text:
    (No. 4768
    American States Insurance Company and Union Automobile Indemnity Association, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.
    Burrell and Holtan, Attorneys for Claimants.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants bring this action to recover on their respective subrogation claims for damages arising out of an automobile collision.

On August 29, 1955, one Mike DeSimone, a sixteen year old inmate of the Savanna Encampment of the St. Charles Boys Reformatory, and another inmate, Ronald Chiquet, also sixteen years of age, escaped, took unlawful possession of a Pontiac automobile belonging to Harold Schroeder at Savanna, Illinois, and, while being pursued by the police, collided with a parked Oldsmobile automobile owned by Dr. L. B. Hussey in Savanna, causing damages to both vehicles, which were insured for collision loss.

Claimant, American States Insurance Company, was the insurer of the Schroeder automobile, which was damaged in the amount of $668.50, and claimant, Union Automobile Indemnity Association, was the insurer of the Hussey automobile, which was damaged in the amount of $1,915.00.

Claimants contend that the State of Illinois was negligent in failing to control the activities of its wards, and should respond in damages.

Respondent does not dispute the facts set forth above, the amount of damages sustained, nor that claimants are the proper parties in interest. Respondent contends, however, that the State of Illinois was guilty of no negligence proximately causing the damages, and that, therefore, no recovery should be allowed.

The Illinois Youth Commission, in accordance with the provisions of Chap. 23, Par. 372a, Ill. Rev. Stats. (1955 State Bar Association Edition), conducted an investigation of the occurrence. The report of the investigation was offered by claimants as their exhibit No. 1. The Commission in its report found that the damages claimed had been caused by the two escaped inmates, and recommended as follows: “It is our opinion that claimants in this case are entitled to compensation for the damages to their property as a result of the actions of Michael DeSimone and Ronald Chiquet, wards of the Illinois Youth Commission, who were assigned to the Mississippi Palisades State Boys’ Camp at Savanna, Illinois.”

In studying the report of the Commission, we note that no facts bearing on the disputed question of negligence appear, and, consequently, the recommendation must first be considered in the light of the evidence brought out at the hearing before being either accepted or rejected by this Court.

As we stated in the case of the Dixon Fruit Company, Et Al vs. State of Illinois, No. 4662, with respect to the effect of a commission’s or department’s recommendation for or against the allowance of such a claim, or the lack of such a recommendation, "The statute provides that the defendant shall make an investigation, and ‘may recommend to the Court of Claims that an award he made to the injured party, and Fne Court of Claims shall have the power to hear and determine such claim’. If the Legislature intended the department (or commission) to be the final arbiter, there would be no reason to refer the matter to the Court of Claims. We think rather the Legislature intended that the department could recommend favorable consideration, if it saw fit, and the Court of Claims would be entitled to either accept such recommendation, or at least take it into consideration. We do not believe, however, that, because of the lack of a favorable recommendation, the Court of Claims could not hear and determine the claim itself. ’

Conversely, the fact that a favorable recommendation is made is likewise not binding upon this Court, but may be considered in the light of the evidence.

As to the applicable test by which this claim is to be judged, we stated in the above case: “The statute does not spell out the test to be applied, but it is significant to note that nowhere in the statute is there any wording, which specifically directs the Court of Claims to apply the test of absolute liability. Such direction being absent, we will not presume that the Legislature so intended. It is more reasonable to presume that the Legislature intended the Court to utilize some discretion, and we, therefore, until otherwise directed by the Legislature, will allow claims under the statute only in the event that we find the State to have been at fault.”

Each of these escape cases rests upon their own peculiar set of facts and circumstances.

In the Dixon Fruit Company case we allowed a recovery for the burning of a truck by an escaped inmate of the Dixon State School, who was a known mental defective with an exhibited tendency toward incendiarism, and who was allowed to wander at will without supervision in an institution wherein there were no restraining walls or other means of controlling his movements. We felt that there was a sufficient showing of negligence in that the State of Illinois should have foreseen the consequences, inasmuch as the institution’s location was within the city of Dixon where property of many persons would be jeopardized by the activities of such a patient. We felt that the State of Illinois exposed the public to an unreasonable risk.

We have recently allowed a recovery in the case of Martha Callbeck vs. State of Illinois, No. 4612, for personal injuries sustained by a female employee living on the grounds of the Chicago State Hospital, an institution operated by the State for the mentally ill, when assaulted in her quarters on the grounds in the early morning hours by a dangerous homicidal patient, who had been allowed to go at large upon the grounds in the darkness without surveillance.

In a case similar to that last cited, the Court in Mary Malloy vs. State of Illinois, 18 C.C.R. 137, allowed a recovery for a female person assaulted by a criminally insane prisoner, who had escaped, because of insufficient surveillance from the Illinois Security Hospital.

In each of the above cases, the wards of the State were clearly dangerous mental defectives, and not of the type that should have been permitted to roam unattended, but rather should have been subjected to close surveillance at all times. The precise consequences of the State’s failure to control their activities should have been foreseen by those in whose custody they were committed.

Here, however, the evidence does not disclose such a situation.

The facts respecting the confinement of DeSimone reflect that he had been committed to the custody of the Illinois Youth Commission in the latter part of 1953 at the age of fourteen. He was the product of a disoriented home life, his parents were divorced, he had run away from home, had been placed in an orphanage, and had been brought before the County Court of Cook County after having run away from the orphanage, lived as a vagrant, and stolen a bicycle. His assignment to the Illinois Youth Commission was brought about because of the placement problem presented.

Joseph Patrick Munday, Superintendent of the Division of Forestry Camps for the Illinois Youth Commission, testified that he first met DeSimone when he was in the custody of the Family Court as a dependent child in 1951, when DeSimone was twelve years of age. He was under the care of the Family Court for approximately eight to nine years primarily because of his home situation. He again met DeSimone as parole officer for the Illinois Industrial School for Boys at Sheridan, Illinois.

DeSimone had originally been assigned by the Youth Commission to the Illinois State Training School for Boys at St. Charles. He had been transferred to the Industrial School for closer and more controlled confinement, and to help prepare him for parole eligibility.

After consideration of his case by Mr. Munday and the Superintendent of that institution, it was determined that DeSimone had progressed to a point where he was ready for an open type institution. He was transferred to the Savanna Encampment by order of the Youth Commission upon the recommendation of Mr. Munday and the Superintendent, which recommendation was based upon Ms record, including approximately fifteen months at the Sheridan Industrial School. This transfer took place in May of 1955, and, according to the testimony of Mr. Mun-day, Ms adjustment was “fair to average”.

He was disturbed by the approaching electrocution of his older brother for murder, and Mr. Munday had, with his knowledge, arranged for him to visit his brother in the Cook County jail. This visit was scheduled for the week following his escape.

Mr. Munday had seen and talked with DeSimone on numerous occasions after his transfer, and as late as approximately 10 A. M. on the morning of the escape. He had arranged a duty assignment for DeSimone in the camp area, so that the camp counsellor would be able to work closely with him and help him, because of his known disturbance over the approaching electrocution. Mr. Mun-day testified that “the further est thought from my mind was his running away”.

Claimant contends that a notation taken from DeSimone’s record placed the authorities on notice that DeSimone was preparing to escape. In an unsigned memorandum, dated July 28, 1955, claimant’s exhibit No. 2, it was noted along with a general review of his progress at the encampment, “It has been reported that Mike was going to run away, but this never came to actuality ’ ’.

When this notation is taken into consideration with the fact that he had been in the encampment for more than two months prior and one month subsequent to the date of the memorandum without making any attempt to escape, and when such notation was apparently no more than reported rumor at the time it was made, we cannot find that any such notice should be charged to the State from this notation. To hold otherwise on this question would have the end result of requiring the State to transfer such an inmate back to the Industrial School immediately upon the receipt of any like rumor, or keep the inmate at the State’s peril from that time on. Obviously, such a policy would be neither wise nor just.

The person apparently closest to DeSimone, namely, Mr. Mnnday, who had shown an interest in and befriended him, who had made arrangements for him to visit his brother, and who had often visited with him, had no idea he was planning to escape.

Could we say that in the light of this situation that Mr. Mnnday should have known of a plan to escape from the mere notation in the record made one month prior to his last visit with DeSimone? To the contrary, on the date of the escape the reasonable assumption was that he-would remain in the encampment, inasmuch as that, course of action represented his only opportunity to visit, his brother, whom he apparently highly regarded.

It is not the occurrence of the escape, but rather-what condition existed prior to the escape, that is to be considered. It is foresight, rather than hindsight, that is pertinent.

Claimants also call our attention to claimants ’ exhibit No. 3, a social history of DeSimone, bearing* date of October 14, 1953, made when he was fourteen years of' age, and referring to his unfortunate home life, his running away from home, school and an orphanage as significant notice of his planned escape.

In the same light, claimants also call our attention to exhibit No. 4, dated March 22, 1954, which was a report, of a staff meeting* at the Reception Center at St. Charles, recommending his transfer to the Industrial School for-Boys at Sheridan. This report refers to the social history, and adds thereto information that he had run away from the Illinois State Training School for Boys on three occasions, the last being March 9, 1954. These represent his record prior to his transfer to the Industrial School where he served at least fifteen months before being transferred to the Savanna Encampment.

The only evidence before us with respect to his progress after being transferred to the Industrial School was that in the judgment of the authorities he had been rehabilitated to the extent that they felt it proper to transfer him to the open type confinement afforded by the facilities of the Savanna Encampment. Nothing appears from the evidence reflecting any reason for not making the transfer.

The Savanna Encampment, as described by Victor Robert Griffin, Superintendent of the Reception Center of the Illinois Youth Commission, was “the nearest step to parole \ He further testified that the boys assigned to that institution were allowed to walk around certain areas; that there were no fences or walls; and that the degree of supervision was not designed to watch every boy every moment, but, rather, it was designed to promote an increased degree of permanence in the self-improvement of the boy.

It goes without saying that rehabilitation is the fundamental aim of the Youth Commission program. Decisions as to the placement and progress of these youths must be made by utilizing the best judgment of professional persons trained in administering this program. It is not an exact science, and cannot be administered by a slide rule. It is certain that instances will occur wherein the results of attempted rehabilitation are disappointing. Such instances by no means indicate faulty administration of the program. The duty of the State personnel in exercising the discretion required is not that of an insurer that each boy assigned to the encampment will perform satisfactorily, any more than that the parole board should be held to guarantee that a parolee will commit no further crimes. The only duty, which is required, is one of reasonable exercise of discretion. We find that the authorities in assigning DeSimone to the encampment exercised their discretion in a reasonable manner.

Claimants in their reply brief acknowledge that “claimants do not assert that respondent was negligent in putting the boys in an open camp at Savanna”. There- . fore, inasmuch as the decision was properly made to transfer DeSimone to the Savanna Encampment, the type of custody to which he was to be subjected at such institution need only have been exerted in accordance with the standards applicable to others assigned to that institution.

If we were to require such an institution as the-Savanna Encampment to provide maximum custody over certain boys and minimum custody over the others, it would defeat the purpose of this type of institution, and make the system unworkable.

As to Ronald Chiquet, we have considered the record, and reached the same conclusion as we did to DeSimone. Claimants make no contention that respondent, had notice of his planned escape. They refer only to the-fact that he had a history of burglary and larceny, and was “riddled with anxiety, guilt and hostility”.

Mr. Griffin testified that Chiquet, after being as-, signed to the Youth Commission in November or December, 1953, was placed in the State Training School for Boys at St. Charles, and that he “responded very well in the school program . . . and it was recommended that he be transferred to a camp”. The transfer was made in May, 1955. We find that he, too, was properly-assigned to the encampment.

As to the escape, which occurred, the testimony of Jewel Sulser, work supervisor and one of the guards, is summarized as follows:

DeSimone and Chiquet were in bed at 9:30 P. M., at which time the lights were out. A guard, Bill Watkins, was on duty in the barrack in which the boys were quartered. This guard remained on duty all night in an adjoining room, and each thirty minutes conducted a bed check of the inmates.

Mr. Sulser was quartered in a barrack approximately forty feet from that in which DeSimone and Chiquet slept. He, Sulser, was in bed when he heard a ping pong ball on the floor in the recreation room in his barrack. He got up, looked out, and saw the two boys, who had left the barrack between bed checks, walking toward the bathroom. He called Mr. Watkins, got up, partially dressed, and, along with Watkins, went to the bathroom some three hundred feet from the barracks in an attempt to find the boys. The rules of the encampment permitted them to go to the bathroom unattended by a guard after obtaining permission.

Upon failing to discover the boys, they returned to the barracks to put on more clothes, saw the boys go around the building one hundred and twenty feet away, and on into the woods. After awakening a third man to watch the barracks, Sulser and Watkins drove an automobile after the boys, and came upon the scene of the wreck in Savanna.

The action on the part of Sulser and Watkins does not impress us as unreasonable or negligent in the light of the type of institution involved. They were not charged with caring for insane maniacs and murderers, but rather boys, who had progressed to a rehabilitated status and were practically on parole.

There is no evidence pointing toward any violation of rules by either Snlser or Watkins. The activities of DeSimone and Chiquet were in no sense of the word ignored, but on the contrary received prompt attention. Just what claimants contend should have been done by Snlser and Watkins, which was not done, does not appear. Certainly, claimants would not contend that the boys should have been shot, and it is apparent that ordering them to stop would have had no effect.

The system of guarding the boys assigned to the camp has not been questioned by claimants except to state that DeSimone should have been more thoroughly guarded. We have previously discussed this question, and held that, since he was properly assigned to the camp, the same degree of care and custody applicable to the others so assigned was all that could reasonably be required as to him for as long as he was properly assigned to the encampment.

In view of the above, we find that claimants have failed to establish a compensable case. In order to allow this claim, we would be required to hold that the State is an insurer of its wards’ activities. This is not the law, and the claims must, therefore, be denied.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4824
    Bennie Truitt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

      Supplemental opinion filed March 26, 1959.

    Spencer T. Hardy, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On May 28, 1958, Bennie Truitt filed Ms complaint against the State of Illinois, in which he seeks damages in the amount of $150,000.00 for alleged wrongful incarceration.

On June 26, 1958, respondent filed a motion to dismiss for the following reasons:

1. The claim alleged is barred by the prior decision of this Court filed on October 22, 1954 in case No. 4637.

2. The claim alleged is not within the jurisdiction of this Court for the reason that it is not alleged that the claimant was innocent of the crime for which he was imprisoned, as required by Par. 439.8, Chap. 37, 1957 Ill. Rev. Stats.

3. The claim was not filed within the time limited by law.

On July 7,1958, claimant filed an amended complaint, and charged the Parole and Pardon Board of the State with certain errors and omissions. This amended complaint is so vague and uncertain that the Court, on its own motion, must dismiss it as being legally insufficient.

It is of interest to note that tMs matter has heretofore been before the Court in case No. 4637. In this prior case, claimant was represented by counsel, and this Court dismissed the complaint on the grounds that it had no authority to make an award in any case involving wrongful incarceration.

In 1957 the Legislature amended the Court of Claims Act in the following particulars:

Jurisdiction
“(A) --------------------------------------------------------------------------------------------------------
(B) -------------------------------------------------------------------------------------
(C) All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $15,000; for imprisonment of 14 years or less but over 5 years, not more than $30,000; for imprisonment of over 14 years, not more than $35,000; and provided further, the Court shall fix attorney’s fees not to exceed 25% of the award granted.”
Limitations
Every claim cognizable by the Court arising under subsection C of Section 8 of this Act shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after the person asserting such claim is discharged from prison, or is granted a pardon by the Governor, whichever occurs later.”

Taking the case in its most favorable light for claimant, it appears of record that claimant was committed to the Illinois State Penitentiary on July 31,1914, and was thereafter released on March 2, 1945. For claimant to prevail, his complaint would have had to be on file by March 2, 1947. Under existing law, there is no way that claimant can come -within the provisions of the amendment.

The motion of respondent to dismiss is, therefore, allowed.

Supplemental Opinion

On May 28,1958, Bennie Truitt, pro se, filed his complaint against the State of Illinois seeking damages in the amount of $150,000.00 for alleged wrongful incarceration. On June 26, 1958, respondent filed a motion to dismiss the case for the following reasons:

1. The claim alleged is barred by the prior decision of this Court filed on October 22, 1954 in case No. 4637.

2. The claim alleged is not within the jurisdiction of this Court for the reason that it is not alleged that claimant was innocent of the crime for which he was imprisoned, as required by Par. 439.8, Chap. 37, 1957 111. Rev. Stats.

3. The claim was not filed within the time limited by law.

On July 7, 1958, claimant filed an amended complaint, and charged the Parole and Pardon Board of the State of Illinois with certain errors and omissions. This amended complaint was so vague and uncertain that the Court, on its own motion, did dismiss it as being legally insufficient.

On December 2, 1958, claimant secured counsel, who filed an amended petition and brief in support thereof.

On December 19,1958, respondent filed a motion to strike the amended petition on the ground that it was barred by the statute of limitations. On January 7, 1959, claimant filed an answer to the motion to strike, and the matter is now before this Court on the motion and answer.

The Legislature, in 1957, amended the Court of Claims Act in the following particulars:

i

Jurisdiction — Chap. 37, Sec. 439.8, 1957 Ill. Rev. Stats.
(A) -------------------------------------------------------------------------------------------
(B) ---------------------------------------------------------------------
(C) All claims against the State for time unjustly served in prisons of this State where the persons imprisoned prove their innocence of the crime for which they were imprisoned; provided, the Court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $15,000; for imprisonment of 14 years or less but over 5 years, not more than $30,000; for imprisonment of over 14 years, not more than $35,000; and provided, further, the Court shall fix attorney's fees not to exceed 25% of the award granted.”
Limitations — Sec. 439.22
Every claim cognizable by the Court arising under subsection C of Section 8 of this Act shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within 2 years after the person asserting such claim is discharged from prison, or is granted a pardon by the Governor, whichever occurs later.”

Counsel in his brief alleges that his client’s claim was dismissed in 1954 (Case No. 4637) on the grounds that the Court was without authority to consider any claim involving wrongful incarceration, but that claimant took advantage of every legal step in his power to keep his claim alive.

He now alleges that Secs. 439.8 and 439.24 are in direct conflict, that to give a literal interpretation to Sec. 439.8 would be to take away rights that have accrued without providing a remedy, and that the Legislature by enacting Sec. 439.24 attempted to remedy the situation.

This Court does not believe that the proposition is a correct statement of the law. No person has a vested or a common law right for compensation for wrongful incarceration.

Prior to 1957 an aggrieved party was required to secure a direct appropriation from the Legislature for compensation, and every case filed in the Court of Claims was dismissed on motion for the reason that the Court had no authority to make an award.

In 1957, the Legislature, recognizing the inequities of these cases, provided a remedy, as well as a statute of limitations. It is to be noted that the statute makes no provision by a savings clause for persons in the position of claimant. Having created a remedy for the first time, the Legislature has restricted its operation to a two year period from the time the right accrued.

Without considering the merits of the case, this Court finds that there is no way that claimant can secure relief in the Court of Claims, and that his only remedy is in the Legislature.

The motion to strike the amended complaint is, therefore, allowed.


author: Fearer, J.

text:
    (No. 4826
    Henry W. Larson, d/b/a General Insulation Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.

    Martin, Craig, Chester and Sonnenschein, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

Henry W. Larson, d/b/a General Insulation Company, filed bis complaint in two counts in this Court on June 12, 1958, and asked for an award of $12,067.35.

In Count I it is alleged that on or about December 20, 1949, respondent, by and through the Department of Public Works and Buildings, and the Eiswirth Construction and Equipment Company, An Illinois Corporation, as contractor, entered into an agreement, under the terms of which the Eiswirth Construction and Equipment Company, the contractor, agreed to furnish labor and materials to complete work called for in a certain proposal No. 3, as shown on drawings described in the specifications, and entitled “Heating and Plumbing Work, Rehabilitation and Modernization of Main Building — North Unit, Anna State Hospital, Anna, Illinois”. This was referred to as contract No. 66220 on the records of the Division of Architecture and Engineering of the Department of Public Works and Buildings.

On or about April 5, 1950, claimant accepted a written proposal, which was submitted by the Eiswirth Construction and Equipment Company, for him to furnish and install all insulation on the job, in accordance with the plans and specifications (with one exception stated in said written proposal), for the sum of $12,150.00.

Claimant alleges that he entered upon the performance of the work specified in said proposal, furnished all labor and materials called for thereby in a good and workmanlike manner, and that the last item of labor or materials furnished to- the job was on or about June 1, 1952.

It is further alleged that claimant made repeated demands upon the Eiswirth Construction and Equipment Company, the contractor, for payments of the amounts due from time to time as the work progressed, and for final payment upon completion of his work, but that no payments were made or received from the contractor, in accordance with the agreement that he had relative to furnishing labor and material. After allowing all just credits and setoffs there was due on and after June 1, 1952, and there is now due from the Eiswirth Construction and Equipment Company, the sum of $12,067.35.

From time to time as the various amounts became due under said subcontract, claimant notified the Division of Architecture and Engineering in writing.

It further appears from the complaint filed herein that other subcontractors of the Eiswirth Construction and Equipment Company had notified the Division of their respective claims, but, in spite of this, the Division continued to certify payments to the contractor retaining only 15% as provided for by the contract. Various payments were made to the contractor by respondent in the amounts certified up to and including July 12, 1951, and on that date the unpaid balance due under the contract amounted to $63,285.86.

Prior to January 24, 1952, the Division had received notice of claims by subcontractors of the said Eiswirth Construction and Equipment Company for payments due for labor and materials furnished to the job in the aggregate amount of $67,211.50; and, as of that date, respondent, acting by and through its Division, had full knowledge that the unpaid balance due under the contract being retained by respondent would be insufficient to pay all of such claims, if the same should be proven valid.

Claimant alleges on information and belief, and states the fact to be that the Eiswirth Construction and Equipment Company, the contractor, was on and after July 31, 1952 insolvent, and had been certified by the Secretary of State for involuntary dissolution.

A surety bond had been posted by the Continental Casualty Company under said contract. This was a performance bond executed by the contractor as principal, and the surety company as surety in favor of respondent, and by the terms thereof it was obligated to complete the job and settle all claims of record in the office of the Division. It appears that after July 31, 1952 the Division made claim against the surety company on said performance bond.

On or about August 25, 1952, the surety company notified respondent that it waived its option to complete the contract. It authorized respondent to cause the work to be completed, and to pay for such completion out of the balance remaining unpaid on said contract.

It further appears from the complaint filed herein that the surety company further notified respondent of its intentions regarding the claims of subcontractors as follows:

“As to the claims of unpaid suppliers, these are receiving our attention, and the surety will discharge its obligation to such claimants, in accordance with the laws and statutes pertaining thereto.”

In compliance with Chap. 82, Sec. 23, Ill. Rev. Stats.; and, Chap. 29, Sec. 16, claimant did on or about September 17, 1952, i.e., within 180 days after the date of the last item of work, or the furnishing of the last item of materials, file in the office of the Director of the Department of Public Works and Buildings a verified notice or statement of his claim.

On or about October 21, 1952, respondent was notified in writing of the desire of claimant to comply with the statutes of the State of Illinois. Claimant called respondent’s attention to the provisions of Chap. 29, Sec. 16, Ill. Rev. Stats., requiring all actions on the bonds of contractors with the State of Illinois to be brought within six months after the acceptance by the State of the building project or work, and requested respondent to advise claimant of such acceptance when, and if, the same should be made.

On or about October 15, 1952, the Attorney G-eneral of the State of Illinois advised the Director of the Department of Public Works and Buildings that the only amount, which could be subject to a lien in favor of the subcontractors of the Eiswirth Construction and Equipment Company, who had supplied labor or material to the job, was the unpaid balance due under the contract less the cost of completing the job, and advised the Director to do nothing with respect to the payment of the claims of such subcontractors until all of the work contemplated by the contract had been completed and paid for.

It appears from the complaint that the job was finally approved and accepted by respondent on or about August 23, 1953, and that the unpaid balance due under the contract on that date amounted to $35,203.13. The contractor, having completed the job, was paid in full.

Claimant alleges that he was without any source of knowledge or information concerning the status of the job from time to time, except such as was supplied to him by respondent acting by and through the aforesaid Division. This fact was known or ought to have been known by said Division.

The appropriation by the General Assembly for the payment of the contract was allowed to lapse on or about October 1, 1953, and no subsequent appropriation was made, so that funds would be available to pay the amount due claimant for labor and materials, which he supplied for the job.

Claimant contends that respondent, acting by and through said Division, negligently or wilfully committed one of more of the following acts:

a. Falsely represented to claimant that there was a sufficient balance then payable under the contract to pay claimant’s claim in full.

b. Falsely represented to claimant that his claim could and would be paid without the necessity of his filing any legal action or suit of any kind.

c. Falsely represented to claimant that the only result of a suit by him to perfect a lien on the public funds payable under the contract would be to complicate and delay the payment of his claim.

d. Failed or refused to disclose the fact that the job was accepted on August 23, 1953, although repeatedly requested to do so by claimant.

e. Made statements and representations, which were calculated to and did lead claimant reasonably to believe that the job had not been accepted on August 23, 1953, and that the job would not be accepted until claimant was notified.

As a direct and proximate result of the foregoing, claimant was induced to and did refrain from filing any suit either to perfect a lien on public funds under the contract, or to recover against the surety company on the Eiswirth Construction and Equipment Company’s bond until after the respective periods, during which such action could have been brought, had expired.

Count II repeats and realleges the first twenty-one paragraphs of' Count I, as though realleged as paragraphs 1 to 21 in Count II.

In this count claimant contends that, on or about September, 1952, and on or about July, 1953, claimant and respondent, acting by and through said Division, entered into an oral agreement under the terms of which claimant agreed to refrain from filing any suit or proceeding to perfect a lien upon the public funds payable under the contract; and, that respondent agreed, in consideration therefor, to inform claimant of the date of the acceptance of the job by respondent in a sufficient time to enable claimant to commence an action to recover against the surety company on the bond executed by the Eiswirth Construction and Equipment Company, the contractor.

It is further alleged that claimant has fully performed all acts and things required of him by said agreement.

Claimant is predicating this count upon a breach of contract.

The record in this case consists of the following:

Complaint

Departmental Report

Joint motion of claimant and respondent for leave to waive filing of briefs

Order of the Chief Justice granting the joint motion of claimant and respondent for leave to waive filing of briefs

Transcript of evidence

Commissioner’s Report

A Departmental Report was filed and made a part of the evidence, and was accepted by the Commissioner, who heard this case. In the Departmental Report it is set forth that the Department was notified that the claimant was to do certain portions of the work as a subcontractor; that he furnished labor and materials and properly completed the project; that throughout the progress of the same claimant repeatedly advised the Division of Architecture and Engineering, Department of Public Works and Buildings, that the contractor, the Eiswirth Construction and Equipment Company, owed certain sums of money to claimant; and, that the records of the Division indicate that it was notified both in writing and by telephone communications. Claimant was notified of the insolvency of the contractor, and further that the surety company, as surety on the performance bond, would be called upon to complete the project. The Continental Casualty Company provided notice to claimant and others of their method of processing claims. However, due to a claim of technicality, and, even after being assured by the Continental Casualty Company and the Division of Architecture and Engineering, the Continental Casualty Company rejected claimant’s claim.

The project was completed by claimant to the entire satisfaction of the State of Illinois, and was accepted by the State through the Division of Architecture and Engineering on or about August 23, 1953. It is the feeling of the Division of Architecture and Engineering that claimant has fulfilled his obligation to the State of Illinois; that the same was done in good faith; and, that claimant is entitled to payment.

At the hearing on January 28, 1959, the only witness testifying in this case was Henry W. Larson, claimant, who testified to all the material matters set forth in the complaint.

Respondent filed a Departmental Report only, and did not make any attempt to deny or resist the allowance of the claim. In fact, the Departmental Report indicates that claimant has performed his said contract satisfactorily, furnished the materials and labor set forth, and should recover for labor and materials furnished to respondent at the Anna State Hospital, Anna, Illinois.

An award is, therefore, made to claimant by this Court in the amount of $12,067.35.


text:
    (No. 4827
    Continental Oil Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.

    Sorling, Catron and Hardin, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On June 17, 1958, Continental Oil Company, A Corporation, claimant, filed a complaint in this Court for an award of $176.36 for sales of merchandise during the period from April 18, 1957 to June 26, 1957, which merchandise was delivered to the Division of Highways, Department of Public Works and Buildings, State of Illinois. Quantities and prices of such gasoline, motor lubricating oil, and other articles and services, so sold and purchased, and the respective dates of purchases are set forth in the exhibit attached to the complaint and made a part thereof by reference.

It is alleged that the claim in the amount of $176.36 was presented to the Division of Highways, Department of Public Works and Buildings, on or about December 6, 1957. Said claim was supported by schedules Nos. 1088 in the amount of $142.67, and 1089 in the amount of $33.69, each of said schedules having the original invoices attached. A copy of said schedule No. 1088, together with the original invoices, was attached thereto, marked exhibit A and made a part of said complaint. A copy of schedule No. 1089, together with the original invoices, was attached to the complaint, and marked exhibit B; and, a copy of the recapitulation, marked exhibit C, was attached to the complaint and made a part thereof.

Claimant attached as exhibit D, which was also made a part of the complaint by reference, a letter, dated December 16, 1957, from V. L. G-lover, Engineer of Administrative Services, Division of Highways of the State of Illinois, wherein it is set forth that the Division was unable to pay the claim because of the lapse of the biennial appropriation on September 30, 1957. It is further set forth in said exhibit that the Division of Highways recognizes that the invoices attached to the complaint covered purchases made by respondent and the Division of Highways.

This is a case where the reason for non-payment was that the appropriation had lapsed before the bills were presented. There is no question but what the goods were delivered and were satisfactory. It was recognized by respondent, through the Division of Highways, that said claim should be paid.

It is, therefore, the order of this Court that an award be made to claimant, Continental Oil Company, A Corporation, in the amount of $176.36.


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    (No. 4841
    Standard Oil Company, Indiana, Inc., a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.

    Standard Oil Company, Indiana, Claimant, pro se.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

On October 3, 1958, Standard Oil Company, An Indiana Corporation, filed a complaint in this Court seeking an award of $718.70 for sales of gasoline, oils, greases, tires, tubes, services, etc., which were made during the years of 1956 and 1957, said sales being made to various departments of the State of Illinois by the Standard Oil Company and its dealers. Charges for said merchandise were assigned by various dealers to claimant for collection.

Attached to the complaint filed herein are exhibits covering the sales of the merchandise.

The Commissioner to whom this case was assigned interrogated Daniel H. Simpson, Jr., who identified the exhibits, and testified as to the delivery of the merchandise to the various departments of respondent.

It was further testified to that the bills were submitted to the various State agencies of respondent for payment, but that payment was denied for the reason that the appropriations made to the several departments and commissions had lapsed as of September 30, 1957, which was before the bills referred to were submitted to them.

The State offered in evidence as its exhibit No. 1 a Departmental Report of the Division of Highways by Earl McK. Guy, Engineer of Claims, which corroborates the testimony of Mr. Simpson. In the Departmental Report, Mr. McK. Guy recognizes the delivery of the merchandise, the reasonableness of the prices, and the sufficiency of the kinds and grades of products, which he stated were consistent with the requirements of the purchase orders given to the various State departments to whom the merchandise was delivered.

It is further set forth in the Departmental Report that the appropriations made to the several offices and commissions by the 69th General Assembly for the purchase of the merchandise lapsed as of September 30, 1957, and that claimant submitted its schedules for vouchering and payment at such a late date, that they could not be vouchered and paid for in apt time.

There is no question but what each of the respective offices, departments and commissions had a sufficient balance remaining in its appropriation for the purchase of the merchandise, and, had claimant submitted its bills at the proper time, they could have and would have been paid in the regular course of business.

This Court has had numerous occasions to pass on similar situations, and have in each instance allowed the cffi'm where the bills were reasonable and the merchandise satisfactory, where the appropriation for that biennium had lapsed before the bills were submitted, and where there was sufficient money on hand at the time the merchandise was furnished.

An award is, therefore, hereby made by this Court to claimant, Standard Oil Company, An Indiana Corporation, in the amount of $718.70.


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    (No. 4763
    Elizabeth Cole, Francis Bigler and Adelia Bigler, Peter Grant and Bertha Grant, Sam Foster and Irma Foster, Max Caskey and Shirley Caskey, Donald Cole and Pearl V. Cole, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 17, 1959.

    Stanley W. Crutcher and Elmo E. Koos, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On February 28, 1957, claimants filed a joint claim against respondent for consequential damages caused by the reconstruction of U. S. Route No. 24.

In 1951 this area was declared a freeway, and plans were developed to convert U. S. Route No. 24 into a four-lane highway. During the year of 1953 the Highway Department secured deeds of dedication from the several property owners, and the work was commenced in March of 1954 and completed in November of 1955.

The deeds in question bore the title of “Dedication of Right of Way for a Freeway”. The concluding paragraph was as follows:

“And the grantors further, as a part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quitclaim and extinguish any and all rights or easements of access and crossing, under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of the grantor.”

Two of the deeds in question, executed by the Biglers and Grants, specifically released access, light and view.

Claimants’ theory of this case is that respondent did not accurately portray the height of the new road when they secured their deeds, and, had claimants fully understood the nature of their loss, they would have required the State to condemn, so that a jury could assess proper damages for their loss of access, air, light and view. Claimants, therefore, conclude that the consequential damage was not paid for in the first instance, and that they still have a cause of action, for which this Court should provide a remedy by an award.

The complaint, in substance, alleges that the agents of respondent represented that the new road would be reconstructed substantially at the same level, but, in fact, was elevated from six to ten feet. As a result, claimants lost access, light, air and view; the drainage was inadequate, which caused stagnant pools and mosquitoes; odors from septic tanks were present; and, the State did not build a sidewalk, as promised.

It is significant to note that the complaint does not allege a false representation, knowingly made, to induce claimants to sign deeds to their substantial damage.

At the very outset, this Court is confronted by the parol evidence rule. A deed, which is unambiguous, and which has a settled meaning in law, cannot be changed or added to by parol evidence. Morton vs. Babb, 251 Ill. 488.

The Commissioner, who heard this case, might well have refused to entertain testimony from either side, which would vary or contradict the plain language of the deed. However, the testimony fails to strengthen claimants’ case. It discloses that claimants were given copies of the deeds to examine for several days before execution; that one or more of them had advice of counsel; that plans and specifications were available at the time of the discussions; and, though claimants undoubtedly could not interpret them, at least they were afforded the opportunity to obtain expert advice before they executed their deeds.

The complaint does not allege nor does the evidence support the element of false representation, which would open the door to testimony to vary or contradict the deeds. Clearly all parties knew they were giving up their rights of access, for it was so spelled out in the deeds. The consideration paid to each was substantial, ranging from $1,600.00 to $1,800.00.

Rights of air, light and view were specifically released in two of the deeds. As to the rights of the other claimants in this regard, even though not specifically released, the law in Illinois appears to be as follows:

“No easement of light and air can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed.” 29 L.R.A. 582; Baird, vs. Hanna, 328 111. 436.

The claimant grantors in the other deeds, having failed to reserve their rights in light, air and view, cannot establish them in this proceeding.

Notwithstanding the above rule of law, counsel for claimants urge that, had they had their day in court, the losses that they allege would have been compensated for as consequential damages.

A case, similar in many respects to the present claim, was before this Court in 1952, namely, Cutshall, Et Al vs. State of Illinois, 21 C.C.R. 150. Claimants were the owners of certain land, and the State of Illinois, by condemnation, secured a portion of the land to construct a subway under the Illinois Central Railroad. Under the decree of condemnation claimants were paid the sum of $2,742.00.

Thereafter, claimants filed their claim in this Court Peeking damages to land not taken, and alleged that, since the construction of the subway and storm sewer, a well on the place failed to supply adequate water, and that a newly drilled well produced contaminated water. This Court denied the claim, and stated that a decree in condemnation includes damages both to lands taken and lands not taken, and includes all damages, past, present and future.

The above rule was established in the case of C., R. I. and P. Ry. Co. vs. Smith, 111 Ill. 363. F. Burcky, the then owner of Lot 11, conveyed a 100 foot right of way to the railroad. Thereafter Lot 11 was subdivided, and Smith became the owner of the tract next to the railroad right of way. Smith alleges that the railroad increased the number of tracks, that the trains were cracking the wall of his building, and that this property was showered with soot and ashes.

On appeal, the judgment was reversed. “The rule is that the appraisement of damages in a case of condemnation embraces all past, present and future damages, which the improvements may thereafter reasonably produce.” In addition thereto, the court said at page 371:

“It follows that, had the railroad company condemned this right of way as against Burcky, who was the owner of the whole tract, no recovery could have been had for the damages here sued for. They would have been included in the assessment of damages made on the condemnation, and whether in fact included or not they would be conclusively presumed to have been included. The same result, we conceive, follows from Burcky’s voluntary conveyance of the right of way. It is to be presumed that the contingent damages to the residue of the lot, which might arise from the prudent operation of the railroad, were taken into account in fixing the price. (See Norris vs. Vermont Central R. R. Co., 28 Vt. 99, and Conwell vs. Railroad Co., 81 111. 233.)”

In the light of this rule, it would appear that a deed of dedication is all inclusive, and of the same effect as a condemnation proceeding.

In the case of Longden vs. State of Illinois, 12 C.C.R. 129, a complaint for consequential damages was dismissed on motion, and the Court said at page 131:

“Where owners dedicate property for public use in connection with public improvement, the law conclusively presumes that the consideration for the dedication is based not only on the value of the land dedicated, but also on any damages sustained to contiguous land of the owner by reason of the improvement. Lepski vs. State of Illinois, 10 C.C.R. 170; Baber vs. State of Illinois, 9 C.C.R. 115; Siekman vs. State of Illinois, 10 C.C.R. 286.”

Claimant, Elizabeth Cole, has introduced in evidence a permit, dated October 22,1947, which was issued by the Division of Highways, authorizing her to construct and maintain two 24 inch entrance culverts to her lands. She contends that this permit is still in force notwithstanding her deed, which expressly extinguishes her rights of access to the highway.

Since a valuable consideration was paid by the State for the release of the right of access as part of this transaction, it necessarily follows that this contention is untenable. It may further be said that a permit is nothing more than an allowance or a license. It establishes no rights.

Counsel has submitted cases from other jurisdictions, i.e., Dallas County vs. Barr, 231 S.W. 453; Parker vs. State Highway Commissioner, 162 So. 162, wherein the grade of the road was either elevated or lowered so that the parties were- deprived of rights of ingress or egress, and damages were allowed.

Illinois courts have likewise granted damages to parties where railroads have elevated tracks, built subways, etc., and thereby destroyed their existing rights of ingress and egress, but those cases are not similar to the case at bar.

In the instant case, claimants were paid a valuable consideration to extinguish their rights of access to the highway. The exact height of the grade may not have been too clear, but it is doubtful that the parties were unaware of the fact that the grade would be raised. This was an all inclusive transaction.

Respondent argues that the acquisition of a right of way piecemeal in fifty feet tracts is a time consuming matter, and that it is virtually impossible to explain the engineering problems in detail to all concerned. It further argues that the policy of paying for deeds of dedication would be of little value, if they were thereafter obliged to pay for consequential damages.

Since this Court does not find any fraud in the procurement of the deeds, it must follow established law by holding that the payment for the deed includes past, present and future damages.

An award is, therefore, denied.


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    (No. 4232
    Kathryn A. Downey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

    Petition of claimant for rehearing denied May 12, 1959.
    Ensel, Martin, Jones and Blanchard, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On July 9, 1956, claimant filed a supplemental complaint for reimbursement for medical expenses and transportation ; and, in addition thereto, filed a claim for loss, of salary.

It appears from the record that this Court made an award on March 9, 1951, and again on April 21, 1955, and, in each instance, reserved jurisdiction for such further orders as might be necessary. The complaint originated by reason of an injury to claimant on October 21,. 1948, while an employee of the Secretary of State.

The bill of particulars, attached to the complaint,, sets forth the following items:

1. Due Springfield Clinic Pharmacy, 1025 South Seventh Street, Springfield, Illinois, for medicines from March 5, 1954 through May 28, 1956_______________________________________________________________________$ 128.20

2. Due Springfield Rural Urban Clinic, 1025 South Seventh Street, Springfield, Illinois, for medical care, treatment, laboratory tests and x-rays from April 5, 1955 through June 16, 1956___________ 157.00

3. Additional medicines ______________________________________________________________ 39.80'

4. Transportation charges to and from Springfield Rural Urban Clinic in 1955_____________________________________________________________________________________ 24.40

5. Loss of salary due from the State of Illinois withheld because of inability to work because of injuries--------------------------------$1,458.56

On December 9, 1957, the complaint was amended, and the bill of particulars was changed to read as follows:

1. Due Springfield Clinic Pharmacy, 1025 South Seventh Street, Springfield, Illinois, for medicines from last hearing herein to date .................. .......................... ............................ $ 294.90

2. Due Springfield Rural Urban Clinic, 1025 South Seventh Street, Springfield, Illinois, for medical care, treatment, laboratory tests and x-rays from date of last hearing to date_______________________ 200.00

3. Additional medicines ......... 32.50

4. Transportation charges to and from Springfield Rural Urban Clinic _______________________________________________________________________ 24.40

5. Loss of salary because of inability to work because of injuries _______ $3,566.89

The transcript of evidence and exhibits support the claim as to the first four items of the bill of particulars with a reasonable degree of proof. The claim for loss of salary, item 5, is found on pages 9 and 10 of the transcript.

“Q. Miss Downey, I assume that the State of Illinois would have the amounts, which were paid to you for the period from February 15, 1955 until August 15, 1955, and I’ll show you a copy of the Departmental Report, which has been admitted into evidence by stipulation, and I will call your attention to paragraph 7 of that Departmental Report which itemizes the amounts that were paid to you for the months of March, April, May, June, July and August of 1955. I will ask you to examine that paragraph, and state whether or not you believe the amounts shown there are correct.
A. They don’t have in there the amount that I worked in February when they informed me, and I didn’t receive a check at the end of February.
Q. Then except for the month of February, which you might dispute, would you be willing to assume that that is correct?
A. I would say approximately. I am sorry that I didn’t keep track of my checks. I should have.
Q. Now, why is it that during part of 1955 you did not work full time?
A. I just wasn’t able physically.
Q. When you say you were not able physically?
A. Due to the injury to my back.
Q. And that is the same injury that is involved in this matter heir’
A. 1948.
Q. Now when did you next become employed?
A. October 21, 1956.
Q. And during the period from August 15, 1955 to October 21, 1956 why didn’t you work?
A. Because I was advised not to — because my illness of this back injury.
Q. And who advised you?
A. Well, the doctor told me that it would be better for me to have more rest.
Q. What doctor?
A. Dr. Manson. I spent about 16 hours in bed most of that time.
Q. On October 21, 1956 by whom were you employed?
A. Illinois Commerce Commission.”

It is to be noted that the two previous awards related to reimbursement for medical and transportation expenses. This complaint, for the first time, seeks an award for loss of salary, and, while there is no dispute that the injury was received in the course of her employment, the question of the extent of her injuries is now presented for consideration.

The following appears in Illinois Workmen’s Compensation, Angerstein, Sec. 515:

“An award of the Industrial Commission or of a circuit court may not be based upon guess, surmise or conjecture, or even upon a choice between one of two views equally compatible with the evidence. Awards may be based only upon facts established by the evidence or upon inferences that may reasonably be drawn from facts established by the evidence. Liability under the Act cannot rest upon imagination, speculation, or conjecture, but must be based upon facts established by a preponderance of the evidence. The rules respecting the admissibility of evidence and the burden of proof are the same as prevails in a common law action for personal injury.”

This Court has at all times required a claimant to prove his case by a preponderance of the evidence. This complaint is not supported by medical testimony, x-rays or other supporting matters, and falls far short of proving the extent of her injuries and inability to do any kind of work for 14 months.

As to item 5, the Court, therefore, finds that the claim is not proven in a manner, as required by law.

Awards are, therefore, made to claimant as follows:

1. Springfield Clinic Pharmacy, 1025 South Seventh Street, Springfield, Illinois, for medicines from last hearing herein to date-$ 294.90

2. Springfield Rural Urban Clinic, 1025 South Seventh Street, Springfield, Illinois, for medical care, treatment, laboratory tests and x-rays from date of last hearing to date_____________________________________ 200.00

3. Additional medicines ___________________________________________________________ 32.50

4. Transportation charges to and from Springfield Rural Urban Clinic____________________________________________________________________________________________________ 24.40

An award is also made to Frances Paul in the amount of $33.90 for court reporting services.

This award is made subject to the approval of the Governor, as provided in Section 3 of “An Act concerning the payment of compensation awards to State Employees”.


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    (No. 4699
    William S. Austin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Lansden and Lansden, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On November 28, 1955, claimant filed his complaint seeking an award for injuries, which he sustained while an inmate at the Illinois State Penitentiary, Menard, Illinois.

From the evidence, it appears that on April 3, 1952 claimant was playing softball during an authorized recreation period. In an attempt to slide into second base he collided with the second baseman, and suffered a fracture through the articular surface head of the left radius. The gist of the complaint is to the effect that the attending doctor made a “slip-shod” diagnosis, and, instead of placing the arm in a cast, diagnosed the injury as a sprain, and ordered claimant to carry it in a sling. As a result of improper treatment, claimant alleges that he now has a pronounced limitation of motion.

Respondent, for no apparent reason, failed to file a motion to strike the complaint on the grounds that it was barred on its face by the statute of limitations. Claimant alleges that the facts of this case show that he was suffering from “other disabilities”, so that he should escape the bar of the statute.

At the outset, we must consider Section 22 of the Court of Claims Act:

“Every claim, other than a claim arising out of a contract or a claim arising under subsection C of Section 8 of this Act, cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within two years after it first accrues, saving to infants, idiots, lunatics, insane persons and persons under other disability at the time the claim accmes two years from the time the disability ceases.”

The precise point was considered by the Court in the case of Atkinson vs. State of Illinois, 21 C.C.R. 429:

“On February 19, 1953, claimant, Henry Atkinson, filed his complaint in this Court seeking to recover an award for injuries sustained by him on September 30, 1949, allegedly due to the negligence of respondent, while claimant was an inmate of the Illinois State Penitentiary, Stateville Branch.
Section 22 of the present Court of Claims Act, Ill. Rev. Stats., 1949, Chap. 37, Sec. 439.22, provides that the filing of a claim, unless sooner barred, within two years of its accrual is jurisdictional ‘saving to infants, idiots, lunatics, insane persons, and persons under other disability at the time the claim accrues two years from the time the disability ceases’. Weber vs. State of Illinois, 19 C.C.R. 33, and Auto Electric Co. vs. State of Illinois, 20 C.C.R. 198.
Although respondent has filed no motion pointing out that the complaint has been filed too late, since jurisdiction of this Court is involved, and the question of the jurisdiction of this Court may be raised at any time, even by the Court on its own motion, we, therefore, must determine whether we can hear this case. Flynn vs. State of Illinois, 19 C.C.R. 184.
The complaint, on its face, shows that claimant is not now, and has not, since his claim accrued, been under any disability, which would toll the running of time against him.
It has always been the rule in this Court that confinement in the penitentiary is not such a disability as would toll the running of the statute. McElyea vs. State of Illinois, 7 C.C.R. 69, and Robertson vs. State of Illinois, 19 C.C.R. 146. The latter case contains a complete discussion of the problem involved herein, and in that case the claim was dismissed, because the former convict therein involved waited too long to file his case.
In view of the foregoing, claimant has filed his complaint too late, and this Court is without jurisdiction to hear it.
The case is dismissed.”

Ill an effort to avoid the rule in the Atkinson case, claimant alleges that “other disabilities” prevented him from filing his claim on time, and states that in the summer of 1954 a Veterans’ Service Officer was asked to supply an attorney, but that he suggested claimant wait until his discharge to institute such action.

He further alleges that his sister made an effort to locate an attorney without success, and, finally, that he feared any claim filed by him would affect his chance of parole or discharge.

Notwithstanding the above allegations, claimant, while a prisoner, filed his complaint “pro se” on November 28, 1955, and, if he elected to file his complaint while a prisoner, it should have been filed on time.

For the reason that the Court is without jurisdiction to hear the case, an award is, therefore, denied.


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    (No. 4732
    Rudolph Dreikurs and Sadie Dreikurs, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.

      Petition of claimants for rehearing denied May 12, 1959.
    Elmer Gertz, Attorney for Claimants.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Dr. Rudolph Dreikurs and Sadie Dreikurs, his wife, filed their claim for injuries received by Sadie Dreikurs while attending a meeting at the Galesburg State Research Hospital, Galesburg, Illinois.

The facts of the case are as follows:

Dr. Rudolph Dreikurs, a psychiatrist of Chicago, Illinois, had given lectures at various State institutions, and was invited by Dr. Thomas T. Tourlentes, Assistant Superintendent, to appear at Galesburg for this purpose. He was paid a fee of $50.00 plus his travel expense.

When trips of this nature were scheduled, the Chicago Office of the Department of Welfare would make the necessary travel reservations, and, in this instance, the secretary to Dr. Lee, Administrative Assistant of the Department, was advised by Dr. Dreikurs that his wife would accompany him. Dr. Dreikurs, in his testimony, made it clear that he paid her travel expense, and did not bill the State.

Sadie Dreikurs, in her testimony, identified herself as a trained social worker in psychology. She stated that she was employed by several welfare agencies in Cook County, and that she was her husband’s secretary, and assisted him in taking notes and preparing publications.

On January 19, 1956, Dr. Dreikurs and his wife went to Galesburg. It had snowed on January 18th, and snow fell intermittently on the 19th. Dr. Tourlentes met them at the railroad station and drove them back to the institution. On the return, he left the car in a paved parking lot adjacent to the Administration Building, and the three occupants started walking towards it.

While walking, Sadie Dreikurs fell and suffered a bimalleolar fracture of the right ankle. Thereafter she was hospitalized. There is no dispute but what she suffered great pain, and incurred considerable expenses for hospital and medical care.

In addition to the foregoing, while being transported on a stretcher to the train, an attendant from the hospital slammed the door of the car on the large toe of her injured foot, which caused shock and further aggravation.

The amended complaint charges in substance that respondent was negligent in failing to have its walks and driveways in a clean and satisfactory condition for walking; in failing to unload the occupants at the building entrance, rather than the parking lot, which was a short distance away; and, finally, in failing* to use due care when transporting Mrs. Dreikurs on a stretcher.

The evidence further discloses that a heavy snow had fallen in the area on the 18th, and that the parking-lot had been plowed later in the day. On the 19th, the snow removal equipment was being used in other portions of the grounds to clear the walks and driveways.

Our inquiry is first directed to the legal status of Sadie Dreikurs at the time and place in question. The Department of Public Welfare was aware that Mrs. Dreikurs would accompany her husband, as they had made a train reservation for her. Mrs. Dreikurs, as an invitee, was, therefore, entitled to reasonable or ordinary care on the part of respondent to maintain its premises in a reasonably safe condition. This degree of care does not impose the liability of an insurer as against any accidents that may occur, but only requires that the owners of premises use reasonable care. Murray vs. Bedell Co., 256 Ill. App. 247.

Applying this test to the facts at hand, we find that respondent had removed the snow from the parking lot on the 18th, and was using its equipment and man power in other areas of the grounds at the time of the accident. It cannot be argued that respondent should have multiple pieces of equipment on hand at all times so that all areas could be cleaned simultaneously, as this is an unreasonable demand.

As to the first charge of negligence, i.e., failure to remove snow, we find that respondent had done and was doing all that a reasonable person could do under the circumstances of this case.

As to the charge of negligence, i.e., failure to unload the occupants in the driveway rather than the parking lot, we feel that the evidence does not support the charge.

As stated above, the parking lot was adjacent to-the Administration Building. It was paved, and had been established for this particular convenience. It had been plowed once so that it was in a usable condition, as Mrs. Dreikurs testified at page 32 of the transcript:

“Q. Were there other cars parked in this parking area?
A. I think three or four cars.”

There was nothing unusual or unreasonable in the-act of Dr. Tourlentes in driving directly to the parking lot, for the evidence discloses that both Dr. Tourlentes. and Dr. Dreikurs were able to walk upon the snow on. the parking lot without the slightest difficulty.

Respondent argues that claimant was guilty of contributory negligence, and, in this regard, we feel the-charge is not supported by the evidence. She wore-galoshes. She had no way of knowing whether there was,, residual ice underneath the snow, which had accumulated since the lot had been plowed. She acted as anyone else would have under similar circumstances.

Since the evidence does not support the charge of negligence or contributory negligence as to the first two counts, the only way to account for the misadventure is to accept it as an unfortunate accident.

The word “accident” is difficult to define. In its most commonly accepted meaning, the word denotes an event that takes place without one’s foresight or expectation. 1 C.J. 319.

An accident, unavoidable under the circumstances, was more precisely defined in the case of Hutchcraft vs. Travelers Insurance Company, 87 Ky. 300, 85 W. 570:

“Accident to a person by his own agency, as where one is walking or running and accidentally falls and hurts himself. Here he falls by reason of his agency in walking or running, but he did not intend to fall; he did not foresee that he would fall in time to avoid it. The fall was, therefore, accidental.”

Our Illinois Courts have defined the term ‘ ‘ accident ’ ’ as follows:

“The term ‘accident’ is used with different meanings, including unforeseen events occurring without human agency, but, as connected with conduct of persons, means an unforeseen event for which some one may or may not be responsible. Wall vs. Greene, 321 Ill. App. 161.”

It is common knowledge that the northern half of Illinois is subject to miserable and many times dangerous conditions for four or five months of the year. Sleet, ice and snow make walking or driving a genuine hazard. In spite of reasonable efforts made to remove these hazards, many people are injured through no fault of their own. All who elect to live and work in this area, usually because economic conditions are better, assume a risk that does not exist in other parts of our country.

Such a truism is small comfort to one, who has undergone pain and financial loss, but our law does not assess a penalty against anyone, where the injury complained of is the result of an accident.

As to the third charge of negligence, i.e., slamming the car door on claimant, we believe the charge is sustained.

It is virtually impossible to separate the evidence, and determine the loss occasioned by this act. Hence, the Court must be more or less arbitrary, and conclude that the pain and suffering produced a loss of $500.00.

An award is, therefore, denied as to Rudolph Dreikurs, and an award is made to Sadie Dreikurs in the amount of $500.00.

Supplemental Opinion

On April 23, 1959, claimant filed a petition for rehearing, and alleges that the Court found negligence under the third charge, but arbitrarily only allowed the sum of $500.00 for pain and suffering.

The balance of the petition sets' out the medical expenses incurred by claimant, and reported cases where substantial damages were allowed for the fracture of a leg.

In its original decision, the Court found that the fracture of the leg was the result of an accident without negligence or contributory negligence of either party. The only element of negligence found by the Court concerned the slamming of the car door against claimant’s toe after she had received her injury. The evidence further disclosed extreme pain and nausea, but no effort was made by claimant to show that this injury aggravated the fractured leg, nor was there any evidence offered to show that the medical expenses were increased by it.

The substantial injury was the fracture to the leg, rather than the aggravated pain caused by the slamming of the door, and the Court, therefore, limited the award to the particular negligence.

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


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    (No. 4743
    Leslie G. Morris, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.
    Lansden and Lansden, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Leslie G. Morris, filed his complaint on November 14, 1957 seeking damages for the loss of his right ring finger, while an inmate of the Illinois State Penitentiary, Menard, Illinois.

Claimant was assigned to the woodworking shop, and was engaged in making an officer’s club on a machine known as a jointer. In pushing the wood through the machine, his hand slipped into the blades, and he suffered a traumatic amputation of the tip of his right fourth finger.

This machine has three cutting blades that revolve at a high speed, and, on the date in question, was not equipped with a safety device for the protection of the operator. It appears from the evidence that the machine at one time had a safety device, which would have prevented the operator from coming* into contact with the blades, but for some reason it had been removed.

We have previously held that a convict can maintain-an action in this Court, while in such a status.

McElyea vs. State of Illinois, 7 C.C.R. 69

Moore vs. State of Illinois, 21 C.C.R. 282

This Court has also held that a convict is not an employee of the State within the meaning of the Workmen’s Compensation Act, Tiller vs. State of Illinois, 4 C.C.R. 243; nor can he maintain an action for a violation of the Health and Safety Act, Moore vs. State of Illinois, 21 C.C.R. 282.

However, if it appears from the evidence that claimant was assigned to work under unsafe conditions, was not guilty of contributory negligence, and was injured, respondent would be guilty of negligence.

This Court made reference to the Health and Safety Act in the case of Moore vs. State of Illinois, and suggested that, if the Health and Safety Act required hoppers on a food grinder, this was an express recognition by the State that food grinders should be equipped with hoppers to render them safe.

The Health and Safety Act makes specific mention of jointers or buzz planers, and requires that all exposed parts of the cutting head shall be guarded. It is difficult for this Court to justify two standards of conduct by the State, one for workers outside prison walls and another for inmates.

The Court, therefore, finds that respondent was negligent in not providing safe equipment, and that claimant was free from contributory negligence.

An award is, therefore, made to claimant in the amount of $1,500.00.


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    (No. 4760
    Arthur Mayes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.
    Epton, Scott, McCarthy and Epton, Attorneys for Claimant.
    Latham Castle, Attorney General ; Richard F. Siman, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant filed bis complaint in this Court on February 4, 1957 for property damage to his automobile, which was sustained on August 12,1956 while driving on Edens Highway in the County of Cook and State of Illinois. The amount of damages claimed is the sum of $150.85.

Respondent did not file an answer, and, therefore, a general traverse of the allegations of the complaint will be considered.

A joint motion of claimant and respondent asking leave to waive the filing of briefs was granted. The case was heard by Commissioner George W. Presbrey, and his report has been filed herein.

The only witness testifying in this case was claimant, Arthur Mayes, who stated that on the 12th of August, 1956, between 9:30 and 10:00 P. M., he owned a 1953 Cadillac, which he was driving in a southerly direction on Edens Highway in Cook County, Illinois. Near Touhy Avenue it had been raining very hard, and he was traveling at a speed of about five or six miles an hour approximately 25 feet behind a car proceeding immediately in front of Mm. As he was driving behind the car in front of Mm, he noticed it hit something, which appeared to be a bump or depression in the road, and immediately thereafter a manhole cover rolled in the direction of Ms automobile and into the front portion near the bumper of Ms automobile. In getting out of Ms automobile he noticed that the manhole cover was loose, and had left the manhole upon being struck by the car immediately preceding him. He testified that, in his opinion, the manhole cover was at least 35 inches in diameter.

Claimant testified as to the damages and costs of repair, which were set forth in claimant’s exhibit No. 1, which was admitted in evidence, and showed a total charge of $150.85.

It appears from the record that there was no claim made on Ms insurance company, nor did the insurance company pay Mm any portion of tMs loss, less the deductible portion. Therefore, it is his claim, and there is no subrogation claim of any insurance company involved.

The complaint charges as the proximate causes of the accident:

1. Negligence of respondent’s employees in failing to warn the traveling public on Edens Highway, at or about the intersection of Touhy Avenue, of the open or loose manhole.

2. Negligence of respondent’s employees in so placing a cover upon the manhole that it became loose, and was propelled against claimant’s automobile.

3. Negligence of respondent in permitting the existence of an open manhole on a public thoroughfare.

TMs Court had occasion to pass on a similar situation involving a manhole cover in the case of N. B. Cou chot vs. State of Illinois, 21 C.C.R. 157. The only difference in the two cases is that in the present case the manhole cover was struck by another automobile, which caused it to be propelled against claimant’s automobile.

In that case the Court held that there could be no question but what it was the duty of the State in maintaining manhole covers to see to it that they would not be dangerous to persons lawfully using the highways, and driving their automobiles over them. From the evidence, which is also true in the present case, it could not be disputed that the State had constructive notice of the condition of the manhole cover for a period of time, so as to charge the State with negligence in failing to properly maintain it.

There is no question in this case but what Edens Highway was under the jurisdiction of respondent, and that it was the duty of respondent to see that it was maintained in a reasonably safe state of repair, particularly in view of the facts and circumstances in this case.

We make this statement knowing that the State is not an insurer of all persons, who drive upon its highways. But, in cases where there is a defect, which was either known or could have been ascertained by reasonable inspection, and, which would cause damages to persons and property upon said highway, particularly under the conditions in this case where there was a large amount of water, and a cover was loosely placed over the manhole, the State should have been aware of the fact that the water and traffic on said highway might cause the cover to become disengaged from the manhole, and result in damages to automobiles and the people riding therein.

The only conclusion that we can draw from the evidence offered in this case is that respondent’s employees were negligent in the maintenance of the manhole cover, especially under these circumstances where cars were traveling across it, and particularly because of the existence of the large amount of water, which could flow under or around the cover and disengage it. In our opinion, the proximate cause of the accident resulting in damages to claimant was respondent’s failure to properly secure the manhole cover in its place, so that it could not become disengaged.

An award is hereby made by this Court to claimant, Arthur Mayes, in the amount of $150.85.


author: Wham, J.

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    (No. 4778
    Duke Bowden, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Murphy and Heimdal, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

This is an action to recover $7,500.00 in damages for personal injuries sustained by claimant while assembling a desk in the office of the Illinois State Employment Service, Aurora, Illinois.

The evidence regarding the occurrence is conflicting on certain material points. However, it will not be necessary to consider the conflicts, since the evidence in its most favorable light from the standpoint of claimant precludes a recovery.

Claimant testified that, while he was awaiting assignment to a “spot job” in the employment office, a steel desk was delivered. Roy Brown, a State employee, according to claimant, requested claimant and two other applicants to help carry the desk from the delivery truck into the office, which they did.

The desk was partially disassembled, and claimant and the two other men commenced assembling it. They had difficulty in joining the legs to the desk, and one of the men, Paul White, according to claimant, jumped onto the top of the desk and attempted to force the top down onto the legs. He testified that, approximately five minutes after White got off of the desk top, the top suddenly slipped into place mashing one-third of the distal phalanx of his left middle finger between the underside of the desk top and the point at which the legs fit into the top. Claimant further testified that, at the time his finger was injured, he was the only person holding on to the desk, that no one was sitting* on the desk top when it came down, that no one was applying* weight to the top of the desk, nor was anyone jiggling the desk at that time. He testified that he himself worked on the desk for approximately five minutes after Paul White had quit working on it, and was trying to bring the top down onto the legs when it suddenly slipped into place catching his finger.

No evidence was offered that the desk was faulty, or that respondent had any more reason to foresee this occurrence than did claimant.

Claimant contends that respondent was guilty of negligence in allowing* White to jump onto the desk causing injury to claimant. It is obvious from claimant’s own testimony that the injury was not caused by White’s jumping onto the top of the desk.

There is no evidence that respondent negligently caused this injury, and, inasmuch as respondent is not an insurer of claimant’s safety, there is no basis under the law upon which this claim can be allowed.

We must, therefore, deny the claim.


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    (No. 4783
    Elevator Manufacturing Company of America, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.
    Gann, Secord, Stead and McIntosh, Attorneys for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, Elevator Manufacturing Company of America, A Corporation, filed its complaint in this Court on July 15, 1957, wherein it is alleged that claimant supplied labor and materials for removing, repairing and reinstalling a burned out motor for an elevator located in the Chicago State Hospital, Chicago, Illinois, on February 16, 1955. The charges for such labor and material were billed to the Chicago State Hospital, but payment was refused.

Respondent did not file an answer. Therefore, it is considered that there is a general traverse or denial of the facts set forth in the complaint.

The amount of the claim is in the sum of $484.46.

The record consists of the following:

1. Complaint

2. Motion of respondent to strike and dismiss the complaint of claimant

3. Proof of service of a copy of the motion of respondent on counsel for claimant

4. Substitution of attorneys

5. Order overruling motion to strike

A motion had been previously filed to strike the complaint because no contract was entered into, but this Court overruled it.

Respondent offered, and there was received in evidence, a Departmental Report, wherein it is stated that claimant removed, repaired and reinstalled the motor, that the work was necessary, the cost was reasonable, and the work was excellent.

It appears that this was an emergency matter. Even though there was no contract, claimant had been called on previous occasions to do work on elevators for which it had been paid; and, inasmuch as the chief maintenance officer of the Chicago State Hospital had ordered the emergency repairs made, claimant had been advised that the work would be approved and payment made. Inasmuch as this had come to the attention of the Division of Architecture and Engineering, who authorized the maintenance officer to have this work done, the mere fact that there was no contract, and the work was done in the 68th Biennium, which ended June 30, 1955, and all appropriations had «lapsed on September 30, 1955, in our opinion does not defeat claimant’s right to recover the sum of $484.46.

Our only concern is, and we find it to be a fact, that this was an emergency matter. Claimant was a responsible party, and did its work in a satisfactory manner, and a fair and reasonable charge was made therefor.

An award is, therefore, made to claimant in the sum of $484.46.


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    (No. 4787
    Columbia Fire Insurance Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1959.

    Gillespie, Burke and Gillespie, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Rebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

Claimant, Columbia Fire Insurance Company, A Corporation, filed its complaint on August 2, 1957 to recover for an overpayment of its annual privilege tax for the year of 1952.

A stipulation was filed on March 26, 1959 reciting that the report of the Department of Insurance, under date of September 24, 1958, together with the complaint and motion for summary judgment of claimant, shall constitute the record in this cause.

Paragraph 4 of the complaint alleges the following:

“That for the calendar year of 1951, claimant" paid taxes on the net receipts of its agencies, as provided in Sec. 414 of the Illinois Insurance Code, in the sum of $1,700.25, and, by reason thereof, claimant was entitled to have the said sum of $1,700.25 deducted from its privilege tax for the year 1952.”

The Departmental Report specifically admits the allegations contained in paragraph 4 of the complaint, and it would appear that the claimant is, therefore, entitled to reimbursement for its overpayment.

It is, therefore, ordered that an award be made to Columbia Fire Insurance Company, A Corporation, in the amount of $1,700.25.