text:
    (No. 4622
    National Korectaire Company, An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

    Arthur H. Renier, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Fearer, J.

Claimant filed its complaint based on two contracts entered into with respondent, the first contract being No. 67556, dated August 12, 1952, for the furnishing of labor and materials for the replacement of steam and hot water mains at the Illinois State Penitentiary, Menard, Illinois. The total amount of the contract was $41,571.00, as represented by the bill of particulars set forth in paragraph 4 of the complaint. The sum of $27,273.95, hass been paid on said contract, and an amount of $14,297.05 remains unpaid.

There is also joined in said complaint a second claim on contract No. 67880, dated April 16, 1953, a copy of which is attached to the complaint, made a part thereof, and marked claimant’s exhibit No. 3. This contract is for the furnishing of the labor and materials necessary to install new regulators for the existing boilers, complete with new piping, valves, etc., at the Illinois State Penitentiary, Menard, Illinois. The contract price was $2,-992.00. There have been no payments made on this contract.

The two contracts were joined in this complaint in accordance with Rule 4a of this Court. The total amount due on both contracts is $17,289.05.

No answer was filed by respondent, so a general traverse will be considered in accordance with Rule 11 of this Court.

At the time of the hearing the pertinent facts of the case were stipulated to by and between the parties hereto, through their respective counsel. From the stipulation and the testimony offered by claimant, it appears that claimant fully complied with the contracts, and presented bills for the services rendered in accordance therewith. Certain payments were made on contract No. 67556, and the balance set forth is true and correct. No payments were made on the second contract.

It further appears that the work performed and materials furnished by claimant were satisfactory, and that the contracts were authorized by respondent, and approved by the Governor of the State of Illinois. The Department of Public Works and Buildings, by its Supervising Architect, represented that both contracts were fully complied with, as indicated in a letter, signed by the Supervising Architect, dated February 10, 1954, a copy of which is marked claimant’s exhibit No<. 2. It appears from the stipulation and claimant’s exhibit No. 2 that claimant complied with all of the terms and conditions of the contracts; that the work was inspected and approved by the agent for respondent; and, that the appropriation lapsed before final payments were made.

It further appears that there were sufficient funds in the appropriation made by the 67th General Assembly to pay the amount due and owing on both contracts, and that there were sufficient unexpended funds remaining in the appropriation at the time it lapsed on September 30, 1953. Further, it appears that the balances due on said contracts were not paid, because of the lapse of the appropriation before the balances due were properly certified for payment, and vouchers forwarded to the Auditor of Public Accounts for payment.

It further appears on the contract referred to in the complaint as exhibit No. 3 that no payments were made, and that the sum owing is $2,992.00. On claimant’s exhibit No. 1, there is a balance due of $14,297.05.

Testimony was offered by claimant’s witness, Alfred H. Blaker, Secretary-Treasurer of the claimant company, as to the materials and labor used, and the reasonableness of the contract. This conforms to the bill of particulars in the complaint.

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

A stipulation was entered into waiving briefs and arguments. The only question we now have to pass upon is whether or not an award can be made for the balance due on the contracts where the appropriation has lapsed before said balances were properly certified for payment, and before the properly certified vouchers were forwarded to the Auditor of Public Accounts for payment.

This Court has had occasion to pass upon this same question in the case of White Electric Company, A Corporation, vs. State of Illinois, case No. 4663, opinion filed on November 8, 1955. It has been the opinion of this Court that where contracts, such as those in question, were properly entered into, services performed and materials furnished in accordance with such contracts, the charges therefor were proper, the work properly performed and passed upon by the agents for respondent, and nothing remained to be done except to pay the balance due thereon, then, if there were funds available at the time the contracts were entered into, if there were funds available with which to pay the balance due on the contracts at the time the appropriation lapsed, and no further funds had been appropriated, this Court would enter an award for the balance due as represented by stipulations, testimony and Departmental Reports.

Awards are, therefore, made to claimant, National Korectaire Company, An Illinois Corporation, in the amounts of $14,297.05 on contract No. 67556, and $2,992.00 on contract No. 67880, or a total sum of $17,289.05.


source: Caselaw Access Project

author: Tolson, C. J.

license: Public Domain

text:
    (No. 4679
    Charles H. Redebaugh, Dolores M. Redebaugh and General Insurance Company of America, Claimants, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

    Dixon, Bales and Gunner, Attorneys for Claimants.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On May 18, 1955, claimants filed their complaint in this Court for damages suffered by reason of a fire in their home. The complaint was thereafter amended on April 16, 1956. It alleges that the fire was set by three boys, who escaped from the Dixon State School, and that said escape occurred by reason of the negligence of respondent.

The record consists of the complaint, Departmental Report, report of the proceedings, and Commissioner’s Report.

The facts of the case are as follows:

On October 9, 1954, Leroy Durman, George Norris and Richard Hannan, inmates of the Dixon State School, escaped from the said school, and entered the house of complainants, located in Dixon, Illinois. The house was under construction, and was unattended during the night time. The three boys built a fire in the basement on a colored concrete floor, using tar paper and other scrap material. This left a stain on the floor, which could not be cleaned. In addition to the fire, they squirted oil on a stone fireplace on the first floor, and smashed a steel basement window. Repeated efforts were made to clean the stained floor, but without success, and it was necessary to install an asphalt tile floor over the burned area.

General Insurance Company of America paid claimants the sum of $184.97 under an “extended coverage” policy, and it seeks subrogation for said sum in this proceeding. The total amount claimed is $260.97.

The complaint alleges that the claim for damages was presented to the Department of Public Welfare on April 14, 1955, and, on April 25, 1955, the Department directed claimants to present their claim to this Court.

The Departmental Report filed in this case acknowledges receipt of the claim, and indicates that an inspecting officer went upon the premises to view the damages. The report does not recommend the payment of the claim, but indicates that it was reasonable.

Respondent did not file an answer, nor did it introduce in evidence any testimony to show the care used to restrain inmates from escaping from the school.

Since claimants filed their claim with the Department of Public Welfare, and the Department filed a report, which was admitted into evidence by stipulation, the Court will consider these matters in the determination of this case.

This Court will take judicial notice of the fact that the Dixon State School was established for the care and detention of feeble minded children,, whose families are incapable of caring for them in their own homes.

The Court further believes that, while these inmates are being eared for in said school, the Department of Public Welfare owes a duty to the public to use reasonable care to see that they do not escape and cause injury to others.

The complaint, Departmental Report and stipulations establish a prima facie case on behalf of claimants.

Since respondent did not offer any evidence in rebuttal that would show that reasonable efforts were made to prevent the escape of the inmates, or any other facts or circumstances surrounding their escape, the Court must conclude that there were no facts and circumstances.

The Court, therefore, finds that claimants suffered damages in the amount of $260.97 by reason of a fire set by the three inmates, who escaped from the Dixon State School. The Court further finds that the three inmates made their escape, because of the inadequate security maintained at the Dixon State School.

An award is, therefore, made to General Insurance Company of America, under its claim for subrogation, in the amount of $184.97; and, further, an award in the amount of $76.00 is made to claimants, Charles H. Redebaugh and Dolores M. Redebaugh.


author: Wham, J.

text:
    (No. 4685
    Beulah Iola Gruber Reilly, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.
    Beulah Iola Gruber Reilly, Claimant, pro se.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

This cause comes before us upon the petition of claimant, appearing pro se, and upon the motion of respondent to dismiss the petition.

Claimant, a member of the Armed Forces of the United States during World War II,. claims that she is entitled to the payment of a bonus under the Illinois World War II Bonus Law. Her petition alleges that her claim for bonus was previously filed in the year of 1946, and denied by the Service Recognition Board on the ground that claimant made no proof of her voting record. In November of 1954 she obtained a statement, signed by a Precinct Committeeman, named E. J. Conroy of Springfield, Illinois, setting forth the fact that she voted in all elections from 1937 to and including 1943. This statement is attached to her petition.

Claimant relies upon Par. 65, Chap. 126½, Ill. Rev. Stats., (1955 State Bar Association Edition), as granting jurisdiction to this Court to determine the claim. This sub-paragraph reads as follows:

“Any peison who had a claim, which would have been compensable by the Seivice Recognition Board except that during the period for filing claims such person was ineligible by reason of a dishonorable discharge from service, who prior to July 1, 1953, has or shall have such discharge reviewed and has obtained or shall obtain an honorable discharge, and any person who had an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953 but had not by that date submitted sufficient evidence upon which the Service Recognition Board could pay the amended or supplemental claim shall be entitled to have such claim considered by the Court of Claims and to have an award on the same basis as if his claim had been fully considered by the Service Recognition Board.”

It is apparent from the petition that claimant was honorably discharged from the United States Navy in November of 1945. It does not appear from the petition that claimant had an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953. In the absence of an allegation to that effect, we assume that she did not have such amended or supplemental claim pending.

We must, therefore, conclude that this Court has no jurisdiction over the matter set forth in the petition, since neither of the two conditions to the statute’& applicability are present.

Respondent’s motion to dismiss the petition is well taken in this regard, and should be allowed. The petition is, therefore, dismissed.


text:
    (No. 4688
    Harry Meyers, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

    Harry Meyers, Claimant pro se.
    Latham Castle, Attorney General; Thomas G. Cronin, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On September 6, 1955, Harry Meyers, an inmate of the Illinois State Penitentiary, Joliet, Illinois, filed his complaint against the State of Illinois asking this Court for a declaratory judgment finding that he had served sufficient time for the crime that he had committed, and, further, that he be granted an award of $34,000.00 for wrongful incarceration.

The record consists of:

(1) Motion and order to sue in forma pauperis.
(2) Complaint.
{ 3) Report of the proceedings.
(4) Order authorizing the waiving of brief and argument in said cause.
(5) Commissioner’s report.

The facts of the case are as follows:

On April 23, 1929, claimant was convicted of robbery in Cook County, Illinois, and was sentenced to the Illinois State Penitentiary for a term of one year to life. He appeared before the Parole Board from time to time, and was paroled in 1950. In 1952, he was returned to the Penitentiary for violation of his parole.

The gist of his complaint is that, since his return to the Penitentiary, the Parole Board has never given him a set date for release,, so that he can accumulate good time towards reduction of the set date. He also claims that the Parole Board has acted in an unreasonable and arbitrary manner in the consideration of his case, and that he has served seventeen years more than should be required of him.

At the date of the hearing of his cause, respondent made a motion to strike the complaint on the grounds that it did not state a cause of action, and, in support thereof, urged that the question of parole lies solely within the discretion of the Parole Board, and not the Court of Claims. The Commissioner took the motion with the case, and, at the conclusion of the evidence, found in his report that the Court of Claims was without jurisdiction to either grant a parole, or award damages for alleged wrongful incarceration.

Chap. 38, Sec. 801 to 816, inc., of the Ill. Rev. Stats., as amended, provides a complete code for sentence and parole of persons convicted of crime. This act was found to be constitutional in the case of People vs. Cohen, 307 Ill. 87. Nowhere in the act is there any provision for a review of the findings of the Parole Board by the Court of Claims.

It should also be pointed out that this Court has held in previous cases that it does not have jurisdiction to make awards where wrongful incarceration is charged. Citing Montgomery vs. State, 21 C.C.R., 205; Marcinkiewicz vs. State, 21 C.C.R., 153, Harrison vs. State, 21 C.C.R., 245.

For the reasons above set forth, the motion of respondent to strike the complaint is allowed, and the complaint is hereby dismissed for want of jurisdiction.


text:
    (No. 4711
    Juan B. Guiab, Claimant, vs. State of Illinois, Respondent.

      Opinion filed April 20, 1956.

    Charles D. Callahan, Attorney for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Wham, J.

This cause comes before us on a motion of respondent to dismiss the complaint of claimant on several grounds, one of which is that this Court has no jurisdiction to determine the alleged claim set forth in the complaint.

Claimant, in his complaint, alleges that on November 21, 1950 his claim for the payment of a bonus under the Illinois World War II Bonus Law was denied by the Service Recognition Board for the reason that he was not a resident of Illinois at the time he entered active service. Claimant alleges that, notwithstanding this finding by the Service Recognition Board, he, in fact, was a resident of the State of Illinois, and, when inducted into the service, he was temporarily residing in Carmel, California.

Although no prayer for relief is stated, we will treat the complaint as if claimant prayed that an award be granted in the amount to which he would have been entitled liad the Service Recognition Board found that he was a resident of the State of Illinois.

This question has been before this Court of Claims in the case of Tebeau vs. State, 21 C.C.R. 143, in which case this Court, in dismissing the complaint for lack of jurisdiction, said at pages 144-145:

“If claimant had, or has, a remedy in the courts of general jurisdiction in this state, he has no remedy in this Court.
His complaint in essence alleges an abuse of discretion. Mandamus is one remedy to correct such abuse. Nichols Illinois Civil Practice Act, Vol. 7, Sec. 7160. That a petition for mandamus may be used to compel the Service Recognition Board to pay a bonus claim it has arbitrarily denied was decided in People ex rel Mosco vs. Service Recognition Board, 403 Ill. 442.”

Claimant cites no authority granting this Court jurisdiction. The only authority for this Court to act in matters involving claims for bonuses, which has come to our attention, is the recent enactment by the Legislature, being Par. 65, Chap. 126½, Ill. Rev. Stats., (1955 State Bar Association Edition), which grants jurisdiction to this Court to consider certain claims falling within a limited category. It is apparent from a reading of this statute that claimant’s claim does not come within its purview, said paragraph of the statute reading as follows:

“Any person who had a claim, which would have been compensable by the Service Recognition Board except that during the period for filing claims such person was ineligible by reason of a dishonorable discharge from service, who prior to July 1, 1953, has or shall have such discharge reviewed, and has obtained or shall obtain an honorable discharge, and any person who had an amended or supplemental claim pending before the Service Recognition Board on May 20, 1953 but had not by that date submitted sufficient evidence upon which the Service Recognition Board could pay the amended or supplemental claim shall be entitled to have such claim considered by the Court of Claims and to have an award on the same basis as if his claim had been fully considered by the Service Recognition Board.”

If the Legislature had intended this Court to assume jurisdiction of these claims, and to review the decisions of the Service Recognition Board, we believe they would have so provided. The Legislature not having so provided, we will not assume that they intended to confer jurisdiction on this Court in cases such as this. one.

It is, therefore, our judgment that this Court is without jurisdiction in the matter, and respondent’s motion to dismiss the complaint is hereby allowed. The complaint is hereby dismissed.


author: Fearer, J.

text:
    (No. 4557
    Edward J. Doerr, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1956.

    Giffin, Winning, Lindner and Newkirk, Attorneys for Claimant.
    Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Fearer, J.

On July 18,1951, claimant was the owner of the following described real estate in the Village of Prairie Du Rocher, Illinois:

The Southeast Half (SE½) of Lot Four (4) in Block Sixteen (16) in the Village of Prairie Du Rocher, State of Illinois.

The real estate was improved with a two-story frame dwelling, which was located on the north side of Oliver Street, one and one-half blocks west of State Aid Route No. 7 in said Village.

State Aid Route No. 7 has been continuously under the jurisdiction of the Division of Highways, Department of Public Works and Buildings of the State of Illinois, since 1938.

For many years prior to July 18, 1951, there was a natural drainage of surface water from bluffs located east of said highway into a natural drainage or ditch located on the south side of Oliver Street, which was across the street from claimant’s property.

Claimant alleged that, on or about July 18, 1951, respondent did, without notice, construct a culvert under State Aid Route No. 7 at its junction with the north side of Oliver Street, changing the natural drainage from the south to the north side, adjacent to claimant’s property. Furthermore, by the construction of the culvert in question, the water concentrated at this culvert, because of improper construction and failure to keep the ditches open on the east side of the highway, and by allowing culverts to the north and south of Oliver Street to become blocked, and thus unable to drain the water flow from the bluffs and properties to the east, which were of considerable higher altitude than claimant’s property.

Claimant further alleged that on the date in question, as the result of the negligence of respondent, his property was flooded by water discharged from the culvert herein-above referred to, and his property was undermined and caved in; that there were more than five feet of water in his basement; and, that he was put to a great expense in rebuilding and relandscaping his premises. As a further result, he was required to stay home and away from his employment, and lost income for a period of approximately two months, while he was doing certain rebuilding work on his damaged property.

In respondent’s answer to the complaint, it is alleged that it had no knowledge of the allegations set forth in paragraphs 1, 2, 6 and 7, and demanded strict proof thereof. In paragraph 2 of the answer, it denied paragraphs 3, 4 and 5 of the complaint, being the paragraphs wherein respondent is charged with negligence in the construction of culverts and changing the flow of surface waters, so that said waters, after a heavy rain, would concentrate in the area of claimant’s property, resulting in damage.

As an additional defense, respondent raised the two-year statute of limitations contained in Section 22 of the Court of Claims Act. This additional defense was raised in a motion, supported by affidavit, filed by respondent on October 9, 1953. An order was entered by this Court overruling respondent’s motion, giving as a reason therefor that it was this Court’s opinion that the statute of limitations did not begin to run until the date of the damage for which this claim was made, and not from the time of the construction or change in the drainage along said state highway, which, according to the affidavit attached to the motion, occurred on July 20 and 21,1949.

The complaint for the recovery of damages was filed in this Court on July 3,1953.

Respondent, in its brief and argument, has cited the case of Kershaw vs. State of Illinois, 21 C.C.R. 389. In that case, claimant alleged in his complaint that, on June 19, 1950, and June 28, 1951, and for several years prior thereto, he was the owner of certain described real estate, and that there ran through the described lands in an easterly and westerly direction a certain stream of water known as Big Indian Creek, which flowed through a natural course until respondent constructed a highway bridge, fills and approaches for the bridge along Route No. 78. The bridge, by the nature of its construction, limits and constricts the free and uninterrupted flow of water of Big Indian Creek, and the opening left for the passage of water was insufficient to permit the normal unimpeded and uninterrupted flow of water from said creek in periods of high water.

Claimant further alleged that, on the occasions above referred to, his lands were flooded, and the impounded water moved off more slowly than normal drainage of surface water did prior to the construction of the bridge and approaches, leaving large bodies of water standing on the crops. In an attempt to avoid flood conditions, claimant constructed a levy' or dike separating his land, but that despite this added barrier his lands were covered with several feet of water.

A motion," to which an affidavit was attached, was filed to dismiss the complaint for the reason that the claim was barred by the statutory limitations contained in Par. 439.22, Chap. 37, Ill. Rev. Stats., 1951, wherein it is alleged that the highway bridge, fills and approaches complained of were all completed more than twenty years prior thereto, the construction of the bridge having been completed on August 21, 1929, the earth fills on December 23, 1929, and the pavement on September 9,1930.

In the case of W. Jeff Horney and Frances Parke Horney vs. State of Illinois, 9 C.C.R. 354, this Court discussed at length the question of liability of the State of Illinois for taking or damaging private property for public use.

We quote from the opinion:

“The only liability of the state for taking or damaging private property for public use is under Section 13 of Article 2 of the Constitution of Illinois. In all cases upon the constitutional provision that private property shall not be taken or damaged for public use, there can be but one recovery, and such recovery includes all damages resulting from the improvement, past, present or future. A claim for the recovery of damages for private property not taken for public use, alleged to have been caused by reason of construction of a public improvement, accrues when the improvement in question is made; and, if claim therefor is not made within two years after the making of same, the claim is barred by the statutory limitations contained in, Par. 439.22, Chap. 37, Ill. Rev. Stats., 1951. It appears from the record that the construction described herein was completed more than twenty years prior to the filing of this cause of action. A right of action for damages to private property not taken for public use, but alleged to have been damaged by reason of the construction of a public improvement, is in the owner of the property at the time of the making of the improvement, and a subsequent alienee of the property takes the same as it existed at the time of the conveyance, and has no right of action for damages resulting from the prior improvement, and accruing after the conveyance."

For the reasons assigned above, this Court sustained the motion of respondent on the grounds that the statute of limitations had run.

The problem presented by the present case is predicated upon the negligent acts or omissions of respondent’s agents in diverting the natural flow of surface water by changing the drainage or location of the drainage tubes, and their failure to remove debris from the ditches located on the east side of the state right-of-way.

This is not a case under Sec. 13 of Art. 2 of the Constitution of Illinois, wherein private property is being-taken for a public improvement, for which the state is required to make payment therefor, but is a case where the state has negligently changed the drainage, or omitted to remove obstructions, so that water could flow in its natural course, which had always been across the street from claimant’s property, and also on the east side of the highway, which was approximately one block and a half from claimant’s property.

Seven witnesses testified on behalf of claimant, and stated that, on July 18,1951, claimant owned the six room house located on the north side of Oliver Street, which intersected the state highway, and which was several feet lower than the highway. The terrain sloped from east to west, and east of the highway it was very rough and hilly. During heavy rains a large amount of water would run down to the highway, which formerly had been carried away by ditches extending along the east side thereof, and, in addition, by drainage to the south of Chambers Street. There was testimony corroborating claimant as to the drainage prior to July 18, 1951, and as to the ditch on the east side of the highway. Claimant’s witnesses testified to the flow of water when the drainage was diverted down Oliver Street at the time the culvert was placed under the highway. They further stated that there was very little water from the bluffs east of the highway before the culvert was constructed at Oliver Street.

At the time of the heavy rainfall on the day in question, claimant was away from home. His basement was flooded with approximately five feet of water, which had to be pumped out. His yard was filled with mud and debris. The walls and floors in the basement, dne to the dampness, were damaged, and a considerable amount of damage was done to his home. It was necessary to make repairs to his home by reason of the water damage, and also to make certain repairs to his yard.

There was testimony that, prior to the time of the change of flow of surface waters by the construction of the culvert, the property in this area had never been flooded, and the water had properly drained along the east side of the state highway, a block north of Oliver Street, and that certain water had drained on Oliver Street on the south side of the street opposite claimant’s property.

Claimant further testified as to the damages and money expended as the result of the flooding of his property.

Claimant’s wife testified that she was home the night of July 18, 1951, and that it had rained the night before, but not unusually hard. The next morning she found the basement flooded, and water and debris in the yard. A wall and a two foot ledge in the basement were caved in, the foundation cracked, the downstairs windows cracked, and the doors in the house would not close. Her husband returned home about two days after the flood. The exhibits, which were offered in evidence by claimant, were taken about one month after the property was damaged.

All of claimant’s witnesses testified as to the amount of water, which accumulated on claimant’s property on the day of the flood, and certain witnesses testified as to the condition of claimant’s property, the amount of water in the basement, and the damage done to the house as the result thereof.

Respondent offered in evidence the testimony of Mr. Miller, Assistant to the Field Maintenance Engineer, who testified as to certain photographs taken by him in the vicinity of Oliver Street, and as to the various elevations of Oliver Street, which were made on November 24, 1954. He stated that there was a nine foot drop from the center of the highway to claimant’s residence, and that the culvert at Oliver Street was the standard type used where the terrain is average. Furthermore, he stated that the ditch to the north of the culvert was not as deep as the one to the south.

Jack Day, Field Engineer for respondent, testified that the culvert at Oliver Street was installed on July 20 and 21, 1949, but did not know when the culvert, which was located one-half block south of Oliver Street, was closed; that the records of the Division of Highways did not show whether any maintenance work was ever done on the culvert in the vicinity of Oliver Street; and that, if the ditch on the east side of the road was not hollowed out, water would flood the road. He did not know the depth of the ditches on the east side of the road, nor when the culvert was built. He further testified that the ditches south of Oliver Street needed cleaning out, but stated he had not observed a ditch to the north of Oliver Street on the east side of the highway.

The record establishes that State Aid Route No. 7, at the intersection of Oliver Street, is between nine and ten feet higher than the level of claimant’s house. From this intersection the road goes up hill for about a block to a summit. Across State Aid Road No. 7 are bluffs, which are several hundred feet high. The record shows that no water came across State Aid Road No. 7, and that, therefore, the only water from across the road towards the bluffs, which came into Oliver Street, must have come through the culvert in question. The culvert was a standard eighteen inch metal pipe, which had been in place for approximately three years. It is established in the record that the culvert was incapable of carrying the amount of water, which the witnesses saw flowing down Oliver Street. There was a ditch down each side of Oliver Street in front of claimant’s house. The record does not establish who was charged with the maintenance of the ditches, but it is clear that they were not maintained by the State of Illinois.

The respondent’s argument is that under Illinois Law a higher tract is dominant over a lower servient tract, which must accept the flow of surface water — the owner of the lower tract must permit the surface water from the higher tract to come upon his property. Citing: Gough vs. Goble, 2 Ill. (2d) 577.

Respondent further argues that no negligence whatsoever by the State of Illinois was shown in this case, but does not deny that claimant has suffered damages from the water, but, inasmuch as claimant is required to accept the surface water from property, which lies higher and above his property, he has failed to sustain the burden of proof, and, therefore, cannot recover in this action.

This is a case wheré the state has diverted the flow of surface water by placing a culvert under Oliver Street, which is borne out by the testimony; has allowed ditches on the east side of the highway to become clogged by debris, and the culvert to the north of Oliver Street to become completely clogged, so that a portion of the surface water coming from the bluffs south and east of the highway could be carried under the highway and the street south of Oliver Street, and the rest of the surface water down the east side of the highway.

This, in our opinion, is a different situation than are the ones in the cases cited by respondent, and, under the circumstances, would entitle claimant to recover for actual damages sustained.

In the case of Hargadine vs. Sharkey, 8 Ill. App. (2d) 209, the Appellate Court had occasion to pass upon the sufficiency of Count I of the amended complaint, which was challenged by a motion to dismiss. The trial court sustained the motion as to certain counts of the amended complaint, the plaintiff elected to stand by the counts dismissed, and the Appellate Court overruled the trial court as to Count I of the amended complaint. We are only referring to the pertinent portions of the opinion as to the amended Count I, wherein it was alleged that plaintiffs owned certain described farm land; that State Aid Route No. 4, Stark County, Illinois, is approximately sixty feet wide, and passed by and through plaintiffs’ land; that Spoon River runs in a southwesterly direction through a portion of plaintiffs’ land, and intersects State Aid Route No. 4 at approximately right angles near the center of a described quarter-section of land; that west of Spoon River the land of the plaintiffs is bottom land, and State Aid Route No. 4 runs through this bottom land for a distance of approximately 100 rods to a bluff, and then slopes upward over the bluff; that prior to 1939 there were ditches on both sides of the state road running from the top of the bluff and along each side of the road to Spoon River, so that the water coming into the road at the top of the hill and on the side slopes of the hill drained to the river; that in the year 1939 certain improvement work was done at this location on State Aid Route No. 4 by widening the road, and decreasing the slope over the hill; that, in making these improvements, almost the entire right-of-way for the road was used, and the ditches on both sides of the road from a point near the bottom of the hill extending to the river were filled or destroyed— thus eliminating the channels by which the water falling on the road and the hill could be carried to the river; and that, as a result thereof, the water now falling in the road and draining into the road comes down the ditches on each side of the road to a point near the bottom of the hill, and then, because of a lack of any further channel along either side of the road, flows out into the farm land of plaintiffs on both sides of the road.

The Count in question averred that the County of Stark had no legal right to so divert the hill water and to cast it upon plaintiffs’ land, and alleged that plaintiffs had suffered and will continue to suffer irreparable damage from the acts done by the defendants resulting from the diverting and flowing of water on the land of the plaintiffs. The court stated on page 221:

“The County thus, by its improvement project, has diverted water which formerly followed established channels onto the plaintiffs’ land. In the Young case, 134 Ill. 569, supra, the Town Commissioners of Highways were enjoined from digging a ditch, which would divert surface water onto the adjoining land of the complainant. The only difference between the Young case and this case is that here the improvement work has already been done. Certainly, if the Highway Commissioners can be enjoined before the ditch is dug, they cannot escape liability merely because the wrongful act is completed before suit is filed. Count I, as amended, of plaintiffs’ amended complaint in our opinion states a good cause of action based upon the wrongful diversion of waters upon plaintiffs’ lands.”

There were several other counts presented, which were passed upon, but which it is not necessary for us to pursue, as the state would be liable for the negligent acts of its servants or agents for the diversion of the flow of surface waters by reason of the doing of a wrongful act, or omitting to do something for the protection of property owners in seeing to it that surface water is not diverted, resulting in damage.

The only testimony offered as to the cost of repairs in placing the property in the same condition as it was prior to the flood was that of claimant. He testified that his bills, which were admitted in evidence, totalled $761.80. The bills represented actual expenditures made by claimant, necessitated by the damage caused by the flood.

Claimant testified that it would cost $1,000.00 to make further repairs to the house, that he had worked on the house for one or two months, and that he lost thereby wages from his employment. At the time he was earning $500.00 a month. We are unable to tell from this testimony what portions of the house had to be repaired, in addition to the repairs made or represented by the bills. Claimant could have detailed the parts of the house damaged by the flood, and had a carpenter or contractor testify as to the cost of labor and materials needed to repair the damaged parts of the house, and restore it to the same condition as it was before the flood.

Where receipted bills are not introduced in evidence as being paid or correct, the manner of proof would be the fair and reasonable value for materials, services and labor performed in the restoration of the property to the condition it was in just prior to the damages caused by the flood in Prairie Du Eocher and vicinity.

As to his loss of wages, we have no way of arriving at how many hours of work it was necessary for bim to expend to repair the house, how many days he actually worked on the house himself, or any other competent testimony as to the length of time that he would have had to spend away from his work in performing some of the labor himself. He was undecided whether he was away one or two months, as we have previously pointed out, in his testimony as to damag'es.

We dislike to have to speculate in entering an award where damages are proven in this manner, but, in making an award for an amount in excess of the paid bills,' we are forced to speculate, and to make an award for an arbitrary figure without positive testimony to substantiate it.

It seems reasonable to assume from claimant’s testimony that he would have an expenditure for the cost of repairing the property to the condition it was in before the flood, which could very easily he $1,000.00, in addition to the bills of $761.80.

This Court, therefore, awards to claimant damages in the sum of $1,761.80.


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    (No. 4702
    Fred Berglund and Son, Inc., An Illinois Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 8, 1956.
    Petit, Olin, Overmyer and Fazio, Attorneys for Claimant.
    Latham Castle, Attorney General; Bernard Genis, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On December 20,1955, Fred Berglund and Son, Inc., A Corporation, filed a complaint in this Court seeking an award of $1,800.00 for the balance due them for their services in altering the Administration Building of Northern Illinois State Teachers College, DeKalb, Illinois.

The record consists of the following:

1. Complaint.
2. Departmental Report.
3. Order waiving brief and argument.
4. Stipulations.
5. Transcript of proceedings.

The facts of the case are as follows: On November 25, 1952, claimant entered into a contract with the Teachers College Board for certain alterations to the Administration Building of the Northern Illinois State Teachers College, DeKalb, Illinois. The contract price was $50,848.00, and the work was completed in a satisfactory manner on September 23, 1953.

The final invoice in the amount of $1,800.00 was audited, and it was then discovered that the correct balance was $1,415.75, rather than $1,800.00.

At the hearing it appeared that respondent did not offer any objections to the claim, as amended, and the only reason that the final payment was not made was the fact that the appropriation lapsed on September 30,1953, and, hence, funds were not available to complete the payment.

The Court, therefore, finds that the work has-been accepted by respondent, and that the architect has issued his certificate of compliance.

An award is, therefore, made herewith to claimant, Fred Berglund and Son, Inc., in the amount of $1,415.75.


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    (No. 4567
    George McNary, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1956.

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

George McNary, claimant, filed his complaint against the State of Illinois for personal injuries and property damage sustained as the outgrowth of an accident, which occurred on April 18, 1953, while he was driving in an easterly direction on U.S. Highway No. 50, near Olney, Illinois.

No answer was filed by respondent, and, under Rule 11 of this Court, a general traverse of all the allegations of the complaint will be considered to have been filed.

Claimant alleges that, just prior to and at the time of the occurrence in question, he was operating his automobile with due care and caution for his own safety and the safety of his automobile, and that respondent was guilty of six distinct acts of negligence. Generally, the acts of negligence charged are that the State of Illinois failed to maintain said highway -in a reasonably safe condition for persons and traffic using it; that it permitted said highway, at the time and place in question, to be in a sunken condition, so as to allow water to stand on it, and thereby causing it to be unsafe for vehicular traffic thereon; that, by and through its duly authorized agents and servants, it failed to warn by appropriate signs, signals, watchmen, or other means of warning, persons using said highway of the dangerous condition at the time and place in question, and particularly failed to warn the claimant of the hazardous condition of the highway; that it negligently and carelessly failed to remove an accumulation of water then and there standing upon said highway; that it failed to drain water standing on the highway; that it negligently and carelessly constructed the highway, so as to cause a low place to be on the travelled portion; that it could have foreseen that water would stand in said low place on said highway, and endanger traffic using said highway, and particularly claimant on the day in question.

As a direct and proximate result of the negligent acts of respondent, claimant, in traveling upon said route, ran into the water standing upon the highway. His automobile went out of control, and turned over; and he was thrown therefrom. As a result, he sustained personal injuries, and brings this action for damages in the sum of $7,500.00.

At the time of the trial before the Commissioner, it was stipulated as follows: “U. S. Highway No. 50 between the Village of Noble and the City of Olney in Richland County is a part of the system of state highways, and this section of the highway was constructed by the State of Illinois, Department of Public Works and Buildings, Division of Highways, in 1924 as a part of State Bond Issue Route No. 12. In 1947 this section of highway was resurfaced with a three inch thickness of asphalt, and, from the time of its initial construction to the time of the trial, it has been under the jurisdiction of the Department of Public Works and Buildings, Division of Highways, for all purposes of reconstruction, repairs, maintenance and operation, including the date of the accident, April 18, 1953.”

Five witnesses testified on behalf of claimant, and there were two witnesses for respondent. Respondent also offered a Departmental Report in evidence.

On April 18, 1953, George McNary, claimant, was stationed at Granite City Engineers Depot, Granite City, Illinois. On the date of the accident he left camp at about 12:00 M., driving Ms 1941 Buick to Olney, Illinois, which was a distance of 125 miles. He had driven to Olney on State Route No. 50 several times. He had been traveling between 45 and 50 miles an hour, and just before entering the city limits of Olney, wMch is a city of about 8,000 population, he reduced Ms speed to between 30 and 35 miles an hour. The speed of his automobile was not testified to by all of the eye witnesses.

There was testimony that it had rained in the immediate vicimty of Olney on the mormng of the 18th of April, 1953, but it seems that it rained more in and around Olney than west of there. There was testimony that west of Olney the rain had been very light. Claimant testified that the pavement west of Olney was wet until he got witMn about twenty feet of the city limits of Olney, where it was very apparent that more rain had fallen. It was a cloudy day, but visibility was good. Witnesses testified that from where the water appeared on the Mghway west you could see at least from one-quarter to one-half a mile.

The paved road, as it enters Olney, was eighteen feet in width, with shoulders located on both sides thereof, and there was a slight ditch on the south side of the highway, adjoining the shoulder. An ice cream stand and. a Studebaker Agency, owned by a Mr. Pool, were located on the south side of the road, and just east of the place where the accident happened was an intersecting road, which ran in a northerly and southerly direction. The highway on which claimant was traveling was laid out in a generally easterly and westerly direction.

Witnesses for claimant testified that for several years prior to the accident this particular portion of the highway, extending twenty feet outside of the city limits and within the city limits, during heavy rains, or when as much as three inches of rain fell, would become covered with water, and after a heavy rain would not drain for two or three hours, as the drainage provided on the south side of the road was not adequate to carry the water off of the highway. There was an area where the road was depressed, and the water covered the width of the highway, extending for approximately thirty feet running north and south, and approximately one hundred feet east and west.

The State of Illinois had removable signs, which they placed on the south side of the road, as you enter Olney from the west traveling east, warning traffic of water on the highway when this condtion existed. However, Mr. Rusk, who was the highway maintenance man for this particular stretch of road, testified that he lived three miles west of Noble, and five miles south and east of Olney. The accident happened on Saturday afternoon, and he was not on duty. On that afternoon he was driving to Olney, and he did not know that there was water on the pavement, as it had rained very little at his residence. He had no' notice from anyone that there was any water on the pavement. The signs warning traffic of water on the highway were at his home, and were only erected when there was a heavy rain. He did not know that there had been a heavy rain until he got into Olney. The warning signs had not been posted by him or anyone else prior to the accident. He did erect the warning signs that afternoon, after he learned of the accident.

The other witness, who testified as to the rainfall west of Olney, was Mr. Willis, a State Policeman, whose home was in Olney. He was dispatched to the scene of the accident at Olney, when called by radio from the station at Effingham, Illinois, the District Office for the area patrolled by him. He arrived at the accident at about 3:20 P.M. He noticed water on the highway about thirty feet west of the intersection. A speed limit sign, indicating that it was a thirty mile an hour zone, was posted at the city limits of Olney. He testified as to a conversation with Mr. McNary that evening. He stated Mr. McNary told him that, when he hit the water, he lost control of the car, which, in turn, left the pavement, and hit the pole. This witness had been working for respondent for three years, and during his three years of service fiad seen water on the pavement only about four times.

On cross-examination, he was asked if he knew that it had rained on April 18,1953, and his answer was “no”. He was also asked if he knew it had rained Friday night, and bis answer was “no”. He testified that it had not rained Saturday afternoon at Flora, Ilinois, which was twenty-three miles from Olney. He had left Olney on Saturday morning, and he did not see any rain until he was east of Noble on his way back to the accident— Noble was eight miles from Olney. The pavement was wet, but he did not notice any water standing on the shoulder. There had been no warning signs posted the day of the accident.

The three inch steel post embedded in concrete, and the guy wire referred to, which were the objects struck by claimant’s car, were on the south side of the road near the garage and ice cream stand, being the side of the road on which claimant was traveling. When claimant’s car struck the water, it appeared to slide, run off onto the shoulder, into and through the ditch, striking the post and guy wire, and tearing the post out of the ground. The car turned over, and claimant was thrown out and into the water. The car continued on twenty to thirty feet beyond the intersecting roadway, which was east of where the water was located on the highway. Claimant’s automobile traveled through water for 100 feet. Claimant testified that, because of the dampness on the pavement, you could not see the pool of water until you were within about thirty feet of it. A witness for the claimant testified that you could see the water when "you were 75 to 90 feet to the west of it.

There appears to be a slight curve in the road, and a slight incline to the west of the city limits of Olney. However, from the testimony offered by at least one of claimant’s witnesses you could see for at least one-quarter to one half of a mile in driving from the west to the east.

There was a witness standing in the window of the garage, who saw claimant’s car strike the water, veer to the south, strike the pole and guy wire, turn over on its side and throw claimant out, and then come to an erect position east of the intersection.

The estimates of the amount of water on the pavement at the time of the accident, and the area of pavement covered varied according to the witnesses. However, there was testimony that the water was between eight and ten inches deep. There were no actual measurements made of the length, depth, or width of the water. One of the witnesses testified that after a heavy downpour of rain the highway would drain within two hours.

There was a reluctance on certain eye witnesses to testify as to the speed of Mr. McNa.ry’s automobile when it was first noticed. We do have claimant and one other witness testifying to between thirty and thirty-five miles an hour, and other witnesses refusing to testify as to the speed, confining their testimony to what the automobile did, and the course that it took after it struck the water.

In order for claimant to recover, he must prove three distinct elements, namely: (1) That he was in the exercise of due care and caution for his own safety; (2) That the State of Hlinois was negligent, as charged in the complaint, and that the negligence of the State of Illinois was the proximate cause of his personal injuries and the damage to his property; and (3) That damages were sustained.

This Court has held many times that the State of Illinois is not an insurer of all persons traveling upon its highways. We believe that the state should erect warning signs, and that the state did have constructive notice that the drainage, as one approaches Olney from the west driving east, was insufficient through thei depressed area, and that the highway was inundated throughout this area, which would justify the erection of permanent signs by the State Highway Department warning motorists of said hazard.

Even though it might he said that the state should have erected and maintained not temporary but permanent warning signs, it is our opinion that claimant was guilty of contributory negligence. We cannot help but be impressed by the fact that this was a heavily travelled road. Claimant knew he was entering a city of 8,000 inhabitants, had driven through Olney before, and was not a complete stranger to the particular territory in question. He should have been driving' with his car under control. The speed at which he was traveling, regardless of what was testified to,. is proven by the distance the car traveled, the objects that it struck, the fact that it was going fast enough to right itself and travel the distance that it did, and the fact that the car was completely demolished, so that it had only a salvage value of $42.50. This speaks louder to us than any testimony offered by claimant as to his rate of speed.

It is the finding of this Court that claimant was guilty of contributory negligence, which would be a bar to recovery for personal injuries and property damage against respondent.

It is, therefore, not necessary for us to discuss the medical testimony, extent and nature of injuries, and the exhibits offered in connection therewith.

An award to claimant is, therefore, denied.


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    (No. 4582
    Edna Manus, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1956.

    Edward G. Coleman and John W. Curren, Attorneys for Claimant.

      Latham Castle, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.
   Tolson, C. J.

On October 23, 1953, a claim was filed by Edna Manns, in which she seeks to recover damages for injuries sustained by reason of a fall over an allegedly defective sidewalk in the Illinois State Fairgrounds.

The record consists of the following:'

1. Complaint.
2. Departmental Report.
3. Transcipt of evidence.
4. Brief and argument of claimant.
5. Brief and argument of respondent.

The facts of the case are as follows:

On May 15, 1953, claimant and her daughter, Mrs. Nora Cox, went to the Illinois State Fairgrounds to attend a show in the Coliseum sponsored by the Police Department of the City of Springfield.

About 7:30 P.M. they left their car and started walking on a sidewalk on the north side of the. street leading to the building. When they were within a short distance of the building, Edna Manus tripped over an expansion strip, which separated two sections of concrete, and fell forward .upon her face. She suffered cuts and abrasions on her face, and her glasses and false plate were broken by the impact.

Mrs. Manus was elderly and obese, and walked quite slowly because of this condition.

The sidewalk in question was relatively new. The weather at that time was unseemly warm, and it is presumed that the heat forced the asphalt strip to rise an inch or less above the level of the walk.

■ The accident happened about 7:30 P.M., and, according to the witness, the condition of light was described as dusk. It further appears as though there were no street lights in the area.

Claimant contends that respondent failed to keep the sidewalks in a safe condition, failed to light the area, and failed to otherwise warn the public that a dangerous condition existed.

At pages 59 and 60 of the record, it appears that the walk in question was about a city block in length, and led from a street intersection to the Coliseum. Claimant and her daughter had walked to within 50 feet of the building when the accident occurred. It is to be noted that claimant and her daughter noticed, and crossed over several of these asphalt expansion joints before reaching the expansion joint, which is alleged to have caused the injury.

Respondent did not offer any testimony in the case, but has predicated its defense upon several propositions of law.

The first question in this case is whether or not an asphalt expansion strip, extending above a traveled walk an inch or less in an unlighted area, is a dangerous condition per se. This Court will take judicial knowledge of the fact that it is a common practice, in the. construction of concrete walks., to separate the sections by the use of asphalt expansion joints. It is also common knowledge that these joints produce irregularities on the surface.

Claimant did not offer any evidence to show that respondent had knowledge that this irregularity was excessive in size or height, such that it could he truly described as dangerous to the traveling public, nor was there any evidence that the condition existed for such a length of time, so that this Court could hold that respondent had constructive notice.

This Court has repeatedly held that the state is not an insurer against accidents, which may occur upon its sidewalks and streets.

In the case of Neil Beenes vs. State, 21 C.C.R. 83, the Court stated:

“The rule adopted on liability of municipalities by our courts is applicable to this situation. In the case of Storen vs. City of Chicago, 373 Ill. 530, the court, on page 534, held:

‘A municipal corporation is not bound to keep its streets and sidewalks absolutely safe for persons passing over any part of them, its duty being to exercise ordinary care. (Brennan vs. City of Streator, 256 Ill. 468; Boender vs. City of Harvey, 251 id. 228; Kohlof vs. City of Chicago, 192 id. 249.) Municipal corporations, not being insurers against accidents, are not liable for every accident occurring within their limits from defects in the streets, but the defects must be such as could have been foreseen and avoided by ordinary care and prudence on the part of the municipalities.'

and, in the case of Boender vs. City of Harvey, 251 Ill. 228, the court, on page 231, held:

‘The obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person exercising ordinary prudence cannot avoid danger or injury in passing them, — in general, such defects as cannot be readily detected.’

and, as stated in Thien vs. City of Belleville, 331 Ill. App. 337, on page 345:

‘Municipal corporations are not insurers against accidents, and the only duty cast upon the city is that it shall maintain the respective portions of the street in a reasonably safe condition for the purposes to which such portions of the street are devoted. It is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their safety. (Molway vs. City of Chicago, 239 Ill. 486; Kohlof vs. City of Chicago, 192 Ill. 249; City of Salem vs. Webster, 192 Ill. 369.)”’

It is also the obligation of claimant to allege in her complaint, and prove by a preponderance of the evidence, that respondent had actual or constructive knowledge of the defect, which is alleged to have caused the injury. (Delaney vs. State of Illinois, 21 C.C.R. 191.) Such allegation and proof is not found in this record.

There are several references in the record regarding the age and weight of claimant, and her inability to walk in a usual manner. If her ability to walk was impaired, she should have asked her daughter for assistance, particularly since the evidence shows that claimant was aware of several of these asphalt strips appearing in the walk before she stumbled over the strip in question.

For the reasons above stated, an award will be denied.


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    (No. 4595
    Rosella Owens, Surviving Spouse and Administratrix of the Estate of Charles P. Owens, Deceased, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1956.
    Paysoff Tinkoff, Jr., Attorney for Claimant.
    Latham Castle, Attorney General; Marion G. Tiernan, Assistant Attorney General, for Respondent.
   Wham, J.

The complaint filed by claimant in this case is for the wrongful death of decedent, who was a patient at the Chicago State Hospital, and while there met his death on the 11th day of October, 1953. It is alleged that death was due to the negligent care of decedent, who was caused to slip and fall in the shower room by another patient then in said shower. Claimant prays judgment against respondent in the sum of $7,500.00.

It appears from the record in this case that issue was joined, and the case proceeded to trial before Commissioner Immenhausen on Wednesday, April 18, 1956; that both claimant and respondent were present, represented by counsel, and that claimant introduced verbal and documentary testimony throughout all of Wednesday, and thereafter the cause was adjourned until Thursday, April 19, 1956.

It further appears from the record that claimant, through her attorney of record, announced that she would present more testimony, but that thereafter, on the morning of April 19, 1956, claimant’s attorney advised respondent, through its attorney, that claimant’s wit-, nesses had failed to make out a case in favor of claimant, and that claimant did- not desire to go to the expense of ■ procuring expert testimony and of having* the record written up in the case. It further appears from the record that the attorney for claimant also advised Commissioner Immenhausen of this fact.

All of the above stated facts concerning the hearing of this matter appear from a verified motion to disallow the claim filed by respondent on April 26, 1956, together with proof of service upon claimant.

Claimant has failed to file objections to the motion duly served upon her, through her attorney, and has further failed to file a transcript of the testimony taken at the hearing. Under Rule 15, it is within the discretion of the Court to proceed with the determination of this case notwithstanding claimant’s failure to file such transcript of testimony, and we will, therefore, determine this matter upon the record before us, consisting of the complaint, the Departmental Report, and the motion to dismiss filed by respondent.

According to the facts stated in the Departmental Report, claimant, Rosella Owens, and her deceased husband, Charles P. Owens, were residents of the State of Illinois, County of Cook, for many years. Rosella Owens is the surviving wife of Charles P. Owens, who died in the Chicago State .Hospital on October 11, 1953 at 5:15 A. M. The deceased, Charles P. Owens, was admitted to said institution on December 11, 1952 as a mentally ill person, after having been committed thereto by the Cook County Court on December 8, 1952. He remained in the Chicago State Hospital as a patient until his death on October 11, 1953. On admission, the patient was found to be physically feeble, and mentally confused, with marked memory defects.

On August 31, 1953, the patient was in the shower room of the hospital for the purpose of taking a shower. While standing in the shower, another patient, by the name of Clarence Middleton, fell to the floor, and, in so doing, pushed against Charles P. Owens, and knocked him down. Owens complained of pain in his right hip, and was unable to stand. The attendant on duty in the shower room when the accident occurred, a Mr. Charles Harnish, stated in his report that, on the morning of August 31, 1953, he was giving baths to patients in his ward. This included about two dozen semi-infirm ambulatory patients, many of whom Mr. Harnish had to assist in removing their gowns, seeing that they entered the showers, drying them with a towel, and putting new gowns on them. A patient slipped and fell in the shower causing two other patients to fall, one being Charles Owens. Two of the patients got up by themselves with the help of Harnish, but Charles Owens’ right leg was apparently injured. Charles Owens was then sent by ambulance to the X-Ray laboratory, and then to the Acute Hospital for treatment for injuries. Claimant contended in her complaint that one of the patients falling was an alcoholic patient, -and that, as a result of negligence of the alcoholic patient and the attendant, Charles Owens slipped and fell, sustaining serious internal and external injuries, as a result of which injuries Owens died on October 11, 1953.

Mr. Harnish, respondent’s attendant, stated that there were no alcoholic patients assisting Mm in the duties of bathing the shower patients.

Under Rule 16 of the Rules of the Court of Claims, all Departmental Reports relating to any matter or case pending before the Court shall be prima facie evidence of the facts set forth therein.

The Court, therefore, will accept the Departmental Report containing the above statements with respect to the happening of this accident as prima facie evidence of the trutMulness thereof. There being no further evidence before us, such facts are held to be admitted by claimant.

Respondent’s motion to dismiss the claim is based upon three grounds:

1. Claimant’s witnesses failed to make out a case against respondent.

2. Claimant abandoned her case for the reason that her witnesses failed to make out a case in her favor.

3. Claimant abandoned her case after it had been called for trial; the trial had proceeded for a full and complete day, and witnesses’ testimony and documents had been introduced.

The Court, having considered the entire record in this case, finds that the motion of respondent is well taken, and should be allowed, for the reason that, from the only facts appearing in the record in this. Court, there is no evidence of negligence against respondent; and for the further reason that claimant herself, through her attorney, had abandoned the prosecution of this action even prior to closing her case.

It is, therefore, the order of this Court that claimant’s claim, as set forth in the complaint filed herein, is denied, and that the denial of this claim constitutes a final determination; and, under Section 17 of the Court of Claims Law, the denial of said claim shall forever bar any further claim in this Court arising out of the rejected claim.


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    (No. 4609
    Crosby Garrett, Bled Howell and John Kimbrough, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 22, 1956.
    Kamin and Gleason and Earle Brooks, Attorneys for Claimants.

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

This is an action brought by claimants, Crosby Garrett, Bled Howell and John Kimbrough, against respondent, State of Illinois, to recover damages for personal injuries sustained by each of them on May 5, 1952, while riding in an automobile, owned and operated by Crosby Garrett, which was being driven in a westerly direction along and upon West Pershing Road at or near the twelve hundred block in Chicago, Illinois. Crosby Garrett also seeks to recover for damage to his automobile in the amount of $50.00, the balance of the collision loss having been paid by his insurer. .

Claimants charge in their complaint that the State of Hlinois was in control of this particular portion of West Pershing Road, and that certain construction work was then in process. They allege that it was the duty of respondent to exercise ordinary care in maintaining the highway, and to place barricades and lights in and around the roadway under repair, so that the surface of the road would remain in a reasonably safe condition for use by motorists; that, notwithstanding this duty, respondent negligently failed to furnish the necessary lights, warnings, of, or barricades to apprise the motorists of a certain defect in the roadway, which consisted of a sunken portion of the pavement surrounding a manhole cover, so that it created a dangerous and hazardous obstruction to vehicular traffic.

It is further contended by claimants that, while Garrett was operating his automobile in a westerly direction on West Pershing Road, it struck the defective road surface around the manhole, thereby causing it to go out of control and into an iron post, resulting in the injuries and damages claimed.

Respondent filed no answer to the complaint, and, therefore, under Rule 11 of this Court, a general denial of the facts set forth in the complaint is considered as filed.

It was stipulated between the parties to the action that 39th Street between Halsted Street and Ashland Avenue, which included the scene of the accident in question, at and before the accident of May 5, 1952 was a state highway, operated and maintained by respondent.

It was undisputed that, for some time prior to the date of the accident and for some time thereafter, this section of the road was being resurfaced by the Municipal Paving Corporation under a contract with the State of Illinois. It is further undisputed that during this period of time it was necessary to break the pavement out around the manholes on this stretch of road, raise them, and refill them to the level of the newly surfaced roadway. It is also undisputed that this section of highway was open to the public, and that no part thereof was closed. There is a dispute, however, as to the condition of the road with respect to manholes at the time of the accident. This dispute is material, inasmuch as the defect complained of was a trench several inches deep around one of the manholes, which defect caused the automobile to go out of control.

The evidence of claimants established that at approximately 5:00 A. M. they were proceeding west on that section of the roadway enroute to their work on a construction project in Maywood, Illinois. All claimants lived in the same neighborhood, and took turns driving their respective autos to and from work. On this particular day, claimant, Crosby Garrett, was driving his automobile. It was not yet daylight, and the street lights were not in operation on the bridge. Claimant Garrett testified that he was aware of no defect in the road until his auto with a great thud and shock ’ ’ struck the depression, and veered to the left out of control into an iron pole on the south curb of the bridge.

A Mr. Eugene Larcker, a filling station attendant, who was sweeping the driveway of the filling station where he worked, which filling station was located in- the vicinity of the place of the accident, heard claimants’ auto hit the depression, saw it go to the left, and strike the pole. He went to the scene of the accident, and found a hub cap from the .automobile on the manhole. He described the manhole cover as being approximately one-half inch above the paved road, and surrounded by a trench 5 to 6 inches deep from the top of the cover to the bottom of the trench. He stated that the trench was about 6 or 7 inches wide. He further stated that this depression around the manhole was not filled, and had been in that condition for at least two or three days prior to the accident; that there were no lanterns or barricades around the manhole at the time of the accident; that barricades and lanterns were put up the next day, and that the hole was thereafter repaired.

Thomas Fallon, Police Officer, City of Chicago Accident Unit, testified on behalf of claimants that, he and Officer Frank Madden received notice of the accident by radio, and arrived at the scene of the accident before the automobile had been moved. He testified that the street was under construction at the time, but that he saw no signs showing it to be under construction. His investigation disclosed that the automobile had struck a protruding manhole. His inspection of the street area revealed that the surface had been partially removed around the manhole cover, and had not been filled. He testified that the cover was about one and a half feet in diameter, and that about 8 inches around it was dug out below the surface of the road. He further testified that there were no lights or barricades around the hole. He testified that the distance from the pole, which the automobile struck, to the manhole was approximately 100 or 150 feet.

Claimant, Bled Howell, testified that he was sitting in the front seat of the automobile, and glimpsed the manhole when they were approximately two feet away. The automobile went down suddenly, plunged to the left, and hit the light pole, at which time he lost consciousness. He further testified that there were no street lights burning; that the auto lights were on; that it was between night and dawn, and that they were proceeding at approximately 20 to 25 miles per hour when they hit the manhole.

Claimant Kimbrough testified that he was riding in the back seat, and that the automobile was being driven at approximately 20 to 25 miles per hour when they hit the manhole, and thereafter ran into the pole. He stated that, although he knew the road was under construction, the road was open for traffic at the time, and there were no barricades, lights or signs in the vicinity of the bridge upon which the accident occurred.

The only evidence offered by respondent concerning the existence of the defect was the testimony of Mr. Eugene H. Kroon, then a Civil Engineer employed by the State of Illinois, and charged with the duty of inspecting the work being done by the Municipal Paving Company, his assistant, J oseph W. Pecenansky, and Frank W. Hans-ford, District Construction Supervisor for the State of Illinois. Although these witnesses testified generally with respect to the progress of the construction and repair of this particular portion of the highway, none had any knowledge that the accident had happened until two years thereafter. Their testimony was based, for the most part, upon written memoranda and records that they kept with respect to the progress of the work, and general statements to the effect that they did not notice any defect around a manhole, as was described by claimants’ witnesses.

We believe that, on consideration of the evidence, the direct testimony of the existence of the defect by the city policeman, Thomas Fallon, the filling station attendant, Eugene Larcker,. and claimants ’ testimony as to the manner in which the accident happened, claimants have borne the burden of proof with respect to the existence of the defect. We realize that it is difficult for respondent to offer any more definite testimony than was presented, especially in view of the fact that its witnesses had no knowledge of the accident until after a great lapse of time. Without the happening of this accident having been called to their attention so that a specific inspection could have been made prior to any change in the surface after the accident, we believe that the specific testimony of claimants’ witnesses weighs more heavily than the general testimony of respondent’s witnesses.

The next question we must consider is whether or not respondent was responsible for the existence of the defect. Prior to the trial, respondent filed a motion to dismiss the complaint on several grounds, one of which was that respondent was not in charge of the maintenance and control of the construction work on the highway in question, and that all the work, maintenance control, responsibility and liability in regard to the construction work was that of the Municipal Paving Company, by reason of the contract then existing between respondent, State of Illinois, and the Municipal Paving Company.

A copy of the contract was attached to the motion, and it contained the usual indemnity clause and save harmless agreements for any negligence of the contractor or its employees in performing or in safeguarding the work, etc.

The motion of respondent was denied in accordance with the well established rule prevailing in this state to the effect that the duty to exercise ordinary care to maintain a state highway in a reasonably safe condition for public travel rests primarily with the state, and the duty cannot be evaded or suspended by delegating it to others by independent contractual arrangements or otherwise.

This is the same rule long applying to municipalities in this state. Volume 9, Section 491, Illinois Law and Practice, page 44; Koch vs. City of Chicago, 297 Ill. App. 103 at 110; Cole vs. City of East St. Louis, 158 Ill. App. 494 at 500; Leu vs. City of Chicago, 153 Ill. App. 50 at 54; Village of Jefferson vs. Chapman, 127 Ill. 438 at 444. Since the enactment of the 1945 Court of Claims Law, these same basic rules governing liability for injuries and damages caused by defective streets and highways are applicable to the State of Illinois.

It is, therefore, clear that the fact the repairs were being performed by an independent contractor in no way affects the question of liability of respondent in this case. Whether or not the Municipal Paving Company is liable over to respondent on the contract for any damages respondent must pay is not now before this Court, and we, therefore, will not discuss that question.

With respect to the question of actual or constructive notice, which is always a necessary element in the establishment of a claim against the state growing out of a defective highway, it is apparent from the record that respondent, through its engineer, Eugene Kroon, and his assistants, had knowledge of the particular types of repairs being performed. While it is true their testimony negatives any knowledge on their part of the particular defect complained of, respondent was bound to know continuously what was being done by the contractor, the character of the work, and the conditions as they changed from time to time. In short, respondent was bound to know whether there was any danger arising by reason of the repairs, which might cause injury to the public, and, having such constructive knowledge, was bound to know whether they should have closed the road for travel, or placed the necessary barricades and warning devices to guard against the defect. Volume 9, Section 495, Illinois Law and Practice, page 52; Lau vs. City of Chicago, 153 Ill. App. 50 at 56.

Moreover, the testimony of claimants’ witness, Eugene Larcker, was to the effect that this defect existed for at least “two or three days” prior to the happening of the accident. This was sufficient time under the facts and circumstances herein for respondent to have become apprised of this defect, and taken the necessary action in safeguarding the public by either requiring the contractor to place proper warning barricade signs and lights around the defect, or to do so itself.

From the above, it is our conclusion that claimants have borne the burden of proof by a preponderance of the evidence that respondent was negligent in failing to warn the traveling public, including claimants, of this defect.

The question of contributory negligence on the part of claimants is, in our judgment, not in issue in this case, since the testimony of the only witnesses to the accident is sufficient, in our judgment, to establish the exercise of due care on the part of claimant Garrett, who was driving the automobile.

Having determined the question of liability in favor of claimants, we will, therefore, consider their damages.

With respect to claimant, Crosby Garrett, the evidence reflects that he sustained a fracture of the left wrist. Dr. Samuel I. Weiner testified on behalf of claimants as an examining rather than a treating physician. He examined the X-Rays, which had been taken of claimant’s wrist at the Cook County Hospital on'the date of the accident, as well as on subsequent dates, and found therefrom a fresh transverse fracture of the styloid process of the radius of the left wrist joint. He stated, in his opinion, this was due to trauma. He further testified that an X-Ray taken at Cook County Hospital on June 6, 1952, approximately a month after the accident, portrayed the wrist immobilized in a plaster paris cast, and that the fracture line was in good alignment. He also testified that the X-Rays reflected a congenital condition at the distal fragment of the styloid process of the ulna, which condition is known as an ossicle, and had existed since childhood. He stated that it did not result from the trauma in question.

He further testified that he examined claimant on July 20,1954, and found that the left wrist was enlarged; that on manipulating the wrist claimant lacked about 20 degrees dorsal flexion, about 30 degrees palmer flexion, and had some restriction “for radial deviation”.

He also testified that he had taken an X-Ray of claimant’s wrist on the date of the examination, which was July 20, 1954, and, in comparing the X-Ray he made with the X-Ray of the Cook County Hospital, found that his X-Ray of the styloid process of the ulna portrayed that the distal end had become enlarged, indicating a disturbance that caused it to grow and become twice its original size.

Respondent offered as a witness to Garrett’s condition Dr. Fred W. Hark, an orthopedic surgeon, residing at River Forest, Illinois. His qualifications were admitted by claimants. He testified that on July 31, 1954 he made an examination on behalf of respondent, and stated that “to look at the wrist, you would not think there was anything wrong with it. There was nothing objective, as you examined the wrist. He has a full range of motion in all directions. There were no tender spots palpable on his forearm or hand. ’ ’ Dr. Hark testified that he took an X-Ray, which was identified and admitted into evidence as respondent’s exhibit No. 4. The doctor stated that “The X-Ray is centered about his wrist. It shows the base of the radius and ulna, and the carpal bones, which make up the wrist. The general alignment of the base of the radius is excellent. There is no evidence of arthritis in this X-Ray. The fracture line is well healed, which went through the radius, and on the ulna there is a little ossicle at the end of the styloid process. This is well rounded, and gives one the impression of being an extra bone, a congenital anomaly.” He further testified that the ossicle had nothing to do with the fracture.

The witness then examined claimant’s exhibits Nos. 9-B, 10-B and 10-C, which were X-Rays taken of the left wrist of claimant at the Cook County Hospital on May 5, 1952. He stated that the fracture did not go completely across the entire radius, but just across the styloid process. He further stated that the base of the radius itself was not involved. He further stated that the X-Ray portrayed the same congenital anomaly found in the X-Ray taken by this witness. He stated that, in the X-Ray he took, it was clear that it was a congenital anomaly, while in the original X-Ray “you could not tell”.

The witness then examined claimant’s exhibit No. 14, which was the X-Ray taken by Dr. Weiner, and stated with respect thereto: “Well the fracture throughout the styloid of the radius is well healed, and it is very difficult, in fact, you sort of have to use your imagination to see where the fracture line was. There is no excess callus or anything that would point it out, if you did not know he had an' injury. Of course, the extra bone on the ulna of the styloid shows, as we commented when we looked at the first X-Ray.”

The witness was then asked for his opinion with respect to the condition of the wrist at the present time, based .upon the examination and interpretation of the X-Rays. He answered, “That he has a good end result without disability”.

On cross-examination, the witness testified that there was no evidence of proliferation in the late X-Ray, as compared to the early X-Rays. The witness explained that proliferation is the formation of excess bone in response to trauma or irritation.

From the above, it is apparent that the two doctors are in considerable conflict with one another concerning the present condition of the wrist.

Claimant Garrett testified that prior to the accident he was employed as a laborer on a sewer and tunnel construction job in Maywood, Illinois. He testified he received $106.00 per week prior to the accident, but after returning to work some nine weeks later, accepted a lighter job, receiving only $75.00 per week, which job expired shortly thereafter. He next obtained a position at the post office sorting mail at $65.00 a week, and thereafter a job as an auto bumper maker for $75.00 per week. At the time of the trial he was working as an employment counselor for himself, interviewing people, and aiding them in obtaining jobs.

He testified that his arm was in a cast for eight weeks, and, after it was removed, he received no other treatment. His only testimony with respect to his ability to work after the injury was that he “was lucky enough . to get a lighter job”; that the lighter job expired, and he quit rather than go back to “concrete work”, which he performed prior to the accident. He stated that the reason he could not go back to the concrete work was that he could not use his wrist at all. Thereafter, he worked in the post office for four months, then obtained a job with an automobile bumper manufacturer for several months, and then became self-employed. Nowhere in his testimony does he claim not to be able to use his wrist at the present time. The mere fact that his wrist was not fully recovered some five months after the accident is no evidence of permanency. His only complaint at the present time is that “I don’t think that it’s completely healed, because during cold rainy weather it feels sort of like rheumatism, and I think that I have a restricted motion to the arm. I can’t turn it as far as I could. I definitely don’t have as strong a grip.”

With respect to the employment record of claimant ■Garrett, respondent offered John M. Lefevour, time keeper of M. J. Boyle and Company, for whom Garrett worked both prior and subsequent to the accident. This witness testified that Garrett returned to work in the week ending July 6, 1952, and the payroll records, introduced as respondent’s exhibit No. 1, reflect that he continued to work until the week ending October 12, 1954. The witness testified that the record reflected that this claimant received approximately the same weekly payment for work after he returned, as he did prior to the accident. He further testified that Garrett worked at the same labor classification, and at the same rate of pay before and after the accident. This witness did not know the reason why Garrett left the employment in October.

From the above, we cannot say that claimant has borne the burden of proving by a preponderance of the evidence an injury of any great permanence. The evidence, particularly with respect to the present limitation of motion, is in conflict, as we have above pointed out, and claimant’s own testimony does not to our satisfaction establish any great loss of motion, excessive pain, or inability to obtain employment.

We believe that an amount of $3,050.00, which would include the loss of property damage to claimant’s automobile, would be a fair award to claimant, Crosby Garrett.

Claimant, Bled Howell, sustained an injury to the left ankle and lower leg, the exact nature of which is not definite. He testified that he was earning approximately $121.00 a week prior to the accident, and also worked for the Boyle Construction Company. He was taken to the Cook County Hospital, and remained 21 days, after which he was confined to his home. A cast was placed on his left leg, and removed approximately 2% to 3 months after he left the hospital. He also suffered a blow and cut on his forehead, which required stitches. He attempted to return to work in October, but was unable to obtain further employment from Boyle, and about the middle of October went to work for the Major Corporation, a construction company, at Hammond, Indiana, as a carpenter’s helper. He complained that he is dazed when working on scaffolding. He worked as a carpenter’s helper until December 17, 1952 at $2.20 an hour. He testified that his take-home pay from such a job was $75.00, while his take-home pay while working for Boyle was $121.00. Subsequent to that employment, he worked for the Kenney Construction Company doing the same type of work. He has worked steadily from then until the present time.

With respect to claimant Howell’s employment record, respondent’s witness Lefevour testified that, while working for M. J. Boyle and Company, Howell received $2.35 per hour as a miner. Respondent’s exhibit No. 1 is a photostatic copy of the payroll record of Howell while working for Boyle, which record reflects his average weekly take-home pay at approximately $94.00 per week.

Howell complains that his ankle is stiff, but has had no regular medical attention, and has been caring for it himself by soaking it in hot water two or three times a week.

Dr. Weiner testified as an examining physician with respect to the X-Rays taken by the Cook County Hospital of claimant Howell’s leg, and X-Rays taken by him on July 24, 1954. Dr. Weiner was unable to find any bony pathology from any of the X-Rays taken on May 5, 1952, while claimant was in the Cook County Hospital. He, however, found from the X-Ray taken on July 1, 1952 “an osteoporosis of the distal end of the fibula and tibia above the ankle joint, and ... an involvement of the tibial fibular articulation”.

Dr. Weiner testified that he took an X-Ray of claimant’s leg on July 8, 1954. He testified'that there were no visible fracture lines on this X-Ray, but that this type of pathology frequently results from a united fracture. He testified that in the lateral view he noticed a thickening and irregularity of the anterior aspect of the fibula. He further found that there was an obliquity of the ankle joint proper, and described it as not a normal condition. He stated that the obliquity is “from lateral from the outside proximo to the medial side distally”. He further found that the fibula tibial articulation is abnormally widened, and that the widening could have resulted from a fracture of the shaft of the fibula .above the joint with some rotation of the distal fragment.

Dr. Weiner further testified that he examined claimant Howell, and found motion was noticeably restricted in the left ankle in each direction, which amounted to about 15 degrees in comparing it with the motion of the right ankle. He also stated that an examination of the left ankle revealed .an oblique surgical scar on its lateral aspect.

He testified that claimant had obtained a fair result, and the only thing* that could improve it further was a major operation, an osteotomy — a splitting of the bone above the ankle, and making a wedge, so that the weight bearing axis of the tibia would be coming down the mid line of the talus. In answer to the Commissioner’s question, Dr. Weiner stated, “In layman’s language this person has an ankle joint, which is oblique instead of straight, and, therefore, has a painful, partly stiff ankle joint. That is in plain English.” The doctor further testified that there may not have been an actual fracture of the bone, but a separation of the ligament from the bone, which would cause the oblique condition of the ankle.

He further testified that the X-Rays reflected a congenital condition on the posterior aspect of the talus. He stated that this condition could not cause the thickening of the tibial fibular articulation “because it was. in back and away from the ankle joint”. He stated, however, that it could cause pain.

Respondent’s witness, Dr. Hark, testified that he examined claimant Howell on behalf of respondent on July 31, 1954; that there was a moderate amount of swelling about the entire ankle, and that the general alignment of the left foot was excellent. He testified that dorsal flexion and plantar flexion were limited to about 70% of normal, and claimant’s prosupination, the ability to turn his foot sideways, was probably limited to about 60% of normal. Respondent’s exhibit Ho. 5, an X-Ray taken of claimant Howell, was interpreted by Dr. Hark as showing an excellent general alignment of the bones with no evidence of arthritis about the joints. Dr. Hark also interpreted the X-Rays taken at Cook County Hospital on May 5, 1952. He stated these X-Rays show what is called a subastragali dislocation. The astragalous stayed with the tibia, and all of the other bones of the foot are away from it. He stated that this was the result of trauma, but there was no evidence of fracture. It was a dislocation. This witness also interpreted claimant’s X-Ray, which was taken on July 1, 1952 at the Cook County Hospital, as showing the bones in very good alignment, and also showing considerable bone atrophy.

This witness also interpreted claimant’s exhibit No. 13, taken on July 20, 1954 by Dr. Weiner, as showing the bones in good alignment, and “the oblique view shows this extra bone, whose margins again are nice and round, which we associate with congenital ossicle”, and shows the ankle bone returned to a good alignment; that it does not show any widening of the fibula tibia articulation. He characterized the ankle joint as having a normal appearance. He stated that the end of the fibula looked normal. The doctor further testified that there was swelling in the ankle that could not have resulted from the congenital condition, which he spoke of. He stated that the swelling could be the result of trauma or arthritis, or could be the aftermath of a spastic flat foot. He gave an opinion, based upon a reasonable degree of medical certainty, that Howell had sustained a subastragaloid dislocation. He stated that it is unusual for the swelling to persist for such a long period of time from just a simple dislocation. His prognosis was that he doubted whether it would ever improve, and stated, “I think it will stay as it is now, unless he begins gritting his teeth and makes that work. Lots of people work with stiffness at the joints. ’ ’

On cross-examination, the witness testified that the ^welling* testified to would probably be caused by trauma, assuming that the ankle, before injury, was without swelling.

After considering the record in respect to claimant Howell’s injuries, it is the conclusion of the Court that he sustained an injury of some permanence, but one which has not disabled him from pursuing* a gainful occupation similar in nature and earnings to that performed by him prior to the accident. Including loss of earnings, we believe that an amount of $6,700.00 is a fair award.

The injuries sustained by claimant Kimbrough were not serious. He testified that he was shaken up, sustained cuts on his forehead and across the back of his ankles. He received first aid treatment at the Cook County Hospital, his cuts were bandaged, and he left after two hours. These cuts healed leaving scars, the extent of which are not shown by the testimony. He lost eleven days work. He earned approximately $96.00 take-home pay per week.

We believe that an amount of $250.00 is a sufficient award.

We, therefore, allow the claims presented in this case in the following amounts: To claimant, Crosby Garrett, $3,050.00; to claimant, Bled Howell, $6,700.00; to claimant, John Kimbrough, $250.00.