author: Wham, J.

text:
    (No. 4546
    Ruby O’Neil, also known as Ruby Benson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1954.

    I. J. Stagman, Attorney for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Wham, J.

This is a suit for damages in the amount of $2,500.00 growing out of alleged injuries to the person of claimant, while committed to the Elgin State Hospital for mental treatment during the month of April, 1946.

Claimant in her complaint alleges that on March 13, 1946 she was adjudged incompetent by order of the County Court of Cook County, and committed to the Elgin State Hospital. Subsequently she was paroled, and again recommitted on March 22, 1948 to the Chicago State Hospital. She alleges that during her confinement at the Elgin State Hospital she was subjected to electric shock treatments, during which treatments she received personal injuries consisting of a dislocated shoulder, injury to the right elbow joint, and fracture of the left arm. She further alleges that during her confinement to the Elgin State Hospital, and, in particular, during the month of April, 1946, certain experimental theraputics were indulged in without adequate scientific basis, and that during the process of such experimentation the injuries complained of were occasioned.

Respondent has filed no answer to the petition of claimant, and, by virtue of Rule 11 of the Court of Claims, is presumed to have filed a general denial to the allegations of the complaint.

Neither in the complaint, nor in the brief and argument filed by claimant is there any contention that agents of respondent were guilty of any act of negligence proximately causing the injuries complained of. It is fundamental that there can be no recovery unless claimant was injured through an act of negligence proximately causing the injuries.

The only evidence offered on behalf of claimant, concerning the happening of the alleged injuries, is her own testimony. She testified that, when she entered the Elgin State Hospital on March 16, 1946, her right and left elbows, arms and shoulders were normal, and ' she had complete use of these members. Shortly after she entered the hospital, she received electric shock treatments inducing unconsciousness for a period of six weeks, and, after regaining consciousness, she immediately noticed she was unable to use her arms and elbow. She testified that X-Rays were taken of her arms, and that shortly thereafter she had a conversation with a lady doctor, who had assisted in treating her, in which conversation the lady doctor stated, “I want to explain to you the condition of your arms. You will never be able to use them any more the way you used to.” She testified that, after she was discharged from the hospital, she discovered a complete handicap of the free use of her arms, that her left arm was crooked, and that it was a strain to feed herself. She specifically testified that she did not know what took place during the time she was in the coma, nor what treatments were administered in that period.

Respondent’s Departmental Report, submitted by D. Louis Steinberg, M.D., Superintendent of the Elgin State Hospital, stated that claimant was committed as mentally ill to the Elgin State Hospital from Cook County on March 16, 1946, and was received at the hospital on March 20, 1946. On March 23, 1946, because of claimant’s acute psychotic mental condition, electric shock therapy was instituted. Such Report further stated than an X-Ray examination on April 24, 1946, after the treatments were completed, revealed extensive calcification of the soft tissues in both shoulders with little arthritic changes noted, and also showed extensive calcification of the soft tissues, in the right elbow, while no arthritic changes were evident. X-Ray diagnosis reflected calcifying periarthritis of both shoulders and right elbow. The Departmental Report further stated that the shoulders were not dislocated, nor were any bones broken during the electric shock treatments, and that claimant was conditionally discharged to her husband on June 15, 1946, and absolutely discharged, as improved, on June 15, 1947. On March 22, 1948, the patient was committed to the Chicago State Hospital, and was admitted there on March 24, 1948.

A Report from the Psychopathic Hospital, dated March 24, 1948, stated that claimant sustained a spiral fracture of the left humerus, middle third, while being dressed for transportation to the State Hospital, and was treated for such by casting on March 22, 1948. The Departmental Report further stated that the patient was absolutely discharged from the Chicago State Hospital, as recovered, on January 8, 1951. On April 26, 1951, the patient was committed to the Chicago State Hospital, and was absolutely discharged, as recovered, on February 2, 1953. The Report stated the claimant sustained no injuries to any of her bones, while she was a patient at the Elgin State Hospital, and that she was not subjected to “certain experimental theraputics”, as charged in the complaint.

The Report contained the following information with regard to the treatment rendered claimant: “Electric shock therapy was a standard form of treatment in mental conditions such as patient exhibited. Upon her arrival here in 1946, patient was so acutely disturbed that her life was endangered from exhaustion. Her mental condition improved under electric shock treatment.”

Medical testimony was offered by both claimant and respondent, and exhibits, consisting of various X-Rays, were also offered in evidence, which evidence we do not intend to discuss.

Assuming that the claimant was injured during the electric shock treatment, which we do not hold to be a fact by such assumption, the sole question then involved is whether or not the rule of res ipsa loquitur applies. It plainly appears from the pleadings, the evidence, and the brief and argument of claimant, that no specific act of negligence is either averred, proved or asserted. Although claimant makes no specific mention of the doctrine, she is, in effect, relying upon it in this case.

Res ipsa loquitur is a form of circumstantial evidence creating an inference of negligence, which may be utilized by claimant in establishing a prima facie case. As stated by the Supreme Court of Illinois in Chicago Union Traction Co. vs. Giese, 229 Ill. 260, “the circumstances surrounding a case where the maxim res ipsa loquitur applies amount to evidence from which the fact negligence may be found.”

In order for such doctrine to be available to a claimant, it is well established generally, and, in Illinois specifically, that the injury must have been caused by a thing in the exclusive control or management of the defendant, and, further, that the accident must be such as in the ordinary course of events will not happen, if those who have such control and management use proper care.

The case of Bollenbach vs. Bloomenthal, 341 Ill. 539, recognizes this principle, and is the leading case involving an attempt on the part of a plaintiff to apply the doctrine of res ipsa loquitur in a case wherein a dentist was charged with malpractice resulting in injury to his patient. The Court in denying the application of such doctrine quoted from one of the leading cases in the country, Ewing vs. Good, 78 F. 442, which opinion was rendered by Chief Justice Taft, then sitting in the United States Circuit Court of Appeals. In that case plaintiff sued a physician to recover damages for an alleged improper treatment of her eyes; her claim being that for his lack of proper care and skill she lost the sight of one eye, and part of the sight of the other. In holding there could be no recovery, Mr. Justice Taft said:

“The naked facts that the defendant performed operations upon her eye, that pain followed, and that subsequently the eye was in such bad condition that it had to be extracted, established neither the neglect and unskillfulness of the treatment nor the causal connection between it and the unfortunate event herein. A physician is not a warrantor of cures. If the maxim res ipsa loquitur were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ills that flesh is heir to.”

The Court in the Bollenbach case recognized the principle concerning the non-application of the doctrine of res ipsa loquitur previously set forth in Chicago & Eastern Illinois Railroad Company vs. Reilly, 212 Ill. 506, that “Where-a condition can be accounted for as readily on the hypothesis of pure accident and absence of negligence as upon the ground of negligence, the rule is well settled that proof of an injury is not, of itself, proof of negligence where nothing is done out of the usual course of business, unless that course of itself is improper.”

This same doctrine is clearly stated in the case of Kraus vs. Becker, Ryan & Company, 265 Ill. App. 525, where the Appellate Court, in denying the application of the doctrine of res ipsa loquitur, stated at pages 532 and 533:

“The reason for the rule rests upon the presumption that in view of the surrounding circumstances the accident would not have happened had the defendant used ordinary care, and therefore, when the surrounding circumstances leave room for a different presumption, the reason for the rule fails. McGowan vs. Nelson, 36 Mont. 67.
In well considered eases resting upon the application of the doctrine of res ipsa loquitur, as tending to establish prima facie evidence, and where liability was upheld, it will be invariably found that in every instance there was an essential element present, that is proof of the existence of the cause or thing, which was alleged to have been the negligent act, which produced the injury, or proof of such facts from which the existence of such cause or thing constituting the alleged negligent act was the only reasonable inference that could be properly drawn. Conover vs. Delaware, G. & W. R. Co., 92 N.J.L. 602.”

Generally speaking, it is the law in Illinois, and generally throughout the country, that in a malpractice action the doctrine of res ipsa loquitur is not applicable, but the plaintiff, in order to recover, must offer affirmative evidence; and, as a general rule, expert testimony to show that the bad result or injury was caused by an alleged unskillful or negligent act. To that effect see Olander vs. Johnson, 258 Ill. App. 89, wherein it is stated at page 96:

“Before a plaintiff can recover in a malpractice ease, it must be shown by affirmative evidence, first, that defendant was unskillful and negligent, and second, that his want of skill and care caused injury to the plaintiff. If either element is lacking in the proof, no case is presented for the consideration of a jury. (Ewing vs. Goode, 78 Fed. 442; Moline vs. Christie, 180 Ill. App. 334; Wallace vs. Yudelson, 244 Ill. App. 320; Sims vs. Parker, 41 Ill. App. 284; McKee vs. Allen, supra; Phebus vs. Mather, 181 Ill. App. 274; Graiziger vs. Henssler, 229 Ill. App. 365.)
Mere conjecture or supposition should not be sufficient to overcome the presumption in favor of the attending physician. Alleged negligence and resulting injury must be proved as averred. A physician is not an insurer. (Goodman vs. Bigler, supra; Sims vs. Parker, supra; Blodgett vs. Nevius, 189 Ill. App. 544; Wallace vs. Yudelson, supra; Graiziger vs. Henssler, supra.) Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. (Sims vs. Parker, supra; Moline vs. Christie, supra; Blodgett vs. Nevius, supra.)
The doctrine of res ipsa loquitur is not applicable to situations like the case at bar (Guell vs. Tenney, 262 Mass. 54, 159 N. W. 451; Funk vs. Bonham (Ind. App.), 151 N. E. 22; Goodman vs. Bigler, supra; Graiziger vs. Henssler, supra), for unless the accident or injury sustained by the plaintiff bespeaks the defendant’s wrong, there is no proof of culpable negligence. (Chicago & E. I. R. Co. vs. Reilly, 212 Ill. 506.)
As a general rule, there must be expert testimony to show that a bad result was caused by the alleged unskillful or negligent act. (Moline vs. Christie, supra; Goodman vs. Bigler, supra; Kruger vs. McGaughey, 149 Ill. App. 440; Nelson vs. Sandell, 202 Iowa 109, 209 N. W. 440; 46 A.L.R. 1447.)"

To the same effect see Bollenbach vs. Bloomenthal, 341 Ill. 539; Graiziger vs. Henssler, 229 Ill. App. 365; and Goodman vs. Bigler, 133 Ill. App. 301.

There are, however, certain cases within the malpractice classification in which the doctrine of res ipsa loquitur is applicable. In the case of Johnson vs. Marshall, 241 Ill. App. 80, the Appellate Court of the Second District in Illinois held in a case where a physician was being sued by a patient for negligently treating him by X-Ray, resulting in burns to the plaintiff’s face, that under the facts involved therein the doctrine of res ipsa loquitur could be invoked, inasmuch as that particular occurrence was such as in the ordinary course of events does not happen, if due care had been exercised. At page 91 the Court stated:

“When the fact that plaintiS was burned severely is taken in connection with the assurance given by the defendant to the plaintiff that it would not hurt him and with the testimony of Dr. Irvin which tends to prove that the X-Ray machine with ordinary skill will not burn a patient, at a point other than intended, we think the testimony fairly tends to show that plaintiff was burned because' of a lack of ordinary care in the operation of the machine. The showing made, notwithstanding the rule contended for by the defendant in malpractice cases, is sufficient in our opinion to authorize the submission of the question of fact to the jury for them to determine whether or not the defendant was guilty of the negligence alleged in the declaration or some count thereof.”

Whether the maximum, of res ipsa loquitur applies in the present case, or any given case, is a question of law for the court to determine from the facts involved. McCleod vs. Nel-Co. Corp., 350 Ill. App. 216 at 235; Roberts vs. Economy Cabs, Inc., 285 Ill. App. 424 at 428 and 429.

We must, therefore, in order to determine whether the doctrine applies in this case, make this inquiry: Do the facts and circumstances show that the alleged injury to claimant would not have happened in the ordinary course of events had the defendant used ordinary care in conducting the electric shock therapy treatment? And, more specifically, is the treatment of such nature that the only reasonable inference to be drawn from the occurrence of injury during treatment was that the treatment was improperly and negligently conducted?

The question can only be determined from a knowledge of the electric shock therapy treatment itself. This particular question has not been before the Illinois courts, and, due to the relatively recent development of such treatment, has arisen in only two cases in the United States that we have been able to find.

The first case before any court of review was the case of Quinley vs. Cocke, Et Al, Supreme Court of Tennessee, 192 S. W. (2d) 992, decided on March 2, 1946. In that case Dr. E. W. Cocke and Gartley Ramsey Hospital of Memphis were charged in the complaint with general negligence resulting in the fracture of plaintiff’s hip and thigh during a certain electric shock treatment for plaintiff’s nervous disorders, and first discovered by plaintiff upon regaining consciousness. His complaint was based upon the doctrine of res ipsa loquitur, and the trial court directed a verdict for both defendants. Plaintiff appealed as to the defendant, Dr. Cocke, to the Circuit Court of Appeals, which court affirmed the trial court, and plaintiff further appealed to the Supreme Court of Tennessee. The sole question raised on appeal was whether or not the rule of res ipsa loquitur applied. The court discussed the method of electric shock therapy treatment, which is one of a most violent nature, at page 994:

“While the treatment is being given the patient is lying down on a treatment pad with his head in a downward position. A certain amount of electric current is caused to pass through the head and body as a result of which the patient becomes unconscious and. remains so for several hours .... Evidently they hold the patient, due to the fact that he is having violent convulsions.”

At page 997, the court summarized certain scientific journals filed with the record in the case, and dealing with electric shock therapy and personality disorders, to-wit, the American Journal of Psychiatry, the Pennsylvania Medical Journal, the American Journal of Medical Sciences, and the Journal of the American Medical Association, and stated that:

“While these periodicals minimize to a certain extent the danger of fractures to the spine and other bones, the fact is fully established that, as a result of violent convulsions caused by this treatment, they sometimes do occur when the treatment is properly given.”

All of which the court stated was supported and confirmed by the testimony of an expert witness to the effect that, “Such fractures occur while the shock treatment is being given Aven with every precaution to prevent them’ ”.

In summarizing the case, the court said at pages 96 and 97:

“Now in the instant case the plaintiff introduced no evidence showing a lack of skill in administering the shock treatment, that he was given an excessive shock of electricity, or for an unusual length of time. There is no evidence to show that the treatment given differed in any way from that which is usual and customary of a skilled practitioner in a situation of this kind, there is manifest need of a ‘scientific exposition of the subject matter' for the court and jury to clearly understand the nature of the treatment, as well as the usual results that follow. The treatment is something new in medical science. It originated in Italy in 1938, and was first practiced in the United States in 1939 or 1940. Due to its very recent origin all knowledge of the scientific application of the principle is necessarily limited to only a few experts.”

The court, in refusing to apply the doctrine of res ipsa loquitur, stated at page 997:

“In order to warrant the application of the doctrine in the instant case, the court would have to take judicial notice that, as a matter of common knowledge and experience, fractures of the spine and other bones do not occur as the result of ‘shock therapy’ in the absence of negligence. This we cannot do.”

In deciding this case, the court stated that ordinarily the doctrine of res ipsa loquitur is inapplicable in malpractice cases, although it recognized exceptions to this general rule in cases such as X-Ray burns, etc., where “there is manifest such obvious gross want of care and skill as to afford of itself an almost conclusive inference of negligence”. The Court then stated that, however, “the rule will not apply in malpractice cases ‘where scientific exposition of the subject matter is essential’ ”. Shain’s Res Ipsa Loquitur, pages 468, 469 and 470.

The next case involving this question was Farber vs. Olkon, 246 P. (2d) 710, District Court of Appeals, Second District, Division 2, California, decided on July 25, 1952, which case involved an action by George Farber, an incompetent person, by Joshua Farber, guardian of his person and estate, against David M. Olkon, Et Al, doing business as Los Angeles Neurological Institute. The complaint in that case, as in the Tennessee case, charged general negligence against the defendants in the administering of the electric shock therapy treatment to plaintiff, resulting in both legs being fractured during treatment.- The trial court directed a verdict in favor of the defendants, which action was sustained by the District Court of Appeals. The court at page 715 said:

“The law of this State is that generally the plaintiff in malpractice litigation must prove the negligence of the physician by expert proof .... Negligence on the part of the physician is not presumed, but must be affirmatively shown.”

The court stated that those decisions, in which the doctrine of res ipsa loquitur has been invoked, are situations, “where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed, if due care had been exercised”.

The court then cites the Quinley vs. Cocke case, supra, stating at page 715 that:

“The court there rejected the doctrine of res ipsa loquitur. So, in deed the court below (the trial court) in the case at bar did likewise and properly so. The machine of respondent was not defective. The convulsion was the indispensable element of the treatment. If it did not affect violently all parts of the body, it would bring no soothing effects to the mind of one in George’s condition. The trial judge accurately observed: ‘The injury, the evidence shows, was foreseeable, and its possibility was a calculated risk . . . Whether or not fractures of the bones are accepted hazards of electro convulsive therapy, whether or not they occur even though all standards of procedures of good practice are observed, the manner in which such treatments are given, their purposes and their effects, what is likely or unlikely to happen in the course of their administration, what is the usual and what is the unusual consequence, and the mental and physical effect of the treatment are not matters of common knowledge with which laymen are familiar. To know about them, to evaluate them, to say whether ordinary fractures would not occur in the absence of negligence, we require the opinion of experts.’ ”

The above case was then appealed to the Supreme Court of California, and affirmed on March 17, 1953, said case being reported in 254 P. (2d) 520.

The Supreme Court commented extensively upon the testimony offered concerning the nature of the treatment at page 525:

“The undisputed testimony of both defendant, Dr. Wayne, and witness, Dr. Thompson, in the instant case establish that electro shock treatment is designed to have an effect upon the entire body. The entire body is actually thrown into a convulsive state, and the aim and hope, of course, is that this convulsion and all of the biochemical changes that occur with this type of convulsion will produce a helpful and beneficial effect upon the patient’s mental condition; that the most frequent, most normal and most common hazard, which is germane, which is inherent in the method of treatment is fractures. There are certain other hazards, and, in deed, there are some cases in which death has actually resulted directly from the hazard germane to the treatment, but these are calculated risks of the treatment. . . Fractures occur as the result of muscle tension, whether it is in shock treatment or stepping off of a curb. . . And in treatment there is muscle tension which is a part of the treatment, and, therefore, . . . fracture becomes a calculated and even an expected risk of the treatment. . . . There is a certain percentage of fractures which occur not withstanding any kind of precaution or care that can be taken to prevent it. . . . The area of fracture is completely unpredictable. The overall instance of fractures in shock treatment varies anywhere from perhaps one and a half to about three and a half per cent. If one considers fractures of the spine. . . the incidence is between ten and forty percent.

The Supreme Court directly affirmed the trial court’s holdings stating:

“The trial court correctly concluded that the opinions of experts are required to evaluate the proceedings and hazards of shock therapy in any particular case. . . . And that the evidence does not ‘show any combination of facts and expert opinion from which a layman can draw the inference that the consequences of the treatment administered to plaintiff were not such as ordinarily, that is, normally, may follow if due care has been exercised’.”

The court then stated: “accordingly no basis for invoking the doctrine of res ipsa loquitur was established”, and cites the case of Quinley vs. Cocke, 183 Tenn. 428, 192 S. W. (2d) 992.

The Supreme Court further recognized the rule, which we believe should apply in determining whether or not facts concerning the nature of a certain kind of treatment place that treatment in such a category that the doctrine of res ipsa loquitur will apply in the event of injury, and stated at page 524:

“It further appears that the doctrine of res ipsa loquitur may not be invoked by plaintiff. The doctrine applies in medical malpractice cases only where a layman is able to say, as a matter of common knowledge, and observation; or from the evidence can draw an inference that the consequences of professional treatment were not such as ordinarily should have followed if due care had been exercised.”

We feel that the above decisions of the Tennessee and California courts, and the principles announced therein, are sound, and should be followed in the present case. The evidence herein established that the electric shock treatment, administered at the Elgin State Hospital to claimant, Ruby O’Neil, was a standard form of treatment used in such cases. There is no evidence to the effect that fractures do not occur in the ordinary course of events during the proper administration of such treatment. There is no evidence that the treatment is of such a nature that fractures occurring therein constitute a reasonable inference of neglect or improper conduct.

The burden of establishing facts to justify such an inference must be borne by claimant in order to invoke the doctrine of res ipsa loquitur, unless such facts are sufficiently within the common knowledge, observation and experience of men to allow the court to take judicial notice of them. For this Court to take such judicial notice would be not only to disregard the lack of common knowledge, observation and experience of men concerning this type of treatment, but also to ignore the recorded views of the highest courts of two States, which have had the benefit of expert testimony and scientific medical journals in reaching its conclusions. It is our holding that the doctrine of res ipsa loquitur could not be invoked in a suit against the doctor, and other persons individually, who rendered the treatment to claimant, and, therefore, cannot be invoked in this suit against the State of Illinois.

To hold otherwise, would be to ignore, in our judgment, the fundamental requirement, so clearly recognized by the Illinois courts, namely, that the doctrine of res ipsa loquitur may only be applied when the accident is of such a character as in the ordinary course of events will not happen, if those who have management and control of the thing causing the injury use proper care. To obliterate this requirement, would completely change the entire concept upon which the doctrine of res ipsa loquitur is based.

It is further to be noted that when claimant was subjected to these treatments, she was “so acutely disturbed that her life was endangered from exhaustion”, and that her mental condition was improved by reason of the treatment. It would, in our judgment, be bad policy to hold that the doctrine of res ipsa loquitur applies in such a case. To do so would certainly have a deterring effect upon members of the medical profession in making use of this and similar methods of treatment for the fear of being subject to malpractice actions, and compelled to meet the presumption or inference of negligence with affirmative testimony years after such treatment was rendered. If such were the case, “few would be courageous enough to practice the healing art”, Ewing vs. Good, 78 F. 442 at 443, and the forward development of new methods of treatment would be discouraged.

There being no evidence of negligence proximately causing the alleged injuries of claimant, and for the reasons hereinabove set forth, this claim is denied.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4551
    Whitla C. Modglin, Administrator of the Estate of Charles Phillip Modglin, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 12, 1954.

    R. W. Harris, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On March 26, 1953, a claim was filed in this Court by Whitla C. Modglin, Administrator of the Estate of Charles Phillip Modglin, deceased, for the wrongful death of her infant son, Charles, as the result of his drowning in a fish and lily pond, located near the caretaker’s home in the State Park at Dixon Springs, Illinois.

On October 26, 1951, Charles Phillip Modglin, an infant of approximately eight years of age, resided with his mother, father, brothers and sisters in the Village of Dixon Springs, County of Pope and State of Illinois. On said date Mr. and Mrs. Modglin owned and operated a general store, which also served as the post office for Dixon Springs, of which Mr. Modglin was the acting postmaster. At the same time, he was also employed in a plant at Paducah, and, during the time that he was away from the store and post office, which was between 6:00 A.M. and 4:00 P.M., the store and post office were tended by his wife.

The custodian of the State Park was Felix Burgess, who lived in the custodian’s house, located in the Park, with his wife. At the time of the accident he also had in his employ a Mr. V. L. Ditterline.

The custodian’s house, near which the pool in question was located, is approximately 500 feet from the general store, where Mrs. Modglin last saw her son on the afternoon in question. There was testimony that, during the time she was working in the store and post office, she permitted the children, including Charles, to play in and about the store, and around the custodian’s house. The testimony and the exhibits offered showed it to be a small concrete pool, irregularly shaped, approximately 15 feet long, 2^ feet deep, and contained fish and lily pads. A small wooden bridge was constructed across the pool with two guard rails located on one side, and one guard rail located on the opposite side. There appears to be no question but what the pool was easily accessible, and was not guarded by a fence, or barricaded in any way; and that children were frequently seen playing around it. The custodian’s yard and the pool were enclosed by woven wire and split rail fences. The entrance to the yard was through a woven wire gate. The enclosure, however, was not sufficient .to keep people from entering the custodian’s yard.

The evidence discloses that Charles Modglin was a boy of average height and weight for his age, had a defect in his speech, was physically handicapped, and was not at the time attending any school, but frequently visited the grades attended by his brothers and sisters.

Mrs. Modglin testified that, during the day when she was busy in the store, he was permitted to play in and around the store, and in the custodian’s yard, and had been seen on prior occasions playing around the fish pond. She was unable to state the hour when she last saw her son standing on the porch of the store, and didn’t know his whereabouts on that day until she was notified that her son had been found submerged in the fish pond. She was present when Mr. E. L. Ditterline, an employee of the respondent, removed her son, who was sitting in an upright position, from- the pond. A doctor was summoned immediately, and the doctor testified that the boy was dead when he first examined him, and that it was his opinion death was caused by drowning. The record is silent as to the boy playing around the pool, how he happened to fall into the pool, and whether anyone else was present at the time, as he was not seen from the time he left the store, until he was found submerged in the pool. There is no testimony other than the doctor’s testimony as to how the boy met his death. However, we are of the opinion that he met his death by drowning.

Claimant contends it was the duty of the respondent to so maintain the fish pond that children of tender years would not have access to the yard in which the pond was located, and that the pool in question was an attractive nuisance, which would render the respondent liable for any injuries or damages sustained.

The only question confronting the Court is whether or not the fish and lily pond, located in the State Park, could be. considered an attractive nuisance. We find that innumerable decisions have been rendered on this question, and in each case the determining factors were the location of the body of water, accessibility, attractiveness to children within the area, depth of the water, the size, the use made of the pond or body of water by children, such as the skipping of stones, swimming, playing with boats, and its general overall use by children.

The pool, or body of water, that we have to consider in this case, might be found in any city park, privately owned property, or State park. It was not a pond, or body of water, the size or depth referred to in cases where the Court construed the body of water to be an attractive nuisance.

The most recent case we have found is Gustafson vs. Consumers Sales Agency, 414 Ill. 235. The defendant in this case owned premises, which it negligently failed to grade, permitting water to collect in the ravine to a depth of 15 feet in certain portions. The Court pointed out that there were sticks, logs and other objects on this artificial water course, which remained open and unguarded; and was located in a neighborhood thickly populated, and adjacent to a public street. It was proven that the defendant knew, or should have known, that children played in and around this pond, and played on it during the winter months, when it was frozen. The child referred to in this case was seven years of age, and met his death on January 14, 1950, when he fell through the ice, while playing on the pond.

The Court in this case was not called upon to decide the question of whether or not the body of water was an attractive nuisance, but was concerned with an amendment to the complaint in the Appellate Court, where the question first arose, to take care of an omission in the complaint as filed. However, since it was an attractive nuisance case, the Court discussed the question of whether or not an attractive nuisance was established by the evidence. In this regard, we quote from a portion of the opinion, which is found on page 249:

“Although it is settled that an open body of water on private property is not in itself an attractive nuisance, (Mindeman vs. Sanitary Disk, 317 Ill. 529; Peers vs. Pierre, 336 Ill. App. 134) nevertheless, where the water contained unusual attractive elements, such as a floating log (McMahon vs. City of Pekin, 154 Ill. 141), or a thick scum, which appeared like a path (Cicero State Bank vs. Dolese & Shepard Co., 298 Ill. App. 290), or a boardwalk above the water (Howard vs. City of Rockford, 270 Ill. App. 155) the courts have held that the watercourse constituted an attractive nuisance.”

In reading the cases cited in the opinion, it is apparent that, before a body of water or watercourse has been declared to be an attractive nuisance, the objects and conditions referred to in this opinion must be in existence, so that it would attract children of tender years, and if these conditions were not found, it was decided that an attractive nuisance did not exist, and, therefore, no liability.

The case of Moore vs. North Chicago Refiners & Smelters, Inc., 346 Ill. App. 530, was one in which an infant, four years of age, was drowned in a pond of water on defendant’s property. At the conclusion of the evidence offered in behalf of the plaintiff, the defendant made a motion for a directed verdict, which was sustained by the trial court. The Appellate Court of the Second District reversed the trial court, holding that the body of water in question was an attractive nuisance, and based its ruling upon the following facts: (1) The pond was approximately 15 feet wide, 200 feet long, located along the railroad right-of-way within a populated area. (2) Paths extended across the property upon which the pond was located, which were used by the public generally in visiting the pond. (3) There was a considerable amount of rubbish around and in the pond, and small rafts and other articles were seen floating in the water. The court held that there was enough evidence introduced in regard to the pond, which made it a question of fact for the jury to pass on, and that the court should not have directed the verdict taking the case from the jury. In commenting on the evidence, or lack of evidence, as to whether or not the pond in question was an attractive nuisance as described by our Courts, we quote from page 533 of the opinion:

“Unguarded premises which are thus supplied with dangerous attractions are regarded as holding out implied invitations to such children. ‘The owner of land where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in safe condition, for they, being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees.’ City of Pekin vs. McMahon, 154 Ill. 141.”

In the case of Peers vs. Pierre, 336 Ill. App. 134, the defendant owned ten acres of land in the Village of Skokie, Illinois. There was an excavation made on his property, and water, seeping therein through the gravel, formed a pond. The child in the case was seven years of age. The complaint was drawn on the attractive nuisance theory, alleging that the pond or body of water was located in a thickly populated neighborhood, wherein many small children lived and played, as there was a sand beach around the pond, and it was surrounded by hills. The complaint also alleged that the pond was visible, and accessible to all the children iii the neighborhood. There was evidence the pond was not enclosed, and for a period of five years had been a place of amusement for many small children of tender years. At the close of plaintiff’s evidence, the court directed a verdict finding the issues for the defendant. The plaintiff appealed from the judgment upon the verdict, and contended that there was enough evidence, viewed in its most favorable aspects to the plaintiff, for the case to go to the jury; and, that it was a question of fact to be decided by the jury whether or not this particular body of water was an attractive nuisance. Defendant’s position was that the evidence did not show he maintained a dangerous agency, such as to come within the attractive nuisance doctrine. The plaintiff proved that boys, older and younger than the decedent, habitually played in and about the pond; that there were stones and small sticks therein, and sticks were seen floating on the surface of the pond. Plaintiff also proved that boys swam therein, played boats, and, that a girl of tender years, who lived near the pond, almost drowned therein. It was also proved the defendant was notified of the habits of the children living in and about the pond. Evidence was also introduced to the effect that facing the road leading to the pond was a warning sign. However, the infant, who drowned, was not old enough to understand the meaning of the sign. Many cases are cited in this opinion, in some of which the court found an attractive nuisance did exist. We quote from page 138 of the opinion:

“We infer from a reading of these cases that the ponds or pools were not, in themselves, considered attractive nuisances. This inference is borne out by the cases in this and other jurisdictions cited by the defendant.
We are satisfied after reading Mindeman vs. Sanitary District, 317 Ill. 529; Baker vs. Fruin-Colnon Construction Co., 271 Ill. App. 300; Kelly vs. First Bank & Trust Co., 256 Ill. App. 439; and Wood, Admr, vs. Consumers Co., 334 Ill. App. 530, that the pond in which the decedent, William Peers, was drowned was not an attractive nuisance. In the Mindeman case the court quoted extensively from Barnhart vs. C. M. St. P. R. Co., 89 Wash. 304, 154 Pac. 441; where a boy 8 years old was drowned when he fell from a raft on the surface of a pool on the railroad property. The substance of the quotation is that there is a distinction between the so-called ‘turntable’ cases, and those involving pools of water; that no one can deny that a pool of water is attractive to boys, but that it is not a dangerous agency so as to come within the doctrine of attractive nuisances, because the number of deaths in comparison to the total number of boys visiting ponds for purposes of playing, fishing and swimming is comparatively small. The Washington Court in that case refused to go as far as our Supreme Court in City of Pekin vs. McMahon. We see no need of referring to other cases outside this jurisdiction. The weight of authority is to the effect that the attractive nuisance doctrine does not apply to ponds, where there is no unusual danger. 36 A.L.R. 224. In the Mindeman case our Supreme Court said the courts seemed to be of one mind in holding that a canal pond or other open body of water is not of itself an attractive nuisance.”

In all of the cases cited, and in others which we have read, we have not found one case wherein a state, municipality or an individual has been held liable for maintaining fish or lily ponds of the size and depth of the pond located in Dixon Springs State Park, and are of the opinion that this pond, even though unguarded, did not amount to an attractive nuisance.

For the reasons cited herein, we deny claimant’s claim under the Injuries Act for the wrongful death of Charles Phillip Modglin.


author: Tolson, C. J.

text:
    (No. 4528
    Calvert Fire Insurance Company, A Maryland Corporation, and Rube Dunbar, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1954.

    Snavely, Miller and Meehling, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Calvert Fire Insurance Company, a Maryland Corporation, and Rube Dunbar, filed their complaint herein, alleging that a certain Hudson automobile, owned by Dunbar, and insured by Calvert Fire Insurance Company, was damaged by the negligence of a maintenance employee of the Division of Highways.

The amount involved is $153.10, $50.00 of which was paid by Dunbar under the so-called “deductible” clause of the policy, while the Insurance Company has paid the balance of $103.10. The Insurance Company, in turn, received a subrogation receipt from Dunbar for the amount of its payment, and has joined in this proceeding.

The facts of the case are as follows:

On December 15, 1951, at about 10 A.M., Rube Dunbar was driving a new Hudson automobile in a westerly direction on U.S. Route No. 40, at a point about two miles east of Marshall, Illinois. The road was coated with ice, and driving conditions were very hazardous. A State Highway maintenance crew was working on U.S. Route No. 40, spreading cinders mixed with chloride in an effort to correct the icy conditions of the highway.

Dunbar testified that the particular State Highway truck had stopped on the top of a hill, and a man was standing in the bed of the truck shoveling cinders. He further testified that he stopped behind the truck, and, upon receiving an arm motion to proceed, started to pass. When he came abreast of the truck, the'employee, later identified as John Gunder, threw a shovelful of cinders on the hood and windshield of his Hudson automobile. He stated that, at the moment of impact, he had started down the hill, and, since there was no place to pull off of the road, he continued for a quarter to a half mile to the crest of the next hill, and then stopped to clean off the car. In either driving on or off the shoulder, the evidence is not clear, he scraped the right front fender and right side of the car on a post, and lost some of the ornamental trim.

Whether John Gunder, the Highway employee, motioned Dunbar to proceed or not is in dispute, but, in any event, the Court is of the opinion that he was negligent in not looking before he threw cinders into the line of travel.

If the car had gone out of control, and had been damaged immediately after being hit by the cinders, this Court would have no difficulty in finding that the negligent act of the State employee was the proximate' cause of the damages, but such was not the case. Dunbar had full control of the car at all times. He was able to see through the windshield, even after turning off the wipers, and he drove it a further distance of a quarter to half mile before stopping.

Two questions are now before the Court:

1. Was there an “intervening efficient cause” that relieves, or mitigates, the State from its negligence?

2. If there was an “intervening efficient cause”, was it probable and foreseeable by respondent, so that the State cannot break the casual connection, and thereby relieve itself of responsibility?

The doctrine of intervening efficient cause is set forth in the case of Johnston vs. City of East Moline, 405 Ill. 460, 91 N.E. (2d) 401.

“An intervening and efficient cause is a new and independent force, which breaks the casual connection between the original wrong and the injury, and itself becomes the direct and immediate cause of the injury. Pullman Palace Car Co. vs. Laack, 143 Ill. 242, 32 N.E. 285, 18 L.R.A. 215; Illinois Central Railroad Co. vs. Oswald, 338 Ill. 270, 170 N.E. 247. The intervention of independent concurrent intervening forces will not break casual connection, if the intervention of such forces was itself probable or foreseeable. Sycamore Preserve Works vs. Chicago & Northwestern Railway Co., 366 Ill. 11, 7 N.E. (2d) 740, 111 A.L.R 1133; Wintersteen vs. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578; Garibaldi & Cunco vs. O’Connor, 210 Ill. 284, 71 N.E. 379, 66 L.R.A. 73; Armour vs. Golkowska, 202 Ill. 144, 66 N.E. 1037.”

It may be argued that respondent could reasonably expect that Dunbar would stop his car at the earliest possible moment to inspect and clean his car, thus negativing the rule of “intervening efficient cause”. However, the fact remains that Dunbar selected the site to puU off of the highway. He alone had the exclusive opportunity to stop where he did, select a better site, or even drive a short distance further into the Village of MarshaU. Nor does it appear from the evidence that the stop was, in fact, an emergency. Dunbar could see through the windshield, and the only reason he turned off the wipers was to prevent a possible scratching of the windshield.

The Court, therefore, finds that the portion of the damage caused by the contact with the post was brought about by an efficient intervening cause, and is not attributable to the original negligence of the respondent.

The evidence further indicates that Dunbar declined to have the scratches on the car repainted, because he didn’t want a “touch up” job. Instead he had the whole of the lower portion of the car repainted, whether scratched or not. Since the car was new, the Court finds that this was not unreasonable, and is a proper element of damage.

The repair bill, admitted in evidence, is sufficiently itemized for the Court to separate the portion of the bill involved in the collision with the post.

Parts............................................$60.10

Labor — V/2 hours at $3.50...... 12.25

$72.35

The balance of the bill in the amount of $80.75 is properly chargeable to the negligence of the respondent.

An award is, therefore, made to the claimants in the amount of $80.75.


text:
    (No. 4532
    Joseph A. Mertel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1954.

    Kevin D. Kelly, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves a claim against the State of Illinois in the amount of One Thousand Three Hundred and Fifty-Five Dollars and Forty-six Cents ($1,355.46) for damages to a motor truck owned by claimant, Joseph A. Mertel.

The evidence establishes that claimant was the owner of a 1950 International concrete mixer truck, which at about 9:00 o’clock in the forenoon of May 24, 1952 was being driven by his son, Anthony Mertel, on business for claimant, in a southerly direction upon U.S. Highway Route No. 51, across Shippingsport bridge, which spans the Illinois River at LaSalle, Illinois.

It is a lift span bridge, which is raised from time to time to allow clearance for river traffic. At each end there is a steel guard gate suspended by cables from the bridge super structure, which gate is lowered to the floor of the bridge by a cable pulley arrangement at the same time the bridge is raised, the purpose of the gate being to protect operators of motor vehicles approaching the bridge at such times. The gate is raised to a height of 14 feet when the bridge is lowered. It is 3 feet high and 22 feet in length, being the width of the bridge, and is constructed of steel angle irons on the top, bottom and ends, and strap iron woven through the center thereof forming diamond shaped spaces, weighing approximately 1,500 pounds.

When claimant’s truck reached the south end of the bridge, the guard gate suddenly, and without warning, dropped from its raised position onto the front end of the truck.

The driver, Anthony Mertel, who was the only eye witness to the accident, testified that he was driving south at a speed of 25 miles per hour, and first saw the gate falling about 5 or 6 feet in front of the truck; that he ducked low in the cab to protect himself, lost control of the truck momentarily, and, after regaining control, brought the truck to a stop approximately 100 feet from the point of impact with the gate. He further testified that he then inspected the gate, which had been carried by the momentum of the truck for approximately 70 feet from the point of impact, and found that about 12 feet of 5/16 inch cable was attached to the end of the gate, but that no cable was attached to the other end thereof. A series of photographs taken immediately after the accident were admitted in evidence as exhibits, and, together with the testimony of Anthony Mertel, established that the end of the cable attached to the gate as aforesaid was frayed. The cable controlling the movement of the gate travels through a slot in a steel beam to the top of the bridge, where it winds around a shiv when the gate is being raised, with no pulley or other device at that point to prevent friction.

Mr. Arthur J. Fischer, head bridge tender and witness for respondent, confirmed the fact that the cable attached to the gate was frayed on the end, but persisted in stating that the cable did not come in contact with the steel beam at any point between pulleys, although he admitted that it could come in contact with the beam, and that grease had been applied by mechanics to the beam, “to avoid any possible friction”. He further testified that the cable passed through a 3 inch opening in the steel beam.

The question here involved is: “Did the cable break, and the gate fall by reason of negligence on the part of respondent?”

There is no direct proof of an act of negligence by any agent of respondent. However, this case, in our judgment, involves a situation wherein the doctrine of res ipsa loquitur may be invoked by claimant, and such is urged by claimant’s counsel in his brief and argument.

This Court has previously applied the doctrine of res ipsa loquitur in a case wherein the facts were identical to those involved herein. The accident happened in the same manner and on the same bridge. Not only that, but the truck involved was owned by Joseph A. Mertel, the claimant herein, and was driven by the same driver, Anthony Mertel. Joseph A. Mertel vs. State of Illinois, 20 C.C.R. 285.

The bridge mechanism, gate, and cable were in the sole control of respondent. Under the rule of the doctrine, the occurrence of the accident amounts to evidence from which the fact of negligence may be found. We accept this evidence as constituting negligence, in the absence of proof by respondent rebutting such an inference or presumption, or explaining the cause of the accident on some other ground than its own negligence.

Respondent contends in its brief ■ and argument that the evidence sufficiently rebuts the inference, or presumption of negligence, raised by the application of the doctrine of res ipsa loquitur. We do not agree with respondent. The fact that the bridge had been raised, and the gates lowered within an hour prior to the happening of the accident, as testified to by respondent’s witness, Mr. Fischer, is not sufficient to overcome this presumption of negligence, nor is the portion of the Departmental Report, which states that the bridge is inspected once every two weeks by mechanics, or bridge maintenance supervisors, and the operating machinery of the bridge “operated and watched daily by bridge tenders”, of any help to respondent in overcoming the effect of the doctrine. No evidence is offered by respondent showing what the inspections consisted of, the thoroughness of said inspections, and the results of the inspections conducted.

Respondent also contends that the inference of negligence was rebutted by evidence that the driver of claimant’s truck had been warned not to proceed at an excessive rate of speed, because the bouncing and vibration of the bridge created thereby would cause an accident to occur on the bridge. It is respondent’s contention that, notwithstanding this warning, the driver of the truck drove at an excessive rate of speed, which “caused the span to bounce up and down, and to vibrate; and, the chain pin that holds the supporting chain at one end of the barrier gate, because of said bouncing and vibration, broke, causing one end of the gate to fall a short distance, and become wedged in the side guides, after which the continued bouncing and vibration of the span set up by the rapidly approaching truck mixer, loaded with nearly twenty tons of concrete, caused the pin holding the supporting chain on the other end of the gate to break, whereupon the entire gate fell”. (Paragraph 7, Departmental Report.)

The only evidence in this case as to speed was the testimony of the driver of claimant’s vehicle, Mr. Anthony Mertel. He testified that he was driving 25 miles per hour, when traveling over said bridge. The only evidence offered by respondent was the testimony of Mr. Fischer, who stated that he did not see claimant’s truck until after the accident had happened, and on cross-examination stated that he could not judge the speed of claimant’s vehicle. He testified on direct examination that 25 miles per hour was not an excessive speed to drive, while crossing the bridge. We do not find any evidence of excessive speed in this record.

We further find that, regardless of this, there is no competent evidence in the record to sustain respondent’s contention that the vibration of the bridge caused the chain pin to break, and the gate to fall, as set forth in the Departmental Report. The portion of the Departmental Report quoted above is not competent evidence of this fact, since it is obviously based upon conclusions, rather than facts. We held in the case of Lillian Kamin vs. State of Illinois, No. 4529, opinion filed on September 25, 1953, that a Departmental Report shall be prima facie evidence of the facts set forth therein, but is not prima facie evidence of the conclusions set forth.

We find that there is no evidence in the record sufficient to rebut the presumption, or inference of negligence, raised by the application of the doctrine of res ipsa loquitur, and further find that claimant has borne the burden of proving negligence on the part of respondent, due care and caution on the part of claimant, and that the negligence of respondent proximately caused the damage to claimant’s truck.

The evidence clearly established that both front fenders, the grill, radiator, carburetor, manifolds, cab, headlights and crank shaft of claimant’s truck were damaged in the total sum prayed for, namely, Thirteen Hundred and Fifty-Five Dollars and Forty-six Cents ($1,355.46).

We, therefore find judgment in favor of claimant, and enter an award in his favor in the amount of Thirteen Hundred and Fifty-Five Dollars and Forty-six Cents ($1,355.46).


text:
    (No. 4549
    Arlie Grant, Mable Grant, Lois Ann Grant, a minor, by Arlie Grant, her father and next friend, and Betty Nell Grant, a minor, by Arlie Grant, her father and next friend, Claimants, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1954.

    R. W. Harris, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Arlie Grant, Mable Grant, Lois Ann Grant, a minor, by Arlie Grant, her father and next friend, and Betty Nell Grant, a minor, by Arlie Grant, her father and next friend, filed their complaint on March 26, 1953 for personal injuries sustained by them as an outgrowth of an accident, which occurred on July 14, 1952 on State Highway No. 37 in the County of Johnson, State of Illinois, one-half mile south of the Village of Buncombe.

The record consists of the verified complaint, original transcript of evidence, copy of transcript of evidence, abstract, supplemental abstract of evidence, and claimants’ and respondent’s briefs and arguments. No answer was filed by respondent. Therefore, in accordance with Rule 11 of this Court, a general traverse is considered to have been filed.

On July 14, 1952, Mable Grant, the wife of Arlie Grant, and their two daughters, Lois Ann Grant and Betty Nell Grant, aged four and three years respectively, were riding in a southerly direction on Route No. 37 in a 1941 Chevrolet, owned and driven by Arlie Grant, to which automobile was attached a small trailer. Also riding in the back seat of said automobile was a friend of Arlie Grant by the name of Samuel R. Smith. At or about the hour of 8:00 P.M. on said day, the Grants were driving to Anna, Illinois for the purpose of buying ice for their grocery store, which they owned and operated in Buncombe.

On or about July 14, 1952, employees of the Division of Highways of the State of Illinois were in the process of repairing three small sections of the concrete road south of Buncombe on Route No. 37. The first hole was from one quarter to one half mile south of Buncombe, and was located on the east side of the dividing line to the center of the highway, being the north bound traffic lane. The second repair work was being done about a mile to a mile and a half south of Buncombe, where the concrete was removed on the east side of said highway. The third hole was about four miles north of Goreville. We are concerned only with the first two repair zones south of Buncombe. The concrete removed was rectangularly shaped, extending from the east edge of the pavement to the center line, and was six or eight feet across, and approximately nine inches deep.

Barricades were placed on either side of each hole in the pavement, and were described as “horses”, constructed out of two by sixes, painted with black and yellow diagonal stripes, and supported by “A” frames. The same type of barricade was constructed on the east side of the pavement south of the first barricade zone.

Three “pot” type flares were placed on the south of each barricade, and two on the north side of each barricade. The “pot” type flares burned a mixture of gasoline and kerosene, and were the type usually employed by the Highway Department in construction work. Three signs were placed to the south of each hole, which bore the following legends: “Road Repairs Ahead”; “One Way Traffic”; and, “Barricade”. These signs were placed approximately two hundred feet apart, with one “pot” type flare at each sign. To the north of each hole, and, on the opposite side of the road, were two signs bearing the following legends: “Slow”, and “One Way Traffic”. A flare was also placed at each of these signs.

Assigned to the area in question (being area 940) on the evening of the accident were the employees of the State, who were repairing the highway; namely, Thomas N. Durham, Herbert Billingsley, Sam Cash and Frank Stout, the latter being the foreman. Work was completed at or about the hour of 4:30 P.M. on the day of the accident, and several of the witnesses testified that before they left the job each “pot” type flare was lighted and burning. There was an understanding between the employees, that, in the event of a rainstorm or inclement weather, the foreman, Frank Stout, would return to the area under construction to check the flares. After they left work on that afternoon it rained and blew severely. However, the foreman testified that he went home after work, and remained at home until about eight o’clock, when he first heard that an accident had occurred. From the time he quit work until he heard of the accident, he was not advised of anything concerning the' flares, or the signs; and at his farm there was only a trace of rain, and no wind to speak of.

Claimant’s witnesses testified that, at the time of the accident in question, no flares were burning at any of the signs, or at or near the barricades south of Buncombe.

On the evening in question, Robert Lavender, a young man approximately 18 years of age, who lived in Vienna, Illinois, left his home in his 1947 Roadmaster Buick, and drove north on Route No. 37 toward Johnston City at approximately 60 miles per hour. He drove around the barricade approximately a mile and a half south of Buncombe, and, in doing so had to drive on the west side of the pavement, which was damp in spots, and then he continued on at the same rate of speed. As he approached the first repair area south of Buncombe, he saw the Grant car approaching from the north. The witnesses in the Grant car and Lavender testified that they saw the barricades at the hole. Mr. Lavender testified that he applied his brakes, and the front end of his car swung into the lane for south bound traffic in front of the Grant car, and the two cars collided. He further testified that the flares at the barricade were not burning at the time of the collision. He stated that his lights were on dim, and that he saw the lights of the Grant car. After the impact his automobile was on the west side of the pavement in the south bound traffic lane and off of the highway. Mr. Grant’s car was headed east and west in the middle of the road. The impact took place between twenty and thirty feet south of the barricade. As to the condition of the road, he testified that it had rained two hours before the accident, and the road was not quite dry at the time of the accident. He further testified that he did not see any signs around the barricade, where the accident occurred, or the “pot” type flares until after the accident. He saw the Grant car a quarter of a mile before the impact, and was fifty yards from the barricade, when he applied his brakes, and the Grant car was one hundred feet north of the barricade at the time he applied his brakes.

Complaints were filed in the Circuit Court of Johnson County, Illinois against Robert Lavender, which were settled, and Covenants Not To Sue were given by or in behalf of each of the claimants, copies of which are included in the record as exhibits, which show that Arlie Grant gave a Covenant in consideration of the payment of $3,500.00; Mable Grant, $250.00; Lois Ann Grant, $750.00; and, Betty Nell Grant, $500.00.

There is no question but that the 1945 Court of Claims Act in effect recognizes the obligation of the State to maintain and repair the Illinois State Highway System, and, as such, removes the State’s sovereign immunity for cases of this type. However, the State of Illinois is not an insurer against all accidents upon its highways, but is required only to keep them in a reasonably safe condition for the purpose to which the portion in question is devoted, and the placing of signs warning of the conditions to be met fulfills the obligation of the State to the users of the highway.

Terracino vs. State, No. 4420, Opinion filed on January 8, 1952;

Beenes vs. State, No. 4377, Opinion filed on October 5, 1951.

This case can be distinguished from that of Di Orio vs. State, 20 C.C.R. 53, in that it was a case where a condition was created in the highway, and no notice given to respondent. In said case there was a question as to how long the hole had been in the highway, and whether the State had actual or constructive notice of the defect in the highway.

There is no question but what the burden is upon the claimants to prove by a preponderance or greater weight of the evidence, first, that they were free from contributory negligence, and, secondly, that respondent was guilty of negligence, and that the claimants were injured in person and property by reason of the negligence of the respondent’s agents. There was an intervening factor in this case, which we cannot overlook, and, which, in our minds, appears to be the proximate cause of the injuries sustained by claimants. This was recognized by the insurer of Robert Lavender in buying peace for the amounts set forth in the record. The exhibits referred to are not proper exhibits, and are not influencing the Court in trying to fix the liability, but are only proper in mitigation in reduction of an award, if one is made, and are not to be considered by us now in arriving at our decision in this case.

There is no question but what the claimants had every reason to believe that the car, which they saw approaching from the south, would stay in its proper lane of traffic, and allow them to clear the barricade. Even though claimants testified that there were no lights upon the signs, or around the barricades, they would not have had an accident had the automobile of Robert Lavender not skidded into their lane of traffic. We cannot overlook the fact that the State did have barricades around the excavations, did place “pot” type flares at each sign around the excavations, and did have warning signs on both sides of the road from two hundred to six hundred feet from the barricades. The testimony of Robert Lavender showed that he saw the first barricade, drove his automobile on the opposite side of the road without striking the barricade, saw the barricade where the accident occurred fifty yards prior to reaching it, saw claimants’ car at least one hundred feet north of the barricade, and, knowing the condition of the highway, drove his automobile at a speed, which could be considered unreasonable, contrary to Chapter 95^, Sec. 49. It appears from his own testimony that he saw the oncoming vehicle, and did not apply his brakes, or attempt to stop his automobile, until he was too close to the barricade and the oncoming vehicle to avoid the accident in question. It appears to us that it was his negligence, and not the negligence of the respondent, which was the proximate cause of claimant’s injuries. In our opinion, respondent’s agents erected a sufficient number of signs, barricaded the excavated portion of the highway, and lighted the flares before leaving their work that afternoon; and, that Frank Stout was not charged with any notice, actual or constructive, that the flares were not lighted at the time of the accident. In that regard, we do not believe that the respondent is chargeable with having someone in constant attendance, so that flares do not go out, but is only required to use ordinary care and caution in erecting and providing a sufficient amount of warning and protection to the traveling public, when work is terminated at the end of a day. In our opinion, the road was left in a reasonably safe condition by respondent’s agents, when they left their work at 4:30 P.M. on July 14, 1952.

As to the flares not being lighted at the time of the accident, from the testimony of the employees of the respondent as to the understanding with the foreman, and the foreman’s testimony that, after the flares were lighted, he returned home, and that at his farm the wind did not blow, and the rain was slight, one could not say that he would be chargeable with knowledge that the flares were not lighted at the barricade.

As to the amount of rain, his testimony seems to be substantiated by the testimony of Robert Lavender, who stated that the pavement between Vienna and Buncombe was damp only in spots.

In view of all the facts and circumstances relative to the preparations made for warning the traveling public, the conduct of Robert Lavender in the operation of his automobile; and, considering the cases previously decided by this Court and other courts in this State touching upon the question of proximate cause, it is evident that the claimants have failed to prove their asserted causes of action by a preponderance or greater weight of the evidence. The State is not an insurer of all motorists traveling upon its highways.

Therefore, the claimants’ claims filed herein are denied.


text:
    (No. 4563
    Archie W. Armstrong, Ira A. Erwin, Louis Wolff, John M. Hamilton, and David Umsted, as Trustees under the Will of Harriet Humiston, Deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed, February 26, 1954.

    Tuesburg and Armstrong, Attorneys for Claimants.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

It appears from the record of this case that there is no dispute concerning the facts involved. Claimants, as trustees under the will of Harriet Humiston, are the owners in fee simple of the following described real estate:

The South Twenty-Two (22) acres, of the West Sixty-five (65) acres, of the West Half (W)^) of the Northeast Quarter (NEJ^Q, of Section Twenty-seven (27), Township Twenty-eight (28) North, Range Five (5) East of the Third Principal Meridian in Livingston County, Illinois.

For a period beginning on the 1st day of July, 1949, and ending on the 1st day of July, 1950, claimants demised and leased, by written lease, to the State of Illinois, acting by and through the Department of Public Safety, the real estate above described at a rental of Two Hundred and Five Dollars and Thirty-three Cents ($205.33) for the period of said lease. For twenty years prior to July 1, 1949, said premises had been leased to respondent by written lease in a form similar to that entered into on July 1, 1949. Through all these years, the written leases were prepared by the Chief Clerk of the Illinois State Penitentiary, Pontiac Branch, and delivered to the attorneys for claimants, and their predecessors .in office, for signature. During all of these years, the leases had been executed by claimants, and their predecessors in office, and by the Director of the Department of Public Safety. The land was farmed by the State of Illinois in connection with the Pontiac Branch of the Illinois State Penitentiary.

During said years, separate leases were made — one running from March 1 to July 1 at a rental of One Hundred and Two Dollars and Sixty-seven Cents ($102.67), and the other from July 1 to March 1 of the succeeding year at a rental of Two Hundred and Five Dollars and Thirty-three Cents ($205.33).

Through inadvertence, the Chief Clerk of the Illinois State Penitentiary, Pontiac Branch, did not prepare, and submit to the claimants for signature, leases for the period beginning March 1, 1950 and ending March 1, 1952, although the State of Illinois continued to occupy said land and farm it in the same manner as had been done in all the previous years, as though such leases had been signed, and were in force.

No rent has been paid by the State of Illinois for the use and occupancy of these lands for the period above named, and there is now due from the State of Illinois to claimants the sum of Six Hundred and Sixteen Dollars ($616.00) for rent for said period, which is also the reasonable value of the use of the land during said period.

Inasmuch as there is no dispute as to the facts, and the claim appears to the Court to be a just and lawful one, which should be paid, it is, therefore, the judgment and order of this Court that an award be made to claimants in the amount of Six Hundred and Sixteen Dollars ($616.00).


text:
    (No. 4575
    Curtis Gee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1954.

    Harry S. Greenstein, Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

This case comes before us on a motion by respondent to dismiss the complaint, which charges that claimant, Curtis Gee, was falsely imprisoned by respondent, and damaged thereby in the amount of Thirty-five Thousand Dollars ($35,000.00). Respondent contends that claimant has failed to state a cause of action in his complaint.

It is claimant’s contention that the following facts pleaded in the complaint are sufficient to properly state a cause of action for false imprisonment: (1) On May 31, 1939, claimant was arrested, and held by the Chicago police without a warrant, and without a preliininary examination until June 8 of that year; (2) While in their custody he was assaulted, and forced to sign a confession to the effect that he murdered his own son; (3) On June 8, 1939, he was indicted for this crime by the Cook County Grand Jury, and was tried before the court on June 15, 1939 without a jury, as a result of which he was convicted, and sentenced to the Illinois State Penitentiary at Joliet for a term of 199 years; (4) During said trial the confession was admitted in evidence over objection of defendant on the ground that it was involuntary; (5) On July 16, 1939, claimant was taken to the penitentiary at Joliet, and delivered into the custody of the warden, in accordance with the judgment, which operated as a commitment order; (6) On May 25, 1951, the Criminal Court of Cook County, on petition of claimant, entered an order vacating the arraignment, judgment, and sentence theretofore entered, and setting the case for retrial on June 14, 1951; (7) Thereafter the case was called for trial on October 15, 1951, at which time said case was stricken from the setting with leave to reinstate, and, since that time, no further action has been taken by the State’s Attorney to reinstate the case; (8) Claimant was released from custody on October 16, 1951, and has been at liberty since that date.

The complaint then charges that claimant, during the twelve year period of imprisonment, suffered loss of wages in the amount of Seventeen Thousand Two Hundred and Seventy-Seven Dollars and Seventy-Three Cents ($17,277.73), and was injured in his reputation in the amount of Fifteen Thousand Dollars ($15,000.00).

Claimant in his brief and argument, filed in opposition to the motion of respondent to dismiss, states that he is not basing his complaint upon the actions of the Chicago City Police, or the State’s Attorney of Cook County. He acknowledges that respondent cannot be bound by their acts, since they are not agents of respondent. He contends, however, that the State of Illinois must respond in damages for the actions of the warden of its penitentiary at Joliet, and other penal officials, for falsely imprisoning claimant in the Illinois State Penitentiary at Joliet. Claimant reasons that the complaint states a cause of action on the theory that the warden committed claimant by virtue of an invalid judgment, and on void process, and that, by reason of such, the detention was wrongful.

Upon consideration of the law, as we understand it to be, the facts set. forth in the complaint do not state a cause of action against the State of Illinois for false imprisonment.

Volume 22 of American Jurisprudence at page 357 sets forth the fundamental rule of law governing the remedy of false imprisonment.

“Mere loss of freedom cannot constitute false imprisonment even though it is unjust; the imprisonment must be unlawful. No system of jurisprudence has yet been invented that is infallible. Mistake and injustice to the individual will occur under any judicial system, in the application of either civil or criminal jurisprudence. One may be acquitted upon the merits of the case, or discharged upon some question of law, but that fact does not in and of itself make the restraint placed upon his liberty false imprisonment.”

Illinois follows this general rule requiring the element of “unlawful imprisonment” before the detention of an individual gives rise to an action for false imprisonment.

In the case of Shelton vs. Barry, 328 Ill. App. 497, the court said at page 506:

“ . . . False imprisonment consists in the unlawful restraint against his will of an individual’s personal liberty or freedom of locomotion. A false arrest is one means of committing a false imprisonment. In false imprisonment malice is usually material only on the issue of damages. If the imprisonment is under legal authority, it may be malicious, but it cannot be false.”

In the case of Liogas vs. Lowenguth, 215 Ill. App. 216, at page 218, the court, in defining false imprisonment, said:

"... ‘False imprisonment is a trespass committed by an unlawful arrest and imprisonment. If the imprisonment is under legal process, but the action was begun and carried on maliciously and without probable cause, it is a malicious prosecution and not false imprisonment.’ (Mexican Cent. Ry. Co. vs. Gehr, 66 Ill. App. 173. See also Cokling vs. Whitmore, 132 Ill. App. 574; Morrell vs. Martin, 17 Ill. App. 336.)”

To this same effect, see Green vs. Ross, 257 Ill. App. 344, at page 348, wherein the court stated:

“. . . Under the evidence showing that the appeUee was imprisoned under legal process and in consequence of judicial determination, the court should have directed a verdict of not guilty on false imprisonment charge.”

Applying these principles to this case, we have determined that the imprisonment of claimant by the warden of the State penitentiary was not unlawful within the connotation of that term. The fact that claimant had been arrested, and held without a warrant prior to the trial of his case, did not in and of itself affect the validity of the judgment of conviction against him, or the jurisdiction of the court to hear the case. The People vs. Brown, 368 Ill. 177.

It is true that, from the pleadings, it appears that the court, in entering the judgment of conviction against claimant, was in error, but such error had no effect upon the validity of the judgment, as long as the judgment of conviction stood. It was not a void judgment, as contended by claimant. It was a judgment valid on its face at the time the warden accepted claimant as a prisoner.

The judgment of conviction was the authority for the detention of claimant in the penitentiary, and the only judicial process to which the prison authorities of the State were required to look prior to accepting the custody of claimant. The People vs. Anderson, 407 Ill. 503; The People vs. Kennay, 391 Ill. 572; The People vs. Daulley, 387 Ill. 403.

As stated by Judge Lindley in the case of Uryga vs. Ragen, Et Al, U.S. Court of Appeals, 7th Circuit, 181 F. (2d) 660, at page 664, wardens under Illinois law are:

"... merely administrative employees acting in pursuance of writs and orders valid on their face.”

To require the warden or other prison officials to look beyond a judgment of conviction valid on its face committing a person to their custody would be completely outside the scope of their authority, and would, in effect, place them in a position of either underwriting the correctness and legality of every judgment, verdict, and ruling by the court involved in the trial of each prisoner submitted to them, and accepting such prisoners at their financial risk, or refusing to accept such prisoners, and thereby flouting the mandates of our courts. This situation could not be tolerated within any system of orderly administration of the laws.

For the above reasons, it is the opinion of this Court that the complaint fails to state a cause of action, and that respondent’s motion to dismiss should be allowed.

It is, therefore, the order of this Court that this cause be, and is hereby dismissed.


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

      Opinion filed March 3, 1954.

    John W. Preihs, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant was injured on February 2, 1936 in an accident arising out of and in the course of her employment as a Supervisor at the Illinois Soldiers’ and Sailors’ Children’s School at Normal, Illinois. The injury was serious, causing temporary blindness and general paralysis. The facts are fully detailed in the case of Penwell vs. State, 11 C.C.R. 365, in which an award was made to the claimant of $5,500.00 for total permanent disability, $8,215.95 for necessary medical, surgical, and hospital services, expended or incurred to and including October 22, 1940, and an annual life pension of $660.00.

On February 10, 1942, a further award was made to claimant for medical and hospital expenses, incurred from October 22,1940 to January 1,1942, in the amount of $1,129.82.

On March 10, 1943, a further award was made to claimant for medical and hospital expenses from January 1, 1942 to December 31, 1942 in the amount of $1,164.15.

On March 15, 1944, a further award was made to claimant for medical and hospital expenses from January 1, 1943 to and including September 30, 1943 in the amount of $853.07.

On April 17, 1945, a further award was made to claimant for medical and nursing expenses, incurred from October 1, 1943 to and including February 28, 1945, in the amount of $1,955.29.

On September 12, 1946, a further award was made to claimant for medical and nursing expenses, incurred from February 28, 1945 to and including April 1, 1946, in the amount of $1,646.12.

On June 5, 1947, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1946 to and including April 1, 1947, in the amount of $2,108.30.

On September 22, 1948, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1947 to and including April 1, 1948, in the amount of $2,207.80.

On April 19, 1949, a further award was made to claimant for medical and nursing expenses, incurred from April 1, 1948 to and including February 1, 1949.

On May 9, 1950, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1948 to and including February 1, 1950, in the amount of $2,316.09.

On April 10, 1951, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1950 to and including February 1, 1951, in the amount of $2,403.09.

On May 15, 1952, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1951 to and including February 1, 1952, in the amount of $2,889.70.

On April 24, 1953, a further award was made to claimant for medical and nursing expenses, incurred from February 1, 1952 to and including February 1, 1953, in the amount of $3,441.54.

Claimant has filed her verified petition for reimbursement for necessary nursing expenses, drugs, supplies, and medical care in the amount of $3,786.48, to and including February 1, 1954, all of which is supported by receipts showing payment in full.

The record consists of petition of claimant, original receipts for monies expended for medical, hospital and nursing care; waivers of claimant and respondent to file statement, brief and argument, which were allowed in this case.

The petition discloses that, since the date of the last award, claimant’s condition has not improved, and that the possibility of a recovery is in serious doubt.

The petition discloses that she has paid the sum of $1,508.25 for nursing care, and the further sum of $638.75 for board furnished her nurses. It also shows that claimant has paid out the sum of $281.94 for drugs and supplies. The petition further discloses that she has paid out the sum of $677.00 for services of a physician, and the further sum of $658.77 for hospital care; as well as the sum of $21.77 for miscellaneous expenses, making in all a total for expenses in the amount of $3,786.48.

An award is, therefore, made to claimant for medical, hospital and nursing care from February 1, 1953 to and including February 1, 1954, in the sum of $3,786.48.

The Court reserves for future determination claimant’s needs for additional medical care.


author: Fearer, J. Fearer, J.

text:
    (No. 4522
    Homer J. Tipps and Anna B. Tipps, Claimants, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1953.

      Petition of Claimants for rehearing denied April 23, 1954.

    Dale Templemam, Attorney for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

At the time Homer J. Tipps and Anna B. Tipps, his wife, filed their complaint herein, they owned in joint tenancy six acres of land east of Springfield, Illinois. The land was located near Route No. 36 across from the Oak Crest Country Club, and was improved with eight tile cabins and a four room house. At the time of the hearing all of the property had been sold, but the claim in question had not been assigned. No claim is now being made for damages to the house and three acres of the land. Claim for damages is only being made for the eight cabins and two acres of land, and an additional acre of ground, by reason of water flowing across this land.

In 1952 the State of Illinois relocated a part of State Route No. 36, between the Oak Crest Country Club and the corner of Camp Butler Cemetery, eliminating a right angle turn from this highway. Its construction was completed in August of 1952.

The property, upon which the tourist cabins were situated before the relocation of Route No. 36, did not adjoin said highway. However, when the road was relocated, the cabins were not visible from the new highway. Access could be obtained to said cabins from the old highway, which was not removed.

Claimants in their complaint seek the following damages, as set forth in paragraph 6:

a. 3 acres rendered useless, due to water running across and standing upon the same, Fifteen Hundred Dollars.

b. Building and maintenance of a road by claimants across their acreage for business purposes, Two Thousand Dollars; or the damage to claimants’ business due to a lack of such road, at such times as the same was washed out, Four Thousand Dollars.

c. Expenses of engineering, surveying and planning such roads, Five Hundred Dollars.

If claimants have any right of recovery, it must be by virtue of the constitutional provision, namely, Article II, Section 13, to the effect that “private property shall not be taken or damaged for public use without just compensation”.

A considerable amount of testimony has been introduced relative to drainage of water prior to the relocation of the new highway, and the drainage after the relocation. However, from the exhibits, which are plats of the area, and area photographs, it appears that the area contained in the water shed was increased by approximately eight acres after the relocation of Highway No. 36, but that there was no diversion of the flow of surface water. However, on the theory that this case was tried, and the law involved, we do not believe that this would be too material, as the claimants first contend under paragraph 6, sub-paragraph a, that three acres of land were rendered useless, due to water running across and standing upon the same. In this regard, claimants introduced testimony that without the private roadway, claimants did not build, their income from the cabins fell from $1,244.00 for the year before the construction to no income whatsoever after the relocation of the highway. There was no testimony introduced that the cabins were ever flooded, or were inaccessible, or rendered useless, and there were only two or three occasions testified to when water was seen flowing across claimants7 land. It is hard for us to understand how this could cause such a decrease in business, or prohibit the claimants from renting the cabins. It seens that, if there was such a decrease of income, it was due to the fact that the highway was relocated, and claimants did not see fit to construct a driveway from their land, on which the cabins were situated, to the relocated highway, which they were given permission to do by the State of Illinois, thereby making the property accessible for their customers.

The relocation of State Route No. 36 made the cabins inaccessible from the new highway, and not visible from the road, which seems to be the real reason why there was a decrease in business. It is the law of this State that abutting property owners do not have a vested right in the volume of traffic passing their property. This was discussed in the case of Grothe vs. State of Illinois, 10 C.C.R. 50; Calumet Federal Savings & Loan Assn. vs. City of Chicago, 306 Ill. App. 524. In the Grothe case, this Court held that the State was not liable for loss of business caused by closing a State route for a period of several months.

Our courts have also held that if an obstruction, or improvement, does not practically affect the enjoyment or use of property not taken, but merely causes inconvenience or loss of business to the occupant of the property, an action for damages will not lie. City of Chicago vs. Union Bldg. Assn., 102 Ill. 379; City of Winchester vs. Ring, 312 Ill. 544; and Malleable Iron Co. vs. Park Comrs., 263 Ill. 446.

In considering sub-paragraph b of paragraph 6, claimants are seeking damages for the building and maintenance of a road across their land, and also for damages to claimants' business, due to a lack of such road. There is no evidence that claimants ever constructed a road from their property to the new highway. This paragraph is based purely upon speculative, and not actual damages. Even if they had constructed a road, they would not be entitled to recover the cost of said road from the State.

Sub-paragraph c of paragraph 6 covers expenses of engineering, surveying and planning. There is no evidence of any actual expenditure for engineering, surveying and planning. Even if claimants had expended money for engineering, it would not be a proper item of damages recoverable from the State of Illinois.

The proper measure of damages, if any, is the difference between the fair cash market value of the property immediately before and after the improvement.

Nauyoks, Et Al vs. State, 11 C.C.R. 542.

Oetting vs. State, 11 C.C.R. 527.

Walkowiak, Et Al vs. State, 12 C.C.R. 335.

Spur Dist. Co. vs. State, 13 C.C.R. 94.

Tenboer, Et Al vs. State, No. 4300, opinion, filed on November 26, 1952.

There was no testimony offered by the claimants to show the difference between the fair cash market value of the property on which the cabins were located before and after the relocation of Route No. 36. As to the additional acre for which claimants seek damages, the claimant, Homer J. Tipps, testified that he received $1,000.00 for the acre of land, which was the value placed upon this land and other land in the vicinity-prior to the relocation of Route No. 36.

Inasmuch as the burden of proof is upon the claimants to prove damages by a preponderance or greater weight of the evidence as a result of the relocation of Highway No. 36, we find that claimants have failed to prove their claim, and an award for damages must, therefore, be denied.

Supplemental Opinion

Fearer, J.

On the 18th day of December, 1953, this Court filed an opinion denying an award to claimants. On January 18, 1954, a petition for rehearing was filed.

In the Court’s opinion, the pertinent portions of the complaint were referred to, and particular reference was made to paragraph 6, wherein the damages claimed were set forth in sub-paragraphs a, b, and c.

Claimants did not offer any competent evidence to substantiate the damages set forth. Furthermore, pertinent proof was not made as to the fair cash market value of the real estate affected prior to the relocation, and the fair cash market value of the real estate subsequent to the relocation of said highway by the respondent.

In our opinion, we set forth the points and authorities relied upon in denying claimants’ claim, and stated that we did not believe it was necessary to go into the question of the diversion of the flow of surface water, but were of the opinion that the construction did not cause a diversion of the flow of surface water, as proved by competent exhibits introduced by respondent, and testimony offered in support thereof.

If the claimants did suffer a loss in business, this could be attributable to the relocation of the highway, which, of course, would not entitle claimants to damages, as set forth in our opinion with points and authorities cited therein.

The petition of claimants for rehearing is, therefore, denied.