employed in the operation of the machines. However, the class in question, including Walter, was never shown the pictures, and apparently the only instructions received by the members of the class were those given on the morning of the accident.

There were no signs posted in and near the power machinery, including the jointer, as to any warnings whatsoever, and the class had been in session only thirty minutes prior to Walter’s accident.

A Mr. Coop, an agent of respondent, just prior to the accident had been seen in the room operating the jointer, and upon completion of his work he turned off the switch, but the blades were still running after he left the room. This was during the period of time when the boys were in the room, and were told to dust where the jointer was located. Two photographs were admitted in evidence, being respondent’s exhibit No. 3, which showed the machine and the condition it was in on the day of the accident. It was also used in explaining the guard, which was activated by a spring putting the guard in place after the machine was used for cutting. There is no question but what the guard was in place protecting the blades. The cutting head of the jointer is partially obscured from view by the guard. The pictures of the machine indicate the cutting head is covered. There is no light or other signal for the purpose of warning a deaf person that the machine is in operation. As Walter was dusting in and around the guard, at a time when the blades were still in motion, the cloth he was using caught and pulled his right hand into the blades of the cutter. His thumb and index finger were severely cut, requiring amputation at the distal phalanges of the right thumb and index finger.

Mr. Boatwright was the only supervisor in the room at the time of the accident, and at the time the boys were dusting, and he did not see Walter go near the jointer.

The evidence reveals that Walter was right-handed, and that the right hand is used to a great extent in sign language employed by deaf persons.

The charges of negligence relied on are:

1. Failure to properly warn a boy 14 years of age, who had no previous experience with power machinery, relative to the dangers involved; failure to properly instruct him in the methods to protect himself; and, failure to determine whether the boy understood and appreciated the dangers involved.

2. There was a duty on the part of the vocational instructor to survey his activities at all times, while in the proximity of dangerous power machinery.

3. The vocational teacher owed a duty to protect a deaf infant of 14 years, while under his charge, from the hazards caused by others, especially when in the proximity of dangerous power machinery.

4. Respondent was negligent in placing an instructor, who was afflicted with a loss of hearing, in a class room where dangerous power machines were employed. Further it is contended that Walter Brewton, due to his age and physical handicap, was not guilty o£ contributory negligence.

Respondent, of course, contends that its agents were not guilty of negligence, which was the proximate cause of the accident resulting in claimant’s injuries. It further contends that claimant, Walter Brewton, was guilty of contributory negligence in going near the jointer, which he had been warned not to go near; that he disobeyed the instructions of the vocational teacher, and that his injury was the sole and proximate cause of his carelessness and negligence.

In a suit for personal injuries to a child, in weighing the evidence, the Court must take into consideration the age of the plaintiff and his capacity to appreciate danger, and, in the absence of proof to the contrary, he would be expected to exercise that discretion and intelligence in protecting himself, which would be expected of an average child of the same age under like circumstances. Morrison vs. Flowers, 308 Ill. 189.

It has been repeatedly held that “negligence” is the omission to do something, which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something, which a reasonable and prudent man would not do under the same or similar circumstances.

This Court passes not only upon the law, but is a tryer of the facts, in the absence of a jury. We are of the opinion that claimant has maintained the affirmative by a preponderance of the evidence, after taking into consideration the age, intelligence, experience and physical handicap of Walter Brewton.

It appears that respondent’s agents were negligent in not keeping closer supervision over Walter Brewton, and that the maintenance personnel, especially Mr. Coop, were negligent in turning off the power equipment, and leaving the power tool before it had come to an absolute stop, knowing that there were inexperienced boys of tender years working in and about the power machinery. Deaf children must rely upon their sense of sight and sense of touch. Even though the blades were protected by a guard, it would not afford sufficient protection to prevent injury to one dusting such a machine, and, knowing this to be true, close supervision should have been placed over Walter Brewton to see that he did not go near the machine while it was in operation. It also appears to us that maintenance personnel should be excluded from the work shop, and not be permitted to use the power machinery during a time when classes are being conducted in woodworking.

We are of the opinion that Walter Brewton was not guilty of contributory negligence under the circumstances, considering the fact that he was a boy 14 years of age, and handicapped by the loss of hearing; and it is our opinion that the proximate cause of his injuries was the negligence of respondent’s agents.

Immediately after the accident claimant was removed to Passavant Hospital where surgery was performed, and the distal phalanx of the right index finger and the distal phalanx of the right thumb were amputated. He was returned to the infirmary at Jacksonville on September 10, 1954.

The only physician testifying in the case was Dr. Phillips, who identified claimant’s exhibits Nos. 1 and 2, being X-Rays taken on December 31, 1955. The doctor’s findings are as follows: Irritation of the nerve endings as the result of the amputation, for which medication and diligent nerve therapy were recommended in an attempt to rehabilitate the nerve muscles, which were, in part, amputated at the time of the original surgery, so that claimant would have a good function of his right hand, realizing in terms of the grasp ability of the hand, which depends primarily on the thumb and index finger; and also his inability to communicate with his companions and friends by reason of the loss of the thumb and index finger, which are used materially in sign language.

We are not bound by any estimate made by the doctor as to percentage of loss of use of the hand. However, it was testified that the doctor considered this to be a fifty per cent loss.

In arriving at the amount of the award, we are taking into consideration the loss of the thumb and finger .at the first phalanx of the right hand. Walter, being a right-handed individual, would be handicapped in the use of his hand for. sign language, and also would be handicapped in future years in the operation of machines.

The Commissioner, in his report, recommended an award be entered for $3,500.00, which we believe to be a fair award under the circumstances.

It is, therefore, the order of this Court that Ogean Brewton, father and next friend of Walter Brewton, be awarded the sum of $3,500.00.


text:
    (No. 4675
    August H. Hess, d/b/a Minnette Boiler and Sheet Metal Works, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 22, 1957.

    August H. Hess, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On September 21, 1952, respondent, through the Division of Architecture and" Engineering, entered into an agreement with August H. Hess, d/b/a Minnette Boiler and Sheet Metal Works, of East St. Louis, Illinois, for the repair of a boiler at the State Penitentiary at Menard, Illinois. Subsequent to entering into the contract, inspections were made on various dates, namely November 28, 1952 and November 20, 1953, of other boilers not covered by the contract at Menard.

It was agreed verbally between claimant and the Division of Architecture and Engineering for the Department of Public Safety that claimant should also make the necessary repairs to the other boilers.

Estimates and bids were given to the Department of Public Safety, the work was authorized, and claimant was instructed to proceed with the extras to repair the boilers.

The original contract, and all extras in addition thereto, were authorized by the Department, and approved by the Division of Architecture and Engineering as of November 20,1953.

The Department of Public Safety was well aware of the fact that the extra work could not possibly be completed prior to the lapsing of the funds appropriated therefor. The Department of Public Safety failed to ask for a reappropriation of the funds.

The work has been completed by claimant, and has been accepted and approved by the Division of Architecture and Engineering.

As the record now stands, and as is evidenced by the Departmental Report covering contract No. 67612, being respondent’s exhibit No. 2, the only reason that payment has not been made is because of the lapse of the appropriation.

Claimant appeared pro se by consent of the Commissioner.

It was stipulated that claimant’s exhibits Nos. 1 to 8, inclusive, and respondent’s exhibits Nos. 1 and 2 be admitted in evidence without objection. Claimant’s exhibits Nos. 1 to 8 cover the contract, correspondence relative to the contract and reason for failure to make payment, the bids and approval of the bids, and approval of the work. Respondent’s exhibits Nos. 1 and 2 recognize the reasonableness of the claim, show the services performed were satisfactory, and set forth the reason why the claim was not paid.

Claimant offered the only witness, who testified as to the contract, the extra work performed, and the reasonableness of the charges made.

This Court has had occasion to pass on similiar situations, and has been allowing claims where the funds were available at the time the contract was entered into, and the only reason for nonpayment of the claim was the lapse of the appropriation at the time of completion, and no funds reappropriated to cover the balances due on contracts of this kind. Also, it has allowed claims where there is no question about materials and services performed by claimants, where inspections have been made, and services and materials accepted by respondent.

It is, therefore, the order of this Court that the claim be allowed in the sum of $2,450.00.


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    (No. 4718
    The Texas Company, A Delaware Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 22, 1957.

    James W. Campbell, Attorney for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On April 2, 1956, The Texas Company filed its complaint to recover payment in the amount of $164.28 for gasoline and oil sold to the state.

A Departmental Report was admitted in evidence, which verified the claim with the exception of one item in the amount of $3.84. This item should have been charged to the new appropriation for the 68th Biennium. Further, the Departmental Report shows that the only reason the claim had not been paid was that the appropriation lapsed before it could be processed.

This case was heard by Commissioner Herbert Gr. Immenhausen, and his report in the following words and figures is hereby adopted by the Court:

“Commissioner’s Report
The Texas Company, A Corporation, by James W. Campbell, its attorney, filed its claim in the above entitled case on April 2, 1956, wherein it seeks to recover $164.28, balance remaining due and owing claimant from various Departments and Divisions of the State of Illinois for gasoline, oils, lubricants and miscellaneous automobile parts in accordance with Purchase Order No. 117143, dated June 21, 1954, issued by the Department of Finance, Division of Purchases and Supplies, for the State of Illinois. Said products were for the use of the Division of Highways during the period beginning July 1, 1954, and ending June 30, 1955. During the period covered by said Purchase Order, the claimant delivered various quantities of petroleum products, materials, etc., to authorized representatives of said departments and divisions of the state at the agreed price. That there is due and owing $164.28 for which claimant has not received payment due to the fact that the claim was not presented before September 30, 1955, the last day on which payment could have been made under the appropriation established for that purpose.
Your Commissioner, Herbert G. Immenhausen, set the case for hearing on January 18, 1957, 10:30 A.M., in Room 827, 160 N. LaSalle Street, Chicago, Illinois.
The respondent, State of Illinois, did not file an answer to the complaint. Respondent filed a Departmental Report of the Division of Highways as follows:
‘Report of the Division of Highways Court of Claims Case No. 4718
The Texas Company vs. State of Illinois
Claimant’s exhibit A is a true and correct copy of Purchase Order No. 117143 issued to the claimant corporation by the State of Illinois, Department of Finance, Division of Purchases and Supplies, on June 21, 1954. The purchase order was effective for the period of July 1, 1954 to June 30, 1955, both dates inclusive.
It has been confirmed that the individual purchases as listed in claimant’s Bill of Particulars were made by authorized representatives of the respective departments and divisions named; that the materials purchased were used in state owned motor vehicles; that the quantities of materials are correct; and the unit prices charged are in conformity with the bid prices on file in the Division of Purchases and Supplies.
Claimant's invoices (sales tickets) could and would have been paid in the regular course of business, if they had been scheduled in sufficient time to be vóuchered before September 30, 1955. Appropriations for the 68th Biennium were in existence, and funds available in them for the payment of claimant’s invoices.
One purchase is excluded from the above report. Reference is made to item No. 16 on sheet 1 of the Bill of Particulars. It will be noted that the purchase was made on July 12, 1955; therefore, not made under claimant’s Purchase Order. The invoice representing that purchase may be scheduled for payment from a current or 69th Biennium appropriation. December 11, 1956
/s/ Earl McK. Guy
Engineer of Claims’
Claimant called George W. Starnes, Assistant Chief Accountant, as a witness, who identified claimant’s Exhibit No. 1 — Purchase Order. It was introduced in evidence. He also identified items on the Bill of Particulars and sales slips signed by. authorized agente of the State of Illinois, which also were admitted into evidence.
The attorneys for claimant and respondent filed a motion with the Court of Claims on February 6, 1957 to waive the filing of briefs and arguments, so that the Court might proceed to dispose of the case upon record.
It appears from the evidence that the materials purchased were used by authorized representatives of respective departments and divisions named in state owned motor vehicles, and that the unit prices charged were in accordance with the Purchase Order in the amount of $164.28 — except item No. 16 for $3.84 dated July 12, 1955, which was after expiration of Purchase Order that expired June 30, 1955. It appears that the only reason these bills were not paid was because they were not presented and certified before the appropriation lapsed on September 30, 1955. Tire award should be made for $160.44 to the Texas Company, Inc.”

An award is, therefore, made to The Texas Company, a Delaware Corporation, in the amount of $160.44.


text:
    (No. 4627
    Robert G. Hanvey, Jr., as Administrator of the Estate of Patricia Anne Hanvey, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 8, 1957.

      Petition of claimant for rehearing denied April 26, 1957.

    Francis V. Flaska and Marvin E. Larson, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Fearer, J.

Claim was made by Robert G. Hanvey, Jr., as Administrator of the Estate of Patricia Anne Hanvey, deceased, for the wrongful death of his wife, which occurred while she was a patient at the Kankakee State Hospital, Kankakee, Illinois, on June 12, 1953, at or about the hour of 1:00 P.M. At the time of her death she was 24 years of age, and left as her sole and surviving heirs at law Robert G. Hanvey, Jr., her husband, and two minor children, Michael Robert Hanvey and Catherine Hanvey, three and two years of age, respectively.

No answer having been filed by respondent, a general traverse of all of the allegations of the complaint and amended complaint is considered under our Rules.

The case was heard by Commissioner George Presbrey. At the onset of the trial there was offered in evidence as exhibit No. 1 a plat of the hospital grounds, drawn to scale, showing the location of the buildings housing the patients, and the location of the Kankakee River running adjacent to the buildings housing the mentally ill patients.

A stipulation was entered into by the parties, by and through their respective attorneys, to the effect that four patients had drowned in the Kankakee River between the years of 1949 and 1953.

Patricia Anne Harvey became mentally ill in June of 1952 after the birth of her second child, Catherine. She had been visiting with her parents, Dr. and Mrs. Jackson of Topeka, Kansas.

Prior to her marriage in September of 1948, she was educated at Antioch College, and, as a part of her education and college training, was sent to Chicago to work at the Museum of Science and Industry, and also at the Field Museum. A portion of her time was spent in residence in Yellow Springs, Ohio, and the rest of the time she spent in Topeka, Kansas with her parents.

Six weeks after her child was born she left Topeka, Kansas, and moved to Chicago to be with her husband.

Up to the time of her mental illness, she was apparently a healthy, well-adjusted individual. There were no signs of her mental derangement until after she returned to Chicago, where she and her husband lived with her husband’s parents, while he was attending school.

Her first suicidal tendencies became apparent on November 21, 1952, when she jumped from the window of a bedroom, and, as the result thereof, suffered fractures of the vertebra, arm and heel. She was taken to the Jackson Park Hospital for treatment for said injuries, and, while a patient there, early in December of 1952, attempted suicide with a rope taken from a restraining jacket. It then became necessary to remove her from the Jackson Park Hospital to the Cook County Psychopathic Hospital, which was on December 3, 1952. She remained in the Psychopathic Hospital for only one week, and was then committed to the Kankakee State Hospital on December 10, 1952.

From the Departmental Report filed in this case, and from the evidence offered by both claimant and respondent, it is apparent that upon her admission to the State Hospital she was out of contact and extremely depressed. She was confined to the hospital ward due to the fractures she sustained when she jumped out of the window. Due to her physical condition, it was impossible to administer electric shock treatments, but instead her treatment was confined to subcoma insulin, and she was further treated for her physical injuries. A gradual improvement was shown, and she was transferred off the acute hospital ward on February 26, 1953. She was classified schizophrenic reaction, acute undifferentiated type. On April 8, 1953, she was granted ground privileges. She also worked on the hospital paper as a reporter, and spent a great deal of her time in the library, had visits with her parents and husband, and on several occasions was taken by her husband into Kankakee visiting parks, eating meals away from the hospital, and apparently was on the road to recovery.

On or about May 1,1953, those in attendance noticed that she was becoming more nervous and restless, and was crying frequently. She was then transferred to the acutely disturbed ward, because of the possibility that she might have suicidal ideas. Within a short time, upon showing a marked improvement, she was transferred to a better ward, and her ground privileges were returned.

She was under the care of Dr. Ring, who testified that she had never expressed to him the thought she would commit suicide. However, both of Patricia’s parents testified that Dr. Ring had said he felt that she had, and also had expressed suicidal tendencies. Dr. Ring also testified that he did not consider her condition sufficiently improved to warrant transferring her to an open ward where a safeguard would not be present.

In the week of June 8, 1953, Dr. and Mrs. Jackson visited their daughter, and consulted with the hospital authorities relative to the advisability of moving Patricia to the Menninger Foundation at Topeka, Kansas, as they had been advised by Dr. Louis Robbins that he would like to make an evaluation of her case at the clinic. They talked to Dr. Ring about this, and were referred to Mrs. Kelly of the Social Service Department of the hospital. Her file was reviewed, and they were refused the right to take her back to Topeka. It was impressed upon them that it would be difficult to take her out of the state, under all the circumstances, and that the authorities at the hospital had not given up hope of her recovery. They were advised that, if she did not show a marked improvement within a comparatively short time, now that her physical injuries were improved, a similar request might be more sympathetically received. They were also advised that there was danger in removing the patient to the home or place, where the onset of her mental illness began back in 1952.

On the day of the drowning, Patricia was seen by Mrs. Branson, the nurse in charge of her ward, who, just prior thereto, was sitting on the lawn with other patients, who did not have ground privileges. Patricia came by and asked Mrs. Branson to light her cigarette. She talked with her a few minutes, and then walked across the lawn in the direction of the river. It was pointed out that the river was about 1,000 feet from where she was quartered. She was not seen from that time on until two of the inmates found her book and shoes on the river bank, and saw her swimming around in the water, apparently swimming well. All of a sudden she screamed for help, and then disappeared. An attempt was made to row out in a boat to rescue her, but to no avail.

Claimant emphasizes: First, previous attempts of suicide; Second, the insufficiency of the staff, particularly psychiatrists, there being only one, and the fact that Dr. Ring himself was not a psychiatrist; Third, the lack of attendants patrolling the grounds, and failure to station life guards protecting patients from entering the river; Fourth, failure of the state to construct fences or barricades protecting patients; and, lastly, the negligence of respondent’s agents in permitting claimant’s intestate to wander about the grounds with the easy access to the river unprotected. It is contended that the consequences of her act in entering the river and drowning should have been foreseen by respondent’s agents, because of her previous suicidal tendencies.

Respondent, in its brief, relies upon three points in defense of the claim:

First, respondent not only discharged its duty, but did not violate any duty owing to the deceased; Second, claimant has failed to prove any negligence on the part of respondent; and, Third, assuming that respondent was negligent, which respondent denies, such negligence was not the proximate cause of decedent’s death.

It is conceded, and rightfully so, that the responsibility imposed upon state institutions, such as the Kankakee State Hospital, in the care of its patients is the same as that imposed upon non-immune-to-suit private hospitals. In this regard, our attention is called to the case of Lovin vs. State of Illinois, decided by this Court on April 21, 1955, being case No. 4577, wherein we cited the case of Simmons vs. South Shore Hospital, 340 Ill. App. 153, in which was cited the case of Maki vs. Murray Hospital, 91 Mont. 251, wherein the court said:

“Defendant owed Martin Simmons the duty of protection, and was bound to use such reasonable care as his known condition required, but was not an insurer of his safety."

In the Simmons vs. South Shore Hospital case, supra, we quote from the court’s opinion on page 158:

“The question is whether there is any evidence in the record fairly tending to prove that the hospital through the techini'cian was guilty of violating its duty in failing to foresee, as a reasonably pmdent person in the same business and with knowledge of Simmons’ medical history and present condition, that it was probable that during the technicians’ absence of about two minutes, Simmons . . . would have an anginal attack . . . and fall from' the cart.
Plaintiff insists that some reasonable minds would infer from the favorable evidence that under the circumstances the techinician’s duty was to watch the decedent while he was under her care, and be in a position to prevent his falling from the cart. . . .”

At page 159, the court concluded:

“We must not shut our eyes to the obvious consequences of imposing unreasonable burdens upon hospitals. Under a logical extension of plaintiff’s view, the technician would not have been free to place the films in the tank in the dark room off the laboratory without being negligent for she would not then have been in a position to prevent Simmons from falling. We think that all reasonable minds should' and would agree that the answer to the precise question is that the defendant had no obligation not to leave Simmons for about two minutes under the circumstances. . . .”

It is difficult to reconcile cases cited by claimant, and those cited by respondent in their respective briefs and reply brief. It is apparent that the courts in each case have followed somewhat the same standards as to care of patients, taking into consideration the treatment necessary for their recovery, the condition of their health, the necessity of care required, and the question of foreseeability of the. natural and probable consequermes of their care or lack of care. This will he a concern whether a mental patient, or any other patient, committed suicide by whatever means, including drowning.

The only way that the state could protect all mental patients, regardless of the progress of improvement they had shown, would be not to grant any ground privileges, or any privileges whatsoever, as were extended to Patricia Hanvey; not to permit any patient of this kind, or any other type, privileges, because there is always a possibility that any mental patient might find some means to destroy himself; and, to keep all patients under constant surveillance. This, in our opinion, would certainly be a detrimental factor, and would impede recovery, as it is unquestionably a part of the therapy treatment as mental patients show signs of improvement and self-reliance to grant them privileges preparatory to restoring them to a natural and normal existence, which, as in her ease, was permitting her to leave the grounds with members of her family, visit the library without any restraint whatsoever, walk throughout the grounds, which had been beautifully landscaped, and to even view the river and the landscaping along the edge of the water, the beauty of which adds to the institutional grounds, and could not help but assist patients in their recovery.

It is also a .well known fact, which is borne out by the evidence in this case, that the doctors, nurses and social workers had treated Patricia Anne Hanvey in every way possible, and, as a part of her treatment, permitted her to have ground privileges, and to walk throughout the grounds without any restraint. To treat her case otherwise would have been unfair to her, and consequently unfair to her family. To keep her under constant care, or confined in a ward with mental patients, who were in a much worse condition than she, which, in effect, would have been depressing to her, and would not have been conducive to her improvement and restoration to a normal life in society.

In regard to the hospital being understaffed, we must bear in mind that respondent is treating and attempting to restore to normal lives many thousands of patients, who are unfortunate and unable to pay for private institutional- care, which is quite costly.

We do not believe that respondent was negligent in permitting ground privileges to Patricia, and we believe that respondent’s agents made a fair diagnosis and appraisal of her case in permitting her certain privileges, even in view of the fact that she had attempted suicide on two previous occasions before being admitted to the institution. She apparently was well known, and was conversant with a great many of the employees, and certainly the nurse, in charge of mental patients on the day that she drowned, was not apparently concerned with her wandering toward the river. It may be that Patricia had not expressed to her such suicidal tendencies, since being admitted to the hospital. It possibly could be said that any mentally deranged person might have suicidal tendencies.- Still we believe that, if respondent’s agents had reasonable grounds to believe that a recovery in each case was being made, they certainly should not be penalized for not watching each and every patient every minute of the day when a suicidal attempt could be made, and done so- in many different ways.

Respondent relies on, and has cited many times in its brief, the case of Fowler, Et Al vs. State, Court of Claims of New York, 78 N.Y.S. (2d) 860. This was a case where claimant’s intestate was confined to a State Hospital in New York. A previous atempt at suicide was made, and, during a period of convalescence and less restraint, did commit suicide. The case of Root vs. State, 40 N.Y.S. (2d) 576, was cited in the opinion. The court held, and we quote from the opinion:

“The state is duty bound to furnish inmates of its hospitals for mental defectives with every reasonable precaution to protect them from injury, either self inflicted or otherwise. Shattuck vs. State, 166 Miss. 271.”

The court continues:

“While the degree of care owing to its inmates may be more exacting because they are wards of the state and the state is the guardian of their well-being and safety, the state nevertheless is not an insurer of the safety of the inmates of its institutions. There was no duty upon the state to maintain individual and constant supervision over the deceased herein. The state’s employees and physicians had knowledge of the deceased’s mental condition and had classified him as a potential suicide, but the record disclosed the fact that he was not a case for isolation or for a restraining garment. He was not assigned or kept in a disturbed ward, and he had, as appears from the hospital record, shown signs of improvement, was co-operative, and had, on occasions prior to his death, made statements and indicated to the physician that he no longer entertained any thought of doing away with himself. There was nothing unusual about his mental condition to warrant having other care or treatment than was administered to him. It is not disputed that the making of beds was a form of occupational therapy, which is a method of treatment of the deceased’s condition.
The attendant was in the corridor adjoining the dormitory in which the deceased and two other inmates went for the purpose of making up beds. While it is true that the attendant did not constantly have the deceased within view, there was reasonable surveillance and watchfulness on his part over the deceased and the others in that group. There was nothing about the deceased's condition to justify any reasonable perception of any risk in allowing him in the dormitory with the others making up beds.
He had done that on a number of previous occasions. Futhermore, there is no such duty on the state to maintain individual supervision for each potential suicidal case. Any such rule of law would place an unreasonable burden upon the state and the authorities in charge of insane patients, and would also be contrary to the accepted methods of treatment of such patients. It also appears from the record herein that to keep a patient cooped up in one room and to limit his activities and prevent his taking part in work, in doing something useful about the ward, is harmful; and that as patients lose or have lost .their suicidal tendencies, they are given more leeway.”

In the Fowler case, it was pointed out that there was marked improvement in the condition of the decedent, that her progress had been greatly aided by the occupational therapy rendered to her, that the hospital authorities and attendants had no reason to be apprehensive of any impending danger, that, as on prior occasions, she performed her work without cause for alarm or close surveillance, and that periodic checks were made as to her activities and whereabouts.

From the evidence in the case at bar, we believe the samé could be said about respondent and its agents in the case of Patricia Anne Hanvey.

The only other contention made by claimant as pertaining to the negligence of respondent was the location of the institution along the Kankakee Eiver. This, we do not believe is worth while to even comment on. Where-ever an institution might be located, there might be many means of self destruction. Nor will we comment on the fact of the previous drownings. We do not have enough before us as to the mental condition of the patients, and the question of whether or not the agents of the state could foresee the consequences of the patients’ acts, as each case rises or falls on a question of fact as to how much care each and every patient would require. And, lastly, as to the question of the construction of barricades or fences along the river bank, we are of the opinion that such measures would not have prevented Patricia Anne Hanvey from committing suicide.

The claimant also goes into the question of the amount of recovery in wrongful death cases, believing that under our statute a recovery could be had for all three next of kin, which, of course, is erroneous, as the limit of recovery in a wrongful death action is one recovery for the administrator for the benefit of the next of kin of decedent, which in this Court is $7,500.00. It is not necessary to go into the question of pecuniary loss in cases of this kind for the reason that it is the opinion of this Court that no award should be made.

It is, therefore, the order of this Court that the claim be denied.


text:
    (No. 4630
    Francis Herman, Florence DeMaire and General Exchange Insurace Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 26, 1957.
    Manns and Shaw, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimants, Francis Herman, Florence DeMaire and General Exchange Insurance Corporation, have filed an amended complaint, consisting of three counts, for personal injuries and property damage. The General Insurance Corporation is made a claimant for the reason that it paid the collision loss of Francis Herman in the sum of $955.84, The total damages to the- automobile were in the sum of $1,005.84, and claimant, Francis Herman, paid the remaining $50.00.

On September 13, 1953, at or about the hour of 3:30 P.M., claimant, Francis Herman, was driving and operating his 1953 Chevrolet coupe in a southerly direction on U.S. Route No. 41 near the City of Waukegan, Lake County, Illinois. His mother, Florence DeMaire, was riding with him at said time.

The road upon which he was traveling was a four-lane highway with a parkway running throug’h the center, which provided two traffic lanes for northbound traffic, and two traffic lanes for southbound traffic. The visibility was good, and the pavement was dry. Claimant, Francis Herman, while driving approximately forty-five miles per hour, came upon a convoy of trucks of the Illinois National Guard. The last truck in the convoy was operated by Corporal Krieger, who was traveling in a southerly direction. The convoy was traveling approximately thirty-five to forty miles per hour. There was a posted speed limit in this area of forty-five miles per hour. The convoy and claimant were traveling in a southerly direction in the extreme westerly traffic lane provided for southbound traffic. Claimant pulled into the easterly southbound traffic lane to pass the truck driven by Corporal Krieger, and, just prior to completing the passing, his car was struck on the side by the truck, which caused it to turn over into the parkway.

Claimants, Francis Herman and Florence DeMaire, were injured, and Francis Herman also sustained property damage.

The only eye witness to the accident, other than the two claimants, was Martin B. McCarthy, who was traveling in a southerly direction about 150 feet north of claimant’s automobile. He substantiated the testimony of the claimants as to the occurrence.

Corporal Krieger did not stop at the scene of the accident. His truck was seen some distance down the road, and there was paint, which had been scraped off of claimant’s car, on the side of the truck, which indicated that the truck had come in contact with claimant’s car, and shoved it over into the parkway.

None of the witnesses saw Corporal Krieger give either a mechanical or hand signal,, which would have indicated that he was turning from the westerly southbound traffic lane into the easterly southbound traffic lane.

From the testimony we are of the opinion that claimants were not guilty of contributory negligence, were making a proper passing of the last truck in the convoy, and that claimant, Francis Herman, was driving his automobile at a lawful rate of speed at said time.

Respondent offered only a Departmental Report of the Adjutant General, dated September 20, 1954. From the Report it is apparent that Corporal Krieger was, acting within the scope of his authority, as he was returning with the truck from Camp Logan.

There is no question in our minds but what the truck driven by Corporal Krieger turned into the Chevrolet when the Chevrolet was attempting to lawfully pass this truck, and that the proximate cause of the personal injuries and property damage was the unlawful turn without a proper signal from one traffic lane to the other by Corporal Krieger.

The personal injuries of claimant, Francis Herman, were superficial. He only received slight cuts on his head and left hand. He did lose one week of work, and at the time he was employed by the Michigan Consolidated Gas Company of Detroit. His salary was $65.00 a week. It was necessary that he obtain other transportation while his car was being repaired, and the cost of this was $30.20. There is evidence that he lost a kodak camera, which was valued at $15.00.

Claimant, Florence DeMaire, testified that she received two broken ribs, lacerations and bruises to her right hand, right forearm, right elbow and right arm, and incurred medical expense in the amount of $45.00. Her clothing was damaged to the extent of $15.00, and two suitcases were damaged in the amount of $10.00. Her glasses, which cost $40.50, were broken. By reason of her personal injuries, she was obliged to expend $51.20 for household help to perform certain household duties, which she normally took care of herself. She testified that she was still suffering pain' in her right hand. No doctor testified as to the nature and extent of her injuries. The 1953 Bel Air Chevrolet was repaired, and the fair and reasonable charge therefor was in the sum of $1,005.84. Because of the $50.00 deductible policy of Francis Herman, the Company paid the sum of $955.84. There is no evidence that the automobile of claimant, Francis Herman, was used in his business.

Commisioner Billy Jones heard this case, and recommended that an award be made to all three claimants. However, he found in his report that Mrs. Florence DeMaire was a woman, 66 years of age, whn appeared to be in normal health, and the injuries received by her were not apparent. Furthermore, there was m> medical testimony offered as to any permanent injury.

It is, therefore, the order of this Court that awards be made as follows:

To Francis Herman the sum of $130.00.

To Florence DeMaire the sum of $561.70.

To General Exchange Insurance Corporation the sum of $955.84.