text:
    (No. 5199
    Elaine A. Metzler, individually and as Administratrix of the Estate of Marvin Metzler, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1971.

    Philip E. Howard, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimant Elaine Metzler seeks recovery of the sum of $25,000 as a result of the death of her husband, Marvin Metzler, who was killed on April 13, 1964, when a tree situated next to U.S. Highway 14 (NorthwestHighway) fell upon the cab of the truck driven by decedent.

The parties have stipulated that claimant’s decedent, Marvin Metzler, was killed as a result of the accident and that the trees and the land upon which they were situated were owned and controlled by respondent.

Claimant presented several witnesses who testified as follows:

Lt. Irvin McDougall, a police officer of the Village of Arlington Heights, testified that he investigated the accident on Northwest Highway on the morning of the date in question. He found a large tree lying across the Highway completely blocking the street and a Readi-Mix truck about 222 feet west of the tree on the south side of the highway. A part of the base of the tree was in the ground and part of the base was out. The base was about 4 feet from the edge of the highway. The cab of the truck was smashed even with the top of the hood of the truck and there was a dent on the top part of the truck. The driver of the truck was flat on the seat of the truck and had no movement. The witness examined the tree involved in the occurrence and saw that it was hollow from the base upward, with decayed matter at the bottom. There were several other trees in the immediate area at that time. There was a heavy wind in the area at the time of the occurrence.

Manley Johnson testified that he wás driving a vehicle in a southeasterly direction on Northwest Highway as the tree fell on the truck. The witness saw the truck coming toward him in a northwesterly direction and noticed that it was in the proper lane for northwest traffic and was traveling at a rate less than the speed limit. The witness examined the tree after it fell and observed the trunk of the tree and the base of the tree were decomposed and rotten.

Paul Dolinajec, Jr., testified that he lived at the site of the accident for 43 years. Prior to April 13,1964, he noticed that there were little openings in the base of the tree which were visible from the exterior; that bark was missing towards the base of the tree; that the top branches were dying and that in his opinion, the tree was turning rotten. There were three other trees in the area which were in very bad shape, in the opinion of the witness.

Respondent introduced no witnesses or other evidence during the course of the hearing, but filed a Departmental Report with its brief.

Claimant cites the following cases in support of her claim against respondent: In Dreier vs. State, 21 C.C.R. 72, claimants recovered when a large limb from a tree fell on their car during a rain storm. It was established that the dangerous condition had existed for a length of time, although it was not clear that the State had actual notice of the defect. The Court quoted from the case of Renle vs. City of Chicago, 268 Ill. App. 266, which held that a city had the duty to remove any trees which become rotten or decayed in case the trees became a menace to pedestrians.

The Court in Dreier further stated, (p. 75):

“The position of the tree, and the enormous size of the limb overhanging the highway warranted a duty on the State to remove the same, if it were defective. That the State had knowledge is in conflict; that it had constructive knowledge seems borne out by the evidence, and required the State to exercise a duty to remove this dangerous obstacle; and from this record, its failure to do so constituted negligence.”

In Kenney vs. State, 22 C.C.R. 247, a tree limb fell on the decedent while he was on the State Fairgrounds, and killed him. The question arose as to whether respondent had actual or constructive notice of the defective condition of the tree. The Court held for the claimants, applying the doctrine of “res ipsa loquitur” as follows: (pp. 256,257, 258)

“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. . . .”
“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 that the foregoing standards apply directly to the instant ease. Respondent presented no evidence which tended to show that it exercised proper care, although claimant established that respondent knew or should have known about the defective tree.

Other evidence introduced by claimant established that the decedent was 35 years old at the time of his death; that he left surviving, his wife, Elaine Metzler, 39, and two children, ages 6 and 9; that he had been employed by the Edwin H. Mayer Construction Company for about thirteen years and had been so employed at the time of his death; and that his earnings in the years immediately preceding his death were as follows: 1961, $7,246.80; 1962, $8,548.70; 1963, $8,724.15. His family was completely dependent upon the decedent for its support. The United States Department of Health, Education and Welfare Life Tables indicated that the life expectancy of a white male of the age of 35 years is 36.3 years, and that the life expectancy of a white female of 41 years is 36.4 years.

Claimant is hereby awarded the sum of $25,000.


source: Caselaw Access Project

author: Perlin, C.J.

license: Public Domain

text:
    (No. 5243
    Marie Rivoltorto, George R. Pascucciello and Yolanda Romanazzi, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1971.

    Erwin M. Pearl, Attorney for Claimants.
    William G. Clark, Attorney General; Gerald S. Grobman, Assistant Attorney General, for Respondent.
   Perlin, C.J.

Claimants Marie Rivoltorto, George R. Pascucciello, and Yolanda Romanazzi seek recover)' of $20,000, $15,000 and $5,000, respectively for injuries incurred when an automobile in which they were riding collided with a snowplow truck owned and operated by respondent.

The facts are as follows:

Claimant, George R. Pascucciello, was driving a 1956 Chevrolet automobile in a northerly direction on the Eden’s Expressway on March 17,1965. Among his three passengers were* claimants Marie Rivoltorto and Yolanda Romanazzi. All were enroute to their employment at the Hanson Steel Company. A heavy snow was falling that morning. A State of Illinois snowplow operated by Noel Paul was plowing the left lane of the highway. The plow was traveling about 10 or 15 miles per hour. Claimant Pascucciello was traveling about 15 or 20 miles per hour in the middle lane of the expressway and was attempting to pass the snowplow when the snowplow skidded or the blade fell into the middle lane, colliding with claimants’ automobile.

Claimants must prove the following before they may recover: (1) freedom of claimants from contributory negligence, (2) negligence of respondent, (3) that respondent’s negligence was the proximate cause of their injuries and (4) damages.

Claimants contend that the driver of the State snowplow operated the same negligently and carelessly in that he suddenly, without warning, turned right from the passing lane into the lane of traffic on which the claimants’ vehicle was operating alongside the snowplow truck, and that the snowplow blade fell off the truck into claimants’ path.

The respondent contends that the driver of the State of Illinois snowplow truck operated his vehicle with reasonable care under the circumstances, to clear snow from the highway on a “very snowy, very icy, very slippery highway;" (there was about 3.9 inches of snow in the area) that the snowplow truck skidded on an icepatch and unavoidably swerved to the right; that claimants’ auto had been in a place of safety behind the snowplow; that there were warning lights on the truck; that claimant left the area of safety and tried to pass the snowplow truck on an uncleared path without giving sufficient clearance to pass-respondent’s vehicle; and that the driver of claimants’ car was contributorily negligent.

The respondent further charges that the passengers, Marie Rivoltorto and Yolanda Romanazzi, were guilty of contributory negligence because they allowed themselves to be placed in a condition of danger and did nothing to reduce or correct the danger, such as asking the driver of their auto to stay in the cleared path behind the snowplow or to avoid passing the truck too closely.

While the witnesses were not in agreement as to whether the snowplow blade suddenly fell in front of claimants' car or whether the truck skidded in front of claimants’ car, it would appear that respondent was negligent.

There was no evidence that claimant was contributorily negligent in passing the snowplow by traveling in the middle lane or not swerving into the third lane. Weather conditions were not too dangerous to permit driving on the expressway, as evidenced from the testimony which established heavy traffic using the road at the time of the accident.

The claimant cites the similar case of Hargrave vs. State, 24 C.C.R. 463, 467, in which the court stated:

“Respondent claims that this was an unavoidable accident. It is the opinion of the Court that die doctrine of res ipsa loquitur is properly applied in the case at hand, since, if proper care had been used, a snowplow frame does not ordinarily fall off a truck causing the truck to come to a sudden stop."

The doctrine of res ipsa loquitur has been defined as follows:

“When an injury is caused by an instrumentality under the exclusive control of the party charged with negligence, and is such as would not ordinarily happen if the party having control of the instrumentality had used proper care, an inference or presumption of negligence arises. The burden then rests upon the respondent to rebut the presumption of negligence arising from the facts of the case” (City of St. Louis vs. State, 24 C.C.R. 477, 479)

Claimants further urge that Noel Paul violated the Uniform Motor Vehicle Traffic Act, Illinois Motor Vehicle Code, Ch. 95½, Sec. 157, Ill.Rev.Stat., 1969, which provides that whenever any roadway has been divided into two or more clearly marked lanes of traffic, a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

In the opinion of the Court, the passenger claimants were not contributorily negligent and the injuries which they received were proximately caused by respondent’s negligence in failing to keep its vehicle under control and in its proper lane, or in failing to control the action of the snowplow blade.

It appears from the evidence that claimant, George Pascueciello, suffered back injuries and missed two weeks of work. Claimant, Marie Rivoltorto, had a fracture of her right wrist and missed 11 weeks of work. The evidence further shows that Yolanda Romanazzi expended $50.00 for medical expenses as a result of said accident, but she did not appear at the hearing.

Claimants are hereby awarded the following amounts: George R. Pascueciello is awarded the sum of $1,500; Marie Rivoltorto is awarded the sum of $5,000 and Yolanda Romanazzi is awarded the sum of $50.00.


text:
    (No. 5356
    American Oil Company Incorporated, A Corporation, Claimant, vs. State of Illinois, Various State Agencies, Respondent.

      Opinion filed May 11, 1971.

    Gillespie, Burke and Gillespie, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Berlin, C.J.

text:
    (No. 5650
    Harry Charneski, for the use of General Casualty Company of Wisconsin, Claimant, vs. State of Illinois, Illinois Youth Commission, Respondent.

      Opinion filed May 11, 1971.

    Gillespie, Burke and Gillespie, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


author: Holderman, J.

text:
    (No. 5652
    Judith M. Hilden, as Administrator of the Estate of Lowell R. Hilden, Deceased, and Judith M. Hilden, individually, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed May 11, 1971.

    Roszkowski and Paddock, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce J. Finne, Assistant Attorney General, for Respondent.
   Holderman, J.


text:
    (No. 5716
    Clark Oil and Refining Corporation, Claimant, vs. State of Illinois, Department of Public Safety, Respondent.

      Opinion filed May 11, 1971.

    Clark Oil and Refining Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5723
    House of Tools, Inc., Claimant, vs. State of Illinois, Department of Public Safety, Respondent.

      Opinion filed May 11, 1971.

    House of Tools, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5732
    Gulf Oil Corporation, Acting by and through Gulf Oil Company, U. S., A Division thereof, Claimant, vs. State of Illinois, Various State Agencies, Respondent.

      Opinion filed May 11, 1971.

    Gulf Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5735
    Thermo-Fax Sales, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 11, 1971.

    Thermo-Fax Sales, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5741
    C. E. Windsor, M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 11, 1971.

    Wiseman, Shaikewitz, McGivern, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5742
    Atlantic Richfield Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed May 11, 1971.

    Atlantic Richfield Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5745
    Nick Kerasiotis, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed May 11, 1971.

    Nick Kerasiotis, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5747
    Daniel J. Carroll, Jr., Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed May 11, 1971.

    Daniel J. Carroll, Jr., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5754
    The Springfield Mass Transit District, Claimant, vs. State of Illinois, State Fair Agency, Respondent.

      Opinion filed May 11, 1971.

    James M. Winning, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5756
    Andrew P. Adams, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 11, 1971.

    Michael R. Berz, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5757
    International Business Machines Corporation, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed May 11, 1971.

    International Business Machines Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5758
    Alton Memorial Hospital, Claimant vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 11, 1971.

    Alton Memorial Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5767
    Lyal Lauth, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1971.

    Lyal Lauth, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5778
    Kate Maremont Foundation, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    Rivers, Watt and Lockhart, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5780
    Mohawk Data Sciences Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed May 11, 1971.

    Mohawk Data Sciences Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5786
    Presbyterian-St. Luke’s Hospital, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 11, 1971.

    Presbyterian-St. Luke’s Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5793
    Abbey Rents, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 11, 1971.

    Abbey Rents, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5804
    Sun Oil Company, Claimant, vs. State of Illinois, Various State Agencies, Respondent.

      Opinion filed May 11, 1971.

    Sun Oil Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5822
    B. & B. Electric, Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed May 11, 1971.

    Graham and Graham, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5828
    Xerox Corporation, Claimant, vs. State of Illinois, Various State Agencies, Respondent.

      Opinion filed May 11, 1971.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5892
    Charles McCorkle, Jr., Claimant, vs. State of Illinois, Governor’s Revenue Study Committee, Respondent.

      Opinion filed May 11, 1971.

    Charles McCorkle, Jr., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5893
    Myers Brothers, Inc., Claimant, vs. State of Illinois, State Fair Agency, Respondent.

      Opinion filed May 11, 1971.

    Myers Brothers, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5914
    Kennedy Valve Manufacturing Company, Inc., A Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 11, 1971.

    William E. Aulgur, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5939
    Salvadore Herrera, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    Jerome J. Kornfeld, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5951
    Alexander Lumber Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed May 11, 1971.

    Alexander Lumber Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5966
    St. Francis Hospital, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    St. Francis Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5972
    Carl Anis, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    Carl Anis, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5973
    Eastman Kodak Company, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed May 11, 1971.

    Eastman Kodak Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5974
    Robeson’s, Inc., Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    Robeson’s. Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5975
    International Business Machines Corporation, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed May 11, 1971.

    International Business Machines Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5979
    George M. Borin, M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed May 11, 1971.

    George M. Borin, M.D., Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5987
    Famous Barr Company, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 11, 1971.

    Famous Barr Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6001
    Prairie Farms Dairy, Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 11, 1971.

    Prairie Farms Dairy, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6003
    Lewis Motor Supply, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed May 11, 1971.

    Lewis Motor Supply, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6008
    Bureau of Business Practice, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed May 11, 1971.

    Bureau of Business Practice, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6017
    Berry Business Interiors, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed May 11, 1971.

    Berry Business Interiors, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6028
    W. C. Barrow, M.D., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.
    Opinion filed May 11, 1971.

    W. C. Barrow, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6029
    St. Mary’s Hospital, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 11, 1971.

    St. Mary’s Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6030
    St. Mary’s Hospital, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 11, 1971.

    St. Mary’s Hospital, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6034
    E. Andri, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed May 11, 1971.

    E. Andri, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6035
    FS Services, Inc., Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed May 11, 1971.

    Illinois Agricultural Association and Affiliated Companies, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6037
    McDonnell Automation Company, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed May 11, 1971.

    McDonnell Automation Company, Claimant, pro- se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6042
    Petrolane Gas Service, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed May 11, 1971.

    Petrolane Gas Service, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6088
    County of Cook and Cook County Department of Public Aid, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed May 11, 1971.

    Edward V. Hanrahan, Attorney for Claimants.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


author: Bookwalter, J.

text:
    (No. 5419
    James McHugh Construction Company, an Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed December 18, 1969.

      Petition of Respondent for Rehearing denied June 9, 1971.

    Korshak, Rothman, Oppenheim and Finnegan, Attorney for Claimant.
    William J. Scott, Attorney General; Morton L. Zaslavsky, Assistant Attorney General, for Respondent.
   Bookwalter, J.

This is an action by the claimant, a general contractor, to recover $78,000.00 in penalties assessed against it as liquidated damages by respondent for failure to complete a pier cell construction contract on time.

The facts show that on August 14, 1963, claimant entered into a contract with The Department of Public XVorks and Buildings to construct eight cells for the protection of future bridge piers over the Chicago and Sanitary Ship Canal. The contract provided for completion by December 2, 1963, or, “on or before a later date determined as specified herein; otherwise, the Department shall proceed to collect liquidated damages described hereinafter.” The liquidated damages for failure to meet the completion date were $1,000.00 per day. The project was finished on March 26, 1964.

The issue in this case is whether the causes of delays, which prevented the timely completion of the pier cells, were the types of causes, which would warrant, under the contract, extensions of time.

The applicable provision of the contract is as follows:

“When a delay occurs due to unforeseen causes beyond the control and without the fault or negligence of the contractor, including but not restricted to acts of God, acts of the public enemy, governmental acts, fires, floods, epidemics, strikes (except those caused by improper acts or omissions of the contractor), extraordinary delays in delivery of materials caused by strikes, lock-outs, wrecks, freight embargoes, governmental acts, or acts of God, the time of completion shall be extended in whatever amount is determined by the Department to be equitable.

The State allowed three extensions of time under this provision of the contract extending the completion date from December 2,1963, through January 8,1964. No other extensions were allowed, and consequently the State withheld $78,000.00 from the contract price, representing $1,000.00 per day for the seventy-eight days from January 8,1964, to March 26,1964, the actual completion date of the contract.

Claimant, according to evidence introduced at the hearing, made various requests for extensions of time, which, if allowed, would have extended the completion date past January 8, 1964. These requests and their alleged justification were set forth in Paragraph 5a through e, of claimant’s complaint. As to each of these requests, it is incumbent upon claimant to show by a preponderance of the evidence that respondent should have allowed extensions of time as the contract provided.

Claimant requested extensions for delays caused by unanticipated subsurface conditions. The drawings furnished by the State indicated that claimant would encounter the subsurface condition known technically as “Class B Excavation”. This was not in fact encountered. Instead the material found was of a fine, silty nature making it difficult to pump out the water, and to achieve a “seal” in installing the steel sheeting for the cells. Twenty-seven additional calendar days were required to install the steel sheeting under these conditions. Also the drawings did not indicate that claimant would encoupter “shot” rock, e.g., rock fragments produced in times past by blasting, possibly during the original construction of the canal. Excavating through the “shot” rock to solid rock consumed an additional twenty-three days. These delays were the basis of a fifty day extension request made by claimant.

Claimant’s witnesses testified that the State, when it furnished drawings to bidders on the cell contract, had in its possession boring logs, which showed the true subsurface condition of the area. These boring logs contradicted the representations made in the drawings furnished bidders on the cell contract. Claimant discovered the existence of the boring logs when they bid unsuccessfully on the pier contracts, which were let after the cell contracts.

Claimant’s exhibit No. 5 went into great detail in describing the subsurface conditions, which the boring logs indicated would be found on the job site. The exhibit in effect shows that Class B Excavation, which was stated to exist in the contract plans, was not actually going to be present.

Article 2.3 of the Standard Specifications reads as follows:

“When plans or special provisions included information pertaining to subsurface exploration, borings, test pits, and other preliminary investigation, such information represents only the opinion of the Department as to location, character and quantity of material encountered, and is only included for the convenience of the bidder. The Department assumes no responsibility whatsoever in respect to the sufficiency or accuracy of the information and there is no guarantee, either expressed or implied, that the conditions indicated are representative of those existing throughout the work or that unanticipated developments may occur.”

The problem arises in how to relate Article 2.3 with those portions of the special provisions quoted earlier relating to delays due to unforeseen causes beyond the control and without the fault of the contractor. In the opinion of this Court it does not seem reasonable, and from the evidence is not generally required, that a contractor individually go onto a job site such as this, and make soil borings and other subsurface explorations before bidding the job. It appears from the evidence that the State could have revealed the true information as to subsurface conditions, but for some reason did not do so. Taking these two facts into account, and the fact that Article 2.3 acknowledges the possibility of “unanticipated developments”, an extension of fifty days as requested by claimant should have been allowed, as the delay was beyond the control and without the fault of the contractor.

A request for an extension of seventy-two days was made by claimant for alleged delays caused by the fact that two cells were damaged by barges using the canal, and that these cells had to be repaired and rebuilt. The State allowed a twenty-five day extension, but disallowed the remaining forty-seven days of the request.

There is nothing in the evidence, which would indicate that claimant did not have either of the cells adequateley lighted to avoid possible collision by traffic using the canal. It is true that after the first collision claimant did not change its lighting protection, but there has been no showing that the lighting in the first instance was inadequate. Claimant should have been given the remainder of the seventy-two day extension request, that being forty-seven days.

Having found that a fifty day extension for delays caused by subsurface conditions and a forty-seven day extension for delay due to cell damage should have been allowed by respondent, claimant is hereby awarded the amount of $78,000.00.


author: Burks, J.

text:
    (No. 5565
    Mary Weishaar, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 9, 1971.

    Krusemark and Bertani, Attorney for Claimant.
    William J. Scott, Attorney General; Bruce J. Finne, Assistant Attorney General, for Respondent.
   Burks, J.

Miss Mary Rose Weishaar, the claimant, was 66 years of age when she was injured in an accident on April 6,1968, on the Jackson Street drawbridge in Joliet. This drawbridge, owned and operated by the respondent, is lifted when necessary to allow passage of river traffic beneath it. The bridge opens in the center when the east and west portions are raised up at a sharp angle. A bridge tender, employed by the respondent, operates the bridge.

Miss Weishaar was walking in an easterly direction from her home to downtown Joliet and was proceeding across the drawbridge in the pedestrian walkway when the accident occurred. She had almost crossed the bridge and was within a few feet of the eastern end when the bridge began to open. As the walk that she was on began to raise, the claimant grabbed on to the guard rail but fell across and onto the stationary portion of the concrete walkway. She sustained some bodily injuries described later in this bpinion.

The complaint charges that claimant’s injuries were caused by negligence on the part of respondent’s employee, the bridge tender, in that he failed to keep a proper lookout for pedestrians crossing said bridge on the pedestrian crosswalk; failed to give timely warning to the claimant that the bridge was to be opened; and that he opened the bridge when he knew or should have known that a pedestrian was on the walk of the bridge.

The undisputed facts show that claimant certainly had no advance warning that the bridge was going to be raised when she walked on to it. The gate was not down; no bells were ringing; no lights were flashing. It is our opinion that the open gate and the absence of any audible or visual warning signals could properly be regarded by the claimant as an invitation for her to proceed. Simoneaux vs. State Dept. of Highways (La) 90 ALR2d 100.

The bridge tender, in his testimony as to the procedure for opening the bridge, stated that he first puts on a signal that blows a whistle; then pushes a button for bells and lights which go on a few seconds before the first gate goes down; that when the west gate closes behind the eastbound traffic on the bridge, there is a waiting period of several seconds before the east gate will close; that this intervening period, timed automatically, is apparently calculated to be adequate for traffic on the bridge to clear off at normal traveling speed. That the bridge will not open until all this has been done; and that, even when the gates are down and the signals are on, the bridge tender does not raise the bridge until he has looked to see if any pedestrians may be on the bridge.

The bridge tender’s visual observation to determine whether pedestrians may be on the bridge is, in our judgment, required and implicit in his duty to exercise reasonable care and to take reasonable precautions for the safety of travelers over the structure. 39 Am.Jur.2d,Highways, Streets and Bridges, Sec. 553. Such visual observation is especially necessary for the protection of older people, like the claimant, who may not walk or be able to walk as fast as the average person.

In this case, the bridge tender said that he looked but did not see the claimant when he raised the bridge. Respondent apparently attempted to excuse its employee’s failure to see the claimant by putting in photographic evidence showing that there were certain places on the bridge where a pedestrian could not be seen from the bridge tender’s house. At such points the bridge tender’s vision was obscured by the super-structure of the bridge. This fact, it seems to us, acknowledges that a hazardous situation exists which should have been known to the bridge tender and which increases the degree of care he was required to exercise for the protection of a pedestrian.

The claimant was entirely free from fault and is entitled to recover a reasonable amount in damages for her injuries.

Immediately after her fall, claimant was taken by ambulance to St. Joseph’s Hospital where she remained for two weeks. Her injuries consisted of contusions about her body, but x-rays revealed no broken bones. She suffered a back strain and a rather severe contusion on her left leg. She also broke a cyst formation on her left breast which is medically referred to as a carcinoma. The cyst on claimant’s chest, of course, was not due to the accident on the bridge but was aggravated by its causing the cyst to bleed. Cobalt treatments were prescribed by her physician. Her hospital and medical bills totalling $782.70 were paid by her insurance companies.

The claimant was semi-retired but sold greeting cards from door to door earning approximately $25 per month. She was prevented from conducting her occupation for approximately 11 months due to her injuries resulting in a loss of income amounting to approximately $275.

Claimant asked, in her complaint, for damages in the amount of $5,000.00. Based on a careful evaluation of claimant’s relatively minor injuries due to this accident and weighing all other factors involved, we feel that an award for damages in the amount of $3,000.00 would be fair and reasonable and justified. Our order will be based on our finding that claimant has proved her case for damages in the amount of $3,000.00.

The claimant was, at the time of the accident, a recipient of public assistance from the Illinois Department of Public Aid. Said Department, as required by law, filed with this Court on June 11, 1970, a petition requesting this Court to enforce the Department’s charge against any award that may be entered for the claimant in this cause of action. The amount of the Department’s charge against the award is the amount of medical assistance the Department has provided to the claimant from the time of her injury to the date her award is entered, pursuant to the provisions of Ch. 23, Sec. 11-22, Ill.Rev.Stat., 1969. This section excludes from its applicability only three classes of claims or causes of action, namely, those arising under (a) the “Workmen’s Compensation Act”, (b) the “Workmen’s Occupational Diseases Act” and (c) the “Wrongful Death Act”. Hence we conclude that the said law applies to actions brought in the Court of Claims and that we must recognize the charge of the Illinois Department of Public Aid as stated in its intervening petition.

The total amount of the charge which the Department of Public Aid claims against the award in this case is $89.30. This is the amount paid to or on behalf of the claimant for medical assistance only. The Department claims no charge for the total amount of aid provided to the claimant to meet her basic maintenance requirements since the claimant was not considered to be employable at the time of her injury. Since the Department of Public Aid is an agency of the respondent, we do not believe it is necessary for the Court to request the legislature to appropriate $89.30 out of one of the respondent’s pockets, the general revenue fund, and put it in another, the Department of Public Aid. The same ultimate result can be accomplished by considering the Department’s charge of $89.30 as a set-off against the total award of $3,000.00, making the claimant’s net award $2,910.70.

The penultimate paragraph of the aforesaid Section 11-22 of the Public Aid Code states: “This Section shall not affect the priority of an attorney’s lien under ‘an act concerning attorney’s lien’ and for the enforcement of same” (Ch. 13, Sec. 14, Ill.Rev.Stat., 1969). Hence we must also recognize the attorney’s lien duly filed with this Court by the law firm of Krusemark and Bertani of Joliet, attorneys for the claimant. Said attorneys represented the claimant in this action on a contingent fee basis and have a lien against the award for services rendered to añd on behalf of the claimant and for costs incurred. Since the statute provides that the attorney’s lien has priority over the charge claimed by the Illinois Department of Public Aid, the attorney’s fee would properly be based on the total award of $3,000.00 rather than the net amount as reduced by the Department’s charge.

Subsequent to reaching its decision in this matter and just prior to filing this opinion, the Court was duly advised by attorneys for the claimant, that the claimant, Mary Weishaar, died on April 12,1971; and that her estate will be handled by the public administrator, Mr. William Kaplan, 5 East Van Burén Street, Joliet, Illinois.

Under these circumstances the award in this case must be made to the claimant’s estate, and claimant’s attorneys will have a claim against said estate for the amount of their lien. The charge of the Department of Public Aid having been recognized by a set-off against the total award, an award to claimant’s estate is hereby made as follows:

To the estate of Mary Weishaar, deceased, the sum of $2,910.70.


text:
    (No. 5477
    Henson & Mills Oil Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 30, 1971.

    William R. Todd, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5584
    Peter Stavros, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Thomas, Kostantacos and Traum, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Stipulation of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim in the amount of $342.52 is for food services rendered by the claimant to patients of the Department of Mental Health during the month of July, 1967, and that the reason said amount was not previously paid is that due to an erroneous interpretation of departmental rules, this sum was sent to the New Elms Hotel, which sum was to be remitted to the claimant.

IT IS HEREBY ORDERED that the sum of $342.52 be awarded to claimant in full satisfaction of any and all claims presented to the State under Cause No. 5584.


text:
    (No. 5615
    Mobil Oil Corporation, A Corporation, Claimant, vs. State of Illinois, Various State Agencies, Respondent.

      Opinion filed August 30, 1971.

    Giffin, Winning, Lindner, Newkirk and Cohen, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5645
    Springfield Radiologists, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    Springfield Radiologists, Claimant, pro se.

      William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5714
    Ronald Allen Simmons, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Edward Zukosky, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim arose as a result of a Safety Responsibility Deposit belonging to the claimant being deposited in the State Treasury where the Office of the Secretary of State was unable to retrieve it to return it to the claimant.

IT IS HEREBY ORDERED:

1. That the sum of $250.00 be awarded to claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 5744
    Clark Randolph House d/b/a Sherman House, Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 30, 1971.

    Sidney D. Komie, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5749
    Wieboldt Stores Inc., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Wieboldt Stores Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5773
    Carl Anis, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Carl Anis, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5783
    Dortch The Mover, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Dortch The Mover, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5789
    William J. Schnabel, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    William J. Schnabel, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5798
    James L. Lewis, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    James L. Lewis, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5801
    The Children’s Memorial Hospital, An Illinois Corporation, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

      ■ Wilson and McIlvaine, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5874
    Charles W. Billingslea, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Richard F. McPartlin, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulátion of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim in the amount of $7,434.88 is for back salary due the claimant from the Department of Labor for the period May 30,1967, through May 6, 1968.

IT IS HEREBY ORDERED that the sum of $7,434.88 be awarded to claimant in full satisfaction of any and all claims presented to the State under Cause No. 5874.


text:
    (No. 5906
    Michael Reese Hospital and Medical Center, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    Michael Reese Hospital and Medical Center, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5929
    McHenry Sand and Gravel Company, Inc., Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed August 30, 1971.

    William M. Carroll, Jr., Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5994
    Geraldine T. Hubbard, as Executrix of the Estate of Emery Hubbard, deceased, Claimant, vs. State of Illinois, Illinois Youth Commission, Respondent.

      Opinion filed August 30, 1971.

    Knuppel, Grosboll, Becker and Tice, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6000
    American Hospital Supply, Inc., Claimant, vs. State of Illinois, Department of Corrections, Respondent.

      Opinion filed August 30, 1971.

    Giffin, Winning, Lindner, Newkirk and Cohen, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6015
    International Business Machines Corporation, Claimant, vs. State of Illinois, Auditor of Public Accounts, Respondent.

      Opinion filed August 30, 1971.

    Pretzel, Stouffer, Nolan and Rooney, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6016
    Bolton Enterprises, Inc., Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed August 30, 1971.

    Bolton Enterprises, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6044
    Sieg Peoria Company, An Illinois Corporation, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed August 30, 1971.

    Donald G. Beste, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6046
    Burroughs Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    Davis, Dietch and Ryan, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6047
    Sax Arts & Crafts, Claimant, vs. State of Illinois, Department of Public Health, Respondent.

      Opinion filed August 30, 1971.

    Sax Arts & Crafts, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6050
    Minnesota Mining and Manufacturing Company, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed August 30, 1971.

    Charles W. Ott, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6053
    P. Sidney Neuwirth, M.D., Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 30, 1971.

    P. Sidney Neuwirth, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6054
    John B. Cunningham, Claimant, vs. State of Illinois, Whiteside County Circuit Magistrate, Respondent.

      Opinion filed August 30, 1971.

    John B. Cunningham, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6058
    Carl Anis, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Carl Anis, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6059
    The Lawyers Co-Operative Publishing Company, Claimant, vs. State of Illinois, Attorney General’s Office, Respondent.

      Opinion filed August 30, 1971.

    The Lawyers Co-Operative Publishing Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6062
    Norman E. Larson, M.D., Claimant, vs. State of Illinois, Division of Health Care Facilities and Chronic Illnesses, Respondent.

      Opinion filed August 30, 1971.

    Altman, Kurlander and Weiss, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6063
    Norman E. Larson, M.D., Claimant, vs. State of Illinois, Division of Health Care Facilities and Chronic Illnesses, Respondent.

      Opinion filed August 30, 1971.

    Altman, Kurlander and Weiss, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6064
    Charles L. Carroll, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Charles L. Carroll, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6065
    International Business Machines Corporation, A New York Corporation, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    Pretzel, Stouffer, Nolan and Rooney, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6066
    Leonard Colbert, as Administrator of the Estate of Ida Perry, deceased, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Leonard Colbert, Claimant, pro se.

      William J. Scott, Attorney General; Edward L.S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6068
    Florence Crittenton Peoria Home, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Florence Crittenton Peoria Home, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6069
    Mary Crane Nursery School, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Mary Crane Nursery School, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6070
    Freeport Memorial Hospital, A Non-Profit Illinois Corporation, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    John G. Whiton, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6073
    Fidelity and Deposit Company of Maryland, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed August 30, 1971.

    Dent, Hampton and Doten, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6074
    Sandor Kirsche, d/b/a Thrifty Food Mart, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Silberman and Silberman, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6075
    Lord, Bissell and Brook, Claimant, vs. State of Illinois, Department of Financial Institutions, Respondent.

      Opinion filed August 30, 1971.

    Lord, Bissell and Brook, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6076
    M. D. Apple, D.D.S., Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    M. D. Apple, D.D.S., Claimant, pro se.

    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6077
    International Business Machines Corporation, Claimant, vs. State of Illinois, Commission of Human Resources, Respondent.

      Opinion filed August 30, 1971.

    International Business Machines Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6078
    Winfield, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Winfield, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6087
    Pioneer Press, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed August 30, 1971.

    Pioneer Press, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6089
    Dictaphone Corporation, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Dictaphone Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6092
    Leo W. Dunn, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed August 30, 1971.

    Leo W. Dunn, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6095
    Betty L. Reinschmidt, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Betty L. Reinschmidt, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6096
    Carl F. Hamilton, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    Carl F. Hamilton, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6099
    Jerome H. Torshen, Ltd., Claimant, vs. State of Illinois, Department of Insurance, Respondent.

      Opinion filed August 30, 1971.

    Jerome H. Torshen, Ltd., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6100
    Nalco Chemical Company, Claimant, vs. State of Illinois, Divison of Highways, Respondent.

      Opinion filed August 30, 1971.

    L. H. Lemieux, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6101
    Carroll Seating Company, Inc., Claimant, vs. State of Illinois, Department of General Services, Respondent.

      Opinion filed August 30, 1971.

    Carroll Seating Company, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6102
    Fruit Belt Service Company, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 30, 1971.

    Fruit Belt Service Company, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6104
    Xerox Corporation, Claimant, vs. State of Illinois, Office of the Attorney General, Respondent.

      Opinion filed August 30, 1971.

    Xerox Corporation, Claimant, pro se.
    William J. Scott, Attorney General; Edward L.S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6105
    Basilius Zaricznyj, M.D., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Basilius Zaricznyj, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. W'ebber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6107
    Michael A. Bowden, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Michael A. Bowden, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6108
    Oklahoma State University of Agriculture and Applied Science, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    Ray Lee Wall, Attorney for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6110
    Watring Bros., Inc., A Wisconsin Corporation, Claimant, vs. State of Illinois, Department of Conservation, Respondent.

      Opinion filed August 30, 1971.

    Lidschin & Pucin, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6114
    Lottie Fuller, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Lottie Fuller, Claimant, pro se.
    William J. Scott, Attorney General; Edward L.S. Arkema, Jr., Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6115
    Larry L. Blum, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Larry L. Blum, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6117
    Northeast Community Hospital, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Northeast Community Hospital, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6121
    Rosecrance Memorial Homes for Children, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Rosecrance Memorial Homes for Children, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6122
    Rosecrance Memorial Homes for Children, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    Rosecrance Memorial Homes for Children, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6123
    Kaiser Agricultural Chemicals, A Division of Kaiser Aluminum and Chemical Sales, Inc., Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed August 30, 1971.

    Kaiser Agricultural Chemicals, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6124
    The Fleischli Medical Group, Claimant, vs. State of Illinois, Division of Vocational Rehabilitation, Respondent.

      Opinion filed August 30, 1971.

    The Fleischli Medical Group, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6126
    Dean C. Lahue, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Dean C. Lahue, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6128
    Textile Industries, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Textile Industries, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Edward L.S. Arkema, Jr., Assistant Attorney General, Respondent.
   Perlin, C.J.


text:
    (No. 6131
    Pettitt Photo Service, Claimant, vs. State of Illinois, Department of Public Works and Buildings, Respondent.

      Opinion filed August 30, 1971.

    Pettitt Photo Service, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6135
    William T. Osmanski, D.D.S., Claimant, vs. State of Illinois, Department of Registration and Education, Respondent.

      Opinion filed August 30, 1971.

    William T. Osmanski, D.D.S., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6138
    Samantha J. Moore, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Jerome J. Kornfeld, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6140
    The Joliet Medical Group, Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 30, 1971.

    The Joliet Medical Group, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6142
    Superior Management Company, Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Superior Management Company, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6144
    The Lake Erie Chemical Company, Claimant, vs. State of Illinois, Department of Law Enforcement, Respondent.

      Opinion filed August 30, 1971.

    Smith and Wesson, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6153
    Springfield Internal Medicine Associates, S.C., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Springfield Internal Medicine Associates, S.C., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6161
    First Distributors, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    First Distributors, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6170
    Barry and Kay, Inc., Claimant, vs. State of Illinois, Illinois Youth Commission, Respondent.

      Opinion filed August 30, 1971.

    Ettelson, O’Hagan, Ehrlich and Frankel, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6171
    Gulf Oil Corporation, Acting by and through Gulf Oil Company, U.S., A Division thereof, Claimant, vs. State of Illinois, Department of Aeronautics, Respondent.

      Opinion filed August 30, 1971.

    Gulf Oil Corporation, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6174
    Parke Dewatt Laboratories, Inc., An Illinois Corporation, d/b/a Central X-Ray, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Richard Gigante, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6176
    Stapleton Ford Sales, Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    Stapleton Ford Sales, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6177
    Robert F. Godfrey, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Robert F. Godfrey, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General' for Respondent.
   Perlin, C.J.


text:
    (No. 6179
    Security Bank and Trust Company, Cairo, Illinois, A Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Lansden and Lansden, Attorneys for Claimant.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6180
    Leonard W. Benn d/b/a L. W. Benn Company, Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed August 30, 1971.

    Leonard W. Benn, Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6183
    Dale P. Rufus, Claimant, vs. State of Illinois, Department of Revenue, Respondent.

      Opinion filed August 30, 1971.

    Dale P. Rufus, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6189
    Commerce Cleaning House, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    Commerce Cleaning House, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6190
    Treck Photographic, Inc., Claimant, vs. State of Illinois, Secretary of State, Respondent.

      Opinion filed August 30, 1971.

    Treck Photographic, Inc., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6191
    State Farm Insurance Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed August 30, 1971.

    Garretson and Santora, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim in the amount of $850.00 is based on reimbursement for monies paid to the State of Illinois, Division of Highways, for the damage to a light pole, under the assumption that said light pole was owned by the State of Illinois, and that it was subsequently discovered that said light pole was not the property of the State of Illinois after payment by the claimant was deposited with the General Revenue Fund.

IT IS HEREBY ORDERED that the sum of $850.00 be awarded to claimant in full satisfaction of any and all claims presented to the State under Cause No. 6191.


text:
    (No. 6192
    Best Realty, Inc. Claimant, vs. State of Illinois, Department of Public Aid, Respondent.

      Opinion filed August 30, 1971.

    Sheldon Belofsky, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. W'exler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6202
    Empire Moving and Warehouse Corporation, Claimant, vs. State of Illinois, Department of Human Relations, Respondent.

      Opinion filed August 30, 1971.

    Empire Moving and Warehouse Corporation, Claimant, pro se.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 5301
    Holiday Edwardsville Holding Company and Bluff Road Development Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1971.

    John F. O’Connell, Attorney for Claimants.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Holderman, J.

This is an action whereby Holiday Edwardsville Holding Company and Bluff Road Development Company seek to be indemnified for sums paid out by them in settlement of a personal injury suit. The personal injury action was brought by Mildred Stewart against the claimants for injuries received by her on March 30,1963. On that evening, around 11:00 o’clock she was driving a motor vehicle on a State Highway near the intersection of Illinois State Route 157 and U.S. By-Pass 66, in Madison County, Illinois. It was raining heavily. As she approached the intersection, her car skidded and spun around, striking a light standard on the east shoulder of the highway. The highway was in a very hazardous condition due to the large amount of water and mud that was on it.

(Here are the facts.) About 4 months before the accident, the claimants, who owned the property adjacent to the highway, commenced work on the land preparatory to making an improvement. They scarified the top and the sides of a hill, removing brush and grass. While this work was going on, the Field Engineer of the Department of Public Works and Buildings, Division of Highways, informed the claimants that what they were doing would result in large amounts of mud and silt being washed onto the highway whenever it rained.

The highway and the drains had previously been constructed to handle normal amounts of drainage. Apparently there had been no difficulty previous to the time the claimants scarified their adjoining land. The area scarified was about 1,000 feet wide and a quarter of a mile along the highway with a slope of about a 45° angle. The Field Engineer suggested to claimants that they could leave strips of vegetation to hold back the drainage run-off and that they could terrace the hillside. Claimants refused to follow the advice or suggestions of the Field Engineer.

The claimants admit in their argument that there is no dispute but what the water and silt came from the claimants’ land and that there had been an increased flow of water and dirt after the claimants had scarified the hill. They further admit that they would be liable to parties injured for injuries received from the hazardous condition of the highway. They argue, however, that the conduct of the claimants was harmless, and that the injury to the motorist would never had occurred if the State had performed its duty of maintaining the highway ditches and culverts or of warning motorists.

In her suit against the claimants, Mildred Stewart claimed that claimants were negligent in several respects. She claimed that the claimants caused the mud to accumulate on the roadway; that they graded and excavated a hill adjacent to the highway in such a manner as to cause it to drain out onto the highway. She also alleged that the claimants were negligent in failing to warn her of the dangerous condition, and that they failed to have the dangerous condition corrected by removing the dirt and mud.

There is no dispute in the case as to how the accident happened. The case went to trial and after 2 days, settlement was made by payment of $9,000.00 total to the injured motorist for her injuries. No question is raised (anyway) on the good faith of claimants in making the settlement, nor do we raise any such question.

Claimants’ theory here is that they were “passively” negligent only and that the State of Illinois was “actively” negligent and that therefore claimants have a right to be indemnified for the amounts paid out by them in settlement.

The primary issue involved before this Court is whether or not under the facts of the case the claimants were “passively” negligent insofar as the injured party was concerned and whether or not under the facts of the case the State of Illinois was “actively” negligent. If claimants were actively negligent, they have no right of indemnity.

It is clear that in Illinois there is no contribution among joint tort-feasors. However a tort feasor who is only “passively” negligent is entitled to indemnification from a tort feasor who is “actively” negligent. Griffiths and Son Co. vs. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739.

The distinction between “active” and “passive” negligence has been said to be one which is “court made” and that there is no single comprehensive definition thereof; also, it is said that the cases have been decided on the facts of each case. See Topel vs. Porter, 237 N.E. 2d 711. The Topel case held a lessee “actively” negligent in a situation where its negligence was failure to have a safety test of an elevator. In other words, negligence by omission. In the Topel case also, the Court quoted from McFall vs. Compagnie Maritime Beige, 304 N.Y. 314, 107 N.E. 2d. 463, where the New York Court said, quoted Page 472 of 107 N.E. 2d. that active negligence could consist of either a fault of omission or one of commission.

This Court is called upon to determine whether or not the facts were such that it could be said that the claimants here were actively negligent or passively negligent. If they were actively negligent, they would have no right of indemnification.

This Court holds that the claimants were “actively” negligent and therefore would have no right to indemnity from the State.

We need not, therefore, concern ourselves with any other issue in the case.


text:
    (No. 5605
    Clair J. Ferry and Grain Dealers Mutual Insurance Company, A Corporation, Claimants, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1971.

    Holtan and Garrity, Attorney for Claimants.
    William J. Scott, Attorney General; Bruce J. Finne, Assistant Attorney General, for Respondent.
   Holderman, J.

This case originated with the filing of the Complaint by Clair J. Ferry and Grain Dealers Mutual Insurance Company, a Corporation, against the State of Illinois.

The contention is that the respondent was guilty of negligence in not having adequately warned the traveling public on Route 20, near Galena, Illinois, of repair work on said State highway.

In particular, the action was brought under Ch. 37, Sec. 439(8) of the Ill. Rev. Stat., 1969, to recover for damages occasioned by the alleged negligence of the State of Illinois in failing to warn adequately of a hazardous excavation on the highway.

Clarence Smith was a truck driver for claimant, Clair J. Ferry, at the time of the accident which occurred approximately two miles east of Galena, Illinois. He testified that the road in the area of the accident was quite curvy and that part of the road was excavated so that there was one-way traffic. He testified to the fact that upon coming around the curve, without seeing any warning signs, he saw a working crew some distance ahead of him, the excavated portion of the pavement, and another truck coming from the other direction, that he applied his brakes and the truck jackknifed and that he eventually came to a halt at the scene of the repair work, causing the damage. He further testified that he missed seeing one construction sign, which was approximately 150 yards from the place of the accident and that he had not seen any other signs.

His testimony was to the effect that it had started raining shortly before the accident in question. He had been issued a ticket for speeding and not having his vehicle under control and pled guilty to this charge and further testified that he did so simply as a matter of convenience rather than make the long trip back from Pennsylvania.

He further testified that when he got out of the truck, one of the workmen asked him if he was hurt and he said “no” and the workman allegedly said, “I bet you we get a flagman out here, there’s no flagman, I bet you we get one.”

The testimony of the truck driver is in direct contradiction to one George H. Speith who, at the time of the accident, was the foreman on this particular repair job where the accident occurred but, at the time of the Hearing, was no longer employed by the State of Illinois and had not been for some time.

Hetestified to the effect that he had placed three warning signs in the area of the accident, the first one approximately 500 feet away from the accident, the second one about 1,0 feet from the accident and the third one

about 1,500 feet from the accident. The first sign, which was a 48 inch square sign, stated “one lane road ahead,” the second was a sign with a red flag on it and stated r”road construction ahead” and the third sign stated “rrht lane closed ahead.” He also testified that there were two barricades in front of the patch and they had blinking lights on them. Pictures of all three signs are in the record as exhibits.

The record andranrri of evidence in thi cs are wanting inmanrespects in establihing a claim against respondent, especially whr rspondent had set up safeguards in warning the public who were going through the area in question at the time of the accident.

Respondent is not an insurer of all persons traveling upon its highways. Where repair work is taking place, all the respondent has to do is use reasonable safeguards in warning the traveling public of the locations where such work is in progress. We believe, from the record, that respondent had, by posting of the signs, given the public ample warning and notice of the dangerous condition in tte area in whic was driving when the accident occurred.

The law in the State of Illinois is clear, that in order for the plaintiff to recover against the State, he must prove that the State was negligent, that such negligence was the proximate cause of the injuries and that claimant was in the exercise of due care and caution for his own safety. (McNary vs. State of Illinois, 22 C.C.R. 328, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585.)

It is a well known proposition of the law that the State is not an insurer of all persons using its highways. It is also a well established principle of the law in the state that the claimant is not entitled to recover where the facts show he was guilty of contributory negligence. The doctrine of contributory negligence has been applied in this Court in the case of Doolittle vs. State of Illinois, 21 C.C.R. 113 and Mounce vs. State of Illinois, 20 C.C.R. 268. In the cases cited, the Court held that when approaching a place of known danger without care commensurate to such danger it is contributory negligence.

It is the finding of this Court that the contributory negligence of the driver of the truck was the proximate cause of the accident in question. Claim is therefore denied.


text:
    (No. 5679
    Joel Willard, d/b/a Joel Willard Productions, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1971.

    Henry F. Weber, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto, and the Court being fully advised in the premises;

THIS COURT FINDS that this claim in the amount of $32,398.00 is for the creation and production of a motion picture film entitled “Illinois Trade Mission to Europe” which was produced by the claimant at the request of the former Governor of Illinois and the Board of Economic Development.

IT IS HEREBY ORDERED that the sum of $32,398.00 be awarded to claimant in full satisfaction of any and all claims presented to the State under Cause No. 5679.


text:
    (No. 6067
    John J. Devitt, M.D., Claimant, vs. State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed October 12, 1971.

    John J. Devitt, M.D., Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Berlin, C.J.


text:
    (No. 6120
    Root Brothers Mfg. & Supply, An Illinois Corporation, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed October 12, 1971.

    Korshak, Rothman, Oppenheim & Finnegan, Attorney for Claimant.

      William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6141
    Charles McCorkle, Jr., Claimant, vs. State of Illinois, Senate Operations Committee, Respondent.

      Opinion filed October 12, 1971.

    Charles McCorkle, Jr., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6195
    Commonwealth Edison Company, Claimant, vs. State of Illinois, Division of Highways, Respondent.

      Opinion filed October 12, 1971.

    Joseph C. Sibley, Jr. and Emmet T. Gallagher, Attorneys for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6216
    State House Inn, Claimant, vs. State of Illinois, Respondent.

      Opinion filed October 12, 1971.

    State House Inn, Claimant, pro se.
    William J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.
   Perlin, C.J.

This cause coming on to be heard on the Joint Stipulation of the parties hereto and the Court being fully advised in the premises;

THIS COURT FINDS that this claim is for various staff meetings, agent/broker examinations, and interview-expenses all held at the State House Inn in Springfield.

IT IS HEREBY ORDERED:

1. That the sum of $193.17 be awarded to claimant in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


author: Dove, J.

text:
    (No. 5418
    Betty Jean Beard, A Minor, by Laura Beard, her Mother and next friend, Claimant, vs. State of Illinois, Respondent.

      Opinion filed February 26, 1970.

      Petition of Claimant for Rehearing denied October 27, 1971.

    Ansani, Provenzano and Loutos, Attorney for Claimant.
    William G. Clark, Attorney General; Morton L. Zaslavsky and Etta J. Cole, Assistant Attorneys General, for Respondent.
   Dove, J.

On August 7, 1967, claimant, Betty Jean Beard, a Minor, by Laura Beard, her Mother and Next Friend, filed her complaint seeking damages for injuries received on June 2, 1967.

The facts of the case are as follows:

On or about January 18, 1965, claimant, Betty Jean Beard, was sentenced to the Geneva State Training School for Girls, Geneva, Illinois, as a result of a plea of guilty to a voluntary manslaughter charge. In addition to a regular academic program, the school maintained various laboratory programs and claimant first received instructions in sewing, cooking and food classes, general store, coffee shop. Later, in November, 1966, she was assigned to the meat room of the school.

Inmates, including the claimant, who were assigned to the meat room, were given instructions on hand boning, slicing, packaging, weighing and wrapping of meat, and had the responsibility of maintaining the premises in a clean and sanitary condition. The only machinery in the meat room consisted of an electric cheese sheer, a meat tenderizer and a meat grinder.

The evidence indicates that the meat grinder was operated only by authorized employees, and never by the inmates. Other than the uncorroborated testimony of claimant, which was in direct opposition to the testimony of a number of other witnesses, no evidence was presented that the inmates were instructed to operate the meat grinder, and more specifically that claimant ever did, but rather the evidence indicates that the inmates were instructed never to operate the meat grinder.

On June 2,1967, claimant, while attempting to dismantle the meat grinder, turned it on and then off. While the auger in the meat grinder was still revolving, claimant stuck her hand into the mouth of the grinder where it was caught by the auger. There is testimony in the record that in the excitement surrounding the accident, one Evelyn Taylor, an employee of respondent, while attempting to remove claimant’s hand from the meat grinder, accidently turned the machine on again. Evelyn Taylor testified that, when she heard Betty scream, she ran over to the meat grinder, and flicked the switch not knowing whether the machine was on or off. Claimant was taken by ambulance to Community Hospital where a portion of her right arm had to be amputated.

Claimant alleges in Count I of her complaint that respondent was negligent in one or more of the following respects:

A. It assigned claimant to work under unsafe conditions.
B. It failed to give claimant proper instructions in the use of the meat grinder, or to warn her of the dangers thereof.
C. It failed to provide adequate or proper safeguards for the meat grinder.
D. It allowed the grinder to be operated without adequate or proper safeguards.
E. It failed to furnish adequate help or assistance or supervision to claimant in the operation of the meat grinder.
F. It failed to inspect and properly maintain the said meat grinder.
G. It failed to provide a hopper on the said grinder so that claimant’s arm or hand could not come in contact with the cutting devices.
H. It negligently allowed claimant to use a meat grinding machine, which machine, because of its size and shape in relation to claimant’s physical size, was intrinsically dangerous to her.

Claimant alleges in Count II of her complaint that respondent was negligent in one or more of the following respects:

A. It failed to give claimant proper instructions in the use of and the cleaning of the machines in the meat room.
B. It failed to warn claimant of the dangers of the machinery in the meat room.
C. It failed to warn claimant of the danger in cleaning the machines without having all sources of power completely turned off.
D. It allowed claimant to clean the machines, among which was the meat grinder, without an employee of the State of Illinois preparing the machines for cleaning.
E. It failed to clear the floor and table from fats, fatty substances, and meat droppings, and thereby rendered said place slippery to touch and step.
F. It failed through its employees, to inspect the meat grinder when claimant’s fingers were caught in the machine.
G. It, through its employee, changed the switch suddenly, without ascertaining if the meat grinder was on or off.
H. It, through its employee, failed to check the condition of the meat grinder and claimant’s hand before flicking the switch.

Claimant alleges in Count III of her complaint that respondent was guilty of wilful and wanton conduct in the following instances:

A. It, through its employee, turned on the meat grinder with the claimant’s hand in it.
B. It, through its employee, flicked the switch of the meat grinder without ascertaining the condition of claimant’s hand.
C. It, through its employee, failed to inspect the meat grinder with claimant’s hand in it.

The law in the State of Illinois is clear that, in order for a claimant in a court action to recover damages against the State of Illinois, she must prove that the State of Illinois was negligent, that such negligence was the proximate cause of the injury, and that claimant was in the exercise of due care and caution for her own safety. McNary vs. State of Illinois, 22 C.C.R. 328, 334; Bloom vs. State of Illinois, 22 C.C.R. 582, 585.

At the time of the accident claimant was seventeen years old. Illinois law requires a minor over the age of seven years to exercise that degree of care, which a reasonably careful person of the same age, capacity, intelligence and experience would exercise under the same or similar circumstances. Wolf vs. Budzyn, 305 Ill. App. 603; Hartnett vs. Boston Store of Chicago, 265 Ill. 331.

The record indicates that claimant testified that she stuck her hand into the meat grinder in order to push the auger out, and that instead it caught her fingers. Claimant’s testimony indicates that she was aware of the fact that the auger was still revolving when she put her hand into the meat grinder.

It is the opinion of this Court, taking into consideration the age and experience of claimant, that she knew or should have known that it was dangerous to place her hand in close proximity to the revolving auger of the meat grinder. Claimant’s action was the proximate cause of her injury. Shannon vs. State of Illinois, 24 C.C.R. 154; Craven vs. Illinois, 24 C.C.R. 158; Moe vs. State of Illinois, 23 C.C.R. 14.

It is the opinion of this Court that claimant has failed to introduce any evidence that respondent was guilty of wilful and wanton conduct with respect to Evelyn Taylor’s act of turning on the meat grinder while claimant’s hand was in the meat grinder.

It appears to this Court that Count II of claimant’s complaint raises two questions:

1. Was there an intervening efficient cause that relieves claimant from her own contributory negligence?

2. If there was an intervening efficient cause, was it probable and foreseeable by claimant so that claimant cannot break the causal connection, and thereby relieve herself from her own contributory negligence?

The doctrine of intervening efficient cause is set forth in the case of Johnston vs. City of East Moline, 405 Ill. 460,1 N.E. 2d 401. “An intervening and efficient cause is a new and independent force, which breaks the causal connection between the original wrong and the injury, and itself becomes the direct and immediate cause of the injury”. Pullman Palace Car Company vs. Laack, 143 Ill. 242, 32 N.E. 285; Illinois Central Railroad Company vs. Oswald, 338 Ill. 270, 170 N.E. 247. The intervention of independent concurrent intervening forces will not break causal connection, if the intervention of such forces was itself probable or foreseeable. Sycamore Preserve Works vs. Chicago and Northwestern Railway Company, 366 Ill. 11,7 N.E. 2d 740; Wintersteen vs. National Cooperage and Woodenware Company, 361 Ill. 95, 197 N.E. 578; Garibaldi and Cuneo vs. O'Connor, 210 Ill. 284, 71 N.E. 379; Armour vs. Golkowska, 202 Ill. 144, 66 N.E. 1037.

It is the opinion of this Court that, even if the act of Evelyn Taylor of turning on the meat grinder while claimant’s hand was in the grinder was to be considered to be an intervening efficient cause it was such an act as was probable and foreseeable by claimant so that the causal connection between the accident in question and the contributory negligence of claimant is not broken.

For the foregoing reasons, it is the opinion of this Court that claimant’s contributory negligence was the proximate cause of her injury, and that claimant by reason of her contributory negligence is barred from any recovery in this action. Claimant’s claim is hereby denied.


text:
    (No. 6049
    Minnesota Mining and Manufacturing Company, Claimant, vs. State of Illinois, State Fair Agency, Respondent.

      Opinion filed November 9, 1971.

    Charles W. Ott, Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6103
    Aero Ambulance Service, Inc., Claimant, vs. State of Illinois, Department of Mental Health, Respondent.

      Opinion filed November 9, 1971.

    Aero Ambulance Service, Inc., Claimant, pro se.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.


text:
    (No. 6145
    Advanced Systems, Inc., Claimant, vs. State of Illinois, Department of Finance, Respondent.

      Opinion filed November 9, 1971.

    Griffin, Fiedler and Pascucci, Ltd., Attorney for Claimant.
    William J. Scott, Attorney General; Saul R. Wexler, Assistant Attorney General, for Respondent.
   Perlin, C.J.