text:
    (No. 4615
    Charles M. Kenney, Administrator of the Estate of Steve Bolf, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1956.

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

Claimant, Charles M. Kenney, Administrator of the Estate of Steve Bolf, deceased, filed this action on March 23, 1954, under the wrongful death statute, Chap. 70, Secs. 1 and 2, 1953 Ill. Rev. Stats.

On August 28, 1953, claimant was duly appointed by the Probate Court of Sangamon County, Illinois, Administrator of the Estate of Steve Bolf, who died on August 17, 1953. It is alleged in the complaint that the decedent left him surviving no widow or children, but did leave surviving him Andrew Bolf and Miho Bolf, brothers; Harija Majnorie, sister; Matija Bolf, a daughter of a deceased brother; Mary Bolf and Hallie Bolf, daughters of a deceased brother, Nick Bolf, nieces; Tony Bolf, son of a deceased brother, Nick Bolf, nephew; and children of a deceased brother, Ivan Bolf, names unknown, his only next of kin.

The prayer for relief is as follows: (a) Medical expenses incurred in the amount of $273.85; (b) Funeral expenses in the amount of $809.40; (c) Loss of support to next of kin in the amount of $6,416.75; or a total recovery in the amount of $7,500.00.

Claimant alleges that on August 15, 1953 respondent, by and through the Department of Agriculture, State of Illinois, was holding its annual State Fair at the Illinois State Fairgrounds, Springfield, Illinois, as prescribed by law. On said date decedent paid his admission price to the Illinois State Fairgrounds as a pedestrian. Claimant contends it was the duty of respondent to keep and maintain the grounds at the Illinois State Fairgrounds in a good condition and proper state of repair, and to remove therefrom any dead trees, which might fall upon and injure pedestrians.

The charge of negligence alleged in the' complaint is that respondent carelessly, negligently, and improperly suffered and permitted a dead tree to remain in a state of great decay and ruin at or near the southwest corner of a warehouse, which was just west of the Exposition Building in said Fairgrounds, and that this dangerous and unsafe condition existed for such a length of time that respondent had or should have had notice of its existence. Furthermore, as a direct result of the negligent and improper conduct of respondent at said time and place, and while decedent was walking beside or under the said dead tree, a large limb, approximately ten inches in diameter, broke and fell from the tree, hitting and throwing decedent to the ground with great force, and inflicting severe injuries on him, from which he died.

There is the usual allegation that at all times heretofore and hereinafter mentioned in the complaint, plaintiff’s intestate was in the exercise of due care for his own safety.

There is alleged that decedent was accustomed to contribute, and would have continued to contribute to the support of his next of kin, alleged and set forth in the complaint.

Certified copies of Letters of Administration are attached to and made a part of the complaint.

No answer having been filed by respondent, Rule 11, which provides that, if the respondent should fail so to answer, a general traverse or denial of the facts set forth in the complaint should be considered as filed, is applicable.

On October 7, 1954, a hearing was had in this cause at Springfield, Illinois before Commissioner Billy Jones. It was stipulated before trial that claimant’s exhibit No. 3, being a Coroner’s verdict rendered .upon an inquisition into the death of Steve Bolf, certified to by W. C. Tel-ford, Coroner of Sangamon County, under date of September 26,1953, be received in evidence and made a part of the record in this case.

The Coroner’s jury found that Steve Bolf met his death on August 17, 1953 at or about the hour of 11:10 A.M. (C.S.T.), as a result of numerous internal injuries accidentally received when a large tree limb broke and fell on him near the Exposition Building at the Illinois State Fairgrounds, located near the City of Springfield in Springfield Township, Sangamon County, State of Illinois, at or about the hour of 5:30 P.M. (C.S.T.) on August 15, 1953.

As a part of respondent’s case, there is also filed a Report of the Department of Agriculture, which was made by Alvin C. Bohm, Technical Adviser. Claimant offered one occurrence witness, a Mr. Emery Mathews, Jr., who testified that on the afternoon in question he attended the Illinois State Fair, and viewed the accident on the north hill of Happy Hollow. He was walking from the east going west when he heard the crack of a limb, and saw the limb of a tree fall on plaintiff’s intestate. When he reached the man, the limb was lying on top of him, and with the aid of four or five other men the limb was lifted from the body of Steve Bolf. Mr. Bolf was unconscious at the time, and was removed to the hospital by ambulance. The limb, when it fell, made a large cracking noise. He estimated the size of the limb to be ten inches in circumference. He examined the limb, and found it to be dead. Shortly after the accident he returned to the Fairgrounds, and found that the tree in question had been removed, i.e., it had been cut down along with two or three other trees. On cross-examination, he testified that he saw Steve Bolf sitting under the limb when it fell. At that time he was facing in a southwesterly direction. The witness was about 150 yards to the east of Steve Bolf, right on top of the hill east of the Exposition Building, when his attention was attracted to the tree by the cracking noise. At the time of the accident there was no wind blowing, and he did not know what caused the limb to fall, except that it was dead. There were branches scattered around on the ground from the falling limb, but there were few leaves on the branch that fell. He was unable to testify what kind of a tree it was.

Claimant called George Blessing, who qualified as a nurseryman and tree surgeon, and testified that he was familiar with the various diseases of trees, and the methods of treating them. He assumed that it was an elm tree from which the limb fell, but was not certain. Elm trees in Springfield and its vicinity had been affected with a disease, which caused them to die within a comparatively short period of time, and he had observed limbs falling from such trees for no apparent reason, other than that leverage and weight would cause them to fall. On cross-examination, he testified that he did not know the particular tree referred to, nor what kind of a tree it was. For example, an oak tree could be dead and still have leaves on it, as they carry over from season to season. If a tree stands long enough, it will eventually rot out with the disease. The illness or disease he referred to was a virus, which does not kill trees immediately, and some trees die very slowly. A healthy tree to begin with would stand much longer. He also testified that some elm trees would lose part of their leaves, and yet the tree would be perfectly alive. Sometimes the dropping of leaves is due to dry weather, and the health of the tree depends upon soil condition and fertilizers.

Charles M. Kenney, Public Administrator for Sangamon County, claimant, was next called as a witness. He testified that the decedent left neither wife nor children, father or mother, but did leave surviving him as his only heirs at law, brothers and sisters, and descendants of brothers and sisters. He testified as to the medical expenses, funeral bills, charges for cemetery lot, the total amount being the sum of $1,083.25. He estimated the court costs to be $75.00, and attorneys’ fees to be somewhere between $1,200.00 and $1,500.00. He was unable to testify that any of the brothers and sisters depended upon decedent for support.

Respondent called Bertram Moore, an electrician, who was working at the Fairgrounds on August 15, 1953. He testified he was employed by the Egizii Electric Company, and that he saw the limb fall. He stated that all of a sudden it snapped and floated down; that he did not hear the limb break, but did hear it smash when it hit the ground. The man, who was struck,' was facing towards Happy Hollow. He testified that it was an elm tree, that it was alive and had leaves on it, but he was unable to explain what caused the limb to fall. He further stated that after the accident this particular tree, together with other trees in the vicinity, were cut down; but he could not remember when.

Wilbur Powell was next called by respondent. He testified he was an electrician, and was standing outside of the electricians’ building at the time the limb fell and hit the decedent. His attention was first drawn to the tree by the snap of the limb, and he saw the limb, which was of a fairly good size, after it hit the ground. It made a crack like a rifle. He was unable to state what kind of a tree it was, and he also did not know what caused the limb to fall. He testified that it was a calm day, and he could not state whether the tree was dead or alive.

Respondent then offered in evidence the Report of the Department of Agriculture, signed by Alvin C. Bohm, and filed in this case on May 21, 1954 under Rule 16. The Report of the Department of Agriculture places the Department of Agriculture as the custodian of the State Fairgrounds, and the buildings thereon by virtue of Chap. 127, Par. 40, Ill. Rev. Stats., 1953. The maintenance of the Fairgrounds is supervised by the Division of State Fair. The grounds cover approximately 366 acres lying just north of the City of Springfield. There are 71 separate structures or groups of buildings ranging from a permanent bandstand to the grandstand, which, with bleachers, will seat approximately 10,200 persons. Some of the structures, such as the Illinois Building, which houses the general offices of the Department of Agriculture, are used the entire year. There are several miles of streets, roads and sidewalks interlaced throughout the various parts of the grounds, and the state employs a maintenance crew on an annual basis. In 1953, the Illinois State Fair was held between the dates of August 14 and August 23. During the Fair a large number of persons were employed by respondent for the purpose of keeping the State Fairgrounds in a good condition and in a proper state of repair, which included the timber and" trees located thereon. Whenever trees or timber on the ground became dead or decayed, and a threat to the safety of persons coming under said trees, they were chopped or sawed down, and removed as a source of such danger. The concluding paragraph of the Report is as follows: “The Department of Agriculture, prior to the time that a limb from a dead tree fell hitting said decedent, Steve Bolf, as alleged by the claimant herein named, had no knowledge of such condition, as to any trees on the Illinois State Fairgrounds.” Respondent contends that, inasmuch as it did not have actual or constructive notice of the defective condition of the tree, or, that the condition had existed so long as to constitute constructive notice, its agents and servants were not negligent, and, therefore, respondent was not liable.

In the case of Dreier vs. State of Illinois, 21 C.C.R. 72, claimants were injured when a limb fell on their automobile, and it was proven that the limb had been in a cracked and defective condition for a period of time, and that the state had constructive notice of same. This Court has previously held that a Departmental Report is prima facie evidence of the facts set forth therein, but is not prima facie evidence of the conclusions set forth.

Claimant’s evidence is not rebutted by the Departmental Report. It does, however, state that respondent kept a crew the year round for the purpose of inspecting and maintaining the buildings, trees and timber standing thereon for the safety of those attending the State Fair, and visiting the State Fairgrounds during the course of the year.

Inasmuch as Springfield and the surrounding area had been affected with a blight, which was killing elm trees, this in itself should have put the Department of Agriculture .upon notice that a check should be made of all trees to see whether or not the elm trees located on the State Fairgrounds were dying from the blight.

The question of contributory negligence has not been raised, and rightfully so, as claimant’s intestate was sitting in a place where he had a perfect right to be, and did nothing, which contributed to his own injury.

It was a calm, sunshiny day. There was evidence that the elm tree was rotten. There were leaves missing from it, which would give an indication that the tree was suffering from the blight testified to by the expert witness for claimant. Limbs of trees, ten inches in circumference, do not fall without some reason therefor. We believe we can safely conclude that this tree was affected, that it was rotten, and that claimant’s intestate did nothing to bring about the condition, inasmuch as the grounds, the trees growing thereon, and the buildings were under the control and supervision of respondent. This is a case where we can invoke the doctrine of res ipsa loquitur.

We cannot find a case where for no apparent reason a limb from a tree has fallen, and caused an injury; and, particularly, a case involving a limb of the size of the one in question, which had fallen when the wind was not blowing. This places an additional stress upon the question as to what caused the limb to fall. In such a case the question arises as to whether or not the diseased condition of the tree was apparent, and had existed for a period of time, and whether or not upon proper inspection its condition could have been determined, and the tree removed or treated, so that it would not remain as a hazard to those who visited the Fairgrounds. We are cognizant of the fact that respondent, through its agents and servants, did inspect the grounds, and was supposed to keep the grounds and the trees growing thereon in a safe condition for those attending the State Fair, as well as on other occasions. The condition existing in elm trees was very common in Springfield and the surrounding territory, and certainly respondent had knowledge of this. With this knowledge, inspection should have been made to determine whether or not the trees in question were diseased and rotten, and consequently hazardous.

The question as to this particular tree, as well as the surrounding trees, being rotten was answered by the fact that respondent, through its agents and servants, did remove the tree in question, and also several trees surrounding it, because of the disease that existed in the tree, which caused the limb in question to fall on claimant’s intestate.

It was the duty of respondent to keep the State Fairgrounds and the buildings thereon in a condition reasonably safe for the use of those attending the Fair, and it was obliged to use ordinary or reasonable care to accomplish this. Claimant’s intestate was entitled to rely on or assume the proper performance of this duty. A violation of such a duty constitutes negligence.

The author of the article on negligence in 38 American Jurisprudence 989, Section 295, under the title “Res Ipsa Loquitur” says:

“The conclusion to be drawn from the cases as to what constitutes the rule of ‘res ipsa loquitur’, is that proof that the thing which caused the injury to the plaintiff’s intestate was under the control and management of the defendant, and that the occurrence was such as in the ordinary course of things would not happen if those who had its control or management used proper care, affords sufficient evidence, or, as sometimes stated by the Courts, reasonable evidence, in the absence of an explanation by the defendant, that the injury arose from or was caused by the defendant’s want of care.”

The respondent has not offered any evidence, or explained why the limb fell, other than that it did not know the tree was in a dangerous and hazardous condition until after the accident. We are of the opinion that, from the testimony, the disease in the tree could have been determined had a proper inspection been made by respondent’s agents. It was respondent’s duty to make such an inspection in order to safeguard the patrons at the Fair, which fact was later recognized, as the diseased condition in other trees surrounding the tree in question evidently was apparent to respondent’s agents after the accident.

In the case of McCleod vs. Nel-Co Corporation, 350 Ill. App. 216, the Court discusses in great detail the doctrine of res ipsa loquitur. This was a case where plaster in a hotel room fell upon guests, while they were sleeping in bed, causing personal injuries. We quote from page 223: “In 38 Am. Jurs. 1,003, title ‘Res Ipsa Loquitur’, Section 306, it is said that the doctrine has had frequent application in cases of injuries resulting from falling, objects and substances; that, in order to invoke this doctrine in an action for injury from a falling object, the fall of the object must, according to common experience, be so unusual in occurrence, when due care is exercised by the defendant, as to carry inherent probability of negligence on his part. On pages 1004-1005, Section 307, of the same article, it is stated that it is usually held that a customer, who is injured by the unexplained fall of an object, in a store, which causes injury to him, may invoke the doctrine of ‘res ipsa loquitur’, citing Anderson vs. McCarthy Dry Goods Company, 49 Was. 398, 95 Pac. 325, 16 L.R.A. (New Series) 931; and, Law vs. Morris, 102 N.J.L. 650, 1330 Atl. 427, 46 A.L.R. 1108.”

In the case above cited, the defendant testified, as did its agents, that frequent inspections were made of the room where the plaster fell; that it was not apparent that there was any damage to the plaster, and that there was no explanation as to why it fell.

This is a situation similar to the one in the present case. But, there was no question in the hotel case but what the plaster was defective, or it would not have fallen; and the same is true in the case of a limb falling from a tree, which was found to be diseased and decayed, which condition caused the limb to fall.

Under the maxim “res ipsa loquitur”, our courts have announced many times that where a thing, which has caused injury, is shown to be under the management of the party charged with negligence, an accident is such as in the ordinary course of things does not happen, if the management uses proper care. The accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care.

It is clear from the record that the deceased did not leave a widow, descendants or parents. His next of kin were brothers and sisters, and descendants of deceased brothers and sisters. There is no evidence that the deceased contributed to the support of any of his next of kin, or that anyone looked to him for such support, as no pecuniary injury has been shown, and this action is instituted by the personal representative of the deceased. The recovery is, therefore, limited under the provisions of Par. 0 of Sec. 2 of the Injuries Act, Chap. 70, 1953 Ill. Rev Stats.

This Court, therefore, finds that claimant is entitled to the sum of $900.00, and that attorneys ’ fees in the sum of $500.00 should be allowed, or a total award of $1,400.00.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4658
    George A. Pitts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1956.

    Bernard T. Grimes, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, a farmer and cattle feeder in Towanda Township, McLean County, Illinois, has tracts of land along Illinois Route No. 9 and Illinois Route No. 165, which joins Route No. 9.

This action is brought for the loss of two steers on August 16, 1954, and two steers which died on August 17,1954. It is contended that the cause of the death of the steers was* due to the negligent spraying of weeds along the state right-of-way with a solution of 2, 4-D, and, also, that respondent’s agents did not notify claimant, or the hired help in his absence, that they were going to spray the noxious weeds growing along the right-of-way adjoining the feeding lot and pasture where claimant’s cattle were permitted to graze, and also near where certain steers were being held in a feed lot. The amount of the claim is in the sum of $993.00.

A brief statement of the facts is essential, for the reason that there was no direct testimony as to the cause of death of the steers in question. It is contended by claimant that he has proven his case by a preponderance or greater weight of the evidence, by circumstantial evidence, which can lead to but only one conclusion, and that is that the solution of 2, 4-D used by respondent’s agents, when sprayed upon weeds, such as lambsquarter, and eaten by cattle produces and develops a high nitrate condition, and will cause their death. It is important to note at this time that no post-mortem was performed on the animals to determine the cause of their death.

It was stipulated by the parties, through their respective counsel, as follows:

“It is stipulated by the parties that claimant, George A. Pitts, is a resident of Towanda Township, McLean County, Illinois; that the farm land he farms is in Sections 35, 36, Section 2 and Section 3, Old Town Township, McLean County, Illinois; that Illinois State Route No. 9 passes between the land in Old Town and Towanda Township, being Sections 35 and 36, Towanda Township; State Route No. 165 passes, and connects it on the south line between the two sections with Illinois State Route No. 9; that a fence of claimant passes along Route No. 9 for approximately one and a half miles; that the cattle of claimant were located in a feed lot at the northeast comer of the intersection of Routes No. 9 and 165, and immediately west of that intersection in another field on the north side of Route No. 9, that all reference to any spraying of weeds is on the north side of Route No. 9; that Route No. 9 is a State Bond Issue Road provided for in the Sixty Million Dollar Bond Issue Act.
It is further stipulated and agreed that the Report of the Division of Highways, dated February 21, 1955, signed by Earl McK. Guy, Engineer of Claims, and filed under Rule 16 of this Court, may be received in evidence as a part of the record in this case.”

Claimant testified that there were 85 head of steers in the feeding lot at the northeast corner of the intersection of Routes Nos. 9 and 165, and on the west side there were 210 steers in the pasture, and that they were in those locations on August 9, 1954. On August 9, 1954, he was away on a cattle buying trip in Colorado, Wyoming, New Mexico and Texas, and did not return to his farm until about the 14th or 15th of that month. On the 16th day of August, two of the steers died, and the day following two more steers were found dead in the west pasture. He was not at home at the time the cattle were found dead, and the men working for him found the steers. His wife was at home at the time, and the men reported to her. The steers were pulled out of the feeding lot, and the rendering works was called to come and get them. ,

He further testified that he did not examine the cattle, and that the weeds were dying along the highway and the fence row of the pasture and feed lot. He called for a professional opinion as to what caused the death of the cattle, as he felt it was unusual to find perfectly healthy cattle dead in a feed lot. Mr. Cyril Burns, an employee of the State of Illinois, was called to determine what had been used to spray the weeds, as some of the tall weeds in the fence row had fallen over the fence, and the cattle had eaten them. This was on a weekend, and Mr. Burns asked if he had a mowing machine available to cut down and mow the rest of the weeds to prevent any more from falling into the fences. He and his men mowed the rest of the weeds along the fence line on Saturday afternoon, and he identified them as being lambsquarter, horseweeds and fox tail grass, which weeds varied in height from a foot to three feet, and stated they were growing very close to the fence. He did not see a steer reach through the fence and eat the weeds, but it was evident by looking at the weeds that they had wilted and fallen over the fence; that the stubs were there, and that some of the weeds had been eaten.

He also testified that he called Dr. Gaffin at Clinton, Mr. Gene Mossbacher of McLean County, Farm Adviser, and Dr. Marquardt, his veterinarian in Bloomington. He stated he had owned the cattle for sometime, and that they were in a healthy condition; furthermore, that no cattle died, other than the four testified to. He was unable to state as to what had been used to spray the weeds, but said that the solution used caused the weeds to die, wilt and drop down, and lean into the fences. He could tell that the weeds, which had been sprayed with the chemical, had been eaten.

There is no question but what the weeds had been sprayed with 2, 4-D, and that the spraying was done by Mr. Kellar, an employee of respondent.

There is further testimony by claimant that there were no weeds growing in the feed lot. He next described the lambsquarter, which he was able to identify, and stated that it had not rained from August 9 until the date of the death of the cattle. He then testified as to the weight of the cattle, and the price per pound on the various steers as of the date of their deaths. There seems to be no question about the value of the cattle, and consequently the damages established.

On cross-examination, claimant testified that he had been absent from his home for about ten days to two weeks, and that he returned home a day or two after the cattle had died. The steers were approximately two years of age, and he had had them since November of 1953. They were purchased as feeders, being mixed between Herefords and Angus. He was not positive as to the breed of the cattle, which died, and he did not have a veterinarian out to look at the cattle. He stated the cattle had been on feed since December 1, 1953. He further testified that the cattle were on full feed, ground ration, consisting principally of corn, balanced with a protein supplement, and three pounds of hay a day. The Angus cattle referred to had been on the legume grass pasture on the north side of Route No. 9, west of the feed lot. Claimant stated he had owned 210 head of the cattle since September, 1953, and the balance since February, 1954, and they were all out on pasture. He testified that the weeds were all growing on the right-of-way, and that there were no weeds inside of the fences. The fences surrounding the feed lot were four feet high with two strands of barb wire on top, and it would have been possible for some of the weeds to have been eaten, but he could not find the stubs. The weeds along Route No. 9 were sprayed for approximately 50 yards.

Dr. Emmett H. Marquardt, a veterinarian of Bloomington, Illinois, testified that he had been the veterinarian for claimant for many years; that, after being called by claimant, he went to his farm to examine the cattle, which were still living, and found the balance of the herd to be normal. He went to the rig’ht-of-way and examined the weeds, and determined that they had been sprayed with some material, because the tops had wilted, and the leaves were wilting, and some of the tall weeds had that characteristic crook where they started to die, and then grow again and come up, which was particularly true of the giant ragweed and the lambsquarter. Some of the weeds were hanging’ over the fence, and some drooped over the top of the fence. He stated he could determine that the lambsquarter had been eaten, being that portion which was through the fence, as the stump was still there; and, that the part of the weed toward the road was still intact. He went down and examined the terrain along the fences where the other cattle had been, and found lambs-quarter and giant ragweed, and the condition of the weeds similar to that to which he had previously testified.

As to his personal experience concerning the effect of 2, 4-D on cattle, he stated his only information was through what he had read, and what he had learned at association meetings. From what he had been able to learn, the spraying of 2, 4-D on weeds, such as lambs-quarter, creates a nitrate concentrate, which is very toxic, and this condition occurs within a week following a spraying. He further testified that he contacted Dean Graham of the University of Illinois, College of Veterinary Medicine, and that he received a letter from his Assistant, Mr. George T. Woods, which letter was marked exhibit A and was admitted in evidence. Professor Woods stated in the exhibit that 2, 4-D itself is not poisonous to cattle, but, when sprayed on certain plants, such as lambsquarter, it causes a high concentration of nitrate to develop, and that, therefore, it is possible for animals to be poisoned in this manner, and such cases have been reported by veterinarians.

A hypothetical question was then propounded to Dr. Marquardt. He was asked an opinion as to the effect of the spraying of a 2, 4-D solution on weeds, such as lambs-quarter, which were later eaten by cattle, and the cause of their subsequent death. This question was not objected to, and the witness stated that it was his opinion that the spraying was involved in the death of the cattle.

On cross-examination, these questions were propounded to him:

“Q. Do you. know what caused the death of these four steers that he lost last summer?
A. No.
Q. Did you see the dead steers?
A. No.
Q. Now you gave an opinion based on your experience that cattle could die from eating various weeds that had been sprayed with 2, 4-D, did you not?
A. That is right.
Q. Do you have any opinion as to how much of such weeds the cattle would need to eat in order to cause death?
A. No, I wouldn’t know.
Q. Did you ever see any cattle that had died from eating weeds that had been sprayed by 2, 4-D?
A. I had seen cattle that died of nitrate poisoning.
Q. Have you ever seen any that died from eating weeds that you knew had been sprayed with 2, 4-D?
A. Yes.
Q. Will you tell us where they were, and what they looked like?
A. Well they died suddenly.”

He was unable to testify from an outward examination whether the cause of death was from eating weeds sprayed with 2, 4-D, or some other cause. He was further cross-examined as to various articles and tests made by the U.S. Department of Agriculture as to the effect of 2, 4-D fed to cattle in grain. He said that he was familiar with some of the tests, and that he recognized that 2, 4-D was checked for its effect upon warm blooded animals before it was put on the market. His answer was that he understood it was nontoxic. He was unable to testify as to the spray that was used on the weeds adjoining claimant’s farm. The examination of the rest of the cattle on the farm was merely by observation. He concluded by testifying that cattle can get nitrates from other plants, particularly from Urea, a nitrate nitrogen compound, which is mixed with feed to fatten cattle. He did not have any knowledge as to whether or not claimant was feeding Urea, and stated that cattle sometimes die from an improper mixture of feed.

James Miller, an employee of claimant, testified that he was on the farm on August 16 and August 17; that he personally fed the cattle ground feed and supplement, and that this was also true as to the large ones in the dry feed lot. He was asked if he knew what Urea was, and he said he did not, but that he was feeding the cattle linseed pellets, molasses, ground corn and hay. To his knowledge there was no Urea in any of the feed, and the cattle in the west pasture were on grass, and were not fed a supplement or feed of any kind, except regular cattle salt. Respondent’s agents did not tell him they were going to-spray the weeds, and he did not know when they did it.. After the steers died, he checked the weeds around the feed lot, and the feed given to the cattle, but could not determine the cause of their deaths. He substantiated claimant’s testimony as to the weeds growing around the fence, and his observation as to their condition after they were sprayed.

On cross-examination he testified that the only other cattle, which had died in the field, did so in the late fall after a light frost, and these steers died from bloat. He was unable to identify any particular weed as being more prominent than others, and stated the weeds he referred to were a mixture, such as grow along the right-of-way lines, which have heretofore been referred to. He identified the lambsquarter as being a large weed with a few leaves, which would grow about 2% feet tall.

The next witness for claimant was Mr. Elliott Aussieker, who was working on the farm at the time the steers died. As to this witness, his testimony substantiated that of other witnesses for claimant. However, when asked whether or not he could tell if the cattle died from natural causes or not, his answer was “no”.

Mr. Edward M. Willens, testifying for respondent, stated that he was employed by the State of Illinois as a District Landscape Architect in District Ho. 3, Ottawa, Illinois, and that his territory covered LaSalle, Livingston, McLean, Grundy, Kankakee, Iroquois, Ford, part of Kendall, part of Putnam, and part of Champaign Counties; and, that claimant’s farm was in his territory. He testified he had been employed by the State of Illinois for more than 20 years, and that Mr. John Grayhack, Jr., was District Engineer of District Ho. 3. Witness was shown respondent’s exhibit No. 1, which was a letter written by the College of Agriculture, University of Illinois, by Prof. F. W. Slife, Asst. Professor of Agronomy. It was stipulated by the attorneys for claimant and respondent that this letter be admitted in evidence, the contents of which in substance are as follows: “There are several articles in the literature on the effects of 2, 4-D on warm blooded animals indicating that it is relatively nontoxic, and that large doses can be consumed without any material effect. There is no reason to believe that a 2, 4-D material put out by different companies would change this outlook. The basis of 2, 4-D material is the same, but the carrier varies slightly with the different companies. Since these carriers are reasonably nontoxic, then there is no basis for us to believe that any of them would be harmful.”

The witness further testified that respondent used spraying operations to control weeds and vegetation growing along the right-of-way, and that he had full charge of this within his district. He stated there were approximately three landscape crews, and that a daily record and report were submitted by each crew; and that Mr. Randolph M. Kellar, a maintenance worker under his jurisdiction at Odell, Illinois, was an operator of the spraying equipment. He further stated respondent had been carrying on the spraying operation of weeds for approximately six years, and that for the last four years had been spraying complete right-of-ways from the edge of the slab of the concrete to the right-of-way line with state owned equipment. For the past year this had been done with John Beam machines, which have a 300 gallon capacity, and test out at approximately 17 acres to a tank, the formula being 1 quart of 2, 4-D per acre; hence to each 300 gallons was added 4 gallons or 16 quarts of material. The nozzles of the machine were tested so that they would spray approximately one quart of the solution, per acre, which is required to get a good kill. In 1954 this-material and mixture was used in his District, being 4-gallons of 2, 4-D to 300 gallons of water, and this was the mixture and material used in the spraying operations along the right-of-way on Route No. 9 by claimant’s farm. The first two years 2, 4-D was used, a solution of 9 teaspoons of 2, 4-D to 3 gallons of water was applied with hand sprays. The next two years 2 Friend sprayers of 200 gallon capacity and about the same ratio of 2, 4-D and water were used.

The next witness called for respondent was Mr. Randolph M. Kellar, an employee of the State of Illinois, who was directly under the supervision of Mr. Ed Willens. He testified that he had worked for the State of Illinois for a little over two years; that he was acquainted with the right-of-way along Route No. 9 in McLean County, but could not say exactly where claimant’s farm was located. He testified as to the type of spraying equipment and mixture used along Route No. 9 in 1954, and stated he had used this mixture for one year, but that no one was notified when spraying operations were to take place along Route No. 9. He testified that no complaints were ever made about the spraying along the right-of-way having any ill effects on animals.

Mr. Cyril V. Burns, a Maintenance Field Engineer for District No. 3, and a graduate of Washington State College, testified that he was called by claimant to pome to his farm after the steers had died on about August 21, 1954. In examining the right-of-way line, he particularly noticed plain ragweeds and giant ragweeds, or horse-weeds. He stated that the chemical used was manufactured by the Riverdale Chemical Corporation, and that this same material was used in spraying over 600 miles of right-of-way. He further testified that the Riverdale 2, 4-D, which was being used, was not of different strengths,' and that he had read that the material was nontoxic, but was not testifying as an expert.

We are familiar with the rule as to circumstantial evidence that it is proof of certain facts and circumstances in a given case from which the jury may infer from connected facts, which usually and reasonably follow according to the common experience of mankind.

We are also cognizant of the fact that this Court, in the absence of a jury, is the tryer of the facts, and has a right to consider circumstantial evidence.

We are also familiar with the law in regard to speculative evidence in negligence cases, i. e., liability cannot rest upon imagination, speculation or conjecture, nor upon a choice between two views equally compatible with the evidence, but it must be based upon facts established by evidence fairly tending to prove them. Claimant has the burden of proof to establish his claim by a preponderance or greater weight of the evidence as to: (1)' Freedom from contributory negligence, (2) Negligence of respondent, and (3) Question of damages. He has the burden of proving all three propositions before he can recover. The negligence of respondent relied upon is the failure of respondent’s agents to notify claimant that spraying operations were taking place along the right-of-way outside of the pasture and feed lot where the cattle were being held, and the question of negligence in using the solution of 2, 4-D with a mixture of water as producing a toxic condition in warm blooded animals.

We are of the opinion that claimant has failed to prove his claim by a preponderance or greater weight of the evidence, either by direct or circumstantial evidence, by which we could reach the conclusion that the steers did not die from some cause other than the spraying of the Aveeds referred to along the right-of-way. The evidence claimant is relying upon is too speculative, and leaves too much to conjecture. As to the giving of notice, this, of course, would be very impractical. If respondent was required to give notice to all land owners or farmers that certain spraying operations were going to take place at a certain time, this would probably leave very little time within which to actually spray along the right-of-way.

There is professional testimony that 2, 4-D mixed with water in the ratio of four gallons of 2, 4-D ester to 300 gallons of water had been used in 1954 to spray approximately 600 miles of right-of-way. We can’t help but be impressed with the fact that respondent has experienced no other complaints by reason of such spraying operations with the solution. However, we are also aware that this testimony would be incompetent had an objection been made, and we feel sure that the Commissioner would have sustained the same, as the testimony would have to relate to the spraying of the weeds in question, which claimant’s witnesses believed were eaten by the steers, which died. We do know that professional expert testimony could have been offered, which would have given this Court some direct testimony as to the cause of death, had a post-mortem been performed, which we believe would have been the proper thing to do, and then the veterinarian, after making the post-mortem, could have testified as to his opinion of the cause of death.

There are a great many thousands of miles of state right-of-ways upon which spraying operations are carried on by respondent in the State of Hlinois, and, in view of the testimony of respondent’s agents as to the material used and the supervision for applying the solution, it is hard for us to believe that respondent would be guilty of using a solution, which would be injurious to warm blooded animals, with knowledge that a great many miles of right-of-way would be adjacent to feeding lots and pastures where animals are enclosed, and further realizing that animals are inclined to lean over the fence, and eat weeds and vegetation, particularly when pastures might be short.

If we were to allow a claim of this kind, based upon the type of proof offered, and without the advantage of professional testimony in regard to a post-mortem, we can conceive where the state would be subjected to innumerable claims running into many hundreds of thousands of dollars without having the protection, which we believe the state is entitled to, and which we believe to be necessary before claims of this type can be allowed by this Court.

The claim of George A. Pitts is, therefore, denied.


author: Wham, J.

text:
    (No. 4662
    Dixon Fruit Company, A Corporation, and United States Fidelity and Guaranty Company, A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 16, 1956.

    Dixon, Devine and Ray, Attorneys for Claimants.
    Latham Castle, Attorney General; Edward M. White, Assistant Attorney General, for Respondent.
   Wham, J.

Claimants have brought this action under the provisions of Chapter 23, Par. 372(a), Ill. Rev. Stats., (1953 State Bar Association Edition), to recover damages caused by an escaped inmate of the Dixon State School on September 18, 1954. The damages claimed are for the destruction and loss of use of a truck owned by the Dixon Fruit Company, and for the subrogation interest of the United States Fidelity and Guaranty Company by reason of the existence of an insurance policy insuring the truck against this loss. The amount sued for is a total of $1,935.00, of which the claim of the United States Fidelity and Guaranty Company is $745.00. There appears to be no serious dispute with respect to the facts involving the loss of the truck, inasmuch as a stipulation was entered into by and between the parties at the outset of the hearing, wherein it was stipulated in the presence of Mr, George Presbrey, the hearing officer, as follows:

“Mr. Presbrey: Let the record show that it is stipulated by and between the parties to the claim, the Dixon Fruit Company, 302 East River Street, Dixon, Illinois, is a corporation organized, and authorized to conduct its business, under the laws of the State of Illinois, and doing business at the aforesaid address.
Let the record further show that on the 18th day of September, 1954, one Adolph Plachaoff was an inmate of a charitable institution known as the Dixon State School, located at Dixon, Illinois, over which the State of Illinois had and has control; that on the aforesaid date, September 18, 1954, the said Adolph Plachaoff escaped from said institution, and, while he was absent from said institution at liberty, he stole a truck belonging to claimant, Dixon Fruit Company, said truck being a Ford truck and belonging to aforesaid claimant.
Let the record further show that the Dixon Fruit Company on September 18, 1954 was the owner of said truck; that said Adolph Plachaoff, while in the act of removing or attempting to remove and make away with said truck, and while it was in his possession, set fire to said Ford truck.
Let the record further show that claimant carried a policy of insurance with United States Fidelity and Guaranty Company, which was in full force and effect on September 18, 1954, and which provided partial but not complete coverage for loss or damage by fire. That said insurance company, according to the terms of the policy, paid to complainant $745.00. That claimant executed and delivered to United States Fidelity and Guaranty Company its subrogation receipt for the sum so paid, and said insurance company now stands subrogated to claimant to the extent of $745.00, and is entitled to receive said amount from the proceeds of this claim, if and when the same shall be allowed.
Let the record further show that on the 21st day of October, 1954, in compliance with the statutes of the State of Illinois, claimants presented to the Director of the Department of Public Welfare of the State of Illinois its claim for compensation for damages and loss herein complained of or which may hereafter be established by proof.
Let the record further show that the aforesaid claim has been investigated and processed by the Department of Public Welfare as required by statute and departmental rules and regulations.”

There are two questions raised by respondent respecting the claim; First, that claimants have failed to establish a compliance with the statute upon which their right to recover is specifically and exclusively predicated; and, Second, the amount of damages is questioned.

Dealing with the first question, it is respondent’s position that, since the Department of Public Welfare did not recommend an award to claimants, this Court lacks jurisdiction to determine the claim.

The particular statute involved reads as follows:

“372a. Claims for damages caused by escaped inmates of charitable, penal and reformatory institutions. § 1. Whenever a claim is filed with the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable, penal, reformatory or other institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare, or the Department of Public Safety, or the Youth Commission, as the case may be, shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department or Commission may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claims.”

Inasmuch as the effect of the statute and the jurisdiction of this Court to.proceed under the terms of the statute have been questioned, we deem it necessary to review the law both before and after the enactment of the statute in order to determine our power to proceed under it.

It is to be noted that the statute was originally enacted by the 59th Q-eneral Assembly, and was approved June 21, 1935. It has only been amended once, being in 1953, as above set forth. Prior to the enactment of the statute in 1935, the law of Illinois was clear that there could be no recovery against the State of Illinois for theft, damage to property, or injury to a person caused by an escaped inmate of a charitable or penal institution operated by the State of Illinois. This was" so, due to the fact that, in its operation of such an institution, the state engaged in its governmental capacity, and was not liable to respond in damages for the negligence of its officers, agents or employees, nor for the acts of the inmates. This was announced in the decision of Bangs vs. State of Illinois, 8 C.C.R. 508, involving theft of property by an inmate of the Dixon State Hospital, who allegedly escaped by reason of respondent’s negligence.

At the time this decision was rendered, the Court of Claims was operating under the 1917 Act, Chap. 37, Secs. 462-475, Ill. Rev. Stats., (1933 State Bar Association Edition), and the doctrine of governmental immunity was in full effect.

Shortly after the decision in the Bangs case, opinion filed on April 9, 1935, the original statute, under designation of Senate Bill No. 247, was passed and approved on June 21, 1935.

The original statute read as follows:

“55(6). Damages by escaped inmates of charitable institutions — Jurisdiction of Court of Claims. Section 1. Whenever a claim is filed with the Department of Public Welfare for payment of damages to property, or for damages resulting from property being stolen, heretofore or hereafter caused by an inmate who has escaped from a charitable institution over which the State of Illinois has control while he was at liberty after his escape, the Department of Public Welfare shall conduct an investigation to determine the cause, nature and extent of the damages inflicted, and if it be found after investigation that the damage was caused by one who had been an inmate of such institution and had escaped, the said Department may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have power to hear and determine such claims.”

The enactment of this statute, following so closely in point of time the decision in the Bangs case, leads us to the conclusion that the Legislature intended to avoid the bar of the doctrine of governmental immunity in such cases without entirely eliminating the doctrine.

Shortly after the enactment of this statute, the claim in the Bangs case was refiled under No. 2746, 10 C.C.R. 127. The Court dismissed the case on the grounds that claimant had not brought himself within the aforementioned statute, inasmuch as no investigation or recommendation had been made by the Department of Public Welfare. In passing on this question, the Court stated at page 129:

As we view the matter, the statute contemplates the filing of a claim in the first instance with the Department of Public Welfare, and an investigation by said Department. If, as the result of such investigation, the Department finds that the damage was caused by an escaped inmate of a charitable institution over which the State had control, and while said inmate was at liberty after his escape, the Department may, but is not required to, recommend to this Court that an award be made to the injured party. Upon such recommendation being made, and not until then, has this Court any jurisdiction to consider the matter.”

It is to be noted in the above case that there was no action by the Department of Welfare whatsoever. Neither an investigation, nor a recommendation had been made by the Department. In the instant case, however, an investigation was made, but no specific recommendation was made. If we were to follow the Bangs case with respect to the requirement that a favorable recommendation of the Department of Welfare is necessary before this Court acquires jurisdiction, we would then be compelled to dismiss the instant case for lack of jurisdiction. This would be so even if the state did not raise the question initially, but rather did so by brief. We have held that even where the state fails to raise the question of the Court’s jurisdiction, such question can and must be raised by this court on its own motion. Sanders vs. State of Illinois, 19 C.C.R. 181; Flynn, Et Al vs. State of Illinois, 19 C.C.R. 134; Atkinson vs. State of Illinois, 21 C.C.B. 429.

We have been unable to find a case raising the precise question involved herein. The stipulated facts in this case reflect that an investigation was made, and that it was determined with sufficient certainty, to at least satisfy respondent, that an escaped patient of the Dixon State School stole a motor vehicle, and set fire to same. The facts further reflect that a claim was filed with the Department of Public Welfare on the 21st of October, 1954, and that the claim had been investigated and processed by the Department of Public Welfare, as required by the statute and the Departmental rules and regulations. Everything has been done, and is in order, except that the record is silent as to the specific recommendation made by the Department.

We do note, however, a portion of the Departmental Report consists of a letter to the Director of the Department of Public Welfare, signed by the Superintendent of the Dixon State School, which letter is written in the form of an answer to the complaint. This letter in no way recommends either the allowance or denial of the claim. It states that a patient of the Dixon State School admitted setting fire to the truck on September 18,1954. The letter also expresses an opinion with respect to the damage done to the truck. This letter was submitted to the Attorney General by the Director without comment. It, therefore, appears that the Department of Public Welfare has had an opportunity to make a recommendation one way or the other, but for some reason chose not to do so.

Did the Legislature intend the Department of Public Welfare to be the final arbiter of claims of this kind, and that by mere inaction or affirmative disapproval it could put an end to such claim? We think not, as a careful reading of the statute will reflect. The statute provides that the Department shall make an investigation and “may recommend to the Court of Claims that an award be made to the injured party, and the Court of Claims shall have the power to hear and determine such claim”. If the Legislature intended the Department 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 that 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 such favorable recommendation, the Court of Claims could not hear and determine the claim itself. We, therefore, hold that the case of Bangs vs. State, 10 C.C.R. 128, insofar as it conflicts with our expressed views on this point, is not to be followed. We find that the Court does have jurisdiction to hear and determine this claim.

In exercising our jurisdiction over these claims, we are compelled to define the test that should be applied by us in determining and hearing these claims. It is to be noted that the statute makes no expressed provision in this regard. It merely states that “The Court of Claims shall have the power to hear and determine such claims”.

Since the 1945 amendment to the Court of Claims Act, the doctrine of governmental immunity is no longer applied to claims against the state. Subsequent to the passage of the 1945 amendment, a case arose in this Court wherein an escapee from the Illinois Security Hospital, Menard, Illinois, an institution for the insane, operated by respondent, brutally assaulted claimant in the case of Malloy vs. State of Illinois, 18 C.C.R. 137. Claimant predicated her case upon negligence, contending that the state negligently permitted the inmate to escape. The claim was allowed. In the event the Court had failed to find negligence, there would have been no recovery, since the state is not an insurer.

If this Court were to apply an absolute liability test with respect to those actions coming under the statute involved herein, and yet require negligence to be proven in cases involving escaped convicts, patients, etc., wherein stolen property was not involved, it would be to confess a very anomalous situation in the law, and one which would, on its face, appear to be quite unreasonable.

By the 1953 amendment to the statute involved herein, the Legislature charged the Department of Welfare, the Youth Commission and the Department of Public Safety with the responsibility of investigating only those claims involving stolen property by escaped inmates. They removed the Departments’ and Commission’s jurisdiction to investigate those cases involving damage to property not stolen.

With respect to those claims involving stolen property, of which this is one, we believe the Legislature intended to expedite the handling of such claims, since the recovery of stolen property, and the investigation thereof are matters calling for the exercise of the state’s police power, and the facts surrounding such crimes would, in many instances, be exclusively within the knowledge of the state. On the other hand, it is not necessarily a state function to investigate damage to either person or property of a tortious nature and not involving a crime. We think this is the reason the Legislature removed from the 1953 amendment the power of the Departments and Commissions to investigate claims for damage to property not stolen, theretofore contained in the statute, and retained that portion of the original statute giving power to the Department to investigate claims involving damages resulting from property being stolen.

We believe the Legislature enacted the 1953 amendment to the statute in the light of the present law governing the Court of Claims and the decisions under that Act, and intended that the Court of Claims should apply much the same test in determining claims under this statute, as the Court would apply to a case brought before it for damages caused by an escaped inmate to the person or property of another. 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.

Addressing ourselves to this question in the instant case, we have read the record, and find that Adolph Plachaoff, the escapee, had a record disclosing that he was a mental defective, and had been so committed since 1948. The testimony disclosed that he had a history of previous escapes and of incendiarism, all of which was known to respondent prior to the escape. Dr. Samuel J. Lipnitzky, a psychiatrist of the Dixon State School, testified on behalf of respondent that Adolph Plachaoff was kept in a cottage, which was not a maximum security cottage. He was not restricted, and was free to go and come by himself. This cottage was located in such a position where it would not be difficult for him to escape, he being only subject to detection by one police car patrolling the grounds. He had escaped prior to the instance involved herein. He had on July 8, 1954 been reported as being abusive to patients and employees, and was placed for some while in a maximum security cottage because of misbehavior. Dr. Lipnitzky further testified that patients of his type are no longer admitted to the Dixon State School.

It appears to us that respondent should have exercised more restrictive control over the movements of this particular patient. It does not seem reasonable to us that a known mental defective, with an exhibited tendency toward incendiarism, should have been allowed to wander at will without supervision in an institution wherein there were no restraining walls or other means of controlling his movements. This is especially so in view of the institution’s location with respect to the City of Dixon, wherein the property of many persons would be jeopardized by the activities of such a patient.

It is, therefore, our finding that respondent was negligent in failing to take further measures in controlling the activities of this particular patient, and should, therefore, respond in damages. Malloy vs. State, 18 C.C.R. 137.

With respect to the question of damages, it is claimant’s contention that the truck was a total loss, and that its value at the time of the loss was $1,600.00.

From the record in this case, there does not appear to be a great difference of opinion as to the value of the truck, owned by the Dixon Fruit Company, prior to the fire. On December 23, 1954, Louis Berrettini, the manager of the Dixon Fruit Company, sent a letter to the Superintendent of the Dixon State School, in which he set forth the value of the truck, including the chassis and body. Respondent, State of Illinois, introduced this record as part of its Departmental Report. The total value of the truck is set forth at $1,415.00.

Claimant contends that the value of the truck prior to the burning was $1,600.00, and contends that Mr. Berrettini’s opinion testimony offered at the hearing was undisputed in this respect. It is stated that, when he gave the value of the truck at the request of the Dixon State School authorities, he was referring to Blue Book value. Nothing appears in the letter submitted to Mr. Wallace, Superintendent of the Dixon State School, concerning Blue Book value. It is stated in the letter: “Value of truck prior to fire: Chassis $815.00, Body $600.00, total $1,415.00”. We accept this first estimate given by Mr. Berrettini. If Mr. Berrettini had determined that the Blue Book value was less than the actual value, it seems reasonable to us that he would have made some statement to that effect in the letter to Mr. Wallace.

The evidence established that the cost of repair would have been greater than the value of the truck. Claimant purchased a new truck, and received a total trade-in allowance for the salvaged truck in the amount of $530.62.

The applicable rule regarding damages is stated in Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 6, p. 43, Sec. 3414, “Where a motor vehicle is damaged beyond repair, the measure of damage is the difference between the market value before the accident and the value of the wreckage ’ ’.

In determining the value of the wreckage, respondent contends that the trade-in allowance should be considered as the fair cash market value of the salvaged truck. In considering this question, we cannot close our eyes to the fact that a damaged vehicle will in almost every instance command more value from the dealer on a trade-in for a new vehicle, than it would have, if sold for cash in the open market.

The courts of states other than Illinois have dealt with this question, and the cases are conflicting. Cases holding that a trade-in allowance can be used to establish value of the damaged vehicle are: White vs. Halliburton Oil Well Cementing Company, (1938) La. App. 183 So. 537; Pender vs. Bonfanti, (1943) La. App. 13 So. (2d) 105; Carkuff vs. Geophysical Service, (1938) La. App. 179 So. 490; Boullion vs. Bonin, (1940) La. App. 2 So. (2d) 535; and, Shreveport vs. Vicksburg S. & P. R. Co., 167 La. 157, 118 So. 872.

On the other hand, cases, which distinguish between salvage value and trade-in value, hold that a trade-in value is not a proper basis to establish value of the wrecked vehicle. These cases are: Carnes vs. Ditzenberger, (1933) 163 Okla. 146, 21 P. (2d) 756; Urquhart vs. Marty, (1938) 61 R.I. 102, 200 A. 456.

We believe that a reasonable rule for this Court to follow would be one, which would allow evidence of a trade-in allowance to be considered in connection with all the facts and circumstances bearing on the question in determining the market value of the damaged vehicle, but that such evidence should in no way be conclusive.

The evidence concerning the trade-in allowance in this case is of some value in aiding us to determine the market value of the salvage. At least we may presume that it was worth no more than the $580.62 allowed. How much less it was worth is a difficult question to determine with absolute accuracy.

Prom the evidence, we must assume that the truck was not capable of being repaired economically. Consequently, its only value on the market was as junk and whatever parts might be salvaged therefrom.

The burden of proof on the question of damages as stated by the Supreme Court of Illinois in N. V. C. & St. L. R.R. vs. Transit Lines, 408 Ill. 336 at page 340 is, “The plaintiff has the burden of establishing the damages, which result from the defendant’s tortious act, but, insofar as it may be contended that the damages might or should have been minimized by taking steps to reduce the resulting damages, the burden of proof rests upon the defendant”.

The court there rejected a rule, which would have required plaintiffs, “In cases involving destruction of property to have experts qualify to prove to what use the remaining material might be made, and determine whether any value existed over and above the cost of transportation, and many other factors, which would place upon a plaintiff in a law suit involving the question of damages to personal property an intolerable and unnecessary burden”.

The record in this case contains photographs of the truck, and considerable testimony concerning the damage thereto. Although there is no direct evidence that the salvage had any value, we have arrived at a value of $300.00 on it.

We realize this is to some extent speculative, but, since we are the finders of the facts, as well as the judges of the law, we have arrived at this amount taking* into consideration the record as to the condition of the truck, and the fact that the salvage did command a rather substantial allowance on a trade-in basis.

It would, therefore, appear that the total damage to the truck amounted to $1,115.00.

The claimant, Dixon Fruit Company, also contends that it is entitled to a sum for the loss of use of the truck during thirty three days. Claimant’s contention is based upon the fact that it originally intended to repair the truck, but some two or three weeks later found that the repairs could not be made, and was not able to replace the truck until thirty three days subsequent to the date of the accident. Claimant did not rent an additional truck, but contends that $15.00 a day should be allowed due to the extra wear and tear, and maintenance of its other trucks, which were used on a double duty basis to take the place of the truck which was burned.

Respondent calls to the attention of the Court the well known rule of law restricting recovery of damages for loss of use to those cases where the motor vehicle is capable of being repaired. This rule has been announced in Illinois in Crossen vs. C. & J. E. Ry. Co., 158 Ill. App. 42, and in McDonell vs. Lake Erie & Western Railroad, 208 Ill. App. 442 at page 450. This rule has been followed in other states, German vs. Centaur Lime Company, Mo. App. 295 S.W. 475; and, Johnson vs. Thompson, 35 Ohio App. 91, 172 N.E. 278; 169 A.L.R. 1074 at 1093.

Claimant contends that, even though the truck was replaced, it was necessary to first determine whether or not it could be repaired, and that about three weeks elapsed before this determination was made, and a total of thirty three days elapsed from the date of the accident to the time a new vehicle was procured.

Whatever the rule might be with regard to recovery of damages for loss of use in this situation, it is inescapable to us that the record does not reflect any evidence to show the value of any use to the claimant of the vehicle damaged, or to show that it suffered any damage through the deprivation of the use of the truck. Claimant admits that it did not lease another vehicle, that it lost no business, but merely spread the load to its other trucks.

We are unable to agree with- claimant that the wear and tear and other expense distributed through its fleet of trucks would be the basis for awarding damages due to the loss of its use. If the truck had not been burned, it would have been subject to the same wear and tear and expense of operation that was spread throughout the balance of claimant’s fleet of trucks.

A case fairly close on this question is Balfour vs. Dohrn Transfer Company, 328 Ill. App. 163, where an owner of a truck and trailer, which was damaged in an accident, was held not entitled to recover for the loss of use of the vehicle during the time it was repaired, where the owner owned two truck and trailer combinations, but only one was in operation at one time, and the owner made no effort to secure a substitute for the one that was damaged.

The fundamental reason for allowing damages for loss of use in some cases is to compensate the injured party for financial loss. If no financial loss can be established, then there is no reason to allow damages for loss of use. We, therefore, conclude that claimant is not entitled to any damages for loss of use claimed.

The claimant, Dixon Fruit Company, has received from claimant, United States Fidelity and Guaranty Company, the sum of $745.00 under the insurance policy, and has signed a subrogation receipt for such sum. It is, therefore, the judgment of this Court that claimant, United States Fidelity and Guaranty Company, shall receive the sum of $745.00, and claimant, Dixon Fruit Company, A Corporation, shall receive the sum of $370.00.


author: Tolson, C. J.

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

      Opinion filed April 20, 1956.

    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 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.

Successive awards have been made by the Court from 1942 to and including December 1, 1954, and the matter is now before the Court for an award to and including February 1, 1956.

The record consists of a verified petition, supported by original receipts; and, waivers of claimant and respondent to file statement, brief, and argument, which were allowed in this case.

The petition alleges that claimant is still bedfast, and requires daily medical and nursing care. It further discloses that claimant has incurred expenses, in the following amounts:

1. Nursing $1,1(11 7.3
Room and board for nurses...................______________________ 747.25
2. Drugs and Supplies 7.69 nn
3. Physician 1,R33 37
4. Hnspifal 1,073 33
5. Miscellaneous ...................................... .................. 141.82
$5,136.17

It appears that the Court of Claims has reserved jurisdiction of this case from year to year to determine the future needs of claimant for additional care, and it further appears to this Court that the amounts so stated were necessarily expended for her medical care.

An award is, therefore, made to claimant for medical, hospital and nursing care from December 1, 1954 to and including February 1, 1956, in the amount of $5,136.17.

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


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    (No. 4598
    Adeline Haynes, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

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

Claimant, Adeline Haynes, a woman 37 years of age and a resident of Chicago, Illinois, brings this action to recover the sum of $7,500.00 for injuries sustained by her on August 9,1953, when she fell, fracturing her right leg, while walking upon a nature trail in Horseshoe Canyon, Starved Rock State Park, at a point between the boat landing and Horseshoe Falls. She was present in the park attending an outing under the auspices of the Romping Earls Social Club, had paid the statutory entrance fee, and was, therefore, an authorized patron or park visitor.

In her amended complaint she alleged, under oath, that respondent negligently maintained a wooden stairway on the trail in a worn-out, defective, rotten and unsafe condition, and that she fell while walking thereon. Respondent filed no answer, and, under Rule 11 of this Court, a general denial of the facts set forth in the amended complaint is considered as filed.

The evidence offered by claimant as to the alleged place of falling referred to a series of three logs embedded in a rough, sandy nature trail sloping downward toward the bottom of the canyon, such logs being placed one above the other along the trail in stairstep fashion.

Two photographs, claimant’s exhibits Nos. 1 and 2, taken by her attorney some nine months after the happening of the accident, were admitted into evidence with the understanding that they should not be held to portray the condition of the logs with respect to decay on the day of the accident, due to the length of time elapsing between the happening of the accident and the taking of the photographs. These exhibits were admitted for the purpose of portraying the place on the trail where claimant contends she fell, and to show the general manner in which the logs were placed.

From the evidence it appears that claimant, in the company of several other women, after taking a boat trip to the Horseshoe Canyon landing, started down the regular trail, intending to go to Horseshoe Falls. This was a rough nature trail, running through a wooded area of clay and sand, and subject to much erosion, with tree roots extending out onto the trail.

Claimant testified that she was watching the trail, as she walked along, following approximately one step behind one of her companions, a Mrs. Wright, and was in turn being followed by Mrs. Lillian Smith, another companion.

All three women testified that they came to the place on the trail shown in claimant’s exhibits Nos. 1 and 2, that the logs were placed in a stairstep arrangement, one above the other, and that it was the first set of logs that they came to after leaving the boat dock.

According to their testimony, Mrs. Wright had gone down the three logs without incident, and claimant, following one step behind, had gone down the first two logs, stepped on the bottom one and fell, breaking her leg. Claimant testified that, as she came along the path, she saw the logs, but noticed nothing unusual about them, and that, when she stepped on the third log, a “piece broke off, and I fell”. When questioned by the Commissioner regarding the condition of the steps, claimant stated that the piece of the log, which was broken off, was a little less than a foot in length, and about two inches thick. She testified that someone told her that it was the piece, which had broken off of the log, but did not remember who that person was, or what was done with the piece of wood. She described the piece of wood as being rotten.

In identifying the particular place where she fell, she stated that claimant’s exhibits Nos. 1 and 2 were pictures of the place, and that the photographs correctly portrayed the condition of the area, with the exception that the bottom log shown in the photographs was more rotten than was the log on the day of the accident, and was “broken off more, and decayed”.

Mrs. Lillian Smith, claimant’s witness, testified that she saw claimant fall, as she stepped upon the log. She described the third log as being rotten and “very bad”. She, too, identified claimant’s exhibits Nos. 1 and 2 as being photographs of the logs where the accident occurred. She also testified that she found a small rotten piece of wood along the trail near where claimant fell. She pointed out on claimant’s exhibit No. 1 a place on the right side of the lowest log, concluding that it was the place from which the piece of wood was broken. When questioned concerning the chip of wood, which she saw, she stated she noticed it, because it was “kind of a large piece”.

Claimant’s witness, Mrs. Willie Wright, described the bottom log as being rotten. She stated that, as she approached the logs, she saw them, and noticed nothing unusual about them. Mrs. Wright did not see the piece of wood that was broken off of the log, and stated that she was so excited after claimant fell she “did not know much of anything”.

Mr. Effert Brown, claimant’s witness, testified that he was the secretary of the Romping Earls Social Club, and had accompanied claimant and the other women to the boat landing. He and a Henry Brown were waiting there for them to go to and return from the Falls. About ten minutes after they left, Mrs. Smith came back and informed them that claimant had been hurt. Both of the men went to the place where claimant had fallen, and carried her back to the boat landing.

He testified on cross-examination that he did not descend any steps to go to the place where he found claimant. When questioned by the Commissioner, he stated that, when he and Mr. Henry Brown picked claimant np, he did not recall walking up any steps.

Respondent’s evidence consisted of testimony with respect to the condition of the trail on the day following the accident. Miss Betty Hilliard, at that time employed as Park Naturalist at Starved Rock State Park, testified that, on the afternoon of the accident, she learned of claimant’s injury, and went to the boat landing where claimant was sitting in a chair. She learned generally from her that she, claimant, had fallen on a step on the path leading from the boat landing to Horseshoe Falls. She transported claimant in her automobile to the place where the buses chartered by the Romping Earls Social Club were located. Claimant determined to return to Chicago rather than go to the hospital at Ottawa, and left before any further information could be learned with respect to the exact location of her fall.

The afternoon of the accident Betty Hilliard made a report to Mr. C. S. Martin, Custodian of the Park, after interviewing claimant, and the next day both Mr. Martin and Miss Hilliard, along with Walter Gorski, a trail maintenance man, conducted an inspection of the trail from the boat landing to the Falls.

They each testified in direct contradiction to claimant and claimant’s witnesses that the set of three logs shown in claimant’s exhibits Nos. 1 and 2 was not visible on the trail the day after the accident. They further testified that on that date only one set of log steps was visible, and that such set of log steps was not in a rotten condition. Mr. Martin also testified that, approximately three weeks prior to the accident, he had inspected this same trail, and did not see the condition portrayed by claimant’s exhibit No. 1.

On cross-examination, Walter Gorski testified that, in April of 1953, some three or four months prior to the accident in question, he had replaced one or two of the logs shown in claimant’s exhibits Nos. 1 and 2, which logs had become exposed by reason of the sand on the trail washing away. After replacing them, he “filled them in with sand”.

Betty Hilliard testified that she took photographs of all steps and logs upon the trail that were visible the day following the accident. She identified respondent’s exhibit No. 1 as a series of photographs, one of which portrayed the only set of logs visible that day, and stated that it was a completely different set of logs than that shown in claimant’s exhibits Nos. 1 and 2. It is obvious from an inspection of the photographs that such is the case.

Both sets of logs were described by respondent’s witnesses as being what is called “riff-raff”. They testified that the purpose of riff-raff was to hold down erosion of the trail. These witnesses testified that the erosion of the sandy trail was of such severity that from time to time over a period of some weeks or months the various sets of logs (or riff-raff) would be alternately covered and uncovered by loose sand, because of heavy rains washing the trail. It appears that this method of combating erosion had been instituted by the C.C.C. several years prior to the accident.

At the hearing, the Commissioner sustained an objection to respondent’s exhibit No. 1 on the ground that it was not shown to be a photograph of the scene of the accident. We believe this photograph is admissible, inasmuch as it is relevant and material to one of the questions in dispute, namely, whether or not the set of logs shown in claimant’s exhibits Nos. 1 and 2 was the location of the accident, and was visible on the date in question. Inasmuch as repondent’s exhibit No. 1 has been identified as a photograph of the only logs visible at the time of the inspection on the day after the accident, and further that the logs shown therein are clearly a different set of logs than that shown in claimant’s exhibits Nos. 1 and 2, we hold that respondent’s exhibit No. 1 is relevant and material to the issues, and herewith reverse the ruling of the Commissioner, and admit such exhibit into evidence.

Mr. Raymond J. Carroll, claimant’s attorney, testified that, on November 6, 1953, three months subsequent to the accident in question, he went to the park, and observed two sets of logs on the trail leading from the boat landing to the Horseshoe Falls. The first set of logs was located 150 yards from the boat landing, and was in good condition.

The logs shown in claimant’s exhibits Nos. 1 and 2, according to Mr. Carroll, were located 250 yards further down the path from the first set of logs, or a distance of 400 yards from the boat dock. He further testified that the bottom log of this set was rotten. Mr. Carroll took the photographs marked claimant’s exhibits Nos. 1 and 2 in May of 1954, some nine months after the accident occurred, and some six months after he observed the logs for the first time, while conducting his investigation. These photographs were the first and only ones taken by anyone on behalf of claimant.

From an analysis of the testimony, it is quite apparent that there is a direct conflict between claimant and respondent with respect to the existence of the particular defect on the trail, which allegedly caused the accident. It is fundamental that, in cases such as this, involving alleged defects in roads, pathways, and sidewalks, claimant must, in order to recover, prove the following elements :

1. The existence of the alleged defect, its nature and size.
2. Actual or constructive notice to respondent of such defect.
3. Negligence in causing or failing to repair the defect.
4. The exercise of due care and caution on the part of claimant.
5. An injury proximately resulting from the alleged defect and negligence.

In this type of cases, as in all others, this Court must act not only as judges of the law, but also as finders of the facts. We must weigh the testimony to determine whether or not claimant has borne the burden of proof.

After having considered the testimony and the inferences arising therefrom, we have concluded that claimant has failed to sustain the burden of proving by a preponderance of the evidence the necessary elements of her cause of action, as alleged in her amended complaint.

The evidence with respect to the alleged place where claimant fell, and the existence of the defect, which allegedly caused the injury, is unsatisfactory and in conflict.

We note that claimant and her two companions testified that the accident occurred on the first set of logs encountered after leaving the boat dock. Mr. Carroll’s testimony was that the set of three logs first encountered on the path from the boat dock were in sound condition in November, some three months subsequent to the accident. The testimony of respondent was that on the day after the accident the only set of logs visible along the pathway was that portrayed in respondent’s exhibit No. 1, which was in good condition. These logs portrayed in respondent’s exhibit No. 1 appear, from the photograph, to be in good condition.

If this testimony is correct, it necessarily follows that claimant and her witnesses were mistaken when they placed the scene of the accident on the set of logs portrayed in claimant’s exhibits. Nos, 1 and 2, and in their characterization of the log, upon which claimant allegedly fell, as defective. Had the accident occurred on the logs portrayed by respondent’s exhibit No. 1, there could be no recovery, inasmuch as no condition existed thereon, which would constitute a negligently maintained defect on a nature trail.

It is likewise true that, if claimant and her companions are correct in describing the place of the accident as being on the log shown in claimant’s exhibits Nos. 1 and 2, then all of respondent’s witnesses were mistaken, when they testified that such logs were not exposed on the day after thé accident.

If we were to allow a recovery based on the record in this ease, we would have to accept claimant’s testimony in its most favorable aspect over that of respondent, and resolve the inferences arising therefrom in claimant’s favor. This we cannot do. After a careful reading of the entire record, we have been unable to find any valid reason for according more weight to the evidence offered by claimant than that offered by respondent; nor can we say that the inferences, which may legitimately be drawn from all of the testimony, physical facts, and circumstances, weigh more heavily for claimant than for respondent. The strongest .position for claimant that this record could allow would be that the evidence is evenly balanced.

Counsel for claimant contended on oral argument that claimant’s evidence regarding the defect was positive testimony, namely, that such defect existed; whereas respondent’s testimony was negative, since it denied the existence of the defect, and argued that, because of this, the Court should give more weight to claimant’s testimony than to respondent’s.

In Volume II, Wigmore on Evidence, Sec. 664, it is stated with respect to this question:

“Courts have often been asked to exclude testimony based on what may be called negative knowledge, i.e., testimony that a fact did not occur, founded on the witness’ failure to hear or see a fact, which he would supposedly have heard or seen if it had occurred.
Yet there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred. . . .
Nevertheless, from some source not traceable, there lingers in the judicial mind, in many quarters, an antiquated notion that negative impressions are not so probative as affirmative impressions; and a charge to the jury often embodies that notion, where the witnesses differ. The truth is that the conditions affecting correctness and fullness of observation are so numerous and varied that the one under consideration has a negligible or minor status. Modem psychology sneers at the law's cmde assumption that the complexities of human perception can be handled by some mies of thumb about negative testimony or the like.”

The distinction between positive and negative testimony has been the subject of an annotation at 140 A.L.R. 530. As was stated at page 531 of the annotation:

“The slightest reflection will convince one that the positive or negative character of testimony does not necessarily depend upon the form in which the witness couches his answer.
The mere fact that a witness makes an affirmation in a negative form does not change its character as positive evidence . . .
‘Where a witness affirms that a fact occurred, and another who had apparently sufficient opportunity to know, and who declares he was paying attention denies that it occurred, it is generally held not to be a case of positive and negative testimony, but of positive testimony on both sides.’ 20 Am. Jur. 1041, Evidence, $1188.
‘Ordinarily, when one witness testifies positively that a certain thing existed or happened, and another witness, with equal means, of knowing, testifies that the thing did not exist or happen, the so-called negative testimony is so far positive in its character that a court could not say that it was entitled to less weight than the affirmative testimony.’ Riley vs. Northern P. R. Co. (1908) 36 Mont. 545, 93 P. 948.”

The Illinois Courts have long followed this line of reasoning, and to this effect see Rockwood vs. Poundstone, 38 Ill. 199; Frizell vs. Cole, 42 Ill. 362; Styblo vs. McNeil, 317 Ill. App. 316 at pp. 325-326; and, Lang vs. Pennsylvania R. Co., 342 Ill. App. 335 at 342.

We believe that the testimony of respondent’s witnesses, to the effect that the defect described by claimant did not exist on the day subsequent to the happening of the accident, falls within the realm of positive testimony. The respondent’s witnesses were directing their attention to the trail in an effort to discover a defect in the path upon which claimant claimed to have fallen. Respondent’s exhibit No. 1, consisting of a series of photographs taken by respondent’s witness, Betty Hilliard, in conducting this investigation, contains several pictures of ordinary steps, board walks, and, most significantly, a series of three logs placed in the trail of the same type complained of by claimant, although admittedly a different set. This photograph, in particular, substantiates the fact that respondent’s witnesses were making an investigation of, and directing their attention to the existence of all possible steps, logs, and walks upon which claimant might have fallen. This, coupled with their definite testimony that the logs shown in claimant’s exhibits Nos. 1 and 2 were not visible on the day after the accident in question, renders their testimony positive in character under the rule. Therefore, claimant’s contention that this Court should not give equal weight to respondent’s testimony as to claimant’s is not well taken.

It is, therefore, our conclusion that claimant, having failed to prove her ease by a preponderance or greater weight of the evidence, is not entitled to a recovery under the law of this state. The claim is, therefore, denied. ■

In view of this determination, we deem it unnecessary to prolong this opinion further by considering the question of whether or not claimant’s evidence would, if standing alone and .unopposed, be sufficient to establish liability in this case. The fact that we have not passed on this question should not be taken as an implication that such evidence would or would not, standing alone and unopposed, be sufficient to support the allowance of the claim.


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    (No. 4621
    Armstrong Cork Company, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.
    Arthur H. Renier, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant’s amended complaint is predicated upon contract No. 67557 entered into with the State of Illinois on August 12,1952 in an amount of $8,650.00 for labor and materials furnished the Illinois State Penitentiary,. Menard Branch, Menard, Illinois. A' copy of the contract, is attached to the complaint, marked exhibit No. 1, and' made a part thereof.

No answer was filed by respondent, so a general traverse will be considered, in accordance with Rule 11 of this Court. Abstracts, briefs, and arguments were waived, and no testimony was offered by respondent at the time of the trial.

In its complaint, claimant also sought an award for damages, interest and attorneys’ fees, in addition to the balance due under the contract. However, at the time of the trial, claimant waived any right to such damages, interest and attorneys ’ fees.

At the hearing, a stipulation was entered into by the respective parties, through their attorneys, Mr. Eenier representing claimant, and Latham Castle, Attorney General of the State of Illinois, by Bernard Genis, Assistant Attorney General, for respondent.

The stipulation follows the allegations and the exhibits attached thereto, and is substantially as follows: The 67th General Assembly of the State of Illinois adopted Senate Bill No. 771, authorizing the making of certain repairs and replacements of equipment at the Illinois State Penitentiary, Menard, Illinois, and appropriated funds for said repairs.

On August 12, 1952, a valid contract, identified as No. 67557, was entered into by claimant and respondent, which was duly approved by the Governor of the State of Illinois. The work performed by claimant in connection with the contract was completed in accordance with the contract, plans and specifications, and was accepted by" the Division of Architecture and Engineering. The Division of Architecture and Engineering recommended payment to the Department of Public Safety, as indicated in claimant’s exhibit No. 2, a letter, dated February 10, 1954, written by Mr. Louis H. Gerding, Supervising Architect for the Division of Architecture and Engineering, acknowledging the completion of said project.

The contract price under the terms of the contract was the sum of $8,650.00. No part of said contract amount has been paid by respondent, and the entire sum of $8,650.00 remains unpaid.

The records of the Auditor. of Public Accounts and of the Department of Finance, Central Accounting Division, of the State of Illinois, show the following: The contract for the amount above stated; the date contract was encumbered, i.e., August 31, 1952; the unencumbered balance of said appropriation in the amount of $141,-310.40; the unexpended balance of said appropriation (lapsed) as of September 30, 1953 in the amount of $49,586.46. There were sufficient funds in the appropriation to pay the amount due to claimant under said contract at the time the contract was made, and there were also sufficient funds in said appropriation available on September 30, 1953 to pay the amount due on said contract. The appropriation lapsed on September 30, 1953, at which time there was an unexpended balance of $49,586.46. The amount due claimant under the contract was not paid, because said appropriation had lapsed before properly certified vouchers were forwarded to the Auditor of Public Accounts for payment.

The only testimony offered by claimant was that of Mr. William B. Nekirk, an employee of claimant, whose testimony substantiated the facts contained in the stipulation and exhibits admitted in evidence.

No evidence was offered by respondent.

There seems to be no dispute as to the facts set forth in the complaint, and the reasons why the payments were not made in accordance with the contract.

This Court had occasion to pass upon a similar question in the case of White Electric Company, A Corporation, vs. State of Illinois, case No. 4663, opinion filed on November 8, 1955, wherein a motion was filed by respondent to strike the complaint, because the appropriation therefor had lapsed before final payment. However, it was clear that the particular appropriation was encumbered with the amount • due under the contract, and that the funds were available at the time the contract was entered into. This Court held, in overruling respondent’s motion, that, if the funds were available at the time the contract was entered into, claimant would be entitled to the balance due under said contract for the work and material, which had been furnished in accordance therewith. We, also, in that case, cited the case of Fergus vs. Brady, 277 Ill. 272, wherein Secs. 18 and 19 of the Constitution of the State of Illinois are discussed.

An award is, therefore, made to claimant for the full amount of the contract price of $8,650.00.