text:
    (No. 4639
    William J. Anderson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 21, 1955.
    John R. Snively, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case comes before us on respondent’s motion to dismiss the complaint on the jurisdictional ground that the claim has been barred by the lapse of time required for filing claims in this Court, as set forth in Sec. 22 of the Court of Claims Law, Sec. 439.22, Chap. 37, Ill. Rev. Stats. (1953 State Bar Association Edition), which reads as follows:

“Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accmes two years from the time the disability ceases; provided, that any officer or enlisted man in the National Guard, Naval Reserve or Illinois Reserve Militia who sustained an injury to his property, arising out of and in the course of active duty while lawfully performing the same, at any time within 5 years prior to the effective date of this amendatory Act may file a claim therefor within two years after the effective date of this amendatory Act. (As amended by Act approved July 23, 1951.)”

The complaint in this case was filed on September 2, 1954, and alleges that claimant was a prisoner in the Illinois State Penitentiary, Joliet Branch, on the 14th day of May, 1951, at which time he was injured in his person, while performing assigned duties in the prison furniture factory.

Counts I and II of the complaint allege that such injuries were caused by certain negligent acts and omissions, and a non-compliance by respondent of the Health and Safety Act of the State of Illinois, as a result of which the end of the left little finger of claimant was severed. Claimant further contends that respondent thereafter negligently treated his injuries.

Count III of the complaint is based solely upon allegations that the injuries of claimant were improperly treated by respondent. Claimant prays for damages in the amount of $100,000.00.

First, as to Counts I and II of the complaint, it is the well settled rule in this Court that persons incarcerated in a penal institution are not, by the mere reason of such incarceration, under disability within the contemplation of the savings clause of Sec. 22 of the Court of Claims Act. McElyea vs. State, 7 C.C.R. 69; Robertson vs. State, 19 C.C.R. 146; DeVore vs. State, 21 C.C.R. 106; Atkinson vs. State, 21 C.C.R. 429; John Davis vs. State, case No. 4589, opinion filed on January 11, 1955.

Although it is apparent from the face of the complaint that more than two years elapsed from the happening of the accident to the filing of the complaint, it is claimant’s contention that the previous holdings of this Court should be overruled on the theory that a person imprisoned does come within the savings clause as a person “under other disability”, although not specifically designated as one of the exceptions to the operation of Sec. 22.

We do not consider this point well taken.

The general rule of law appears to be that exceptions to a statute of limitations will not be implied, and that imprisonment will not suspend the running of the time for the institution of an action, unless the applicable statute expressly so provides. In Volume 34 of American Jurisprudence, p. 171, Limitation of Actions, D. Imprisonment, Sec. 214 Generally, this general rule is set forth:

“In accordance with the established rule that exceptions to the statute of limitations will not be implied, it is the prevailing view that imprisonment will not suspend the running of the time for the institution of suit unless the statute expressly so provides. It has been held that a person imprisoned is not within a provision in a limitation statute making an exception as to persons under legal disability, especially where under the laws of the particular jurisdiction there is no disability in a convict to institute a civil action.”

It further appears to be the general rule that a general disability clause in a statute of limitations does not include imprisonment as an exception to the operation of the statute.

In a recent annotation found in 24 A.L.R (2d) 618, entitled “Imprisonment as Tolling Statute of Limitations”, at pp. 619 and 620, this rule is recognized.

The same question involved herein was presented to the Court in the case of Musgrave vs. McManus (1918), 24 N. M. 227, 173 p. 196, L.R.A. 1818F 348, which case is cited in the above annotation. There, the court in construing the meaning of an exception to the New Mexico Statute of Limitations, which was similar to that of Sec. 22 of our Court of Claims Law, said at page 351 of the L.R.A. citation:

“It is our conclusion that the legislature of New Mexico had in mind the general mle that exceptions contained in statutes of limitations in favor of particular persons or classes are to be construed with strictness, and that implied or equitable exceptions are not to be grafted upon the statute, where the legislature has not made the exception in express words in the statute. Further, that the legislature, having before it the Missouri statute, which, in express terms, excepted persons imprisoned for less than life, elected to depart from the language of that statute, and from the effect of imprisonment under the English Statute of Limitations, which unquestionably can have no application to our changed circumstances and conditions. In view of these conclusions we cannot hold that the term ‘under any legal disability', as contained in our statute, should be constmed as including persons imprisoned.”

Claimant contends that the general statute of limitations of the State of Illinois, which specifically includes as an exception a person “imprisoned on a criminal charge” should be ingrafted upon the Court of Claims Law under the “persons under other disability” phrase.

We do not agree with claimant, but, on the contrary, feel that the Legislature by not following the form of the general statute of limitations has signified an unwillingness to create an exception in favor of prisoners, who have claims against the State of Illinois, and bring actions in the Court of Claims.

The provisions of Sec. 22 of the Court of Claims Law are jurisdictional, and, therefore, until the Legislature specifically creates such an exception, we will consider that one does not exist. Therefore, Counts I and II of the complaint must be dismissed.

In Count III of the complaint, it is alleged that on May 14, 1951, the date of the accident in question, claimant was immediately taken to the prison hospital for treatment of his injured finger, but that respondent negligently and carelessly failed to properly and skillfully treat his injuries. Claimant further alleges:

“8. That by reason of the premises, and as a direct and proximate result thereof, claimant became sick, sore and disabled and has so remained, that he suffered and still suffers great physical pain; that the bone of his finger became so diseased that it was necessary for respondent, on the 25th day of January, 1952, to amputate his finger one-fourth inch below the distal joint, that respondent, on the 18th day of December, 1952, next amputated his finger one-half inch below the second joint, that respondent, on the 27th day of March, 1953, amputated the balance of his finger, that in so doing respondent made an incision two inches in length along the side of his hand, that he believes that his hand and then perhaps his arm may have to be amputated, that he has lost the grip of his hand, that his injuries are permanent and lasting, and that he has been refused treatment by respondent. . . .”

It is apparent from the face of the complaint that the first date mentioned, namely, January 25, 1952, is more than two years prior to the filing of the complaint, and that, therefore, any claim for negligent treatment on and prior to that date is barred by the lapse of time under Sec. 22 of the Court of Claims Law.

With respect to the amputations of December 18, 1952 and March 27, 1953, and the treatments connected therewith, it is to be noted that they are within the two year period next preceding the filing of the action.

The respondent contends, however, that the limitation period began to run from the happening of the accident, rather than the acts of amputation, and cites as authority therefor the case of Gangloff vs. Apfelback, 319 Ill. App. 596. It was there alleged that, in March of 1936, a physician set a broken arm, but, when the cast was removed, the elbow was locked. Heat treatments were given for about six months, after which the physician informed the patient that an operation would be necessary to relieve the condition of the arm. After the operation in June, 1936, in which there was a severance of the nerves, muscles and ligaments, the patient lost the power of movement in his fingers, and was told that it was due to a “nerve involvement”. Two additional operations were performed, the physician assuring the patient the “nerve involvement” would be eradicated, and the use of his fingers restored. These results were not produced, and treatment was continued until nearly four years after the first operation. The patient then finally discovered that his arm was irreparably injured. He then brought a malpractice action, and the court, in dismissing the action, and holding that the statute of limitations began to run at the time of the first operation, stated at page 608 of the opinion:

“As heretofore pointed out, plaintiff does not contend that either of the later operations or the treatments applied caused the injury for which the suit is brought. He testified that the numbness or paralysis of his fingers and hand became apparent immediately after the first operation in 1936, and he was apprised by the physician that it was due to a nerve involvement. Subsequent surgery and treatments were calculated to remedy this unfortunate condition, but were resorted to without avail. The complaint is based principally upon allegations that injury or severance of the ulnar and radial nerves in performing the operation caused the irreparable injury, and the evidence clearly indicates that the loss of movement and function of his fingers and hand immediately followed the first operation. Under the weight of authority his cause of action accrued in 1936, and since suit was not instituted until 1941, we think the court properly held that the statute had barred recovery.”

Similarly, in the instant case, there are no allegations of negligent and careless treatment with respect to the latter two amputations referred to in the complaint.

Claimant contends, however, that the instant case is not a malpractice suit, and, therefore, the above cited case does not apply. It appears to us that, although the action is not against a physician personally, it is an attempt to charge the same elements as would be involved in a malpractice suit against a physician.

Also, the principle of law, upon which the court in the above decision relied, is one of a general nature that runs through the law of tort whether the case be one of malpractice or otherwise. In Volume 34, American Jurisprudence, Limitation of Actions, Sec. 160, the general rule on this subject is set forth as follows:

“. . . As a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action, and is not legally severable from the consequences. It is from then that the statute begins to run, and not from the time of the damage or discovery of the injury. It is immaterial whether the conduct out of which the cause of action arises is the breach of an implied contract or the affirmative disregard of some positive duty, in either case, tire liability arises immediately on the breach or disregard of duty, and an action to recover the damages, which are the measure of such liability, may be immediately maintained.”

It appears to ns that claimant could only maintain Ms action in the event one or both of the latter amputations and treatments, administered in connection therewith, were negligently and carelessly done, aside from any question of negligence in connection with the original injury and treatment. TMs factor does not appear from the complaint, and we will not presume that such facts exist. In considering the questions presented by this motion, and the pleadings in general, we must construe the complaint, together with all reasonable presumptions, intendments and inferences contained therein against claimant. Wright vs. Illinois Central Railroad Company, 119 Ill. App. 132 at 144; Garofalo Company, Inc. vs. St. Mary’s Packing Company, 339 Ill. App. 412; Eugene Fuhrer, Et Al vs. State, case No. 4592, order handed down on May 11, 1954.

Claimant must bear the burden of pleading sufficient facts to state a cause of action within this Court’s jurisdiction. These facts not appearing from the complaint, we hold that the latter amputations and treatments in connection therewith are likewise barred by See. 22 of the Court of Claims Law.

The motion to dismiss the complaint and each Count thereof is, therefore, granted, and the case is dismissed.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4645
    James E. Husband, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.
    James E. Husband, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

A complaint, consisting of Two Counts, was filed herein by claimant, James E. Husband, on September 24, 1954. On January 28, 1955, a motion was filed by claimant for summary judgment, and, on February 25, 1955, an order was entered by this Court denying said motion. On March 25, 1955, respondent filed a motion to strike and dismiss claimant’s complaint, and, on April 11, 1955, a motion to disallow the suggestion of respondent was filed by claimant.

Count I of the complaint was predicated upon allegations of malpractice of nurses employed by respondent at the State Hospital, Chester, Illinois. However, in said Count no allegations are set forth of negligence of respondent’s agents, or of any injury received by claimant, while an inmate at Chester, Illinois. Had there been sufficient facts set forth to constitute a malpractice case, Count I would have to be denied for the reason that claimant alleges in paragraph 3 the tortious acts were committed prior to August of 1952, which was more than two years prior to the filing of claimant’s complaint.

Rule 31 of the Court of Claims, at the time this claim was filed, provided for a two year limitation of claims of this nature, which conforms to the limitations statute of the State of Illinois for the filing of claims within a period of two years from the date the action accrued, 1953 Ill. Rev. Stats., Chap. 83, Sec. 15; Chap. 37, Sec. 439.22.

Count I of the complaint is also indefinite, uncertain and vague.

As to Count II, the allegations set forth therein do not constitute a cause of action against respondent, and, if there was a claim, it would be barred by the statute of limitations, Chap. 37, Sec. 439.22, Ill. Rev. Stats.

It is, therefore, ordered, adjudged and decreed that the complaint filed herein be dismissed.


author: Wham, J.

text:
    (No. 4648
    Alexander V. Capraro, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.

    Tooco and Tocco, Attorneys for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed herein alleges that claimant, an architect and engineer with offices in Chicago, and licensed to practice in the State of Illinois, entered into a contract with respondent to perform architectural and • engineering services with regard to the construction of an addition to the highway police radio station at Ma-comb, Illinois, which contract is dated February 6, 1952, a true and correct photostatic copy of same being attached to said complaint, and marked exhibit A.

Claimant contends that the services were rendered and accepted by respondent under the terms of the contract, and that there is now due and owing a balance of $910.50.

A stipulation was entered into by claimant and respondent waiving the necessity of taking testimony and filing briefs and arguments, and submitting the case to the Court for consideration on the above amount.

Claimant’s exhibit B, a letter directed to claimant, and signed by Louis H. Gerding, Supervising Architect of the Department of Public Works and Buildings, acknowledges that said above named sum is due and owing claimant, as the unpaid balance under the terms of the contract. The Departmental Report filed by respondent, and signed by E. A. Rosenstone, Director of the Department of Public Works and Buildings, acknowledges that under the terms of the contract no legal objection can be raised against the payment of the $910.50 balance due. The Supplemental Departmental Report, signed by E. A. Rosenstone, also acknowledges said balance being due and owing.

The only controversy in the case when originally filed related to claimant’s contention that an additional $267.60 was due and owing for additional and extra engineering aid and advice. This was disputed by respondent, and a motion to strike and dismiss that portion of claimant’s complaint referring to said sum was filed.

Subsequent to the filing of said motion, and prior to the submission of this case to the Court for decision, claimant and respondent entered into a stipulation wherein said motion was withdrawn, and claimant amended the prayer of said complaint to pray for judgment against respondent in the amount now claimed, being the amount of $910.50. There being no further dispute in this matter between the parties hereto, and it appearing to the Court that the only balance due and owing claimant under .the terms of and by virtue of thei contract mentioned herein is $910.50; and it further appearing that said amount is a just and correct claim, said claim is, therefore, allowed, and claimant shall have and recover from respondent the sum of $910.50.


text:
    (No. 4654
    Philip Cooperman, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.

    Robert F. Lisco, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant filed Ms complaint on November 6, 1954 alleging that he sustained personal injuries while walking across Roosevelt Road from the north to the south at the west crosswalk of Pulaski Road in Chicago, Cook County, Illinois, the date of the accident being April 6, 1954. In his complaint claimant further alleges that he stumbled and fell while cossing certain tracks (which we presume are owned by the Chicago Traction Company, although not alleged in the complaint) located on Roosevelt Road at the crosswalk of Pulaski Road. He charges respondent with failure to keep said street crossing in a proper state of repair.

In paragraph 4, sub-paragraphs b, c and d, it is alleged that respondent negligently and improperly maintained, operated and controlled the said street at the location aforesaid by allowing and permitting the said street pavement at the location aforesaid to drop away from the street car tracks, so that the street car tracks were raised above the level of the pavement, which caused persons walking upon and across the said tracks to stumble and fall.

A motion was filed by respondent to strike and dismiss claimant’s complaint for the reason that it appears upon the face of the complaint, setting forth paragraph 4 (sub-paragraphs b and d), that the alleged injuries occurred while crossing certain street car tracks, which were raised above the level of the pavement, and that on the date of the alleged accident, namely April 6, 1954, respondent neither owned, controlled, or had any interest in said street car tracks, as indicated by exhibit A, which was attached to the motion, and made a part thereof by reference. It showed that a right-of-way existed, which was owned by the C. T. A. It was 9 feet, 5% inches wide, and was the right-of-way upon which the street car tracks were located. The exhibit is a true and correct drawing of the physical condition of State Bond Issue Route No. 6, commonly known as Roosevelt Road, at the intersection of Pulaski Road, on the date of the accident, and was duly certified to by J. P. Tuthill, District Engineer, Division of Highways of the State of Illinois. The drawing also indicates that Roosevelt Road at said place and on the date of the accident was 48 feet wide at the intersection with Pulaski Road, with the state right-of-way extending 14 feet and 11 inches on both north and south sides of Roosevelt Road, and with the C. T. A. right-of-way being 9 feet, 5% inches from the state right-of-way to the center line of the road, both north and south of the center line, while the C. T. A. right-of-way encompasses the track area in question.

It is apparent from the face of the complaint that there is no duty on the agents of the State of Illinois, to maintain said right-of-way, which apparently is owned by the C. T. A., and that, if a cause of action did exist, it would be against the Traction Company, who owned said right-of-way. Therefore, this Court does not have jurisdiction to hear the case.

It is, therefore, ordered, adjudged and decreed that the motion filed herein to strike and dismiss the complaint be, and the same is hereby allowed.


text:
    (No. 4664
    The County of Randolph, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.
    William A. Schuwerk, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

The complaint filed herein on January 17, 1955 is predicated upon fees and expenses, including those of the State’s Attorney, sheriff and clerk, by reason of the location of the Illinois State Penitentiary and the Illinois Security Hospital, both being penal institutions, in said County. By reason of the location of these institutions in said County, numerous petitions for writs of habeas corpus by inmates are filed in said County, and all of the said inmates filing writs of habeas corpus are not residents of Randolph County, as shown by claimant’s exhibit A. The latter consists of six pages, wherein there is set forth in detail the names of the petitioners, the filing fee due the Clerk of the Court, all of which are in the amount of $5.00, the sheriff’s fees being in the amount of $3.50, fees for the State’s Attorney in the amount of $20.00, and photostatic expense of $1.00. The fees set forth in the respective amounts, with the exception of the photostatic expenses for which fair and reasonable charges were made, are provided by statute, namely, Sec. 1 of Chap. 53, Ill. Rev. Stats., 1953. This provides for a $5.00 fee for the Clerk of the Circuit Court for the filing of petitions for writs of habeas corpus. The provision for fees for the sheriff in sneh cases is found in Chap. 53, Sec. 37, Ill. Rev. Stats., 1953. The fee for the State’s Attorney is fixed by statute, Chap. 53, Sec. 8, Ill. Rev. Stats., 1953. The photostatic charge made by the Clerk of the Circuit Court for the photostating of necessary documents is in the amount of $1.00, and is a reasonable charge therefor.

By virtue of certain statutory provisions, namely, Chap. 65, Pars. 37, 38 and 39, 111. Eev. Stats., 1953, the State of Illinois, by law, is required to assume and pay the necessary expenses, including all costs and fees of county officers, arising from petitions for writs of habeas corpus. All petitions for writs of habeas corpus by inmates are filed in the Circuit Court of the county where the institution is located, said writs being writs of habeas corpus in forma pauperis.

In the instant case, all writs were filed between the periods of January 6, 1953 and December 21, 1954, inclusive, as set forth in claimant’s exhibit A.

A stipulation was entered into between William A. Schuwerk, State’s Attorney of Eandolph County, Illinois, and Latham Castle, Attorney General for the State of Illinois, representing respondent, wherein, in substance, the facts hereinabove set forth were stipulated to, and the statutes applicable thereto for the basis of payment of fees and expenses, is well as the respective statutes for the amounts to be paid were set forth.

On May 13, 1954, a motion was filed, and signed by William A. Schuwerk, State’s Attorney of Eandolph County, representing claimant, and Latham Castle, by C. Arthur Nebel, Assistant Attorney General of the State of Illinois, representing respondent, and an order was entered permitting the waiver of briefs and arguments for the reason that the claim arose under special statutory provisions, as provided by Chap. 65, Secs. 37, 38 and 39, Ill. Rev. Stats., 1953, and no new or novel questions of law were presented.

We have examined the exhibit attached to the complaint as to the petitions for writs of habeas corpus, the charges and expenses set forth opposite the names of the petitioners, and the law applicable to said claim.

It is, therefore, ordered, adjudged and decreed that an award be entered in favor of The County of Randolph in the sum of $5,375.00.


text:
    (No. 4666
    R. V. Monahan Construction Co., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.

    Charles G. Chester, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed herein alleges that claimant, An Illinois corporation, entered into a contract with respondent to replace the roof structure of the Armory at Dan-ville, Illinois, which contract is dated June 30, 1953, a true and correct photostatic copy of same being attached to said complaint, and marked exhibit A.

Claimant further alleges in the complaint that its bid was made with the understanding that 28 drill hall light fixtures, which claimant had valued at $3,500.00, were to be removed by claimant, and would be claimant’s property by virtue of Paragraph 1003 of the Supplementary Specifications, incorporated in and made a part of the aforesaid Specifications issued by the Division of Architecture and Engineering of the Department of Public Works and Buildings of the State of Illinois, which reads as follows:

“1003. The General Contractor shall, unless otherwise specified, accept the premises as he finds them upon the signing of the contract, and he shall completely remove the concrete roof designated on plans, the tie-bars, lights, roof drains and interior downspouts indicated, skylights, masonry walls, acoustical tile, as indicated on the drawings and specified and as may be necessary to permit the proper installation of the new work. Acoustical tile is to be salvaged for re-use as covering of wood joists replacing skylight over garage.”

Claimant further alleges that in August of 1953 it removed the 28 drill hall light fixtures in compliance with the provisions of said Paragraph 1003, supra, and prepared to take the fixtures from the premises; that respondent then notified claimant that, under Paragraph 2107 of the Specifications for certain electrical work to be performed on said premises, the electrical contractor was to remove all drill hall light fixtures, and reinstall them. The claimant then notified respondent of its right and ownership of the drill hall lights, but, on being assured of reimbursement therefor, permitted the drill hall light fixtures to- be reinstalled by the electrical contractor.

Claimant alleges that this was the first notice it had of the terms and conditions of the electrical contract, and that its contract was entered into prior to the date of the electrical contract, which was made and entered into on August 11,1953.

Claimant alleges that its work and obligations under the contract have been fulfilled, completed, and accepted by respondent. However, when payment in the amount of $3,500.00 was requested from respondent, claimant was notified that the appropriation had lapsed, and was advised by the Division of Architecture and Engineering that any recovery would have to be sought through the Court of Claims. Claimant contends that it is entitled to the sum of $3,500.00 by virtue of the above.

A stipulation was entered into between claimant and respondent dispensing with the necessity of filing briefs and arguments, and stipulating that the cause should be submitted to the Court upon the complaint and the Report of the Department of Public Works and Buildings, Division of Architecture and Engineering, signed by Louis H. Gerding, Supervising Architect.

The Departmental Report, signed by Mr. Gerding, acknowledges that the contract was entered into as alleged; that Paragraph 1003 of the Specifications averred in the complaint is correct; that it is reasonable to assume that the value of said light fixtures was $3,500.00; that it was reasonable for claimant to assume that said fixtures were to become his property; and, that the electrical contract entered into, No. 671029, in no way changed the existing conditions.

Said Departmental Report further sets forth that, prior to the claim for final payment in connection with claimant’s contract, a formal claim in the amount of $3,500.00 was submitted to the Division of Architecture and Engineering, and subsequently submitted to the Military and Naval Department for payment. However, the Military and Naval Department rejected the claim of $3,500.00 under date of November 5, 1954. The Departmental Report concludes by stating that in the judgment of the Division of Architecture and Engineering claimant entered into the contract in good faith; that the questionable lights were to become his property; that he in good faith returned them to the State of Illinois in anticipation of monetary remuneration; and, further, that the R. Y. Monahan Construction Company is entitled to the $3,500.00 requested for the light fixtures, and that said amount is a fair and equitable remuneration for same.

There being no dispute by respondent as to the claim, and, from the record submitted to us in this case, it appears that the amount of $3,500.00 is now due and owing claimant by respondent. The claim in that amount is hereby allowed.


author: Tolson, C. J.

text:
    (No. 4671
    William Casey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 26, 1955.

    Ralph T. Smith and Irving M. Wiseman, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On March 18, 1955, William Casey filed his complaint against the State of Illinois seeking damages in the amount of $53,250.00 for the violation of a state law, to-wit: Ill. Rev. Stats., 1874, March 27, R.S. 1874, P. 348, Div. 13, Sec. 4, which was in full force and effect at the original time of sentence, namely, February 28, 1927, and which provided in part as follows;

“In cases where the party pleads “guilty” such plea shall not be entered until the court shall have fully explained to the accused the consequence of entering such plea; after which, if the party persists in pleading “guilty”, such plea shall be received and recorded, and the court shall proceed to render judgment and execute thereon as if he had been found guilty by a jury. In all cases where the court possesses any discretion as to the extent of the punishment it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offenses.”

Thereafter, on June 7, 1955, respondent filed a motion to dismiss the complaint for the reason that there can be no recovery against the State of Illinois for a wrongful incarceration. On June 18, 1955, claimant filed objections to the motion to strike, alleging that the complaint was not based on a charge of wrongful incarceration, but rather upon the violation of the state law above set forth, and that the Court of Claims Act, Sec. 8A,

established his right to sue.

“The Court shall have jurisdiction to hear and determine: A. All claims against the state found upon any law of the State of Illinois***.”

Considering the complaint in its most favorable light, it appears that on February 28, 1927, claimant was sentenced to the Illinois State Reformatory .upon his plea of guilty. It further appears that complainant was not admonished of the consequence of his plea of guilty, but was peremptorily sentenced. It further appears that on December 16, 1954, complainant was released by a writ of habeas corpus for the reason that the trial court had failed to comply with the statute. Claimant served 21 years and 118 days under an improper order of conviction.

Prior to 1945, there was little doubt but what the State of Illinois was not liable to any person, who was wrongfully incarcerated. Since the amendment of 1945, several eases have been filed alleging different theories of liability, and this Court has denied recovery in each case for want of jurisdiction.

This Court in the ease of Montgomery vs. State, 21 C.C.R. 205, answered the precise point raised by pleadings in the instant case:

“Claimant does not predicate his claim under Sec. 8C of the Court of Claims Act, but under Sec. 8A. The question before the Court to decide is: “Does this Court have jurisdiction to determine whether the conviction was unlawful, and to award damages if it finds the conviction unlawful?”
Tire first question is whether there is any law in this state upon which such a cause of action could be maintained, if the state were suable. There is no constitutional provision or statute authorizing such a suit. This Court has previously held that it could only recommend an award where the state would be liable in law or in equity in a court of general jurisdiction, if it were suable. (Crabtree vs. State, 7 C.C.R. 207; Durrett vs. State, 12 C.C.R. 384) While it is tme that Article II, Sec. 19 of the Illinois Constitution, provides that every person ought to find a remedy in the law for all injuries and wrongs to his person, property or reputation, the same Constitution also provides under Article IV, Sec. 26, that the state can never be made a party defendant in any court of law. It, therefore, follows that for this Court to have jurisdiction, the Legislature, by express provision, should have created an act providing for such a remedy.”

The law mentioned by claimant establishes the necessary requirements for a legal order of conviction, but it does not establish a remedy for breach. It does not clothe this Court with authority to award damages.

Counsel argues that this complaint is not based on a charge of “wrongful incarceration”, but is based on a violation of a statute. Whether the complaint be phrased in the wording of “false imprisonment” or “violation of a statute”, the gist of the offense is “wrongful incarceration”.

It is to be noted that the judge, who made the error, is not liable.

Vol. 35 — C.J.S. page 569
“It is the general rule that a judicial- officer is not liable for a false arrest or detention arising out of acts done in his judicial capacity where there is not a clear absence of all jurisdiction over the subject matter and person', even though such acts constitute an excessive or erroneous exercise of jurisdiction or involve a decision that the officer had jurisdiction over the particular case where in fact he had none. Cases cited.
Once a judicial officer acquires jurisdiction, his subsequent acts are considered judicial for which he incurs no liability. Cases cited.
A judicial officer is not liable for his erroneous decision, although his decision involves an error of law or of fact. Cases cited.

Our Supreme Court stated in the ease of In Re McGarry, 380 Ill. 359.

“In the performance of his judicial acts it has been uniformly held that no action can be maintained against a judge for errors of judgment committed in the execution thereof. This principle is said to be as old as the common law. It rests upon consideration of public policy, its purpose being to preserve the integrity and independence of the judiciary, and to insure the judges will act on their own free, unbiased convictions, uninfluenced by any apprehension of consequences.”

To hold that the trial judge, who committed the error, is not answerable for damages, but that the state is liable, would be a legal absurdity.

The motion to strike the complaint will be allowed.


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    (No. 4638
    Carrie Joyner, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1955.
    Harry D. Horn, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This is an action brought by claimant, Carrie Joyner, against respondent, State of Illinois, to recover the sum of $7,500.00 in damages for personal injuries alleged to have been sustained on July 2, 1953, as the result of a fall, when she allegedly stepped into a hole in the curbing at the intersection of Northwest Highway and Ozark Street in the City of Chicago.

It is admitted by respondent that the location, including the curbing mentioned above, is under the jurisdiction of the Department of Public Works and Buildings, Division of Highways of the State of Illinois, for all purposes of repair, reconstruction, operation and maintenance.

Claimant charges in the complaint that her fall and resulting injuries were due to the negligence of respondent in suffering and permitting the curbing to be and remain in a bad and unsafe condition, and in disrepair. She further alleges that respondent had notice or knowledge of, or, in the exercise of due care and caution should have had knowledge or notice of, the existence of the “bad and unsafe” condition of said curb for a long time prior to the date on which claimant sustained her injuries.

Claimant is a domestic worker, employed by a Mrs. Miller in Park Bidge, Illinois on one day of each week, and was so employed for a period of five years. It was her custom to take the elevated at 43rd Street and Cottage Drove Avenue near her home, and ride to the Berwyn Avenue “L” station, and then take a bus to Ozark Avenue and Northwest Highway, and thence by another bus to Park Bidge. Claimant testified that she walked over that particular curb many times before, at least once each week for five years, but that she at no time noticed the defective condition prior to the date she fell.

Claimant’s only other occurrence witness, a Katherine Williams, had ridden with claimant to this intersection on a bus. She left the bus at the same place, as did claimant, so as to wait for her employers to pick her up. She stated she saw claimant fall. She identified the defect in the curbing shown in claimant’s exhibits Nos. 3 and 4 as correctly portraying the condition as it then existed. She testified that she had occasion to pass the particular corner prior to July 2, and had noticed the condition prior to that date. She was then asked these questions:

“Q. Have you any knowledge as to approximately how long prior to July 2, 1953 this condition in the curbstone on the Northwest Highway existed?
A. I could not say that.
Q. Have you any idea as to approximately how long?
THE COMMISSIONER: Q. When did you first see that curb in that particular broken condition?
A. About a month or six weeks before that.”

On cross-examination she testified as follows:

“Q- Are you sure you saw this place in the curb six weeks or a month before, or could it have been two weeks before, for the first time?
A. It was quite some time. I could not say definitely.”

Respondent offered in evidence one witness, James Whelan, who testified that he was the maintenance superintendent for the Division of Highways, District 10, which included the place of the accident. His duties consisted of supervising repair and reconstruction of all roads under his jurisdiction, which approximated roughly 189 miles of highway.

He inspected this highway, including the curbing, daily, and covered the entire area at least once a month. Crews assigned to him also patroled and inspected the highway.

The area was divided into six maintenance sections, and were patroled by one crew to each section. Each crew reported to Mr. Whelan daily on the condition of the highway, as well as the curbing. If repairs were needed on a curb, a separate construction crew of five men was called upon to do the work. This construction crew took orders only from Mr. Whelan. If there was anything wrong with the curbing, Whelan would direct its repair. He at no time ordered the construction crew to make any repairs on the curbing at the intersection of Ozark Avenue and Northwest Highway. At no time did Whelan learn of the break in the curbing, although he always inspected the curbs when he inspected the highway.

It is obvious from the facts and the pleadings that no question of negligent construction or repair is involved herein. The only question of negligence is whether or not respondent should have discovered the defect, and effected repairs, prior to the accident.

It is the general and well established rule in Illinois, as well as elsewhere, that municipalities are not insurers against accidents in the streets, the extent of their duty being to use reasonable care to keep the streets and sidewalks in a reasonably safe condition for persons exercising due care for their own safety. Vol. 9, Illinois Law & Practice, p. 54.

The state is no more an insurer against accidents arising out of the use of sidewalks, highways or curbs under its jurisdiction than is a city of its sidewalks. The law of Illinois is clear that, before a municipality can be held liable for injuries caused by defective conditions of a sidewalk, it is necessary that there be some evidence showing, or tending to show, that the city had actual or constructive notice of the alleged unsafe condition. Arnett vs. City of Roodhouse, 330 Ill. App. 524 at 527 and 528; Boender vs. City of Harvey, 251 Ill. 228 at 231 and 232; O’Donoughue vs. City of Chicago, 167 Ill. App. 349 at 352 and 353; Coffin vs. City of Chicago, 254 Ill. App. 29; City of Nokomis vs. Farley, 113 Ill. App. 161 at 163; Karczenska vs. City of Chicago, 239 Ill. 483 at 485; Powell vs. Village of Bowen, 92 Ill. App. 453 at 454 and 455.

The burden of proving such actual and constructive notice, and the existence of such defect, is upon claimant. Thien vs. City of Belleville, 331 Ill. App. 337 at 345.

In Dominic Di Orio, Et Al vs. State of Illinois, 20 C.C.R. 53, and Lillian Kamin vs. State of Illinois, 21 C.C.R. 467, we have applied these same rules to claims against the state.

It is clear from the evidence that actual notice of the defect has not been established. The question is whether or not claimant has proven constructive notice.

Notice of the existence of a defect or obstruction in a municipal street may be implied, if the condition has existed for such a length of time that the corporate authorities should have ascertained its existence and effected a remedy. This is always a question to be determined under the circumstances of the evidence in each case.

The law is likewise well settled that it is not the absolute duty of municipalities, or in this case the State of Illinois, to discover and remedy defects iri sidewalks, but only to use ordinary care and diligence to do so.

The state is not required to keep constant guard and watch over the walks, curbs and highways that are supposed to be safe and sufficient to see that someone or something does not break holes into or destroy them, or that such breaches do not occur from unexpected causes.

We must determine whether or not the evidence is sufficient to establish a lack of due care by respondent to discover the defect and remedy it prior to the happening of the accident.

The only evidence offered in the case with respect to the length of time the defect existed prior to the accident was claimant’s witness, Katherine Williams, who at first stated that she had seen the defect prior to July 2, 1953, the date of the accident, but had no idea as to approximately how long it had existed prior to the accident. She then stated she first saw it about a month or six weeks before the accident. Then, on cross-examination, when she was asked whether she was sure she had seen it six weeks or a month before, or whether it could have been two weeks before, she answered that it was quite some ~ time, but “I could not say definitely”. This evidence amounts, in our judgment, to little more than a guess. We can place no approximate time of the existence of this defect from that testimony, which amounts to only that it had existed “quite some time”.

If we were to consider that this testimony in and of itself established constructive notice, then, for all practical purposes, such an element would cease to be essential in proving claims against the state. The very basis of a case, such as this one, rests upon the length of time the defect existed. We, therefore, must require strong and convincing proof to establish this element.

It seems strange to us that, if the defect had existed for a substantial length of time prior to the injury, claimant herself did not see it on one of her trips across the intersection. She testified that she had never seen the defect, although she had crossed the intersection at least once a week for five years.

We also note from claimant’s exhibit No. 3 that the curbing, except for the defect, looks to be in excellent condition on both sides of the street. The break, as shown in the close-np in claimant’s exhibit No. 4, does not appear to ns to be one that shows a deterioration of the curbing. This intersection is in a residential area at a hns stop, and, if the defect had existed for any substantial length of time, more evidence should have been available to claimant than that which she has offered, and, if so, should have been presented at the hearing.

In addition to this, the evidence offered by respondent shows that a system of inspection had been established, and that at least once a month the entire area of 189 miles was inspected by respondent’s maintenance superintendent, and at more frequent intervals by a patrol crew. From the standpoint of inspection of the curbs, this seems to us to have been a sufficient attempt on the part of respondent to see that they were maintained in proper condition. We cannot presume that the persons making the inspection were negligent in the performance of their duties, since the evidence of the length of time the defect existed is so speculative and inconclusive.

It is our judgment that claimant has not borne the burden of proving to our satisfaction, at least, that respondent was negligent in the inspection and maintetance of its curbing.

We, as a Court, must pass upon not only questions of law but questions of fact, and determine the weight that should be given to the testimony of witnesses. As stated in Flint vs. State of Illinois, 21 C.C.R. 80, at pages 82 and 83: “This Court must determine both the law and the facts in a case. Unlike courts of review, we cannot say ‘it is for the jury’, nor can we avoid our fact finding duties, as trial courts are able to do in jury cases.”

In deciding this case, we have attempted to apply the facts to the law, as we understand them both to be, and have concluded that the record in this case does not justify our finding for claimant.

The claim is, therefore, denied, and it will be unnecessary to review the evidence from the standpoint of any other element.


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    (No. 4660
    County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 23, 1955.
    Frank H. Masters, Jr., Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed herein on December 28, 1954, by the County of Will, is based .upon Secs. 37, 38 and 39, Chap. 65, Ill. Rev. Stats., which provide that the State of Illinois shall assume and pay to a county, wherein there is located a state penal institution, the necessary expenses incurred by said county and its officers, either by means of service rendered or otherwise, by reason of court proceedings in said county involving a petition for writ of habeas corpus by or on behalf of an inmate of the penal institution located therein, who was not a resident of such county at the time of his commitment, and was not committed by any court located in said county.

A portion of the claim set forth in the complaint was barred by Chap. 37, Ill. Rev. Stats., Sec. 439.22, due to the fact that this Court was without jurisdiction with reference to certain items described in the complaint, since they accrued more than two years prior to the filing of the complaint. These items were stricken upon the granting of respondent’s motion, which motion was unopposed by claimant.

The amount prayed remaining for consideration by this Court consists of a claim by the Clerk of the Circuit Court of Will County for filing seventy petitions for writs of habeas corpus at the statutory filing fee of $5.00, or a total of $350.00; and a claim by the Clerk of the Circuit Court of Will County for furnishing to the Attorney General of the State of Illinois copies of said petitions at the rate of $0.50 per page, or a total of $231.50.

A stipulation was entered into between claimant and respondent, where, in substance, the facts alleged in the complaint were acknowledged as correct.

We have examined the exhibit attached to the complaint as to the petitions for writs of habeas corpus, and the charges and expenses set forth opposite the names of the petitioners, as well as the law applicable to said claims. It appears to us that claimant is entitled to an award in the sum of $581.50, and the claim in that amount is hereby allowed.


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    (No. 4574
    Gladys Hammer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 24, 1955.

      Petition of Claimant for rehearing denied October 21, 1955.

      Eugene H. Widman, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Gladys Hammer, has filed suit for damages resulting from injuries sustained by her while walking across the intersection of Ash Street in St. Clair County.

The record consists of the complaint, transcript of evidence, Departmental Report, statement brief and argument of claimant, statement brief and argument of respondent, and the Commissioner’s Report.

The facts of the case are as follows:

Claimant, Gladys Hammer, and her husband live three houses east of the intersection of Lake Park Drive and Ash Street in St. Clair County. Their home is not in an incorporated territory.

On the evening of August 3, 1953, about 9:00 P.M., she and her husband started walking west to the Levee Board Canal, which was a short distance away. In so doing, they crossed the intersection of Ash Street, as it meets Lake Park Drive. It was light enough to see the walk and the roadway area at the time.

At or about 9:30 P.M., they started to retrace their way home, and, upon entering Ash Street, claimant, Gladys Hammer, stepped into a hole in the road, which was described as being 2 feet wide, 3 feet long, and 6 inches deep. It is to be noted that it was then dark, and there were no street lights at this intersection.

Mrs. Gladys Hammer suffered a fractured right ankle, and was obliged to wear a cast for six weeks. She spent the sum of $72.00 for medical treatment and X-Rays, and paid out the sum of $110.50 for maid service. She also alleges that she lost six weeks of work at her husband’s tavern.

Considerable evidence was introduced as to whether or not the State of Illinois or the County Highway Department was responsible for the maintenance of this particular area. In fact, the State Highway Department had never taken over the maintenance of this strip, and, from the evidence, it appears that there were several sizeable holes in the cross-walk area. The Commissioner concluded that the area was within the property line of the State of Illinois, and that the State Highway Department should have provided the necessary maintenance.

Mrs. Hilda Mercer, who lived in the corner house, testified that the holes in the cross-walk area of the road had been there for four or five months, and this Court believes that, such being the case, the state had constructive notice of a dangerous condition, as it applied to pedestrians.

The crux of this case is whether or not complainant is guilty of contributory negligence, as the necessary elements for recovery are present, if the Court can find from the record that the claimant has established by a preponderance of the evidence that she exercised due care and caution for her own safety.

An examination of the record discloses that claimant had lived within 200 feet of the crossing since October of 1952, a period of ten months before the date of the accident in question. (Record, page 5).

She stated that she had never crossed the particular cross-walk before August 3, 1953. (Record, page 19).

On cross examination, page 19, the following questions were asked, and answers given:

“Q. Did you know in a general way, the condition of that intersection?
A. No, when we crossed it, I guess I noticed it, but I just didn’t pay any attention to it because it was light, you know, when we started walking.” •

In the record, page 20:

“Q. Did you know before this, when you were walking across it the first time, that the intersection was not paved?
A. I didn’t pay any attention to it.”

On page 32 of the record, the following appears:

“Q. Were there other holes there in addition to this one?
A. There was holes all the way across there. It was a bad intersection.
Q. Had you walked past those holes when you were going in the other direction, earlier in the evening?
A. Well, I guess I had. But it wasn't dark when I walked up the street.
Q. You don't remember walking around the hole then?
A. I didn't pay any attention to it. I don’t have any idea whether I did or not. I just walked down the street.
Q. You don’t remember walking around any holes?
A. I guess I did. It was daylight, and I guess I wouldn't step in. those holes.
Q. Do you know whether you walked through them or around them?
A. I imagine I walked around them.
Q. Do you remember how many you walked around?
A. I guess there was a couple of them. They were pretty good sized holes, but that one was bad.”

Counsel in Ms brief on the element of contributory negligence cites the case of City of Mattoon vs. Haller, 217 Ill. 273. At page 281, the court held that, when a man knows of a defect in a sidewalk, and walks thereon, his acts are not negligence “per se”, but may be considered by the jury with all other facts in the case. It appeared in that case that the other wooden sidewalks available to the plaintiff were likewise in a very defective condition, and the court refused to disturb the finding of the jury.

In the case of Courtney vs. State, 19 C.C.R. 210, a child of the age of 9 stumbled over a “stob”, i.e., a piece of pipe set in concrete about 2 inches high, and fell from a platform down certain concrete stairs, and was seriously injured. To the state’s contention that the child could not recover because of contributory negligence, the Court held that a child between the ages of 7 and 14 is only held to a standard of care commensurate with that of children of like age and experience. The Court in that opinion cited Graham vs. City of Chicago, 346 Ill. 638.

“A person using a sidewalk may ordinarily assume it is in a reasonably safe condition, and need not keep his eyes fixed on the pavement to search out defects and dangers.”

While it is true that claimant could assume that a sidewalk was in a reasonably safe condition, and was not required to search out hidden defects, the fact" remains that, if claimant was actually aware of a dangerous condition, she could no longer indulge in a presumption, or assume that the walk was in a reasonably safe condition.

This Court has held that a claimant must prove the exercise of due care and caution before an award can be made, citing Stephens vs. State, 19 C.C.R. 207.

• Our courts have held that a claimant cannot state that he did not see, when he must have seen had he properly exercised his faculty of sight, citing Brinks vs. Village of Burnham, 379 Ill. 193.

It is true that, at the time of the accident, in the instant case it wasi dark, and claimant could not see the defects in the pavement, but the inescapable fact is that claimant was aware of the condition of the cross-walk, having walked around the holes less than thirty minutes prior thereto. Her indifference to a known danger negates her claim to freedom from contributory negligence.

The Court, therefore, finds that claimant has not proven the exercise of due care and caution on her part, and an award is denied.

Opinion on Rehearing

On July 23, 1955, claimant in the above entitled cause filed a petition for rehearing alleging that the previous opinion of this Court was:

1. Contrary to the weight of the evidence.
2. Contrary to the law applicable.
3. In error in finding that complainant was guilty of contributory negligence.

Complainant concluded with a prayer requesting a rehearing on the question of law in regard to claimant’s contributory negligence, or, in the alternative, that the cause be remanded to the Commissioner for a further hearing on the question of claimant’s knowledge of the defects in the street.

The report of the proceedings consists of 76 pagés. There is no dispute about the existence of the holes in the street, and the responsibility of the state to maintain the area. There is no dispute that claimant was injured, and suffered pecuniary loss. The only bar to a recovery is whether claimant has satisfied the burden of proof required of her to establish by a preponderance of the evidence that she was free from contributory negligence.

The record discloses that claimant testified as to the condition of the street, and was cross-examined on the subject. This Court does not believe that additional testimony would be helpful in determining the issue. Therefore, the request to refer the matter back to the Commissioner for additional testimony is denied.

At this juncture, it may be well to point out that the Court of Claims sits in the dual capacity of judge and jury. It must first decide questions of fact, and thereafter apply the law to said facts.

The question of contributory negligence is ordinarily a question of fact for a jury, and, if there is any evidence to support the burden of proof imposed on plaintiffs, the courts, on appeal, will not disturb the verdict. However, if there is no evidence sustaining the burden of proof, or if the evidence is based on mere conjecture, the courts, on appeal, will not permit a verdict to stand. At common law, contributory negligence is a complete defense to an action to recover for injuries negligently inflicted. Butterfield vs. Forrester, 11 East. 60.

In Illinois, the courts have reiterated this rule in many cases, and the Court of Claims has on previous occasions denied recovery where the burden of proof was not sustained. In a recent case, Heston vs. Jefferson Building Corporation, 332 Ill. App. 585, a woman recovered a judgment. At the conclusion of the case, a motion was made for judgment, notwithstanding the verdict, and it was granted.

On appeal, the court stated:

“A woman, to whom a six-inch step from black floor of ladies’ rest room up to white marble floor, on which toilets were located, was visible when she entered room, was contributorily negligent, as a matter of law, in failing to see step when she left toilet five minutes later, so as to bar her recovery of damages from building owner for injuries sustained in fall on floor at step-off, in absence of evidence of any reason for such failure.”

In the instant case, claimant walked around, or over, a certain intersection that was in a dangerous condition. In thirty minutes or less she retraced her steps, and fell, suffering injuries. When she says that “she didn’t pay any attention to the holes”, this Court can only conclude that she did not use ordinary care under all the facts and circumstances of the case.

The law does not countenance the anomaly of one professing to look and not see that which is clearly visible.

Warren vs. Patton, 2 Ill. App. (2d) 173.
Roy vs. Chicago Motor Coach Co., 345 Ill. App. 296.
Donnelly vs. Real Estate Management Corp., 342 Ill. App. 453.

For the reasons above stated, the petition for rehearing is denied.


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    (No. 4585
    Orville G. Hollerbach, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 9, 1955.
    Jones, Ottesen and Fleming, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Orville G. Hollerbach filed his complaint in this Court on November 5, 1953 seeking recovery of $134.00 for expenses incurred, in accordance with exhibit A, attached to the complaint and made a part thereof, while an employee of the Department of Public Safety as a Driver’s License Examiner.

The expenses were incurred while taking a training course in Springfield preparatory to becoming a Driver’s License Examiner under said Department, the period of time covered being from June 7 to June 19, 1953, inclusive.

No answer having been filed by respondent, Bule 11 of this Court is applicable, and a general traverse or denial of the facts set forth in the complaint shall be considered as filed.

An order was entered by this Court on May 25, 1954 waiving the filing of a brief and argument by respondent.

The only testimony offered at the time of the hearing on February 23, 1954 was that of claimant. He testified to his employment as a Driver’s License Examiner Trainee during the periods heretofore mentioned, and his submission of expenses to the Department immediately after the training program. He stated that the statement covering his expenses was lost, and, after he resubmitted his expense sheet, he was advised by Mr. Phil M. Brown, Superintendent of the Department of Public Safety, to the effect that the Department was returning the travel and expense sheet as they had been submitted too late for payment. The funds had lapsed as of September 30, 1953, and the travel expense voucher was not received until October 5, 1953. Further, the Driver’s License Department was no longer a part of the Department of Public Safety, but had been transferred to the Secretary of State’s Office; and, also, had it been submitted earlier it would have been honored. This is set forth in exhibit B, attached to the complaint and made a part thereof.

At the time of the trial respondent did not offer any testimony other than a Departmental Beport, dated November 19, 1953, and written by Mr. David Maloney. The pertinent part of the Departmental Beport, being in answer to the complaint filed in this case, is to the effect that under paragraph 2 it is stated that a travel voucher was mailed on or about June 27, 1953, along with some reports, which was contrary to regulations, as it should have been sent in under separate cover. It was never received by the Department, and the travel voucher marked as exhibit A is not the way that the original voucher was submitted, as it calls for more money. Claimant was advised by the Department that the original voucher was not received, and that he should submit a duplicate as soon as possible, which claimant did not do. When it was finally submitted in duplicate, it was not in line, as his hotel charges did not agree with the receipts he showed, and the amounts were in excess of those that the Department could pay. In the summary there appears the following: “There is no doubt in the mind of the writer that claimant, Orville Gr. Hollerbach, has this money due him. However, the copy marked exhibit A has no regulations set down for us by the Department of Finance.”

There appears to be no conflict in the amount of the expense account as finally submitted, and said amount has not been paid for the reason that the Driver’s License Department was transferred from the Department of Public Safety to the Secretary of State, and there were no funds available at the time the matter was finally straightened out and the correct amount arrived at, which would have been due had he submitted the correct travel voucher prior to September 15, 1953 when the change was made in the Driver’s License Department.

As the record now stands, it appears that funds were available at the time that the travel voucher was first submitted, and, because the original was lost, there would be no justification for denying claimant bis right to recover his actual expenditures, which appear to be reasonable.

An award is, therefore, made by this Court in favor of claimant in the amount of $134.00.


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    (No. 4620
    Iva Ann Brown, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 10, 1956.

    Albright, Hodges and Nolan; and Goldenhersh and Goldenhersh, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On August 16, 1953, claimant, Iva Ann Brown, a resident of St. Louis, Missouri, attended the Illinois State Fair at Springfield, Illinois. She was accompanied by her brother, Roy Putnam, and his wife, Eunice Putnam, both of whom testified on her behalf.

. Claimant was walking through a building, designated as “25 Q”, which housed cattle. Bits of straw littered the concrete walk, and certain drains were installed on the sides of the walk, so that the area occupied by the cattle could be hosed down to maintain cleanliness. At intervals catch basins were installed, which extended out into the walk area. These basins were about 19 x 16 inches in size, and about 14 inches deep.

Claimant’s exhibits Nos. 1 and 2, admitted in evidence, consist of two large photographs of these areas. They accurately portray the drains and catch basins, and significantly show that the concrete edges of the catch basins were designed for a metal grate or cover to bring them up flush with the sidewalk. The picture also shows that no cover of any kind was present.

Claimant stepped into the catch basin, and fell forward upon her right arm, which resulted in an impacted fracture of the distal end of the radius in the right wrist. The Putnams assisted claimant to the First Aid Station, where a gauze bandage was placed on the wrist. Claimant returned to St. Louis that evening, where she was treated by her physician, and her arm was thereafter placed in a cast.

There is- no dispute in the evidence that claimant, who was employed in a shoe factory, lost eight weeks of work at the rate of $62.50 per week. Her medical expenses were in the sum of $200.00.

The Report of the Department of Agriculture recites that crews of employees were engaged the year round for maintenance purposes, but the Report does not deny or attempt to explain why a metal grate was not in place along the walk way. At the hearing respondent did not offer any evidence in rebuttal, but argues in its brief that respondent did not have any notice, actual or constructive, that the catch basin did not have a cover or a grate in place.

It is clear from the record that respondent did not have actual notice of the absence of the cover over the catch basin. However, whether respondent had construetive notice must be determined from a careful reading of the record.

This Court has in previous decisions found, from the record in particular cases, fact situations warranting a conclusion of constructive notice. Douglas E. Dreier, Et Al vs. State, 21 C.C.R. 72; Gertrude Skaggs, Admx., Et Al vs. State, 21 C.C.R. 418; Jack M. Visco, Et Al vs. State, 21 C.C.R. 480.

In the case of Jack M. Visco, Et Al vs. State at page 487, the Court pointed out:

“There cannot be any hard or fast rule in determining when it can be said that the state had constructive notice of a dangerous condition, and each case must be decided on its own particular facts.”

Constructive notice has. been defined by the courts from time to time, an example of which may be found in 46 C. J. 540:

“Constructive notice has been defined to be no more than evidence of notice, the presumption of which is so violent that the court will not allow, it to be controverted, the presumption of notice being one of law and not one of fact.”

The 1953 State Fair was open to the public from August 14 to August 23, inclusive. According to the Departmental Report, many thousands of people attended the Fair, and walked through the 71 buildings located at the site. It was incumbent upon the state to take reasonable precautions to see that the walks through the building were in a reasonably safe condition.

If any employee, engaged in maintenance, had inspected the walk, it would have been apparent that the drains located in the walking- area were without covers, and, if littered with straw, could not be recognized as drains. The omission to inspect the catch basins placed in a travelled walk way was clearly an act of negligence, and, from all the facts in evidence, the Court finds that respondent had constructive notice of a dangerous condition, and neglected to take the necessary precautions to prevent injury to the visitors entering the building.

The Court further finds that claimant was free from contributory negligence.

The remaining question for the Court to decide is the amount of claimant’s damages.

Claimant lost eight weeks of work at the rate of $62.50 per week, making a total of $501.20. Her medical and X-Ray bills were in the sum of $200.00. Claimant made a good recovery, and was able to return to work, though the medical report indicates that there may be some impairment to the arm and recurrent pain.

The Court believes claimant is entitled to an additional sum of $1,798.80 for pain, suffering and impairment to her arm.

An award is, therefore, made to claimant in the sum of $2,500.00.


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    (No. 4576
    Jack Pulizzano, a minor, by his father and next friend, Nick Pulizzano, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1954.

      Supplemental Opinion filed March 16, 1956.

    Robert F. Doyle, Attorney for Claimant.
    Latham Castle, Attorney General; A. Zola Groves, Assistant Attorney General, for Respondent.
   Wham, J.

This case is before us on a motion by respondent to strike and dismiss the complaint filed herein by claimant, which complaint prays damages for injuries allegedly suffered by claimant by reason of certain acts of negligence on the part of agents of respondent in maintaining certain portions of Starved Rock State Park.

Paragraph 2 of the motion to strike points out a specific defect, namely, that there is no allegation of due care and caution on the part of claimant.

Paragraphs 1 and 3 of the motion to strike and dismiss are in the nature of a general demurrer to the complaint.

Claimant has filed an answer to the motion to strike. In paragraph 1 of said answer, claimant acknowledges the defects specifically pointed out in the motion of respondent, and requests permission to amend paragraph 2 of his complaint to read as follows:

“2. That on or about the 1st day of August A. D. 1953, claimant, Jack Pulizzano, a minor, was walking upon certain pathways, located in said park, at or near Canyon Drive, and he was, at all times, in the exercise of ordinary care and caution for his own safety.”

The motion to amend the complaint, as above set forth, is hereby allowed.

In paragraph 2 of claimant’s answer, he moves to strike respondent’s motion to strike and dismiss for the reason that said motion is a general motion, and does not set out specifically wherein the complaint is insufficient. Claimant’s motion in the above respect is proper, and will be allowed.

Bule 2 of the Bules of the Court of Claims of the State of Illinois provides:

“Pleadings and practice, as provided by the Civil Practice Act of Illinois, shall be followed except as herein otherwise provided.”

Paragraph 45 of the Civil Practice Act of the State of Illinois provides in part as follows:

“All objections to pleadings heretofore raised by demurrer shall be raised by motion. Such motion shall point out specifically the defects complained of . . .”

Nowhere in respondent’s motion are there any defects specifically pointed- out, other than failure to plead due care and caution, which has been heretofore disposed of in this opinion.

Bespondent’s motion is in the nature of a general demurrer. In the case of Teren vs. City of Chicago, 413 Ill. 141, at page 144, the Supreme Court held that Section 45 of the Civil Practice Act has:

“. . . abolished!-all demurrers and substituted therefor a motion, which may only be in the nature of a special demurrer, specifically pointing out the defect of which the motion complains. There exists no motion in the nature of a general demurrer.”

In the case of Gulf, M. & O. R. Co. vs. Arthur Dixon Transfer Co., 343 Ill. App. 148, the court said at page 151:

“Section 45 of the Civil Practice Act (Ill. Rev. Stats., 1949; Jones Ill. Stats. Ann. 104.045) specifically provides that all objections to pleadings heretofore raised by demurrer shall be raised by motion, and that the motion shall point out specifically the defects complained of; that where a pleading is objected to on the ground that it is substantially insufficient in law, the motion must specify wherein such pleading is insufficient. The courts have sustained this provision of the Act, and interpreted, it to mean what it so clearly states.”

Claimant’s motion to strike respondent’s motion to strike and dismiss the complaint is, therefore, allowed as to paragraphs 1 and 3 thereof.

Supplemental Opinion.

This action is brought by claimant, Jack Pulizzano, a minor, by his father and next friend, Nick Pulizzano, against respondent, State of Illinois, to recover $7,500.00 in damages for personal injuries sustained by Jack Pulizzano, and $5,000.00 for loss of services to and medical expenses incurred by Nick Pulizzano, the father.

Claimant, Jack Pulizzano, sustained a broken leg and other injuries when he fell in Starved Bock State Park at a point near Canyon Drive at approximately 12:00 o’clock midnight on August 1, 1953.

The complaint charges that: (1) The park was open to the public, and the public was invited to enter; (2) Jack Pulizzano was walking upon a certain pathway located in Starved Bock State Park in or near Canyon Drive; (3) Despondent was negligent in one or more of the following particulars: (a) Failing to maintain said pathway in a safe condition; (b) Failing to inspect said pathway to discover the existence of an unsafe condition; (c) Failing to post signs warning the public not to use said pathway; (d) Failing to have hand rails or guards upon said pathway; (4) As a proximate result of one or more of said acts of negligence, Jack Pulizzano was caused to and did enter upon the pathway in response to a cry for help, and was caused to and did slip and fall off of said pathway causing his injuries.

The record reflects the following facts: Claimant, a young man fifteen years of age, together with three other boys, David Kawalski, Raymond Waltz and Loren McLain, and a girl named Peggy Bisgaard, all residents of Chicago, Illinois, left Chicago in a Ford panel truck early in the afternoon of August 1, 1953, and drove to Utica, Illinois for the purpose of seining minnows in the Illinois River nearby for claimant’s father, who operated a bait store. They were at the river seining for a short time, after having stopped for dinner at a roadside place.

Upon leaving the river, they drove to the state park by way of Route No. 71, and parked their truck on a lot near an opening into the park. It was approximately midnig’ht when they arrived. Claimant, when asked the question why they stopped at that particular spot to enter the park, stated that “We were looking for some place else to go, but we could not find any place to park”. He also stated that they stopped “Just to see what was there”. When asked by the Commissioner “What could you see at midninght? ”, claimant replied, “We could not see anything”. And when pressed further for an explanation as to “Why did you go then?”, replied “Something to do”. He further testified he had been to the park on previous occasions. On direct examination, he stated the occasion for their stopping at the park was “sightseeing”. Although claimant denied that they planned to seine minnows in the park, Raymond Waltz, one of claimant’s companions, stated on cross-examination, when asked why they came to this particular spot, that he had been with claimant’s brother some two or three years prior to the date of the accident while going for minnows, “found a canyon in there somewhere”, and that the night of the accident he, the witness, “couldn’t remember where it was exactly, and we were riding around, and we wound up in this one here. It wasn’t the same one”.

The only other reason given for the visit to the park was by David Kawalski, another companion of claimant, who, in answer to a question by the Commissioner as to why they were there, stated, “We wanted to see what it looked like”.

Whatever the purpose for the visit was, the parking lot from where they entered was not the main entrance, but rather a parking area, which is usually used by nature study groups to gain access to the regular trail system that runs throughout the park.

After stopping- and parking their truck, claimant and his companions walked through an opening in the fence and down a flight of 32 gravel and railroad tie stairs to a regularly maintained nature trail at the bottom of the stairway, intending to go down into a canyon. They then turned left onto the nature trail, and walked a short distance, at which time claimant, Peggy Bisgaard and Baymond Waltz decided to go no further, because they thought it was unsafe, and attempted to persuade the other two boys to return to the truck, but to no avail. The night was particularly dark, and the only means of illumination was one flashlight, admittedly dim, which was in the possession of Baymond Waltz.

The testimony concerning the physical characteristics of this particular area, as we are able to determine from the record and exhibits, shows this portion of the park to be a rough, wooded and rocky area running along the rim of Tonti Canyon and LaSalle Canyon. The maintained nature trail, reached by the stairs, which claimant and hisi companions descended, is a gravel trail approximately three and one-half to four feet wide with a relatively level and smooth surface following the contour of the land, and running parallel to the rim of the canyon.

The custodian of Starved Bock State Park, Mr. Clarence S. Martin, stated that in pursuing his duties he often inspected the trails of the park, and that just prior to August 1, 1953 he had inspected the particular trail involved, and found it to be in good condition.

Mr. Xavier C. Marr, landscape architect with the Department of Conservation, State of Illinois, testified that at this particular area the trail ran approximately 42 feet from the brink of the canyon. The topography of the ground between the trail and the brink of the canyon was a dense undergrowth of brush, trees, fallen limbs, leaves, roots from the trees and projecting stones, sloping generally toward the brink of the canyon with a 10 to 12 foot difference in elevation between the trail and the brink of the canyon. This area was broken in a number of places by washes made by drainage of surface water from rains coming down the slope of the hill above the trail and continuing on down the slope from the trail to the brink of the canyon. There were two washes in the vicinity of the intersection of the steps with the trail. One started above the trail at approximately the 11th step of the stairway, and angled down across the trail toward the canyon. It was approximately 4 to 6 inches in depth and 12 to 14 inches in width. It was bare earth winding, jagged and irregular with exposed roots. The record establishes that this particular wash is several yards to the west of the intersection of the stairs with the main trail, being to a person’s left as he descends the steps.

The other wash started from the edge of the trail at the bottom of the steps, and wound down toward the brink of the canyon. The record establishes that it was almost entirely of exposed stone, extremely rugged and impassable, varying from 24 inches to 10 feet in width.

After claimant and the two others decided to return to the truck, David Kawalski and Loren McLain continued to their left, or to the west, along the trail without the flashlight. They continued on the trail for about 20 feet, then left it, and started down the slope toward the canyon. They were following no trail or path, and continued down over some boulders into the canyon, where David Kawalski fell hurting his leg. At the time he fell, he was at the bottom of the canyon near a small creek. This canyon floor was approximately 100 feet below the trail level. Upon falling, David Kawalski and Loren McLain called to the others to come down that “David broke his leg”.

Upon hearing the cry for help, claimant and Raymond Waltz started down the stairway, claimant following Waltz, who was holding the flashlight. Claimant stated that they went down the stairs two at a time, and that, upon reaching the bottom of the stairs, they turned to the left, and ran on thei trail for five or ten feet, with claimant following Waltz. Waltz directed the light downward to the right of the trail looking for some way, an opening, to start down toward the canyon. He stated that he came to an opening between the trees, left the trail, and started down toward the canyon. He stated that it did not look like a regular “pathway” in the park, and did not' look like the trail that they were on from the stairs, but looked to him like some way to go down. He stated that he could hear the voices of the two boys in the canyon, and was trying to follow their voices. Waltz couldn’t say how far they went after leaving the trail, but all of a sudden he went over the edge of the canyon, but managed to catch onto a vine.

After he had gone over the edge, and was hanging by one hand, he called for claimant, Jack Pulizzano, to help him. Claimant saw him dangling over the edge ’of the canyon, sat down near the edge reaching for him, and was either pulled over the edge by Waltz or slid over. He fell down into the canyon, landing approximately 25 to 30 feet away from the two boys in the bottom of the canyon, and sustained a broken leg. He was then taken to the hospital and given medical treatment.

Claimant contends in his brief that the wash leading from the trail to the brink of the canyon appeared to be a path, and that respondent was negligent in failing to post warning signs and guardrails to indicate where the trail ended, and to barricade the wash. Claimant also contends that respondent had used one of these washes in carrying lumber from the trail down to the cliff, and that sightseers often went off of the trail toward the cliff to take pictures-, leaving pathways where they traveled. In short, it appears to be claimant’s contention that respondent was negligent in allowing a condition to exist, whereby claimant and his companion, Raymond Waltz, were lured off of the main path into a place of danger by reason of the alleged negligence of respondent.

There are several questions in this case, which have •not been answered to our satisfaction, one of which is the purpose that claimant and his companions had in being upon these premises at midnight. Irrespective of this, however, we intend to only address ourselves to the question of respondent’s alleged negligence, since we feel that an analysis of the facts and the law show respondent' was not negligent as contended by claimant.

The system of state parks in Illinois is provided for in Chap. 105, Ill. Rev. Stats., (1953 State Bar Association Edition). Among other things, the purposes and objectives of the system are stated in Par. 466 (2): “To set aside as public reservations those locations, which have unusual scenic attraction caused by geologic or topographic formations, such as canyons, gorges, caves, dunes, beaches, moraines, palisades, examples of Illinois prairie, and points of scientific interest to botanists and naturalists ’ ’.

The Legislature further directed in Par. 467 that, in maintaining state parks, the Department of Conservation shall ‘ ‘ conserve the original character as distinguished from artificial landscaping of such parks”.

The powers of the Department of Conservation, among other things, are set out in Par. 468 of the statute, being to “lay out, construct and maintain all needful roads, parking areas, paths or trails, bridges, etc.” in the state parks.

It is apparent from the exhibits and the testimony that the particular portion of Starved Bock Park here involved was intended to be, and was maintained in a rugged natural state as a scenic attraction, and that the trailways were constructed so that the public could view the natural beauties of the area.

The evidence reflects no negligence in the manner of the construction or maintenance of the trail. It was located some 42 feet from the edge of the canyon. It does not appear to us that a person using this trail, as it was intended to be used, could possibly have been misled into considering the washes or meandering paths made by the wanderings of the public to be a state maintained trail upon which they could travel in safety.

By the very nature of this portion of the park, it is obvious to .us that daytime hiking was the particular activity contemplated by the state in maintaining the trailways, and that, if the trails were to be used in the night time at all, the users would provide their own adequate illumination, and accept the obvious risks brought on by the darkness, especially if departure was made from the trail.

The invitation to use this public park is in no sense an absolute one. It is rather an invitation to use the particular facilities in the manner in which and for the purposes of which they were designed and intended. The state is not required to maintain its parks in such condition that patrons may wander at will over each and every portion thereof.

In Kamin vs. State of Illinois, 21 C.C.R. 467, we announced the rule that a determination of what constituted reasonable care in the maintenance of a trail or pathway in a state park depended upon the location, character and extent of the use to which the particular trail was put. We also held that the state was under no duty to maintain guardrails along the side of the trail at the point where the adjoining canyon was readily visible, to users of the trail. In the instant case, although it was dark, claimant and all of his companions knew that a canyon was in the vicinity, and, in fact, intentionally departed from the trail some distance before ever encountering the danger of falling over the brink of the canyon.

The same thing might be said with respect to claimant’s contention that warning signs should have been in place. Warning signs only serve to notify persons of an existing danger. If the danger is known, a warning sign is useless. If there had been posted upon every foot of this trail notices that there was a canyon in the vicinity, such notices would have warned only of that which surely would have been known by anyone using that portion of the park in a manner and at a time reasonably foreseeable by respondent.

We have here a situation wherein two boys in the blackness of a dark midnight knowingly left the safety of a regularly established trail, and went down into the canyon 100 feet below for the only avowed purpose of “seeing what was there”. It does not seem to .us that it would be proper to place the state under a duty to foresee and prepare for such activity at that time of night, and to further anticipate that claimant might sustain an injury in responding to a cry for help from one of the boys in the bottom of the canyon.

Although the injury to claimant was unfortunate, and although his response to a cry for help is admirable, we cannot find from the facts and the law involved in this case that the State of Illinois did anything contrary to good practice in the operation of its parks, which proximately caused either the dilemma of the boy, who fell in the canyon, and cried for help, or the fall of Raymond Waltz over the cliff, resulting in his attempted rescue by claimant, and claimant’s fall to the bottom of the canyon.

We .have, in deciding this case, assumed, but not determined, that claimant was entitled to the exercise of due care by respondent. Upon such an assumption, the opinion of Altepeter vs. Virgil State Bank, 345 Ill. App. 585, wherein Pollock on Torts is quoted, states the proper rule to be followed in determining what is or is not negligence on the part of respondent:

“ ‘If men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.' ”

An excellent statement applying this rule to which we adhere is found in Menestrina vs. St. Louis National Stock Yards, 278 Ill. App. 342 at 348 and 349:

“The owner of premises is bound to use reasonable care in so maintaining his property, that those who come thereon by his invitation, whether express or implied, may do so in safety, and if he fails in such duty, and an invitee is injured as a consequence, without negligence or fault on, his part, the owner will be required to respond in damages. (Citing cases.)
The rule, however, does not require that the owner foresee and guard against, or take precautionary measures to avert accidents or injuries, resultant from unusual and unexpected occurrences, which could not have been reasonably anticipated, and would not have happened unless under exceptional and extraordinary circumstances. (Citing cases.)
The accident in question was most peculiar and unusual, and one the ordinary mind, which can be guided only by a reasonable estimate of probabilities, would not have anticipated would occur. To hold the owner to have foreseen and guarded against an event so rare and unexpected, would be to practically hold it as an insurer against any accident, which human caution or foresight could prevent — a responsibility not exacted by the law. (Citing cases.)"

Since we can not find upon the record in this case that respondent should be held to have foreseen and guarded against the occurrence of this accident, we, therefore, must hold that neither of the claimants are entitled to recover any amount of damages.

In view of the above, we need not determine the ■question as to whether claimant has established that he was upon the premises in such a relationship with respondent, and for such a purpose, as to entitle him to the duty owed an invitee or patron of a park under the doctrine of Kamin vs. State of Illinois, 21 C.C.R. 467. In that case we adopted the rule that a patron of a state park, properly upon the premises, is entitled to the exercise of reasonable care by respondent. By not passing on this question, we do not imply that the record in this case is sufficient to establish such relationship.

The claims are hereby denied.