text:
    (No. 4806
    Irene Schwartz, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

    Baker, Kagy and Wagner, and Francis D. Conner, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On January 29, 1958, a complaint was filed on behalf of Irene Schwartz for certain personal injuries sustained by her on February 1, 1956 on the court house steps, St. Clair County, Belleville, Illinois. It alleges that on said date claimant was, subpoenaed. to testify in a case being heard in St, Glair County, and, when leaving the court house, she slipped and fell on the steps.

In the complaint, it is alleged that the State of Illinois and the County of St. Clair negligently and carelessly maintained the steps of the court house,, and permitted the same to become smooth, slippery and dangerous; and, more particularly, negligently and carelessly attempted to remove snow, which had accumulated upon the steps of said court house, and did so in such a careless and negligent manner that a thin layer of ice was permitted to remain upon the steps. This made them extremely slippery and hazardous, which condition was not visible upon reasonable examination.

A motion was filed by respondent to dismiss said complaint for the reason that it was substantially insufficient in law to state a cause of action against respondent, and, further, that respondent had no legal duty to maintain the county court house of St. Clair County. Respondent filed suggestions in support of its motion to dismiss, and claimant also filed suggestions in opposition to the motion to dismiss.

This matter comes on before the Court on the complaint and motion to dismiss, together with the suggestions filed by claimant and respondent in support of their respective positions.

t As pointed out in a number of decisions by this '<3ourt, the State of Illinois is not liable for the acts of officers, agents or servants of political divisions or municipal corporations. (Davern vs. State, 21 C.C.R. 236; B. and F. Hi-Line Construction Corp. vs. State, 21 C.C.R. 189.) Inasmuch as respondent is not liable for the alleged negligent acts of the agents, servants and the employees of the County of St. Clair, it is the opinion of this Court that the complaint should be dismissed.

The motion of respondent to dismiss is, therefore, allowed, and the claim accordingly dismissed.


source: Caselaw Access Project

author: Fearer, J.

license: Public Domain

text:
    (No. 4819
    Harold F. Pacha, Claimant, vs. State of Illinois, Respondent.

      Opinion filed July 24, 1958.

    Harold F. Pacha, Claimant, pro se.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On May 8, 1958, claimant, Harold F. Pacha, filed a complaint in this Court seeking payment for loss of certain personal property on March 10, 1956.

The complaint states that on the latter date claimant was a civilian employee of the Military and Naval Department of the State of Illinois, and was classified as an Administrative Assistant to the United States Property and Fiscal Officer for Illinois.

On March 7, 1956, claimant was ordered to proceed to Camp McCoy, Wisconsin on temporary duty in connection with a National Guard Conference for Field Training, and upon completion thereof to return to his proper station. Claimant, together with two other officers, were transported to their destination in a plane assigned to the 126th Fighter Interceptor Croup of the 170th Fighter Interceptor Squadron of the Illinois National Cuard, wdiich was piloted by Major Robert H. MacDonald. On the return flight, trouble developed in the engine, and the plane crashed and burned approximately nine miles south of Sparta, Wisconsin.

As a result of said accident, a, number of personal articles belonging to claimant were destroyed. A bill of particulars, incorporated in the complaint, sets forth the items lost, and makes a valuation thereon in a total amount of $343.00.

A motion to dismiss the complaint was filed by respondent for the following reasons: (1) It is substantially insufficient in law to state a cause of action; (2) No breach of duty, statutory or otherwise, is shown to be owed claimant; and, (3) The complaint was not filed within the two year period after the cause of action accrued, and, therefore, is barred by the statute of limitations. Copies of the motion and points and authorities in support thereof were served on claimant, and no reply brief was filed by claimant in this cause.

In prior decisions, this Court has held that the State of Illinois is not an insurer of the property of its employees. In the event an employee elects to use personal property in his employment, he assumes the risk of its loss. (Klimek vs. State of Illinois, 21 C.C.R. 145.)

The complaint does not set forth or charge respondent, by and through its agents and servants, with negligent acts, which would create a liability on the part of respondent. The complaint is a mere recitation of certain facts concerning a plane crash, and description of the personal property in question. It does not set forth an omission or commission of an unlawful act by any of the agents of the State of Illinois in the operation of the plane.

Since the complaint was not filed within two years from the time of the alleged accident, it is barred by Section 22 of the Court of Claims Act, (Chap. 37, Par. 439.22, 1957 Ill. Rev. Stats.).

For the reasons above stated, the motion of respondent to dismiss is hereby allowed, and the claim accordingly dismissed.


author: Tolson, C. J.

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

      Opinion filed October 22, 1958.

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

On September 10, 1958, claimant, Elva Jennings Penwell, filed a supplemental petition for reimbursement for monies expended by her for medical services and expenses from October 1, 1957 to July 1, 1958.

On September 19,1958, claimant and respondent filed a joint motion for leave to waive the filing of briefs and arguments, and alleged that claimant’s receipts for payment of medical bills and services constituted the entire evidence in the case.

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

The petition before the Court at this time again discloses that claimant is permanently disabled, and is entitled to an additional award.

Original receipts, received in evidence, establish the following claim:

Item A: Nursing ________________________________________________$1,031.14

Room and board for nurses__________________________ 477.75

Item B: Drugs and supplies__________________________________________ 280.11

Item C: Physician ________________________________________________ 960.00

Item D: Transportation _______________________________________________ 107.50

Item E: Hospital _______________________________________________ 408.28

Total _____________________________________________________$3,264.78

An award is, therefore, made to claimant for monies expended from October 1, 1957 to July 1, 1958 in the amount of $3,264.78.

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


text:
    (No. 4766
    Caroline Pils, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1958.

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

Caroline Pils filed her complaint in this cause on March 12, 1957, and, on April 5, 1957, respondent filed a motion to dismiss the case.

Subsequent thereto, a motion was made to continue this cause until a similar case had been disposed of in the Circuit Court of McLean County. This Court is now requested to pass upon the original motion to dismiss claimant’s complaint.

The motion to dismiss filed by respondent sets forth that the claim is barred as a matter of law for the reason that the Illinois State Normal University is operated, managed, controlled and maintained by the Teachers College Board (Ill. Rev. Stats., 1955, Chap. 122, Par. 577.1); and that said Teachers College Board is a body corporate and politic with the power to sue and be sued (Ill. Rev. Stats., 1955, Chap. 122, Par. 577.7), the legal effect of which defeats the claim alleged in said complaint. (B & F Hi-Line Construction Corp. vs. State of Illinois, 21 C.C.R. 189; Davern vs. State of Illinois, 21 C.C.R. 236; Denton vs. State of Illinois, No. 4635, opinions filed on October 22, 1954 and January 11, 1955.)

Having had occasion to pass upon the question before, this Court has held that The Board of Trustees of said College is a corporate body with the right to sue and be sued, and that a court of general jurisdiction would be the place to bring such a suit. For said reason, tins Court is without jurisdiction.

The present Court of Claims Act, Chap. 37, Sec. 439.8, Par. C, mentions The Board of Trustees of the University of Illinois, but, by omission, eliminates other State Universities. It does not extend to any other corporate entity.

For the reasons heretofore assigned, the motion of respondent to dismiss is allowed, and the claim accordingly dismissed.


text:
    (Nos. 4776 and 4781
    Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., and Noi Coleman and Earl Coleman, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1958.

    R. W. Deffenbaugh and Love and Kost, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

The claims of Noi Coleman and Earl Coleman are for personal injuries sustained by Noi Coleman as the result of an accident, which occurred on January 24, 1957, while she was riding as a passenger in the right front seat of a Buiek automobile driven by Virginia Shull of Lewistown, Illinois, and owned by Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., Lewistown, Illinois.

The claim- of Shull Bros., A Partnership, is for the total loss of its 1957 Buiek automobile. The collision insurance was carried by the Hardware Mutual Insurance Company, and Shull Bros, had a $50.00 deductible policy. Hardware Mutual Insurance Company was not made a party to the claim filed for property damage to the automobile, but would be entitled to their loss in the event of a recovery by Shull Bros.

There seems to be little dispute as to the facts of the accident, which are borne out by the Departmental Report filed in this case and made a part of the record.

On January 24, 1957, Virginia Shull was driving a 1957 Buick in a northerly direction on State Routes Nos. 78 and 97, three miles north of Havana, Illinois, at about the hour of 3:15 P.M. Noi Coleman was riding as a passenger in the right front seat of said automobile.

Chief Warrant Officer John Albert Handel. was driving a 2% ton Illinois National Guard truck on said highway in a southerly direction. The Illinois National Guard truck was towing a 40MM AA gun to the Illinois National Guard General Depot in Springfield, Illinois. It was, therefore, being used on an authorized trip for respondent.

The stretch of highway where the accident occurred was rough, and the pavement was slippery. On each side of said highway were ditches from thirty to thirty-five feet deep.

As the two vehicles were approaching one another, the hood on the truck became loose and obstructed the driver’s vision. The truck swerved back and forth across the center line, and the left rear side of the truck struck the left front of the Buick automobile.

At the moment of impact the Buick automobile was practically stopped, its operator having noticed the swerving of the truck. It was impossible for the Buick automobile to get out of the road of the swerving truck, because of the ditches on the right hand side, being the side upon which the automobile was being driven.

The charges of negligence made are:

1. Excessive speed.

2. Failure to keep the track, towing the gun, under control.

3. Failure to keep a proper lookout for other vehicles traveling upon the highway.

4. Driving on the left side of the highway.

5. Not yielding one-half of the highway for traffic traveling in the opposite direction.

From the evidence, it appears that, so far as the claimants are concerned, there is no question of contributory negligence, there being very little dispute over the facts. There is no question but what respondent’s agent, Chief Warrant Officer John Albert Handel, was guilty of negligence in the driving and operation of the truck, which was pulling the gun at a speed, which was too fast for the condition of the road at the place where the accident occurred; and that it was the negligent operation of the Illinois National Guard truck, which was the proximate cause of the property damage and personal injuries sustained.

As to the claims of Noi Coleman and Earl Coleman, husband and wife, for out-of-pocket expenses and for personal injuries, it appears from the evidence, and the Commissioner so found, that claimant, Noi Coleman, the passenger in the automobile, received a one inch scar on her right hand, which was not particularly noticeable at the time of the hearing, and a six inch scar on the upper portion of her forehead, which was approximately one-eighth of an inch wide and red in color. The stitches taken in her forehead were visible at the time of the hearing.

Noi Coleman also testified that she received scars, which were concealed by her hair. The Commissioner in hi¡% report states that he did not view the scars, which were covered by her hair.

Noi Coleman was confined to the Graham Hospital in Canton, Illinois for approximately one week. She incurred the following expenses: Hospital charges, $187.94; doctor bill, $100.00; drugs, $7.83; ambulance service, $20.00; and nurses fees, $35.00.

She also claims damages to her clothing and personal effects as follows: Coat, $65.00; slip, $5.00; glasses, $18.00; pocket hook, $12.00; hlonse and skirt, $10.00.

At the time of the accident Noi Coleman and Earl Coleman operated the Spoon River Hotel in Lewistown, Illinois. Mrs. Coleman acted as a part time day clerk. In addition thereto, she performed domestic services. They also made their home in the hotel, and, as a result of the injuries of Noi Coleman, it was necessary to hire domestic help in their home, as well as in the hotel. Mrs. Coleman testified that she was off work from January 24, 1957 to September 18, 1957, and that during such period of time Mr. Coleman hired outside help for the home and hotel at the rate of $25.00 per week. From September 18, 1957 to December 15, 1957 extra help was hired for $20.85 a week. During this period of time a Mrs. Bennett was, also hired for miscellaneous work and as a part time day clerk at the rate of $27.00.

Noi Coleman further testified that she has been nervous since the accident, and that the scars had made her self-conscious. However, at the time of the hearing she stated that they no longer bothered her. She further testified that her knees bothered her, but that there was no permanent injury to them, and that the only permanent injury claimed was for the scars.

In case No. 4781, Noi Coleman and Earl Coleman, it appears that the total special damages proven is in the amount of $1,581.82.

In case No. 4776, Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., a representative of the Hardware Mutual Insurance Company testified that the automobile of Shull Bros, was a total loss. The cost of replacement was $3,616.63. The salvage recovered was in the amount of $1,201.00.

It appears that the Hardware Mutual Insurance Company also paid for the towing and storage of the automobile, which amounted to $54.00. The collision insurance carried by the Shull Bros, was a $50.00 deductible policy. The net loss, including towing and storage, is, therefore, $2,469:63, of which amount Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., have a deductible interest in the sum of $50.00.

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

To Earl Coleman and Noi Coleman, claimants in case No. 4781, the sum of $3,000.00 for personal injuries.

To Hardware Mutual Insurance Company, the insurance carrier for claimants in case No. 4776, Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., the sum of $2,419.63.

To Clare D. Shull and Carter Shull, A Partnership, d/b/a Shull Bros., claimants in case No. 4776, the amount of $50.00.


text:
    (No. 4810
    Marvin King, d/b/a King’s Tavern, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1958.

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

On February 7, 1958, claimant filed his complaint, in which he seeks damages for inconvenience and loss of business during the construction of a public improvement. This was allegedly caused by the widening, repairing and reconstruction of Illinois State Route No. 3 in front of his tavern, which is located at 300 South Water Street, Cahokia, Illinois. The complaint also alleges the entrances and exits to his said tavern were blocked for a period from September 5, 1957 until January 1, 1958. Claimant asks damages in the sum of $1,900.00.

On July 8, 1958, respondent filed a motion to strike and dismiss the complaint for legal insufficiency. Claimant did not file objections to respondent’s motion to strike and dismiss.

Claimant sets forth the following allegations in his complaint:

That on or about September 5, 1957, and prior and subsequent thereto, Marvin King, claimant, was the duly licensed owner, manager and operator of a certain tavern, known as “King’s Tavern”, located at 300 South Water Street, being Illinois State Route No. 3, Cahokia, Illinois.

That claimant, prior to September 5, 1957, had an average income from the operation of said tavern of $50.00 per day, and the volume of business was increasing.

That respondent did contract with Fruin-Colnon Contracting Company to widen, repair and reconstruct certain sections of Illinois State Route No. 3. That said contracting firm did widen and reconstruct said State Route No. 3 at a point directly in front of said tavern, and, in doing so, did block all of the entrances and exits to and from said tavern for a period from September 5, 1957 until January 1, 1958.

That, due to the widening and reconstruction, ingress and egress to claimant’s property was blocked, and his customers did not have access to the tavern.

That he was forced to close the tavern from September 5, 1957 until January 1, 1958, a total of 118 days, at a loss of $50.00 per day, or a total damage of $1,900.00, for which he is now making claim.

This Court recently had occasion to pass upon a similar motion to strike a complaint seeking damages for the same reason, being the case of Joseph O. Engebretson vs. State of Illinois, No. 4759.

Previous to this last decision, the case of Grothe vs. State of Illinois, 10 C.C.R. 49, was decided by the Court of Claims. This Court held in that case:

“The question here involved has been considered by this Court in a number of cases. In the case of Grassle vs. State of Illinois, 8 C.C.R. 151, we held that: ‘Inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement do not constitute damage to property not taken within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made, and, therefore, give no cause of action against a municipality therefor.’ ”

This Court also had occasion to pass upon the same question in the case of Edward vs. State of Illinois, 10 C.C.R. 671. At page 673, the opinion reads as follows:

“In the case of Chicago Flour Company vs. City of Chicago, 243 Ill. 268, plaintiff sued the city to recover damages, which it sustained as the result of being deprived of the use of a certain switch track during a construction period. The Supreme Court in considering the matter said: ‘The only invasion of their rights complained of is the temporary interference with the ordinary means of access to and egress from their, property during the progress of the work. It is well settled that inconvenience, expense or loss of business occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the construction of a public improvement, gives no cause of action against the municipality. The Constitution provides no remedy for the property owner under such circumstances. Such claim is not damage to property not taken within the meaning of the Constitution.’ ”

Numerous other cases have been cited wherein motions have been sustained to strike and dismiss claims predicated upon similar circumstances, where public works were being performed on highways in front of private businesses blocking the access thereto, and thereby resulting in losses to the owners and operators of said businesses.

It is the opinion of the Court that the complaint filed herein is insufficient, and does not state a good cause of action. Therefore, the motion of the respondent is allowed, and the complaint is hereby dismissed.


text:
    (No. 4817
    The County of Will, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 22, 1958.

    Frank H. Masters, Jr., Attorney for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Fearer, J.

A claim on behalf of The County of Will of the State of Illinois was filed by Meade Baltz, Chairman of the Board of Supervisors of said County, by and through Frank H. Masters, Jr., State’s Attorney of said Will County, seeking to recover from respondent the sum of $989.00.

The record consists of the following:

1. Complaint.

2. Stipulation.

3. Joint motion of claimant and respondent for leave to waive the filing of briefs and oral argument.

4. Order of the Chief Justice granting the joint motion of claimant and respondent for leave to waive the filing of briefs and oral argument, and further ordering the case taken under advisement on the present record.

The action is predicated on specific statutes, which confer jurisdiction on the Court of Claims to hear cases brought thereunder. (Ill. Rev. Stats., Chap. 65, Secs. 37, 38 and 39; Chap. 37, Sec. 439.8.) The statutes referred to herein provide for reimbursing certain counties in Illinois for expenses, costs and fees incurred because of petitions for writs of habeas corpus in forma pauperis filed therein. The petitioners are non-residents of the county in which the petitions were- filed.

This Court has had occasion to pass upon similar cases. (The County of Randolph vs. State of Illinois, 21 C.C.R. 427, and The County of Will vs. State of Illinois, 18 C.C.R. 189.)

A stipulation of the facts was entered into and filed herein, as follows:

"It is hereby stipulated.and agreed by and between the parties through their respective attorneys, as follows:
1. That The County of Will of the State of Illinois has situated within its borders the Illinois State Penitentiary, a penal institution of the State of Illinois.
2. That the petitions for writs of habeas corpus, set forth in claimant’s complaint as exhibit A, have been filed in the office of the Clerk of the Circuit Court of Will County, Illinois.
3. That said petitions were filed by inmates of the Illinois State Penitentiary, who were not residents of Tire County of Will of the State of Illinois at the time of their commitment, and were not committed by any court of The County of Will.
4. That Sec. 31, Chap. 53, Ill. Rev. Stats., provides that the fee of the Clerk of the Circuit Court shall be $10.00 as to each petition for a writ of habeas corpus filed with such Clerk.
5. That Secs. 37, 38 and 39, Chap. 65, Ill. Rev. Stats., provide that the State of Illinois shall assume and pay to each county the necessary expenses incurred by it and its officers, either by means of services rendered or otherwise by reason of court proceedings in such counties involving petitions for writs of habeas corpus by such inmatesi as above mentioned.
6. That, in addition to the! services of the Clerk of the Circuit Court rendered in said matters, there were also incurred expenses for preparing and furnishing the petitions of such matters, photostatic copies of court records and documents as set forth in claimant’s exhibit A of the complaint heretofore filed.
7. That the claim of The County of Will against the State of Illinois for its necessary expenses is in the sum of $989.00.
8. That this claim has never been presented to any State department or officer, or to any person, corporation or tribunal.
9. That no assignment or transfer of this claim, or any part thereof, of interest therein has been made.”

The Clerk of the Circuit Court of Will County is entitled to receive $10.00 for each petition filed, or the sum of $950.00. (Chap. 53, Sec. 31, Ill. Rev. Stats.)

In addition thereto, The County of Will has expended $39.00 for copies of petitions furnished to the Attorney General and expenses in connection therewith, all in accordance with exhibit A attached to the complaint filed herein. ■

Claims of this kind have been passed upon by the Court of Claims before, and all have been in conformity with the statutes of the State of Illinois, as hereinabove stated.

An award is, therefore, entered herein in favor of The County of Will in the sum of $989.00.


text:
    (No. 4689
    Harold E. Moe, Claimant, vs. State of Illinois, Respondent

      Opinion filed November 11, 1958.

    Kilroy, Kent and Litow, Attorneys for Claimant.
    Samuel J. Doy, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On September 8, 1955, claimant, Harold E. Moe, a prisoner at the Illinois State Penitentiary, Joliet, Illinois, filed his complaint seeking damages for injuries received on November 26, 1954.

The facts of the case are as follows:

Claimant sought'work for which he would be paid some wages, and was assigned to the soap factory. Mr. Alex Barr, superintendent of the plant, introduced him to Duke Luntz, one of the prison foremen, or “gaffers”, as they were called, who in turn assigned the jobs, and gave such instructions as were needed in the operation of the factory.

Claimant worked in the factory from June of 1952 to November 26, 1954, the time of the accident. He developed into such a good worker that, at the time of the accident, he had worked up to the position of a “gaffer”.

On the date in question, claimant was cleaning the rollers of a soap grinding machine with a wire brush while the rollers were still turning. In some manner his right hand was caught in the steel rollers, and claimant suffered severe crushing injuries to the right elbow, forearm, hand and fingers. As a result, there is severe limitation of motion of the elbow and fingers, and there can be no doubt but that claimant suffered great pain, and will have permanent injuries.

Claimant alleges in brief:

(1) Respondent installed an unsafe machine.

(2) Respondent required claimant to work on an unsafe machine.

(3) Respondent failed to properly instruct claimant in the operation of the machine.

(4) Respondent failed to provide a control switch at or near the machine.

(5) Respondent negligently instructed claimant to clean the rollers of the machine while it was in operation.

Respondent, by failing to answer, has traversed the claim, and argues that claimant was guilty of contributory negligence.

From the evidence introduced in said cause, this Court is presented with three questions of fact:

1. Was respondent guilty of negligence in failing to properly instruct and supervise workers in the operation of the soap factory?

2. Should the machine have been equipped with a cut-off switch on or near the machine?

3. Was claimant guilty of contributory negligence?

This Court is not unmindful of the serious and permanent injuries suffered by claimant, nor can the Court ignore the fact that the soap factory did not have the best of supervision. However, the evidence of contributory negligence is so strong that an award cannot be made in any event.

Claimant cites the case of Moore vs. State of Illinois, 21 C.C.R. 282, wherein an award was made to a convict, who was injured while using a food grinder.

“Claimant, as a convict, was required to take orders, and carry them out. To refuse to do so would subject him to disciplinary action, and the forfeiture of his limited privileges, including prompt consideration for parole. Tlius, he did not occupy a position of independence, which a person outside a penitentiary occupies. His choice of action being limited, he, therefore, kept silent, and did as he was ordered. In fact, he did not possess, under the circumstances in this case, the freedom of choice inherent in the doctrines; of assumed risk and contributory negligence. We do not, however, hold that such doctrines can never be asserted against a convict, but merely conclude that they do not apply in this case.”

We do not have the benefit of the transcript of evidence of the Moore case before us, but it would appear that claimant was ordered to operate the food grinder without the benefit of a hopper for protection, and suffered the injury in question. The Court believed, under the evidence in the case, that the convict had no choice but to obey, under penalty for refusal.

The facts in case are in no way similar. Claimant was not a new inexperienced hand in the soap factory. He had worked there for two years, and on the basis of his experience he had worked himself up to the position of a “gaffer”.

It does not appear from the evidence that the soap grinder was a dangerous instrumentality per se, nor was claimant ordered to operate the machine in question (abstract, page 10), as was required in the Moore Case (supra), but he did so as a part of his routine job.

Claimant has also urged that he was obliged to meet a quota — the implication being that he was being rushed, and probably could not do his work in a safe orderly manner. The evidence does not support this implication for it appears that the soap factory operated five days a week, while the soap grinder was only put into operation two days a week for a two hour period.

Our courts, at all times, have held that a plaintiff has the burden of proof in showing that he was free from contributory negligence. This rule of law is so well settled that cases need not be cited.

To sustain this burden, claimant testified as follows:

“I worked on the soap grinding machine for about a year before the accident, and was never instructed not to clean the machine when it was running.”

The statement that he was never told NOT to clean the rollers, while they were in motion, falls short of establishing freedom from contributory negligence.

In the case of Allen vs. State of Illinois, 21 C.C.R. 450, this Court denied the claim of a convict, who was injured while working in a prison, on the grounds that he had failed to sustain the burden of proof required of him in proving that he was free from contributory negligence.

Our Illinois Courts have held that a person cannot knowingly expose himself to danger, and then recover for an injury sustained, when it could have been avoided by the use of due care. Ames vs. Terminal Rail Association, 75 N.E. (2d) 45.

The proximate cause of this injury was claimant’s failure to use ordinary care on his own behalf, and an award will, therefore, be denied.


text:
    (No. 4799
    M. J. Holleran, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed November 11, 1958.

    Gordon B. Nash, Attorney for Claimant.
    Latham Castle, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Fearer, J.

M. J. Holleran, Inc., by Gordon Nash, its attorney, filed a complaint in this Court against respondent on December 23, 1957. No answer was filed by respondent, and it is, therefore, being considered that a general traverse of the allegations set forth in the complaint is made by respondent under the rules of this Court.

The record consists of:

1. Departmental Report.

2. Stipulation of facts.

3. Commissioner’s Report.

This case was referred to Commissioner Immenhausen, who filed his report herein on October 16, 1958.

The present claim is an outgrowth of a contract entered into with respondent, Department of Public Works and Buildings on February 8, 1954 for certain heating installations, and for rehabilitation of the heating system in various buildings at the Alton State Hospital, Alton, Illinois, contract No. 68144, (exhibit A).

It appears from the record that claimant was required to deviate from the original contract and drawings during the course of the contract. It further appears that, on April 11, 1955, a letter was written by an agent of claimant to the Division of Architecture and Engineering of the Department of Public Works and Buildings advising said Department of the necessity for such deviation.

Claimant performed its services, and supplied material in accordance with the original contract. It subsequently furnished drawings, and an itemization of material and labor necessary for the additional work it had to do, which was a deviation from the .original contract. All of the services performed were done in a satisfactory manner, (exhibit B).

Subsequent to the completion of the extra work, i.e., August 10, 1956, a. letter was written by claimant to the Department discussing the itemization on the breakdown for additional work and costs for material and labor in the total sum of $9,782.41, (exhibit C).

In response, on April 10, 1957, a letter was written by Otto L. Bettag to E. A. Rosenstone, Director of the Department of Public Works and Buildings, advising the Director that the Division of Architecture and Engineering had made inspections of the additional work and recommended the bills for payment.

The reason that the bills could not be paid was because of the lapse of the appropriation for the 68th Biennium. It appears that there was a sufficient sum of money remaining on hand at the time the appropriation lapsed to pay this claim in full.

There appears to be no question but that the work was performed in a satisfactory manner, and that the charges made therefor were fair and reasonable.

The basis for the claim, the reasonableness of the claim, and the recommendation of payment are borne out by a stipulation entered into between claimant, by its attorney, and respondent, by the Attorney General, at the time of the hearing before Commissioner Immenhausen on June 11, 1958.

Said stipulation, in substance, is as follows:

1. The stipulation refers to contract No. 68144, a photostatic copy of which is attached thereto as exhibit No. 1-A.

2. Claimant found it necessary to deviate from the original contract and drawings. On April 11, 1955, M. J. Holleran, Inc., by Francis J. Conry, one of its employees, wrote to the Division of Architecture and Engineering, advising of the necessity for deviating from the original contract. A copy of the letter, dated April 11, 1955, was attached and marked exhibit No. 2-A.

3. The undated letter attached to the stipulation, marked exhibit B, was written by claimant notifying the Division of Architecture and Engineering of the description of the additional work required because of the deviation from the contract.

4. On January 19, 1956, the Department of Public Works and Buildings, Division of Architecture and Engineering, advised claimant of the receipt of the undated letter, and requested a breakdown form of the extras. A tme photostatic copy of said reply is attached and marked exhibit C.

5. On August 30, 1956, in reply to the letter of the Division of Architecture and Engineering of January 19, 1956, claimant forwarded to the Department of Public Works and Buildings, Department of Architecture and Engineering, an itemized breakdown of the cost of the additional work required by the deviation from the original contract, including labor and materials. A true photostatic copy of the statement is attached to the stipulation and marked exhibit D.

6. The total cost of the additional work, as disclosed by exhibit D, was $9,872.41.

7. Prior to April 10, 1957, respondent, through its Department of Public Works and Buildings, Division of Architecture and Engineering, presented to the Director of Public Welfare the claim for payment for additional work in the amount of $9,872.41 recommending favorable consideration be given it.

8. A letter was written on April 10, 1957 to the Director of the Department of Public Works and Buildings by Dr. Otto L. Bettag, Director of the Department of Public Welfare, which advised the Department of Public Works and Buildings of the action of the Division of Architecture and Engineering. It stated, however, that, due to the lapse of the appropriation for the 68th- Biennium, funds to pay the claim were no longer available. A copy of this letter is attached to the stipulation and marked exhibit E.

9. Claimant is the owner of the claim in the total amount of $9,872.41, and is the only party interested therein.

10. No assignment or transfer of the claim or any interest therein has been made by claimant.

11. The fair and reasonable value, after allowing all just credits and setoffs for the labor and material furnished by claimant to complete the contract of February 18, 1954, was $9,872.41.

The Commissioner reported that he examined the exhibits and stipulation, and found them to be true and correct. He has recommended the allowance of the claim, as filed, in the amount of $9,872.41.

This Court has had occasion to pass on several matters' of a similar nature, and in these previous eases we have held that an award would be made where sufficient •funds were available in the appropriation to pay the claim had it been received in apt time. Funds were available in the present case at the time the services were performed. The materials were furnished, and the work was satisfactorily performed and accepted by respondent. The only reason for the claim not being paid was the lapse of the appropriation from which it could have been paid.

An award is hereby made to M. J. Holleran, Inc., in the amount of $9,872.41.


author: Wham, J.

text:
    (No. 4725
    Ray Franklin, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.
    O’Brien, Burnell and Puckett, Attorneys for Claimant.
    Latham Castle, Attorney General; Samuel J. Doy, Assistant Attorney General, for Respondent.
   Wham, J.

This is a claim for $7,500.00 brought by claimant, Ray Franklin, to recover from respondent, the State of Illinois, the amount of money damages sustained by Mm, which proximately resulted from the negligent spraying of a weed killing chemical, known as 2,4-D, by and at the direction of the State of Illinois, Division of Highways, along State highway No. 126 adjacent to the tomato field of claimant near Yorkville, Illinois, on the 14th day of June, 1955, resulting in damage to the tomato crop of claimant.

There is little material dispute as to the facts concerning the spraying activities, but there exists a fundamental dispute as to the application of the law to the facts, and the amount of damages proven.

In April of 1955 the State of Illinois engaged one Charles D. McFarland, d/b/a McFarland’s Tree Service, to spray weeds along the State highways. On June 14, 1955, Mr. McFarland’s spray rig was operating along Route No. 126, between Yorkville and Plainfield, Illinois, at a point adjacent to the tomato field of claimant. The spray concentrate furnished by the State of Illinois to Mr. McFarland was a low volatile 2,4-D ester type mixed with water, and was sprayed at 50 pounds pressure at a height of approximately two feet above the ground. No part of claimant’s tomatoes were directly sprayed, nor did the spray in its initial application carry across the fence into the tomato field.

On this day of June 14th the tomato plants were in the stage of first bloom, were stocky with large main stems and excellent vine growth. Following the spraying, the entire tomato acreage appeared to be uniformly damaged. On June 15th the plants were drawn up, the foliage was severely distorted, and the vines gave the appearance of constriction of growth. The plants on inspection had all the characteristics of 2,4-D damage.

Claimant’s witness, Wayne Robbins, pathologist and. geneticist for the Campbell Soup Company, testified that the 2,4-D spray material would volatize at 90° temperatures for at least a week subsequent to the spraying. The toxic ingredients would then drift with the wind as a vapor, and be as effective as if sprayed directly upon the vines. This witness testified that he inspected the field three days after the occurrence of the spraying incident, and gave his opinion that there had been a strong application of 2,4-D to the tomato plants, and that it could have been caused by spraying adjacent to the field, which revolatized, and was carried over the field by the wind. This witness qualified as, and was conceded by respondent to be an expert in his field. Respondent also conceded that 2,4-D is generally injurious to tomato plants.

It is respondent’s position, however, that these facts fail to establish negligence on the part of respondent, inasmuch as there was no direct spraying of claimant’s field, nor do the facts establish that respondent should have foreseen that the spray would revolatize, and later drift upon the land of claimant. Respondent points out that there was no evidence offered as to the temperature at the time of the spraying or any time thereafter, and that, therefore, claimant has failed to offer sufficient evidence to establish that the 2,4-D revolatized in the manner stated by Mr. Robbins, or that respondent should have foreseen such a result.

Respondent correctly states that the burden is on claimant to prove his case, but we feel that, in determining whether or not the burden has been discharged, we cannot close our eyes to the circumstances, probabilities, and legitimate inferences, which arise from the facts proven by the evidence.

The evidence clearly establishes that the crop was uniformly, damaged by a strong 2,4-D solution, and such damage manifested itself the day. following the spraying operations. Mr. Franklin, claimant, testified that he had not sprayed his field, and that none of his neighbors had sprayed after his tomato plants had been planted.

The evidence to the effect that the spraying was. conducted in the middle of. June on a windy day, when taken in connection with the other evidence heretofore, narrated, seems sufficient to us to establish a causal connection between the spraying by the State and the damage to the plants of claimant, even in the absence of testimony pertaining to the exact temperature of the day.

As to the question of negligence, we believe that the State should have known of the volatile nature of this, spray, and the probable results of its use, if in fact they did not know, by conducting an investigation, inquiry and tests before using it in the vicinity of a tomato field. If inquiry had been made, the information known by claimant’s witness Bobbins would have been known by respondent prior to the occurrence in question.

It was conceded that the State knew of the spray’s damaging qualities when applied to tomato plants. The State, therefore, owed a duty to claimant to refrain from spraying along the road when it was reasonably foreseeable that the spray would revolatize and drift • onto claimant’s field. Consequently, we feel that claimant has borne the burden of proof on the question of negligence and proximate cause.

It goes without saying that the question of due care on the part of claimant is not a problem. The evidence sufficiently establishes that he was in the exercise thereof at and prior to the occurrence in question.

As to the extent of the damages, we must also utilize inferences that arise from the basic facts in order to come to a conclusion on the amount. Admittedly, this type of cases presents considerable difficulty in arriving at a precise amount of damage, since seldom, if ever, is there definite proof on this question.

Claimant and the Campbell Soup Company had entered into a contract covering the 1955. crop, wherein claimant agreed to sell, and the Campbell Soup Company agreed to purchase the entire crop at a price of $35.00 per ton for Grade No. 1 tomatoes and $23.00 per ton for Grade No. 2 tomatoes.

The estimated yield of claimant’s 1955 crop on June 14th, as testified to by claimant’s witnesses, was 16 to 17 tons per acre. The evidence with respect to the number of acres planted varied from 54.3 acres to 61 acres. The burden being on claimant, and there being no more reason for accepting one set of figures than the other, we find that the estimated yield was 16 tons per acre, and the acreage planted was 54.3 acres, and, therefore, the total estimated yield was 868.8 tons.

The evidence established that claimant’s field produced 71% Grade No. 1 and 27% Grade No. 2 tomatoes for an average of $30.08 per ton. Claimant contends that the average crop in the area was slightly higher for grade No. 1, but the evidence does not establish any basis upon which to find that the spray damage caused claimant’s crop to have a lesser percentage of grade No. 1 tomatoes. Therefore, we find that the average contract price for claimant’s tomatoes was $30.85 per ton.

The evidence established that the harvesting and marketing expense, including hamper rental, trucking tomatoes to Chicago, and picking the tomatoes was $12.68 per ton, thus leaving a net loss basis per ton on unmarketed tomatoes at $18.17.

Claimant contends that the number of tons lost by reason of the spray damage was seven tons per acre. This he arrives at from the testimony of his witnesses, Wayne Bobbins, who estimated the loss at the time of his inspection of the tomato field on June 17th, three days after the spraying, and Sylvester P. Browning, crop supervisor for the Campbell Soup Company, who inspected the field as late as July 16th.

From claimant’s evidence it appears that the type of damage, which a spraying of the plants causes, is delay in maturity, restriction in growth, and, as claimant stated,11 The field just stands still after a shock like that. They don’t go ahead with its natural growing and all. It stands for a while.”

The most satisfactory proof of this damage would have been to take the difference of the expected yield and the actual yield, which in this case was established as 5.6 tons per acre, or a total of 304.08 tons.

Unfortunately, however, a severe hail storm occurred on July 23,1955 after the spraying damage occurred. This complicates the situation, and prevents arriving at the loss in this manner.

However, the hail damage can be gauged to a fair degree of accuracy in view of the fact that an insurance appraisal forming the basis for a $6,837.00 adjustment was made on the loss occasioned by the hail. Converting this figure into tons per acre at $18.17 per acre reflects a hail loss of 376.207 tons.

Obviously this loss could not be attributed to spray damage, and a total of the tons harvested plus the tons lost by reason of the hail damage would be a fair approximation of the total yield after the spray damage occurred. This amounts to 680.287 tons. The difference between this figure and 868.8 tons, which was the estimated yield at 16 tons per acre prior to the hail damage, leaves a total of 188.513 tons lost by reason of spray damage. Converting this figure into dollars at $18.17 per ton equals $3,425.28 total damages.

This appears to us to he a far more accurate method of arriving at the amount of damages resulting from the spraying of the tomatoes than the method urged by claimant. It also is more accurate in our judgment than by comparison of ultimate yield with other fields in the area, inasmuch as there would be no way to compare the extent of hail damage on two tracts of land though located in the same general vicinity.

Claimant contends that the hail damage of July 23, 1955 should not be considered in arriving at the damage to the crops, since it occurred subsequent to the spray damage.

In our judgment, as we have heretofore stated, it is proper to refer to the hail loss in the process of ascertaining the value of the crop immediately following the spray damage, and the value of same at the marketing season. This seems to us to he in accordance with the rule announced in Scanlan vs. Musgrove, 91 Ill. App. 184 at 186, relied on by claimant, which rule is stated by the court in discussing the value of damaged, immature crops, as follows:

“and this value may be properly ascertained by showing the probable amount of wheat the crop, as it appeared when destroyed, would likely yield; the value of the same at the market season, and deducting therefrom the necessary cost for harvesting and threshing the same.”

As the rule is stated in Illinois Law and Practice, Vol. 15, Sec. 43, Damages, at page 537:

“The true value of a growing crop must be arrived at from a consideration of numerous facts, including the condition and quality of the soil, the nature of the crop, its probable yield, the hazard of maturity, the kind of crops the land will ordinarily yield, and the expense, which would have been incurred after the injury in transporting the crop to market.”

It seems clear to us that the hazard of maturity could be no more accurately established than by the evidence in this case concerning the appraised damages resulting from the hail loss by the same insurance company charged with paying for that loss.

Moreover, the obvious result of ignoring the hail loss would be to compensate claimant by the State for damages not caused by the State. This we will not approve.

The claim should be allowed not in the sum of $7,500.00 as claimed, but in the lesser sum of $3,425.28, which we feel the evidence has fairly established as the amount of damage caused by the negligent spraying operation conducted by the State of Illinois. The claim is, therefore, allowed in the amount of $3,425.28.


text:
    (No. 4730
    Leon Dunham, Leon Brown, Freddie Lewis, Willie Britton, Jr., Burton Mosley, Willie L. Walker, Katie Aaron, for herself and as next friend for Linel Aaron, a minor, Lester Aaron, a minor, Loretta Aaron, a minor, Larry Aaron, a Minor, the heirs and dependents of Lester Aaron, deceased, Claimants, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.

    Moore, Ming, Leighton and Chauncey Eskridge, Attorneys for Claimants.
    Latham Casthe, Attorney General; Lester Slott, Assistant Attorney General, for Respondent.
   Wham, J.

This case involves multiple claims for recovery under Article XVI, Section 11 of the Military and Naval Code of Illinois, Ill. Rev. Stats., (1953 State Bar Association Edition), Chap. 129, Par. 143.

Claimants, Leon Dunham, Leon Brown, Freddie Lewis, Willie Britton, Jr., Bnrton Mosley, Willie L. Walker, and Lester Aaron, deceased, were enlisted men and members of the 178th Regimental Combat Team, Illinois National Guard, assigned for and performing their duties as drivers or relief drivers on a motor convoy of approximately one hundred vehicles returning from their annual summer field training period at Camp Ripley, Minnesota.

Claimants Brown, Walker, and the deceased, Lester Aaron, were each driving trucks, while claimants, Lewis, Britton and Mosley were- relief drivers riding in the trucks.

The convoy departed on July 22, 1954 from Camp Ripley, Minnesota for its home station in Chicago, Illinois. On July 23rd, after spending the night at Camp McCoy, Wisconsin, the convoy proceeded toward Chicago on U. S. Route No. 12. At a point approximately seven miles south of Baraboo, Wisconsin, in dark rainy weather, and on a blacktop highway, the convoy, after negotiating a long incline and a curve at the crest, started downhill. A civilian automobile, passing the convoy on the left, suddenly cut into one of the intervals between the vehicles directly in front of the deceased, Lester Aaron, who immediately applied his brakes. His truck slid out of control, turned over, and resulted in injuries from which he died. Claimants, Willie Britton, Jr., and Burton Mosley were riding in the truck driven by Lester Aaron, and were also injured when the vehicle overturned.

Claimant, Willie Walker, was driving a truck following that driven by Aaron. Upon arriving at the crest of the hill he saw the overturned truck in front of him, and applied his brakes, which caused the truck to overturn, and resulted in injuries to him and to' claimant, Leon Dunham, who was riding in the truck.

Claimant, Leon Brown, was the driver of a third truck. Upon arriving at the crest of the hill, he applied his brakes upon seeing the other trucks overturned, which caused his truck to slide off the road, and come to rest on its side, and resulted in injuries to his person.

Claimant, Freddie Lewis, a relief driver in still another truck, which was being driven by Private First Class Luckie A. Wright, was injured when that truck likewise slid off the road, and turned over on its right-side, when its driver attempted to come to a stop upon arriving at the scene Of the accident.

All of the men involved in the accident were found to be in the line of duty, and were injured or killed while performing their duties as enlisted men in pursuance of orders from their Commander-in-Chief. The occurrence was not a result of wilful neglect or misconduct on the part of claimants. There is no dispute on this point, and admittedly they come within the provisions of the above statute.

In considering the amount of financial help and assistance each claimant is entitled to under the statute, we must consider each separately, and attempt to adjust the same as the merits of each demand.

With respect to claimant, Master Sergeant Leon Dunham, the evidence established that he was 25 years of age, married, and the father of two children. He was employed by the Ford Motor Company, Aircraft Engine Division, as a jet engine mechanic at $2.19 per hour. He was hospitalized from July 23, 1954 through December, 1954, and the injuries he sustained consisted of total blindness of the left eye, and a 10% loss of hearing of the left ear. He also- sustained a basalor skull fracture. He appeared before the Physical Evaluation Board at the Walter Reed Army Hospital on November 23, 1954, and his injuries were found to be permanent. After being released from the hospital, he returned to work at the Ford Aircraft Engine Division as a janitor at $1.74 per hour. On the date of the hearing he was employed at Hallicrafter Radio Engineering at $2.00 per hour, and worked forty hours per week. Claimant testified that he was found by the Evaluation Board to have a 40% disability, and receives $263.00 per month on a 60% disability rating from the Veterans Administration, which he chose rather than retirement benefits from the Army, due to the higher evaluation.

Claimant stated that he lost a total sum of $5,748.00 in wages due to the injuries, but drew $3,400.00 in military pay during that time. He also stated that he received $1,140.00 as a dependence allowance for his wife and children during that period. This claimant also received $41.00 per week for twenty-six weeks, totaling $1,066.00, as well as the sum of $1,000.00 for the loss of the sight of one eye from the John Hancock Insurance Company, which was a group policy, the benefits of which he was entitled to because of his employment with the Ford Motor Company.

In determining the amount claimant is entitled to under the Military and Naval Code of the State of Illinois, it has been the policy of this Court to take into consideration the amount received from the Federal Government as compensation for the same injuries, although such payments under the federal laws pertaining to members of the Armed Forces, including national guardsmen, do not bar a recovery under the Military and Naval Code. Dudley, Et Al, Claimants vs. State of Illinois, Respondent, 21 C.C.R. 255; Roberts, Claimant vs. State of Illinois, Respondent, 21 C.C.R. 406; Sypniewski, Claimant vs. State of Illinois, Respondent, 21 C.C.R. 586.

The test to be applied in these cases is not that of finding damages for like injuries in common law actions. The awards are rather to be made for financial help and assistance as the merits of each case may demand. Oftentimes this Court has used the Workmen’s Compensation Act as a guide in arriving* at an award in cases of this type. In doing so, however, the Court has not considered the Compensation Act to be either a ceiling over or a floor under the awards.

Here the claimant’s earning capacity has unquestionably been affected. Although he is presently earning only nineteen cents less per hour than he earned before the injury, it is common knowledge that the wages of a jet engine mechanic have increased between 1954 and September, 1957, the date of the hearing. Considering the payments received in the hospital and from the group policy, the loss of his wages during his hospitalization has been off-set, and the 60% disability award, which he is receiving from the United States Government, is a substantial one in the amount of $263.00 a month. Taking everything into consideration, we feel that an award of $3,500.00 would be proper.

Claimant, Staff Sergeant Leon Brown, was 25 years of age, single, and employed as a dining servicer at $1.17 per hour prior to the accident. He received a skull fracture, which resulted in diplopia of the right eye, and cuts to his face, which caused scars, and necessitated surgical repair of the right lower eyelid. He was hospitalized from July 23,1954 to March 15,1956. Claimant testified that he sustained a loss of wages during this time in the amount of $4,256.00, and received Army pay in the amount of $1,120.00 during that period, or a net loss of $3,136.00. He also testified that he is receiving benefits under Public Law 108 in the amount of $93.60 per month on a 50% disability rating. He stated that he has difficulty reading. He is now employed as a dining service helper by the United Airlines at the rate of $1.48 an hour.

This injury is difficult to evaluate because of the meager medical information available. It does not even appear from claimant’s testimony that he still has double vision. His testimony regarding his present condition is' limited to the statement that he has difficulty reading. It is noted that he is making more at the present time than1 he was prior to the accident, and is engaged in the same type of work. None of the medical reports in the record are of recent date.

He appeared before the Physical Evaluation Board at the Walter Beed Hospital on December 16, 1954. There was no finding of permanency, but the designation on the Medical Board proceedings, petitioners’ exhibit No. 5e, states “may be permanent”. This was the last report. No medical testimony was presented other than the reports.

In view of this state of the record, we believe that the amount of $3,136.00, which is the loss of wages, is a proper award on this claim.

With respect to the claim of Sergeant Freddie Lewis, • the evidence establishes that he was 25 years of age, married, and had no children. He was employed as a heat chaser by the United States Steel Company at $1.73 per hour. He was hospitalized from July 23, 1954 to February 28, 1955. During this time he lost $2,176.00 in pay, and received Army pay of $1,200.00. He also received $676.00 in accident and sick benefits during this period, being 26 weeks at $26.00 a week, from the United States Steel Corporation. His injuries consisted of a fracture of the right acetabulum; dislocation of right hip; neuropathy, right sciatic nerve due to trauma; and, loss of rotation of the thigh. At the time of the hearing he was receiving $109.00 per month from the Veterans Administration and the United States Army. He was then asked what percentage of disability he received, and his answer was “30% from one, and 30% from the other”. Apparently this represents a disability award paid by the Federal Government.

The record is in such a condition that it is difficult to determine the extent and permanency of claimant’s physical injuries. This claimant offered as exhibit No. 9b a Eating Sheet from the Veterans Administration Hospital, which is also a medical report. For want of more specific information concerning his condition we set it forth as follows:

“RATING SHEET

Name C-No. Date of Rating

Lewis, Freddie E. 19 035 002 5-18-56

Address Service Serial No. Date of Last Examination

4-9-56

City State Date of Claim Type ~War Occupational Determination

Type Disch. Br. Service Active Duty Date Date RA.D.

Hon. Br. 7-10-54 2-28-55

Date of Birth Place of Birth Rank Race Sex

Ratings

Classification of Rating: — Initial—Confirmed—Increase X Decrease

VAR. 1009(E) — As Amended

Jurisdiction: Scheduled examination.

Issue: Evaluation of service connection paralysis, sciatic nerve, right, residuals, dislocation, right hip.

Facts: The cited neurological examination reveals the veteran entered into the examining room with a short leg brace. The right lower extremity reveals a moderate atrophy of the quadriceps muscle and also of the gastrocenemius muscle, which is caused by disuse. The veteran is able to dorsiflex his right foot to the neutral point, meaning to the neutral position; and he can also evert and invert the right ankle. There seems to be no restriction of the ankle shown upon passive motion. Tire veteran does not walk with a typical steppage gait, and he has no complete foot drop. There is only a partial foot drop. Objective sensory testing reveals a hyperestetic zone over the dorsal aspect of the right foot. The distribution of the superficial perineal nerve. The veteran is able to walk on his toes, and is able to lift his toes up to a certain degree while standing on his heels.

The orthopedic examination reveals there is noticeable atrophy of the right extremity when compared to the left. On pressure over the midline posterior aspect right thigh the veteran complains of a peculiar sensation like an electrical impulse. Hyper-extension of the right thigh at the hip is completely restricted. There is a slight restriction of both flexion of the right thigh at the hip actively and passively.

There is also some restriction, possibly 33% of full abduction and adduction, of the right thigh at the hip, and considerable restriction of internal rotation of the right thigh at the hip. In the right lower extremity is flexed at the hip, and knee dorsification can be performed to at least 33% of the normal range is accomplished both actively and passively, indicating that there is no foot drop of the right lower extremity at this time. There is a minimal restriction of motion of the toes of the right foot, fibrous from immobilization.

The x-ray examination of the pelvis, including both hip joints, reveal there is evidence of a rather marked degree of deformity noted involving the right acetabulum, as well as the head of the right femur and the right femoral neck. The region of the right acetabulum appears to be displaced centrally as compared with the left. A few small irregular areas of bony density are noted within the soft tissues adjacent to the right femoral neck and greater trochanter.

Discussion: In view of the evidence, a decrease in evaluation is warranted. Var. 1009 (E) — as amended.

1 Incurred PI 28/82nd C VR 1(a) Part I, Par. 1(a)

60% from 3-1-55 to 7-17-56

20% from 7-18-56

8520-955 Paralysis, sciatic nerve, right, incomplete, moderate

10% from 3-1-55

5253 Residual, dislocation, right hip

60% from 3-1-55 to 7-17-56

COMB: 30% from 7-18-56

32 No combat

8-2507 — 4-9-58

Medical Rating Specialist Claims Rating Specialist Occupational Rating Specialist

/s/ B. A. Salzberg Is/ J. E. Rymsza /s/ John R. O’Connor

B. A. Salzberg, M.D. J. E. Rymsza, Chrm. John R. O’Connor

Rating Board No. 1

Name of VA Station 3028-Chicago

VA Form July, 1954

8-564a Existing Stocks of VA Form VA DC 189462 564a Sept., 1939 Will Be Used VB

Petitioners’ exhibit No. 9C”

Claimant testified that he has not worked since the date of the accident, and that he feels unable to do any work. He stated that he was still under the treatment of a doctor at the Veteran’s Hospital once every two months, and that he was taking a course of instruction under the Veterans Administration rehabilitation program. He applied for work at U. S. Steel on March 7, 1955, again in May of 1955, and on two other occasions, the dates of which were not stated in the record. On each of these occasions his application was turned down because of his physical condition.

It is difficult to evaluate this claim, since there is no direct testimony regarding permanency or of the extent of disability other than the record quoted above. In this report it is apparent that he is improving to some extent.

Claimant’s own testimony leaves much to be desired with reference to his present condition, i.e., what he can or cannot do. We believe, however, that the record justifies an award in the amount of $5,500.00.

Claimant, Sergeant Willie Britton, Jr., age 26, was employed by Western Electric at the rate of $1.51 per hour. He was hospitalized from July 23, 1954 to November, 1954 for a dislocated shoulder. He sustained loss of wages in the amount of $1,885.00 during this hospitalization period, and received Army pay of $985.00, representing a total net loss of pay in the amount of $900.00. After his hospital release he reported back for general military duty. He later returned to his employment with Western Electric on February 2, 1955. There was no testimony-offered with respect to his present condition, and, consequently, we must presume that the injury healed correctly. We, therefore, recommend an award in the amount of $900.00.

Claimant, Staff Sergeant Burton Mosley, age 25 years, married, and the father of one child was employed by the City of Chicago Police Department at a salary of $325.00 per month. He received multiple abrasions to the arm, head, back and face, resulting in permanent scars. He testified that he was hospitalized for five or six weeks. He suffered no loss of wages, inasmuch as he received Ms regular salary during that time. He stated that he returned to work three days after he left the hospital. He complains of headaches and pain in the shoulder. From the record it appears that he lost no wages, was not permanently injured, nor has Ms earning capacity been affected. We believe that upon this record no award can be made.

Claimant, Private Willie Walker, age 34, married, and father of five children, was employed by the United Steel Company at the rate of $1.57 per hour. He was hospitalized from July 23, 1954 to September 9, 1954. His injury was a fracture of the left third metacarpal. He testified that he sustained a loss of wages in the amount of $390.00 during Ms hospitalization. He received Army pay in the amount of $97.00, making a net loss in the amount of $293.00. After Ms discharge, he returned to work for the United States Steel Company. He testified that thereafter Ms hand gave Mm no further trouble. We feel that an award of $293.00 would be a proper award to make on this claim.

Claimant, Katie Aaron, widow of the deceased, Sergeant First Class Lester Aaron, for herself and the minor cMldren of Lester Aaron, deceased, testified that she is the widow of Lester Aaron, and that the following named cMldren had been born to the marriage: Linel Aaron, age 9, Lester Aaron, Jr., age 5, Loretta Aaron, age 3, and Larry Aaron, age 2, all of whom survived their father, Lester Aaron. She stated that his annual earnings were $3,400.00, and that he was employed at the United States Post Office in CMcago. Lester Aaron was 32 years of age at the time of Ms death. She further testified that she receives $208.00 per month from the Veterans Administration as benefits resulting from the death of her husband. There was no testimony regarding her earnings, if any. We feel that the following awards should be made with respect to this claim: Katie Aaron, $3,500.00; Katie Aaron, Guardian of Linel Aaron, A Minor, $2,500.00; Katie Aaron, Guardian of Lester Aaron, Jr., A Minor, $2,500.00; Katie Aaron, Guardian of Loretta Aaron, A Minor, $2,500.00 ; and, Katie Aaron, Guardian of Larry Aaron, A Minor, $2,500.00. The awards to Katie Aaron, as Guardian of the estates of the respective children, are made with the understanding that she will be appointed Guardian by the Probate Court of Cook County, Illinois.

The claim of Leon Dunham is hereby allowed in the amount of $3,500.00.

The claim of Leon Brown is hereby allowed in the amount of $3,136.00.

The claim of Freddie Lewis is hereby allowed in the amount of $5,500.00.

The claim of Willie Britton, Jr., is hereby allowed in the amount of $900.00.

The claim of Burton Mosley is hereby denied.

The claim of Willie Walker is hereby allowed in the amount of $293.00.

The claim of Katie Aaron is hereby allowed in the amount of $3,500.00.

The claim of Linel Aaron is hereby allowed in the amount of $2,500.00.

The claim of Lester Aaron, Jr., is hereby allowed in the amount of $2,500.00.

The claim of Loretta Aaron is hereby allowed in the ámount of $2,500.00.

The claim of Larry Aaron is hereby allowed in the amount of $2,500.00.


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    (No. 4764
    Walter H. Gifford, Jr., Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.
    Charles G. Lind, Attorney for Claimant.
    Latham Castle, Attorney General; Richard F. Siman, Assistant Attorney General, for Respondent.
   Wham, J.

This is a claim in the sum of $247.42 for damages to claimant’s automobile arising out of a collision between claimant’s automobile and an Illinois National Guard truck. The accident occurred on February 28, 1956 in Chicago, Illinois.

The case is submitted to this Court upon a stipulation of facts duly entered into by claimant and respondent, a sworn statement in the nature of a complaint signed by claimant, and a repair bill of the Davis Oldsmobile Company in the amount of $247.42, which has been marked paid.

The stipulation of facts, which was signed by claimant’s attorney and the Attorney General for the State of Illinois, reads as follows:

“It is hereby stipulated by and between Walter H. Gifford, Jr., and the State of Illinois, through their counsels, Charles G. Lind and the Attorney General of the State of Illinois, respectively, as follows:
1. That on February 28, 1956, plaintiff’s automobile was damaged by a truck belonging to the Illinois National Guard, 234 E. Chicago Avenue, Chicago, Illinois, and that said truck was being driven by Sgt. Gus C. Anagnost, Battery A, 768th AAA Bn., Illinois National Guard.
2. That the accident took place on Chicago Avenue at Dearborn Street in Chicago, Illinois, and that plaintiff was not of fault.
3. That as a result of said accident plaintiff's car was damaged to the extent of $247.42 as per statement of the Davis Oldsmobile Company of Chicago, Illinois, dated March 5, 1956, a copy of which is attached hereto and marked exhibit A, and paid by check on March 10, 1956, a copy of which is attached hereto and marked exhibit B.
4. That the State of Illinois admits liability in the above matter, and that plaintiff has suffered damages to the extent of $247.42, plus cost of suit — exhibit C.
5. That plaintiff does not claim any personal injuries as a result of the accident herein mentioned.”

From the record in this case, including the stipulation, it appears that respondent’s vehicle was being driven by its agent, Sgt. Gris C. Anagnost, a member of the Illinois National Guard, in the regular course of his duty and scope of employment. Claimant had stopped in the line of traffic headed east on Chicago Avenue at its intersection with Dearborn Street in the City of Chicago, and respondent’s truck, while being- driven by Sgt. Anagnost, ran into the back of claimant’s vehicle. Sgt. Anagnost was unable to bring the truck to a stop, and the damages stipulated to in the amount of $247.42 resulted.

This record is sufficient to establish negligence upon the part of respondent, which proximately caused the damages in question, and due care and caution on the part of claimant. Therefore, this claim is hereby allowed in the sum of $247.42.


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    (No. 4765
    John Furry, Claimant, vs. State of Illinois, Respondent.

      Opinion filed March 26, 1959.
    John S. Gilster, Attorney for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant, John Furry, filed a complaint in this Court on March 6, 1957, for the recovery of damages to his left knee sustained in an accident, which occurred on March 11, 1955, while he was an inmate of the Illinois State Penitentiary at Menard, Illinois, serving a term from two to ten years.

On March 11, 1955, claimant was assigned to a detail to pick up loose rocks and place them in a car for removal to a rock crusher. The day previous, respondent’s agents and employees had blasted rock from a hill immediately above where claimant was working.

Apparently all of the loose rock on the hill above had not been removed or pushed to the ground below, where claimant and other inmates were working the following day, so that while claimant was so engaged and standing within 15 to 20 feet from the base of the cliff, a large rock, described as being approximately 300 to 500 lbs. in weight, fell from the cliff above.

It was the practice of the authorities in directing this work to be done to have the blasting operation followed by a clean up gang, who would remove and fell to the ground below all loose rocks, using crowbars to displace the rock, which might become disengaged and fall while the men were working below.

Claimant testified, and it was uncontradicted by respondent, that, after blasting operations the day before, the clean up gang did not remove the loose rock, and thereby provide a safe place for claimant and the other inmates to work the following day.

The negligence charged is that respondent assigned claimant to work in a place without providing safe conditions and failure to follow approved quarry practices. Other charges of negligence of respondent were also alleged in the complaint.

No answer having been filed by respondent under Rule 11 of this Court, a general traverse or denial of the facts shall be considered as filed.

Respondent did not offer any testimony at the hearing of this case before the Commissioner, but filed a Departmental Report, which is summarized as follows:

On March 11, 1955, at 8:45 A.M., John Furry was struck on the left knee by falling rock from overhead, while assigned to the quarry at the Illinois State Penitentiary at Menard, Illinois.

In obedience to an order of respondent’s agents he entered upon the performance of his work in the quarry, which consisted of picking up loose rocks, which had been blasted from the ground. He was then supposed to deposit them in cars to be conveyed to the rock crusher.

There is also attached to the Departmental Report an accident report with letter written by Dr. D. S. Wham, M.D., prison physician, directed to Mr. Ross V. Randolph, warden of the institution, dated April 5, 1957. Summarizing the report, the doctor says that Mr. Furry was brought to the prison hospital on March 11, 1955 after injuring his left knee in the quarry. His examination revealed a laceration on the left knee, which was leaking synovial fluid, indicating that the injury had penetrated the joint cavity. Treatment given at the time was the cleansing and suturing of the wound. Claimant was examined also by Dr. Weatherly, who examined the knee in April, 1955. His diagnosis was that a milk synovitis was present.

In May, 1955, further treatment of the knee was given because of further damage to it, which occurred when claimant was running; and at that time 40 cc of bloody fluid was withdrawn. In the meantime, he received treatment to the knee for residual discomfort and stiffness.

The report of Dr. Wham, dated April 5, 1957, indicated that a physical examination revealed pain, stiffness and weakness of the left knee with mild instability and a moderate limp while walking. There was no swelling or inflammation around the joint, and an x-ray taken on April 5, 1957 showed ah essentially normal knee joint with no evidence of inflammation or roughening of the joint surface.

Dr. Wham’s diagnosis was as follows:

“Mild chronic synovitis of the left.knee with a possible element of intra-articular and peri-articular soft tissue derangement. Much of the weakness is due to disuse atrophy, due to favoring the injured knee. Disability is minimal.”

Claimant was examined by Dr. Francis E. Bihss, who made a radiographic examination of the left knee, and reported:

“Reveals a deformity noted through the outer portion of the condyle of the tibia, with some irregularity of the tibia! spines. There is marked narrowing of the joint space between the lateral condyle of the tibia and the femur, indicating that there was an injury, probably, to the outer condyle of the tibia; however, the fracture line was not demonstrable at this examination. There is definite narrowing of the joint space between the lateral articulating portion of the femur and that of the condyle of the tibia.”

It was suggested at the time of the trial that an orthopedic surgeon be called in to examine claimant. This examination was made by Drs. Kilian F. Fritsch, Bart Cole and Lloyd Hill. This medical report was admitted in evidence, and reveals the following facts:

Claimant was examined in the doctors’ office on January 21, 1958. At the time of this examination, claimant stated that he had experienced locking of the knee; that the first thing in the morning the knee feels like it is going to buckle on him; that there is numbness around the knee joint; and, that the patient has not worked since his discharge. At the time of the examination he was still wearing an elastic bandage.

The doctors’ objective findings were that there was a scar 4 inches long over the medial side of the left knee, and that there is no lateral but some medial instability of the knee. There is no anterior or posterior instability. When he stands, with the knee slightly flexed, there is some instability of the medial side of the knee joint. There was no fluid in the knee joint at the time of the examination. Claimant stated to the doctors that he has some suffering in the left knee intermittently. There is complete flexion. From the measurements made, there appears to be no atrophy of the left leg. Subjectively, the patient stated that he has had quite a' bit of trouble with the left knee, and it locks on him at times, which indicates some injury to the medial knee cartilage, and a weakness of the medial collateral ligaments of the knee joint.

The doctors recommended that claimant should do quadriceps exercises, and use progressive resistance with weight lifting.

An x-ray taken at the time of the examination showed some deformity of the outer condyle of the tibia, and that there was a narrowing of the joint line laterally. The medial collateral ligaments were relaxed as a result of the tear and injury. The doctors estimated that claimant had about a 25% to 30% residual disability in the left leg.

Claimant testified that he was 28 years of age, and that his employment at the time he was committed to the penitentiary was a machinst and molder. His earnings were in excess of $2.00 an hour. Since the injury, he has been unable to stand on his leg for any considerable length of time, because of the weakness in his left knee. There is no evidence of a previous injury to the knee, which could be considered as a contributing factor.

From an examination of the record, which includes the Departmental Report and briefs and arguments submitted by both plaintiff and respondent, we believe that claimant has maintained the burden of proof in this case, and has established:

First: He was not guilty of contributory negligence.

Second: Respondent’s agents, the guards in charge of the duties assigned to claimant and others, were negligent in that they permitted the blasting of the rock above where claimant was working on the day of the accident without assigning a detail to clean up all of the loose rock before permitting claimant and others to work within 15 feet of the cliff.

Third: Claimant did suffer damage with approximately a 25% disability to his left leg by reason of the injury to his knee.

It is rather difficult to arrive at an amount for an award to be given claimant, inasmuch as this is not a compensation matter, but rather a common law action authorized by the laws of this State, made and provided thereby. This Court so held in the case of McElyea vs. State of Illinois, 7 C.C.R. 69.

There is no evidence as to what type of work claimant might do, and what he might earn upon being released from the penitentiary. From the record it appears that he was to be released the month following the date of the trial, which would have been in January of 1958.

We have no evidence as to loss of earnings due to the fact that he was confined to the penitentiary at the time of the hearing. If we were to use the compensation act as to a percentage of the loss of use of leg, we still would have to have a weekly rate in order to arrive at a fair and just amount for the injury.

Under the circumstances, it makes it somewhat speculative to arrive at a fair amount. The amount of the award will have to be based upon the medical testimony as to the limitation claimant has in his left leg, and the pain and suffering endured by him, and, in addition, consideration will have to be given to the length of time he was hospitalized. We are inclined to agree with the Commissioner, who recommended an award of $2,500.00 to this Court.

It is, therefore, the order of this Court that an award be made to claimant, John Furry, in the amount of $2,500.00.